Tennessee Passes Critical COVID-19 Liability Protection Bill

Date: August 12, 2020

State lawmakers moved briskly this week, overwhelmingly passing the “Tennessee COVID-19 Relief Act” today during a special session called by Gov. Bill Lee. The Senate passed Senate Bill 8002 by a vote of 27-4, and the House followed shortly thereafter in a bipartisan fashion, 80-10-1.

The main difference in the bill relative to an earlier version considered in June is the removal of a retroactive clause that would have kicked in in early March. Under the new bill, lawsuits filed before Aug. 3 will not fall under the newly adopted provisions of a statewide framework for liability claims. Gov. Lee, who introduced the legislation as an “administration bill,” is expected to sign it into law soon.

The legislation was an NFIB priority. All of us at NFIB thank the hundreds of NFIB members who called and emailed their legislators and the governor to urge passage of this legislation. Thank you also to Gov. Lee, Lt. Gov. Randy McNally, House Speaker Cameron Sexton, as well as bill sponsors Sen. Mike Bell and House Majority Leader William Lamberth and Rep. Michael Curcio for their work and leadership.

Who and what does the legislation protect?

Specifically, an individual or legal entity (a “person”) will not be liable for loss, damage, injury, or death that arises from COVID-19 unless the claimant proves by clear and convincing evidence that the person caused the injury by an act or omission constituting gross negligence or willful misconduct. The legislation protects small businesses, as well as non-profits, hospitals, manufacturers, schools and others.

The legislation does not provide “blanket immunity,” as some opponents stated. The legislation does put in place high standards to clear in a court in order for a plaintiff to prevail in a pandemic-related lawsuit. What else is required of plaintiffs to prevail in a COVID-19 related lawsuit?

The Act requires a claimant in any action alleging injury arising from COVID-19 to file a verified complaint pleading specific facts with particularity from which a trier could reasonably conclude that the injury was caused by the defendant’s gross negligence or willful misconduct. In an action alleging injury based on exposure to or contraction of COVID-19, the Act further requires that the claimant file a certificate of good faith stating that the claimant or claimant’s counsel has obtained a signed, written expert medical opinion that the claimant’s injury was caused by the alleged act or omission of the defendant. A claimant’s failure to comply with the Act’s pleading requirements will, upon motion, make the claim subject to dismissal with prejudice.

This procedure is expected to reduce instances under which defendants would enter discovery, which can be costly to small businesses and others, and lead to costly out-of-court settlements. What does the legislation not do?

The Act does not: (1) Create a cause of action; (2) Eliminate a required element of any existing cause of action; (3) Affect workers’ compensation claims; or (4) Amend, repeal, alter, or affect any immunity or limitation of liability available under current law or contract.

How will claims by employees in the workplace be handled?

During the special session, a bill was introduced to create a rebuttable presumption for COVID-related workers’ comp claims. NFIB opposed the bill, which failed in the Senate Judiciary Committee. Presumptions in workers’ comp, once adopted, are very hard to retract. If a state’s workers’ compensation system is working as it should, a person with a valid job-related injury/illness will have a compensable claim and a presumption statute is not necessary. If an employer denies a claim that should be paid, that employer will face negative consequences. Tennessee has both a penalty and the possibility of having to pay the employee’s legal expenses if an employer wrongfully denies coverage. We believe our workers’ comp system in Tennessee is operating efficiently and fairly; our administrators have been and will handle workers’ comp claims fairly.

When and how long will the law be effective?

The provisions take effect once Gov. Lee signs into law. This bill applies to all claims arising from COVID-19, except those which, on or before August 3, 2020: (1) A complaint or civil warrant was filed; (2) A notice of a claim was with the Tennessee claims commission; or (3) Notice was satisfied under the laws pertaining to healthcare liability claims. This bill will be repealed on July 1, 2022, but continues to apply to any injury occurring before that date to which none of the exceptions in (1)-(3) apply.

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