How Coronavirus Relief May Lead To Tort Reform

May 14, 2020

Tax revenue for states and local governments plummeted after lockdown orders went into effect to slow the spread of the coronavirus. Elected officials in the region are looking for a lifeline – in the form of another rescue package from Congress.

Speaking Tuesday, Kentucky Republican and Senate Majority Leader Mitch McConnell said there would be no more coronavirus legislation unless it included legal liability protection for businesses.

“If we want even an outside shot at the kind of brisk rehiring that American workers deserve we have to be sure opportunistic trial lawyers are not lurking on the sidewalk outside every small business in America waiting to slap them with a lawsuit.”

McConnell says Republicans are crafting a package that will create a “safe harbor” from potential lawsuits for any business that follows proper health guidelines. If, of course, those existed.

“There’s no one set of guidelines that are coming out.”

Lee Siegel, a Hartford-based lawyer for Hurwitz & Fine, mostly defends insurance companies who cover the cost of such litigation. He says every level of government has different guidelines.

“The counties, from the state, from the federal government so there seems to be no one in charge telling them this is what you have to do and if you do it this way, you’ll be protected.”

Siegel says even if there were clear guidelines, it’s still unlikely a company can be successfully sued that isn’t already covered by existing workman’s comp insurance.

But let’s say it’s not an employee. Let’s say it’s a customer who claims a restaurant gave them COVID. How do you prove that to a jury?

Denis Kelly is a personal injury lawyer based in Long Beach. 

“A good defense lawyer is going to come up with hundred different places of contact. How did you get there? Who did you see in the evening before, who’d you see that afternoon?”

Lawyers on both sides, those representing businesses and those, to use McConnell’s words, lurking on the sidewalk to sue businesses, neither side sees a lot of successful lawsuits happening. Kelly says this isn’t what plaintiff lawyers are talking about now. 

Likewise, businesses apparently aren’t asking about it either. Joseph Brown is based in Western New York, and also with the firm Hurwitz & Fine. He says all businesses are asking him about now is safety.

“From an HR perspective, you just want to have a situation where your workers feel they’re are returning to a safe workplace.”

So if neither plaintiffs nor businesses are concerned right now about legal liability protection, why are Senate Republicans so insistent on it?

“This is also a means by which McConnell gets his foot in the door on tort reform,” says Denis Kelly, the personal injury lawyer.

In layman's terms, making it much harder to sue businesses for anything. Which, from his perspective, makes it harder to keep companies from hurting people. Larry Seigel, the insurance lawyer, agrees that a much bigger political fight is taking shape, but he looks at it from the perspective of businesses.

“Creating those types of safe harbors is going to lessen litigation and reduce the cost of litigation going forward.”

So, lest you forget where this issue originated, it was started by states wanting a federal rescue package so they don’t have to raise local taxes. But going forward, it looks like it will be about the future of tort reform.

Read the latest on WSHU’s coronavirus coverage here.

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