October 1, 2020
The Tennessee House and Senate both passed the Tennessee COVID-19 Recovery Act, requiring a claimant filing a COVID-19 lawsuit against individuals, businesses, schools or healthcare providers in Tennessee to prove gross negligence or willful misconduct by clear and convincing evidence. On Monday, August 17, 2020, Tennessee Governor Bill Lee signed the bill into law.
Let’s take a deeper look at the key points of the bill:
What is the Burden of Proof?
The Act states that a Plaintiff with a claim against any person or entity for loss, damage, injury or death arising from COVID-19 must prove by clear and convincing evidence that the person or entity proximately caused the loss, damage, injury or death by an act or omission constituting gross negligence or willful misconduct. A plaintiff must also plead specific facts with particularity from which a finder of fact can reasonably conclude that the alleged loss, damage, injury or death was caused by the defendant’s gross negligence or willful misconduct.
A Certificate of Good Faith is Required.
Any COVID-19 claimant must file a certificate of good faith stating the claimant has consulted with a physician who believes the alleged injury was caused by the acts or omissions of the defendant.
What is the Applicable Timeframe?
The Act applies to any events occurring before July 1, 2022, except those for which a complaint or civil warrant was filed or pre-suit notice was given on or before August 3, 2020. The Act does NOT create a new or alter any existing statutes of limitations or repose.
Do Governmental and Higher Education Entities Have Immunity?
The Act also creates immunity for governmental entities from COVID-19 claims unless a claimant proves by clear and convincing evidence that a government employee within the scope of his or her employment was willful, malicious, criminal or performed for personal financial gain. Furthermore, the state does not waive its sovereign immunity unless a state employee commits gross negligence.
Public institutions of higher learning have immunity from COVID-19 claims unless a claimant proves by clear and convincing evidence that the institution’s employee or agent acted with gross negligence or willful misconduct.
Is Worker’s Compensation Affected?
No. The Act does not create a cause of action, eliminate a required element of any existing cause of action or affect workers’ compensation claims.
Other states have taken similar legislative actions similar to the above-mentioned, including Mississippi, who passed a similar liability protection bill two months ago. A Federal COVID-19 liability protection bill was proposed as part of the next round of COVID-19 relief but failed to advance in the Senate.
Harris Shelton continues to monitor updates on new and evolving legislation stemming from the pandemic. If you or your business are in need of legal guidance regarding recent COVID-19 legislation, please contact Harris Shelton, a full-service law firm, today.