COVID LIABILITY BILLS (Luetkemeyer R-Platte City and White R-Joplin)

The Senate worked 15 hours on Tuesday and Wednesday morning to perfect COVID-19 liability protection.  The bill was a compromise involving much discussion.  The perfected version defines actions to including COVID-19 exposure actions, COVID-19 medical liability actions and COVID-19 products liability actions.  Exposure actions cover individuals and entities that provide businesses, services, activities or accommodations from suits for actual, alleged, feared or potential exposures.  COVID-19 medical liability actions are brought by persons who suffered personal injury or their representative brought for a health care provider’s act or omission providing COVID-19 related health care services.  COVID-19 products liability actions are brought by individuals or their representatives who suffered personal injury caused by the design, manufacturing, importation, distribution, labeling, packaging, lease, sale or donation of a covered product.  The plaintiff is required to show that the defendant engaged in recklessness or willful misconduct and the actual exposure of COVID-19 caused the personal injury.  Religious organizations shall be liable if the plaintiff can prove intentional misconduct.  The bill establishes a rebuttable presumption of an assumption of risk by a plaintiff in a COVID-19 exposure action when an individual or business posts a sign which contains the warning notice in the bill.  Religious organizations are not required to post or maintain a sign.  Changes to policies are not evidence of liability and businesses/individuals are not required to have a policy.

Businesses/individuals are not liable in COVID-19 exposure actions for the acts or omissions of a third party unless the individual or entity had an obligation under general common law principles to control the acts or omissions of the third party or the third party was an agent of the business or individual.  In health care actions, the delay of an elective procedure for good cause is not reckless or willful misconduct.  COVID-19 product liability cases will not hold businesses or individuals liable if they do not make the product in the ordinary course of business, make the product in the ordinary course but due to the emergency made it in a modified process or makes the product in the ordinary course but use of the product is different that its recommended purpose and used in response to the emergency.  Plaintiffs have to show recklessness or willful misconduct and the damage was caused by such conduct.  These provisions do not apply to fraud in connection with advertisement.

The bill allows for punitive damages but they shall not exceed nine times the amount of the compensatory damages.  These provisions will expire four years after the effective date.  Nothing in the bill expands liability otherwise imposed or limits any available defense.  This bill replaces any common law caused of action except the ones specifically set out in the bill.  These exceptions include:

  • Applicability of any provision of law that imposes stricter limits on damages or liabilities for personal injury or affords greater protection to defendants;
  • Does not affect actions under Chapter 213, 285 and 287 (Disability and Worker’s Compensation);
  • Does not impair, limit or affect the authority of the state or local government to bring any criminal, civil or administrative action against a business or individual;
  • Does not impact an action for intentional discrimination on the basis of race, color, national origin, religion, sex, disability, genetic information or age;
  • Does not mandate a vaccination or affect the applicability of any provision of law that creates a cause of action for a vaccine-related personal injury;
  • Does not prevent a business or individual to bring a cause of action regarding an order issued by a state or local government to cease operations;
  • Does not prevent a cause of action for breach of contract for business interruption, or action where an insurer refuses to pay for such interruption;
  • Does not impact causes of action for price gouging, noneducational related canceled events or payment of membership fees;
  • Does not impact any provision of law providing for a cause of action for breach of contract against an educational institution for the refund of tuition or costs; and
  • Does not impact causes of action under Chapters 441, 534, and 535 relating to residential property.

Actions for exposure shall not be commenced later than two years after the exposure.  Actions for medical liability must be commenced no later than one year after the date of the discovery of the alleged impact and product liability actions must be commenced no later than two years after the alleged harm.

The bill does have an emergency clause.