Jacob Freeland, Class of 2021, Belmont Law
Tennessee Governor Bill Lee signed into law the Tennessee COVID-19 Recovery Act on August 17, 2020. By doing this, Tennessee joins a growing list of states that have enacted state laws that provide expansive protections to various individuals and organizations from actions arising from loss, damages, injuries, or death that has arisen from the COVID-19 pandemic.
Under this act, Tennessee will provide these protections to all applicable “persons”, unless there is clear and convincing evidence of gross negligence or willful misconduct. According to the legislation, “person” covers a wide variety of entities including individuals, healthcare providers, sole proprietorships, corporations, limited liability companies, partnerships, trusts, religious organizations, associations, nonprofit organizations, and any other legal entity regardless if formed as a for-profit or not-for-profit entity.
According to the law firm of Waller, Lansden, Dortch and Davis, who’s government relations team worked very closely with the Tennessee Chamber of Commerce in passing this legislation, the Act requires a heightened pleading standard. Under this heightened standard, any claimant in any action alleging injury arising from COVID-19 is required to do the following:
- File a verified complaint pleading specific facts with particularity from which a finder of fact could reasonably conclude that the injury was caused by the defendant’s gross negligence or willful misconduct; and
- File a certificate of good faith stating that the claimant or claimant’s counsel has obtained a signed, written statement from a physician duly licensed to practice in the state or a contiguous bordering state and competent to express an opinion on exposure to or contraction of COVID-19, which confirms the physician’s belief that the alleged injury was caused by an alleged act or omission of the defendant or defendants. A claimant’s failure to comply with the above described pleading requirements will, upon motion, make the claim subject to dismissal with prejudice. In addition, the Act provides specific civil liability protection for governmental entities and public colleges and universities for any injury arising from COVID-19, unless the claimant successfully proves and complies with the pleading standards described above. The Act applies to all prospectively filed claims arising from COVID-19. In response to concerns raised about pending COVID-19 related lawsuits, legislators negotiated the addition of a “grandfather clause” that excludes claims occurring before August 3, 2020 in which:
- A complaint or civil warrant was filed;
- A notice of claim was filed with the Tennessee Claims Commission; or
- Notice was satisfied under state law pertaining to healthcare liability claims.
According to Governor Lee, the goal of the law is to protect businesses by preventing further economic consequences to businesses that have already been hit hard by the COVID-19 crisis, while still providing an avenue to hold bad actors accountable. Additionally, because of these expansive protections and heightened pleading standards, businesses and individuals that conform to applicable reopening guidelines stand a far better chance of being protected from liability under claims arising from COVID-19, which will hopefully provide businesses with more confidence in re-opening and helping to stimulate the Tennessee economy.
This Act is an example of the many challenges that state governments are facing in regard to the many difficulties and competing interests that have presented themselves during this pandemic. The Tennessee government feels that this Act provides a delicate balance which both ensures justice for individuals who have wrongly been injured as a result of the pandemic, while also providing business with confidence to attempt to continue operating without fear of being bombarded with lawsuits due to liability concerns.
Shani Rivaux, Ian Wahrenbrock, Tennessee Passes Broad COVID-19 Liability Shield Legislation, Pillsbury (Aug. 20, 2020), https://www.pillsburylaw.com/en/news-and-insights/tennessee-passes-broad-covid-19-liability-shield-legislation.html.
Wendy Keegan, Tennessee Governor Bill Lee signed the Tennessee COVID-19 Recovery Act, Husch Blackwell (Aug. 21, 2020), https://www.healthcarelawinsights.com/2020/08/tennessee-governor-bill-lee-signed-the-tennessee-covid-19-recovery-act/.
Nicole Watson, Tennessee Enacts COVID-19 Recovery Act, Waller (Aug. 19, 2020), https://www.wallerlaw.com/news-insights/3738/Tennessee-enacts-COVID-19-Recovery-Act.