August 19, 2020
On August 17, 2020, Governor Bill Lee signed into law the Tennessee COVID-19 Recovery Act, limiting the types of legal claims arising from COVID-19 that may be asserted and raising pleading standards for those claims that are permitted. The state legislature had passed this bill six days earlier during a special session called by Governor Lee.
The Act broadly protects “persons”—individuals and legal entities, including businesses, hospitals, schools, non-profits, and religious institutions—from claims “arising from COVID-19” unless the claimant can prove by clear and convincing evidence the defendant-person’s gross negligence or willful misconduct.
The original bill failed to pass during the 111th General Assembly this past June, primarily due to disagreement in the House over a retroactivity clause that would have applied these limitations to claims beginning on March 6, 2020. The retroactivity provision was amended in the final version passed this week, along with other changes but ultimately providing protections for entities and persons from simple negligence COVID lawsuits.
WHEN DO LIMITATIONS ON CLAIMS BEGIN (AND END)?
The Act applies to all claims arising from COVID-19 without any express time limitations, except where any of the following occurred “on or before August 3, 2020”: (1) where a complaint or civil warrant had already been filed; (2) for claims under the Tennessee Claims Commission Act where the required pre-suit notice of the claim had already been given; and (3) for claims under the Tennessee Health Care Liability Act where the pre-suit notice requirements had already been satisfied. The significance of August 3, 2020 is that the date in which Governor Lee publicly called for a special session and announced the intent of the state to pass legislation to limit claims arising from COVID-19.
Moreover, the Act only runs until July 1, 2022, but continues to apply to any loss, illness, injury, or death occurring before then to which none of the above three exceptions apply. Put another way, if the virus is still here after July 1, 2022, and a claim “arises from COVID-19,” that claim would not fall under the Act. Of course, practically speaking, future legislation could extend the period of the Act’s applicability.
Notably, while the bill initially failed due to its proposed retroactivity dating back to March 2020, the final version of the Act removed all-time limitations whatsoever, except for the three specific instances listed above (so long as they occurred on or before August 3, 2020). Given that the statute’s language does not explicitly bar retroactive application of the Act, there is the possibility that plaintiffs may challenge the Act’s constitutionality, and future litigants should be mindful of these potential retroactivity considerations.
WHICH TYPES OF CLAIMS ARE PERMITTED?
The central provision of the Act provides that “notwithstanding any law to the contrary, there is no claim against any person for loss, damage, injury, or death arising from COVID-19, unless the claimant proves by clear and convincing evidence that the person proximately caused the loss, damage, injury, or death by an act or omission constituting gross negligence or willful misconduct.” Tenn. Code Ann. 29-34-802(b).
This clause eliminates plaintiffs’ ability to assert basic negligence claims arising from COVID-19 and only permits claims in situations of “gross negligence or willful misconduct.”
Furthermore, the Act expressly provides that it 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, defense, limitation of liability, or procedure available or required under law or contract.
The Act also applies to broad range of claims, explicitly any “arising from COVID-19.” As discussed below, the Act includes a heightened pleading standard for claims “based on exposure to or contraction of COVID-19,” which means that the Act covers claims that include those not specifically arising from exposure to the virus. Such claims could include, for example, where a hospital changes protocols (say, pre-operation procedures) based upon COVID-19 and that change results in injury to a patient.
HEIGHTENED PLEADING STANDARDS
For all claims under the Act, “the claimant must file a verified complaint pleading specific facts with particularity.” These pleading requirements are stricter than those for ordinary negligence claims in two fundamental ways: (1) by requiring that the complaint be verified (in other words, sworn) and (2) by implementing a heightened pleading standard, analogous to the “particularity” required of pleadings for fraud claims in accordance with Tennessee Rule of Civil Procedure 9.02. In contrast, basic negligence claims do not require a verified complaint and only need a “short and plain statement of the claim” under Rule 8.01.
Furthermore, for claims “arising from COVID-19” that are specifically “based on exposure to or contraction of COVID-19,” the claimant must additionally file a certificate of good faith stating as follows:
- The claimant or claimant’s counsel has consulted with a physician duly licensed to practice in the state or a contiguous bordering state;
- The physician has provided a signed written statement that the physician is competent to express an opinion on exposure to or contraction of COVID-19; and
- Upon information and belief, the physician believes that the alleged loss, damage, injury, or death was caused by an alleged act or omission of the defendant(s).
Failure to comply with these heightened pleading requirements comes with a hefty price tag. A claimant’s failure to satisfy any of these mandates subjects his or her legal action to dismissal with prejudice.
While numerous COVID-19 lawsuits have already been and continue to be filed, no one can predict to what degree the Tennessee COVID-19 Recovery Act will prevent future suits from being brought, particularly given the rapidly evolving nature of the pandemic and businesses’ and individuals’ responses to it. However, would-be litigants would be wise to follow future cases filed under the Act and courts’ interpretations of it.