Tennessee Legislature Passes COVID-19 Recovery Act (August 17, 2020)
On August 12, 2020, the House and Senate passed the Tennessee COVID-19 Recovery Act (“Act”). The Act provides protections against lawsuits in the form of heightened pleading and proof requirements. The Governor has not signed the law as of yet but is expected to do so.
Under the Act, an individual or legal entity (a “person”) will not be liable for loss, damage, injury, or death (collectively referred to hereinafter as an “injury”) that arises from COVID- 19 unless the claimant proves by clear and convincing evidence that the person caused the injury by an act or omission constituting gross negligence or willful misconduct.
The Act requires that a claimant in any action alleging injury arising from COVID-19 must file a verified complaint, pleading specific facts with particularity from which a trier of fact could reasonably conclude that the injury was caused by the defendant’s gross negligence or willful misconduct. In an action alleging injury based on exposure to or contraction of COVID-19, the Act further requires that the claimant file a certificate of good faith stating that the claimant or claimant’s counsel has obtained a signed, written expert medical opinion that the claimant’s injury was caused by the alleged act or omission of the defendant. A claimant’s failure to comply with the Act’s pleading requirements will, upon motion, make the claim subject to dismissal with prejudice.
The Act 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 or limitation of liability available under current law or contract.
The Act also includes the following pertaining to COVID-19-related claims, as they relate to limited liability provisions under the present law:
(1) Extends immunity, under the Tennessee Governmental Tort Liability Act, for governmental entities in connection with any injury arising from COVID-19, unless the claimant proves by clear and convincing evidence that the injury was caused by an act or omission of the governmental entity or the entity’s employees constituting gross negligence;
(2) Prohibits claims being brought, or judgements entered, under the Tennessee Governmental Tort Liability Act against an employee of a governmental entity for an injury arising from COVID-19 and proximately caused by an act or omission of the employee within the employee’s scope of employment for which the governmental entity is immune, unless the claimant proves by clear and convincing evidence that the injury was caused by an act or omission that was willful, malicious, criminal, or performed for personal financial gain;
(3) Specifies that the State does not waive State sovereign immunity for civil liability for any injury arising from COVID-19, unless the claimant proves by clear and convincing evidence that the injury was caused by an act or omission of the State entity, or a State employee or agent, constituting gross negligence; and
(4) Limits a public postsecondary institution’s liability for any injury arising from COVID-19 to claims where the claimant proves by clear and convincing evidence that the injury was caused by an act or omission of the institution, or the institution’s employee or agent, constituting gross negligence or willful misconduct.
The pleading requirements that a claimant bears under the Tennessee COVID-19 Recovery Act will apply to any claim filed under (1)-(4).
The provisions of the Act will take effect immediately upon being signed into law by the Governor. The terms apply to all claims arising from COVID-19, except those for which, on or before August 3, 2020:
(1) A complaint or civil warrant was filed;
(2) A notice of a claim was with the Tennessee claims commission; or
(3) Notice was satisfied under the laws pertaining to healthcare liability claims.
This bill will be repealed on July 1, 2022, but will continue to apply to any injury occurring before that date to which none of the exceptions in (1)-(3) apply.