Missouri Governor Mike Parson (R) signed S.B. 51 into law on July 7, 2021, limiting liability for COVID-19-related exposure except in cases of recklessness or intentional misconduct. The Insights Association endorsed the legislation back in February.
The Insights Association shared some information and considerations for employers in the insights industry as they approach reopening their offices post- COVID-19, but coronavirus litigation remains an underlying concern. That is why litigation protection has been a top public policy priority to ensure the insights industry’s ability to properly get back to work and bounce back from the COVID-19 crisis. COVID-19 liability limitation unfortunately failed at the federal level in 2020 despite our advocacy, and unified Democrat control in DC eliminated any expectations for it. However, similar laws to Missouri’s supported by IA have been passed in Alabama, Arkansas, Florida, Iowa, Louisiana, Michigan, Oklahoma, and Utah.
Missouri S.B. 51 passed the Senate on February 3, 2021, following a filibuster, but then got bogged down in committee in the House before finally passing on May 25.
St. Louis is ranked as the 7th-worst Judicial Hellhole on the American Tort Reform Foundation’s annual list. A report from Citizens Against Lawsuit Abuse estimated that the financial benefit of reforming Missouri’s tort system could support an additional 20,880 jobs and $3.38 billion in increased economic activity.
Under Missouri S.B. 51, “No individual or entity engaged in businesses, services, activities, or accommodations shall be liable in any COVID-19 exposure action” unless the plaintiff can “prove by clear and convincing evidence that”:
- “The individual or entity engaged in recklessness or willful misconduct that caused an actual exposure to COVID-19”; and
- “The actual exposure caused personal injury to the plaintiff.”
Plaintiffs also have to be able to prove “intentional misconduct” in order to hold a religious organization “liable in any COVID-19 exposure action.”
The law would provides “a rebuttable presumption of an assumption of risk by a plaintiff in an exposure claim when the individual or entity posts and maintains signs in a clearly visible location at the entrance of the premises or provides written notice containing the warning notice specified in the act.” Religious organizations are not required to post such notices.
“Any adoption or change to a policy, practice, or procedure by an individual to address or mitigate the spread of COVID-19 after the exposure shall not be considered evidence of liability or culpability”
Further, Missouri S.B. 51 does not “require an individual or entity to establish a written or published policy addressing the spread of COVID-19, including any policy requiring or mandating vaccination or requiring proof of vaccination.”
Finally, no one can “be held liable for the acts or omissions of a third party unless the individual or entity has an obligation under general common law principles or the third party was an agent of the individual or entity.”
COVID-19 exposure litigation needs to be brought “in any Missouri court” no “later than two years after the date of the actual, alleged, feared, or potential exposure to COVID-19.”
The law allows for punitive damages to be awarded in any COVID-19 related litigation, but such damages cannot “exceed an amount in excess of nine times the amount of compensatory damages.”
Missouri S.B. 51 “shall not be construed to,” among other things:
- “[A]ffect causes of action for intentional discrimination”;
- “Impair, limit, or affect the authority of the state or local government to bring any criminal, civil, or administrative enforcement actions against any individual or entity”;
- “Require or mandate a vaccination or affect the applicability of any provision of law creating a cause of action for a vaccine-related personal injury”;
- “Prohibit an individual or entity engaged in businesses, services, activities, or accommodations from instituting a cause of action regarding an order issued by the state or local government that requires an individual or entity to temporarily or permanently cease the operation of such business”; or
- “Affect the applicability of any provision of law providing a cause of action for breach of a contract insuring against business interruption or for failure or refusal to pay a contract insuring against business interruption”;
A “COVID-19 exposure action” is defined as a civil action:
- “Brought by a person who suffered personal injury or a representative of a person who suffered personal injury;
- “Brought against an individual or entity engaged in businesses, services, activities, or accommodations”; and
- “Alleging that an actual, alleged, feared, or potential for exposure to COVID-19 caused the personal injury or risk of personal injury that occurred in the course of the businesses, services, activities, or accommodations of the individual or entity.”
“Recklessness” is “a conscious, voluntary act or omission in reckless disregard of: (a) A legal duty; and (b) The consequences to another party.”
“Willful misconduct” means “an act or omission that is taken: (a) Intentionally to achieve a wrongful purpose; or (b) In disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit.”
This information is not intended and should not be construed as or substituted for legal advice. It is provided for informational purposes only. It is advisable to consult with private counsel on the precise scope and interpretation of any laws/regulation/legislation and their impact on your particular business.
NewsGovernment AffairsHoward Fienberg, CAE – The Insights Association