CHARLESTON – The House of Delegates has passed an amended version of the COVID-19 immunity bill.
Senate Bill 277, known as the COVID-19 Jobs Protection Act, passed the House on March 10 on a 76-24 vote. The updated version, that now includes amendments limiting the immunity of some entities, now goes back to the Senate for a vote.
During the March 10 floor session, Minority Whip Shawn Fluharty (D-Ohio) noted that proponents of the bill have said only six such COVID-related lawsuits have been filed in West Virginia. He even expressed doubt there had been that many.
Capito
“It doesn’t sound like they’re being filed all across the state of West Virginia,” Fluharty said. “What we’re doing now is using COVID as another excuse … to close the courthouse doors for our people,” Fluharty said. “It’s not just about COVID. Are you kidding me? …
“You want to keep attacking attorneys. Don’t you think they’d be filing a hell of a lot more than six cases? They’d be lining up at the courthouse with their briefcases out. ‘Got another one! Got another one! Got another one!’ But they’re not doing that because it’s not happening.
“So, who are you actually going to impact? People. Your constituents.”
Fluharty said Republicans ran on the premise of protecting the Constitution.
“But guys, there’s more than just the second Amendment,” he said. “Keep on reading that thing.
“This bill is disgusting. You’re going to let bad actors get away. You’re hurting your constituents. … Just today, Gov. (Jim) Justice announced that 70 health-care facilities failed to report COVID-19 deaths in the state of West Virginia. Failed to follow the you-know-what guidelines. But we’re going to bail them out. Not me. I’m going to support the constitution and my constituents.”
Delegate Joey Garcia (D-Marion) agreed, quoting Metallica lyrics.
“That’s what happens when entities put profits over people,” Garcia said. “We are all looking for the light at the end of the tunnel. … And those people who lost loved ones because of bad actors are looking for another light at the end of the tunnel called justice.
“So to quote one of the greatest lyricists of our generation, James Hetfield of Metallica, ‘Then it comes to be that the soothing light at the end of your tunnel was just a freight train coming your way.’”
But House Judiciary Chairman Moore Capito (R-Kanawha) said he’s proud of the work the House has done on the original Senate bill to make it more reasonable.
“We realized it needed work,” Capito told fellow delegates. “That’s what the legislative process is all about. We made it better. Made it fair. It’s clear neither side of this debate is very happy.
“But, our amendment shows bad actors won’t be immunized. So, if there is a bad actor, we’re going to look at it. If COVID had nothing to do with it, we’re going to take care of it.”
The day before, the House amended the bill removing the blanket immunity offered in the original legislation.
Capito offered an amendment that would let medical malpractice claims be filed if a judge rules the claims had nothing to do with the pandemic. The amendment, which was approved, also would allow claims to be filed if there was intentional malicious conduct in connection with the pandemic, such as a business not enforcing social distancing or mask guidelines.
But Delegate Chad Lovejoy (D-Cabell) still thinks the bill is too overreaching, noting that nursing homes and other care facilities are exempt. Lovejoy had proposed a similar amendment to Capito’s in the Judiciary Committee, but it was voted down.
“There are facilities, way before COVID, that had chronic understaffing problems, had lack of infection controls and then a pandemic came and people died,” Lovejoy said during the March 9 House floor debate on the bill. “I’m not going to give immunity to them, I don’t think that’s right.”
Another amendment offered March 9 by Delegate Mick Bates (D-Raleigh) would allow those whose workers’ compensation claims are denied to file a claim in circuit court if they had injuries or death after contracting COVID-19 at work.
A group committed to protecting the 7th Amendment right to jury trial says the bill is too broad and could take away citizens’ rights.
The West Virginia Consumer Protection Alliance also said the bill would “legalize COVID overreach and take away West Virginians' rights to challenge unnecessary restrictions.”
“The COVID pandemic has taken plenty from West Virginians over the last 12 months,” said Scott Windom, co-chairman of the West Virginia Consumer Protection Alliance. “Now, the West Virginia Legislature is using it as the excuse to take away our 7th Amendment rights, too.
“The bill passed today by the West Virginia House of Delegates is too broad. The bill will not only prevent individuals and small businesses who are harmed from having their day in court, it will also bar other West Virginians from being able to challenge unfair regulations and restrictions imposed by businesses, employers and local governments.
“West Virginians are left powerless.”
But, a leader of another statewide legal reform group disagrees.
“The personal injury lawyers will say or do anything to make sure that they can sue anyone they can to get rich,” Greg Thomas of West Virginia Citizens Against Lawsuit Abuse told The West Virginia Record. “Everyone knows that the personal injury lawyers are liberal donors who spent over a million dollars in 2020 alone running false and negative ads against the very Republicans now they are trying to trick.
“And the personal injury lawyers gave even more to the very Democratic candidates and legislators who are the only ones that opposed this bill in the State Senate.”
The West Virginia Consumer Protection Alliance is a separate 501(c)4, but the members of its advisory committee are trial attorneys and members of the West Virginia Association for Justice.
