CHARLESTON – The state Senate has approved changes made to the COVID-19 immunity legislation, and the bill now awaits Gov. Jim Justice’s signature.
On March 11, the Senate voted 26-4 on the amendments made earlier this week by the House of Delegates to Senate Bill 277, also known as the COVID-19 Jobs Protection Act. The House received official notice of the Senate action, sending the bill to the governor.
Justice had requested the legislation, so he is expected to sign the bill into law. When he does, it will go into effect immediately, and it is retroactive to January 1, 2020.
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Greg Thomas with West Virginia Citizens Against Lawsuit Abuse called SB277 “one of the strong COVID liability protection bills in the nation.”
“For decades, West Virginia was a Judicial Hellhole and ranked last for legal fairness,” Thomas said. “But times have most certainly changed. Leaders in the West Virginia Legislature have passed dozens of legal reform bills addressing a myriad of issues since 2015. It should not be all that surprising that West Virginia would pass the best COVID liability protection bill in the country.
“These are exciting times in West Virginia. Not only has West Virginia led the nation in vaccine distributions, but now we are leading the nation in liability protections related to the pandemic. West Virginia may be the safest place in the country — from the virus and from greedy personal injury lawyers.”
But 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 … 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, Thomas disagrees.
“The personal injury lawyers will say or do anything to make sure that they can sue anyone they can to get rich,” he told The 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.
ATRA President Tiger Joyce said plaintiffs’ lawyers spent more than $260,000 to air more than 3,300 legal services television ads mentioning COVID-19 or coronavirus in West Virginia from March through December of 2020.
“It is as critical as ever for West Virginia to pass a legislative solution to support health care providers, small businesses, and their employees who have been on the frontlines, responding to the pandemic, as they’re targeted with lawsuits” Joyce said.
The bill addresses liability claims stemming from the COVID-19 pandemic with respect to exposure claims, medical liability lawsuits and products liability actions. Joyce said 24 states and the District of Columbia already have enacted some sort of COVID-19 liability protections.
The day before House passage, delegates amended the bill removing the blanket immunity offered in the original legislation.
House Judiciary Chairman Moore Capito (R-Kanawha) 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.
Another amendment offered 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.
“It is encouraging to see West Virginia’s legislature work toward enacting reasonable liability protections for local businesses, health care providers and others to protect them from entrepreneurial trial attorneys who seek to profit from the pandemic,” Joyce said. “I look forward to seeing Gov. Justice’s signature on this important piece of legislation to protect West Virginians.
“While a national solution would create a more predictable system for all and would ease the burden on companies that operate across state lines, the onus has fallen on the states.”
