CHARLESTON – As businesses across West Virginia slowly begin to reopen, some do so with the fear of litigation.
Gov. Jim Justice unveiled his “West Virginia Strong – The comeback” plan last week that will allow different types of businesses to reopen gradually. Residents also now are under “Safer At Home” orders rather than the stricter “Stay At Home” directive.
State Sen. Eric Tarr (R-Putnam) owns businesses with about 30 locations. Some of them were deemed essential and have stayed open throughout the pandemic. Some have closed down.
Burgess
Tarr’s businesses include physical therapy centers, fitness centers, a hardware store, a lumber yard, commercial and residential real estate, a heating and air conditioning company, a marketing agency and an events company.
He said he fears his and other small businesses across the state will be vulnerable to advantageous trial attorneys.
“The way trial lawyers go after businesses is scary,” Tarr told The West Virginia Record. “They’ll play the odds with these cases. They find somebody to file a lawsuit, then it’s a fishing game for them. They send out a letter to small businesses as a notice of intent to file a lawsuit. They ask for your insurance company and your attorney.
“So, the business then has to notify the insurance company to tell them you had an attorney reach out to them. The business then has to go through a discovery process. At this point, there is little expense in time or money for the attorney. But the business has to go through a discovery process. It takes time away from the business. But, it’s just a waiting game for the attorney. It’s what they bank on.
“The threat of a lawsuit puts stress on the small business owner. A lot of small businesses barely make it as is. But, with this Coronavirus and all of the government economic restrictions related to it, this is really going to limit their capacity or shut them down.”
Tarr said this applies both to businesses that had to shut down and to those that have stayed open.
“It doesn’t matter if you’re selling hot dogs or physical therapy,” he said. “It’s going to be like shooting fish in a barrel for these attorney letters going out to small businesses.”
Tarr said the problem doesn’t end there.
“All of this also instills fear into the client base of a business,” he said. “The government rhetoric and executive actions, while necessary, is hurting the small business owner who had set up a shop to create income for them and their family.
“Now, they’re going to have fewer clients. The effects of this pandemic don’t just magically go away when the restrictions are lifted. It doesn’t go away once you open the economy. The state has put additional rules and regulations on business owners.
“Restaurant owners were struggling already. How do you expect them to meet normal regulations on top of the new ones … on top of a client base unsure about coming to your business?”
Another small business owner said he hopes lawmakers do something quickly to help protect businesses.
Obviously, liability is always a concern in West Virginia, but we can’t afford to let it keep us closed right now,” Duane Zobrist, CEO of Resort Outfitters in White Sulphur Springs, told The Record. “We have to get back to work and hope that job providers get the protections we need to get people back to work safely.”
Tarr said he thinks the attorney ads already being aired on television about the Coronavirus pandemic is just the first wave.
“These first ones are about nursing homes,” he said. “They’ll go after the companies with deep pockets. Deep pockets mean big insurance claims.
“There’s a whole waterfall of harm coming on this if we don’t limit liability on small business owners in West Virginia.”
Tarr said the economic aftershocks of the pandemic will be felt by small businesses for years.
“It takes time to build a client base,” he said. “Three years or so at least. Consumers have had to change their buying habits because of this. It gets more expensive to get a customer back or to get a new customer.
“The impact of these executive orders goes way beyond the timeframe of shutting the business own and allowing it to open back up. It will take 18 months to two years at least.”
Tarr said this situation was made worse because many government leaders looked at it only as a health crisis.
“You’ve heard people say it isn’t an economic crisis. That it’s just a health crisis,” Tarr said. “I disagree with that. There was a health crisis because there was a novel virus we had to prepare for, and we weren’t prepared for it. Governors created an economic crisis by unilaterally going to health care leaders and advisors. By ignoring the economic side of this, they’ve created a health care crisis.
“I’m not pleased with how this has been handled. Governors across the country are trying to figure out how to be a leader in a situation they know nothing about. The executive orders are arbitrary. Try to find two states opening the same businesses at the same time.
“They (government leaders) overreacted. The problem is how long it took for them to realize they overreacted.”
Last month, state legislative leaders released the plan to reopen the state. Part of that report outlines the long-term recovery plans, which includes enacting “liability protections for healthcare providers, employers, and all individuals who have been on the front line of combatting COVID-19 and providing critical services to citizens.”
A statewide legal reform group praised that idea.
“West Virginia Citizens Against Lawsuit Abuse is greatly encouraged to hear this very important recommendation as part of an overall recovery effort for our state,” said Jordan Burgess, executive director of West Virginia Citizens Against Lawsuit Abuse. “We are looking forward to working with the governor and legislative leaders to pass legislation as soon as possible on liability protections for our job and healthcare protectors.”
State Senate President Mitch Carmichael (R-Jackson) also previously told The Record he will fight to make such protections a reality.
“Yes, we are working on it, and it is under consideration already,” Carmichael said last month. “And we are going to be very vigilant about it to help protect businesses, citizens and health care providers who are doing what they can to help during this pandemic.
“We don’t want them to be opened up to meaningless lawsuits filed by litigation-loving plaintiffs attorneys.”
Tarr said such measures “needed to happen yesterday.
“We need to get some laws on the books that limit liability of businesses,” he said. “If you were an essential business and continued to operate, you need protetions.
“Listen, these frontline providers are heroes. Small business health care providers are heroes, too. They put themselves at risk so people aren’t frequenting hospitals. Then, the doctors and nurses working with COVID patients are heroes, too, of course.
“None of those people should have to assume liability for this. Look at every other essential service, those people are heroes as well. Grocery store workers, truck drivers, people manufacturing those supplies. They all need those same liability protections. That same conjecture of heroism needs to apply to every one of these essential services.
“If you were listed as an essential service or health care provider, anything you did that is related to a COVID case, there should be no liability. That is as Good Samaritan as Good Samaritan gets. Those same Good Sam laws we have now should go into effect for these people.”
