CHARLESTON – National and statewide tort reform groups are praising West Virginia lawmakers for work on the COVID-19 immunity legislation that could be on the governor’s desk soon.
“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” American Tort Reform Association President Tiger Joyce said.
Joyce said from March through December last year, 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.
Joyce
An amended version of Senate Bill 277, known as the COVID-19 Jobs Protection Act, was passed March 10 by the House of Delegates on a 76-24. The updated version now goes back to the state Senate for approval. If it approves it, the bill then will go to Gov. Jim Justice to be signed into law.
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.
“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.”
An official with West Virginia Citizens Against Lawsuit Abuse also hailed the work on the immunity bill.
“The House of Delegates deserves a round of applause for their efforts to provide COVID liability protections for our state’s job creators, healthcare providers and educators,” Greg Thomas told The West Virginia Record. “Not only is West Virginia number one in the nation in vaccine distribution for COVID, but we are poised to be number one for COVID liability protections—no safer place to be than West Virginia during the pandemic.
“WVCALA is very encouraged by this year’s legal reform agenda by the Governor and state legislature. Job well done so far.”
The day before passage, the House 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.
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, 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.