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COVID liability moves forward after 15 hours on Senate floor

  

JEFFERSON CITY, Mo. — COVID-19, which has derailed life and the General Assembly for the past year, was also the subject of the first lengthy Senate filibuster of the legislative session Tuesday. 

Sen. Tony Luetkemeyer’s SB 51 was on deck for nearly 15 hours Tuesday night and into Wednesday morning as senators debated just how much protection businesses should get from coronavirus-related lawsuits. The bill was ultimately perfected shortly after 5 a.m., after tweaks were made throughout the night. 

The bill protects certain businesses, activities, and accommodations from being held liable for exposure to COVID-19 unless a plaintiff could clearly prove the entity or individual acted in reckless or willful misconduct that caused exposure to COVID-19. 

The bill includes a rebuttable presumption of an assumption of risk by a plaintiff in exposure actions when a business or individual posts certain health warning signs or other written notices. Religious organizations are not required to post such signs. 

Changes in policies or procedures by a business or individual to mitigate the spread of COVID-19 is not to be considered evidence of culpability or liability under the bill. 

Health care providers are protected under the bill except when a plaintiff can prove recklessness or willful misconduct and allege the damage resulted in personal injury was caused by such recklessness or willful misconduct. 

“While our state continues to combat the devastating effects of a global pandemic, Missouri businesses and health care providers face a second crisis, a plague of endless litigation that would penalize their efforts to reopen and put Missourians back to work,” Luetkemeyer, a Kansas City attorney, has said. “Our brave frontline nurses and doctors stood firm in the face of this pandemic, and we must now stand with them. Likewise, our state’s businesses deserve a fighting chance to reopen and allow our state’s economy to recover.” 

SB 51 has been combined with Sen. Bill White’s SB 42 which included similar COVID liability language. It does contain an emergency clause. 

The bill was on deck for nearly 15 Tuesday night and into Wednesday morning as senators debated just how much protection businesses should get from coronavirus-related lawsuits. (THE MISSOURI TIMES/KAITLYN SCHALLHORN)

After the changes were introduced early Wednesday morning, a few Republican senators expressed their belief it didn’t go far enough to protect religious organizations and churches. Another early morning amendment stripped language regarding when a church could be held liable. It’s left with: “No religious organization shall be liable in any COVID-19 exposure action unless the plaintiff can prove intentional misconduct.” 

“Could this open the church up for — or any religious organization up for — potential harm,” Sen. Mike Moon said. 

In an earlier version of the bill, Moon narrowly attached an amendment preventing religious organizations from being held liable for COVID exposure and exempted them from posting the public health warning signs. The amendment was approved in a 16-14 vote before the new substitute was put forth. 

“We know from this chamber not everyone is reasonable,” White had said at the time. 

Sen. Steven Roberts, a Democrat from St. Louis, also brought forth amendments throughout the night and was compared to former Sen. Scott Sifton on his dealings on the legal matter. He had previously taken issue with a portion of the legislation that could allow the attorney general to go after what he or she believes to be frivolous lawsuits. The fear, he said, is the potential to silence those who have legitimate grievances.  

The filibuster comes after the Missouri Legislature dealt with an outbreak of COVID-19 within the Capitol. The House paused activity for a week while multiple senators have quarantined or isolated after testing positive or being in close contact with someone who contracted COVID-19. 

Over the past week, more than 150,000 individuals in Missouri have received a vaccination dose. However, there’s been more than 7,300 new reported cases of COVID-19 and 55 deaths over the same time period in Missouri. With more than 1,700 people in the hospital — including about 400 in the ICU — Missouri’s positivity rate hovers around 9 percent for the past week. 

SB 51 passed out of the Senate Judiciary and Civil and Criminal Jurisprudence Committee, which Luetkemeyer chairs, in late January. 

COVID liability protections were added to the second extraordinary session of 2020 but was withdrawn by Parson before it could pass through a committee in favor of consideration. Leadership from both chambers have labeled it a priority for this session. 

During his State of the State address, Parson called for the first piece of legislation to hit his desk to be a COVID liability protections bill. 

“With all of the challenges that small business owners face here in Missouri, the prospect of facing an expensive and frivolous lawsuit is daunting and could be the final blow that means our mom and pop shops here in Missouri have to close their doors for good,” Brad Jones, the Missouri state director for the National Federation of Independent Businesses (NFIB) said.