Tennessee has enacted legislation relative to civil liability resulting from some exposed to or contracting the COVID-19 virus.  Governor Lee signed Senate Bill 8002/House Bill 8001 on August 17, 2020.  The legislation is found at Tenn. Code Ann. 29-34-801 et seq and may be cited as the Tennessee COVID-19 Recovery Act (“the Act”).

The Act provides that a claimant must prove by clear and convincing evidence that the person who caused the injury, death or damage did so by an act or omission constituting gross negligence or willful misconduct.

The Act includes procedural requirements for filing a lawsuit or claim against the State of Tennessee or local governments.  First, the complaint must be verified (sworn) and contain specific facts with particularity showing the defendant’s gross negligence or willful misconduct.[1]

The claimant must file a certificate of good faith stating that the claimant or their lawyer has consulted with a physician, licensed to practice in Tennessee or a bordering state.  The physician must have provided a signed written statement that the physician is competent to express an opinion on exposure to or contraction of COVID-19 and believes that the loss was caused by an act or omission of the defendant(s).

Failure to satisfy the above requirements makes the claim subject to dismissal with prejudice.

The Act specifically does not apply to Workers’ Compensation claims.  The Act does not create a new cause of action, eliminate a required element of an existing cause of action, or amend, repeal or affect any immunity, defense limitation of liability or procedure available or required under law or contract.

The Act provides it applies to all claims arising from COVID-19 before and after it became law, unless prohibited by the constitutions of the United States or State of Tennessee.  By its terms, the Act does not apply to claims in which, on or before August 3, 2020, a lawsuit had been filed or a proper notice given of a claim against the State or a malpractice claim against a health care provider. 

Does the Act apply to injuries, deaths or losses occurring before August 3, for which no lawsuit or claim had been filed?  This part of the Act is the focus of this article.

Article I, section 20 of the Tennessee Constitution provides that “no retrospective law, or law impairing the obligations of contracts, shall be made.”  The Tennessee Supreme has interpreted this provision as prohibiting laws “which take away or impair vested rights acquired under existing laws or created a new obligation, impose a new duty or attach a new disability in respect of transactions or considerations already passed.  Morris v. Gross, 572 S.W.2d 902 (Tenn. 1978), quoted in Doe v. Sundquist, 2 S.W.3d 919 (Tenn. 1999).

Our Supreme Court has recognized that there is no precise formula to apply in determining whether a “vested right” exists and has been impaired by retrospective application of a statute.  In determining whether a retrospective statute impairs or destroys vested rights, the most important factors are (1) whether the public interest in advanced or retarded, (2) whether the retrospective provision gives effect to or defeats the bona fide intentions or reasonable expectations of affected persons, and (3) whether the statute surprises persons who have long relied on a contrary state of the law.

The general rule is that no one has a vested right in a particular remedy for enforcement of a right of action.  Thus, the legislature ordinarily may change existing remedies for enforcement of rights, including those which have already vested, without denying due process of law, provided, a substantial remedy exists to redress that right by some effective procedure.

Applying these factors to COVID-19 losses prior to August 3, 2020, for which no claim or lawsuit has been filed does not yield an easy answer as to whether the Act would apply.  A court would have to weigh the additional burden of proof for an injured party against whether the public interest is advanced by reducing the number of lawsuits over COVID-19. 

Optimistically, the Act is repealed as of July 1, 2022, but continues to apply to any loss, illness, injury or death occurring before that date to which no exception applies.

 

If you have any questions concerning this article, contact the author, James E. Wager.

 

[1] These terms usually mean a conscious neglect of duty, a callous indifference to consequences or such entire want of care as would raise a presumption of a conscious indifference to consequences.  In other words, the defendant knew the risk, ignored it and did not care about the consequences.