Indiana Lawmakers Fast-Track COVID-19 Lawsuit Shield

Indiana legislators are poised to finalize a fast-tracked proposal that will give a broad shield protecting businesses and others from lawsuits by people blaming them for contracting COVID-19.

The proposal is a top priority of Republican legislative leaders and GOP Gov. Eric Holcomb even though supporters don’t point to any such lawsuits in the state.

Supporters maintain that the liability protection is needed to remove a “cloud of uncertainty” for factories, restaurants, stores and other institutions like universities so that they can stay open without facing lawsuits from employees or customers over possible coronavirus exposure.

Republicans who dominate the Indiana House and Senate have already approved similar versions of the liability protections and a final bill could reach Holcomb’s desk within the next couple weeks and months before final action is taken on most of this year’s legislation.

The proposal would be retroactive to March 1, 2020 — just before the first coronavirus infection was confirmed in Indiana — and only allow lawsuits against businesses when “gross negligence or willful or wanton misconduct” can be proved with “clear and convincing evidence.”

Republicans call the protections a key step toward economic recovery from the coronavirus pandemic, which shut down some businesses for months and the state health department says has killed nearly 12,000 people in the state.

“It’s critical for supporting jobs and bringing back our economy throughout the state,” Republican House Speaker Todd Huston said.

Congressional Republicans have pushed for a national legal shield, but it has stalled amid opposition from Democrats. Businesses across the country have raised lawsuit fears, with similar protections approved last year in some states, such as Georgia, Iowa and Tennessee, while lawmakers in Alabama, Montana, North Dakota and other states are working to adopt them this year.

Warren Mathies, a lobbyist for the Indiana Trial Lawyers Association, urged lawmakers this past week to make sure the liability protections didn’t apply to medical errors that weren’t related to COVID-19 and to recognize how difficult it would be for someone to ever prove they contracted the coronavirus at a specific business or workplace.

“You have to show a direct causal link to the exposure and that’s an impossibility,” Mathies said. “So that’s why our members are OK with clarifying that if you go to a restaurant you shouldn’t sue for COVID.”

Major business organizations, including the Indiana Chamber of Commerce and the state manufacturers and restaurant associations, support the proposal. Opposition has come from those worried nursing homes could escape responsibility for patient deaths stemming from neglect or other misconduct.

Questions about whether to shield nursing homes and other medical providers from lawsuits will be addressed in a separate bill that will go before legislators later during this year’s session, said Senate Majority Leader Mark Messmer, a Republican from Jasper.

Most Democratic legislators have so far voted against the shield proposals.

Democratic Rep. Ryan Hatfield of Evansville said he supported the concept of broad legal protections, especially for small businesses, because of the difficult decisions they have faced during the pandemic. But he said the current protections are too broad.

“I believe that there will be Hoosiers harmed by this legislation that were harmed in a way that has nothing to do with COVID-19,” Hatfield said.

Messmer, the proposal’s lead sponsor, said businesses still needed to follow safety protocols to protect their employees and customers.

“We are in a litigious society, whether you think we are or not,” Messmer said. “And just because there are no lawsuits filed to date doesn’t mean that there won’t be lawsuits just around the corner.”

This article was first published in Insurance Journal.

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