COVID-19 Reading List

August 21, 2020

Jonathan D. Urick, U.S. Chamber Litigation Center

This week’s reporting and commentary on COVID-19 litigation focused on a new coronavirus relief proposal, policy and litigation trends, legal risks for employers, insurance litigation, and liability waivers.

A “Skinny” Coronavirus Relief Bill

According to Politico, in an attempt to break the political impasse, Senate Republicans are planning to introduce a so-called “skinny” coronavirus relief bill including billions of dollars in additional funding for the U.S. Postal Service.  This will purportedly include liability protections “substantially” similar to the Senate GOP’s earlier legislative proposal.  Senate Majority Leader Mitch McConnell continues to insist that any coronavirus relief legislation must include liability reform.

State Policy Updates and the Latest Litigation Breakdown

The National Law Review’s latest U.S. State Policy report “captures the shifting state, territorial and local government policies and guidance in response to the COVID-19 pandemic and reopening of the economy.”  Eight states have new or updated information: Arkansas, Colorado, New Hampshire, New York, Ohio, Oregon, Vermont, and Washington.

On JD Supra, Esquire Deposition Solutions also offers an interesting breakdown of all the COVID-19 litigation to date.

Top Legal Risks for Employers

The National Law Review summarizes the top five “key issues that are likely to cause most employers headaches and potential [legal] exposure in the near future”: alleged failures to safeguard the workplace, properly pay employees, accommodate high-risk workers, comply with the Families First Coronavirus Response Act, and properly conduct layoffs and reinstatements.

Increased California Workplace-Safety Enforcement

Writing on Law 360, California attorney Thomas Song warns employers that Gov. Gavin Newsom appears to have plans to boost enforcement of workplace-safety laws by the California Division of Occupational Safety and Health “in response to the recent rise in COVID-19 infections, and the perceived lackluster enforcement.”  “[S]hould an employee become infected at work,” Song cautions, “employers risk being cited for a serious violation.  Employers need to recognize that it will be some time before there is further [legal] guidance” from state authorities and, in the meantime, “they will likely have a difficult time defending against a COVID-19 citation.”  He recommends that employers “review the most recent industry safety guidelines, which provide greater clarity as to what is expected.”

Attempts to Consolidate Insurance Litigation

Law 360 reports that a proposed class of travelers has asked the federal Judicial Panel on Multidistrict Litigation to consolidate a group of suits against a travel-insurance company that allegedly failed to pay out on policies for trips canceled because of COVID-19.  The insurer denies the claims, arguing that the pandemic was a foreseeable event by the end of January.  In their motion to the MDL panel, the plaintiffs argue that consolidation would simplify discovery and prevent contradictory pretrial rulings because of the overlapping claims and single defendant.

Last week the MDL panel denied a similar motion to consolidate COVID-19 business-interruption insurance suits against dozens of defendants, but the panel suggested that a single-defendant MDL might work.

Business-Interruption Litigation and the Constitution

In a Wall Street Journal editorial, David Rivkin and Michael Luttig argue that plaintiff lawyers’ efforts to force insurance companies to absorb businesses’ losses from the COVID-19 pandemic are “unconstitutional and dangerous,” “threaten[ing] to bankrupt the insurance industry.”  In their view, no rational company would ever insure against losses associated with communicable diseases because “[t]he risks are unknowable, preventing the calculation of a premium sufficient to cover the losses if the event occurs.”

Attempts by state courts or legislatures to retroactively force insurers to cover such losses would violate the U.S. Constitution’s Contracts Clause, Rivkin and Luttig insist, and similar federal attempts would likewise violate the Fifth Amendment’s Due Process Clause.  They urge the insurance industry to go to court and “seek declaratory judgments now, establishing the [constitutional] limits of their potential liability.”

More on Liability Waivers and Warnings

Finally, CNN takes another close look at the growing prevalence of coronavirus liability waivers and warnings.  According to the report, “vacation spots, salons and a range of other service providers are asking consumers to waive any legal claim they might have if they're sickened with Covid-19 while at the business.”  The article examines the law governing such waivers and the extent to which they will protect businesses.  It also offers customers some recommendations and things to consider before signing a waiver.