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Tennessee enacts COVID-19 Recovery Act 

by Nicole Watson, Annie Beckstrom, Catie Lane Bailey, James Weaver

Published: August, 2020

Submission: September, 2020

 



Tennessee Governor Bill Lee has signed into law the Tennessee COVID-19 Recovery Act which provides liability protection from claims related to the COVID-19 pandemic. The Waller Government Relations team worked closely with the Tennessee Chamber of Commerce and Industry and various stakeholders in recent months to achieve passage of the Tennessee COVID-19 Recovery Act.


The Tennessee COVID-19 Recovery Act implements comprehensive liability protection against legal claims stemming from loss, damage, injury or death arising from COVID-19. The Act specifies that an individual or legal entity (a "person") will not be liable for loss, damage, injury, or death (collectively referred to hereinafter as an "injury") that arises from COVID-19 unless the claimant proves by clear and convincing evidence that the injury was caused by an act or omission constituting gross negligence or willful misconduct.


“Person” covers a wide array of entities including individuals, healthcare providers, sole proprietorships, corporations, limited liability companies, partnerships, trusts, religious organizations, associations, nonprofit organizations, and any other legal entity whether formed as a for-profit or not-for-profit entity.


This legislation creates a heightened pleading standard which requires a claimant in any action alleging injury arising from COVID-19 to:


  1. File a verified complaint pleading specific facts with particularity from which a finder of fact could reasonably conclude that the injury was caused by the defendant's gross negligence or willful misconduct; and

  2. File a certificate of good faith stating that the claimant or claimant's counsel has obtained a signed, written statement from a physician duly licensed to practice in the state or a contiguous bordering state and competent to express an opinion on exposure to or contraction of COVID-19, which confirms the physician’s belief that the alleged injury was caused by an alleged act or omission of the defendant or defendants. A claimant's failure to comply with the above described pleading requirements will, upon motion, make the claim subject to dismissal with prejudice. In addition, the Act provides specific civil liability protection for governmental entities and public colleges and universities for any injury arising from COVID-19, unless the claimant successfully proves and complies with the pleading standards described above. The Act applies to all prospectively filed claims arising from COVID-19. In response to concerns raised about pending COVID-19 related lawsuits, legislators negotiated the addition of a “grandfather clause” that excludes claims occurring before August 3,2020 in which:

    • A complaint or civil warrant was filed;
    • A notice of claim was filed with the Tennessee Claims Commission; or
    • Notice was satisfied under state law pertaining to healthcare liability claims.

The adjournment of the Second Extraordinary Session marks the conclusion of the legislature’s agenda for the year. Members elected and incumbents reelected during the November general election will convene in January 2021 to begin a new legislative term as the 112th General Assembly.


 


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