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Civil-liability exemption in state COVID bill questioned at public hearing

By: Michaela Paukner, [email protected]//January 5, 2021//

Civil-liability exemption in state COVID bill questioned at public hearing

By: Michaela Paukner, [email protected]//January 5, 2021//

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A civil-liability exemption in state Republicans’ response to the COVID-19 pandemic was the subject of testimony for and against the newly proposed bill.

Rep. Robin Vos, the Republican Speaker of the House, introduced the GOP’s Assembly Bill 1 on Monday. It outlines a number of state government actions in response to the COVID-19 pandemic, including giving the Legislature control over future federal coronavirus money, prohibiting local officials from closing businesses for more than two weeks at a time and providing a civil-liability exemption for COVID-19 claims.

The civil-liability exemption applies to legal entities for any act or failure to act that results in or relates to exposure to COVID-19 through the entity. Immunity would not apply if the act or omission involves reckless or wanton conduct, or intentional misconduct. The bill provides that an entity’s noncompliance with any order requiring a shutdown or capacity limits wouldn’t constitute reckless or wanton conduct, or intentional misconduct. The immunity would apply retroactively to claims accruing on or after March 1, 2020, except that it doesn’t apply to actions filed before the bill goes into effect.

The Assembly Committee on Health held a public hearing on the proposed bill on Tuesday, and members of a number of organizations spoke out in favor of and against the liability provision. At the start of the hearing, Rep. David Murphy, R-Greenville, asked Vos about how culpable a bad actor might be under the bill.

“If people make reasonable accommodations, they would be able to be free of liability,” Vos said. “The idea is to try to find a balance with the assumption that businesses are going to do the right thing.”

Stracka answers question from Rep. Dittrich
Heath Stracka, past president of the Wisconsin Association for Justice, answers a question from Rep. Barbara Dittrich, R-Oconomowoc, during a public hearing on Tuesday for Assembly Bill 1.

Heath Stracka, partner at Axley Brynelson and past president of the Wisconsin Association for Justice, testified against the legal-immunity provision. He said the provision is too broad and would protect bad actors.

“You protect businesses not by giving them broad immunity,” Stracka said. “You carve out legislation to make sure we’re not picking winners and losers.”

Murphy said if businesses were always held liable, courtrooms would be overwhelmed with cases. Stracka said that wouldn’t be the case, pointing to the fact that there have been no lawsuits in Wisconsin courts related to coronavirus personal-injury claims, despite close to half a million people testing positive for the virus.

Stracka believed local health rules, rather than the liability exemption, could provide businesses with protections.

At one point, Rep. Joe Sanfelippo, R-New Berlin, asked legislative council if there was anything in the provision that would prevent a lawsuit from being filed. The counsel said lawsuits could be filed, a party could never win under the provision in a case for negligence. The party would have to allege reckless or wanton conduct in order to make a case.

Cory Fish, general counsel at Wisconsin Manufacturers and Commerce, said the liability exemption protects good businesses, while leaving room to prosecute bad ones. Fish said the provision means companies won’t have to put financial and legal resources toward cases that have no chance of being successful in front of a jury.

Cory Fish testifies before Assembly Committee on Health about Assembly Bill 1
Cory Fish testifies in favor of Assembly Bill 1 at a Committee on Health public hearing on Tuesday.

“These lawsuits are frivolous,” Fish said. “These lawsuits are filed knowing that you are never going to be able to prove that entity X spread COVID to the plaintiff.”

Steve Baas, senior vice president of the Metropolitan Milwaukee Association of Commerce, and Brian Drake, legislative director of Wisconsin Independent Businesses, also testified in favor of the provision. They said it would provide certainty for more businesses and allow them to remain open.

The Committee on Health will hold an executive session on the bill at 3:30 p.m. on Tuesday. Approval from the committee would send the bill onto the Republican-controlled Assembly for adoption.

Republicans and Gov. Tony Evers are in disagreement over the state government’s response to the COVID-19 pandemic. Evers put forward a scaled-back bill two weeks ago. During a media briefing on Tuesday, he said he was disappointed that Republicans moved forward with their own bill instead.

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