On August 17 the Governor signed the Tennessee COVID-19 Recovery Act (“the Act”). Under the Act, 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 person caused the injury by an act or omission constituting gross negligence or willful misconduct.

The Act requires that a claimant in any action alleging injury arising from COVID-19 must file a verified complaint pleading specific facts with particularity from which a trier could reasonably conclude that the injury was caused by the defendant’s gross negligence or willful misconduct. In an action alleging injury based on exposure to or contraction of COVID-19, the Act further requires that the claimant file a certificate of good faith stating that the claimant or claimant’s counsel has obtained a signed, written expert medical opinion that the claimant’s injury was caused by the alleged act or omission of the defendant. A claimant’s failure to comply with the Act’s pleading requirements will, upon motion, make the claim subject to dismissal with prejudice.  What this essentially means is if these steps are not followed, the claim will be dismissed. Secondarily, it will require a physician who is licensed in the State of Tennessee or a contiguous state and who is competent to render an opinion on exposure to COVID-19 to say that exposure was caused by an act or omission of the defendant.  That will likely be a high burden to carry, which should provide significant relief for all businesses taking appropriate precautions for the pandemic.

The Act does not:

1. Create a cause of action;
2. Eliminate a required element of any existing cause of action;
3. Affect workers’ compensation claims; or
4. Amend, repeal, alter, or affect any immunity or limitation of liability available under current law or contract.

Pertaining to number (3) above, it is noteworthy that a workers compensation bill was proposed during this special session of the Legislature, but it did not make it out of committee.  Thus, for the time being, COVID-19 exposures do not have special requirements or protections, and are likely to be treated like any other occupational exposure under the workers compensation laws of Tennessee.

Additional Limitations

This bill makes the following additions pertaining to COVID-19-related claims to present law limited liability provisions:

1. Extends immunity, under the Tennessee Governmental Tort Liability Act, for governmental entities in connection with any injury arising from COVID-19, unless the claimant proves by clear and convincing evidence that the injury was caused by an act or omission of the governmental entity or the entity’s employees constituting gross negligence;
2. Prohibits claims being brought, or judgements entered, under the Tennessee Governmental Tort Liability Act against an employee of a governmental entity for an injury arising from COVID-19 and proximately caused by an act or omission of the employee within the employee’s scope of employment for which the governmental entity is immune, unless the claimant proves by clear and convincing evidence that the injury was caused by an act or omission that was willful, malicious, criminal, or performed for personal financial gain;
3. Specifies that the state does not waive state sovereign immunity for civil liability for any injury arising from COVID-19, unless the claimant proves by clear and convincing evidence that the injury was caused by an act or omission of the state entity, or a state employee or agent, constituting gross negligence; and
4. Limits a public postsecondary institution’s liability for any injury arising from COVID-19 to claims where the claimant proves by clear and convincing evidence that the injury was caused by an act or omission of the institution, or the institution’s employee or agent, constituting gross negligence or willful misconduct.

The pleading requirements that a claimant bears under the Tennessee COVID-19 Recovery Act will apply to any claim filed under (1)-(4).

Effective Date

The provisions of this bill take effect upon becoming a law. This bill applies to all claims arising from COVID-19, except those which, on or before August 3, 2020:

1.  A complaint or civil warrant was filed;
2.  A notice of a claim was with the Tennessee claims commission; or
3.  Notice was satisfied under the laws pertaining to healthcare liability claims.

So there are claims that can be brought against businesses that were instituted early in the pandemic, but only if suit has already been brought prior to August 3, 2020, or if it is a claims commission or healthcare liability claim, if proper notice was given prior to August 3, 2020. This bill will be repealed on July 1, 2022, but continues to apply to any injury occurring before that date to which none of the exceptions in (1)-(3) apply.

The Act also creates severability of its provisions, so if any part is held invalid, the remaining provisions can still be enforced.

Morgan & Akins is here to represent your business in Tennessee, and can answer any questions you have about how this new law might affect your business in Tennessee.