By Richard AuBuchon, rich@rmalobby.com
For the first time since the spring of 2020, the State of Missouri is no longer acting pursuant to a Governor’s Executive Order declaring a State of Emergency due to COVID-19. Some will praise, while others criticize, the Governor’s decision to let the most recent Executive Order expire on December 31, 2021. Regardless of this debate, the COVID-19 liability legislation last session, SB 51, will continue in effect despite the decision to let the State of Emergency end.
During the initial debate and policy creation of the COVID liability legislation, there was a point at which the triggers for liability protections hinged upon the Governor declaring a State of Emergency. A Special Session was called by the Governor to pass that initiative. The Governor then called the Special Session to a close right as the late Sen. Ed Emery was presenting the bill for consideration in Committee. It was clear then that the legislation needed further review.
Many in the business community were very worried that they would head into another calendar year without legislation in place to deal with the threat of litigation from COVID-19 exposures. What started as a Special Session issue, and a top priority for the legislature, turned into a dog fight on process in the regular session. Senators White and Luetkemeyer took up the strong work of Sen. Emery in the 2021 Legislative Session. With the bills of Sen. White and Sen. Luetkemeyer combined into one bill, the bill was negotiated at length and ultimately passed after a long filibuster in the Senate. Sen. Luetkemeyer ultimately passed SB 51 onto the House in great fashion.
Yet, SB 51 and COVID-19 Liability became mired by those who feared government intrusion into personal lives and freedoms. The COVID-19 legislation also become subject to barter as part of the overall legislative process. While there were alternatives offered by some, they were never as comprehensive as SB 51 and were not embraced by the business community. Ultimately, with the decisions of the House Speaker to move the bill, House Majority Floor Leader Dean Plocher passed SB 51 as the last bill of the session. It was the equivalent of a walk-off homerun to watch the Floor Leader take the reins of managing the bill on the floor.
With all the process lost in the months that followed in 2021, some were concerned the Governor’s latest announcement to end the State of Emergency would alter the provisions set forth in SB 51. It was always contemplated that at some point the State of Emergency would end and it was not the correct policy to hinge liability protections on the declaration of an emergency. The COVID-19 legislation was altered significantly based on Sen. Luetkemeyer’s assessment of the federal legislation that the Republican Congress was advancing while President Trump was President. The final product of SB 51 is much more comprehensive for Missouri.
There are three causes of action set forth in SB 51 that remain in place regardless of the existence of a declared state of emergency. Those claims include: 1. exposure claims, 2. medical liability claims, and 3. covered product claims. These claims can be found at Sections 537.1000 to 537.1035, RSMo. https://revisor.mo.gov/main/OneChapter.aspx?chapter=537. A key component of these claims is that they apply to all variations of COVID-19 and they have reduced statute of limitations periods to include two years for exposure claims, one year for medical claims and two years for products claims. Those quick to dismiss this legislation will state that COVID-19 litigation is not likely to be filed because showing causation would be all but impossible.
However, those in the business and healthcare community saw this legislation as essential to the protection from the unknown costs and worry of endless litigation over a virus. As the virus continues to exist in Missouri, in whatever variant, this COVID-19 liability protection will remain important for years to come.
The Missouri Civil Justice Reform Coalition, Inc., was proud to work on this legislation and looks forward to another strong legislative session in 2022. For more information regarding the Missouri Civil Justice Reform Coalition, Inc., please visit our website at: https://www.mcjrc.org . Thank you to Associated Industries of Missouri for being a Board Member and strong partner in the Capitol.