Liability shield bill a priority for Gianforte

A Senate panel will debate legislation Friday that would make it substantially more difficult for patrons of businesses and other entities to sue if they believe they contracted COVID-19 on the premises. 

The bill, Sen. Steve Fitzpatrick’s SB-65, closely aligns with legislation that Gov. Greg Gianforte said this week he wants on his desk if he is to lift the state’s mask mandate as he has pledged.

Fitzpatrick, a Republican attorney from Great Falls, said he did not draft the legislation at the governor’s order. He called it an “idea that’s been percolating for a while” at the behest of the hospital industry and business communities in the state. 

The bill aligns with Gianforte’s proposal in broad strokes: Republicans view shielding businesses, churches, hospitals and nonprofits from civil liability if someone gets sick — or even dies — from COVID-19 contracted on site as a necessary step to helping the state’s economy recover. 

“Businesses, houses of worship, nonprofits and schools, should have protection if they follow the guidelines we’re publishing,” Gianforte said on Thursday, promising to release those COVID-19 safety guidelines in the coming days. “There will be very clear rules of the road — if you follow those, you’ll be immune from lawsuits related to COVID.” 

Fitzpatrick’s bill, which lawmakers will debate Friday morning in the Senate Business, Labor and Economic Affairs Committee he chairs, would bar a person from bringing a civil action alleging exposure to the virus unless their suit stems from three factors:  a “minimum medical condition,” meaning the primary cause of death or in-patient hospitalization must be COVID-19; an act that was “intended to cause harm”; or an act that constitutes “gross negligence or willful and wanton misconduct.” 

Currently, businesses, nonprofits and other organizations must do what’s reasonable under the circumstances to protect their clients and avoid charges of negligence. 

“If you knew that one of your employees had COVID, you’re allowing them to work in the store unmasked, maybe that’s gonna get towards gross negligence,” said Al Smith, the executive director of Montana Trial Lawyers Association. 

Fitzpatrick called the bill “forward looking” in nature, and didn’t know of many instances in which someone actually tried to sue a business for contracting the virus on site.

Still, he thinks it’s worthwhile to increase the standard to what amounts to an intentional wrong-doing, even though he acknowledged that such cases would already be somewhat difficult to win, due to the difficult nature of proving causality. 

But people might still bring those cases, potentially saddling the defending business with attorney fees, even if they’re tough to win, Fitzpatrick said. He said that threat of litigation could discourage businesses from reopening, especially because he believes that standards for safe pandemic practices aren’t always clear. 

Smith, whose organization opposes the measure, said he only knows of one case since the dawn of the pandemic where the law might apply — a nursing home involved in a malpractice suit in the Flathead. 

“I’ve yet to hear of a single businessperson who said, ‘I would open up if we would just have immunity,’” Smith said. 

The bill as written would preclude a vast number of people who have contracted COVID-19 to sue an entity for negligence, due to the higher legal standards it provides. 

Plus, the phrase “minimal medical condition” could rule out anyone who was hospitalized as a result of an existing condition that COVID-19 exacerbated, Smith worries.

This would have the effect of precluding many of the Montanans who have been stricken with the disease from bringing suit, if they desired to do so, as the Department of Public Health and Human Services’ own guidelines instruct medical professionals to list the immediate cause of death as the “final disease or condition resulting in death.” 

Such a disease or condition might be listed as “acute respiratory distress system,” as a result, perhaps, of pneumonia brought on by COVID-19. 

“Overall, the few people who really have meritorious claims are going to be shut out,” Smith said. 

Gianforte said Thursday that his office still needs to work with legislative leadership to find something he’s “comfortable with,” so the language in Fitzpatrick’s bill is not likely to be the same language that the new governor signs. 

Both Congress and other state legislatures have considered similar liability measures, often as a condition of further COVID-19 aid at the urging of right-leaning business groups like the U.S. Chamber of Commerce. 

Kyle Schmauch, a spokesman for Senate GOP leadership, said he expects the bill to be “one of the first things out of the gate” this session. His counterpart in the House, Dylan Klapmeier, said Republican leaders in that chamber “are generally supportive of the concept.”