Liability shield bill passes committee

Amendments expanded protections, added guardrails

Sen. Steve Fitzpatrick, R-Great Falls, and other lawmakers vote on his SB65, a bill providing COVID-19 related liability protections. (MPAN)

A heavily amended version of legislation designed to shield businesses, nonprofits and other private sector organizations from civil liability related to COVID-19 passed out of the Senate Business, Labor and Economic Affairs Committee on Friday, a possible step toward significant changes in the state’s virus mitigation policies.

Republican Gov. Greg Gianforte has pushed for liability protection legislation as a condition to rescinding the statewide mask mandate. Passage out of committee, on an 8-3 party line vote, is a hurdle cleared in that direction.

The bill Sen. Steve Fitzpatrick, R-Great Falls, proposed at first would have made it significantly more difficult for would-be plaintiffs to sue a business or other entity if they believe they contracted COVID-19 on site, increasing the legal standard for such a claim to “gross negligence” and applying stringent conditions to what does or doesn’t constitute getting the virus.

But several amendments approved in committee Friday declawed some portions of the bill, while still granting most organizations broad protections from COVID-19-related litigation. Such suits in general are difficult to win and not common, but proponents of the bill believe they are nonetheless burdensome to businesses and medical professionals as the pandemic wears on.

Two major changes come in the form of amendments that Fitzpatrick said he’d propose after opponents raised concerns. For one, the bill’s language was tailored to only apply to private sector organizations, so state-run institutions like prisons will receive no additional liability protections. Fitzpatrick also removed a portion of the bill that would have limited civil action from death or illness from COVID-19 unless a hospital listed the primary cause of illness or death as COVID-19.

The legislation now also allows a person to sue an organization if they believe it committed an “omission,” rather than just an act, that through gross negligence led to them getting the virus.

Further amendments removed a “safe harbor” provision shielding a person from COVID-19 litigation if they were in “substantial compliance” with federal or state coronavirus guidelines. Now a potential defendant may assert the steps they took to comply with those guidelines as an affirmative defense — an argument that they could seek to make in court to invalidate the claims brought by the plaintiff.

Another new section says people or organizations don’t have to follow or enforce state or federal mandates related to masks, temperature scans or vaccines — if such policies were to exist — to meet the “standard of care” necessary to avoid liability.

Gianforte has previously said that he expected liability legislation to shield businesses and other organizations that “make a good-faith effort to protect individuals from the spread of the coronavirus and follow clear public health guidelines to combat the virus.”

However, his stated intent was also to shield schools and other public entities from legal liability, something this bill does not do. Fitzpatrick told The Daily Montanan he’s considering separate legislation to address public organizations.

“Governor Gianforte continues working with legislators to find a path forward to protect businesses, schools, health care providers, and others from lawsuits if they make a good faith effort to protect individuals from the spread of coronavirus and follow clear public health guidelines,” said Gianforte’s spokesperson, Brooke Stroyke.

On Wednesday, Gianforte announced an executive order that lifted directives requiring some businesses to close at 10 p.m. and limit their capacity to 50 percent. He also rescinded capacity restrictions on public gatherings.

The changes went into effect 5 a.m. Friday. Originally Gianforte’s second executive order would have rescinded all directives implemented by former Gov. Steve Bullock, such as distance learning and expanded access to tele-health, but he amended the order Thursday afternoon to keep those directives in place.