McConnell push for immunity from lawsuits would protect big insurers, not small businesses

bar-150x150Taxpayers have put billions of dollars into long-term care rescue. Congress and the White House have deadlocked over further assistance, with a key stumbling block — as expressed by the foot-dragging Senate Majority Leader Mitch McConnell — focused on demands for greater protections for health care workers and enterprises, as well as business in general, from legal accountability for their work during the pandemic.

This is sham reasoning to stall desperately needed aid, for example, for schools and the jobless.

Small businesses, including the mom-and-pop long-term care facilities, put a demonstrably low priority on needing protection from liability lawsuits, according to a new study by Emily Gottlieb and Joanne Doroshow at the Center for Justice and Democracy at New York Law School. The researchers based their findings of multiple surveys of small business operators, with many of those questions posed by business groups themselves.

Other researchers, including a Yale undergraduate and law teachers at Yale and Penn, also have put forth an excellent, common sense argument opposing sweeping liability protections. As they have posted online:

“Protections against Covid-19-related lawsuits remain a big piece of the debate over how Congress and state legislatures should respond to the ongoing pandemic.  But there’s been an odd omission from the debate.  No one seems to be asking who will pay for Covid-19 liability [if] lawsuits are permitted to go forward.  Proponents of immunity legislation assume that Main Street businesses will foot the bill for lawsuits.  But our new research suggests that the vast majority of standard liability insurance policies in America cover Covid liability.  Covid immunity legislation is really a bid to shelter big insurance companies, not mom-and-pop businesses.  Moreover, such proposals … overlook the many virtues that insurer liability coverage offers as compared to blunderbuss immunity provisions.”

The researchers say that advocates for greater business immunity overlook the practical problems that plaintiffs will encounter in winning liability cases, particularly because jurists and juries alike will have realistic experiences and perspectives on the challenges that enterprises encountered during the pandemic.

Further, as they found:

“Using the insurance policy database of the Covid Coverage Litigation Tracker at Penn Carey Law School, we find that nearly all liability insurance policies include liability coverage for losses from infection by viruses. Of the 100 liability policies we have analyzed, only 20 had any such exclusion.”

We’ve got a lot of work to do to get our long-term care not just back to normal but to a far better place — and obstacles, like phony defenses about lawsuit liability, should not stand in the way.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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