Today, Governor Kay Ivey issued the Executive Order providing much needed immunity for businesses and health care providers. The Order provides immunity from suit unless a plaintiff provides clear and convincing evidence of “wanton, reckless, willful, or intentional misconduct.” In addition, when liability is established, all non-economic and punitive damages are prohibited except in cases involving “serious physical injury.” This protection is retroactive and applies from March 13, 2020, the date Governor Ivey declared a state of emergency, until the State COVID-19 public health emergency is terminated.
Starnes was pleased to be involved in the drafting of this Executive Order as many of our clients are on the front lines of the battle against COVID-19. Given the integral role of businesses and health care providers in this emergency, they should not have to fear exposure to frivolous lawsuits. To summarize, the Executive Order:
- Provides immunity for COVID-19 related claims, including, but not limited to, the contraction or alleged exposure to COVID-19 on the premises of a business or health care provider and claims from their efforts to prevent or delay the spread of COVID-19 unless proven by clear and convincing evidence that a business or provider acted with wanton, reckless, willful, or intentional misconduct.
- Provides immunity for treatment that resulted from, was negatively affected by, or was done in response to the COVID-19 pandemic or the State’s response to the pandemic unless proven by clear and convincing evidence that a provider acted with wanton, reckless, willful, or intentional misconduct.
- Provides immunity to any university or public institution of higher education in the State of Alabama and their employees for the “design, manufacture, distribution, allowance, use, or nonuse” of PPE and the “design or manufacture of testing materials done under the direction of ADPH and in accordance with ADPH’s specifications” unless proven by clear and convincing evidence that such act was done with wanton, reckless, willful, or intentional misconduct.
- Prohibits claims for mental anguish, emotional distress, or punitive damages in a personal injury case where there is no “serious physical injury”—i.e. a “death or injury that requires either in-patient hospitalization of at least 48 hours, permanent impairment of a bodily function, or permanent damage to a body structure.” Therefore, in situations where liability could attach and there is no “serious physical injury,” the business or provider would only be liable for economic, compensatory damages in a personal injury case.
- Allows claims for punitive damages in a wrongful death case where liability could attach.
- Operates in conjunction with any other applicable Alabama Executive Orders and State or Federal laws pertinent to the COVID-19 pandemic.
- Does not affect the right of any person to receive or claim benefits otherwise available under the Workers’ Compensation Act.
- Applies retroactively to March 13, 2020—the date the Governor declared the State public health emergency—and would last until the State COVID-19 public health emergency is terminated.
- Applies retroactively for COVID-19 related negligence, premises liability, or any non-wanton, non-willful or non-intentional civil claims predating March 13, 2020 unless proven by clear and convincing evidence that the provider did not reasonably attempt to comply with the then applicable public health guidance.
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