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Holcomb Signs COVID-19 Civil Liability Immunity into Law Holcomb Signs COVID-19 Civil Liability Immunity into Law

Holcomb Signs COVID-19 Civil Liability Immunity into Law

Earlier today, February 18, 2021, Governor Holcomb signed Senate Bill No. 1—a COVID-19 civil immunity bill—into law. The law takes immediate effect and applies retroactively, meaning that Indiana businesses and persons may now have immunity from civil tort actions alleging damages arising from COVID-19 dating back to March 1, 2020. Claims alleging gross negligence or willful or wanton misconduct (including fraud and intentionally tortious acts) under Indiana law, as proven by clear and convincing evidence, are not covered.

Under the new law, a person[1] is immune from civil tort liability for damages “arising from COVID-19”[2] on the premises owned or operated by the person, on any premises on which the person or an employee or agent of the person provided property or services to the individual; or during an activity managed, organized, or sponsored by the person. Thus, if an individual claims to have contracted COVID-19 while on the premises of a business, the law will grant an affirmative defense to that business, shielding it from any liability, provided it was not grossly negligent or shown to be willfully endangering the would-be plaintiff.[3] Under the exception for gross negligence or willful or wanton misconduct, however, Indiana businesses may still be found liable if they or their staff recklessly or intentionally disregard the health and safety guidelines set forth by the Centers for Disease Control and Prevention, Occupational Safety and Health Administration, or other state and federal mandates to slow the spread of the coronavirus.

The enacted version of Senate Bill No. 1 also specifically extends immunity (except for claims of gross negligence or willful or wanton misconduct) to manufacturers and suppliers[4] for harm resulting from the design, manufacture, labeling, sale, distribution or donation of “COVID-19 protective products,” which include personal protective equipment (PPE), medical devices, equipment, supplies and medications used to treat COVID-19 or prevent the spread of COVID-19 (including those used or modified for an unapproved use, used outside of their normal course or prescribed or dispensed for an off label use to treat or attempt to treat COVID-19), tests to diagnose or determine immunity or exposure to COVID-19 and products designed to clean or disinfect to prevent the spread of COVID-19. The law also prohibits the filing of any class action lawsuit based on tort damages arising from COVID-19 or for harm that results from the design, manufacture, labeling, sale, distribution or donation of a COVID-19 protective product.

In addition to the exception for gross negligence or willful or wanton misconduct, the new law specifically excludes claims brought under the Indiana Worker’s Compensation Act and Occupational Disease Act. This exclusion means that the exclusive remedy for any aggrieved employee of a business is to file a claim with the Worker’s Compensation Board of Indiana. Secondly, the law excludes claims brought by employees under Indiana’s Occupational Safety and Health Act (“IOSHA”). This exclusion means that even under the new law, employees may still raise claims under IOSHA’s General Duty Clause if an employer fails to provide a workplace that is “reasonably safe . . . and free from recognized hazards” that cause or are likely to “cause death or serious physical harm” and that IOSHA can still cite and assess fines to employers for failing to comply with its health and safety standards. The final version also adds an exclusion for unemployment compensation.

The newly enacted law is currently set to expire December 31, 2024.

If you have questions concerning this new law, its potential applicability to you or your business, or strategies for compliance and obtaining its intended protections, please reach out to Tami Earnhart, Christina Fugate, Drew Miroff or Audrey Howard for more information.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
[1] “Person” is defined broadly to include individuals, associations, institutions, corporations, companies, trusts, limited liability companies, partnerships, political subdivisions, government offices, departments, divisions, and bureaus, nonprofit corporations, and “any other organization or entity.”
[2] “Arising from COVID-19” is defined as “an injury or harm caused by or resulting from: (1) the actual, alleged, or possible exposure to or contraction of COVID-19; or (2) services, treatment, or other actions performed for COVID-19.”
[3] Prior versions of Senate Bill No. 1 attempted to clarify that the immunity protections did not affect the duty of care owed to patients by nursing facilities, nursing homes or skilled nursing homes. However, this language was removed from the enacted version.
[4] “Manufacturer or supplier” means “a person who designs, manufactures, labels, sells, distributes, or donates a COVID-19 protective product.”
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