Hurley Burish and Stanton, SC Attorneys at law

COVID-19 Exposure, Insurance Exclusions, and Tort Liability: Will Wisconsin be Next to Provide Additional Protections?

Author: Attorney John C. Mitby
Phone: 608-257-0945

There is a serious problem with COVID-19 pandemic-related claims. Insurers are refusing to provide coverage due to exclusions on infectious or communicable diseases. As businesses and healthcare providers may face lawsuits over coronavirus exposure, some states have begun to respond through legislation to provide temporary protection related to the unique challenges that the pandemic has brought upon businesses and healthcare providers.

Ohio is one such state. It has taken steps to temporarily provide protection to healthcare providers and businesses facing lawsuits as a result of employee or customer exposure to the virus. Both houses of the Ohio legislature passed House Bill 606 and it was signed into law just this past week. The retroactive law expiring in September 2021 grants state-law immunity from civil lawsuits for “injury, death, or loss” related to “the transmission or contraction” of the coronavirus.

First, the new law limits actions against businesses by individuals who were exposed to or contracted COVID-19, except if the illness or exposure results from reckless, intentional, willful, or wanton action by the business. This includes suits from both customers and employees. The law also provides that any government orders or recommendations for pandemic operations do not establish a duty or create a private cause of action arising from deviation from those orders or recommendations. Finally, it prohibits class actions in connection with such COVID-19 exposure claims.

Second, the new law shields healthcare and emergency providers against tort liability and professional discipline for care rendered during the pandemic with limited exceptions. It provides that healthcare providers will be immune in tort actions arising from the “provision, withholding, or withdrawal” of health care services resulting from the pandemic, unless the provider’s actions constitute intentional misconduct or willful and wanton misconduct. No class actions may be brought in connection with such claims. The law also precludes disciplinary action against providers in such situations, unless the provider’s actions were grossly negligent.

At this time Wisconsin has no similar law. Organizations should review their insurance policies for an exclusion regarding infectious or communicable diseases. Many, and perhaps all, insurance carriers have added this exclusion. But with employees or customers suing businesses for virus claims and questions existing as to whether workman’s compensation covers such claims, it is critical to address the uncertainty of the liability arising from these claims. Given the precarious economic environment created by pandemic-related shutdowns, one claim could prove to be disastrous.