SCS/SBs 51 & 42 - This act establishes protections against liability in COVID-19 related actions.
COVID-19 EXPOSURE ACTION (Section 537.1005)
No individual or entity engaged in businesses, services, activities, or accommodations shall be liable in any COVID-19 exposure action, as defined in the act, unless the plaintiff can prove by clear and convincing evidence that:
(1) The individual or entity engaged in recklessness or willful misconduct that caused an actual exposure to COVID-19; and
(2) The actual exposure caused personal injury to the plaintiff.
There is a conclusive presumption of an assumption of risk by a plaintiff in an exposure claim when the individual or entity posts and maintains signs, which contain the warning notice specified in the act, in a clearly visible location at the entrance of the premises. Any adoption or change to a policy, practice, or procedure by an individual to address or mitigate the spread of COVID-19 after the exposure shall not be considered evidence of liability or culpability. Additionally, nothing in this provision shall require an individual or entity to establish a written or published policy addressing the spread of COVID-19.
No individual or entity shall be held liable for the acts or omissions of a third party unless the individual or entity has an obligation under general common law principles or the third party was an agent of the individual or entity.
This provision shall not be construed as to affect the applicability of the Workers' Compensation Law. A COVID-19 exposure action shall not be commenced in any Missouri court later than one year after the date of the actual, alleged, feared, or potential exposure to COVID-19.
COVID-19 MEDICAL LIABILITY ACTION (Section 537.1010)
A health care provider, as defined in the act, shall not be liable in a COVID-19 medical liability action, as defined in the act, unless the plaintiff can prove, by clear and convincing evidence, recklessness or willful misconduct by the health care provider and that the personal injury was directly caused by such recklessness or willful misconduct. Acts, omissions, or decisions caused by resource or staffing shortages or by new or modified health and safety procedures shall not be considered recklessness or willful misconduct.
A COVID-19 medical liability action may not be commenced in any Missouri court later than one year after the date of the alleged harm, damage, breach, or tort unless tolled for proof of fraud, intentional concealment, or the presence of a foreign body which has no therapeutic or diagnostic purpose or effect.
COVID-19 PRODUCTS LIABILITY ACTION (Section 537.1015)
No individual or entity who designs, manufactures, imports, distributes, labels, packages, leases, sells, or donates a covered product, as defined in the act, shall be liable in a COVID-19 products liability action, as defined in the act, if the individual or entity:
(1) Does not make the covered product in the ordinary course of business;
(2) Does make the covered product in the ordinary course of business and the emergency required the product to be made in a modified manufacturing process that is outside the ordinary course of business; or
(3) Does make the covered product in the ordinary course of business and use of the covered product is different from its recommended purpose and used in response to the COVID-19 emergency.
For a plaintiff to sustain a claim in a COVID-19 products liability action, by clear and convincing evidence, the plaintiff shall prove recklessness or willful misconduct by the individual or entity and that such recklessness or misconduct directly caused the personal injury.
This act shall not apply to any deception, fraud, false pretense, false promise, misrepresentation, unfair practice, or the concealment, suppression, or omission of any material fact in connection to the covered product. This provision applies to any claim for damages that has a causal relationship with the administration to or use by an individual of a covered product. Additionally, this provision shall apply only to covered products administered or used for the treatment of or protection against COVID-19 or the categories of health conditions or threats to health resulting from COVID-19 and applies to any such covered product regardless of whether the product is obtained by donation, commercial sale, or any other means of distribution by federal, state, or local officials or by the private sector.
A COVID-19 products liability action shall not be commenced later than one year after the date of the alleged harm, damage, breach, or tort unless tolled for proof of fraud or intentional concealment.
LIMITATIONS ON COVID-19 RELATED ACTIONS (Sections 537.1020 to 537.1025)
An individual or entity against whom a final judgment is entered shall be liable solely for their relative and proportionate share of the judgment. In determining the percentage of responsibility, the trier of fact shall determine that percentage from the total fault of all individuals or entities, including the plaintiff, who caused or contributed to the total loss incurred. The trier of fact shall consider the following factors in determining the percentage of responsibility:
(1) The nature of conduct of each individual found to have contributed to the loss; and
(2) The nature and extent of the relationship between the conduct and damages incurred by the plaintiff.
The liability of a defendant shall be joint and several if the trier of fact determines that the defendant acted with specific intent to injure the plaintiff or knowingly committed fraud. Nothing shall affect the right of a defendant to contribution with respect to a defendant found to have acted with specific intent to injure the plaintiff or knowingly committed fraud.
The award of compensatory damages shall be limited to economic loss incurred as a result of the personal injury, except that noneconomic damages may be awarded if the trier of fact determines that the injury was caused by willful misconduct. Additionally, punitive damages may be awarded, but shall not exceed the amount of compensatory damages. Additionally, the amount of monetary damages shall be reduced by the amount of compensation received by the plaintiff from another source in connection with the personal injury.
In any COVID-19 related action that is maintained as a class action, any individual or entity shall only be a member of the class if the individual or entity affirmatively elects and notice containing a concise and clear description of the nature of the action, the jurisdiction, and the fee arrangement with class counsel shall be given to each member of the class.
DEMANDS FOR REMUNERATION (Section 537.1030)
If any person transmits in any form and by any means a demand for remuneration in exchange for settling, waiving, or otherwise not pursuing a claim that is or could be brought as part of a COVID-19 related action, the party receiving such a demand shall have a cause of action for the recovery of damages occasioned by such demand and for declaratory judgment if the claim for which the letter was transmitted was meritless. Damages for such an action shall include compensatory damages, punitive damages, attorney's fees, and costs.
The Attorney General may also commence a civil action for any person or group engaged in a pattern or practice of transmitting such demands. The court may assess a civil penalty in an amount not exceeding $50,000 per transmitted demand.
APPLICATION OF THIS ACT (Sections 537.1035 to 537.1040)
The provisions of this act apply to any cause of action filed on or after the effective date of this act. Additionally, this act shall not expand any liability or limit any defense otherwise available.
This act also preempts and supersedes any state law related to the recovery for personal injuries covered under a COVID-19 related action unless the provisions of state law impose stricter limits on damages or liabilities for personal injury. Additionally, nothing in this act shall be construed to impair, limit, or affect the authority of the state or local government to bring any criminal, civil, or administrative enforcement actions against any individual or entity nor shall it affect causes of action for intentional discrimination. Further, this act shall not be construed as requiring or mandating a vaccination and shall not affect the applicability of any provision of law creating a cause of action for a vaccine-related personal injury.
If any provision of this act is found to be unconstitutional, the remaining provisions as well as the application of such provisions shall not be affected.
This act contains an emergency clause.