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West Virginia House Passes Bill Providing Immunity From Pandemic-Related Lawsuits

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West Virginia Legislative Photography
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Perry Bennett

The West Virginia House of Delegates has passed a bill protecting businesses, health care providers and individuals from being sued because of the coronavirus pandemic.

Senate Bill 277 would offer near-total immunity for businesses, healthcare systems and individuals on suits related to incidents dating back to Jan. 1, 2020. West Virginia, which was the last state in the U.S. to report a case of the coronavirus, did not report a confirmed case until March 17, 2020.

The legislation passed the lower chamber on a 76-24 vote, with Del. Barry Bruce, R-Greenbrier, being the only Republican to join Democrats in voting against the measure.

Republicans across the statehouse have argued the measure aims to protect businesses who could become the target of a flurry of lawsuits should customers or employees become infected or die from the coronavirus.

As the bill progressed through both the House and Senate, Democrats argued that the bill would allow for “bad actors” who intentionally harm others. Members of the minority unsuccessfully attempted to include exceptions to allow for lawsuits against those who are reckless or act with “actual malice.”

According to data compiled by Hunton, Andrews & Kurth — an international law firm that is also tracking litigation related to the pandemic — West Virginia has seen only six suits related to the coronavirus.

At least some of those lawsuits filed in West Virginia have targeted measures Gov. Jim Justice put in place through executive orders. It is unknown how many lawsuits to date, if any, would be nullified under the bill.

Del. Shawn Fluharty, D-Ohio, argued that Senate Bill 277 was overreaching and offered too broad of protections to people who may be harmed over the course of the pandemic.

“What we're doing now is using COVID as another excuse. We've used COVID as an excuse to close the capitol doors,” Fluharty said. “Now we're gonna use COVID as an excuse to close the courthouse doors for our people. It's exactly what we're doing here.”

Del. Joey Garcia, D-Marion, said he would have supported the bill had it offered more protections for residents in the state, rather than businesses.

“There was a COVID immunity bill that I could have supported. It would have been a fair bill. It would have been a balanced bill,” Garcia said. “It would have protected responsible businesses and would also have protected our most vulnerable citizens, our grandmothers or grandfathers.”

But House Judiciary Chair Moore Capito, R-Kanawha, said an amendment adopted Tuesday helped strike the balance that Democrats said was lacking.

The amendment changed the definition of “impacted care.” It also said that other medical treatments that were delayed could be subject to lawsuit if it had nothing to do with the coronavirus.

“Our amendment yesterday shows that bad actors aren't going to be immunized. In fact, we altered the definition of impacted care,” Capito said. “So if there was a bad actor, we're going to look at those circumstances and if COVID-19 didn't have anything to do with it, that doesn't change the lawsuit. That doesn't change the injured party's remedy.”

Senate Bill 277 now heads back to the upper chamber to consider changes made to the measure in the House.


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