Agreement reached on COVID-19 lawsuit bill
NASHVILLE — A controversial Tennessee bill to provide sweeping legal protections from COVID-19 lawsuits filed against businesses, schools, churches and other nonprofit entities easily cleared major hurdles in the Republican-run Senate and House committees Tuesday and is now on course to come before both chambers Wednesday.
It’s one of three issues under consideration by the General Assembly, which convened Monday in a special session called by Republican Gov. Bill Lee.
Also on a smooth path is a telehealth bill left in ruins during the General Assembly’s regular session in June as a result of a blow-up over failure of the COVID-19 bill.
And it also appears another controversial bill is on track as well: It seeks to beef up criminal penalties in areas ranging from vandalism and destruction of property to assault on first responders, with proponents saying it’s necessary given the weeks of civil and racial unrest.
But the criminal penalty bill led to a rocky start of the special session on Monday amid disagreements between House and Senate Republicans. A House provision sought to authorize Tennessee Attorney General Herbert Slatery to initiate criminal investigations of vandalism and other acts if local prosecutors don’t prosecute.
But those issues appeared to be resolved with a compromise. If all agreements stick, the special session could wrap up sometime Wednesday.
COVID-19 LAWSUIT BILL
The controversial coronavirus legislation substantially raises the legal bar for anyone filing a lawsuit alleging loss, damage, injury or death from the coronavirus. The plaintiff must prove a defendant’s “gross negligence or willful misconduct.”
It applies to lawsuits filed on or before Aug. 3, 2020, the day Lee issued his call for the General Assembly to come back to the Capitol for the special session after a similar bill imploded on the House floor in June. That was the result of bipartisan concerns over the prior bill’s retroactive restrictions, which applied to lawsuits going back as far as March 5.
Senate Judiciary Committee Chairman Mike Bell, R-Riceville, said it’s necessary to provide liability protections to various organizations and allow commerce and other activities to get activities back to close to normal as possible in the pandemic, which as of late Tuesday had left 1,271 known Tennessee deaths from COVID-19 and 5,464 hospitalized. Nearly 125,000 Tennesseans have tested positive for the virus.
“If you don’t think they [lawsuits] are coming, I don’t know what’s being advertised in your area … but I know there’s at least one law firm in Chattanooga casting a net and saying if you feel you’ve been harmed by COVID, call us,” Bell told committee members.
Bell said the intent of the legislation is to “raise the bar” to prevent what he called “frivolous lawsuits. The point is not that someone thinks they can win one of these suits, the point is to get it to court and to get a settlement. It’s not to ‘win.’”
Sen. Sara Kyle, D-Memphis, an attorney, countered that Tennessee law already provides sufficient protections for those being sued and that it’s already hard for anyone to prove in court that they had contracted the virus at a particular place.
“If someone negligently infects another person, the person who got sick or died will have to pay instead of the negligent person who infected them,” Kyle said. “The biggest beneficiaries of this bill are not churches, they’re not hospitals, they’re not schools or businesses. The biggest beneficiaries of this bill are insurance companies, who never will have a judgment against them.”
It passed on a 7-2 vote with both Bell and Sen. Todd Gardenhire, R-Chattanooga, voting in favor of the measure. The companion bill cleared the House Judiciary Committee, as well.
PENALTIES FOR VANDALISM, CAMPING ON STATE PROPERTY, ASSAULTS ON FIRST RESPONDERS
Lawmakers are also working on two other bills, one a telemedicine bill sponsored by Rep. Robin Smith, R-Hixson, that senators left in limbo during the regular session when they abruptly adjourned after the COVID-19 liability bill died in the House.
It would require insurers to reimburse Tennessee-based doctors and other professionals at the same rates granted to out-of-state providers who are part of an insurer’s network.
That appears to have sufficient support in both chambers.
Lawmakers are also wrestling with a controversial bill aimed at boosting penalties against protesters who have been demonstrating for some two months over social justice issues.
The bill enhances criminal penalties for camping on state property — a group of demonstrators, mostly young Black people — have been doing so for weeks seeking an audience with Lee over their concerns about systemic racism and other issues. And it boosts penalties for vandalism and destruction of public property.
During televideo testimony, Justin Jones, a Black social justice advocate from Nashville who along with others has been protesting state icons of the Confederacy at the Capitol and other issues, called the bill a “critical piece of legislation when it comes to our democracy here in Tennessee.” He and others called it a “stifling” effort to curb people’s constitutional rights, with Jones saying lawmakers seem bent on “finding ways to intimidate nonviolent protesters.”
The House version also drew stiff opposition from a number of Tennessee’s district attorneys general. Some bristled at the idea of handing over authority to the state attorney general should they decide not to prosecute. Moreover, they point out that they are elected while the state attorney general is appointed by the Tennessee Supreme Court.
Among DAs who objected was Hamilton County District Attorney Neal Pinkston, a Republican. In a text to Hamilton County legislators, Pinkston stated one of the bills “requires that the local district attorney general SHALL cooperate in the investigation and prosecution. Such [a] bill creates serious ethical issues for local elected district attorney generals.
“If I were to find no probable cause on an investigation or choose not to prosecute, this bill requires district attorney generals to participate anyway and could and would violate our professional ethical standards as a prosecutor,” Pinkston added. “None of us want to be in such a situation and furthermore non-elected officials should not be allowed to prosecute crimes and avoid the views of the electorate.”
Under a subsequent agreement among House and Senate GOP leaders, Lee and prosecutors, there was a change. Under the bill’s new language, if a local DA decides he doesn’t wish to prosecute a case, the Tennessee District Attorneys General Conference would then recommend to the state attorney general the names of five other attorneys who could take over the case.
Slatery would be able to choose one of them, with those on the list including two sitting district attorneys, two assistant district attorneys and an attorney in private practice with experience in criminal cases.