Louisiana Limits Liability for COVID-19 Exposure Claims — Do Your Policies Make the Cut?

Litigation Alert

Firm Alert

Author(s)

On June 16, 2020, Louisiana Governor John Bel Edwards signed Act No. 336 into law, which limits liability for claims related to COVID-19 exposure. Some of the relevant provisions are outlined below, along with recommendations for best practices to ensure limited liability protection under the act.

Exposure Claims

The act creates Revised Statute 9:800.25, the first section of which limits liability for injuries “resulting from or related to actual or alleged exposure to COVID-19” unless the plaintiff can show the defendant: 

  • failed to substantially comply with applicable federal, state, or local procedures governing the business operations; and
  • acted with gross negligence or wanton or reckless misconduct.

R.S. 9:800.25(A).

Event Organizers

Section B limits liability for exposure claims against any defendant “hosting, promoting, producing or otherwise organizing an event of any kind” unless the damages were caused by gross negligence or willful or wanton misconduct. R.S. 9:800.25(B).

Worker’s Compensation

Under Section C and D of R.S. 9:800.25, employees contracting COVID-19, regardless of whether the injury is determined to be compensable under the Louisiana Workers’ Compensation Law, are prevented from bringing tort claims against employers or other persons listed in R.S. 23:1032(A)(1)(b) unless the exposure was intentional under R.S. 23:1032(B).

Personal Protective Equipment

The act also created Revised Statute 29:773, which falls within the Louisiana Health Emergency Powers Act.

Product Manufacturing & Distribution

R.S. 29: 773 limits the liability of anyone designing, manufacturing, labeling, or distributing personal protective equipment for claims of injuries caused by PPE unless damages were caused by gross negligence or willful or wanton misconduct.  

Product Use

Similarly, for persons using, employing, dispensing, or administering PPE, liability is limited for damages for injuries “resulting from or related to” such PPE, unless the persons:

  • failed to substantially comply with applicable federal, state, or local procedures governing the PPE; and 
  • acted with gross negligence or wanton or reckless misconduct.

All provisions in the act, both R.S. 9:800.25 and R.S. 29: 773, are retroactive to March 11, 2020.

Potential Issues & Guidance

The act does not clarify whether the limitations on liability for injuries include both physical and economic injuries, and it could ultimately be interpreted to include both. Because of its breadth, businesses concerned with potential disputes — whether tortious or contractual — arising during the pandemic should seek the advice of counsel to determine whether and to what extent the act’s liability limitation applies.

The limitation is broad but may not be automatic. Defendants sued for damages related to alleged or actual COVID-19 exposure may need to prove substantial compliance with federal, state, and/or local procedures for COVID-19 and any relevant PPE.

Preemptive measures could help show limited liability early in litigation and snub out frivolous claims before plaintiffs can open the door to discovery, including:

  • An attorney opinion letter confirming your proposed reopening policies comply with the applicable public health guidance; or 
  • Liability waivers.

Speak to an attorney to determine the best approach for your unique business or organization — they can recommend strategies to address your risk exposure under the act, state and federal emergency orders, and public health guidance.  

While the act leaves many questions unanswered, the best way to ensure that your business is entitled to immunity under the act is to document your efforts to comply with written guidance issued by federal and state agencies and train your employees accordingly. As always, Bradley’s attorneys are available when you need help navigating these unchartered territories.