SB1616 102ND GENERAL ASSEMBLY

LRB102 13274 LNS 18618 b

102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
SB1616

Introduced 2/26/2021, by Sen. Dale Fowler

SYNOPSIS AS INTRODUCED:

New Act

Creates the COVID-19 Liability Act. Defines terms. Provides that a person may bring a coronavirus exposure action under certain circumstances. Provides that no individual or entity engaged in businesses, services, activities, or accommodations shall be liable in any coronavirus exposure action unless the plaintiff proves specified elements by clear and convincing evidence. Provides that a person may bring a coronavirus-related medical liability action under certain circumstances. Provides that no health care provider shall be liable in a coronavirus-related medical liability action unless the plaintiff proves certain requirements by clear and convincing evidence. Provides that if any person transmits or causes another to transmit in any form and by any means a demand for remuneration in exchange for settling, releasing, waiving, or otherwise not pursuing a claim that is, or could be, brought as part of a coronavirus-related action, the party receiving such a demand shall have a cause of action for the recovery of damages occasioned by such a demand and for declaratory judgment if the claim upon which the demand letter was based was meritless. Provides that an employer conducting testing for coronavirus at the workplace shall not be liable for any action or personal injury directly resulting from such testing. Includes provisions for: liability limitations; procedures; joint employment and independent contracting; and severability.

A BILL FOR

AN ACT concerning civil liability.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the COVID-19 Liability Act.

Section 5. Definitions. As used in this Act:

"Applicable government standards and guidance" means:

(1) any mandatory standards, rules, or regulations specifically concerning the prevention or mitigation of the transmission of coronavirus issued by the federal, State, or local government with jurisdiction over an individual or entity, whether provided by executive, judicial, or legislative order; and

(2) with respect to an individual or entity that, at the time of the actual, alleged, feared, or potential for exposure to coronavirus is not subject to any mandatory standards, rules, or regulations described in paragraph (1), any guidance, standards, or regulations specifically concerning the prevention or mitigation of the transmission of coronavirus issued by the federal, State, or local government with jurisdiction over the individual or entity.

"Business, services, activities, or accommodations" means any act by an individual or entity, irrespective of whether the act is carried on for profit, that is interstate or foreign commerce, that involves persons or things in interstate or foreign commerce, that involves the channels or instrumentalities of interstate or foreign commerce, that substantially affects interstate or foreign commerce, or that is otherwise an act subject to regulation by the Congress of the United States as necessary and proper to carry into execution of the Congress of the United States' powers to regulate interstate or foreign commerce or to spend funds for the general welfare.

"Coronavirus" means any disease, health condition, or threat of harm caused by the SARS–CoV–2 virus or a virus mutating therefrom.

"Coronavirus-related action" means a coronavirus exposure action or a coronavirus-related medical liability action.

"Coronavirus-related health care services" means services provided by a health care provider, regardless of the location where the services are provided, that relate to:

(1) the diagnosis, prevention, or treatment of coronavirus;

(2) the assessment or care of an individual with a confirmed or suspected case of coronavirus; or

(3) the care of any individual who is admitted to, presents to, receives services from, or resides with, a health care provider for any purpose during the period of an emergency or disaster declaration concerning coronavirus, if such provider's decisions or activities with respect to such an individual are impacted as a result of coronavirus.

"Employer" means any person serving as an employer or acting directly in the interest of an employer in relation to an employee. "Employer" includes a public agency. "Employer" does not include any labor organization, other than when acting as an employer, or any person acting in the capacity of officer or agent of such labor organization.

"Government" means an agency, instrumentality, or other entity of the federal, State, or local government.

"Gross negligence" means a conscious, voluntary act or omission in reckless disregard of:

(1) a legal duty;

(2) the consequences to another party; and

(3) applicable government standards and guidance.

"Harm" includes:

(1) physical and nonphysical contact that results in personal injury to an individual; and

(2) economic and noneconomic losses.

"Health care provider" means any person, including an agent, volunteer, as described in this definition, contractor, employee, or other entity, who is:

(1) required by federal or State law to be licensed, registered, or certified to provide health care and is so licensed, registered, or certified, or is exempt from any such requirement;

(2) otherwise authorized by federal or State law to provide care, including services and supports furnished in a home or community-based residential setting under the federal State Medicaid program or a waiver of that program; or

(3) considered under applicable federal or State law to be a health care provider, health care professional, health care institution, or health care facility. "Health care provider" includes a health care facility administrator, executive, supervisor, board member or trustee, or another individual responsible for directing, supervising, or monitoring the provision of coronavirus-related health care services in a comparable role. "Health care provider" includes volunteers that meet the following criteria:

(1) The volunteer is a health care professional providing coronavirus-related health care services.

(2) The act or omission by the volunteer occurs:

(A) in the course of providing health care services;

(B) in the health care professional's capacity as a volunteer;

(C) in the course of providing health care services that:

(i) are within the scope of the license, registration, or certification of the volunteer; and

(ii) do not exceed the scope of license, registration, or certification of a substantially similar health professional in the State; and

(D) in a good faith belief that the individual being treated is in need of health care services.

"Individual or entity" means:

(1) any natural person, corporation, company, trade, business, firm, partnership, joint stock company, educational institution, labor organization, or similar organization or group of organizations;

(2) any nonprofit organization, foundation, society, or association organized for religious, charitable, educational, or other purposes; or

(3) any State or local government.

"Mandatory", with respect to standards, rules, or regulations, means the standards, rules, or regulations are themselves enforceable by the issuing government through criminal, civil, or administrative action.

"Personal injury" means actual or potential physical injury to an individual or death caused by a physical injury. "Personal injury" includes mental suffering, emotional distress, or similar injuries suffered by an individual in connection with a physical injury.

(1) is wholly owned by that governing body; and

(2) has been delegated the right to exercise one or more substantial governmental functions of the governing body.

"Willful misconduct" means an act or omission that is taken:

(1) intentionally to achieve a wrongful purpose;

(2) knowingly without legal or factual justification; and

(3) in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit.

Section 10. Coronavirus exposure actions.

(a) A person may bring a coronavirus exposure action if it is:

(1) brought by a person who suffered personal injury or is at risk of suffering personal injury, or a representative of a person who suffered personal injury or is at risk of suffering personal injury;

(2) brought against an individual or entity engaged in businesses, services, activities, or accommodations; and

(3) alleging that an actual, alleged, feared, or potential for exposure to coronavirus caused the personal injury or risk of personal injury, that:

(A) occurred in the course of the businesses, services, activities, or accommodations of the individual or entity; and

(B) occurred:

(i) on or after December 1, 2019; and

(ii) before the later of:

(I) October 1, 2024; or

(II) the date on which there is no declaration by the United States Secretary of Health and Human Services under section 319F–3(b) of the Public Health Service Act (42 U.S.C. 247d–6d(b)) (relating to medical countermeasures) that is in effect with respect to coronavirus, including the Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19 (85 Federal Register 15198) issued by the Secretary of Health and Human Services on March 17, 2020.

(b) A person may prevail in a coronavirus exposure action only in accordance with the requirements of this Act.

(c) The Section applies to:

(1) any cause of action giving rise to a coronavirus exposure action that was filed before the date of enactment of this Act and that is pending on such date of enactment; and

(2) any coronavirus exposure action filed on or after such date of enactment.

(d) Except as otherwise provided in this Section, nothing in this Section expands any liability otherwise imposed or limits any defense otherwise available under the law.

Except as described in this Section, this Section preempts and supersedes any State law, including statutes, rules, or standards that are enacted, adopted, or established under common law, related to recovery for personal injuries caused by actual, alleged, feared, or potential for exposure to coronavirus.

Nothing in this Section shall be construed to affect the applicability of any provision of any federal or State law that imposes stricter limits on damages or liabilities for personal injury caused by, arising out of, or related to an actual, alleged, feared, or potential for exposure to coronavirus, or otherwise affords greater protection to defendants in any coronavirus exposure action, than are provided in this Section. Any such provision of federal or State law shall be applied in addition to the requirements of this Section and not in lieu thereof.

Nothing in this Section shall be construed to affect the applicability of the Workers' Compensation Act, or to preempt or supersede an exclusive remedy under that Act.

Nothing in this Section shall be construed to impair, limit, or affect the authority of the federal, State, or local government to bring any criminal, civil, or administrative enforcement action against any individual or entity.

Nothing in this Section shall be construed to affect the applicability of any provision of any federal or State law that creates a cause of action for intentional discrimination on the basis of race, color, national origin, religion, sex, disability, genetic information, or age.

(e) A coronavirus exposure action may not be commenced in any State court later than one year after the date of the actual, alleged, feared, or potential for exposure to coronavirus.

Section 15. Liability; safe harbor.

(a) Notwithstanding any other provision of law, and except as otherwise provided in this subsection, no individual or entity engaged in businesses, services, activities, or accommodations shall be liable in any coronavirus exposure action unless the plaintiff can prove by clear and convincing evidence that:

(1) in engaging in the businesses, services, activities, or accommodations, the individual or entity was not making reasonable efforts in light of all the circumstances to comply with the applicable government standards and guidance in effect at the time of the actual, alleged, feared, or potential for exposure to coronavirus;

(2) the individual or entity engaged in gross negligence or willful misconduct that caused an actual exposure to coronavirus; and

(3) the actual exposure to coronavirus caused the personal injury of the plaintiff.

(b) If more than one government to whose jurisdiction an individual or entity is subject issues applicable government standards and guidance, and the applicable government standards and guidance issued by one or more of the governments conflicts with the applicable government standards and guidance issued by 1 or more of the other governments, the individual or entity shall be considered to have made reasonable efforts in light of all the circumstances to comply with the applicable government standards and guidance unless the plaintiff establishes by clear and convincing evidence that the individual or entity was not making reasonable efforts in light of all the circumstances to comply with any of the conflicting applicable government standards and guidance issued by any government to whose jurisdiction the individual or entity is subject.

If mandatory standards, rules, and regulations constituting applicable government standards and guidance issued by any government with jurisdiction over the individual or entity conflict with applicable government standards and guidance that are not mandatory and are issued by any other government with jurisdiction over the individual or entity or by the same government that issued the mandatory standards, rules, and regulations, the plaintiff may establish that the individual or entity did not make reasonable efforts in light of all the circumstances to comply with the applicable government standards and guidance by establishing by clear and convincing evidence that the individual or entity was not making reasonable efforts in light of all the circumstances to comply with the mandatory standards, rules, and regulations to which the individual or entity was subject.

(c) If an individual or entity engaged in businesses, services, activities, or accommodations maintained a written or published policy on the mitigation of transmission of coronavirus at the time of the actual, alleged, feared, or potential for exposure to coronavirus that complied with, or was more protective than, the applicable government standards and guidance to which the individual or entity was subject, the individual or entity shall be presumed to have made reasonable efforts in light of all the circumstances to comply with the applicable government standards and guidance.

The plaintiff may rebut the presumption under this subsection by establishing that the individual or entity was not complying with the written or published policy at the time of the actual, alleged, feared, or potential for exposure to coronavirus.

The absence of a written or published policy shall not give rise to a presumption that the individual or entity did not make reasonable efforts in light of all the circumstances to comply with the applicable government standards and guidance.

A change to a policy or practice by an individual or entity before or after the actual, alleged, feared, or potential for exposure to coronavirus, shall not be evidence of liability for the actual, alleged, feared, or potential for exposure to coronavirus.

(c) No individual or entity shall be held liable in a coronavirus exposure action for the acts or omissions of a third party, unless:

(1) the individual or entity had an obligation under general common law principles to control the acts or omissions of the third party; or

(2) the third party was an agent of the individual or entity.

(d) Changes to the policies, practices, or procedures of an individual or entity for complying with the applicable government standards and guidance after the time of the actual, alleged, feared, or potential for exposure to coronavirus, shall not be considered evidence of liability or culpability.

Section 20. Coronavirus-related medical liability actions.

(a) A person may bring a coronavirus-related medical liability action if it is:

(1) brought by a person who suffered personal injury, or a representative of a person who suffered personal injury;

(2) brought against a health care provider; and

(3) alleging any harm, damage, breach, or tort resulting in the personal injury alleged to have been caused by, be arising out of, or be related to a health care provider's act or omission in the course of arranging for or providing coronavirus-related health care services that occurred:

(A) on or after December 1, 2019; and

(B) before the later of:

(i) October 1, 2024; or

(ii) the date on which there is no declaration by the United States Secretary of Health and Human Services under section 319F–3(b) of the Public Health Service Act (42 U.S.C. 247d–6d(b)) (relating to covered countermeasures) that is in effect with respect to coronavirus, including the Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19 (85 Federal Register 15198) issued by the Secretary of Health and Human Services on March 17, 2020.

(b) A plaintiff may prevail in a coronavirus-related medical liability action only in accordance with the requirements of this Act.

(c) This Section applies to:

(1) any cause of action giving rise to a coronavirus-related medical liability action that was filed before the date of enactment of this Act and that is pending on such date of enactment; and

(2) any coronavirus-related medical liability action filed on or after such date of enactment.

(d) Except as otherwise provided in this Section, nothing in this Section expands any liability otherwise imposed or limits any defense otherwise available under federal or State law.

Except as described in this Section, this Section preempts and supersedes any State law, including statutes, rules, or standards that are enacted, adopted, or established under common law, related to recovery for personal injuries caused by, arising out of, or related to an act or omission by a health care provider in the course of arranging for or providing coronavirus-related health care services.

Nothing in this Section shall be construed to affect the applicability of any provision of any federal or State law that imposes stricter limits on damages or liabilities for personal injury caused by, arising out of, or related to an act or omission by a health care provider in the course of arranging for or providing coronavirus-related health care services, or otherwise affords greater protection to defendants in any coronavirus-related medical liability action than are provided in this Section. Any such provision of federal or State law shall be applied in addition to the requirements of this Section and not in lieu thereof.

Nothing in this Section shall be construed to impair, limit, or affect the authority of the federal, State, or local government to bring any criminal, civil, or administrative enforcement action against any health care provider.

Nothing in this Section shall be construed to affect the applicability of any provision of any federal or State law that creates a cause of action for intentional discrimination on the basis of race, color, national origin, religion, sex, disability, genetic information, or age.

(e) A coronavirus-related medical liability action may not be commenced in any State court later than one year after the date of the alleged harm, damage, breach, or tort, unless tolled for:

(1) proof of fraud;

(2) intentional concealment; or

(3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.

Section 25. Liability for health care professionals and health care facilities during coronavirus public health emergency.

(a) Notwithstanding any other provision of law, and except as provided in subsection (b), no health care provider shall be liable in a coronavirus-related medical liability action unless the plaintiff can prove by clear and convincing evidence:

(1) gross negligence or willful misconduct by the health care provider; and

(2) that the alleged harm, damage, breach, or tort resulting in the personal injury was directly caused by the alleged gross negligence or willful misconduct.

(b) For purposes of this Section, acts, omissions, or decisions resulting from a resource or staffing shortage shall not be considered willful misconduct or gross negligence.

Section 30. Liability limitations.

(a) An individual or entity against whom a final judgment is entered in any coronavirus-related action shall be liable solely for the portion of the judgment that corresponds to the relative and proportionate responsibility of that individual or entity. In determining the percentage of responsibility of any defendant, the court shall determine that percentage as a percentage of the total fault of all individuals or entities, including the plaintiff, who caused or contributed to the total loss incurred by the plaintiff.

(b) In any coronavirus-related action, the court shall instruct the jury to answer special interrogatories, or, if there is no jury, the court shall make findings with respect to each defendant, including defendants who have entered into settlements with the plaintiff or plaintiffs, concerning the percentage of responsibility, if any, of each defendant, measured as a percentage of the total fault of all individuals or entities who caused or contributed to the loss incurred by the plaintiff.

(c) In determining the percentage of responsibility under this Section, the court shall consider:

(1) the nature of the conduct of each individual or entity found to have caused or contributed to the loss incurred by the plaintiff; and

(2) the nature and extent of the causal relationship between the conduct of each such individual or entity and the damages incurred by the plaintiff.

(d) Notwithstanding subsection (a), in any coronavirus-related action the liability of a defendant is joint and several if the court specifically determines that the defendant:

(1) acted with specific intent to injure the plaintiff; or

(2) knowingly committed fraud.

(e) Nothing in this Section affects the right, under any other law, of a defendant to contribution with respect to another defendant determined under subsection (d) to have acted with specific intent to injure the plaintiff or knowingly to have committed fraud.

(f) In any coronavirus-related action:

(1) the award of compensatory damages shall be limited to economic losses incurred as the result of the personal injury, harm, damage, breach, or tort, except that the court may award damages for noneconomic losses if the court determines that the personal injury, harm, damage, breach, or tort was caused by the willful misconduct of the individual or entity;

(2) punitive damages, which may:

(A) be awarded only if the court determines that the personal injury to the plaintiff was caused by the willful misconduct of the individual or entity; and

(B) not exceed the amount of compensatory damages awarded; and

(3) the amount of monetary damages awarded to a plaintiff shall be reduced by the amount of compensation received by the plaintiff from another source in connection with the personal injury, harm, damage, breach, or tort, such as insurance or reimbursement by a government.

(g) Except as described in this Section, this Section preempts and supersedes any State law, including statutes, rules, or standards that are enacted, adopted, or established under common law, related to joint and several liability, proportionate or contributory liability, contribution, or the award of damages for any coronavirus-related action.

(h) Nothing in this Section shall be construed to affect the applicability of any provision of any federal or State law that:

(1) limits the liability of a defendant in a coronavirus-related action to a lesser degree of liability than the degree of liability determined under this section;

(2) otherwise affords a greater degree of protection from joint or several liability than is afforded by this Section; or

(3) limits the damages that can be recovered from a defendant in a coronavirus-related action to a lesser amount of damages than the amount determined under this Section.

Section 35. Procedures.

(a) In any coronavirus-related action the complaint shall plead with particularity:

(1) each element of the plaintiff's claim and, with respect to a coronavirus exposure action, all places and persons visited by the person on whose behalf the complaint was filed and all persons who visited the residence of the person on whose behalf the complaint was filed during the 14 days before the onset of the first symptoms allegedly caused by coronavirus, including:

(A) each individual or entity against which a complaint is filed, along with the factual basis for the belief that such individual or entity was a cause of the personal injury alleged; and

(B) every other person or place visited by the person on whose behalf the complaint was filed and every other person who visited the residence of the person on whose behalf the complaint was filed during such period, along with the factual basis for the belief that these persons and places were not the cause of the personal injury alleged; and

(2) each alleged act or omission constituting gross negligence or willful misconduct that resulted in personal injury, harm, damage, breach, or tort.

(b) In any coronavirus-related action in which monetary damages are requested, there shall be filed with the complaint a statement of specific information as to the nature and amount of each element of damages and the factual basis for the damages calculation.

(c) In any coronavirus-related action in which a claim is asserted on which the plaintiff may prevail only on proof that the defendant acted with a particular state of mind, there shall be filed with the complaint, with respect to each element of that claim, a statement of the facts giving rise to a strong inference that the defendant acted with the required state of mind.

(d) The complaint in a coronavirus-related action shall include a verification, made by affidavit of the plaintiff under oath, stating that the pleading is true to the knowledge of the deponent, except as to matters specifically identified as being alleged on information and belief, and that as to those matters the plaintiff believes it to be true.

(e) Any matter that is not specifically identified as being alleged upon the information and belief of the plaintiff shall be regarded for all purposes, including a criminal prosecution, as having been made upon the knowledge of the plaintiff.

(f) In any coronavirus-related action, the plaintiff shall file with the complaint:

(1) an affidavit by a physician or other qualified medical expert who did not treat the person on whose behalf the complaint was filed that explains the basis for such physician's or other qualified medical expert's belief that such person suffered the personal injury, harm, damage, breach, or tort alleged in the complaint; and

(2) certified medical records documenting the alleged personal injury, harm, damage, breach, or tort.

(g) This Section applies exclusively to any coronavirus-related action and, except to the extent that this Section requires additional information to be contained in or attached to pleadings, nothing in this Section is intended to amend or otherwise supersede applicable rules of civil procedure.

(h) Notwithstanding any other provision of law, in any coronavirus-related action, no discovery shall be allowed before:

(1) the time has expired for the defendant to answer or file a motion to dismiss; and

(2) if a motion to dismiss is filed, the court has ruled on the motion.

(i) Notwithstanding any other provision of law, the court in any coronavirus-related action:

(1) shall permit discovery only with respect to matters directly related to material issues contested in the coronavirus-related action; and

(2) may compel a response to a discovery request, including a request for admission, an interrogatory, a request for production of documents, or any other form of discovery request, only if the court finds that:

(A) the requesting party needs the information sought to prove or defend as to a material issue contested in such action; and

(B) the likely benefits of a response to such request equal or exceed the burden or cost for the responding party of providing such response.

(j) In any coronavirus-related action that is maintained as a class action:

(1) an individual or entity shall only be a member of the class if the individual or entity affirmatively elects to be a member; and

(2) the court, in addition to any other notice required by applicable federal or State law, shall direct notice of the action to each member of the class, which shall include:

(A) a concise and clear description of the nature of the action;

(B) the jurisdiction where the case is pending; and

(C) the fee arrangements with class counsel, including:

(i) the hourly fee being charged; or

(ii) if it is a contingency fee, the percentage of the final award which will be paid, including an estimate of the total amount that would be paid if the requested damages were to be granted; and

(iii) if the cost of the litigation is being financed, a description of the financing arrangement.

Section 40. Demand letters; cause of action.

(a) If any person transmits or causes another to transmit in any form and by any means a demand for remuneration in exchange for settling, releasing, waiving, or otherwise not pursuing a claim that is, or could be, brought as part of a coronavirus-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.

(b) Damages available under this Section shall include:

(1) compensatory damages including costs incurred in responding to the demand; and

(2) punitive damages, if the court determines that the defendant had knowledge or was reckless with regard to the fact that the claim was meritless.

(c) In an action commenced under subsection (a), if the plaintiff is a prevailing party, the court, in addition to any judgment awarded to a plaintiff, shall allow a reasonable attorney's fee to be paid by the defendant, and costs of the action.

(d) Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of transmitting demands for remuneration in exchange for settling, releasing, waiving, or otherwise not pursuing a claim that is, or could be, brought as part of a coronavirus-related action and that is meritless, the Attorney General may commence a civil action in any appropriate State court.

In a civil action under this subsection, to vindicate the public interest, the court may assess a civil penalty against the respondent in an amount not exceeding $50,000 per transmitted demand for remuneration in exchange for settling, releasing, waiving, or otherwise not pursuing a meritless claim.

If the Attorney General obtains civil penalties, the Attorney General shall distribute the proceeds equitably among those persons aggrieved by the respondent's pattern or practice of transmitting demands for remuneration in exchange for settling, releasing, waiving or otherwise not pursuing a claim that is meritless.

Section 45. Liability for conducting testing at workplace. Notwithstanding any other provision of law, an employer, or other person who hires or contracts with other individuals to provide services, conducting testing for coronavirus at the workplace shall not be liable for any action or personal injury directly resulting from such testing, except for those personal injuries caused by the gross negligence or intentional misconduct of the employer or other person.

Section 50. Joint employment and independent contracting. Notwithstanding any other provision of law, it shall not constitute evidence of a joint employment relationship or employment relationship for any employer to provide or require, for an employee of another employer or for an independent contractor, any:

(1) coronavirus-related policies, procedures, or training;

(2) personal protective equipment or training for the use of such equipment;

(3) cleaning or disinfecting services or the means for such cleaning or disinfecting;

(4) workplace testing for coronavirus; or

(5) temporary assistance due to coronavirus, including financial assistance or other health and safety benefits.

Section 97. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.