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How Proposed Missouri Senate Bill 51 May Reduce COVID-19 Liability for Construction-Related Businesses
By Emily Hermreck on March 2, 2021 at 11:00 AM

Missouri Senate Bill 51, commonly referred to as the COVID-19 Liability Protection Bill, seeks to limit potential COVID-19-related liability of Missouri health care providers, product manufacturers and suppliers, and any individuals or entities engaged in businesses, services, activities, or accommodations. If passed, it is likely that this legislation will apply to construction-related activities at construction project sites and home offices and may offer legal protection in certain circumstances to construction material suppliers.

SB51 was recently passed in the Missouri Senate and has advanced to the Missouri House for further action. In its current perfected state, SB51 seeks to add six new statutory sections to chapter 537 of Missouri Revised Statutes: Sections 537.1000, 537.1005, 537.1010, 537.1015, 537.1020, and 537.1035. Though it may depend on how the courts apply and interpret the language of a final passed bill, the proposed statutes are likely applicable to construction-related businesses acting in both their service provider and employer capacities.

Proposed Section 537.1000

Proposed Section 537.1000 defines key terms for purposes of reading the other statutory sections. Among other terms, it defines “Businesses, services, activities, or accommodations,” “COVID-19 exposure action,” and “Individual or entity.”

“Businesses, services, activities, or accommodations” is defined broadly and includes “any act by an individual or entity, irrespective of whether the act is carried on for profit.” This definition likely encapsulates all construction activities.

“COVID-19 exposure action” is defined as a civil action brought by a person who suffered a personal injury against an individual or entity engaged in businesses, services, or accommodations, that alleges an actual, alleged, feared, or potential exposure to COVID-19 that caused the personal injury or risk of personal injury and that occurred in the course of the individual or entity’s businesses or services.

“Individual or entity” is defined broadly, too, and includes natural persons, employees, employers, corporations, companies, trades, businesses, firms, partnerships, labor organizations, nonprofits and charitable organizations, state and local governments, and more. Because of the breadth of the definition of “individual or entity,” the Act will provide widespread COVID-19 liability protection to many, if not all, types of Missouri businesses and employers.

Proposed Section 537.1005

Proposed Section 537.1005 is possibly the most important statute with respect to construction-related businesses in that it provides the greatest civil liability protection. Section 537.1005 provides that “no individual or entity engaged in businesses, services, activities or accommodations shall be liable in any COVID-19 exposure action 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 to COVID-19 caused the personal injury of the plaintiff.” Construction contractors and owners likely fit into Section 537.1000’s definitions of an “individual or entity” engaged in “businesses [or] services.”

Therefore, as it is written now, Section 537.1005 appears to protect construction contractors and owners, acting in both their employer and service provider capacities, from COVID-19 exposure lawsuits brought by employees and business associates or visitors where the plaintiff alleges that due to an actual or potential exposure to COVID-19 that occurred in the contractor or owner’s course of the business, the plaintiff sustained or was at risk of a personal injury. The contractor or owner must not have acted recklessly or with willful misconduct in causing the COVID-19 exposure, however. Although the statute does not expressly limit civil liability protection to only those individuals and entities that are in compliance with state and local health orders, it is possible a court could find that failure to follow local COVID-19 health and safety orders, such as wearing masks and social distancing, could be deemed reckless conduct, and subject the contractor or owner to civil liability.

Proposed Section 537.1005 further protects employers and business owners by creating a rebuttable presumption that the plaintiff assumed the risk of a COVID-19 exposure by entering an employer or business owner’s premises where the employer or business owner had provided a substantially similar warning notice as the warning notice provided in the statute. The notice must be “clearly visible” upon entering the location or must be provided in written form to those coming to the location. Thus, a contractor or owner could likely create a rebuttal presumption that it is not liable for workplace or project site COVID-19 exposure where it has clearly posted a warning notice in the workplace or on the project site or has provided an advanced written notice to all employees and tradespeople entering the workplace or project site.

This section does create the potential for a contractor or owner’s COVID-19 exposure action liability for a third party’s acts or omissions if the contractor or owner: (1) had an obligation under common law principles to control the actions of the third party, or (2) if the third party was acting as an agent of the contractor or owner. In any situation where the contractor or owner believes it has responsibility for the actions of a third party, or believes a third party is acting as its agent, it would be best practice to ensure that the third party is not acting recklessly in such a way that it may cause COVID-19 exposure to others.

Proposed Section 537.1015

Proposed Section 537.1015 provides, in pertinent part, that any manufacturer, seller, lessor, distributor, or donator of a “covered product" shall not be liable in a COVID-19 products liability action arising out of the manufacture, sale, lease, distribution, or donation of that product if that entity either:

  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 but the COVID-19 emergency requires modification of the manufacturing process; or
  3. does make the covered product in the ordinary course of business, and the use of the covered product is different than its recommended purpose and used in response to the COVID-19 emergency.

“Covered product” is defined in the Act as a “pandemic or epidemic product” or “device” “to combat COVID-19.” The statute only applies to “covered product[s] … administered or used for the treatment of or protection against COVID-19,” and therefore likely would not apply to products typically manufactured or distributed by construction material suppliers and distributors unless, of course, they meet this statutory description.

Proposed Section 537.1020

Proposed Section 537.1020 permits an award of punitive damages in any COVID-19 related action, though punitive damages may never exceed nine times the amount of compensatory damages awarded.

Proposed Section 537.1035

Proposed Section 537.1035 provides that all sections of the COVID-19 Liability Protection Bill will expire four years after the legislation is passed. It also provides that the causes of action for damages arising out of exposure to COVID-19, acts or omissions of health care providers in the course of providing COVID-19-related health care services, or the manufacture, sale, lease, distribution, or donation of a “covered product" created by these statutes replaces any other common law cause of action, and preempts and supersedes any preexisting standards for personal injury law. In essence, Section 537.1035 requires that any action related to COVID-19 be brought pursuant to these statutes. This section creates a two-year statute of limitations for COVID-19 exposure actions and products liability actions and creates a one-year statute of limitations for COVID-19 medical liability actions.

Proposed Section 537.1010

Finally, proposed Section 537.1010 gives civil liability protection to health care providers providing COVID-19-related health care services, requiring that the plaintiff in a COVID-19 medical liability action prove that the health care provider was reckless or engaged in willful misconduct that caused a personal injury. Section 537.1010 likely would not apply to construction-related businesses.

Looking Forward

As of the publication of this blog post, SB51 had passed in the Missouri Senate and advanced to the Missouri House for consideration. If passed in this regular session, it is likely that Gov. Mike Parson will sign this bill into law, as he has advocated for COVID-19 liability protections. The law would become effective on August 28, 2021, and would apply to civil actions filed on or after the effective date and to all claims as described in these sections based on acts or omissions that occurred during the COVID-19 pandemic.

Note also that this legislation may be amended before it is passed. If passed as it is written now, however, the likely implication is that construction-related businesses that constitute an “individual or entity engaged in businesses [or] services” per the statute may not be civilly liable if someone contracts COVID-19 or is exposed to COVID-19 at the office or project site, assuming the construction-related business was not acting recklessly or with willful misconduct to cause an actual COVID-19 exposure. To that end, it is best practice for construction-related businesses to enact COVID-19-related safety policies and ensure they are enforced. Furthermore, construction material suppliers that manufacture, sell, or distribute covered products during COVID-19 may gain products liability protection, as would construction-related businesses that provide covered products to others, during COVID-19.

If you have questions about Missouri Senate Bill 51 or ensuring that your business is in compliance with applicable COVID-19 protocols, please contact an attorney in Greensfelder’s Construction Practice Group.

Tags: COVID-19
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