On August 12, 2020, the Tennessee General Assembly passed the COVID-19 Recovery Act (the “Act”), which was enacted into law by Governor Bill Lee’s signature on August 17, 2020. The Act is effective immediately to all claims except for complaints and civil warrants (including notices of claim filed with the Tennessee Claims Commission, as well as notices of healthcare liability claims) filed before August 3, 2020. The Act is an important development, especially as insurance carriers have increasingly added policy exclusions for communicable diseases to their insureds’ policies, leaving businesses, other commercial entities and government entities without coverage for claims based on exposure to COVID-19.

The Act applies to suits for loss, damage, injury or death filed after enactment, and offers several protections against liability to businesses, schools, individuals and organizations. Its first protection is that it imposes a clear and convincing burden of proof, which is a more rigorous standard of proof for a plaintiff to establish. In Tennessee, the “clear and convincing” evidentiary standard is:

more exacting than the “preponderance of the evidence” standard, although it does not demand the certainty required by the “beyond a reasonable doubt” standard. The clear and convincing evidence standard defies precise definition. Evidence satisfying this high standard produces a firm belief or conviction regarding the truth of facts sought to be established. Clear and convincing evidence eliminates any serious or substantial doubt concerning the correctness of the conclusions to be drawn from the evidence.¹

Second, it limits liability to an act or omission constituting gross negligence or willful misconduct, which are higher standards than the ordinary standards imposed under ordinary negligence theories of relief.

Third, it requires that a claimant alleging loss, damage, injury or death from COVID-19 file a verified complaint alleging specific facts with particularity, which is a deviation from the ordinary, but more generous, notice pleading standard. Similarly, “in an action alleging injury based on exposure to or contraction of COVID-19,” a claimant must “file a certificate of good faith stating that the claimant or claimant’s counsel has obtained a signed, written expert medical opinion that the claimant’s injury was caused by the alleged act or omission of the defendant. A claimant’s failure to comply with the Act’s pleading requirements will, upon motion, make the claim subject to dismissal with prejudice.”²

The Act extends certain protections under the Tennessee Governmental Tort Liability Act, which is the statutory scheme governing most tort claims against Tennessee county, school board, city and municipal entities and employees. The Act does not (a) create a cause of action; (b) eliminate a required element of any existing cause of action; (c) affect workers’ compensation claims; or (d) amend, repeal, alter, or affect any immunity or limitation of liability available under current law or contract.

If you or your business are concerned about liability for a customer’s, invitee’s or other person’s possible contraction of COVID-19, we stand ready to help you navigate the web of insurance coverage, statutory changes and other considerations to ensure the least possible exposure to you or your business.

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¹In re Zaliyah S., 2020 Tenn. App. LEXIS 296, at *9-*10 (Tenn. Ct. App. April 2, 2020) (internal citations omitted).
²http://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=SB8002. (Visited August 17, 2020.)