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Once a top priority, liability measure flounders

Julia Shumway//August 28, 2020

Once a top priority, liability measure flounders

Julia Shumway//August 28, 2020

In this file photo, a flag flies at the U.S. Capitol in Washington D.C. Congress has a measure to protect businesses from COVID-19 lawsuits, but has yet to act on it, and Gov. Doug Ducey is content to wait on the federal measure rather than call the state Legislature into special session to pass liability legislation. PHOTO COURTESY ARCHITECT OF THE CAPITOL
In this file photo, a flag flies at the U.S. Capitol in Washington D.C. Congress has a measure to protect businesses from COVID-19 lawsuits, but has yet to act on it, and Gov. Doug Ducey is content to wait on the federal measure rather than call the state Legislature into special session to pass liability legislation. PHOTO COURTESY ARCHITECT OF THE CAPITOL

Republican lawmakers and business lobbyists who described protecting businesses from coronavirus-related lawsuits as their top legislative priority are waiting on Congress to act after months of being unable to reach a deal on a state-specific bill. 

Federal lawmakers aren’t expected to return to Washington until after Labor Day on September 7, and how long it will take to pass legislation on civil liability — or any other parts of the next COVID-19 relief package — is unknown, as the Democratic-controlled House and Republican-controlled Senate have been at an impasse since early this summer.

In the meantime, business interests are eager to see action on a civil liability measure, whether from Congress or from the Arizona Legislature in a special session. No Arizona businesses have yet reported lawsuits from employees or patrons who contracted COVID-19, but actions have been filed across the country and schools and businesses have reopened with waivers asking patrons to sign away their right to sue. 

Arizona Chamber of Commerce and Industry spokesman Garrick Taylor said quick legislative action to provide broader protections for businesses will help them reopen safely. 

“The reason we were considering some sort of action in a special session and why we believe it’s important for Congress to act is because you want to encourage businesses that are good actors to reopen with confidence and not be looking over their shoulder constantly in fear of predatory lawsuits,” he said. “Action and clarity sooner rather than later would be preferable, but there’s never a bad time for good policies.” 

Doug Ducey
Doug Ducey

Lawmakers adjourned in May with the expectation that they would be back in a special session in a matter of weeks to address the damage the COVID-19 pandemic and associated business shutdowns did to the budget, and to pass a bill protecting businesses from lawsuits that GOP drafters assumed needed just a little fine-tuning. 

Nearly four months later, fiscal fears appear to have been unfounded: state budget analysts announced last week that the state ended fiscal year 2020 with a positive balance of $377 million instead of the projected shortfall of $190 million, and they now estimate the total deficit at the end of fiscal year 2021 will be just $62 million — a far cry from the $1 billion deficit budget analysts feared at the start of the pandemic. 

And the liability measure still doesn’t have the support it would need to pass even if Gov. Doug Ducey agreed to call lawmakers back to a special session.

Republican lawmakers have left drafting the bill up to a single senator, Vince Leach of SaddleBrooke. Leach has not returned calls or texts throughout the summer – when the Arizona Capitol Times caught up with him in person last week he said only that he had nothing new to report. 

The Arizona Chamber of Commerce and Industry has played a coordinating role in helping Leach draft his version of a liability measure, which Taylor and chamber lobbyist Courtney Coolidge said smoothed out wrinkles in a version of the bill drafted by Sen. Eddie Farnsworth, R-Gilbert, that was shared with lawmakers near the end of the regular session but never formally introduced.

“They’re fairly similar in the sense that they don’t cover gross negligence,” Coolidge said. “The Leach bill does have provisions to help with our health care providers to provide liability coverage for them, which the Farnsworth bill did not.”

Vince Leach
Vince Leach

Requiring plaintiffs to prove “gross negligence” means people who contract COVID-19 while working, shopping or studying at a business, nonprofit agency, church or school would have to meet a much higher burden of proof than someone who sues after falling and injuring themselves. 

Liability language included in draft legislation introduced by U.S. Senate Republicans would go even further, requiring plaintiffs to list all other places they visited and people they were in contact with for the 14 days before the onset of symptoms and explain why each of those people or places didn’t cause the disease. 

Ducey Chief of Staff Daniel Scarpinato said liability legislation is a pressing issue, particularly in the context of reopening schools. However, the Governor’s Office doesn’t plan to call lawmakers back to pass a liability measure. 

“In the immediate, we’d like these liability issues addressed at the federal level,” Scarpinato said. “At this point, there’s no special session on the horizon, but some of this can be done retroactively.”

Ducey’s office will work with lawmakers next session on a liability bill if Congress hasn’t taken action, Scarpinato said. But waiting until January could mean the executive branch would have to deal with a House, Senate or both in the control of Democrats — who haven’t been invited to participate in crafting liability bills. Democrats are saying they would be open to voting for such a measure if they had a hand in drafting it and could ensure it protected businesses acting in good faith from frivolous lawsuits while not providing legal cover to businesses flagrantly flouting safety regulations.

Senate Assistant Minority Leader Lupe Contreras, D-Avondale, said he had an initial conversation with Leach about the measure right before lawmakers adjourned sine die but hasn’t heard anything since. Democrats can’t vote for a bill if they’re not involved in crafting it, he said. 

“Any time you want support from the other side of the aisle, the other side of the aisle has to have as much time invested into that legislation as the other side, and that goes for verbiage too,” he said. “So, if that’s something that somebody really wants to do, everyone needs to be there at the drafting from start to finish.”

 

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