The Potential Impact of COVID-19 on Future Tort Litigation
As COVID-19 continues to impact the physical and financial health of the country, the future impact on tort-based litigation could be significant. As a result of the financial, operational, and cultural changes associated with COVID-19, businesses, government entities, and professionals, are likely to confront tort claims in the context of property damage or bodily injury. Specifically, businesses, government entities, and professionals may find themselves the target of claims alleging that their negligence and reduced operational practices led to property damage, personal injury, and/or exposure of customers.
According to Lex Machina, a company that tracks statistical data for litigation trends, COVID-19 related lawsuits are trending upward. Week over week data since March 1, 2020, shows a 110% increase in COVID-19 related litigation. For more information, click here.
The nature of potential claims and the creativity of lawyers willing to pursue the same are limitless. For example, potential claims could include: a failure to warn or protect others; failure to maintain property and facilities in a reasonably safe condition; negligent security; exposure resulting in bodily injury or property damage; negligence involving visitors to businesses; negligence for a business’s failure to implement social distancing guidelines and preventative measures for customers and staff; product liability claims related to facial masks, disinfectants, air filtration and recirculation; constitutional claims involving the quarantine of infected or exposed persons and the taking of property; professional negligence claims based on a medical professional’s failure to diagnose or treat; and other causes of action which have the potential to trigger coverage under an insurance policy.
The types of insurance policies that may be triggered by one of the above claims are broad. However, as an example, lawyers may try to target a business’ commercial general liability policy. The exact coverage, potential exclusions, and definitions associated with a commercial general liability policy may vary, but most policies are written pursuant to industry forms and guidelines promulgated by national and regional organizations. Commercial general liability policies generally obligate the insurer to defend or indemnify the policyholder for claims against it alleging bodily injury or property damage that is the result of an occurrence. An occurrence is generally defined as an event or accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results in a claim for damages. Occurrences typically include accidental and non-intentional events.
At a time when businesses are operating at a reduced capacity and national and state guidelines are changing daily, the opportunity for potential tort claims is at an all-time high. Therefore, in order to reduce potential liability, businesses should consider implementing the following:
- Make a good faith effort to comply with all state and federal social distancing guidelines and preventative measures;
- Provide sanitation stations including, but not limited to, hand sanitizer and disinfecting wipes;
- Provide adequate staff to ensure that all operations meet pre-COVID-19 standards including cleaning and safety inspections;
- Have a set plan for employee use regarding preventative measures to ensure the safety of employees and customers;
- Continue to provide the same level of security during COVID-19 related restrictions (if you provide security on your premises);
- If you become aware of any dangerous conditions on your property or broken equipment, provide warnings to customers and, if possible, remedy the condition (as adherence to COVID-19 restrictions does not absolve business owners of the potential for premises liability claims);
- Consult your insurance broker to make sure you have adequate coverage for potential claims; and
- If you have questions regarding safety measures and potential areas of liability, consult your general or outside counsel.
Austin Sherman’s practice focuses on insurance defense, municipal liability, personal injury defense, medical malpractice defense, automotive accident defense, and commercial litigation. Mr. Sherman is a proud Double Gator. While at the University of Florida, Mr. Sherman was a member of Florida Blue Key, Vice-President of the Moot Court Team, Vice-President of the John Marshall Bar Association, Student Government Senate Majority Leader, and Treasurer of Sigma Nu Fraternity. When Mr. Sherman is not working, he enjoys spending time with his, fiancé Aubrey, family, friends, and his black lab Judge.