COVID liability advances in Missouri Senate, expands to shield religious orgs

After nearly 15 hours of debate and negotiations behind the scenes, a bill was given initial approval in the Senate’s first filibuster of the session

By: - February 3, 2021 7:07 am

State Sen. Tony Luetkemeyer, R-Parkville (photo courtesy of Missouri Senate Communications).

Churches would be immune from most lawsuits alleging COVID was contracted on their premises after an exemption was carved out for religious organizations during the Senate’s first filibuster of the session Tuesday over liability protections for businesses and healthcare providers.

After nearly 15 hours of debate and negotiations behind the scenes, legislation sponsored by Sen. Tony Luetkemeyer, a Republican from Parkville, was given initial approval shortly after 5 a.m. Wednesday.

The bill would shield businesses and healthcare providers from most COVID-related lawsuits, unless a high standard of proof could be met. Residents would have up to one year to pursue legal action in instances of medical malpractice and under the bill substitute now have up to two years in cases of product liability or after an alleged exposure, like claiming the virus was contracted on a business’s premises.

A contentious amendment brought by Sen. Mike Moon, a Republican from Ash Grove, that would have given religious organizations, like churches, blanket immunity from COVID liability claims was pared down in the final bill — and now only allows for religious organizations to be held liable if the plaintiff “can prove intentional misconduct.”

“I just don’t want to put my name on something that could be open ended and cause harm to someone unnecessarily,” said Moon, who had pledged to vote in favor of the revised language discussed behind closed doors. “If though I’ve been snookered — and that is revealed to me at a later time — then I won’t be too happy.”

The bill also makes clear that it does not prevent lawsuits challenging state or local orders requiring businesses’ suspend or stop services and lawsuits dealing with certain insurance-related claims for businesses.

The bill must be approved one more time by the Senate before it can be sent to the House.

The issue is a top priority for Gov. Mike Parson who has said he wants it to be the first piece of legislation that hits his desk. Parson had reversed course in December and asked lawmakers to drop its consideration from a special session after a COVID outbreak delayed work.

Opponents of the legislation have argued it would protect businesses that flout the rules and is a solution in search of a problem.

Negotiations stretched overnight after Sen. Steven Roberts, a Democrat from St. Louis, raised issues early in the afternoon Tuesday, including with the latitude healthcare providers were given under the bill.

The finalized bill’s language clarified that in cases of medical malpractice against healthcare providers, elective procedures delayed with good cause “shall not be considered recklessness or willful misconduct.” The standard for plaintiffs to prove “clear and convincing evidence” in medical malpractice cases was also removed — but remained for exposure and product liability cases. 

Other provisions regarding limits on class action lawsuits and giving the Attorney General the ability to pursue civil action against any person believed to be engaging in a pattern of frivolous lawsuits were also removed from the final substitute. A sunset provision was also added that stipulates the bill will expire four years after it’s effective.

“I really appreciate the negotiations that we had, you know, us all working together collectively in good faith…” Roberts said as the final bill was discussed. “It was very apparent that all of us are really trying to do the best thing for our citizens in our state.”

Members of the Conservative Caucus also raised concerns over the course of the filibuster, with debate snagging over Moon’s amendment that explicitly exempted religious organizations from being held liable from COVID-19 exposure lawsuits and did not require them to post a warning notice at their entrance.

Moon argued without the amendment, the bill could open the floodgates for lawsuits against houses of worship.

“We have allowed people to create such fear in people’s minds that now we’re taking drastic measures such as these,” Moon said. “And I don’t know that it’s that necessary.”

Proponents of the legislation have said its intent is to do the opposite and stem frivolous lawsuits from being filed. Assistant Majority Floor Leader Bill White, a Republican from Joplin who sponsored a similar bill that was combined with Senate Bill 51, said that businesses stepped up amid the pandemic, like alcohol manufacturers pivoting to producing hand sanitizer.

“We are protecting people now, so that again, they will do the same kind of very heroic response,” in future emergencies, White said.

He insisted that the bill’s current language would already protect religious groups.

“When we write things in law, it needs to be able to handle those that have gone beyond the pale — the deviant,” White said, “that it is intentional, putting someone at likely risk of harm, and they actually are harmed and they die. We need to be able to hold that person accountable.”

In an attempt to limit the scope of Moon’s amendment, Sen. Greg Razer, a Democrat from Kansas City, offered an amendment that would have not provided protection to religious organizations that have received state or federal benefits, like a Paycheck Protection Program loan.

“I am a firm believer in the separation of church and state,” Razer said. “What I do think we need to recognize though is that institutions that are accepting our taxpayer dollars, then have to live by our government rules.”

However, lawmakers raised concerns Razer’s amendment could be interpreted too broadly. Razer’s amendment failed, while Moon’s narrowly passed with 16 in favor and 14 against.

Republican leadership, including Senate President Pro Tem Dave Schatz, Majority Floor Leader Caleb Rowden and White were among those who voted against the amendment, while Luetkemeyer, the bill sponsor, voted in favor.

After the bill’s revised language was introduced, Moon and Sen. Sandy Crawford, a Republican from Buffalo, still took issue with a provision that would allow religious organizations to be held liable for an individual’s acts of omission, like a pastor’s for example. That provision was ultimately struck by an amendment from Crawford.

A new provision also stipulated that the bill would not prohibit lawsuits against public or private educational institutions, like K-12 schools or universities, to recoup tuition, like in the instance of a school determining in-person classes wouldn’t be held after tuition was paid. 

“This is just saying that does not change the status quo of the law,” Luetkemeyer said. “It is not authorized by the law.”

Lawmakers’ discussion strayed from the legislation at hand as they worked to give both sides time to reach a compromise.

“They’ve assassinated this piece of legislation, so I’m sitting over here trying to go through budget,” Sen. Karla May, a Democrat from St. Louis, said about five hours into the debate.

May said plaintiffs must have more than a year to bring forward action and argued that the Attorney General should not have the ability to pursue civil action against any person who is believed to be engaging in a pattern of filing such lawsuits.

“But what might be frivolous to one may not be frivolous to another,” May said.

While Sen. Doug Beck, a Democrat from Affton, questioned whether the bill protects the average worker, Luetkemeyer said the bill will show Missouri stands by its businesses and healthcare workers.

“We need to give our small businesses a fighting chance to reopen,” Luetkemeyer said.

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Tessa Weinberg
Tessa Weinberg

Tessa Weinberg covered education, health care and the legislature with the Missouri Independent. She previously covered the Missouri statehouse for The Kansas City Star and The Columbia Missourian, where her reporting into social media use by the governor prompted an investigation by the Attorney General’s office. She also covered state government in Texas for The Fort Worth Star-Telegram.