Prior to amendments being made in the Montana Senate, Big Sky Public Policy Institute gave SB65 a big thumbs down. However, revisions in the Senate require us to make a revision in our rating of this as a good, bad, or indifferent bill.
In summary, we were dismayed at how this bill from Washington D.C. and pushed by Mitch McConnell (rewritten for Montana) made its way to the top of the legislative agenda.
We remain dismayed that Governor Gianforte has held a mask repeal hostage, awaiting legislation that is altogether unnecessary. As we have explained previously, business liability for COVID-19 spread is largely unnecessary. Less than 300 such lawsuits have been filed nationwide, with only one in Montana (a nursing home in Whitefish that foolishly and neglectfully took in COVID-19 positive patients). Most such lawsuits nationwide are also against nursing homes, with most others filed against large meatpacking plants. Only 37 lawsuits nationwide are from customers suing businesses for COVID-19 exposure (none have been successful). Protecting nursing homes and hospitals are the real reason this bill is being pushed by Mitch McConnell, who has a long and sordid past of conspiring with the health care lobby.
But what about nursing homes, like in Whitefish (or New York City, famously enough) who took in COVID-19 patients for extra money? Should they not be held liable? Or what about a hospital that put COVID-19 patients with those susceptible to the novel coronavirus? Is there no protection for the patient and customer?
They can still be held liable (as well they should be). According to Section 4, the exception reads,
“unless the health care provider caused the death or injury of an (Line 21) individual through an act of OR OMISSION THAT CONSTITUTES gross negligence, willful and wanton misconduct, or (Line 22) an intentional tort. This subsection SECTION applies to…
Then, nine different examples of such “negligence, willful and wanton misconduct” are given and includes a wide array of things like fudging a diagnosis, acting outside normal medical ‘best practices,’ and spreading COVID-19 with sheer carelessness. This seems to satisfy the claim (usually presented on the left) that such liability laws make it too easy for medical facilities to escape responsibility.
But what about the worst part, the first version’s Section 4, which required businesses to obey local health boards? Thankfully, that abomination was stricken completely from the bill, removing the most odorous portion.
In determining whether or not this is good legislation, one should also take into account Section 6 in regard to “Affirmative Defense.” An Affirmative Defense is one in which if proven, automatically removes criminal or civil liability from the accused, even if they were guilty of doing that which they are accused of.
For example, an Affirmative Defense would be something like the waiver you sign that says you know the business is not responsible for damages, like when you leave your car in a hotel’s parking lot or sign before you skate down at the roller rink. Even if those establishments are negligent in some capacity, you have given them an “Affirmative Defense” to have the case tossed out by signing the waiver.
In this case, businesses have an Affirmative Defense against any liability suit with some specific caveats that include…
- An acknowledgment (6:2) that official health recommendations from different agencies can be contradictory, and leaves it in the hands of businesses to determine which ones they will follow (there is much wiggle room in this clause for businesses)
- The clause (6:4), “This section may not be construed to impose liability on a person for failing to comply with a 16 federal or state statute, regulation, order, or public health guidance related to covid-19” is very good. This means that even though businesses can opt-out of liability by obeying health directives of at least one institution (and can take their pick), this does not imply that to not follow health regulations does not automatically make you liable. In other words, this puts non-complying businesses exactly where they are today (which is not in bad shape, considering they aren’t being sued over this anyway).
In reality, most of what made this bill so egregiously awful was strained out by the time it went through the Senate, thanks to the hard work of several key Republicans. While the bill may be relatively pointless, and while Gov. Gianforte certainly didn’t have to wait around for this to pass to remove Bullock’s mask mandate, this bill is no longer the garbage it once was.
Republican legislators should probably pass the bill sooner than later, if for no other reason so that we Montanans can breathe freely again.