Friday 19th February 2021
Last week, the Indiana General Assembly passed and Governor Eric Holcomb signed Senate Bill 1 to ensure civil immunity to claims arising from COVID-19. This immunity includes claims related to premises liability and product liability, with the exception of acts or omissions that constitute gross negligence or willful or willful misconduct. Significantly, the draft law by and large defines “COVID-19 protective product” and, in accordance with the exceptions mentioned above, offers civil immunity against damage caused by the development, manufacture, labeling, sale, distribution or donation of a COVID product. 19 protection product. The term “COVID-19 protection product” includes personal protective equipment; Medical devices, drugs, and devices used to treat COVID-19, including devices that have been used or modified for any unauthorized use to treat COVID-19 or prevent it from spreading; and FDA-approved tests to diagnose or determine immunity or exposure to COVID-19. The bill also prohibits class actions based on tort for damage caused by the development, manufacture, labeling, sale, distribution, or donation of a COVID-19 protection product. The General Assembly decided that the provisions of the draft law would take effect immediately, rather than waiting for new legislation until the traditional July 1st entry into force.
There is an accompanying bill, House Bill 1002, which is still working its way through the General Assembly. Legislators will use this bill to address additional liability issues that they believe were not addressed in Senate Bill 1. As currently being worked out, Bill 1002 would provide broader immunity to other claims arising from COVID-19, such as:
The immunity of health care providers to certain professional disciplines is important for acts or omissions resulting from a disaster emergency.
Immunity from civil liability to certain health care providers for specific acts or omissions related to the provision of health services during a government disaster.
Immunity to government agencies and employees for loss due to an act or omission due to COVID-19.
Immunity of Certain Individuals to Loss, Damage, Injury, or Death from COVID-19.
It remains to be seen whether House Bill 1002 will also exit the General Assembly or whether Governor Holcomb will sign it. Legislators will continue to work on House Bill 1002 during the second half of the legislature, which begins in March.
© 2020 Faegre Drinker Biddle & Reath LLP. All rights reserved.National Law Review, Volume XI, Number 50