Governor Kay Ivey Issues Proclamation to Protect Alabama Businesses from Unwarranted Liability Due to Covid
Prepared by David L. Faulkner
May 11, 2020
On May 8th, Governor Ivey issued a Proclamation protecting businesses, health care providers, universities, public institutions of higher education, and their employees, officers, and agents, from unwarranted legal liability stemming from COVID-19.
“I want to do everything within my authority to protect businesses as Alabama’s economy gets up and running again,” Governor Ivey said. “As we resume operations, the very last thing a business owner needs to worry about is a frivolous lawsuit from responding to COVID-19. Let me be clear, this in no way shields them from serious misconduct. If someone knowingly abuses the public during a time of crisis, they should be held accountable and prosecuted as such.”
The Alabama Emergency Management Act (“EMA”) affords the Governor this extraordinary power when she by proclamation declares a state of emergency. The Governor’s orders “shall have the full force and effect of law” and are “operative only during the existence of a state of emergency.” Ala. Code §§ 31-9-13 and 8.
Summary of the Proclamation:
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The Proclamation provides civil immunity for “covered activities” by “covered entities” operating in Alabama from certain claims and damages relating to COVID-19, including claims that someone contracted or was exposed to COVID-19 on the premises of a business, or due to the operations or services provided by the business, or due to the provision of health care services or treatment provided by doctors, hospitals or nursing homes. Exceptions to this immunity exist only if the covered entity acted with wanton, reckless, willful, or intentional misconduct and such misconduct must be proven under a “clear and convincing” evidentiary standard. Cases that do not involve death or “serious physical injury” are limited to recovering actual out-of-pocket economic damages. Punitive damages cannot generally be recovered.
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In the event of a claim accruing prior to issuance of the Proclamation, and a determination by a court that the above provisions are inapplicable to the claim, the Proclamation directs that a covered entity shall not be liable for negligence, premises liability or non-wanton conduct. Damages in these cases that do involve serious physical injury will also be limited to economic damages.
Who is Protected by the Proclamation?
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Entities covered under this Proclamation include businesses, nonprofits, LLCs, health care providers, educational entities, churches, governmental entities, and cultural institutions operating in this state, as well as individuals associated with these entities.
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Any director, officer, trustee, manager, member, employee, or agent with respect to any act or omission performed while acting on behalf of the covered entity.
Is Legislation Still Necessary?
- Yes, the Proclamation will expire when the state of emergency is ended. The legislature will need to act quickly once the emergency order expires.
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