Scanning the COVID-19 Litigation Scene

Six months into our shared national adventure with SARS-CoV-2, mere words have lost their power to frame the gravity of the moment. The phrase “coronavirus pandemic” rolls off everyone’s tongue so easily, as if the topic under discussion were a baseball score or a grocery list. And the phrase “new normal” makes the humdrum state of affairs formerly known as “normal” seem like a blissful, but as-yet merely aspirational, condition.

Yes, the COVID-19 pandemic is unprecedented. Yes, living with the pandemic forces us to reexamine every aspect of our personal and professional lives. Yes, life will never be the same. And, finally, yes, COVID-19 has inspired a wave of litigation heretofore unseen in the United States.

As of Aug. 11, 4,219 lawsuits have been filed raising legal issues related to the COVID-19 pandemic, according to an ambitious tracking effort by law firm Hunton Andrews Kurth.

To put this number in perspective, consider that the Year 2000 bug, a programming error that threatened to crash most computing systems on January 1, 2000, produced no more than a few hundred lawsuits before being effectively squelched by the 1999 Y2K Act, a federal liability-limiting measure. The 2010 Deepwater Horizon oil spill, which decimated the Gulf Coast area and led to tens of billions in payouts to private parties and government-imposed penalties, likely spurred no more than a thousand individual lawsuits, according to data assembled by Syracuse University researchers in 2018.

Who Is Suing Whom?

Where are these coronavirus lawsuits coming from? Although coronavirus litigation has crept into just about every legal subject area, the majority of COVID-19-related lawsuits to date appear to be insurance disputes, prisoner rights claims, refund claims, and challenges to government public safety orders. The leading types of COVID-19 lawsuits—drawing again from data published by the Hunton Andrews Kurth tracker—can be classified roughly as follows:

• Insurance-related issues (1,004 cases)
• Government-mandated business closures, stay-home orders, bans on large gatherings (264 cases)
• Miscellaneous other public safety orders (142 cases)
• Non-education-related cancellations or postponements (airfare, cruise tickets, events, vacation rentals) (132 cases)
• Miscellaneous other failures to provide refund (95 cases)
• Voting rules (107 cases)
• Refunds for school and college tuition payments (173 cases)
• Prisoner confinement or conditions of confinement (600 cases)
• Unsafe conditions of employment (76 cases)
• Unlawful termination (217 cases)
• Landlord-tenant issues (evictions, failure to extend lease) (202 cases)
• Wrongful death (in nursing homes and public places) (48 cases)

These lofty numbers fail, for several reasons, to describe the true extent of the litigation caused by the coronavirus pandemic.

First, there’s a strong possibility that the Hunton Andrews Kurth tracker is undercounting the cases filed to date. For example, University of California at Irvine Law School Prof. Richard L. Hasen’s Election Law Blog reports 194 cases in 42 states (as of Aug. 9) involving COVID-19-related challenges to state election laws. This number is significantly higher than the 107 reported by the Hunton Andrews Kurth tracker. There may be undercounts in other areas as well. Given the vast number of cases, and the difficulty of tracking court filings across thousands of legal jurisdictions, it’s impossible to know precisely.

Second, litigation trackers are inherently skewed. They overlook low-level legal disputes that raise socioeconomic rather than legal issues. Evictions, wage garnishments, repossessions, bankruptcies, domestic violence, property crimes, and government actions enforcing public health mandates are legal matters that find their way into courthouses but not litigation trackers.

Finally, a mere count of lawsuit filings underestimates the legal discord actually created by the coronavirus. For every dispute that emerges in a court filing, many more enjoy a brief-but-contentious existence in the form of phone calls, email messages, and cease-and-desist letters, before quietly finding final resolution outside of public view.

Without question, the coronavirus pandemic has led to more litigation than any other single event in U.S. history. What do these cases look like? Here are some of the lawsuits recently surfaced in news reports across the country. 

Insurance Disputes

Back in May, the insurance trade publication Claims Journal noted that the number of COVID-19-related lawsuits over coverages under business interruption policies exceeded 100 and was rising rapidly. In one such case involving a restaurant, a Michigan court ruled that a local coronavirus closure order was not the sort of physical damage that, according to the court, was required to trigger coverage under the policy.

Similar lawsuits are working their way through courts across the United States, with billions of dollars at stake for the insurance industry.

Another COVID-19-related insurance dispute involves disputes over refunds. In one case, Allstate Insurance Co., GEICO, and Progressive Casualty Insurance Co. were sued in an Illinois state court for allegedly failing to lower auto insurance premiums adequately due to decreased claims exposure after the COVID-19 pandemic struck. The suit seeks class action status.

Educational Institutions

Schools can’t win. They’re sued when they open, and they’re sued when they close.

In Florida, the Florida Education Association, a teachers’ union, sued state officials in a bid to overturn a school re-opening order that, the lawsuit claimed, would unlawfully allow schools to re-open without adequate health safeguards in place.

In California, a conservative group filed a lawsuit challenging the legality of school closing orders in that state.

A local school district in Illinois successfully beat back a lawsuit challenging its authority to require students to wear face masks and submit to temperature checks prior to returning to school.

Earlier this spring, students whose colleges abruptly closed in the wave of shutdowns at the outset of the COVID-19 pandemic filed lawsuits seeking refunds of tuition allegedly paid in expectation of a full term of in-person learning.

A local school district that decided to consolidate elementary schools, for reasons entirely unrelated to COVID-19, was sued by a parent who alleged that increased bus travel to more crowded, consolidated schools unlawfully put students at greater risk of contracting COVID-19.

In J.P. v. Educational Testing Services, a “digital divide” lawsuit filed in federal court in West Virginia, the plaintiffs alleged breach of contract and civil rights violations against College Entrance Examination Board and Education Testing Services arising out of the administration of at-home standardized tests. The plaintiffs claimed that they were unfairly disadvantaged by at-home testing due to lack of adequate technology and personal disabilities that impaired their ability to perform the tests from a remote location.

Businesses and Public Health

In addition to seeking reimbursement for losses from insurance carriers, businesses across the country are challenging government public health orders.

In Florida, bar owners filed lawsuits and rallied at the state capital in Tallahassee in opposition to orders closing their businesses while allowing other, allegedly similarly situated businesses, to remain open.

A bar owner in Springfield, Ill., sued city officials, challenging a municipal order that required social distancing measures on the premises, violations of which are subject to a $500 fine.

In Newark, Del., a group of restaurant owners are tangling with the mayor over a threatened municipal order to reduce bar capacity limits lower than current state restrictions.

In Michigan, a group representing bowling alley operators sued state officials over what they claim are arbitrary and unlawful orders keeping them closed due to COVID-19 health concerns. Michigan classifies bowling alleys as amusement facilities that must remain closed for now. Casinos, salons, and personal care services in the state have been allowed to open.

Officials in Branson, Mo., were reportedly sued by several local business owners over the city’s decision to enact an ordinance requiring masks at indoor businesses and large outdoor gatherings.  

Workplace Disputes

In Minnesota, an emergency room nurse, terminated for violating hospital rules on uniforms, filed a lawsuit alleging that his actions were legally protected attempts to ensure his personal safety. The plaintiff was allegedly terminated for wearing a hospital-issued uniform while treating COVID-19 patients, contrary to a policy that restricts the use of these garments.

The widow of a California man sued Safeway, alleging that her husband’s death from COVID-19 was caused by unsafe working conditions at the grocery store. The lawsuit contends that Safeway failed to follow health guidance from the Occupational Health and Safety Administration.

Walmart is reportedly facing a similar wrongful death lawsuit in Illinois.

Voting Rights

Even before the coronavirus pandemic struck, voting-rights litigation — particularly litigation surrounding mail-in voting — promised to play a pivotal role in the 2020 national elections. COVID-19 merely tossed another log onto a fire that was already blazing. Thirty-four states allow mail-in voting for any reason, no questions asked. The other states require a justification, such as a personal disability that prevents voting in person.

Several lawsuits seek to add fear of contracting COVID-19, or bringing COVID-19 home to a vulnerable family member, as a reason to cast a mail-in vote. None have prevailed so far.

In Texas, the Democratic Party’s lawsuit to broaden the right to cast a mail-in vote is mired in legal proceedings that may not be resolved before Election Day. Texas officials ruled earlier this year that fear of coronavirus is not an acceptable reason to vote by mail.

The Tennessee Supreme Court ruled Aug. 5 that fear of COVID-19 is not an acceptable justification to avoid in-person voting.

An End to COVID-19 Litigation in Sight?

Possibly, and not entirely.

Congress has already acted to trim legal liability for some types of conduct related to the coronavirus pandemic. Section 3215 of the CARES Act, enacted on March 27, 2020, gives volunteer healthcare workers immunity from liability for acts or omissions committed while performing healthcare services during the pandemic.

The healthcare industry also enjoys immunity from lawsuits under the 2005 Public Readiness and Emergency Preparedness Act (PREP Act) for “medical countermeasures” developed in response to public health emergencies developed in response to COVID-19. In a series of declarations and opinions issued this spring, the Department of Health and Human Services stated that the PREP Act provides immunity for activities related to the development, testing, distribution, and use of COVID-19 medical countermeasures.

As this post is being written, Congress is currently at an impasse on the topic of immunity for legal liability arising from the COVID-19 pandemic. The House of Representatives passed the HEROES Act earlier this year, a bill that contains no immunity provisions for businesses. Leadership in the Senate favors broad immunity for businesses along the lines expressed in the SAFE TO WORK Act (S. 4317) (PDF). S. 4317 — a sweeping COVID-19 tort reform proposal that defies brief explanation — would, among other things, grant all defendants immunity from personal injury claims alleging mere negligence, raise the standard of proof, heighten pleading requirements, eliminate joint and several liability, eliminate federal class actions, cut back on compensatory and punitive damage awards, and preempt all contravening state laws.

While Congress haggles over the legal immunity question, nearly a dozen conservative-leaning states have enacted legislation or entered executive orders limiting legal exposure for injuries caused by COVID-19.

The outcome of these legislative efforts will shape the litigation scene for the next decade. Their impact will be great but limited to lawsuits over personal injuries and, to a lesser extent, workplace relations. Other legal claims — lawsuits over refunds, evictions, education and civil rights, insurance coverage, public health mandates, to name a few — will all go on, promising to reshape business relations and government prerogatives for the next generation.

Unprecedented indeed.