COVID-19 Claims - Tips for Proper Investigation and Handling
John J. Gillooly
In today’s ever changing social and legal landscape, court appearances are stayed, depositions are being taken remotely, if at all, and according to word in the legal industry, the plaintiff’s bar is extremely worried about the number of claims to be filed in the next 6 to 12 months. With an absence of cars on the road, people at local businesses and many doing their best to stay at home pursuant to Orders of most of the nation’s Governors, plaintiff attorneys are searching for new claims to file in the coming months. Word is they are looking for as many COVID-19 cases to file as possible. The potential claims that could be filed are varied and numerous. For instance, a claim could come from an employee seeking an exception to the exclusive remedy provision of the Workers’ Disability Compensation Act, MCL 418.131 or a direct negligence action by a patient, visitor, or other person to institutions such as nursing homes, hospitals and even open businesses.
At Garan Lucow Miller, we are already investigating and providing recommendations with regard to the handling of proposed COVID-19 claims. As in any case, proper investigation is important especially where, as here, issues of causation are expected to be in the forefront.
Over the past several weeks, Garan Lucow Miller attorneys have counseled several large institutional providers who have received notices of claims from employees and/or visitors to their respective businesses suggesting that future litigation will be filed as a result of someone allegedly contracting the COVID-19 virus at their location. While we are not aware of any formal litigation yet to be filed in Michigan, we are anticipating the first filing in the next several days.
In that regard, we offer the following information that must be gathered as soon as possible from your insureds with regard to potential COVID-19 claims.
The personnel files of affected employees;
The names of any and all affected employees;
The date on which employees were provided with personal protective equipment such as masks, latex gloves and/or other devices for regular and sustained use;
Any and all policies and procedures of your insured with regard to daily cleansing, sterilization and/or sanitation of personal protective equipment and/or the premises in general;
Any and all information received from the United States Department of Labor and the Occupational Health and Safety Administration including, but not limited to, the Guidance on Preparing Workplaces for COVID-19;
Any and all transmissions from corporate offices at your insured to their remote locations with regard to recommendations and descriptions promulgated by the United States Department of Labor and the Occupational Health and Safety Administration;
Any and all written or computerized lists showing any periodic inspections of the condition and cleanliness of your insured premises;
A complete list of any and all training programs and/or training materials provided to personnel that were designed to minimize the risks of contracting COVID-19;
A complete list of each and every employee tested for COVID-19 between January 1, 2020 through the present;
A complete list of each and every employee who tested positive for COVID-19 between January 1, 2020 through the present;
A complete list of each and every patient, if applicable, who was tested for COVID-19 between January 1, 2020 through the present;
A complete list of each and every patient, if applicable, who tested positive for COVID-19 between January 1, 2020 through the present;
A complete list of any and all engineering controls implemented at your insured premises between January 1, 2020 through the present designed to prevent COVID-19 transmittal or infection including, but not limited to, whether or not high efficiency air filters were installed or cleansed, whether there was an increase in any ventilation rate and whether any physical barriers were installed in any segment of the insured premises;
The names of any employees who have passed for any reason which may arguably be linked to symptoms associated with COVID-19 from January 1, 2002 through the present;
The date on which your insured premises was first “locked down” as a result of any rule, regulation or Executive Order; and
The date in which hand sanitation stations were placed in the lobby and common areas of your insured premises.
While this is certainly not an exhaustive list of the information that will be necessary to properly defend a claim, it is a starting point to gauge whether or not your insured had complied with various directives from the United States Department of Labor, the Occupational Health and Safety Administration and the Center for Disease Control with regard to preparing one’s work place for COVID-19.
In anticipated litigation brought by non-employees against one of your insureds, a general cause of action sounding in negligence and in premises liability will undoubtedly be filed. For instance, the plaintiffs will suggest that the following acts were negligent on the part of your insured:
Failure to cleanse and sanitize office and business locations;
Failure to implement and promote social distancing guidelines set forth by the United States and the State of Michigan, or any other state;
Failure to provide individuals with personal protective equipment such as mask, latex gloves and other devices designed to prevent the infection and spread of COVID-19;
Failure to warn customers and employees that various individuals were experiencing symptoms at a specific location and may have been infected by COVID-19 that was active within a certain premises;
Failure to follow recommendations of mandatory safety and health standards promulgated by the United States Department of Labor;
Failure to follow recommendations and descriptions of mandatory safety and health standards promulgated by the Occupational Health and Safety Administration as set out in Guidance on Preparing Work Places for COVID-19;
Failure to follow guidelines promulgated by the Center for Disease Control and Prevention (CDC);
Failure to develop an infectious disease preparation and response plan as recommended by the CDC;
Failure to prepare and implement basic infection prevention measures; and
Failure to conduct periodic inspections of the condition and cleanliness of various business locations to minimize the risk to employees and others from contracting COVID-19, as was recommended by the CDC.
Again, these are only our preliminary thoughts on the types of causes of action and allegations that will be made against one of your insureds.
If you are confronted with any claim involving COVID-19, for instance from a workers’ compensation or general liability perspective, Garan Lucow Miller stands ready and willing to help. Please feel free to call John Gillooly, or any of our capable attorneys, at your convenience.
We will help you navigate through these complicated claims on a very effective and efficient basis.
Sarah Nadeau, Editor of The Garan Report Publication, is a Shareholder in our Detroit Office. Sarah can be reached at 313.446.1530 or snadeau@garanlucow.com