Investor Column | Anticipating legal issues related to COVID-19
I don’t know about you, but I have clients and friends wondering about COVID-19 legal issues. Sure, most of us know to see attorneys after auto accidents, slips and falls, and bad dog bites. But what if you or a family member has a possible COVID-19 claim?
All this talk of special lawsuit immunity, liability shields, damage caps, and problems suing “city hall” is super intimidating. So, let’s explore COVID-19 damage cases and if you may have compensation coming.
In case you are wondering, employers are rarely found liable for workplace deaths. Still, it’s reasonable to seek compensation from the company failing to provide protective equipment or follow regulations.
“The law limits workers’ ability to sue their employers,” said David L. Goldman, an attorney I interviewed specializing in personal injury cases, with Goldman Babboni Fernandez and Walsh. “They cannot sue for negligence and ask for unlimited damages. Employees, usually, can only file a workers’ compensation claim. The advantage is that they only have to prove that they got COVID while on the job. They don’t have to prove that it was their employer’s fault.”
“For example, suppose several other employees also contracted COVID around the same time. In that case, they will likely prove their case under the rules of workers’ compensation. Unfortunately, one’s damages are greatly restricted and limited to workers’ compensation. So, payments may be significantly reduced in any claim against an employer.
“When it comes to COVID, the cases that are most likely to be successful are nursing home cases where a loved one gets ill or dies of COVID-19 in a nursing home. Nursing homes have a legal duty to maintain a safe environment,” said Goldman. “If a loved one died from COVID in a nursing home, it’s possible that the nursing home did not take the necessary precautions preventing a person from dying from COVID.”
“There is another reason why nursing home cases are easier to prove. Unlike someone out and about, someone living in a nursing home never leaves the nursing home. Often, it isn’t easy to prove exactly how and where someone got COVID. Did they go to restaurants or bars? Were they grocery shopping? Does their job expose them to a greater risk of getting COVID? These issues complicate a lawyer’s ability to prove most cases, except when someone gets COVID in a nursing home.”
There are some things you should do now if you have COVID-19 issues. Start by contacting an attorney early. Find one with professional expertise and experience in proving cases like yours. “Also, any information showing that others got COVID from the same place at about the same time as you is very helpful,” said Goldman.
So how much can you expect to get from a COVID-19 lawsuit? Goldman believes that many factors affect settlements and awards.
“Insurance companies and their attorneys, playing defense, work to reduce compensation,” said Goldman. “They will try showing how pre-existing severe health conditions contributed, for example, to one’s death. “
Beware. Insurance companies, and their lawyers, may allege that a person may have gotten COVID from somewhere else. “They’ll try to show you could have got COVID from someplace other than their client’s restaurant, bar or another establishment,” said Goldman.
“Age can also play a factor. Damages would likely be greater for the death of an 18-year-old with their whole life ahead of them. Compensation is probably less for an 81-year-old.”
Will most COVID-19 cases be on contingency? “Yes,” said Goldman. “Most injury or death cases are handled on a contingency fee basis. I would be skeptical of any law firm that asks their client to pay them upfront on an injury or death case.”
Cases take time, though. Because of the pandemic, most motions and hearings are not being heard in open court. Most occur over the internet via Zoom or similar apps, slowing attorney motions to get listened to.
“More importantly, jury trials for anything other than criminal cases are on hold due to COVID-19,” advised Goldman. So getting your day in court on a COVID case will likely be delayed. There is already a backlog due to the courthouse being closed for the past six months.
“Trials for civil claims for COVID or anything other than criminal cases will likely continue to be on hold until sometime next year in 2021,” said Goldman. “Criminal law cases will go to trial first due to the accused’s constitutional right to a speedy trial, so all other issues have to take a back seat.”
Jim Germer is a Bradenton CPA and financial adviser at 100Third Ave. W., Suite 130. Call (941) 746-5600 or email jim.germer@ceterafs.com. Securities offered through Cetera Financial Specialists LLC (doing insurance business in CA as CFGFS Insurance Agency) member FINRA/SIPC. Advisory services offered through Cetera Investment Advisers LLC. Cetera entities are under separate ownership from any other named entity. For a comprehensive review of your personal situation, always consult with a legal Advisor. Neither Cetera Financial Specialists, nor any of its representatives may give legal advice.