COVID-19 Anticipated Claims and Suits
In light of the rapidly changing corporate and governmental responses to COVID-19, we write to update our clients, colleagues, and friends about our Firm’s response to this unprecedented situation and our assessment of cutting edge legal issues arising out of the current crisis that are of interest to our Firm’s practice groups.
All four of our Texas offices remain open with some of our lawyers and staff in each office working remotely and some working in the office each day. We are giving extreme flexibility to those employees with childcare issues and medical concerns, and we will make decisions concerning any more expansive remote work requirements as circumstances warrant.
As a result of Hurricanes Ike and Harvey, we made commitments to invest in multiple hardware and software upgrades to enable our entire Firm family to work remotely in response to any situation. So, we will remain fully operational no matter what the circumstances bring. The health and safety of our employees remain our highest priority, and our modest size gives us more flexibility than many of our counterparts. So far, no one in our Firm family has any C-19 health issues, and we are collectively working hard to ensure we keep our employees as safe as possible.
Over the past week, the state and federal courts in which we practice across Texas and nine other states have cancelled all jury trials and restricted hearings to telephone conferences regarding emergency matters. Depositions and mediations were impacted last week with corporate travel restrictions imposed across the country on our clients. The closure of courts and client offices nationwide resulted in depositions, mediations, and hearings coming to a virtual standstill almost overnight. In Texas, the federal Bankruptcy Courts remain open and active. In Houston, the federal District Courts are completing two large civil jury trials, but all other jury trials have been passed and most hearings have been reset. Nationally, most other state and federal courts have done the same thing with their civil trial and hearing dockets. With national health experts predicting that the domestic medical peak will not hit for another forty-five days, these circumstances are expected to continue throughout April.
Although every court is different, we anticipate at this time that May and June trial settings will remain, and the cancelled March and April trial settings will get rescheduled throughout 2020 based upon each court’s availability. Lighter summer trial dockets because of vacation blocks might result in some short-term rescheduling, but most trials will likely be reset for the fall or later.
Industry Specific Issues
COVID-19 is expected to have significant impacts on MDJW’s Employment and Insurance Coverage/Bad Faith Litigation practice groups and modest impacts on our Tort and Commercial Trial groups. The corresponding downturn in the U.S. economy, particularly in the oil industry, is also likely to independently result in an increase in claims and suits involving our Tort and Commercial Litigation groups. We have identified several specific areas within each practice group where we have already been providing insight to our clients or which our practice group leaders think are likely to result in claims and suits in the next few months.
Our Employment group has already received inquiries from clients concerning multiple COVID-19 employment issues. We anticipate seeing more significant issues in the weeks and months to come including:
· Implications of the new Emergency Family and Medical Leave Act (Emergency FMLA) and the Emergency Paid Sick Leave Act (PSLA).
· Paid/Unpaid Leave for employees working remotely including PTO issues;
· Mandatory C-19 testing of temperatures or for the virus itself;
· Remote work issues including overtime and logistical concerns;
· ADA/Family Medical Leave Act issues for protracted health concerns;
· Termination and alleged discrimination issues;
· Implications of the Family First Coronavirus Response Act;
· Emergency Paid Sick Leave regarding employee health concerns;
· Group Health Plan coverage inquiries;
· High Deductible Health Plan concerns;
· Dependent Care Flexible Spending Account options;
· Unemployment Insurance; and
· OSHA Coronavirus Reporting Requirements;
For more information or to raise any specific questions about these issues, please contact Jim Cleary or Jack Wisdom in our Employment Group.
With Monday’s filing of the first coronavirus coverage suit seeking business interruption coverage by a restaurant in New Orleans, COVID-19 might involve an unprecedented number of claims and coverage suits from a wide variety of business sectors. The lawyers in our Coverage and Bad Faith Litigation group anticipate the following issues to result in an extraordinary number of claims and suits arising out of C-19:
For more information or to raise any questions about any of these issues, please contact Chris Martin or David Disiere in our Insurance Coverage & Bad Faith Litigation Group.
Regardless of the number of people ultimately infected, we anticipate a large number of personal injury lawsuits by those infected against the individuals and businesses who they believe exposed them. In Houston, for example, multiple exposures arose out of the Houston Livestock Show and Rodeo, and suits against the Rodeo or its vendors, as well as suits against those individuals acting as carriers of the virus, are highly likely to be filed. Commercial and homeowner’s liability policies will be called upon to provide defense and indemnity benefits.
Extensive personal injury litigation is also expected against airlines, cruise ships, hotels, and other entertainment venues for allegedly facilitating the spread of the virus. These tort suits against commercial entities, as well as suits against numerous individuals for “failing to quarantine,” will likely become the new vogue tort claim for 2020 and beyond.
For more information or to raise any specific questions about these issues, please contact Mark Dyer, Andrew Schulz, or Shane Osborn in our Tort Litigation Group.
Mass closures, mass cancellations, and profitability fears are causing companies to breach contracts on a daily basis at unparalleled levels. As companies decide not to pursue certain business ventures, their contract partners will inevitably sue for enforcement causing the breaching party to raise force majeure defenses due to alleged impossibility. While these circumstances will differ based upon the individual issues for the parties, the force majeure issues based upon responses to C-19 will become one of the most frequently litigated commercial litigation issues for the foreseeable future.
For more information or to raise any specific questions about any of these issues, please contact Dale Jefferson in our Commercial Litigation Group.
What the future may bring
Because of our cutting-edge involvement in the substantive areas in which we specialize, we will continue to provide updates to our clients and friends regarding the trends we observe; and expectations we have concerning COVID-19 claims and related suits across the country. To contact any of our lawyers by phone or email, please go to www.mdjwlaw.com/professionals.html.