Most of Arkansas' Senate Republicans signed a letter to Gov. Asa Hutchinson asking for an executive order and a special legislative session to provide some form of liability protection for business owners and health care professionals during the coronavirus pandemic, Senate Republican leader Bart Hester said Tuesday.
Hester said 23 of the 26 Republican senators signed the letter from Senate President Pro Tempore Jim Hendren, R-Sulphur Springs, and him to the governor.
The remaining three senators -- Trent Garner of El Dorado, Jimmy Hickey of Texarkana and Bill Sample of Hot Springs -- said they didn't sign the letter in part because they want to see proposed legislation first.
The letter asked Hutchinson, also a Republican, to issue an executive order "extending immunity with regard to claims involving contraction of COVID-19 to healthcare providers, businesses and their workers providing critical services, goods, and facilities for an appropriate amount of time."
The special session would be held to adopt legislation providing "appropriate immunity with regard to claims involving contraction of COVID-19 to businesses and healthcare workers," the letter said.
"As businesses are either re-opening or continuing to adjust to the new normal of living with COVID-19 by providing a completely different approach to serving customers, patients and clients, it is clear to us that we need some form of liability protection for business owners and healthcare professionals to protect against an onslaught of litigation," according to the letter.
Hutchinson spokeswoman Katie Beck said Tuesday afternoon that the governor hadn't had a chance to review the letter.
Hendren, whose uncle is the governor, said Tuesday, "We are not talking about broad-based tort reform," but specific legislation to protect businesses, including restaurants and gyms, that were closed during the pandemic and are allowed to reopen under state guidelines.
He said he expects draft legislation to be available for review within the next two weeks and a special session could be called by the governor to be held in two to four weeks, in June.
"I'm looking at what Utah has done because they have passed some pretty solid legislation," Hendren said.
On May 4, Utah Gov. Gary Herbert signed legislation that offers restaurants, gyms and malls immunity from litigation filed by people exposed to the coronavirus on their property, in most cases, according to The Salt Lake Tribune.
The bill's sponsor, Sen. Kirk Cullimore, described the measure as a way to help kick-start the economy by easing fears of business owners that they would face a "frivolous" negligence lawsuit from their patrons or their employees, the Tribune reported.
But critics saw the legislation as a "get-out-of-liability-free card" that panders to special interests, hurts the most vulnerable and could disincentivize property owners and businesses from taking proper precautions.
Arkansas Senate Democratic leader Keith Ingram of West Memphis said he isn't aware of a tremendous amount of litigation to require the legislation sought by the Senate Republicans.
He also said he doesn't believe this matter is an emergency that requires a special session at this time.
Ingram said he worries the legislation would protect egregious mistakes by employers and "leave the worker with nowhere to turn."
He said such legislation needs to be fair to both corporations and workers, but it appears to be promoted by business interests that also pushed to reduce from 26 weeks to 16 weeks the period for which Arkansans are eligible for unemployment insurance.
Asked whether there is a need for a special session, House Speaker Matthew Shepherd, R-El Dorado, said, "I would need to look at the bill and compare it to what's in place."
Shepherd said he reviewed a few draft bills, but he wants to look at the proposal developed by Senate leaders and visit with his House colleagues before making any conclusions.
If the governor calls a special session, Garner said he would like for it to consider measures to help restart Arkansas' economy and aid people who are suffering; promote telehealth; and govern the Department of Health's directives.
In a letter to the governor dated May 5, the Arkansas State Chamber of Commerce, Associated Industries of Arkansas and more than 50 other business organizations said they were "extremely grateful" for Hutchinson recognizing the need to protect from civil liability certain health care and emergency providers under the governor's Executive Order 20-18.
"However, greater protections are needed," according to the letter signed by groups such as the Arkansas Farm Bureau, Arkansas Health Care Association, the Poultry Federation, Arkansas Trucking Association and Arkansas Hospitality Association.
"To encourage and support critical efforts, the state needs to provide assurances of immunity to all industry sectors providing critical services, goods and facilities," the groups and chambers of commerce said in their letter to the governor.
They asked Hutchinson to either issue an executive order extending immunity provisions to all private entities and their workers providing critical services, goods and facilities during the covid-19 state of emergency, or to advance and support legislation in a special session "to address any gaps in this immunity expansion not addressable by executive order," or take both actions.
"Arkansas businesses are in survival mode, yet they have stepped up in amazing and heroic ways to respond to the crisis," these groups said in their letter. "Those efforts should not lead to an onslaught of class actions and private rights of actions seeking to capitalize on this crisis. The state cannot sustain such further damage."
Stephanie Malone, chief executive officer for the Arkansas Trial Lawyers Association, said Tuesday that the association's members are small businesses across the state and they appreciate the Legislature's concerns.
"Arkansas attorneys are often the first stop for families and individuals seeking help when they face a crisis," she said in a written statement.
"The Arkansas constitution strongly safeguards our citizens when in crisis and needing access to the courts," said Malone, who is a former Republican state representative from Fort Smith.
"We know that our constitutional rights are sacred and must be preserved with all vigilance. We look forward to seeing any proposed legislation and will make ourselves available to members of the General Assembly and the governor to help Arkansas in this unprecedented situation," she said.
In 2003, the Legislature passed Act 649, which enacted a $1 million limit on punitive damages and set stricter rules of evidence in malpractice cases. The Supreme Court rolled back portions of the law in 2007 and 2009 before striking down the damage caps as unconstitutional in a 2011 ruling.
Since the high court struck down the law's damage caps in 2011, lawmakers and interest groups have been unsuccessful in effortsto place on election ballots proposed constitutional amendments limiting lawsuit damages.
Before the November general election in 2018, the Arkansas Supreme Court blocked efforts to let voters cap lawsuit damages and attorney's fees and ruled that a proposed constitutional amendment on the ballot fell short of constitutional muster. In its 2017 regular session, the Legislature referred the proposal to voters.
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The majority of the court held that various parts of the proposed amendment, which combined caps on attorney's fees and lawsuit damages with a broad revision of the courts' ruling-making authority, essentially had little to do with one another and were unconstitutionally rolled into one amendment.
A Section on 05/20/2020