Rep. OTT proposes the following Amendment No. 7a to H. 5202 (COUNCIL\AHB\5202C003.BH.AHB20):
Reference is to Printer's Date 6/23/20-S.
Amend the joint resolution, as and if amended, by adding an appropriately numbered SECTION to read:
/SECTION ___. A. This SECTION may be cited as the "South Carolina COVID-19 Liability Safe Harbor Act".
B. The General Assembly hereby finds and declares that providing reasonable protections from the risk and expense of lawsuits related to the Coronavirus pandemic to businesses and health care providers will help encourage them to remain open and reopen and that providing such a safe harbor to businesses and health care providers that operate consistent with applicable public health guidance will help ameliorate the adverse impacts of a closed economy and the resulting unemployment.
C. The following terms shall have the following meanings unless otherwise specified:
( 1)"Covered Entity" means any of the following:
(a) any for profit or not-for-profit business entity, organized in any form whatsoever;
(b) any South Carolina government agency, division, authority, board, commission, instrumentality, political subdivision, municipality, county, or other governmental entity;
(c) any health care facility, as further defined in Chapter 4, Title 44 of the South Carolina Code, and any health care provider, as further defined in Chapter 4, Title 44, of the South Carolina Code.
(2) "Covered Individual" means any director, officer, employee, agent, contractor, third-party worker, or other representative of a Covered Entity.
(3) "Coronavirus disease 2019", commonly abbreviated as "COVID-19", means the virus generally known as "severe acute respiratory syndrome coronavirus 2", any mutation thereof, and any disease or condition caused by "severe acute respiratory syndrome coronavirus 2".
(4) "Public Health Guidance" means any applicable published guidance, directive, order, or rule provided by the United States Center for Disease Control and Prevention, the United States Occupational Safety and Health Administration, South Carolina Occupational Safety and Health Administration, United States Department of Health and Human Services, United States Food and Drug Administration, South Carolina Department of Health and Environmental Control, or other federal or state governmental entity that is applicable to the type of Covered Entity or Covered Individual and to the Coronavirus Claim at issue.
(5) "Coronavirus Claim" means any claim that arises from the Coronavirus, which shall include any cause of action that is related to any actual, alleged, or feared exposure to or contraction of Coronavirus:
(a) from the premises of a Covered Entity;
(b) from the operations, products, or services provided on or off premises of a Covered Entity;
(c) from the acts or omissions of a Covered Individual or Covered Entity, to include the delay or withholding of medical care; and
(d) from efforts to prevent or delay the spread of the coronavirus, to include making precautionary equipment or supplies such as personal protective equipment.
D. (A) Notwithstanding any other provision of law, a Covered Entity or Covered Individual that reasonably adheres to Public Health Guidance applicable at the time the conduct giving rise to a Coronavirus Claim occurs shall be entitled to a safe harbor from liability for any acts or omissions in the course of, or through the performance or provision of, any business or health care service.
(B) This safe harbor will not apply if a claimant proves by clear and convincing evidence that the Covered Entity or Covered Individual caused the injury or damage:
(1) through knowingly reckless, wilful, or intentional misconduct; or
(2) by failing to make any attempt to adhere to Public Health Guidance.
(C) Any failure by a Covered Entity or Covered Individual to adhere to Public Health Guidance shall not constitute negligence per se, nor shall such failure create an inference that the Covered Entity or Covered Individual acted in a knowingly reckless, wilful, intentional, or wanton manner.
E. Nothing in this SECTION shall be construed to limit in any way any defense or right that exists under law, and the liability protection provided by this SECTION is in addition to and cumulative of other defenses and rights that exist under law.
F. The provisions of this SECTION are severable. If any section, subsection, paragraph, subparagraph, item, subitem, sentence, clause, phrase, or word of this SECTION is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of the SECTION, the General Assembly hereby declaring that it would have passed each and every section, subsection, paragraph, subparagraph, item, subitem, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, items, subitems, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective. To the extent any provision of this SECTION conflicts with any other law of this State, then the provisions of this SECTION shall prevail.
G. This SECTION takes effect upon approval by the Governor and its provisions apply to all civil and administrative causes of action that arise between March 13, 2020, and December 31, 2021, or 180 days after the final state of emergency is lifted for COVID-19 in this State, whichever is later, that are based upon facts that occurred during this time period. The provisions of this SECTION continue to apply to all claims that arise during this time period for three years and one day after December 31, 2021, or 180 days after the final state of emergency for COVID-19 is lifted in this State, whichever is later, at which time the provisions of this SECTION are repealed./