By Martin Hawver
It always comes down to the lawyers, the insurance companies and the unexpected consequences, doesn’t it?
After six days of hearings, the Legislature’s Special Committee on the Kansas Emergency Management Act –which may recommend the 2021 session of the Legislature rewrite large sections of the act under which the governor has wide-ranging power to combat a pandemic such as the COVID-19 outbreak—it became clear that it’s going to be the lawyers and the insurance companies that will be in the middle of the discussion.
Oh, sure, there’s going to be talk about whether the governor can by Executive Order demand that Kansans wear masks when they are awake, or out in public, and whether she can in the future order businesses closed to avoid spread of disease. Lots of “do we really want the governor to be able to do that to our lives” stuff.
But besides the issue of public health and life and death of Kansans there’s another issue brewing – legal liability for the spread of the pandemic. That’s where the big trials, the big judgments and the big legal fees are going to mesmerize lawmakers.
If you are exposed to the pandemic in, say, the neighborhood paint store, come down with COVID-19, and are hospitalized or die, who is responsible? If the paint store has been determined to be an “essential” business, well, then it’s up to the store to make sure that its customers and employees are safe, and don’t expose you to the disease. If they aren’t safe…well…then it’s up to the lawyers to make the case that the business is liable for damages, if there are any, that can be traced believably to a jury that the paint store owner, or his/her insurer, can be liable for damages.
A key provision in the law passed this spring is that if the business was in substantial compliance with public health directives, there’s no liability. They did what they were told with the presumption that they had made their businesses safe. But it will get more complicated when counties don’t apply all the statewide directives – such as masks or crowding – that the governor’s executive orders demand? Then is it state government or local government rules that determine whether the store has met public health requirements? Or, if the county has opted out of some state health requirements, and the store meets local requirements, is there a legal problem that can be prosecuted?
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And look for businesses to have their own issues from the close-down order that has now been largely lifted but caused thousands of layoffs and firings when businesses were declared “non-essential” for months earlier this year and are having trouble getting re-opened.
Is shutting down a business to deter spread of the pandemic essentially taking control of the business? Is that a “seizure” of the business? The taking of property? If government orders your business closed for a couple months, should you have to pay rent? Pay property taxes? If local rules let you have just half the customers at a club, and no sitting at the bar, has the state taken your property or made it useless? Can you make a claim on your business insurance for the damage to your wallet as you would if the restaurant caught fire?
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These are the sorts of issues that lawmakers are going to deal with next session, inundated with testimony and information about the pandemic and the state’s efforts to quell it in a tight-budget year.
The pandemic actually is a pandemic, having an effect on all Kansans, whether you are sick or not.
Syndicated by Hawver News Company LLC of Topeka; Martin Hawver is publisher of Hawver’s Capitol Report—to learn more about this nonpartisan statewide political news service, visit the website at www.hawvernews.com