Yeah you’d think if someone was going to pimp their own blog they’d go to the trouble of including an excerpt that allowed the reader to follow what’s going on.
The COVID Can Go To Suit, Or Can It?
By: Frank J. Morelli, Esq. Contributor
The one thing you will find that is bipartisan is lawyer bashing. The reason is that lawyers work on both sides of the aisle. They defend rights. They attack rights. They make money ether way, and that is what everyone hates. They make money if they win or if they lose. But what most people don’t seem to comprehend is that so-called frivolous lawsuits are not filed by competent attorneys.
No, there are checks and balances already in place in the federal code and all state codes. The short story is that the looser is liable for damages, attorney’s fees, and costs in most cases that involve insurance, contracts, and those based on statutory rights. Yet there are pundits and politicians and even conservative websites that continue to warn, the COVID will make attorney’s rich and there will be millions of lawsuits against employers, restaurants, drug manufacturers. You name it. They can all go to suit.
A frivolous lawsuit is one that lacks any legal basis and is intended to harass, delay, or embarrass the opposition. True, courts are hesitant to find that the suit is frivolous because they do not want to discourage anyone from filing a lawsuit in a meritorious case. Note that the Federal Rules of Civil Procedure provides that the attorney must certify that the complaint
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a non frivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
The rule is a double edged sword. It apply to both parties. So let’s ignore the claims that attorneys are going to file lawsuits against restaurants claiming that a customer was infected with COVID while eating in the restaurant. Given that the COVID is invisible and ubiquitous, no competent attorney will take the case. There must be a nexus between the dinner stay and the infection. Not even Doctor Fauci could make that connection.
What about employers being sued by their employees? Yes it’s possible but the bar is very high. Generally an employee that is entitled to workers’ compensation benefits cannot sue the employer. In the event that the employer is reckless and as a result the employee is injured the employer may be liable in a court of law. Even if the employee is entitled to workers’ compensation benefits it will be an uphill battle to prove that the infection arose out of and in the course of employment. Once again the fact that the COVID is seemingly everywhere, the state of medical expertise is such that no doctor could possibly opine within a reasonable degree of medical probability that he knows the instance the COVID infected the employee. This is also true for anyone claiming to have been infected.
Now since there is no need for legislation, we continue to hear, read and see people calling for the government to prevent such lawsuits. At least one politician is calling for legislation similar to what he referred to as the SAFETY Act. To begin with that legislation has noting to do with negligence or workers’ compensation. It was passed to deal with instrumentalities that were designed to combat terrorism. And COVID, whatever it is it is something vastly different. The Safety Act provides manufacturers and services with some protection against lawsuits if and when the Department of Homeland Security issues a “certification” in which case damages are caped to the amount of insurance required. In other words the Safety Act has nothing to do with preventing lawsuits, it merely caps damages, much in the same way that damages are capped for negligence caused by hospitals.
We still have what’s left of our constitution and so we still have a right to seek a remedy in court. At least for the time being. And that’s the Bad News Journal’s position.
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