Episode 58: Liability Risks From COVID

Announcer:

This is The WealthAbility® Show with Tom Wheelwright, Way More Money, Way Less Taxes.

 

Tom Wheelwright:

Welcome to The WealthAbility® Show, where we’re always discovering how to make way more money and pay way less taxes. Hi, this is Tom Wheelwright, your host, Founder and CEO of WealthAbility®. The COVID crisis presents a brand new liability risk for businesses, and today, you’re going to discover how to protect your customers, vendors, and business from liability claims related to the COVID crisis. It’s not bad enough that we’ve got a crisis going on, we’ve got a health crisis, we’ve got protesters in the streets, but on top of that, we have lawyers lining up to come after whatever’s left, and so with that in mind, how do we protect ourselves? How do we protect ourselves’ businesses because there’s this big liability looming out there, and so we brought an …

 

Tom Wheelwright:

Today, we have a phenomenal guest. His name’s John Balitis. He is a partner with Jennings Strouss, which is one of the big, big, big law firms here in Arizona. He’s the Chairman of the Labor & Employment, and you’ll have to explain this, John. Of that group, he’s basically in charge of it, okay, is the way I put it. John, welcome to the show, and tell us a little bit about yourself.

 

John Balitis:

Thank you, Tom. Thanks for this opportunity. Everybody, I’ve been practicing here in Arizona for a little over 30 years. Most of my work, the lion’s share of it is in management side, labor and employment work, like Tom said, but on this particular topic, because of the nature of my clients and the clients of the group I chair, we really have been immersed in all things relating to COVID and the pandemic, because the stimulus packages, the Families First Act, the questions we’re going to deal with today, they all impact our clients, and so we feel as though we need to be sort of more multidisciplinary in a situation like this beyond just the employment piece, and so that’s why I think I might be able to help you a little bit today in our discussion.

 

Tom Wheelwright:

No, I appreciate that. As we were getting ready, you were talking about the lawyers lining up, so what’s going on out there? I mean, we’re just starting to … Essential businesses have been open for a long time, like ours, okay, like my accounting firm. Other businesses are just starting to open up.

 

Tom Wheelwright:

Some of them, restaurants and a lot of places at 25%, some of them, it seems like some places in Scottsdale seem to be at 120%, and so the question is, so what’s going on, when … I mean, are the attorneys just sitting there waiting to attack? Are they putting together their claims? What’s going on in the legal environment here?

 

John Balitis:

Well, to give it a little bit of context and to frame it, I want to tell you all about some statistics that the ABA Journal assembled last month, the American Bar Association publication, and the journal identified, as of May 1, 800 lawsuits approximately that had been filed across the country. This is all across the United States relating to COVID in one way or another, 800 lawsuits. At the time, we had here in the United States just over a million confirmed cases across the country. Now, we’re a month later and we’re approaching two million, but it’s interesting, I think to look at the data because we had a million confirmed cases of the virus, but we had less than 1,000 lawsuits. In addition to that, the lawsuits fall into what I would call the collateral category.

 

John Balitis:

Over 200 of them, 200 of the 800 dealt with prison issues, inmates filing lawsuits because they were concerned about contracting the virus in correctional facilities. Then, we had insurance coverage disputes about business interruption, and class actions for reimbursement, college students trying to get tuition and room and board back, people trying to get money back from Ticketmaster for tickets they bought to events, and then a handful of personal injury lawsuits against nursing homes, cruise lines, and things of that nature, but what we haven’t seen yet and what we didn’t see among these 800 lawsuits last month was a lot of garden-variety lawsuits against businesses involving customers, vendors, patients, whatever you have, entering places of business and contracting the virus. We haven’t seen it yet. We haven’t seen it yet. It hasn’t happened yet.

 

John Balitis:

I think there is a good explanation for why it hasn’t happened yet and I think then that will, if we talk about that explanation, it will help inform you about what you can do to avoid becoming a target. That’s what I’d like to do.

 

Tom Wheelwright:

Okay, so I’ll bite. Why haven’t we seen it?

 

John Balitis:

Well, the nature of the lawsuit that you folks are going to experience, if and when they start to emerge in large numbers, is going to be a personal injury lawsuit based on a negligence theory. What I mean by that is it’s no different really than a car accident, or a medical malpractice case, or a slip and fall case. Meaning, in those types of personal injury, negligence lawsuits, the claimant really has to focus and prove two things. They have to prove that you breached the standard of care, meaning that you didn’t act reasonably, and in this case, it would be you were not reasonable in taking steps to mitigate against the virus in your place of business. That’s what the allegation would be. Second, the claimant has to prove that that breach of that duty caused his or her injury, so you’ve got the breach of the standard of care and causation.

 

John Balitis:

I think what’s happened here is the trial attorneys are probably circling the wagons, trying to figure out how they are going to deal with the causation predicament, because think about it. If a person walks into your grocery store and you spilled something on the floor and didn’t mop it up, and they slip on it, it’s easy. Should you have mopped it up? Yes. You breached your standard of care.

 

John Balitis:

Did the liquid cause the injury? Yeah. The person slipped on it, easy, but think about the virus. Person comes into your place of business, customer, vendor, patient, and then later, alleges that he or she contracted the virus in your place of business. Well, think about it. Where were they in the week before they entered your place of business?

 

Tom Wheelwright:

Yeah. How do they prove that one?

 

John Balitis:

How do they prove it? Like what … Could they have been asymptomatic for days, and so this is going to be the issue that becomes the Achilles’ heel in these lawsuits, and I’m not saying that someone isn’t going to figure out a way to address it on a cottage industry basis. Maybe some sort of testing will emerge that will help people pinpoint more accurately, where a person contracts it, but until the trial attorney bar deals with this issue, we may not see a proliferation of lawsuits like this.

 

Tom Wheelwright:

Okay.

 

John Balitis:

Now, I think what’s interesting is, you’ve got though Mitch McConnell in Washington saying, “We have a health-related pandemic, we have an economic crisis, and the third trifecta of this situation is going to be an explosion of litigation.”

 

Tom Wheelwright:

Right.

 

John Balitis:

The Republicans on The Hill are really enthusiastic about passing federal legislation to immunize businesses from liability from this. Democrats, not so much, and that’s why we haven’t … It’s a partisan issue, and that’s why we haven’t seen it coupled with any of the stimulus packages so far. Now, it’s almost becoming too late because like, Tom, you just said, every single state now has reopened to one extent or another. Businesses are open. If there’s going to be legislation passed to provide immunity to you, business owners, when are we going to get to it?

 

John Balitis:

I mean, some state and local governments already have done it. New York has done it, Arizona has done it on a limited basis. Either through executive order or legislation, we’ve immunized first responders, frontline workers, hospitals, healthcare facilities. We’ve given all those people and entities limited immunity from liability in this area, but there’s been no widespread legislation that’s passed and become law anywhere that has immunized businesses on a broader basis. People are talking about the fact, our legislators are talking about the fact that they’re concerned about it, but we have not seen it emerged yet, and I think it’s because of the issue that I’ve described.

 

Tom Wheelwright:

Interesting. Hey, if you like financial education the way I do, you’re going to love Buck Joffrey’s podcast. Buck’s a friend of mine. He’s a client of mine. He’s a former board certified surgeon, and he’s turned into a real estate professional, so he has this podcast that is geared towards high-paid professionals.

 

Tom Wheelwright:

That’s who he’s geared towards. If you’re a high-paid professional, you’re going, “Look, I’d like to do something different with my money than what I’m doing, I’d like to get financially educated, I’d like to take control of my money and my life and my taxes,” I would love to recommend Buck Joffrey’s podcast, which is called Wealth Formula Podcast with Buck Joffrey. I hope you join Buck on this adventure of a lifetime. Now, back to what we were discussing. We follow the stimulus packages very carefully here, and it’s pretty clear that we’re going to get a stimulus package, I think by the end of the month or shortly thereafter.

 

Tom Wheelwright:

This will hopefully be the last one, but it is something that, it’s pretty clear that everybody agrees that something is needed. We know that the House has already passed their version of it, called The HEROES Act, and then we have the Senate, and they’re taking it up, and like you say, I mean, I’ve read that also, that Mitch McConnell is very big on including in this stimulus package protections against, for businesses, but let’s just assume that doesn’t happen because I think that is, that’s like your get out of jail free card. That may happen, it may not happen, but in reality, we want to protect businesses anyway, right? Businesses are concerned, “What do I have to do here?” I mean, I have that question, right? I’ve told basically my staff that they can stay home and work from home as long as they want, whatever they’re comfortable with, but I have staff members who absolutely do not want to stay at home.

 

Tom Wheelwright:

They want to be in the office, and we’ve said okay, so the question is, “What do we have to do to show the standard of care?” I don’t know that we can do anything about the causation as a business owner. It seems to me like where we can really protect ourselves is with a standard of care. What do we have to do from a COVID standpoint to be able to show standard of care there?

 

John Balitis:

Well, I mean, it’s going to be a little bit of a discussion. That sounds probably like a broken record, because I think most of you folks have heard a lot of this over and over and over again already, but in terms of the preventative measures and how to avoid becoming a target, we can talk about it and put a slightly finer point on it, and that’s what I’d like to do.

 

Tom Wheelwright:

Right.

 

John Balitis:

With respect to employees, that’s kind of a different area because perhaps to a large extent, workers’ compensation is going to cover compensation for workers who contract the virus in the workplace, so we can set that group of people aside for the moment, and talk really about customers, patients, vendors, people who are entering your place of business, right? If you think about it, in this particular type of scenario, sort of unlike the car accident scenario, causation and the standard of care are much more closely linked, and this is what I mean by that. If you, in this environment, in the COVID, in the virus environment, the more precautions you take to prove or show that you met the standard of care, the least likely it’s going to be that anyone contracted the virus in your place of business. See what I mean?

 

Tom Wheelwright:

Right.

 

John Balitis:

The two … You actually start linking up these two concepts, and as you improve the objective one, as you work on the objective one, which is the standard of care, you are simultaneously addressing the more ethereal, subjective one, which is causation. What I can tell you is what you’ve been hearing. What all of you should be doing is everything OSHA and the CDC has been telling you to do and actually enhancing and granulating now for weeks. You get on the OSHA website, you get on the CDC website, and you look at every single thing they are recommending that you do, and you do it. More importantly than that, you put together a written plan that describes what you’re doing and how you’re going to do it.

 

John Balitis:

Well, and OSHA is basically saying you’re required to do that anyway if you don’t know that. Every business should be preparing and implementing a written precautionary plan relating to COVID. All plans, it’s not one size fits all because a grocery store is not going to do the same thing as a medical office, so you can’t just like sort of take a template, a cookie cutter plan, and then stamp your name on it and say, “Here’s what I’m going to do it.” It has to be a little more thoughtful and deliberate than that, and outside counsel, your legal counsel can help you prepare these plans, but if you do this and you not only draft it thoughtfully and implement it, but you train your workers to follow it, and maybe you even get them to sign a pledge that they’re going to do that, which a lot of businesses are doing, the pledge, I think that will go a long way to showing that you met your standard of care, and then once you’ve done that, it’ll become even harder for the claimant’s lawyer to try to show that there was causation in your place of business if someone catches a virus.

 

Tom Wheelwright:

In your mind, John, give us the top three things that you got to look. Yeah, we need to do everything OSHA and CDC says. What would be the top three that we need to make sure?

 

John Balitis:

Preparing the written-

 

Tom Wheelwright:

No question we have to do.

 

John Balitis:

Yeah. I think number one is preparing the written plan. Then, I know that is like a pro forma thing, but the problem is though, that if you don’t have it, you’re kind of you’re out of luck from the very beginning of whatever happens, because you can say, “Well, but wait, wait, wait, I’m doing all these things,” but then, someone is going to have to sort of like take your word for it and they’re going to suspect that you’re making the stuff up on the fly. You’ve got to prepare the written plan. Then, in terms of maybe what the couple most important things that the plan needs to incorporate, I think you have to consider screening your workers before they come into the workplace.

 

John Balitis:

You don’t necessarily have to do it on a daily basis, but at least when you start bringing people back, you’re going to want to have them fill out a questionnaire that talks about where they’ve been, what they’ve been doing, what has their health been like. If your workforce is clean, if you’ve done everything that you can to make your workforce clean, that’ll go a long way to showing that you made your place of business clean for your customers, your patients, or your vendors. Then finally, I really would strongly consider … I mean, we’ve done it, Tom. Maybe you’ve done it at your office, but my law firm has contracted with a third-party vendor to come in on a scheduled basis and just clean like crazy.

 

John Balitis:

We’ve also hired a four-hour a day person who will be at the office. I mean, in our main office, we have say 60, 70 lawyers. We have three floors in a building, and all this person is going to do for four hours a day is walk around and wipe and clean commonly touched surfaces. That’s all they’re going to do. I mean, there’s …

 

John Balitis:

You can say the top how many. There’s all sorts of things, masks, everything, but the stuff you’ve been hearing all along, but preparing the plan, getting your workforce clean as much as you can, and really making an effort to keep your physical space clean, I think are going to be really, three really important things that you’re going to want to start off with.

 

Tom Wheelwright:

I’m just curious, are you meeting with clients face-to-face yet?

 

John Balitis:

Not yet. We are reopening. The office never closed because like accounting firms, law firms were deemed essential by our Governor here in Arizona, so we have remained open, but everybody kind of, except for a skeletal crew, everybody got sent home, and so we are returning to the workplace in four equally-sized groups beginning, I think two weeks from now. No one I don’t believe, unless there’s been some really exceptional circumstances, I don’t believe anybody’s been meeting with clients face-to-face so far, but in a few weeks’ time, that probably will start happening again, although, we’ve been utilizing Zoom and Skype and everything else very effectively.

 

Tom Wheelwright:

When you do that, are you going to have your attorneys, paralegals, whoever wear masks?

 

John Balitis:

The mask situation, at least in our office is going to be voluntary. I think a lot of them, I think a lot of employers and businesses are handling it that way because all of you should know, who are listening, if you make masks mandatory in your workforce, there is a set of things, the additional things you then need to do according to OSHA guidelines. If you’re interested in knowing what those are, I can point you in the right direction, but I think a lot of businesses are taking that position, at least professional businesses. When you start getting into retail, restaurants, and grocery stores, they’re making masks mandatory among everybody.

 

Tom Wheelwright:

Right.

 

John Balitis:

Professional offices, I think are going to be a little different.

 

Tom Wheelwright:

Do you think when you have a client coming in, are you going to ask them if they would prefer that you wear a mask?

 

John Balitis:

I think that’s a great idea.

 

Tom Wheelwright:

Yeah, to me because … Here I am. Full disclosure, so my wife and I are both very high-risk for this thing, right? I mean, we’re like we’re in that top 5% that we get this thing, we’re in trouble, so we’re very cautious about this. My wife’s daughter goes into her doctor’s office the other day, and she shares a doctor with her mother, my wife, and nobody in the doctor’s office was wearing a mask.

 

John Balitis:

Yeah.

 

Tom Wheelwright:

None of the nurses, nobody was wearing a mask, and our daughter came home and she walks in the door, she turns to my wife, she says, “You will not go to that doctor,” and so I think that people are very …

 

John Balitis:

Yeah, yeah. Yeah, my-

 

Tom Wheelwright:

For me, I know a lot of people. I mean, this is Arizona, right? We’re the wild West, so you go outside and you don’t see masks all that often, unless you walk into Costco.

 

John Balitis:

Yeah.

Tom Wheelwright:

Costco is about the only place I feel safe anymore, and so you walk in and there are a lot of people not wearing masks, so that’s very challenging for somebody who’s high-risk, right? For other people who aren’t high-risk, they’re going, “That’s an inconvenience, and I’m willing to take the risk,” so I guess one of the things that I certainly think would be a good idea is that if you’re not a grocery store … I agree. I think grocery store, any of those retail establishments that have people coming in all the time, frankly from a business standpoint solely, ignore the legal, ignore the health, just look at a business … Have your people wear masks, because even though you may say the customer may have a choice of not wearing a mask, I will guarantee you that the customer who’s concerned about it, they want you wearing a mask, so this is, I think there’s some business opportunity here, not just legal opportunity.

 

John Balitis:

No, I completely agree with you. My spouse actually works in a medical office, and masks are absolutely mandatory among staff. Like you’re saying, you go to Costco, and if you don’t have one, they hand you one. You can’t go into Costco as far as I know, unless you have mask on. A lot of retail establishments are taking that position, even car dealerships are.

 

John Balitis:

You want to buy a car, you need to wear a mask. I think it would be unfortunately, really, this would be a lot easier if masks have not become such a politically charged subject matter.

 

Tom Wheelwright:

Right.

John Balitis:

It’s really a shame because we’re confusing health and precautionary measures with politics, and they become this flashpoint, and we’d all be a lot safer if politics hadn’t sort of infected the idea or concept of whether people should wear masks, but having said that, I agree with everything you said. I think you’re much better off requiring them or making them mandatory than not. I really do. Really do.

 

Tom Wheelwright:

I appreciate, going through the OSHA and CDC, that’s used for people, and these are great steps for people to take, making sure you have a written plan, screening workers with a questionnaire, cleaning your workplace, making sure you do wipe and clean, and then I would always ask if you have customers come in by appointment, ask them if they would like the person serving them to wear a mask if you’re not making it mandatory in the workplace.

 

John Balitis:

Yeah.

 

Tom Wheelwright:

I think those are all good things. One last thing I wanted to just chat with you, we’ve just got a couple more minutes here, is business interruption insurance claims. That’s got to be a big issue as well going on, and I’m guessing that insurance companies aren’t too excited about all these business interruption claims. Let’s say you’re a business and your business is interrupted, and I think there’s really two types, one, that was interrupted because the government shut them down, and the other was interrupted just because we have a crisis going on. What does a business do if they run into an issue with their insurance company there?

 

John Balitis:

This is now starting to emerge because we have seen some of these lawsuits. They’ve now been filed here in Arizona, and they are emerging in greater numbers across the country. There’s a couple of things to think about when we talk about business interruption and coverage. One is that no two policies are entirely alike, so if you have a question about whether or not you might be able to take advantage of this coverage, you just need to scour your policy, and you probably should have an attorney help you do that. Second, there is this distinction between an exclusion in a policy for say pandemics, which a lot of, oddly enough, coincidentally enough, a lot of policies have, and a situation in which you just mentioned, where a government entity closes you.

 

John Balitis:

I think carriers are largely looking to pandemic exclusions in this environment to deny coverage, but it becomes a lot less clear when the strategy the business takes is, “I’m not really talking about pandemic here, so that exclusion isn’t even on my radar. I’m talking about the fact that my Governor closed my business, and I should be able to take advantage of the coverage.” This is an issue, I think that’s going to probably become one in most all of these lawsuits relating to this. Third, I would just say that if you have a broker that helped you secure your coverage, before you go directly to your carrier, you probably want to have sort of a, especially if this is a broker you’ve got a great relationship with and you’ve used for a long time, many businesses as opposed to people do, I would have a heart-to-heart with the broker and see what the broker thinks about what’s going on. The broker probably knows more about your policy than you do without having even looked at it. That is going to be a very fertile area.

 

John Balitis:

I think we’re going to see a lot of businesses turning to business interruption clauses and trying to take advantage of coverage, and there’s probably going to be a lot of coverage litigation that arises out of it.

 

Tom Wheelwright:

That’s an important thing because so many businesses have been hurt so badly not because there’s a pandemic, but literally because of the response of the government to the pandemic, so I do, I understand what you’re saying.

 

John Balitis:

Exactly.

 

Tom Wheelwright:

Those are two very different things. Want to thank John Balitis for joining us. John, you’ve been absolutely a treasure trove of information. Thank you. If somebody wants to find out more about Jennings Strouss, about what they can do, where would you suggest they go?

 

John Balitis:

I just say punch in Jennings Strouss into Google and hop on our website. Anybody who’s listening, if you’ve got a question for me, you can find my profile on that website and email me, but my email address is JBalitis, first initial, last name, @jsslaw.com.

 

Tom Wheelwright:

Well, thank you very much, and thanks for all the practical side of this, where this is a very practical podcast because we’re talking about … When you’re talking about making more money, a lot of times it’s talking about protecting your money. It sounds to me like one of the, the final thing I’m thinking about here is we’re going to have to set aside some money here to pay for this stuff. This isn’t going to be free, and it’s not necessarily going to be cheap, so we ought to make sure that we’re including that in our forecast, including that in our budget, including that in our accounting because we don’t want to be caught unawares that, “Oh, my heavens, I need to hire …” I mean, like John was saying, “I need somebody four hours a day just to go wipe things down.”

 

Tom Wheelwright:

We’ve all seen that, right? You go into a grocery store, you see somebody wiping things down all the time you’re in the grocery store.

 

John Balitis:

Yeah.

 

Tom Wheelwright:

I think that’s great advice. I think that we, most of all, we need to be concerned about our customers, concerned about those coming in, not just from a legal standpoint, not just from a financial standpoint, but because we care about our customers and we care about our clients. With that, I hope everybody stays safe, and just remember that when you’re protecting your assets, it’s a form of making sure that when you make more money, you keep more money, you’ll always end up paying less taxes, and we’ll see you next time on The WealthAbility® Show. Thanks, everyone.

 

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