HB 1106
Department of Legislative Services
Maryland General Assembly
2021 Session
FISCAL AND POLICY NOTE
First Reader
House Bill 1106 (Delegate Wivell)
Judiciary
Civil Actions – Immunity From Liability – COVID–19 Exposure
This bill establishes that an owner, a lessee, or a tenant of a premises is not civilly liable
for any act or omission resulting in injury or death relating to exposure or alleged exposure
to COVID-19 on the premises if the owner, lessee, tenant, or their agents acted in good
faith to follow and enforce on the premises all federal, State, and local health guidelines
applicable at the time of the exposure or alleged exposure. The bill takes effect
October 1, 2021, but applies retroactively to affect claims arising on or after the Governor
declared a state of emergency and catastrophic health emergency related to the novel
coronavirus and COVID-19 on March 5, 2020.
Fiscal Summary
State Effect: Potential decrease in special fund expenditures and general fund
expenditures due to reduced litigation and payment of claims under the bill. Revenues are
not affected.
Local Effect: Potential reduction in local expenditures for litigation and payment of claims
under the bill. Revenues are not affected.
Small Business Effect: Potential meaningful.
Analysis
Current Law: No statute specifically addresses immunity from civil liability for a claim
related to exposure to COVID-19. However, statute does address the liability of health care
providers during a catastrophic health emergency, as well as the general liability of the
State, local governments, and county boards of education.
Immunity During a Catastrophic Health Emergency
Under § 14-3A-06 of the Public Safety Article, a health care provider is immune from civil
or criminal liability if the health care provider acts in good faith and under a catastrophic
health emergency proclamation issued by the Governor. A “catastrophic health
emergency” is a situation in which extensive loss of life or serious disability is threatened
imminently because of exposure to a deadly agent. A “deadly agent” includes, among other
things, a viral agent or biological agent capable of causing extensive loss of life or serious
disability. A “health care provider” is a health care facility, a health care practitioner, and
an individual licensed or certified as an emergency medical services provider, as specified.
Maryland Tort Claims Act
In general, the State is immune from tort liability for the acts of its employees and cannot
be sued in tort without its consent. Under the Maryland Tort Claims Act (MTCA), the State
statutorily waives its own common law (sovereign) immunity on a limited basis. MTCA
applies to tortious acts or omissions, including State constitutional torts, by “State
personnel” performed in the course of their official duties, so long as the acts or omissions
are made without malice or gross negligence. Under MTCA, the State essentially “waives
sovereign or governmental immunity and substitutes the liability of the State for the
liability of the State employee committing the tort.” Lee v. Cline, 384 Md. 245, 262 (2004).
However, MTCA limits State liability to $400,000 to a single claimant for injuries arising
from a single incident. (Chapter 132 of 2015 increased the liability limit under MTCA from
$200,000 to $400,000 for causes of action arising on or after October 1, 2015.)
MTCA covers a multitude of personnel, including some local officials and nonprofit
organizations. In actions involving malice or gross negligence or actions outside of the
scope of the public duties of the State employee, the State employee is not shielded by the
State’s color of authority or sovereign immunity and may be held personally liable.
Local Government Tort Claims Act
The Local Government Tort Claims Act (LGTCA) defines local government to include
counties, municipal corporations, Baltimore City, and various agencies and authorities of
local governments such as community colleges, county public libraries, special taxing
districts, nonprofit community service corporations, sanitary districts, housing authorities,
and commercial district management authorities. Pursuant to Chapter 131 of 2015, for
causes of action arising on or after October 1, 2015, LGTCA limits the liability of a local
government to $400,000 per individual claim and $800,000 per total claims that arise from
the same occurrence for damages from tortious acts or omissions (including intentional and
constitutional torts). It further establishes that the local government is liable for the tortious
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acts or omissions of its employees acting within the scope of employment. Thus, LGTCA
prevents local governments from asserting a common law claim of governmental immunity
from liability for such acts or omissions of its employees.
County Boards of Education
County boards of education are not covered under LGTCA. However, a county board of
education may raise the defense of sovereign immunity to any amount claimed above the
limit of its insurance policy or, if self-insured or a member of an insurance pool, above
$400,000. A county board of education may not raise the defense of sovereign immunity
to any claim of $400,000 or less. A county board employee acting within the scope of
employment, without malice and gross negligence, is not personally liable for damages
resulting from a tortious act or omission for which a limitation of liability is provided for
the county board, including damages that exceed the limitation on the county board’s
liability.
State Expenditures: Special fund expenditures for the State Insurance Trust Fund (SITF)
decrease to the extent the bill reduces payment of COVID-19 claims by the State and deters
the filing of claims against the State. General fund expenditures for affected State agencies
decrease if agencies are able to avoid higher SITF assessments under the bill.
The magnitude of the effect of the bill’s provisions on State finances is difficult to
determine given (1) how recently the COVID-19 pandemic commenced and its ongoing
status; (2) the lack of information regarding the number of COVID-19 claims filed; (3) the
lack of information on the number of potential COVID-19 claims, the nature of those
claims, and the strength of those claims; and (4) the extent to which existing legal defenses,
remedies, and doctrines would allow the State to prevail on a COVID-19 claim absent the
bill.
However, to the extent the bill deters the filing of claims and allows the State to prevail on
a COVID-19 claim, special fund expenditures decrease for SITF, and general fund
expenditures decrease for State agencies that would otherwise be subject to higher SITF
assessments. Given the general three-year statute of limitations applicable to civil lawsuits,
the majority of the bill’s effect will likely be experienced in the near future. Furthermore,
MTCA contains specific notice and procedural requirements. A claimant is prohibited from
instituting an action under MTCA unless (1) the claimant submits a written claim to the
State Treasurer or the Treasurer’s designee within one year after the injury to person or
property that is the basis of the claim; (2) the State Treasurer/designee denies the claim
finally; and (3) the action is filed within three years after the cause of action arises.
Claims under MTCA are paid out of SITF, which is administered by the Treasurer’s Office.
Agencies pay premiums to SITF that are comprised of an assessment for each employee
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covered and SITF payments for torts committed by the agency’s employees. The portion
of the assessment attributable to losses is allocated over five years. An agency’s loss
history, consisting of settlements and judgments incurred since the last budget cycle,
comprises part of the agency’s annual premium. That amount is electronically transferred
to SITF from the appropriations in an agency’s budget.
The bill is not anticipated to materially impact the finances or operations of the Judiciary,
as discussed in further detail below.
Local Expenditures: For reasons similar to the ones stated above, local expenditures
decrease to the extent the bill reduces litigation and payment of COVID-19 claims and
prevents increases in insurance obligations for local governments and boards of education.
Assuming that COVID-19 lawsuits are most likely to be filed in the circuit courts, the bill
may affect circuit court operations if it (1) shortens the course of litigation of COVID-19
claims or (2) deters COVID-19 cases from being filed. However, any such operational
impact is not anticipated to materially affect circuit court finances.
Small Business Effect: The bill has a meaningful effect on small businesses that are able
to avoid litigation, liability, and potential increased costs of insurance coverage as a result
of the bill’s provisions.
Additional Comments: On March 5, 2020, Governor Lawrence J. Hogan, Jr., declared a
state of emergency and catastrophic health emergency in an effort to control and prevent
the spread of COVID-19. The state of emergency was most recently renewed on
February 19, 2021.
Additional Information
Prior Introductions: None.
Designated Cross File: None.
Information Source(s): Maryland Environmental Service; Harford and Montgomery
counties; Maryland-National Capital Park and Planning Commission; Maryland Municipal
League; Maryland State Treasurer’s Office; Judiciary (Administrative Office of the
Courts); University System of Maryland; Morgan State University; St. Mary’s College of
Maryland; Department of Budget and Management; Department of General Services;
Department of Housing and Community Development; Department of Juvenile Services;
Department of Natural Resources; Maryland Department of Transportation; Department of
Legislative Services
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Fiscal Note History: First Reader - March 1, 2021
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Analysis by: Amy A. Devadas Direct Inquiries to:
(410) 946-5510
(301) 970-5510
HB 1106/ Page 5


Statutes affected:
Text - First - Civil Actions – Immunity From Liability – COVID–19 Exposure: 5-644 []