Trial Lawyers’ COVID-19 Lawsuits Are Definitely Not the Answer

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ATRA President Tiger Joyce writes about the threat of lawsuits related to the COVID-19 pandemic.

This piece first appeared in Real Clear Markets.

If there’s something we’ve learned over these past few tumultuous weeks, it’s that Americans don’t agree on much. Whether it be over a presidential candidate, a coronavirus vaccine, or the security of our elections, the United States is deeply divided. These days, finding common ground is a herculean task. Yet, there is one particular issue that garners vast bipartisan consensus. When it comes to solving the problems caused by the government-mandated COVID-19 shutdowns, Americans agree that lawsuits aren’t the answer. 

To date, trial lawyers have filed nearly 6,200 lawsuits due to the pandemic.  Of these cases, one of the most significant areas of litigation is so-called “business interruption.”  Personal injury lawyers have filed more than 1,350 of these lawsuits against insurers to force them to cover the costs of the COVID-19 shutdowns.  The attorneys driving this litigation believe that they can hold the insurance industry responsible for the economic hardship wrought by the coronavirus pandemic. We now know that this approach isn’t nearly as popular as the trial lawyers would like to believe.

The American Tort Reform Association (ATRA) recently released its findings from a public opinion survey conducted by Echelon Insights. The survey sought to gauge public support for litigation as a response to the pandemic. In sampling more than 1,000 registered American voters, the poll uncovered a broad sentiment—Americans overwhelmingly reject lawsuits as a solution to the COVID-19 pandemic. Incredibly, less than one in ten respondents (9 percent) believe that lawsuits are a better approach to dealing with the challenges created by COVID, as compared to government assistance. 

Americans, it would seem, also recognize the tremendous dangers that widespread BI litigation brings. According to the National Association of Insurance Commissioners (NAIC)—the primary regulators for insurers—if trial lawyers were to succeed in placing insurers on the hook for COVID-related business interruption, the result would be catastrophic. Such an enormous level of financial liability would simply bankrupt insurance companies, leaving an entire industry in ruins, thousands of Americans out of work, and policyholders with no coverage at all. 

It’s no wonder, then, that Americans wholeheartedly disapprove of lawyers encouraging businesses to pursue legal claims. The ATRA/Echelon poll found that only 7 percent of those surveyed believe that lawyers pursuing lawsuit payouts is preferable to businesses receiving government-provided loans and grants. Rightfully, nearly two-thirds of Americans (63 percent) agree that elected officials—not trial lawyers—should aid those harmed by the pandemic. After all, the government ordered the COVID-19 shutdowns; it doesn’t make much sense for the insurance industry to be held liable for those consequences.

Ultimately, though, the survey indicated Americans just don’t trust trial attorneys. Two-thirds of registered voters (66 percent) agree with the notion that trial lawyers’ TV advertisements seek to take advantage of people and are annoying to boot. It’s not surprising that they feel this way given that there’s been an uptick in advertising during the pandemic. To fuel their litigation efforts, these trial attorneys are pouring money into TV ads that encourage aggrieved parties to sue. Many large firms have even taken government-issued Paycheck Protection Program (PPP) loans and used that money to fund additional broadcast advertising. It’s obvious why: if successful in their legal claims against insurers, trial attorneys stand to generate outsized payouts.

Not surprisingly, a solid majority of Americans (62 percent) believe trial lawyers’ use of PPP loans on TV ads is an inappropriate use of those funds. But more than that, the American people recognize that these attorneys do not have our nation’s best interest in mind. In pursuit of profits, they are more than happy to take millions of dollars in taxpayer money and spend them on advertisement campaigns. They are more than willing to bankrupt the insurance industry to get what they want. Clearly, these lawyers are only looking out for themselves—and that’s precisely why on this issue, Americans agree. Litigation is not the answer to the pandemic. 

Tiger Joyce is president of the American Tort Reform Association.

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