The Lawletter Vol 45 No 6

Jim Witt—Senior Attorney, National Legal Research Group

            While the as yet unexplained hoarding of toilet paper may be thought of as the light side of the coronavirus pandemic, on the not-so-light side is the hoarding of medical supplies, notably drugs and medical equipment such as masks and ventilators. The federal government has taken two steps in this regard—first, an Executive Order from the President, and, second, a warning from the Department of Justice.

            Executive Order No. 13910, 85 FR 17001, "Preventing Hoarding of Health and Medical Resources to Respond to the Spread of COVID-19" (Mar. 23, 2020), was announced under the authority of the Constitution and the Defense Production Act of 1950 (the "Act"), as amended (50 U.S.C. §§ 4501 et seq.).

The Lawletter Vol 45 No 6

Jason Holder—Senior Attorney, National Legal Research Group

     With the spread of COVID-19, most jurisdictions have declared a state of emergency and/or issued executive orders curtailing daily life. See, e.g., Cal. Exec. Order N-33-20 (Californians must "stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors"); D.C. Mayor’s Order 2020-054 (District residents must "stay in their residences except to perform essential activities, engage in essential business, provide or obtain government services, or engage in certain authorized recreational activities not involving close contact with other persons"); N.Y. Exec. Order 202.8 (nonessential businesses and nonprofit entities must "reduce the in-person workforce at any work locations by 100%"); Va. Exec. Order 53 (nonessential "brick and mortar retail business[es] . . . may continue to operate but must limit all in-person shopping to no more than 10 patrons per establishment"). State and federal courts have also been forced to alter procedures, extend deadlines, or even limit court access. An updated list of orders, see https://web.csg.org/covid19/executive-orders/. Court closures and restrictions can be found at https://www.law360.com/articles/1252836.

The Lawletter Vol 45 No 5

Trish Sifka, Senior Attorney, National Legal Research Group

     On December 20, 2019, President Trump signed the National Defense Authorization Act ("NDAA"), SB 1790, 133 Stat 1198, into law. This legislation included a substantial "crack" in the over 70-year-old, court-imposed Feres doctrine, which barred tort claims by military members against the United States for injuries incurred incident to service. Under this new provision in the NDAA, the Department of Defense ("DOD") can administratively receive, review, and settle tort claims filed by military members for personal injury or death caused by the negligent or wrongful act or omission of a DOD health-care provider. However, there are limitations. The injuries must not have been sustained in a combat zone. Claims are limited to medical malpractice claims against military medical personnel at military medical facilities. The provision also sets a two-year statute of limitations except for 2017 injuries that are filed in 2020.   Damages will be based on average federal court damages data for similar injuries. Claimants will be allowed to be represented by an attorney, but there is no judicial review.

The Lawletter Vol 45 No 5

Matt McDavitt, Senior Attorney, National Legal Research Group

     When a person dies without a will, the decedent’s estate is passed via the statutory regime of intestate succession, representing the presumed intention of most people to gift their estate at death to their close heirs.

     A decedent’s intestate heirs encompass one’s closest blood relatives (plus more remote relatives via representation through deceased family members who have died leaving surviving issue), plus any children that were legally adopted by the decedent, or their issue. However, while it is common nowadays for out-of-wedlock children to petition estate administrations in order to prove their relation to a claimed deceased father, the related circumstance also arises where the paternity of a presumptive child of marriage is challenged.

The Lawletter Vol 45 No 5

Amy Gore—Senior Attorney, National Legal Research Group

            During this pandemic, many business owners believed that valuable coverage they had purchased for the businesses would provide a source of some financial security. Prudent business entities purchased business interruption coverage to "indemnify the insured against losses arising from the inability to continue the normal operation and functions of the business, industry, or other commercial establishment insured." Annotation, William H. Danne Jr., Business Interruption Insurance, 37 A.L.R. 5th 41 (1996 & Westlaw 2020). A typical event that has triggered this kind of coverage would be a fire or a hurricane, or some other natural disaster that caused damage to the business premises and closure of the business.

Steve Friedman, Senior Attorney, National Legal Research Group

     In light of the COVID-19 pandemic, many aspects of our lives have been severely altered and restricted in the name of public health. The extent of the states' police power is currently being tested amid the COVID-19 pandemic, and one such legal battleground involves the freedom of religious practice.

     As long ago noted by the Supreme Court, "[t]he right to practice religion freely does not include liberty to expose the community . . . to communicable disease or the latter to ill health or death."  Prince v. Massachusetts, 321 U.S. 158, 166‑67 (1944).  As illustrated below, even the fundamental right to gather in worship can be somewhat restricted by the government (i.e., prohibiting in-person services), but even such restrictions have limits (i.e., cannot ban drive-in services).

Brad Pettit, Senior Attorney, National Legal Research Group

   An unreported mid-level appellate decision by a Pennsylvania Superior Court illustrates that courts take a dim view to a residential landlord's attempt to defend against breach of covenant of quiet enjoyment and constructive conviction claims against him or her by a tenant by asserting that the parties' dispute stemmed from a good-faith mistake or misunderstanding. In Grodin v. Farr, No. 45 WDA 2019, 2020 WL 919200 (Pa. Super. Ct. Feb. 26, 2020) (nonprecedential decision), the court rejected a landlord's claim that he did not breach the covenant of quiet enjoyment or constructively evict his tenants by changing the locks on their unit because he mistakenly assumed that the tenants had received a key to the back door from the previous tenants and could still gain access to the leased premises.

Paul Ferrer, Senior Attorney, National Legal Research Group

     The Virginia Supreme Court's recent decision in Flint Hill School v. McIntosh, No. 181678, 2020 WL 33258 (Va. Jan. 2, 2020), seems to provide some support for the old adage that "bad facts make bad law." In that case, the McIntoshes enrolled their minor child in Flint Hill School, a private school in Fairfax County, Virginia. The McIntoshes signed an enrollment contract in which they agreed to pay "all attorneys' fees and costs" incurred by the school "in any action arising out of or relating to this Enrollment Contract." Significantly, the provision did not require that the school be the prevailing party in order to recover its attorneys' fees. As the Virginia Supreme Court pointed out, the practical effect of such a provision, if applied as written, is essentially to foreclose all litigation on the contract.

Anne Hemenway, Senior Attorney, National Legal Research Group

     The economic fallout from the COVID-19 pandemic and the sudden and worldwide shuttering of large and small businesses may be felt for a long time.  One of the resulting issues is the applicability of a force majeure clause, or common-law impossibility, frustration of purpose, or commercial impracticability excuses for contract performance and obligations. Force majeure clauses come into effect when events occurring beyond the control of the parties prevent performance of contract obligations. Some contracts include specific force majeure events that will excuse performance at this time, such as a pandemic (the World Health Organization declared a pandemic on March 11, 2020) or when governmental or administrative action is taken that disrupts or precludes performance under a contract.

The Lawletter Vol 45 No 3

Brett Turner—Senior Attorney, National Legal Research Group

            The ongoing COVID-19 crisis is affecting the lives of all Americans in many ways. One of those many ways is the exchange of children under custody and visitation orders.

            This is a very uncertain area of the law, with essentially no court decisions yet available, but several basic points can be noted. First, the mere existence of the crisis, if neither the children nor any parent has actually been exposed to COVID-19, is probably not alone a sufficient basis for noncompliance with any custody or visitation order. Indeed, emergency orders issued by the governor in at least three states—Illinois, Indiana, and Ohio—expressly list travel required by a custody or visitation order as essential for purposes of travel restrictions. These provisions would seem to suggest a policy that mere fear of COVID-19, without any specific evidence of a risk of exposure to the virus, is not alone a sufficient basis to modify an order or excuse noncompliance.