AUSTIN - On Friday, the Texas Supreme Court concluded that the application of the Pandemic Liability Protection Act (PLPA) to a breach-of-contract claim does not violate a retroactivity clause in the Texas Constitution.
On July 20, 2023, the U.S. Court of Appeals for the Fifth Circuit certified a question to the high court concerning whether the act violates the caluse – to which justices answered, “No.”
Luke Hogan, on behalf of a putative class of students, sued Southern Methodist University for refusing to refund tuition and fees after the university switched to remote instruction during the COVID-19 pandemic.
“Hogan, quite understandably, felt he had been robbed of valuable time and experience in the classroom and on the campus at SMU, time and experience for which he paid tuition,” the Supreme Court wrote. “In a word, he felt cheated. But who or what cheated Hogan and his classmates? Was it SMU, which complied with government lockdown orders? Was it the government, which ordered the closures? Was it the virus itself?”
“Article I, section 16’s prohibition on ‘retroactive law[s]’ is not violated by the application of the PLPA to bar Hogan’s breach-of-contract claim against SMU. For these reasons, the answer to the certified question is No.”
Court records show a district court dismissed Hogan’s complaint for failure to state a claim, which the Fifth Circuit reversed in light of ruling that “teaches that Hogan adequately pled a breach-of-contract claim.”
Alternatively, the district court held that the act retroactively bars Hogan’s claim for monetary relief and is not unconstitutionally retroactive under the Texas Constitution, according to the Fifth Circuit.
“That latter ruling raises a determinative-but-unsettled question of state constitutional law, which we CERTIFY to the Texas Supreme Court,” the Fifth Circuit wrote. “Does the application of the Pandemic Liability Protection Act to Hogan’s breach-of-contract claim violate the retroactivity clause in article I, section 16 of the Texas Constitution?”
The Texas Civil Justice League had warned the Texas Supreme Court that if the retroactive provision of the act is struck down, untold thousands of Texans and their businesses could be targeted for litigation.
On Aug. 4, TCL submitted an amicus curiae brief, stating the question certified to the high court “is of incalculable importance to the health care providers, trade and professional associations, and business entities that the League represents.”
TCJL argued that no one at SMU, or anywhere else, could have predicted what happened in 2020, much less have adequately prepared for it.
Supreme Court case No. 23-0565