Call if Luke 4:8 abridged. Jesus said “Get thee behind me, Satan: for it is written, Thou shalt worship the Lord thy God.” We can now add getting insurance behind you. We have discussed the defiance of the pandemic order against groups over 10 people and how Rodney Howard-Browne, the head pastor at the River at Tampa Bay Church, has refused to comply. His holding of large services led to his arrest recently, but Howard-Browne insisted that he would continue to fight against “government tyranny.” He will now have to do so without insurance and that could prove more a far greater challenge than state sanctions.
On Facebook, Howard-Browne’s lawyer, Mat Staver of the Liberty Counsel, confirmed that his client’s insurance was canceled:
“On Monday, the sheriff held this circus of a press conference and frankly lied to the American people and around the world. Defamed this pastor, put him at risk, painted a target on his back – on the back of the church. Ultimately resulting in death threats, even the cancellation of insurance by the insurance carrier. This has got to stop.”
The loss of insurance could prove determinative despite Gov. Ron DeSantis recently superseding local rules on the closure of churches. DeSantis announced:
“Look, I don’t think that the government has the authority to close a church. I’m certainly not going to do that. At the same time we got with the churches and the synagogues very early, and said what you guys are doing, I think it’s even more important, but can we ask that you do it in a way that is going to be conducive to this overall mission? And I would say almost all of them 100% agree.”
This creates an interesting dynamic. Nothing forces an insurance company to carry a policy when the holder is acting in defiance of common sense or reasonable precautions. Even if DeSantis is right that the government cannot close churches (a highly debatable proposition in a pandemic), the First Amendment restricts government not private action. The market can create barriers to gatherings based on the cost and risks of conduct. There is always insurance available for those acting in highly dangerous or reckless fashion. However, those high-cost, atypical policies are what made Lloyd’s of London rich.
Yet, a good shepherd is an insured shepherd. As stated in Luke 14:28, “For which of you, desiring to build a tower, does not first sit down and count the cost, whether he has enough to complete it?”
In this way, the market rather than the government could result in the closure of defiant churches. It is possible that churches could have every parishioner sign a waiver before entering a service. Those waivers however could be challenged as being influenced by a pastor and assurances that faith alone can protected against the virus.
There is also an interesting twist in Florida on waivers. In Straw v. Aquatic Adventures Management Group, Inc., the federal district court ruled that a company could not enforce a waiver when the injury was due to injuries caused negligence per se. In that case, Chandra Straw signed a waiver with a jet-ski rental company in Panama City and was injured when she was thrown during a “dolphin tour” from the jet ski. She claimed various grounds including the violation of statutory standards of care. One was § 327.54(e)(1) requiring the provision of certain pre-rental or pre-ride safety instructions before leasing, hiring or renting a vessel to any person. The violation of such a state rule constitutes negligence per se and could not be waived. Other waiver exceptions also exist for actions like intentional tort or fraud.
The order by DeSantis may help in reenforcing a waiver as to the holding of services. However, there are also requirements of having sufficient insurance as well as other possible health regulations that could be violated by the services. That would raise question over the validity of waivers if the church decides to go forth and multiply . . . without coverage.