By Barrios Brigget
Thursday, June 9, 2022 | 0
There is no doubt that COVID-19 has altered our existence as human beings. Around the world, the pandemic has affected every aspect of daily life. So it’s no surprise that we’re still seeing ripple effects in California’s workers’ compensation system.
In March 2020, shelter-in-place orders went into effect across California. Two months later, the government revised restrictions and granted essential businesses, including the construction industry, permission to reopen.
Robert Kuciemba was one such “essential worker” who returned to work following the government’s revised stay-at-home order for Victory Woodworks Inc., a furniture and construction company in San Francisco.
Shortly after the business reopened, Kuciemba contracted COVID-19 and brought the disease home to his family. On July 16, 2020, Kuciemba’s wife also tested positive for COVID-19. As a high-risk person due to her age and health, Ms Kuciemba developed severe symptoms of the virus, leading to hospitalization. She was also placed on a ventilator for over a month.
The Kuciembas later filed a lawsuit against Victory, alleging that the company “knowingly transferred workers from an infected construction site to Mr. Kuciemba’s site without following the safety procedures required by the order. sanitary”. They sued Victory for negligence, negligence per se, and liability for negligence on the premises. Mr. Kuciemba also sued for loss of consortium.
The Kuciembas claimed as evidence that he contracted the virus at work their own strict adherence to San Francisco’s COVID-19 restrictions, including following all safety precautions and minimizing exposure to other people. They further reported that Mr. Kuciemba was the only person in their household who had frequent contact with people outside the household in the course of his work. The district court held that the doctrine of derivative harm excluded Ms. Kuciemba’s claims and that Victory had no obligation to her. The case was dismissed by the district court and the Kuciembas appealed.
For reference, the derivative injury doctrine stems from the Workers’ Compensation Act, which provides that workers’ compensation is the exclusive remedy for an employee’s workplace injury and, by extension, any claim of a third party that the court considers incidental to or derived from an accident at work of the employee.
To obtain its favorable decision, Victory relied on Salin v. Pacific Gas & Electric Co. (1982), arguing that Mrs. Kuciemba’s claim that she contracted COVID-19 from her husband, who contracted COVID-19 at work, was derived from her husband. injury at work and should therefore be prohibited by the doctrine of derivative injury.
In contrast, the Kuciembas argued that the California Supreme Court had twice challenged the Salin case and that it had not been favorably cited by a California court in decades. The Kuciembas also argued that Snyder v. Michael’s Stores Inc. (1997) limits the doctrine of derivative harm to “claims that logically or legally require a plaintiff to prove harm to a third party, such as claims for loss of consortium or wrongful death.”
The allegations made by the Kuciembas are not new. The California 2nd District Court of Appeals recently ruled on a similar case in See’s Candies Inc. v. Superior Court (2021). Matilde Ek, an employee of See’s Candies, contracted COVID-19 and passed it on to her husband, who succumbed to the virus. Ek alleged that his employer failed to put in place adequate safeguards to prevent the spread of COVID-19.
See’s Candies filed an objection in the case, essentially saying there was no avenue of recourse for the plaintiff because her husband was not an employee of See. The court rejected the doctrine of derivative injury on the grounds that any injury sustained by Ms. Ek was irrelevant to the claim, as she did not have to become ill herself for Mr. Ek’s injury to occur. .
See’s Candies appealed the decision. The California Supreme Court denied the request to reconsider the case on the objection issue, allowing the case to continue on the merits. The Supreme Court has yet to determine whether See’s Candies was negligent, and therefore liable, for the death of the plaintiff’s wife.
In Kuciemba, the court discussed the factual similarities with the See case. The See’s court essentially agreed with the Kuciembas’ interpretation of the Snyder case in finding “that the derivative injury rule does not preclude claims brought by an employee’s spouse against an employer for injuries resulting from COVID-19 infection in the workplace”.
The court further noted that Snyder is factually different from these two recent cases. Nor is there any determinative precedent that addresses the issue of whether Victory owed a duty of care to Ms. Kuciemba.
California law states that every person in the state “shall be liable, not only for the result of his willful acts, but also for injury to another caused by his lack of ordinary care or skill.” California courts have limited the duty to prevent infinite liability, but no court has determined whether an exception should be made for employers who negligently infect their employees’ household members with COVID-19.
The Kuciembas also relied on Kesner v. Superior Ct. (2016), where the California Supreme Court refused to make an exception for employers who negligently allowed employees to bring asbestos fibers home to their families. Although the cases are similar, the Kuciemba court deferred to the California Supreme Court.
The Kuciemba court asked the California Supreme Court to answer two questions:
- If an employee contracts COVID-19 at work and brings the virus back to their spouse, does California’s derivative injury doctrine prohibit the spouse’s claim against the employer?
- Under California law, does an employer have a duty to the households of its employees to exercise ordinary care to prevent the spread of COVID-19?
We await a decision on whether the California Supreme Court will grant the petition for review or if it will deny the petition for review, as we saw in the See’s case. If the Supreme Court upholds the district court’s decision, the derivative harm doctrine applies and claims such as Ms. Kuciemba’s will fall under the exclusive jurisdiction of the workers’ compensation system under the recourse rule. exclusive.
However, if the Supreme Court disagrees with the district court’s decision, the Kuciembas’ case will continue in civil court, at least temporarily, as it is strongly expected that Victory will then appeal.
Clearly, employers across California should watch with interest.
Brigget Barrios is associate attorney in the Sacramento office of the workers’ compensation defense firm Laughlin, Falbo, Levy & Moresi LLP.