The California Supreme Court has announced that it will address the questions posed by the Court of Appeal in Kuciemba. Specifically, the Court will provide an answer as to whether and how the derivative injury doctrine applies to cases when an employee is exposed to COVID-19 at work, and takes the illness home to other family members.
Original Post Date: May 20, 2022
There is no question COVID-19 altered our existence as humans. Worldwide, the pandemic has touched all aspects of daily life. It is not surprising, then, that we are still seeing the ripple effects in the California Workers’ Compensation system.
In March of 2020, shelter-in-place orders went into effect throughout California. Two months later, the government revised the restrictions and granted essential businesses, including the construction industry, permission to reopen.
Robert Kuciemba was one such “essential worker” who returned to work in the wake of the revised governmental stay at home order for Victory Woodworks, Inc. (“Victory”), a furniture and construction company, located in San Francisco.
Shortly after business was reopened, Mr. Kuciemba contracted COVID-19, and brought the disease home to his family. On July 16, 2020, Mr. Kuciemba’s wife also tested positive for COVID-19. As a high-risk individual due to her age and health, Mrs. Kuciemba developed severe symptoms from the virus, resulting in hospitalization. Mrs. Kuciemba was also placed on a respirator for more than a month.
The Kuciembas subsequently filed a lawsuit in California Superior Court against Victory, alleging “Victory knowingly transferred workers from an infected construction site to Mr. Kuciemba’s jobsite without following the safety procedures required by the Health Order.” (Kuciemba v. Victory Woodworks, Inc., 2022 U.S. App. LEXIS 10786, 5). They sued Victory for negligence, negligence per se, and negligence – premises liability. Mr. Kuciemba also sued for loss of consortium. The Kuciembas purported as evidence of his contracting the virus at work their own strict compliance with San Francisco’s COVID-19 restrictions, including following all safety precautions and minimizing exposure to other people. They further reported Mr. Kuciemba was the only person in their household that had frequent contact with non-household members through work. The district court held the derivative injury doctrine barred Mrs. Kuciemba’s claims, and that Victory owed no duty to Mrs. Kuciemba. Id. at 6. The case was dismissed by the district court, and the Kuciembas filed an appeal.
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 injuries, and by extension, any third party claim that the court considers collateral to or derivative of an employee’s workplace injury. Id. at 7; (Cal. Lab. Code § 3200 et seq.; see Snyder v. Michael’s Stores, Inc., 945 P.2d 781, 784 (Cal. 1997)).
In securing its favorable ruling, Victory relied on Salin v. Pacific Gas & Electric Co., 185 Cal. Rptr. 899 (Cal. Ct. App. 1982), arguing Mrs. Kuciemba’s claim that she contracted COVID-19 from her husband, who contracted COVID-19 at work, was derivative of her husband’s workplace injury and should therefore be barred by the derivative injury doctrine. Id. By contrast, the Kuciembas argued the California Supreme Court has called the Salin case into question twice, and that it has not been favorably cited by a California court in decades. Id. The Kuciembas also argued the Snyder case limits the derivative injury doctrine to “claims that logically or legally require a plaintiff to show injury to a third party, such as claims for loss of consortium or wrongful death.” Id. at 8.
The allegations as set forth by the Kuciembas are not novel. The California 2nd District Court of Appeal recently decided a similar case in See’s Candies, Inc. v. Superior Court, (288 Cal. Rptr. 3d 66 (Cal. Ct. App. 2021)). Matilde Ek, a See’s Candies employee, contracted COVID-19 and passed the virus on to her husband, who succumbed to the virus. Mrs. Ek alleged that her employer failed to implement adequate safeguards to prevent the spread of COVID-19. See’s Candies filed a demurrer in the case, basically contending there was no avenue of recovery for the plaintiff, as the plaintiff’s husband was not a See’s employee. The court rejected the derivative injury doctrine on the basis that any injury to Mrs. Ek was irrelevant to the claim as Mrs. Ek 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 petition to review the case on the issue of the demurrer, thereby permitting the case to proceed on the merits. The Supreme court has yet to weigh in on whether See’s Candies was negligent, and therefore liable, for the death of the plaintiff’s spouse.
In Kuciemba, the Court discussed the factual similarities with the See’s case. The court in See’s mostly agreed with the Kuciembas’ interpretation of the Snyder case in holding “that the derivative injury rule does not bar claims brought by an employee’s spouse against an employer for injuries arising from a workplace COVID-19 infection.” Kuciemba at 8; see id. at 80-81. The Court further noted that Snyder is factually different from these two recent cases. There is also no controlling precedent that addresses whether Victory owed a duty of care to Mrs. Kuciemba.
California statute dictates that everyone in the state “is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill.” Kuciemba at 8; (Cal. Civ. Code § 1714(a)). California courts have limited the duty to prevent infinite liability, but no court has addressed whether an exception should be made for employers who infect their employees’ household members with COVID-19 through negligence.
The Kuciembas also relied on Kesner v. Superior Ct., 384 P.3d 283, 290 (Cal. 2016) where the California Supreme Court declined to make an exception for employers who negligently allowed employees to bring asbestos fibers home to their families. While the cases are analogous, the Court in Kuciemba deferred to the California Supreme Court.
The Kuciemba Court has asked the California Supreme Court to answer two questions: 1) If an employee contracts COVID-19 at work and brings the virus home to the employee’s spouse, does California’s derivative injury doctrine bar the spouse’s claim against the employer; and 2) Under California law, does an employer owe a duty to its employees’ households to exercise ordinary care in preventing the spread of COVID-19?
We await a decision as to whether the California Supreme Court will grant the petition to review, or whether they will deny the petition to review, as we witnessed in the See’s case. If the California Supreme Court upholds the district court’s ruling, then the derivative injury doctrine applies, and claims such as Mrs. Kuciemba’s will fall within the exclusive jurisdiction of the workers’ compensation system under the exclusive remedy rule. However, if the California Supreme Court disagrees with the district court’s ruling, the Kuciembas’ case will continue in civil court, at least temporarily, as it is highly anticipated Victory would then file an appeal. Obviously, employers throughout California should be watching with interest.