There is no question that 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., a furniture and construction company in San Francisco.
Shortly after the business was 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 individual due to her age and health, Mrs. Kuciemba developed severe symptoms from the virus, resulting in hospitalization. She was also placed on a respirator for more than a month.
The Kuciembas subsequently filed a lawsuit against Victory, alleging the company "knowingly transferred workers from an infected construction site to Mr. Kuciemba’s job site without following the safety procedures required by the health order.” 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 that Mr. Kuciemba was the only person in their household that had frequent contact with non-household members through work. The district court held that the derivative injury doctrine barred Mrs. Kuciemba’s claims and that Victory owed no duty to her. 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.
In securing its favorable ruling, Victory relied on Salin v. Pacific Gas & Electric Co.(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.
By contrast, the Kuciembas argued that 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. The Kuciembas also argued that Snyder v. Michael’s Stores Inc. (1997) 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.”
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 (2021). Matilde Ek, a See’s Candies employee, contracted COVID-19 and passed it on to her husband, who succumbed to the virus. 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 her 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 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 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.”
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.” California courts have limited the duty to prevent infinite liability, but no court has addressed whether an exception should be made for employers that infect their employees’ household members with COVID-19 through negligence.
The Kuciembas also relied on Kesner v. Superior Ct. (2016), where the California Supreme Court declined to make an exception for employers that 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:
We await a decision as to whether the California Supreme Court will grant the petition to review or whether it will deny the petition to review, as we witnessed in the See’s case. If the 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 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 that Victory would then file an appeal.
Obviously, employers throughout California should be watching with interest.
Brigget Barrios is an associate attorney in the Sacramento office of workers' compensation defense firm Laughlin, Falbo, Levy & Moresi LLP.
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