In our April Newsletter, Tyson & Mendes reported a California federal court dismissed a lawsuit filed by the wife of a construction worker. Plaintiff claimed her husband contracted COVID-19 at work and brought the virus home infecting her as well.ⁱ Following the dismissal, the district court judge gave plaintiff an opportunity to amend her complaint. At a hearing on May 7, 2021, the court upheld the dismissal without further leave to amend. As of this date, it is unknown whether plaintiff will appeal.

1. Background

Plaintiff Corby Kuciemba sued her husband’s employer Victory Woodworks, Inc. (“Victory”), claiming she contracted COVID-19 from her husband, Robert Kuciemba, who contracted the virus at work. The complaint alleged Victory knew or should have known its employees at a construction site in Mountain View, California had been potentially exposed to the virus but did not require quarantine in violation of local health orders. The Complaint alleged Robert Kuciemba was forced to work with at least one worker who had been exposed. Robert and Corby Kuciemba tested positive for the virus on July 16, 2020, and were hospitalized for several weeks of treatment. Robert Kuciemba filed a workers’ compensation claim against his employer and was granted benefits.

After a lengthy hearing, the court agreed with Victory, finding Corby Kuciemba’s claim was barred by operation of the workers’ compensation exclusive remedy statute. Even assuming the exclusive remedy did not apply, Corby Kuciemba faced a significant hurdle trying to prove causation, i.e., her husband was infected at work and she in turn was infected by her husband. The impact of the court’s ruling left Corby Kuciemba without remedy since she did not independently qualify for workers’ compensation benefits and if the court’s dismissal stood, did not have standing to bring a civil suit against her husband’s employer.

2. Amended Complaint

Corby Kuciemba amended her complaint, adding language to make the case more analogous to a case involving asbestos fibers being brought home. The amended complaint alleged Robert Kuciembra somehow, either on his clothes or his body, brought the virus home via a “fomite” (a tangible vehicle) and Corby Kuciembra contracted the virus from contact with the fomite, or as defense counsel referred to it, “infection by fabric.”ⁱⁱ

3. Analysis

The court stated it spent a considerable amount of time considering the issue and relevant case law to determine how the law differentiates between claims derivative of a worker’s industrial injury, and therefore barred by workers’ compensation exclusivity, and those claims which are separate and independent from the worker’s injury and not barred.ⁱⁱⁱ

Examples of claims which the California Supreme court has unequivocally held are purely derivative are loss of consortium, wrongful death, and bystander emotional distress.^iv The cases in which the courts are more divided on the issue typically involve an injury to a fetus, with some courts finding an injury to a fetus due to inhaling a toxic substance or suffering a fall at work, to be separate and therefore not barred.^v In other words, if a baby was injured not because of the mother, but because of a situation which happened to involve both the mother and the baby simultaneously, the claim would not be barred.^vi

With respect to the present claim, the court made it clear it found Robert Kuciemba’s COVID-19 infection to be an industrial injury and Corby Kuciemba’s claim is derivative or factually dependent on the husband being infected.^vii The court reasoned what plaintiff is pleading with its “fomite” theory is a domino theory, in contrast to the fetus cases where the injury to the baby is simultaneous with the injury to the mother.^viii Accordingly, because Corby Kuciemba’s claim is derivative of Robert Kuciemba’s industrial exposure to COVID-19, Corby Kuciemba’s claim is barred by the exclusive remedy doctrine.

Interestingly, using the same analysis, the court went one step further and made a separate finding. Even if Corby Kuciemba’s claim was not barred by workers’ compensation exclusivity, it would be barred because plaintiff’s domino theory is too attenuated for the court to find the employer owed a legal duty to prevent COVID-19 from spreading to members of an injured worker’s household.^ix The court reasoned, unlike asbestos which could be contained and effects a discrete population, public policy could not support finding a legal duty in the case of COVID-19, which is ubiquitous.^x The court also cited the potential lack of third-party insurance coverage for COVID-19 claims as a public policy reason for making a finding of no duty.^xi

4. Takeaway

The court’s most recent ruling is even better for the defense than the original ruling. The original decision was limited to finding Corby Kuciemba’s claim was barred by the exclusive remedy doctrine because it was derivative of her husband’s industrial COVID-19 infection. In the recent ruling, the court not only upheld its earlier decision in this regard but took it to the next level by finding even if the claim was not barred by the exclusive remedy doctrine, it would be barred because public policy cannot support extending an employer’s legal duty to provide a safe workplace to include prevention of infectious disease from spreading to a worker’s household. Claims examiners and defense attorneys should ensure that a dispositive motion to a similar claim includes both the exclusivity and duty arguments.

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