Employer Groups Argue Exclusive Remedy Precludes Negligence Claim for COVID Death

"Gurvey said there are dozens of cases like it with specific facts that do not apply to the general caseload that attorneys handle on a daily basis....If this case represents one exception to the general principle of exclusive jurisdiction, specifically based on contracting a disease or an infection at work that affects others, it has absolutely nothing to do with the grand bargain,” Gurvey said."

 Originally Published on WorkCompCentral on September 3, 2021

Employer Groups Argue Exclusive Remedy Precludes Negligence Claim for COVID Death

A coalition of employers is asking a California appellate court to find that the exclusive remedy of workers’ compensation precludes a lawsuit alleging an employer’s negligence in exposing a worker to the novel coronavirus caused the death of her husband.

 brief filed Tuesday with the 2nd District Court of Appeal in See’s Candies Inc. v. Superior Court of Los Angeles argues that the trial court fundamentally misunderstood the derivative injury rule — the theory that work comp exclusivity applies to all injuries collateral to or derivative of a compensable injury — in such a way that “a large swath of COVID-related claims stemming from workplace conduct would be placed outside the scope of the workers’ compensation system.”

The amicus curiae, or friend of the court, brief filed by groups including the U.S. and California chambers of commerce, California Restaurant Association, National Federation of Independent Business, National Association of Manufacturers and California Workers’ Compensation Institute argues that the 2nd DCA should order the trial court in Los Angeles to sustain a demurrer and dismiss the lawsuit Matilde Ek filed on behalf of her deceased husband, Arturo Ek.

The brief filed Tuesday argues that the complaint attempts to sidestep the so-called “grand bargain” in which workers give up the right to sue employers for workplace injuries and illnesses in exchange for workers’ compensation coverage that applies without regard to fault.

“Plaintiffs’ proposed new exception to workers’ compensation exclusivity would expose all employers, large and small alike, to an assortment of tort and premises claims from third parties whose only connection to the place of employment is they came into contact with an infected employee,” the brief reads. “And it need not stop there: Plaintiffs’ proposed exception would encompass not only the infected employee’s family and friends who contract COVID-19, but also the family and friends of each of those individuals who become infected with the virus, and anyone else who might claim some derivative injury. Such a never-ending chain of derivative injuries and unchecked liability is antithetical to the (Workers’ Compensation Act).”

Matilde Ek claims in her complaint that See’s failed to implement appropriate social distancing in March 2020 and that she was exposed to the new coronavirus at work and ultimately contracted the disease it causes, COVID-19. She convalesced at home with her husband and daughter, who both became sick with COVID-19. In April 2020, her husband died from the disease.

She argues in court filings that while comp would pay benefits to the survivors of a worker who dies from a work-related injury or illness, the system does not offer any benefits to family members when an employee acts as a vector to bring a pathogen, toxin, disease or other condition into the home.

“The reality is that the liberality of benefits that distinguishes the workers’ compensation system is not extended to non-employee household members because the workers’ compensation system is not designed to give benefits to non-employees for their own injuries that are independent from that suffered by the employee,” Ek argues in a March 2021 filing. “And, equally as true, is the fact that the workers’ compensation system is not designed, or intended, to deprive such non-employees of their right to sue the employer for its negligence.”

The March 2021 filing opposing the See’s demurrer — a motion that argues even if all factual allegations are true, they fail to establish a valid cause of action — says the California Supreme Court has already found employers have a duty to exercise reasonable care to prevent the spread of pathogens, conditions, contaminants, toxins to foreseeable third parties.

The Supreme Court in a 2016 decision, Kesner v. Superior Court, found an employer liable for an injury claimed by family members of people exposed to asbestos at work. The high court in a 1997 decision, Snyder v. Michael’s Stores Inc., found injuries sustained by a fetus in utero while the mother was acting in the course of employment were not derivative of her injury.

“The Snyder and Kesner decisions establish that plaintiff’s claims against See’s are not subsumed by the derivative injury rule and are neither covered by the Workers’ Compensation Act nor precluded by its exclusivity provisions,” Ek’s filing reads. “Snyder and Kesner confirm that if an employer’s conduct is negligent, and the employee foreseeably serves as a vector returning home from work, there will be civil liability, but that civil liability will be limited to the employee’s household members.”

Los Angeles County Superior Court Judge Daniel M. Crowley, in an April 13 decision denying the demurrer by See’s Candies, said Ek’s claims were analogous to those in the Kesner case.

“Were plaintiffs alleging that their injuries stemmed from Mrs. Ek’s illness, say, because they lost income or missed out on Mrs. Ek’s companionship while she was sick with the COVID-19 she contracted at work, a different outcome would result,” Crowley wrote. “But here, plaintiffs claim that defendants sent Mrs. Ek home with the virus, similar to the Kesner defendants sending workers home with the asbestos, and that their injuries stem from the harm the exposure caused their husband and father.”

The brief employers filed with the appellate court this week argues that the Kesner case was about an employer’s duty of care and not workers’ compensation exclusivity or the derivative injury rule.

“There was no allegation in Kesner that the spouse’s injury derived from an injury to the employee,” the brief reads. “Nor was there any allegation or reason to infer that the employee in Kesner had been injured at all — unlike COVID-19, mesothelioma is not a contagious illness."

The filing argues that the trial court’s decision would allow a plaintiff to impose liability on an employer in both workers’ compensation and civil court proceedings. And the employer groups say that if allowed to stand, the trial court’s decision would undermine the policy of the work comp system.

“In overruling petitioners’ demurrer, the court invented a novel exception to the derivative injury rule for injuries from COVID-19 that allegedly derive from employees who contract the virus in the employer’s workplace and then infect their family members,” the brief reads. “That decision, if left to stand, will inevitably result in conflicting decisions as some appellate courts abide by the California court’s long-standing and broad interpretation of the derivative injury rule while others follow the trial court’s decision, effectively abrogating that precedent.”

The National Federation of Independent Business on Monday released a statement saying the case centers on whether employees can subject employers to unlimited tort liability for alleged workplace injuries that are intended to be covered by comp.

“If the trial court’s decision stands, small businesses will be disproportionally harmed as small employers generally don’t have the additional finances for protracted legal fights,” Karen Harned, executive director of NFIB’s Small Business Legal Center, said. “The increased liability risk will be damaging to many small businesses in California, especially when their businesses are still recovering from the pandemic.”

Applicants’ attorney Alan Gurvey, managing partner of Rowen, Gurvey and Win, said in an email on Thursday that he does not think the See’s case “is not on the radar in the trenches of the everyday workers’ compensation law slug.”

He said there are dozens of cases like it with specific facts that do not apply to the general caseload that attorneys handle on a daily basis. And he said he doesn’t think the grand bargain is threatened by a single case involving the husband of an employee who contracted COVID-19 and later died from the disease.

“If this case represents one exception to the general principle of exclusive jurisdiction, specifically based on contracting a disease or an infection at work that affects others, it has absolutely nothing to do with the grand bargain,” Gurvey said.