California Comp Act Does Not Bar COVID-19 Wrongful Death Claim

In an important decision that is certain to garner attention well beyond California’s borders, a California appellate court denied a petition for writ of mandate filed by an employer who had been sued by the surviving spouse and daughters of a man who died after contracting COVID-19 from the spouse, who allegedly contracted the disease at work and then transmitted the disease to her husband while she convalesced at home [See’s Candies v. Superior Court of Cal. for L.A. (Ek), 2021 Cal. App. LEXIS 1076 (Dec. 21, 2021). The court carefully examined, but found unpersuasive, the employer’s argument that the plaintiffs’ exclusive remedy was pursuant to California’s Workers’ Compensation Act under the so-called “derivative injury doctrine” [see Larson’s Workers’ Compensation Law, § 100.05]. The Court stressed that the fact that an employee’s injury was the biological cause of a nonemployee’s injury did not thereby make the nonemployee’s claim derivative of the employee’s injury.

Background

Mrs. Ek and her daughters filed this wrongful death action against Mrs. Ek’s employer, contending in relevant part that Mrs. Ek contracted COVID-19 at work due to the defendants’ failure to implement adequate safety measures, that the deceased, Mr. Ek, subsequently caught the disease from Mrs. Ek while she convalesced at home, and that Mr. Ek died from the disease a month later.

The employer filed a demurrer asserting that plaintiffs’ claims were preempted by the exclusivity provisions of California’s Workers’ Compensation Act (WCA). In particular, they argued that plaintiffs’ claims were barred under the “derivative injury doctrine,” established under Snyder v. Michael’s Stores, Inc. (1997) 16 Cal.4th 991, 1000 [68 Cal. Rptr. 2d 476, 945 P.2d 781] (Snyder), under which—at least according to the employer’s reading of Snyder—the WCA’s exclusivity provisions preempt not only those causes of action premised on a compensable workplace injury, but also those causes of action premised on injuries collateral to or derivative of such an injury.

Trial Court Overrules Demurrer

The employer argued at the trial court level that under Snyder, a claim is derivative if it would not exist absent injury to the employee. Because plaintiffs allege Mr. Ek contracted COVID-19 from Mrs. Ek, who in turn contracted the disease at work, the employer contended Mr. Ek’s death would not have occurred absent Mrs. Ek’s workplace exposure, and thus was derivative of Mrs. Ek’s work-related injury. Following that theory, the employer argued plaintiffs’ claims were subject to WCA exclusivity. The trial court disagreed, overruling the demurrer. The employer then filed petition with the appellate court for a writ of mandate directing the trial court to vacate its order overruling the demurrer.

Appellate Court Sides with Trial Court

The appellate court agreed with the trial court, saying that the employer’s interpretation of Snyder was flawed. Construing Snyder, the court stressed that the fact an employee’s injury was the biological cause of a nonemployee’s injury did not thereby make the nonemployee’s claim derivative of the employee’s injury. The court added that the employer’s interpretation of the derivative injury doctrine would lead to anomalous results, shielding employers from civil liability in contexts that the drafters of the WCA could not have intended. Although the breadth of the derivative injury doctrine presented serious policy considerations, the court said Snyder recognized that such policy considerations were within the province of the Legislature and should not be judicially addressed by expansion of the derivative injury doctrine.

The court concluded that because the parties had framed the writ exclusively to address the applicability of the WCA, it had no occasion to decide whether the employer Mr. Ek a duty of care or whether plaintiffs could actually demonstrate that Mr. or Mrs. Ek contracted COVID-19 due to any negligence in the employer’s workplace, as opposed to another source during the COVID-19 pandemic. Accordingly, the appellate court denied the petition.

Commentary: the Snyder Case

Practitioners may recall California’s Synder decision [see Larson’s Workers’ Compensation Law, § 100.05 for an extensive discussion of the derivative injury doctrine]. There, a minor and her mother and father sued the mother’s former employer, alleging that the employer negligently allowed a janitorial contractor to operate a propane-powered floor-buffing machine in the store without adequate ventilation, resulting in hazardous levels of carbon monoxide. They further alleged that both the mother and the minor, who was then in utero, were exposed to toxic levels of carbon monoxide .

The mother was taken to the hospital with symptoms of nausea, headaches and respiratory distress. The plaintiffs alleged that the minor suffered permanent damage to her brain and nervous system, causing her to be born with cerebral palsy and other disabling conditions. The minor sought damages for her physical injuries, and her parents sought economic damages for the increased medical, educational and other expenses they have incurred and would subsequently incur due to the minor’s physical injuries.

The trial court, relying upon Bell v. Macy’s California (1989) 212 Cal.App.3d 1442, 261 Cal. Rptr. 447 (Bell)—which held fetal injuries are, as a matter of law, derivative of injury to the pregnant mother—sustained the employer’s demurrer, concluding that the WCA provided the exclusive remedy for the plaintiffs’ claims.

In Snyder, the Supreme Court held that Bell misapplied the derivative injury doctrine. The court rejected the proposition that workers’ compensation exclusivity extends to all third party claims deriving from some condition affecting the employee, or that a nonemployee’s injury is collateral to or derivative of an employee injury merely because they both resulted from the same negligent conduct by the employer. The Snyder court stressed that an employer’s civil immunity is not for all liability resulting from negligence toward employees, but only for all liability, to any person, deriving from an employee’s work-related injuries.

The Snyder court concluded the plaintiffs’ claims were not barred by the derivative injury doctrine, observing that the Snyder plaintiffs simply alleged that both the mother and the minor were exposed to toxic levels of carbon monoxide, injuring both. The minor sought recompense for her own injuries. According to the Snyder court, the derivative injury doctrine does not bar civil actions by all children who were harmed in utero through some event or condition affecting their mothers; it bars only attempts by the child to recover civilly for the mother’s own injuries or for the child’s legally dependent losses. The Snyder court added that the “compensation bargain is between a business and its employees and generally does not include third party injuries.

Turning back to the instant case, the California appellate court said:

In our view, moreover, there is little difference conceptually between a mother breathing in a poisonous gas and conveying it to her unborn child, and a wife breathing in viral particles that she then conveys to family members. In both cases, the employee is merely the conduit of a toxin or pathogen; whether the employee herself was harmed by the toxin or pathogen is not relevant to the claims of the injured family members [Opinion, pp. 27-28].

The court said that assuming arguendo that Mrs. Ek’s infection constituted an injury for purposes of the WCA, and that her injury in turn caused Mr. Ek’s injury, the court nonetheless rejected defendants’ reading of Snyder to extend the derivative injury doctrine to any injury for which an employee injury was a but-for cause. The court added that the Snyder court “made clear, however, that ‘logical’ or ‘legal’ dependence is not equivalent to causal dependence” [Opinion, p. 29, emphasis by the court]. With careful analysis and references to multiple other California precedents, the court concluded that the derivative injury doctrine did not apply under the facts of this case.

Appellate Court Examines Several Other COVID-19 Cases

The court provided extended discussion as well regarding a number of recent cases involving potential employer liability for COVID-19 exposures. In particular, the court reviewed Kuciemba v. Victory Woodworks, Inc., 2021 U.S. Dist. LEXIS 88997 (May 10, 2021), in which the District Court for the Northern District of California dismissed a complaint against an employer alleging that an employee contracted COVID-19 in the workplace, then infected his wife who developed a severe case of the disease. In the first dismissal order, the court stated that the claims were barred by the exclusive remedy provisions of California’s WCA.

After the plaintiffs amended their complaint, the federal court dismissed the claims with prejudice, stating again that the claims were barred by WCA exclusivity to the extent they were based on allegations that the wife contracted COVID-19 through direct contact with the employee. In the instant decision, the California court said that setting aside that it was not bound by federal district court rulings, the federal court’s dismissal orders in Kuciemba were conclusory, with no explanations or discussion of relevant authority. Thus, said the court, they provided no basis upon which to question the court’s holding.