Exclusive remedy defense trending in COVID-19 litigation

Employer defendants in more than half of the COVID-19 injury or wrongful death lawsuits being tracked by the National Council on Compensation Insurance argue that the workers compensation exclusive remedy provisions in state laws bar such litigation.

Legal experts say litigation in which a worker or a surviving family member sues an employer over a COVID-19 infection or death is likely to continue as courts continue to reopen.

“The covid litigation logjam broke in the spring,” said Carin Burford, Birmingham, Alabama-based shareholder with Ogletree, Deakins, Nash, Smoak & Stewart P.C., adding that lawsuits are likely to pile up.

In a report issued June 11, Boca Raton, Florida-based NCCI detailed 18 cases involving employers nationwide that are facing allegations such as unsafe working conditions and failure to follow federal and local COVID-19 safety guidance. In 11 of the cases the ratings agency is tracking, the employers are challenging the claims on the grounds of exclusive remedy.

Exclusive remedy provisions, which are found in state workers comp laws nationwide, generally state that workers compensation is the only remedy for a workplace injury — and not a personal injury or wrongful death tort, which is typically barred unless gross negligence is proven.

“Court cases involving COVID-19 infections that bring in aspects of exclusive remedy … is not entirely unexpected,” Adam Levell, NCCI’s senior counsel, wrote in an email, adding that it’s likely “more cases may emerge in the coming months/year as the pandemic evolves and states continue to loosen pandemic-related restrictions, businesses reopen, and people return to the office/traditional workplace.”

Most of the cases are pending, with at least one decision issued: in Brooks v. Corecivic of Tennessee LLC, the U.S. District Court in the Southern District of California ruled last September that the exclusive remedy barred claims by a detention officer who said her former employer failed to maintain a healthy work environment and that she suffered emotional distress as a result.

Among the cases still pending is Benjamin v. JBS, filed in the Court of Common Pleas of Philadelphia County in Pennsylvania in May 2020, a wrongful death suit in which the estate of a meat processing plant worker alleges that his COVID-19 death was the result of the employer ignoring the risks of transmission in the workplace.

Also pending is Evans v. Walmart Inc., filed in April 2020 in the Circuit Court of Cook County in Chicago, in which the brother of a Walmart worker who died of COVID-19 in March 2020 alleges that the employer failed to protect its workforce when workers began exhibiting signs of COVID-19 infection.

Oana Constantin, an associate in the San Diego office of Gordon Rees Scully Mansukhani LLP, said cases alleging workplace negligence and COVID-19 spread are being closely watched. “This is all very new; we have to stay flexible to see the trend and see where things will progress,” she said.

“I am hoping that the courts will summarily dismiss these cases because there is not an intent to injure,” said Steve Bennett, Washington-based assistant vice president for workers compensation programs and counsel for the American Property Casualty Insurance Association. “One hundred years of law shows the exclusive remedy bars this unless there is intentional tort.”

More insurance and workers compensation news on the coronavirus crisis here.