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Employer groups argue exclusive remedy precludes negligence claim


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.

A brief filed Aug. 31 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 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 appeal court 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 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.






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