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Calif. Supreme Court asked to address workplace COVID questions

covid litigation

A federal court on Thursday asked the California Supreme Court to assess whether the derivative injury doctrine prohibits a civil claim against an employer when a worker contracts COVID-19 in the workplace and brings the virus home.

The U.S. 9th Circuit Court of Appeals in San Francisco also asked the top state court to determine whether California law imposes on employers a duty to households of its employees to exercise ordinary care to prevent the spread of COVID-19.

The California Supreme Court does not have to accept the certification or answer the questions as laid out by the federal appellate court.

On April 13 the California Supreme Court denied a request to review a state appeals court decision in See’s Candies Inc. v. Los Angeles Superior Court et al., holding that the derivative injury doctrine doesn’t preclude a lawsuit alleging a business negligently exposed a worker to COVID-19 causing the death of her spouse.

Now, the question of whether and how the derivative injury doctrine might apply to tort claims when family members or others catch COVID-19 from someone who contracted the disease at work could return to the state Supreme Court.

Robert Kuciemba worked for Victory Woodworks Inc. in San Francisco. He and his wife, Corby Kuciemba, allege that the company knowingly transferred infected workers from an infected construction site to the location where Mr. Kuciemba was working. He soon contracted COVID-19 that he brought home. His wife tested positive for COVID-19 in July 2020 and was hospitalized for more than a month.

The Kuciembas sued Victory, alleging that the company violated a local health order. Ms. Kuciemba alleged negligence and Mr. Kuciemba brought a claim for loss of consortium.

The federal district court for Northern California granted a motion to dismiss Kuciemba v. Victory Woodworks, finding the derivative injury doctrine barred Ms. Kuciemba’s claims and that alternatively, Victory didn’t owe her any duty.

The federal appeals court in Thursday’s opinion said it is appropriate to certify these questions for the state Supreme Court to answer because there is no controlling precedent.

WorkCompCentral is a sister publication of Business Insurance. More stories here.