California Appellate Court Rules COVID-19 Death Suit May Proceed Against Widow’s Employer

California Appellate Court Rules COVID-19 Death Suit May Proceed Against Widow’s Employer

by Melinda S. Kollross

A California appellate court recently ruled that plaintiff’s employer must face a lawsuit alleging that plaintiff contracted COVID-19 at work and infected her husband, causing his death. See’s Candies, Inc. v. Superior Court, 2021 Cal. App. LEXIS 1076; 2021 WL 6015641 (2d Dist.).

Facts

Plaintiffs Matilde Ek and her three daughters sued Mrs. Ek’s employer, See’s Candies, asserting general negligence and premises liability in connection with the death of her husband from COVID-19. Mrs. Ek alleged that she contracted COVID-19 while working in close proximity to other workers at defendant’s candy assembly plant. According to her complaint, See’s was “aware of the highly dangerous, contagious and transmissible nature of [COVID-19], particularly where people are working and interacting in close proximity to each other” but “failed to put known, appropriate and necessary safety mitigation measures in place.” Plaintiff allegedly contracted a COVID-19 infection at work in March 2020. She convalesced at her home where she resided with her husband (Mr. Ek), and one of their daughters (Karla). Within a few days, both Mr. Ek and Karla became sick with COVID-19. Mr. Ek, after struggling with the illness, died on April 20. 2020.

Defendants filed a demurrer contending that plaintiffs’ claims were preempted by the Worker’s Compensation Act exclusivity provisions. Specifically, defendants argued plaintiffs’ claims are barred by the “derivative injury doctrine” (see Snyder v. Michael’s Stores, Inc. (1997) 16 Cal.4th 991, 1000 [68 Cal. Rptr. 2d 476, 945 P.2d 781] (Snyder)), under which “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.” Among other things, this doctrine preempts third party claims “based on the physical injury or disability of the spouse,” such as loss of consortium or emotional distress. The doctrine applied, defendants argued, because plaintiffs could not state a claim against defendants for Mr. Ek’s death without alleging an injury to an employee, namely Mrs. Ek’s workplace infection with COVID-19.

The trial court overruled the demurrer. It found that any injury to Mrs. Ek was “irrelevant” to plaintiffs’ claims because that was not the injury sued upon. Rather, it was Mr. Ek’s exposure to the COVID-19 brought home by Mrs. Ek that plaintiffs claim caused plaintiffs’ injury.

The trial court continued: “Mrs. Ek did not have to become ill herself for Plaintiffs’ injury to occur, and, so, contrary to Defendants’ position, Plaintiffs do not allege that their injuries would not have existed in the absence of the workplace injury to Mrs. Ek. Accordingly, Plaintiffs’ claimed injuries are not collateral to nor derivative of Mrs. Ek’s becoming ill with COVID-19. 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.”

Analysis

The Court of Appeal denied writ relief, stating that regardless of whether Mrs. Ek sustained a workplace injury for purposes of the Worker’s Compensation Act, the derivative injury doctrine did not apply to extend workers’ compensation exclusivity to plaintiffs’ wrongful death claim because that claim did not seek damages for losses arising from a disabling or lethal injury to the employee. The Court opined that case law cannot be read to extend the derivative injury doctrine to any injury for which an employee injury was a but-for cause because logical or legal dependence of another person’s injuries on an employee’s injuries is not equivalent to causal dependence.

The court explained their reasoning as follows. Assuming arguendo that Mrs. Ek’s workplace infection constitutes an injury for purposes of the WCA, we reject defendants’ efforts to apply the derivative injury doctrine to any injury causally linked to an employee injury. Defendants’ interpretation is inconsistent with the language of Snyder, which establishes that the fact an employee’s injury is the biological cause of a nonemployee’s injury does not thereby make the nonemployee’s claim derivative of the employee’s injury.

Further, Snyder’s discussion of prior case law applying the derivative injury doctrine does not support applying the doctrine based solely on causation. Snyder approved of cases applying the doctrine to claims by family members for losses stemming from an employee’s disabling or lethal injury, such as wrongful death, loss of consortium, or emotional distress from witnessing a workplace accident. In contrast, the Supreme Court called into question a case applying the derivative injury doctrine outside these contexts based on causation alone.

Defendants’ interpretation of the derivative injury doctrine would lead to anomalous results, shielding employers from civil liability in contexts the drafters of the WCA could not have intended. Although the breadth of the derivative injury doctrine presents serious policy considerations, Snyder recognizes that such policy considerations are within the province of the Legislature and should not be judicially addressed by expansion of the derivative injury doctrine.

Because the parties framed this writ exclusively to address the applicability of the WCA, the Court did not decide whether defendants owed Mr. Ek a duty of care or whether plaintiffs can demonstrate that Mr. or Mrs. Ek contracted COVID-19 because of any negligence in defendants’ workplace, as opposed to another source during the COVID-19 pandemic.

Learning Point: Reuters reported that See’s Candies, “appears to mark the first time a lawsuit will be allowed to potentially hold a company responsible for the COVID-19-related death of an employee’s family member.” We expect to see many more such lawsuits in the coming months, along with a rise in personal injury/wrongful death actions arising out of COVID-19 generally. These casualty matters will likely represent the second wave of COVID-19 litigation, following the thousands of lawsuits filed in 2020 and 2021 seeking first-party property insurance coverage for COVID-19 business interruption losses.