COVID-19 Casualty Update: California Supreme Court Denies Review Of Appellate Decision That COVID-19 Death Suit May Proceed Against Widow’s Employer, But Accepts Certified Questions From 9th Circuit

By Melinda S. Kollross

In Volume 4 of our 2021 CM Report, I discussed See’s Candies, Inc. v. Superior Court, 73 Cal. App. 5th 66 (2021), and analyzed the ramifications for future litigation arising from this decision. In See’s Candies, the Court held that a plaintiff’s employer must face a lawsuit alleging that plaintiff contracted COVID-19 at work and infected her husband, causing his death.

On January 28, 2022, See’s Candies petitioned the California Supreme Court to review the Court of Appeals decision. The California Supreme Court denied the petition for review without comment on April 13, 2022. Although the California Supreme Court’s denial of review does not have precedential value and is not to be regarded as expressing approval of the propositions of law set forth in the Court of Appeals opinion, it does not follow that such a denial is without significance as to the views of the Supreme Court. In Di Genova v. State Board of Education, 57 Cal. 2d 167, 177 (1962), the California Supreme Court stated: “The order of this court denying a petition for a transfer . . . after . . . decision of the district court of appeal may be taken as an approval of the conclusion there reached, but not necessarily of all of the reasoning contained in that opinion.” (Quoting Cole v. Rush, 45 Cal 2d 345, 351, fn. 3 (1955)). See also, 16 Cal. Jur. Courts § 318.

This, however, may not be the last word from the California Supreme Court on this novel issue. A case currently pends before United States Court of Appeals for the Ninth Circuit entitled Kuciemba v. Victory Woodworks Inc., No. 21-15963. In that case, the Ninth Circuit recently certified these two questions to the California Supreme Court for decision:

1.   If an employee contracts COVID-19 at his workplace and brings the virus home to his spouse, does California’s derivative injury doctrine bar the spouse’s claim against the employer?

2.   Under California law, does an employer owe a duty to the households of its employees to exercise ordinary care to prevent the spread of COVID-19?

According to the Ninth Circuit, these matters warranted certification because there was no controlling decision on these issues, i.e., no California Supreme Court precedent. Further the issues, according to the Ninth Circuit, were matters of great public importance:

[T]he scope of an employer’s liability in tort for the spread of COVID-19, the application of the public policy exception to Cal. Civ. Code § 1714(a)’s general duty of care in the context of a pandemic, and—perhaps most sweepingly—whether California’s derivative injury doctrine applies to injuries derived in fact from an employee’s workplace injury.

On June 29, 2022, the California Supreme Court agreed to answer  these two certified questions. We will monitor these proceedings for our friends in the insurance and defense industry and report on the same in future issues of the CM Report.