Kamin: High Court Appears Primed to Rule on 'Take-Home COVID' in 2023

Friday, December 9, 2022 | 0

The California Supreme Court is on track to have a rather significant ruling in 2023 on a question of whether a civil suit stemming from a “take-home COVID” claim is barred by the derivative injury doctrine.

John P. Kamin

The state’s high court appears to be on track to have a ruling at some point in 2023 in the case of Kuciemba v. Victory Woodworks. The case is one of many that are being informally described in the media as a “take-home COVID" claims.

By “take-home COVID claim,” we mean a case where an employee allegedly gets COVID-19 at work, transmits it to a spouse, then sues in Superior or federal court for negligence, wrongful death or similar theories.

The 9th Circuit Court of Appeal referred the case to the California Supreme Court for a decision on the following two questions:

• 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?
• 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?

A plethora of parties filed amicus curiae (aka “friend of the court”) briefs, with some groups opting to all sign off on a single brief. These include:

• Consumer Attorneys of California.
• Construction Employers’ Association.
• Civil Justice Association of California.
• See’s Candies Inc., See’s Candy Shops Inc.
• Chamber of Commerce of the United States of America, National Federation of Independent Business, National Association of Manufacturers, California Workers’ Compensation Institute, California Chamber of Commerce, Restaurant Law Center, National Retail Federation.

Briefing now appears to be complete in the case, which means a decision could be forthcoming at some point in 2023.

It is quite interesting and perhaps appropriate that See’s Candies filed an amicus brief, as the state’s high court previously denied the company's petition for review in the case of See’s Candies v. Los Angeles Superior Court in April 2022. That ruling meant the plaintiff in that case could proceed with her suit past the “demurrer” stage.

In other words, it was ruling early on in the case that only meant that the plaintiff could proceed with her lawsuit; it was not a final decision. (We described that case in greater detail in this blog post in May 2022.)

These types of cases will likely be viewed in California’s history as a line of “pandemic-inspired case law,” and the stakes are undoubtedly quite high. The U.S. Chamber of Commerce described the stakes quite well in its amicus brief, which said:

“If this court agrees with petitioners, millions of potential plaintiffs could assert ‘take-home’ COVID-19 claims against California employers for injuries they allegedly sustained as a result of an employee’s infection in the workplace. This potential avalanche of lawsuits would cripple California businesses and likely force many to close their doors or leave the state. Amici and their members thus have a significant interest in this case. As set forth in greater detail below, amici urge the court to hold that lawsuits by employees’ family members for ‘take-home’ COVID-19 injuries are barred by the derivative injury rule and that employers do not owe a duty to protect non-employees from cases of ‘take-home’ COVID-19.”

The high-stakes nature of these cases also highlights the importance of thoroughly investigating workers’ compensation claims for COVID-19. Nobody wants to be the practitioner who recommended accepting a sketchy claim that in hindsight should have been denied, only for it to lead to a “take-home COVID” lawsuit.

John P. Kamin is a workers’ compensation defense attorney and partner at Bradford & Barthel’s Woodland Hills location. He is WorkCompCentral's former legal editor. This entry from Bradford & Barthel's blog appears with permission.