COURT OF APPEALS HOLDS THAT AN EMPLOYEE/WIDOW IS NOT BARRED BY THE WORKERS’ COMPENSATION...

GMK ALERT – Today’s News You Can Use 

ISSUE DATE:  Friday, January 7, 2022

IN THIS ALERT:  COURT OF APPEALS HOLDS THAT AN EMPLOYEE/WIDOW IS NOT BARRED BY THE WORKERS’ COMPENSATION EXCLUSIVE REMEDY DOCTRINE FROM SEEKING CIVIL DAMAGES IN A SURVIVAL ACTION ON BEHALF OF HER SPOUSE WHO WAS INFECTED AND DIED FROM COVID-19 ALLEGEDLY CONTRACTED FROM THE EMPLOYEE/WIDOW

The Second Appellate District recently ruled in See’s Candies, Inc. v. Superior Court 2021 Cal. App. LEXIS 1076 that employers may be subject to civil liability by third party non-employees, in this case even the spouse of the employer’s employee, who are infected with COVID-19 by an employee of the employer.

In See’s, Matilde Ek worked for See’s Candies and allegedly contracted COVID-19 while at work and brought it home where her husband, Arturo Ek, contracted COVID-19 and sadly passed away.   Matilde sued See’s civilly by bringing a survival action as successor in interest to Arturo for wrongful death, general negligence, and premises liability.   The theory of negligence was that See’s allegedly failed to implement adequate safety measures at the workplace to prevent against COVID-19.

See’s filed a Demurrer to the Complaint alleging that the Complaint was barred by California’s exclusive remedy based upon the derivative injury doctrine.  See’s argued the derivative injury doctrine barred the claim because the survival claim of Arturo is derivative of and would not have existed absent injury to Matilde while working for See’s, and that Arturo would not have received a workplace exposure “but for” Matilde’s injury.  The trial court rejected See’s theory and overruled the Demurer for which a writ of mandate was filed by See’s.

The Court of Appeals upheld the trial court’s decision overruling the Demurrer.  The Court of Appeals held that the derivative injury doctrine does not apply to damages to third parties, or even in this case the employee’s spouse, merely because they are “caused” by an employee’s injury.   The rationale of the survival action brought by Matilde was to compensate her for damages that were not being sought based upon injury directly to Matilde, such as her loss of her support, companionship, or emotional trauma due to Matilde’s suffering because of her husband’s illness and death, nor any injury arising to Matilde for industrial injury while working for See’s, but rather for alleged damages and losses related to the injury and death of Arturo.   Therefore the derivative injury doctrine did not apply to the facts of this case.

We do note that the court makes clear in the case that it was not addressing two other key questions that are of interest to employers that will be adjudicated as the case develops.   First, the court declined to decide whether See’s owed a duty of care to Arturo as Arturo is not an employee of See’s. Second, the court declined to address whether Arturo in fact contracted COVID-19 because of any negligence in the See’s workplace.  Nor did it rule on whether Matilde contracted COVID-19 at her workplace which would be in the exclusive jurisdiction of the WCAB.

 WHAT THIS MEANS FOR YOU

The employee/widow’s attorneys very creatively crafted this lawsuit against See’s. See’s will now have to defend the civil lawsuit by its employee, Matilde. There is a message her that employers may be subject to civil liability for negligently failing to implement adequate safety measures in the workplace to prevent against COVID-19 that results in COVID-19 exposure to their employees that then pass it on to family members of the employee, even possibly to unrelated third parties. Accordingly, depending on the eventual outcome, this case could open the door to vast litigation against employers (and their insurers) that do not exercise reasonable care in endeavoring to protect their workers from COVID-19.  

Jeffrey M. Soll, Esq. – Partner – Woodland Hills

Goldman, Magdalin & Krikes, LLP