In March 2020, Matilde Ek contracted COVID-19 while working for See’s Candies, Inc. at one of its plants in the candy assembly and packing line. After contracting COVID-19, Ek was unable to work and remained at home with her husband, Arturo, and their daughter, Karla. Within a few days, Ek’s daughter and husband both became sick with COVID-19 as well. Ek’s daughter recovered, but Ek’s husband struggled with the virus and eventually died from COVID-19 about a month later.
Ek and her three daughters filed a wrongful death claim against See’s Candies for the death of Arturo. They alleged that See’s Candies was aware of the highly dangerous, contagious, and transmissible nature of COVID-19 and that Ek contracted COVID-19 at work because See’s Candies failed to take appropriate and necessary health and safety measures to protect employees from a viral infection, such as adequate physical distancing and excluding symptomatic workers. As a result, Ek contracted COVID-19, Arturo contracted COVID-19 from Ek, and Arturo died of COVID-19.
See’s Candies requested that the trial court dismiss the wrongful death claim. They contended that the California Workers’ Compensation Act (WCA), which preempts causes of action premised on, collateral to, or derivative of an employee’s covered workplace injury, preempted Ek’s claim. Derivative causes of action include certain third-party claims, such as claims by an employee’s spouse for loss of the employee’s consortium, or for emotional distress suffered by a spouse in witnessing the employee’s injuries. Claims deemed collateral to or derivative to an employee’s covered workplace injury are barred by the derivative injury doctrine. See’s Candies asserted that Arturo’s death would not have occurred if Ek had not contracted COVID-19 at work, and so Arturo’s death was derivative of Ek’s work-related injury and was thereby preempted by the derivative injury doctrine.
The trial court disagreed with See’s Candies’ argument and permitted the wrongful death claim to proceed. The trial court reasoned that Ek’s injury was irrelevant to the wrongful death claim because Ek’s injury was not the injury that provided the basis for the claim; the claim was based on Arturo’s physical injury, and so the claim was not derivative. See’s Candies filed a petition asking that the trial court’s action be vacated.
After analyzing the issue, the court of appeal agreed with the trial court and denied See’s Candies’ petition. The court of appeal reasoned that while Ek arguably suffered a workplace injury for the purposes of the WCA, the derivative injury doctrine did not apply to the facts at issue. The court explained that “derivative injuries,” for purposes of the derivative injury doctrine in workers’ compensation cases, are the economic and intangible losses suffered by an employee’s loved ones as a result of the employee’s disability or death. The definition does not extend to separate physical injuries suffered by nonemployees, even when an employee’s injury was part of the causal chain leading to those injuries. The court cited prior case law establishing the proposition that when an employee’s injury is the biological cause of a nonemployee’s injury, it does not thereby make the nonemployee’s claim derivative of the employee’s injury.
Therefore, the court denied the petition.
See’s Candies, Inc. v. Superior Court of California for County of Los Angeles (2021) 73 Cal.App.5th 66.
NOTE:
On July 6, 2021, LCW reported on the Kuciemba v. Victory Woodworks, Inc., in which a federal district court dismissed a complaint against an employer alleging that an employee contracted COVID-19 in the workplace, then infected his wife who developed a severe case of the disease. The court held that the claims were barred by WCA exclusivity to the extent they were based on allegations that the wife contracted COVID-19 through direct contact with the employee. The court in See’s Candies, Inc. v. Superior Court of California for County of Los Angeles referenced the Kuciemba case and noted that the court was not bound by federal district court rulings and the dismissal orders in Kuciemba were “conclusory, with no explanations or discussion of relevant authority” and provided no basis upon which to question its holding in See’s Candies, Inc. Liability to third parties for COVID-19 workplace exposures and infections is a rapidly developing area of the law.
