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By Iman A. Wells, Esq.

On April 21, 2022, the Ninth Circuit issued an opinion, Kuciemba v. Victory Woodworks, Inc., certifying two important questions for the California Supreme Court.  Specifically, the Ninth Circuit has tasked the California Supreme Court to opine on: (1) whether California’s derivative injury doctrine bars a spouse’s claim against an employer, where an employee contracts COVID-19 at the workplace and brings the virus home to their spouse; and (2) under California law, whether an employer owes a duty to the households of its employees to exercise ordinary care to prevent the spread of COVID-19.

In Kuciemba, Mr. and Mrs. Kuciemba (the “Kuciembas”) claimed that they adhered to all COVID-19 safety protocols and had limited interaction or exposure with other people.  They claimed that the only person in their household to have frequent contact with others was Mr. Kuciemba at Victory’s worksite.  The Kuciembas alleged that Victory transferred workers from an infected construction site to Mr. Kuciembas site without following safety procedures – causing Mr. Kuciemba to work in close contact with these other workers.  Mrs. Kuciemba thereafter tested positive for COVID-19 and was hospitalized for more than a month and kept alive via a respirator which the Kuciembas attributed to Victory.

The Kuciembas then sued Victory in California state court asserting claims for negligence, negligence per se, premises liability, and loss of consortium – all based on the allegation that the employer caused the Mrs. Kuciemba’s injuries by failing to follow city health orders imposing stringent conditions on employer’s construction operations in order to limit the spread of COVID-19. The case was then removed to the United States District Court for the Northern District of California and Victory’s motion to dismiss was granted. In granting the motion to dismiss, the District Court found that the Kuciembas’ claims were barred by  California’s derivative injury doctrine which generally prevents lawsuits by third parties for injuries that are “collateral to or derivative of” injuries covered by California’s Workers’ Compensation Act, and that employers do not owe a duty to an employee’s spouse. The Kuciembas then appealed to the Ninth Circuit.

The Ninth Circuit ultimately recognized that there was no controlling precedent on these issues – requiring the need for certification. This ruling is significant because now the California Supreme Court will have the opportunity to rule on whether the spouse of an employee has a civil remedy against an employer for violating COVID-19 health safety orders and whether the employer must exercise ordinary care to protect a worker’s household. These are highly anticipated decisions that will set the scope of an employer’s role in the spread and/or prevention of COVID-19 outside the workplace.

This case is yet another reminder that employers should reexamine their COVID-19 related safety policies to ensure compliance with ever-evolving case law, safety orders, and guidance resulting from the COVID-19 pandemic. 

The decision is Kuciemba v. Victory Woodworks, Inc., No. 21-15963, 2022 WL 1180878 (9th Cir. Apr. 21, 2022).  The full opinion is available here.

Please contact an NFC team member if you have any questions or seek further assistance.


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