http://www.metnews.com/articles/2021/DerivativeInjuryRule_12222021.htm
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C.A. Rejects See’s Candies’s Exclusive Remedy Defense
Bendix Says ‘Derivative Injury’ Rule Does Not Apply to Death of Man Who Died of COVID-19 Contracted From Wife Whose Infection Is Blamed on Her Employer Taking Inadequate Protection Measures
By a MetNews Staff Writer
An action for the wrongful death of a man who caught the COVID-19 virus from his wife, who claims that she contracted the disease at work because her employer did not take sufficient safety measures, is not barred by the exclusive-remedy provision of the Workers Compensation Act, the Court of Appeal for this district held yesterday, rejecting the applicability of the “derivative injury doctrine.”
Los Angeles Superior Court Judge Daniel M. Crowley on April 13 overruled a demurrer of the employer, See’s Candies, and See’s sought a writ of mandate commanding that the demurrer be sustained. Justice Helen I. Bendix of Div. One wrote the opinion denying relief.
Crowley noted that See’s quoted from the California Supreme Court’s 1997 opinion in Snyder v. Michael’s Stores, Inc. which says that the exclusive remedy provision of the Workers Compensation Act (“WCA”) extends to any claim that “would not have existed in the absence of injury to the employee.” Had the employee, Matilde Ek, not incurred the disease at the candy factory, the defendant reasoned, her husband, Arturo Ek, would not have been infected, so the “derivative injury” rule bars a tort action, See’s reasoned.
Crowley’s Ruling
The judge responded:
“Under Plaintiff’s alleged theory of the case, the injury to Mrs. Ek’s injury of having contracted COVID-19 in the work place is irrelevant to Plaintiffs’ claims: that injury is not the injury upon which Plaintiffs sue. Instead, Plaintiffs sue upon the injury caused by Mrs. Ek’s bringing home the COVID-19 to which she was exposed in the Defendants’ workplace. It was her husband’s exposure to the COVID-19 brought home by Mrs. Ek that Plaintiffs claim caused Plaintiffs’ injury.”
Crowley remarked: “Were Plaintiffs alleging that their injuries stemmed from Mis. Ek’s illness, say, because they lost income or missed out on Mrs. Ek’s companionship while she was sick with the COVID-19 she contracted at work, a different outcome would result.”
Bendix’s Opinion
Bendix wrote:
“We agree with the trial court.”
The jurist placed reliance on the Oct. 30, 1997 opinion in Snyder. In that case, a woman sued for injuries she sustained while a fetus, attributable to her mother’s workplace exposure to hazardous levels of carbon monoxide.
Then-Justice Kathryn Werdegar (now retired) noted that Labor Code §3600, a part of the WCA, barred personal injury actions against an employer “for any injury sustained by his or her employees arising out of and in the course of the employment.” She said the plaintiff was suing “for her own injuries, not her mother’s,” and the exclusive-remedy provision is therefore inapplicable.
In Friday’s opinion, Bendix said:
“Assuming arguendo that Mrs. Ek’s workplace infection constitutes an injury for purposes of the WCA, we reject defendants’ efforts to apply the derivative injury doctrine to any injury causally linked to an employee injury. Defendants’ interpretation is inconsistent with the language of Snyder, which establishes that the fact an employee’s injury is the biological cause of a nonemployee’s injury does not thereby make the nonemployee’s claim derivative of the employee’s injury.”
‘Anomylous Results’
She went on to observe:
“Defendants’ interpretation of the derivative injury doctrine would lead to anomalous results, shielding employers from civil liability in contexts the drafters of the WCA could not have intended. Although the breadth of the derivative injury doctrine presents serious policy considerations, Snyder recognizes that such policy considerations are within the province of the Legislature and should not be judicially addressed by expansion of the derivative injury doctrine.”
Nendix commented: “The unique factual and legal issues presented by the ongoing pandemic will not inexorably lead to unlimited liability. Unaddressed in this writ proceeding is whether defendants owe a duty of care to nonemployees infected with COVID-19 as a result of an employee contracting the disease at work.”
The case is See’s Candies v. Superior Court (Ek), 2021 S.O.S. 6737. Alex Bastian, special advisor to Gascón, commented Friday: “The district attorney has the utmost confidence in Joseph. It’s a personnel matter so we can’t into the specifics at this time.”
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