Following through on the guidance provided by California’s state Supreme Court, a federal appeals panel has officially pulled the plug on a lawsuit that sought to open up employers in the Golden State to lawsuits, should family members of their employees become ill with Covid, or a similarly contagious disease.
On July 25, a three-judge panel of the U.S. Ninth Circuit Court of Appeals formally ended a lawsuit brought by husband and wife Robert and Corby Kuciemba, who attempted to sue Robert’s employer for a severe Covid infection Corby suffered in 2020, after her husband allegedly contracted Covid at work.
The Kuciembas filed suit in 2020 against Victory Woodworks, a Nevada-based cabinet maker and installer.
According to the case, Robert Kuciemba worked for Victory at a construction site in San Francisco in May 2020. While San Francisco was under state and local public health orders to shut down non-essential activities at the time, construction work, such as that performed by Victory, was considered essential and so could legally continue.
The Kuciembas, however, asserted Victory did not abide by public health guidelines for the jobsite, and allowed people who may have been exposed to Covid to come to work.
The Kuciembas assert Robert contracted Covid on the job, and then brought it home, where Corby also contracted it. The lawsuit alleged Corby suffered a severe case of the illness, resulting in her hospitalization.
They then sued, claiming Victory should be made to pay for the infection.
The case ultimately landed before the Ninth Circuit Court of Appeals. However, the appeals judges there punted the case to the California Supreme Court.
They asked the state court to decide two key questions in the case: Was the Kuciembas lawsuit preempted by the state’s workers’ compensation law, which covers workplace injury claims? And, did Victory owe a duty of care to Corby Kuciemba, as the spouse of the company’s employee?
On July 6, the California Supreme Court weighed in on the much anticipated case. The court ruled the lawsuit was not exempted by the workers’ comp law.
But at the same time, they said, they could not agree to allow the Kuciembas to proceed with their lawsuit.
The justices said the spread of a contagious virus like Covid is fundamentally different from other duty of care cases, such as those which have ensnared employers when their employees’ spouses have been indirectly exposed to dangerous environmental contaminants, like asbestos.
Allowing the Kuciembas to sue Victory in this instance, they said, would all but every employer in the state at risk of potentially disastrous lawsuits, and threaten California’s entire economy and society.
“Ultimately, the limited transmissibility of asbestos provides a natural curb on the pool of potential plaintiffs,” the Supreme Court justices wrote. “With COVID-19, by contrast, the pool of potential plaintiffs isn’t a pool at all — it’s an ocean.”
Following the state Supreme Court’s ruling, the case returned to the Ninth Circuit, where the judges said the California state court ruling had made the decision all but a formality.
The Ninth Circuit judges particularly pointed to language in the state Supreme Court opinion about the threat the Kuciembas lawsuit and others like them would pose to the courts and society at large:
“Here, the significant and unpredictable burden that recognizing a duty of care would impose on California businesses, the court system, and the community at large counsels in favor of an exception to the general rule of Civil Code section 1714. Imposing on employers a tort duty to each employee’s household members to prevent the spread of this highly transmissible virus would throw open the courthouse doors to a deluge of lawsuits that would be both hard to prove and difficult to cull early in the proceedings.”
The Ninth Circuit concurred in the findings that Victory owed no duty to Corby Kuciemba, and upheld a lower court order dismissing the Kuciembas’ lawsuit.
The Kuciembas were represented by attorneys Mark L. Venardi, Martin Zurada and Mark Freeman, of the firm of Venardi Zurada, of Walnut Creek.
Victory was represented by attorney William Bogdan, of the firm of Hinshaw & Culbertson, of San Francisco.