The Court of Appeal rejected the application of the “derivative injury rule” to limit the tort claim of the spouse of an injured worker who suffered an admitted workplace COVID injury,  The spouse was infected when the worker returned home from work, and later died from the COVID infection. Thus the exclusive remedy provision does not protect employers from these related tort claims.

Matilde Ek, a worker at a See’s distribution center in Southern California, contracted COVID-19 and apparently infected her 72-year-old husband, Arturo, who died. Ek said she worked on the See’s packing line without proper social distancing or other protections even though some workers were coughing, sneezing and showing other signs of COVID-19 infections.

She and her daughters sued See’s, alleging that since her workplace lacked sufficient safeguards against infection, the company is liable for his death.

See’s acknowledged that Ek’s illness was job-related but argued that since it was, the company was protected from liability for her husband’s death under the “exclusive remedy” doctrine.

Los Angeles Superior Court Judge Daniel M. Crowley refused to throw out Ek’s lawsuit, agreeing with Ek’s attorney that her husband’s death was a separate event from her workplace infection.

And the Court of Appeal affirmed the trial court in the published case of See’s Candies, Inc. v. Super. Ct. (2021).

Defendants argued plaintiffs’ claims are barred by the “derivative injury doctrine” (see Snyder v. Michael’s Stores, Inc. (1997) 16 Cal.4th 991, 1000 (Snyder)), under which “the WCA’s exclusivity provisions preempt not only those causes of action premised on a compensable workplace injury, but also those causes of action premised on injuries ‘ “collateral to or derivative of” ’ such an injury.’ (King v. CompPartners, Inc. (2018) 5 Cal.5th 1039, 1051 (King).) Among other things, this doctrine preempts third party claims “based on the physical injury or disability of the spouse,” such as loss of consortium or emotional distress. (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 162-163.)

In rejecting this argument the Court of Appeal said that “Snyder approved of cases applying the doctrine to claims by family members for losses stemming from an employee’s disabling or lethal injury, such as wrongful death, loss of consortium, or emotional distress from witnessing a workplace accident. In contrast, the Supreme Court called into question a case applying the derivative injury doctrine outside these contexts based on causation alone.”

However, this decision is just a small part of the case which has yet to be litigated. The Court of Appeal noted “we have no occasion to decide whether defendants owed Mr. Ek a duty of care or whether plaintiffs can demonstrate that Mr. or Mrs. Ek contracted COVID-19 because of any negligence in defendants’ workplace, as opposed to another source during the COVID-19 pandemic. The parties have not raised these issues, and we decline to address them sua sponte.”