Menu Close

A California woman, 65 year old Corby Kuciemba, sued her husband’s employer because she believes he caught COVID at work and brought it home with him – ultimately infecting her also. He was the only person in their household to have frequent contact with others was Mr. Kuciemba, through his work at Victory’s jobsite.

She and her husband, Robert Kuciemba, alleged in their Oct. 23, 2020 lawsuit that his employer, Nevada-based Victory Woodworks, violated local and federal virus-safety guidelines when it moved workers from one site to another in the San Francisco region.

According to the Kuciembas, Victory knowingly transferred workers from an infected construction site to Mr. Kuciemba’s jobsite without following the safety procedures required by the Health Order. Mr. Kuciemba was forced to work in close contact with these employees and soon developed COVID-19, which he brought back home.

The company’s failure to take basic precautions allegedly caused Robert Kuciemba to contract the virus and unknowingly bring it home and infect his wife, and both required extended hospital stays and suffer from after-effects.

The closely watched case was removed by the employer to the Federal District Court in Northern California. The district court granted Victory’s motion to dismiss, holding that Mrs. Kuciemba’s claims against Victory were barred by California’s derivative injury doctrine and, in the alternative, that Victory did not owe a duty to Mrs. Kuciemba. A timely appeal was filed in the 9th Circuit Court of Appeals.

The parties dispute the scope of California’s derivative injury doctrine and whether it reaches the facts of this case. Victory argues, relying primarily on Salin v. Pacific Gas & Electric Co., 185 Cal. Rptr. 899 (Cal. Ct. App. 1982), that this doctrine bars all claims against an employer that flow in fact from a workplace injury suffered by an employee.

The Kuciembas disagree. They highlight that Salin has been twice called into question by the California Supreme Court and has not been favorably cited by a California court in decades.

After briefing concluded, the California Court of Appeal decided See’s Candies, Inc. v. Superior Court, 288 Cal. Rptr. 3d 66 (Cal. Ct. App. 2021). Faced with essentially identical facts to those here, the Court of Appeal largely agreed with the Kuciembas’ interpretation of Snyder and held that the derivative injury rule does not bar claims brought by an employee’s spouse against an employer for injuries arising from a workplace COVID-19 infection.

But, the 9th Circuit concluded by noting “All the same, Snyder dealt with very different facts from those present here and the Court of Appeal’s reasoning in See’s Candies – although instructive – does not eliminate the need for clear guidance from California’s highest court.”

“In addition, no controlling precedent resolves whether Victory owed Mrs. Kuciemba a duty of care.”

Thus federal case authority dictates that California’s courts be offered the opportunity to answer these questions in the first instance. The 9th Circuit panel certified to the Supreme Court of California the following questions: 1) If an employee contracts COVID-19 at his workplace and brings the virus home to his spouse, does California’s derivative injury doctrine bar the spouse’s claim against the employer? 2) Under California law, does an employer owe a duty to the households of its employees to exercise ordinary care to prevent the spread of COVID-19?