Plaintiff Maria Chavez is the widow of Leodegario Chavez Alvarado, who worked for Alco Harvesting, LLC as a foreman and bus driver. Alco provided decedent and other Alco workers housing at the Hotel Santa Maria. The company, 210 Nicholson, LLC, operated the hotel.

Plaintiff filed a wrongful death case against her husband’s employer and alleged her husband died of COVID-19 complications after contracting the disease while working for Alco. Plaintiff claimed that some of the Alco employees were placed in close living quarters that precluded social distancing. Alco was aware such placement facilitated the transmission of COVID-19. Alco was aware such placement facilitated the transmission of COVID-19.

According to the allegations in her second amended complaint it “was no surprise that a COVID-19 outbreak soon began at the Hotel Santa Maria.” Alco and 210 Nicholson became aware of a COVID-19 outbreak at the hotel well before decedent’s viral exposure. The outbreak was unknown to decedent. Alco failed to report the outbreak to the health department, notify its employees, or “implement adequate safety measures or measures to prevent or curb the outbreak.”

Decedent began feeling ill on or about June 26, 2020, and his symptoms “were those associated with a COVID-19 infection.” Decedent immediately reported feeling unwell to his supervisors. Plaintiff alleged that by virtue of their superior knowledge regarding the outbreak, “Defendants knew, even before [d]ecedent, that he had contracted the virus.” Plaintiff further alleged decedent “was unaware that he had contracted COVID-19. However, upon notifying them of his symptoms, Alco and 210 Nicholson had actual knowledge of [d]ecedent’s illness . . . .” Alco nonetheless failed to inform decedent of the outbreak or that his symptoms were that of COVID-19.”

Decedent tested positive for COVID-19 on July 2, 2020, a week after he had reported his symptoms to Alco. On that date, decedent was placed at a Motel 6. Decedent waited for medication to arrive, but none did. On July 7, 2020, he died of COVID-19 complications. Plaintiff alleged that because of the outbreak, decedent “was exposed to COVID-19 and fell ill. Alco’s deliberate concealment of the outbreak and the nature of decedent’s illness resulted in the aggravation of his illness to the point that he was unable to recover and succumbed to the disease.”

The trial court sustained Alco’s demurrer to the second amended complaint without leave to amend. Plaintiff appealed. The Court of Appeal reversed in the published case of Chavez v. Alco Harvesting, LLC -B329282 (June 2024).

Plaintiff argued that her second amended complaint sufficiently pleaded all elements of the fraudulent concealment exception to the workers’ compensation exclusivity rule. The Court of Appeal agreed.

As a general rule, an employee injured in the course of employment is limited to the remedies available under the Workers’ Compensation Act.

An exception exists “[w]here the employee’s injury is aggravated by the employer’s fraudulent concealment of the existence of the injury and its connection with the employment . . . .” (Lab. Code, § 3602, subd. (b)(2).)2 Thus, three elements comprise this exception: “(1) the employer knew that the plaintiff had suffered a work-related injury; (2) the employer concealed that knowledge from the plaintiff; and (3) the injury was aggravated as a result of such concealment.” (Palestini v. General Dynamics Corp. (2002) 99 Cal.App.4th 80, 90 (Palestini); see also Jimenez v. Mrs. Gooch’s Natural Food Markets, Inc. (2023) 95 Cal.App.5th 645, 658.)

The employer must have actual knowledge of the injury; constructive or imputed knowledge is insufficient. (Hughes Aircraft Co. v. Superior Court (1996) 44 Cal.App.4th 1790, 1796.). In Foster v. Xerox Corp. (1985) 40 Cal.3d 306 (Foster), the California Supreme Court analyzed the pleading requirements for the fraudulent concealment exception. The Court recognized the statutory injunction to “liberally construe pleadings with a view to achieving substantial justice between the parties. (Ibid.; Code Civ. Proc., § 452.) ”

Thus, with respect to the first element of the exception, the Court of Appeal concluded that “Construing the pleadings liberally as Foster did, plaintiff’s SAC fairly apprised Alco of the action’s basis – namely, that Alco knew decedent had contracted COVID-19 from his employment and concealed that knowledge from him, thereby aggravating his illness.”

With respect to the second element of the exception, Alco also argues plaintiff does not allege it “fraudulently concealed the alleged massive outbreak with the intent to induce [d]ecedent to continue working for any benefit.” The Court of Appeal disagreed, and said this “argument fails because the intent to extract more labor is simply not a requirement of the fraudulent concealment exception.”

The SAC sufficiently pleaded the final element of aggravation. The SAC alleged a week elapsed between decedent reporting his symptoms to Alco and a positive COVID-19 test. He died five days after that positive test. The SAC alleged “Alco’s deliberate concealment of the outbreak and the nature of [d]ecedent’s illness resulted in the aggravation of his illness to the point that he was unable to recover and succumbed to the disease.” Alco faults the SAC’s references to aggravation as conclusory.

The Court of Appeal responded by saying this “critique ignores Foster’s guidance that we should liberally construe the SAC, which may be pleaded in general terms. (Cf. Palestini, supra, 99 Cal.App.4th at pp. 89-90.)

“In sum, the SAC survives Alco’s demurrer because it states a cause of action under section 3602, subdivision (b)(2).”

From 1944 through the 1970s, Kaiser Cement and Gypsum Corporation manufactured asbestos-containing products at numerous different facilities. By 2004, more than 24,000 claimants had filed product liability suits against Kaiser alleging that they had suffered bodily injury (primarily asbestosis or cancer) as a result of exposure to Kaiser’s asbestos products. Truck Insurance Exchange, is a primary insurer for Kaiser.

Kaiser tendered these claims to Truck, one of several primary insurers that had issued commercial general liability (CGL) policies to Kaiser during this time period. The subsequent litigation has generated multiple appellate decisions that have addressed a wide range of complex questions regarding insurance coverage and policy interpretation.

In 2001, Truck initiated this insurance coverage action to determine its indemnity and defense obligations to Kaiser. Several years later, Truck amended its complaint to add a cause of action for contribution against several of Kaiser’s excess insurers that had issued first-level excess policies to Kaiser for policy years where the directly underlying primary policy had been exhausted.

Relying on the California Supreme Court’s reasoning in Montrose Chemical Corp. of California v. Superior Court (2020) 9 Cal.5th 215 (Montrose III), Truck argued that the excess insurers’ indemnity obligations were triggered immediately upon exhaustion of the directly underlying primary policies. Truck further reasoned that because the excess insurers owed a coverage duty to Kaiser, they were effectively responsible for indemnifying the same loss as Truck and should therefore be required to contribute to Truck’s coverage costs.

According to the excess insurers, Montrose III’s analysis is limited to excess policies that sit over other excess policies, not first-level excess policies that sit over primary insurance.

The Court of Appeal agreed with the excess insurers that Montrose III did not extend to excess policies that sit over primary insurance, which has characteristics that are distinct from excess insurance including immediate coverage and defense obligations. In so ruling, the court rejected SantaFe Braun, Inc. v. Insurance Co. of North America (2020) 52 Cal.App.5th 19 (SantaFe), which held that Montrose III’s reasoning does apply in the context of first-level excess policies. The court further concluded that because the excess insurers had no coverage obligation under their policies until all primary insurance had been exhausted (including Truck’s primary policy), Truck was not entitled to contribution.

The appeal of this decision to the California Supreme Court required it to resolve the question that it left open in Montrose III: whether standard language in commercial general liability policies that are excess to primary insurance policies should be interpreted to require vertical or horizontal exhaustion. In other words, can an insured access a first-level excess insurance policy upon exhaustion of underlying primary insurance obtained for the same policy period (vertical exhaustion), or is the insured required to exhaust all primary policies issued during the continuous period of damage (horizontal exhaustion)?

Contrary to the Court of Appeal reasoning, the California Supreme Court in Truck Ins. Exchange v. Kaiser Cement & Gypsum Corp.-S273179 (June 2024) concluded that its analysis in Montrose III applies equally here and reversed the Court of Appeal.

In the context of standard “occurrence based” CGL insurance policies, California has adopted what is known as the “all-sums-with-stacking” approach to continuous injuries. This approach has three primary components. First, in Montrose Chemical Corp. v. Admiral Ins. Co. (1995) 10 Cal.4th 645, 656 (Montrose I), the Supreme Court adopted the “continuous injury trigger of coverage” principle (id. at p. 685), under which “bodily injury and property damage that is continuous or progressively deteriorating throughout several policy periods is potentially covered by all policies in effect during those periods.” (Id. at p. 655.) In other words, the insured may call upon any policy that was in effect during the continuous period of injury.

Second, in Aerojet-General Corp. v. Transport Indemnity Co. (1997) 17 Cal.4th 38, the Supreme Court adopted “the ‘all sums’ rule” (State of California v. Continental Ins. Co. (2012) 55 Cal.4th 186, 191 (Continental)), pursuant to which each policy triggered during a long-tail injury is potentially liable for the total amount of the loss, regardless of whether a portion of the loss occurred outside the policy’s coverage period. The rule “envisions that each successive insurer is potentially liable for the entire loss up to its policy limits. When the entire loss is within the limits of one policy, the insured can recover from that insurer, which may then seek contribution from the other insurers on the risk during the same loss.” (Id. at p. 200.)

Third, in Continental, supra, 55 Cal.4th 186, the Supreme Court construed language in standard CGL policies to permit “stacking,” which allows an insured “to add together the maximum limits of all consecutive policies that [were] in place during the [period of continuous injury].” (12 Couch on Insurance (3d ed. 2010) § 169:5; see Continental, at p. 200 [“stacking’ generally refers to the stacking of policy limits across multiple policy periods that were on a particular risk”].) In other words, ” ‘[w]hen the policy limits of a given insurer are exhausted, [the insured] is entitled to seek indemnification from any of the remaining insurers [that were] on the risk [during the continuous period of injury].’ ” (Continental, at p. 200.) If, for example, an insured purchased 10 annual policies that each had a coverage limit of $1 million, and all the policies were triggered by a continuous injury, the insured would be permitted to stack all of the policies to collect up to $10 million in total coverage.

In this current case involving Kaiser, the language of the first-level excess policies is essentially identical – and in some cases actually identical – to the policy language in the higher-level excess policies that the Supreme Court considered in Montrose III. The policies also share many of the same characteristics that it found “strongly suggest[ive]” of vertical, rather than horizontal, exhaustion.

“Thus, as in Montrose III, we believe the first-level excess policies are most reasonably construed as requiring only vertical exhaustion.”

Last April, the California Chamber of Commerce released its initial 2024 job killer list which, at the time, included nine bills dealing with labor and employment, taxation, unemployment insurance, environmental and health care issues. Subsequently, additions and deletions were made to the list as legislative activity progressed.  Three of the five remaining California Chamber of Commerce Job Killer bills missed the end of May deadline to pass the house in which they were introduced.

Stalled Bills: The following job killer bills failed to pass before Friday’s deadline:

– – ACA 16 (Bryan; D-Los Angeles): Has far-reaching negative consequences that would impair government operations, stunt development for new housing, infrastructure and clean energy project development and the strong potential to destabilize California’s economy. This constitutional amendment still is likely to come up for a vote in the next couple of weeks.
– – SB 1327 (Glazer; D-Contra Costa): Implements a discriminatory 7.25% tax on the revenue generated from the sale of digital advertising. The bill is likely unconstitutional and will lead to costly litigation for the state.
– – SB 1497 (Menjivar; D-Los Angeles): Imposes an ill-defined tax on a broad set of entities that will increase costs for goods and services in California.

Amended to Remove Job Killer Tag

AB 2499 (Schiavo; D-Chatsworth) will be amended to remove certain qualifying reasons for leave that are not related to safety, narrow the accommodations provisions, and limit the amount of time off an employee can take for certain reasons. The Appropriations Committee had also amended the threshold of applicability to apply to employers with 25 or more employees, which is consistent with existing law. Before amendments, it significantly expanded the 12-week leave related to crimes and lowered the threshold of applicability to employers with just five employees.

Opposed Bills Stopped: Additionally, three CalChamber-opposed bills also failed to pass their house of origin on time. The following bills are dead for the year:

– – AB 2648 (Bennett; D-Ventura): Prohibits the state from purchasing and all food services inside state facilities from offering any single-use plastic bottled beverages despite this packaging having one of the highest recycling rates in the country and despite the negative impacts to both the environment and state budget from using less efficient and more expensive packaging.
– – AB 3155 (Friedman; D-Glendale): Sets disturbing precedent by creating liability without proof for oil well owners/operators if individuals who lived within 3,200 feet of a wellhead develop certain health conditions.
– – SB 1494 (Glazer; D-Contra Costa): Eliminates an important economic development tool by prohibiting local governments from entering into sales tax sharing agreements with businesses. SB 1494 failed passage on a vote of 17-11 on May 23; reconsideration was granted.

What Remains:

– – SB 1116 (Portantino; D-Burbank) Increased Unemployment Insurance Taxes to Subsidize Striking Workers. SB 1116 will allow striking workers to claim UI benefits when they choose to strike. Because the UI Fund is paid for entirely by employers, SB 1116 will effectively add more debt onto California employers. Moreover, SB 1116 will effectively force employers to subsidize strikes at completely unrelated businesses because the UI Fund’s debt adds taxes for all employers, regardless of whether they’ve had a strike.
– – SB 1327 (Glazer; D-Contra Costa) Tax on Digital Advertising Revenue. Implements a discriminatory 7.25% tax on the revenue generated from the sale of digital advertising. The bill targets taxpayers that annually make at least $2.5 billion of revenue from these services.

Ruben Perez Mireles Jr., 49, of Clovis, and his business associate, John Mena, 29, of Lemoore, were arraigned  on multiple felony counts including insurance fraud, grand theft, and tax fraud after a task force investigation led by the California Department of Insurance found they allegedly underreported over $29.2 million in payroll for multiple businesses to illegally save on workers’ compensation insurance premium and taxes.

Mireles and Mena operated two Kings County farm labor contracting companies, Vista Pacific Labor Solutions, Inc. and Calzona Ag Management, Inc. The investigation by the Central Valley Workers’ Compensation Fraud Task Force found that Mireles, owner of Vista Pacific Labor Solutions, Inc, underreported $7.6 million in employee payroll to his workers’ compensation insurance carrier for the period of September 2019 through August 2020. This underreporting resulted in a premium loss of $1.7 million.

The investigation revealed Mireles then created another farm labor contracting company, Calzona Ag Management, Inc. Mireles recruited Mena and together they shifted payroll to this new company to avoid an increased assessment of the business’ workplace safety, which would have more than doubled the insurance premium. Together, they underreported $8.8 million in employee payroll for the period of December 2019 through December 2021, resulting in an additional premium loss of $1.8 million.

Additionally, the task force investigation found Mireles underreported $12.8 million in employee payroll to the Employment Development Department and failed to report personal income to the Franchise Tax Board. This underreporting resulted in a combined loss of approximately $3 million for unpaid tax liability, penalties, and interest. Mireles and Mena’s fraud scheme defrauded their insurance carries, EDD, and FTB out of over $6.5 million.

Investigators also discovered that Mireles fraudulently obtained a COVID-19 Paycheck Protection Program loan. After an investigation led by the FBI, Mireles pleaded guilty and was sentenced to one year in prison. Mireles is also in court today on additional felony charges for his role in an earlier workers’ compensation insurance fraud scheme, also uncovered by the task force.

Mireles has been charged with eight felony counts including workers’ compensation insurance fraud, grand theft, unemployment insurance fraud, and tax fraud. Mena has been charged with three felony counts of workers’ compensation insurance fraud and one felony count of grand theft.

The Central Valley Workers’ Compensation Fraud Task Force is an inter-agency anti-fraud partnership with members from the California Department of Insurance, the California Employment Development Department, the California Franchise Tax Board, the Kings County District Attorney’s Office, the Fresno County District Attorney’s Office, the Kern County District Attorney’s Office, the Madera County District Attorney’s Office, the Merced County District Attorney’s Office, the San Luis Obispo County District Attorney’s Office, and the Tulare County District Attorney’s Office.

The case is being prosecuted by Kings County District Attorney Sarah Hacker.