A California Court of Appeal Permits Wrongful Death Covid-19 Action To Proceed Against Employer For Death of an Employee’s Spouse

On December 21, 2021, the California Court of Appeal, Second District, Division One, rendered a decision permitting an action to proceed against an employer based on the claim that the employer’s purportedly inadequate covid-19 protocols resulted in the death of its employee’s spouse. (See’s Candies, Inc., et al. v. Superior Court, Case No. B312241, Certified for Publication.)

The employee, Matilda Ek, alleges that she contracted covid-19 at work as a result of her employer’s (See’s Candies) inadequate safety measures. Mrs. Ek alleges that her husband, Arturo Ek (“Decedent”) subsequently caught the disease from Plaintiff while she was recuperating at home and ultimately succumbed to the disease about a month later. Mrs. Ek, and Decedent’s surviving children (together “Plaintiffs”), filed a wrongful death lawsuit against See’s Candies in the Superior Court of California, County of Los Angeles, Case No. 20STCV49673.

See’s Candies filed a demurrer to the complaint, contending that the claims are preempted by the exclusivity provisions of the Workers’ Compensation Act (Cal. Labor Code § 3200 et seq.). Specifically, See’s Candies asserted the “derivative injury doctrine” which preempts causes of action against an employer that are “collateral to or derivative of” a compensable workplace injury. (King v. CompPartners, Inc. (2018) 5 Cal.5th 1039, 1051, citing to Snyder v. Michael’s Stores, Inc. (1997) 16 Cal.4th 991, 1000.) In essence, See’s Candies argued that the lawsuit would not exist but for the claimed injury sustained by its employee and is therefore barred under the derivative injury doctrine.

The Appellate Court disagreed with See’s Candies argument, noting that an employee’s injury being the biological cause of a nonemployee’s injury does not automatically make a claim derivative of the employee’s injury under the meaning of the doctrine. Notably, the Court reasoned that the defense position was too broad, and inconsistent with the Court’s interpretation of prior case law. The Court went through a number of different cases which ultimately, in its view, showed that the derivative injury doctrine did not bar the claims asserted by Plaintiffs in this case.

Notwithstanding, the Court provided a potentially fruitful roadmap for future challenges to cases brought against an employer alleging similar facts. Specifically, the court noted that “[u]naddressed 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 … We express no opinion on the question of duty apart from that it would appear worthy of exploration.”