The opinion
Filed 12/21/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
SEE’S CANDIES, INC., et al., B312241
Petitioners, (Los Angeles County
Super. Ct. No. 20STCV49673)
v.
OPINION AND ORDER
SUPERIOR COURT OF DENYING PETITION FOR
CALIFORNIA FOR THE COUNTY WRIT OF MANDATE
OF LOS ANGELES,
Respondent;
MATILDE EK et al.,
Real Parties in Interest.
ORIGINAL PROCEEDING; petition for writ of mandate.
Daniel M. Crowley, Judge. Petition is denied.
Munger, Tolles & Olson, Joseph D. Lee (Los Angeles) and
Malcolm A. Heinicke (San Francisco) for Petitioners.
Gibson, Dunn & Crutcher, Bradley J. Hamburger
(Los Angeles) and Lucas C. Townsend (Washington, D.C.) for
Chamber of Commerce of the United States of America,
California Chamber of Commerce, California Workers’
Compensation Institute, Restaurant Law Center, California
Restaurant Association, National Association of Manufacturers,
National Retail Federation, and National Federation of
Independent Business Small Business Legal Center as Amici
Curiae on behalf of Petitioners.
No appearance for Respondent.
Krissman & Silver, Joel Krissman and Donna Silver for
Real Parties in Interest.
________________________
See’s Candies, Inc. and See’s Candy Shops, Inc.
(collectively, defendants) petition for a writ of mandate directing
the trial court to vacate an order overruling their demurrer to a
wrongful death action filed by real parties in interest Matilde Ek
(Mrs. Ek), Karla Ek-Elhadidy, Lucila del Carmen Ek, and Maria
Ek-Ewell (collectively, plaintiffs). Plaintiffs are the wife and
daughters of decedent Arturo Ek (Mr. Ek).
Plaintiffs allege that Mrs. Ek, defendants’ employee,
contracted COVID-19 at work because of defendants’ failure to
implement adequate safety measures. They claim that Mr. Ek
subsequently caught the disease from Mrs. Ek while she
convalesced at home. He died from the disease a month later.
2
Defendants filed a demurrer asserting that plaintiffs’
claims are preempted by the exclusivity provisions of the
Workers’ Compensation Act (WCA; Lab. Code,1 § 3200 et seq.).
Specifically, 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.)
Defendants argued below, as they do in this writ
proceeding, that under Snyder, a claim is derivative if it would
not exist absent injury to the employee. Because plaintiffs allege
Mr. Ek contracted COVID-19 from Mrs. Ek, who in turn
contracted the disease at work, defendants contend Mr. Ek’s
death would not have occurred absent Mrs. Ek’s workplace
exposure, and thus was derivative of Mrs. Ek’s work-related
injury. Accordingly, defendants argue that plaintiffs’ claims are
subject to WCA exclusivity. The trial court rejected this
argument and overruled the demurrer.
We agree with the trial court. Assuming arguendo that
Mrs. Ek’s workplace infection constitutes an injury for purposes
of the WCA, we reject defendants’ efforts to apply the derivative
1 Unspecified statutory citations are to the Labor Code.
3
injury doctrine to any injury causally linked to an employee
injury. Defendants’ interpretation is inconsistent with the
language of Snyder, which establishes that the fact an employee’s
injury is the biological cause of a nonemployee’s injury does not
thereby make the nonemployee’s claim derivative of the
employee’s injury.
Further, Snyder’s discussion of prior case law applying the
derivative injury doctrine does not support applying the doctrine
based solely on causation. 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.
Defendants’ interpretation of the derivative injury doctrine
would lead to anomalous results, shielding employers from civil
liability in contexts the drafters of the WCA could not have
intended. Although the breadth of the derivative injury doctrine
presents serious policy considerations, Snyder recognizes that
such policy considerations are within the province of the
Legislature and should not be judicially addressed by expansion
of the derivative injury doctrine.
Amici arguing in support of defendants describe the trial
court’s ruling as an “outlier,” and contend other jurisdictions have
dismissed complaints alleging similar facts and legal theories.
Amici’s hyperbole notwithstanding, the rulings they cite either
were decided on bases other than workers’ compensation
exclusivity or do not articulate their reasoning sufficiently to be
4
persuasive. Analogous precedents from other jurisdictions
support our holding.
Because the parties have framed this writ exclusively to
address the applicability of the WCA, 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.
Accordingly, we deny the petition.
PROCEDURAL BACKGROUND
Plaintiffs filed their complaint against defendants on
December 30, 2020, alleging the following:
“Defendants operated a candy assembly and packing line
and employed workers in the course and scope of said business,
including [Mrs. Ek]. During said time there was a global,
national, state and County of Los Angeles pandemic and
epidemic, Sars-Cov-2 coronavirus, commonly referred to as Covid-
19. Defendants were aware of the highly dangerous, contagious
and transmissible nature of that virus, particularly where people
are working and interacting in close proximity to each other.
Further, Defendants’ employees at the plant complained directly
and through their union representative to Defendants about the
close proximity of their work environment[,] requesting safety
mitigation efforts due to fear of the virus. Defendants failed to
operate and conduct their business as would and should be
expected to protect their employees, including [Mrs. Ek], from the
known high risk of this viral infection by failing to put known,
5
appropriate and necessary safety mitigation measures in place.
Defendants knew and should have known that the workers’
duties, locations within the plant, and physical distancing from
one another, created a foreseeable and high risk of viral infection
and transmission among the workers, including [Mrs. Ek].
Defendants knew and should have known that their failure to
take appropriate and necessary safety mitigation measures
would increase the known and foreseeable risk that their
workers, like [Mrs. Ek], would become infected in the course and
scope of their work for Defendants, and carry said viral infection
home infecting one or more of their family members[.]”
The complaint continued: “On or about 3/1/20–3/19/20,
[Mrs. Ek] was working without appropriate and necessary social
distancing on the packing line, using restrooms and break-rooms
at times inches [or] only a few feet from other workers, some of
whom were coughing [and] sneezing, and became infected along
with other co-workers with Covid-19. [Mrs. Ek], unable to work[,]
then convalesced at her home where she resided with her
husband, [Mr. Ek], and one of their daughters, Plaintiff Karla
Ek-Elhadidy, who provided care for her. Within a few days, on or
about 3/22/20 both [Mr. Ek], and daughter Karla Ek-Elhadidy,
became sick with Covid-19. [Mr. Ek], after struggling with the
illness, died as a proximate and legal cause therefrom, on
4/20/20.”
Plaintiffs asserted causes of action for general negligence
and premises liability. They sought “all recoverable damages for
the wrongful death of [Mr. Ek], including loss of love, care,
comfort and society.” Mrs. Ek, as Mr. Ek’s successor in interest,
also sought “economic losses for medical and care costs for the
6
period of time [Mr. Ek] survived after being infected with Covid-
19.”
Defendants filed a demurrer contending that plaintiffs’
claims were preempted by the WCA under the derivative injury
doctrine. The doctrine applied, defendants argued, because
plaintiffs could not state a claim against defendants for Mr. Ek’s
death without alleging an injury to an employee, namely Mrs.
Ek’s workplace infection with COVID-19. Plaintiffs filed an
opposition.
Following a hearing, the trial court overruled the demurrer.
The court found that any injury to Mrs. Ek was “irrelevant” to
plaintiffs’ claims because “that injury is not the injury upon
which Plaintiffs sue.” Rather, “[i]t was [Mr. Ek’s] exposure to the
COVID-19 brought home by Mrs. Ek that Plaintiffs claim caused
Plaintiffs’ injury.”
The trial court continued: “Mrs. Ek did not have to become
ill herself for Plaintiffs’ injury to occur, and, so, contrary to
Defendants’ position, Plaintiffs do not allege that their injuries
would not have existed in the absence of the workplace injury to
Mrs. Ek. Accordingly, Plaintiffs’ claimed injuries are not
collateral to nor derivative of Mrs. Ek’s becoming ill with
COVID-19. Were Plaintiffs alleging that their injuries stemmed
from Mrs. Ek’s illness, say, because they lost income or missed
out on Mrs. Ek’s companionship while she was sick with the
COVID-19 she contracted at work, a different outcome would
result.”
The trial court analogized the allegations in the complaint
to those in Kesner v. Superior Court (2016) 1 Cal.5th 1132
(Kesner), a case holding that an employer could be held liable for
injuries to an employee’s family members caused by asbestos
7
fibers on the employee’s clothing. (See id. at p. 1140.) The court
also discussed Snyder, which held that the derivative injury
doctrine did not apply to fetal injuries stemming from a mother’s
exposure to carbon monoxide in the workplace. (See Snyder,
supra, 16 Cal.4th at p. 994.) The court characterized both Kesner
and Snyder as cases in which plaintiffs “sustained their own
independent injuries as a result of their being exposed to a toxin
in a related employee’s workspace.”
Defendants petitioned for a writ of mandate ordering the
trial court to vacate the overruling of the demurrer. We issued
an order to show cause why a peremptory writ should not be
granted. Plaintiffs filed a return, and defendants filed a reply.
PROPRIETY OF WRIT REVIEW
An appellate court may review an order overruling a
demurrer prior to final judgment through a writ of mandate.
(California Dept. of Tax & Fee Administration v. Superior Court
(2020) 48 Cal.App.5th 922, 929 (California Dept. of Tax & Fee
Administration).) “However, writ review is appropriate only
when (1) ‘the remedy by appeal would be inadequate’ [citation] or
(2) the writ presents a ‘significant issue of law’ or an issue of
‘widespread’ or ‘public interest’ [citations].” (Ibid.) Employer
liability for COVID-19 exposure is a significant issue of law that
is also of public interest; indeed, another case with allegations
similar to those of the instant case is pending before the
Los Angeles Superior Court. (See Gomez v. Logix Federal Credit
Union, Inc. (Super. Ct. Los Angeles County, Apr. 27, 2021,
No. 21STCV15877.) On this basis we issued the order to show
cause.
8
STANDARD OF REVIEW
“In reviewing an order overruling a demurrer, we ask
whether the operative complaint ‘ “states facts sufficient to
constitute a cause of action” ’ [citation] and, if it does, whether
that complaint nevertheless ‘ “disclose[s] some defense or bar to
recovery” [citation]’ [citation]. In undertaking the inquiry, we
accept as true all ‘ “ ‘ “material facts properly pleaded” ’ ” ’[2] and
consider any materials properly subject to judicial notice.
[Citation.] We independently review a trial court’s order
overruling a demurrer [citation], including its analysis
interpreting constitutional and statutory provisions [citation].”
(California Dept. of Tax & Fee Administration, supra,
48 Cal.App.5th at p. 929.)
DISCUSSION
A. The Workers’ Compensation Act and Derivative
Injury Doctrine
The WCA is “ ‘a comprehensive statutory scheme governing
compensation given to California employees for injuries incurred
in the course and scope of their employment.’ [Citations.] At the
core of the WCA is what we have called the ‘ “ ‘compensation
bargain.’ ” ’ [Citation.] Under this bargain, ‘ “the employer
assumes liability for industrial personal injury or death without
2 Notably, we accept as true for purposes of this writ
proceeding that Mrs. Ek contracted COVID-19 at work due to
defendants’ negligence, and that Mr. Ek contracted the disease
from Mrs. Ek. Whether these allegations in fact are true is a
matter for the trial court, and we express no opinion on these
questions.
9
regard to fault in exchange for limitations on the amount of that
liability.” ’ [Citation.] The employee, for his or her part, ‘ “is
afforded relatively swift and certain payment of benefits to cure
or relieve the effects of industrial injury without having to prove
fault but, in exchange, gives up the wider range of damages
potentially available in tort.” ’ [Citation.]” (King, supra,
5 Cal.5th at pp. 1046–1047.)
“To give effect to the compensation bargain underlying the
system, the WCA generally limits an employee’s remedies against
an employer for work-related injuries to those remedies provided
by the statute itself.” (King, supra, 5 Cal.5th at p. 1051.) Put
another way, the WCA preempts “causes of action premised on a
compensable workplace injury” (ibid.), which instead must be
addressed within the workers’ compensation system. This
exclusivity is enshrined particularly in sections 3600 and 3602.
(See King, at p. 1051.)
Under section 3600, subdivision (a), when the “conditions of
compensation” are met, workers’ compensation liability “shall,
without regard to negligence, exist against an employer for any
injury sustained by his or her employees arising out of and in the
course of the employment and for the death of any employee if
the injury proximately causes death . . . .” This liability is “in
lieu of any other liability whatsoever to any person,” subject to
exceptions not applicable here. (§ 3600, subd. (a).) Section 3602,
subdivision (a) provides, “Where the conditions of compensation
set forth in Section 3600 concur, the right to recover
compensation is . . . the sole and exclusive remedy of the
employee or his or her dependents against the employer,” again
subject to exceptions not relevant here.
10
As applicable to this case, the “conditions of compensation”
include that “at the time of the injury, both the employer and the
employee are subject to the compensation provisions of [the
WCA],” “the employee is performing service growing out of and
incidental to his or her employment and is acting within the
course of his or her employment,” and “the injury is proximately
caused by the employment, either with or without negligence.”
(§ 3600, subd. (a)(1)–(3).)
WCA exclusivity is not limited to claims brought by injured
employees themselves. The workers’ compensation system also is
“the exclusive remedy for certain third party claims deemed
collateral to or derivative of the employee’s injury.” (Snyder,
supra, 16 Cal.4th at p. 997.) Courts have referred to this
principle as the “derivative injury rule” or “derivative injury
doctrine.” (See, e.g., id. at p. 1000.)
The rule follows from the language of the WCA itself: “The
employer’s compensation obligation is ‘in lieu of any other
liability whatsoever to any person’ (§ 3600, italics added),
including, but not limited to, the employee’s dependents (§ 3602)
for work-related injuries to the employee. This statutory
language conveys the legislative intent that ‘the work-connected
injury engender[ ] a single remedy against the employer,
exclusively cognizable by the compensation agency.’ [Citation.]”
(Snyder, supra, 16 Cal.4th at pp. 996–997.)
Examples of claims courts have held barred under this
doctrine include “civil actions against employers by
nondependent parents of an employee for the employee’s
wrongful death [citation], by an employee’s spouse for loss of the
employee’s services [citation] or consortium [citations], and for
emotional distress suffered by a spouse in witnessing the
11
employee’s injuries [citations].” (Snyder, supra, 16 Cal.4th. at
p. 997.)
The derivative injury doctrine also bars causes of action
based on “injuries that arose during the treatment of [an
employee’s] industrial injury and in the course of the workers’
compensation claims process.” (King, supra, 5 Cal.5th at
pp. 1052–1053.) In King, for example, the doctrine preempted an
employee’s claim that he suffered injury when a workers’
compensation utilization reviewer denied him a particular drug.
(Id. at p. 1046.) Similarly, the doctrine preempts civil claims for
contractual or economic damages arising from the workers’
compensation claims process, for example, by employees
contending their workers’ compensation benefits were wrongfully
delayed or discontinued, or by medical providers “seeking
compensation for services rendered to an employee in connection
with his or her workers’ compensation claim.” (Charles J.
Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001)
24 Cal.4th 800, 815 (Vacanti).)3
Defendants contend that the derivative injury doctrine
applies when an employee contracts a virus at work,
subsequently infects a family member, and the family member
dies as a result. Their argument relies primarily on two
3 In Vacanti, plaintiff medical providers alleged workers’
compensation insurers intentionally delayed or denied payments
in bad faith. (Vacanti, supra, 24 Cal.4th at p. 823.) The Supreme
Court held these claims were collateral to or derivative of
workplace injuries. (Id. at p. 815.) Although this barred some of
plaintiffs’ causes of action (id. at p. 823), it did not bar their
antitrust, RICO, and conspiracy claims, which alleged acts by the
defendants the court held were outside the risks encompassed by
the compensation bargain. (Id. at pp. 825–828.)
12
sentences from Snyder. First, “[T]he derivative injury rule
governs cases in which ‘the third party cause of action [is]
derivative of the employee injury in the purest sense: It simply
would not have existed in the absence of injury to the employee.’
[Citation.]” (Snyder, supra, 16 Cal.4th at p. 998.) Second, “[T]he
rule applies when the plaintiff, in order to state a cause of action,
must allege injury to another person—the employee.” (Ibid.)
Defendants assert the instant case meets this test because
Mr. Ek’s illness would not have occurred but for Mrs. Ek
contracting the virus at work and transmitting it to him. In
other words, Mr. Ek’s injury “ ‘would not have existed in the
absence of injury’ ” to Mrs. Ek. (Snyder, supra, 16 Cal.4th at
p. 998.) Further, in order to state a cause of action against
defendants, plaintiffs “must allege injury to . . . the employee”
(ibid.), because Mrs. Ek’s alleged workplace infection is the only
link between the harm to Mr. Ek and defendants’ alleged
negligence.
While these two sentences from Snyder in isolation provide
fodder for defendants’ interpretation, in the full context of the
Snyder opinion defendants’ contention is not persuasive.
Accepting for purposes of this writ proceeding that Mrs. Ek’s
contraction of a virus, without more, constitutes a cognizable
WCA injury, defendants’ contention that any injury caused by an
employee injury necessarily falls within the derivative injury
doctrine is inconsistent with other language in Snyder as well its
analysis of case law establishing the boundaries of the doctrine.
Accepting defendants’ position would also lead to anomalous
results and extend the “compensation bargain” beyond its
underlying rationale.
13
We next turn to a detailed discussion of Snyder.4
B. Snyder
Snyder involved a civil suit for damages brought by
Mikayla Snyder, a minor, and her mother and father, Naomi and
David Snyder, against Naomi’s former employer, Michael’s
Stores, Inc. (Michael’s), and others.5 (Snyder, supra, 16 Cal.4th
at p. 995.) The plaintiffs alleged that “Michael’s negligently
allowed a janitorial contractor to operate a propane-powered
floor-buffing machine in the store without adequate ventilation,
resulting in hazardous levels of carbon monoxide.” (Ibid.)
“[B]oth Naomi and Mikayla, who was then in utero, were exposed
to toxic levels of carbon monoxide . . . .” (Ibid.) Naomi was
“taken to the hospital with symptoms of nausea, headaches and
respiratory distress,” and “Mikayla suffered permanent damage
to her brain and nervous system, causing her to be born with
cerebral palsy and other disabling conditions.” (Ibid.) Mikayla
sought damages for her physical injuries, and her parents sought
“economic damages for the increased medical, educational and
other expenses they have incurred and will incur due to
Mikayla’s physical injuries.” (Ibid.)
4 Kesner, cited by the trial court, did not address workers’
compensation exclusivity, but rather whether the defendant
employers had a duty to protect the family members of their
employees from exposure to asbestos fibers brought into the home
on the employees’ clothing and personal effects. (See Kesner,
supra, 1 Cal.5th at p. 1140.) Kesner therefore is not instructive
on the application of the derivative injury doctrine.
5 The Snyder opinion refers to the plaintiffs by their first
names (see, e.g., Snyder, supra, 16 Cal.4th at pp. 994–995), and
we shall do the same.
14
The trial court sustained Michael’s demurrer, concluding
that the WCA provided the exclusive remedy for the plaintiffs’
claims. (Snyder, supra, 16 Cal.4th at p. 995.) The trial court
relied on Bell v. Macy’s California (1989) 212 Cal.App.3d 1442
(Bell), “which held fetal injuries are, as a matter of law,
derivative of injury to the pregnant mother.” (Snyder, at p. 994,
citing Bell, at pp. 1453–1454.) The Court of Appeal reversed,
“explicitly rejecting Bell’s rationale and holding.” (Snyder, at
p. 994.) The Supreme Court granted review to resolve the
conflict between Bell and the Court of Appeal’s decision in
Snyder. (Snyder, at p. 995.)
Bell involved a pregnant worker who complained at her
workplace of severe abdominal pain. A nurse provided by her
employer “misdiagnosed the worker’s condition as gas pains and
delayed calling for an ambulance.” The mother ultimately went
to the hospital, where doctors discovered she had a ruptured
uterus. The baby “suffered consequential injuries including brain
damage.” The Bell court accepted for purposes of the appeal that
“the nurse’s delay in calling an ambulance caused a significant
portion of the fetal injuries.” (Snyder, supra, 16 Cal.4th at p. 997,
citing Bell, supra, 212 Cal.App.3d at pp. 1446–1447.)
The Bell majority “concluded the derivative injury rule
barred the tort claims of the child (called Baby Freytes in the
opinion) because the child’s prenatal injury ‘was a collateral
consequence of the treatment of Bell [the mother].’ [Citation.]
‘[B]ecause the injuries to Baby Freytes were the direct result of
Macy’s work-related negligence towards Bell, they derived from
that treatment and are within the conditions of compensation of
the workers’ compensation law.’ [Citation.] More generally,
the Bell majority reasoned that, even if the employee mother was
15
not herself injured, a ‘central physical fact . . . compels
application of the [derivative injury] doctrine: that the fetus in
utero is inseparable from its mother. Any injury to it can only
occur as a result of some condition affecting its mother. When, as
in the case at bench, the condition arises in the course of
employment, the derivative injury doctrine would apply.’
[Citation.]” (Snyder, supra, 16 Cal.4th at pp. 997–998, quoting
Bell, supra, 212 Cal.App.3d at p. 1453 & fn. 6.)
The Supreme Court in Snyder held that Bell misapplied the
derivative injury doctrine. (Snyder, supra, 16 Cal.4th at p. 997.)
The court rejected the proposition that “workers’ compensation
exclusivity extends to all third party claims deriving from some
‘condition affecting’ the employee,” or that “a nonemployee’s
injury [is] collateral to or derivative of an employee injury merely
because they both resulted from the same negligent conduct by
the employer.” (Id. at p. 998.) “The employer’s civil immunity is
not for all liability resulting from negligence toward employees,
but only for all liability, to any person, deriving from an
employee’s work-related injuries.” (Ibid.)
Quoting the dissent in Bell, Snyder stated, “[T]he
derivative injury rule governs cases in which ‘the third party
cause of action [is] derivative of the employee injury in the purest
sense: It simply would not have existed in the absence of injury
to the employee.’ [Citation.]” (Snyder, supra, 16 Cal.4th at
p. 998.) “[T]he rule applies when the plaintiff, in order to state a
cause of action, must allege injury to another person—the
employee.” (Ibid.)
The court explained that in prior cases applying the
derivative injury doctrine to third party claims, the actions were
“necessarily dependent on the existence of an employee injury.”
16
(Snyder, supra, 16 Cal.4th at p. 998.) For example, parents could
not “s[eek] their own damages for the work-related death of their
minor son” because the claim “existed ‘by reason of the injury
accruing to the employee.’ ” (Ibid., quoting Treat v. Los Angeles
Gas etc. Corp. (1927) 82 Cal.App. 610, 613, 616 (Treat).)
WCA exclusivity also applies to “claims for loss of services
or consortium by a nonemployee spouse” because such claims are
“ ‘based on the physical injury or disability of the [employee]
spouse.’ ” (Snyder, supra, 16 Cal.4th at pp. 998–999, quoting
Cole v. Fair Oaks Fire Protection Dist., supra, 43 Cal.3d at
p. 163.) “While the losses for which damages are sought in a
consortium action may properly be characterized as ‘separate and
distinct’ from the losses to the physically injured spouse
[citation], the former are unquestionably dependent, legally as
well as causally, on the latter. One spouse cannot have a loss of
consortium claim without a prior disabling injury to the other
spouse.” (Snyder, at p. 999.) “Similarly, a claim for negligent or
intentional infliction of emotional distress, based on the plaintiff’s
having witnessed the physical injury of a close relative [at the
relative’s workplace], is logically dependent on the prior physical
injury,” and thus “barred as ‘deriv[ing] from injuries sustained by
an employee in the course of his employment.’ ” (Ibid., quoting
Williams v. Schwartz (1976) 61 Cal.App.3d 628, 634.)
Though it wrote approvingly of the cases applying the
derivative injury doctrine to claims for an employee’s wrongful
death, loss of consortium by an employee’s spouse, and the
emotional distress of a relative who witnessed an employee’s
workplace injury, the Supreme Court called into question the
holding of Salin v. Pacific Gas & Electric Co. (1982)
136 Cal.App.3d 185 (Salin), which “appl[ied] the derivative injury
17
rule to an action by an employee for wrongful deaths of the
employee’s children, where the employee alleged he killed his
children as a result of insanity caused by working conditions.”
(Snyder, supra, 16 Cal.4th at p. 999, fn. 2.)
The court stated, “While we have no occasion here to rule
on the correctness of the decision in Salin, we observe
that sections 3600 through 3602 do not directly support
the Salin court’s extension of the derivative injury rule to third
party injuries allegedly caused by an injured employee’s
postinjury acts.” (Snyder, supra, 16 Cal.4th at p. 999, fn. 2.)
Turning back to Bell, the Snyder court observed the proper
question “was not whether Baby Freytes’s injuries resulted from
the employer’s negligent treatment of Bell or from ‘some
condition affecting’ Bell [citation], but, rather, whether Baby
Freytes’s claim was legally dependent on Bell’s work-
related injuries.” (Snyder, supra, 16 Cal.4th at p. 999.) The court
found “evidence of such dependence” lacking in the Bell opinion.
(Ibid.) “Although the fetal injuries resulted in part from the
mother’s ruptured uterus, the appellate court and the parties all
assumed that ‘Bell’s ruptured uterus was unrelated to her
employment save only that it occurred during working hours and
on Macy’s premises.’ [Citation.] As to the nurse’s delay in
summoning an ambulance, the majority’s recitation of the
evidence indicates simply that the delay ‘caused significant injury
to Baby Freytes’ [citation]; nothing in the majority opinion
suggests Baby Freytes’s claim depended conceptually on injuries
the delay caused to Bell.” (Ibid.)
The Snyder court disagreed with Bell’s conclusion that the
inseparability of a fetus from the mother “dictat[es] application of
the derivative injury rule to all fetal injuries. Biologically, fetal
18
and maternal injury have no necessary relationship. The
processes of fetal growth and development are radically different
from the normal physiological processes of a mature human.
Whether a toxin or other agent will cause congenital defects in
the developing embryo or fetus depends heavily not on whether
the mother is herself injured, but on the exact stage of the
embryo or fetus’s development at the time of exposure, as well as
on the degree to which maternal exposure results in embryonic or
fetal exposure. [Citation.] Even when the mother is injured,
moreover, the derivative injury rule does not apply unless the
child’s claim can be considered merely collateral to the mother’s
work-related injury, a conclusion that rests on the legal or logical
basis of the claim rather than on the biological cause of the fetal
injury.” (Snyder, supra, 16 Cal.4th at p. 1000.)
Applying these principles to the case before it, the Snyder
court concluded the plaintiffs’ claims were not barred by the
derivative injury doctrine. “Plaintiffs alleged simply that both
Naomi and Mikayla were exposed to toxic levels of carbon
monoxide, injuring both. Mikayla sought recompense for her own
injuries. Since Mikayla was not herself breathing at the time of
the accident, that her exposure to carbon monoxide occurred
through Naomi’s inhalation of the fumes and the toxic substance
conveyed to her through the medium of her mother’s body can be
conceded. As we have emphasized above, however, the derivative
injury doctrine does not bar civil actions by all children who were
harmed in utero through some event or condition affecting their
mothers; it bars only attempts by the child to recover civilly for
the mother’s own injuries or for the child’s legally dependent
losses. Mikayla does not claim any damages for injury to Naomi.
Nor does the complaint demonstrate Mikayla’s own recovery is
19
legally dependent on injuries suffered by Naomi.” (Snyder,
supra, 16 Cal.4th at p. 1000.) The court summarized cases from
other jurisdictions similarly holding that fetal injuries were not
subject to workers’ compensation preemption. (Id. at pp. 1001–
1002.)6
Michael’s, the defendant in Snyder, argued “permitting
children to pursue civil actions for prenatal injuries suffered in
their parents’ workplaces exposes employers to ‘liability for
injuries allegedly arising out of commonplace industrial accidents
and thus defeats the “compensation bargain,” ’ ” a concern also
raised by the Bell court. (Snyder, supra, 16 Cal.4th at p. 1004.)
The Supreme Court recognized this concern “may be substantial,”
but was “more properly addressed to the Legislature than to this
court.” (Ibid.)
The court emphasized that the “ ‘compensation bargain’ . . .
is between businesses and their employees and generally does not
include third party injuries.” (Snyder, supra, 16 Cal.4th at
p. 1004.) “The employee’s ‘concession’ of a common law tort
action under sections 3600 to 3602 extends, as we have seen, to
family members’ collateral losses deriving from the employee’s
injury. Neither the statutory language nor the case law,
however, remotely suggests that third parties who, because of a
business’s negligence, suffer injuries—logically and legally
independent of any employee’s injuries—have conceded their
common law rights of action as part of the societal ‘compensation
bargain.’ ” (Snyder, at pp. 1004–1005.)
6 The court rejected arguments that the Legislature had
impliedly endorsed the holding of Bell or that the fetus herself
could be considered an employee of Michael’s. (Snyder, supra,
16 Cal.4th at pp. 1002–1003.)
20
The court noted the difficult policy choices it would have to
make if it “formulat[ed] a rule of civil immunity for fetal injuries.”
(Snyder, supra, 16 Cal.4th at p. 1005.) “[T]he current workers’
compensation system provides little if any compensation to
parents for birth defects or other harms their child suffers as a
result of injury in the mother’s workplace,” and “provides none to
the child.” (Id. at pp. 1005–1006.) The court asked whether a
rule of civil immunity for fetal injuries would have to be “coupled
with a provision” allowing payments to parents and children not
currently permitted. (Id. at p. 1005.) “These are questions that
only the political branches of government can answer.” (Id. at
p. 1006.)
C. Analysis
1. Third-party injuries are not subject to the
derivative injury doctrine merely because they
are caused by an employee injury
Defendants’ interpretation of Snyder views a “derivative”
injury for purposes of the derivative injury doctrine as any injury
causally linked to an employee’s injury. That is, if a
nonemployee’s injury would not have occurred but for an
employee’s compensable workplace injury, any civil claim by the
nonemployee would be preempted by WCA exclusivity. This is
because the nonemployee’s injury “ ‘would not have existed’ ” but
for the employee’s injury. (Snyder, supra, 16 Cal.4th at p. 998.)
Defendants contend the Snyder court declined to apply the
derivative injury rule to the fetal injuries in that case because,
defendants argue, the Supreme Court concluded the mother’s
injuries were not the cause of the fetal injuries. Instead, the
fetus suffered injury from her own independent exposure to the
21
carbon monoxide. Specifically, defendants state, “The Court in
Snyder went into considerable scientific detail to make clear that
Mikayla’s injury did not depend upon any antecedent injury to
her mother Naomi.” They note the passage from Snyder stating
that “fetal and maternal injury have no necessary relationship”
and “[w]hether a toxin or other agent will cause congenital
defects in the developing embryo or fetus depends heavily not on
whether the mother is herself injured, but on the exact stage of
the embryo or fetus’s development at the time of exposure, as
well as on the degree to which maternal exposure results in
embryonic or fetal exposure.” (Snyder, supra, 16 Cal.4th at
p. 1000.) Defendants assert that whether the mother was injured
was “not relevant to the Court’s analysis” because “the ruling
makes clear that the fetus sustained her injury herself directly in
the workplace.”
Defendants contrast the case before us from Snyder by
asserting plaintiffs’ claims here depend on the allegation that
Mrs. Ek contracted a disease, which defendants contend
constitutes an “injury” under the WCA. They cite section 3208,
stating that for workers’ compensation purposes, “ ‘[i]njury’
includes any injury or disease arising out of the
employment . . . .” Thus, defendants argue, what distinguishes
the instant case from Snyder is that the fetal injury in Snyder
happened independent of any injury to the mother, whereas
Mr. Ek would not have died but for the injury to Mrs. Ek, that is,
her contracting COVID-19.
We question defendants’ premise that Mr. Ek’s injury
necessarily was caused by an injury to Mrs. Ek, whereas the fetal
injuries in Snyder were not caused by any injury to the mother.
It is well known that people may transmit viruses, including the
22
virus that causes COVID-19, before they themselves have
developed symptoms. (See, e.g., Centers for Disease Control and
Prevention, Ending Isolation and Precautions for People with
COVID-19: Interim Guidance, at
<https://www.cdc.gov/coronavirus/2019-ncov/hcp/duration-
isolation.html> (as of Dec. 13, 2021), archived at
https://perma.cc/T7SX-RWXB [noting that persons afflicted with
“asymptomatic” or “pre-symptomatic” COVID-19 can transmit
the virus to others].) Thus, persons need not themselves suffer
adverse health impacts in order to transmit a virus. Arguably,
then, viral transmission does not depend upon, and therefore
under defendants’ analytic model, is not caused by, any injury to
the transmitting party. The transmitting party may indeed
suffer ill effects, as Mrs. Ek allegedly did, but those effects
are not themselves the but-for cause of the viral transmission to
another.
In our view, moreover, there is little difference conceptually
between a mother breathing in a poisonous gas and conveying it
to her unborn child, and a wife breathing in viral particles that
she then conveys to family members. In both cases, the employee
is merely the conduit of a toxin or pathogen; whether the
employee herself was harmed by the toxin or pathogen is not
relevant to the claims of the injured family members.
Assuming arguendo that Mrs. Ek’s infection constitutes an
injury for purposes of the WCA, and that injury in turn caused
Mr. Ek’s injury, we nonetheless reject defendants’ reading of
Snyder to extend the derivative injury doctrine to any injury for
which an employee injury was a but-for cause.
Throughout the Snyder opinion, the Supreme Court
referred to collateral or derivative claims as those that are
23
“legally” or “logically” dependent on an employee’s injuries. (See,
e.g., Snyder, supra, 16 Cal.4th at p. 999 [emotional distress claim
based on witnessing injury to close relative “is logically
dependent on the prior physical injury”]; ibid. [the question the
Bell court “should have asked” was “whether Baby Freytes’s
claim was legally dependent” on mother’s injuries]; id. at p. 1000
[derivative injury doctrine “bars . . . attempts by the child to
recover civilly for the mother’s own injuries or for the child’s
legally dependent losses”]; id. at p. 1005 [“ ‘compensation
bargain’ ” does not encompass nonemployee injuries “logically
and legally independent of any employee’s injuries”]; ibid. [WCA
preemption “does not include logically independent claims by
family members or other third parties”].)
The Snyder court made clear, however, that “logical” or
“legal” dependence is not equivalent to causal dependence.
Following its explanation of how both the Bell and Snyder fetuses
could be injured independently of any workplace injury sustained
by their mothers, the court stated, “Even when the
mother is injured, moreover, the derivative injury rule does not
apply unless the child’s claim can be considered merely collateral
to the mother’s work-related injury, a conclusion that rests on the
legal or logical basis of the claim rather than on the biological
cause of the fetal injury.” (Snyder, supra, 16 Cal.4th at pp. 999–
1000, second italics added.) In other words, the fact that a
mother’s injury is the “biological cause” of a fetal injury does not
by itself make the mother’s injury the “legal or logical basis of the
[fetus’s] claim” for purposes of the derivative injury rule. (Ibid.)
We read Snyder’s extensive discussion of the independent
nature of fetal injuries as refuting the Bell majority’s assertion
that the physical inseparability of the mother and fetus renders a
24
fetal injury necessarily collateral to the mother’s injury. The
Supreme Court did not intend thereby to invite courts to
scrutinize the particular biological causes of third-party injuries
to determine the applicability of the derivative injury doctrine.
Our conclusion is supported by Snyder’s analysis of prior
case law applying the derivative injury doctrine, which illustrates
that derivative claims require more than a causal link to an
antecedent injury. The court favorably invoked cases involving
parents seeking “their own damages for the work-related death of
their minor son,” loss of an injured employee’s consortium, and
emotional distress from witnessing the workplace death of a
spouse. (See Snyder, supra, 16 Cal.4th at pp. 998–999.) As we
explain in greater detail below, these causes of action recognize
that when a person suffers a disabling or lethal injury, the harms
from that injury necessarily extend beyond the injured person to
those who love and/or depend on that person.
What unites these types of claims is not merely that they
are causally linked to an injury occurring to another person, but
also that they are based on losses arising simultaneously from
that injury—the directly injured party is disabled or killed, which
in turn deprives close relatives of the injured party’s support and
companionship. In other words, when a tortious event occurs,
multiple parties may immediately be affected, and the law
entitles the close relatives of the directly injured party to recover
damages on top of what the injured party may recover. It is this
aspect of wrongful death, loss of consortium, and bystander
emotional distress claims that makes them “derivative” of the
directly injured party’s claim.
Accordingly, it is legally impossible to state a cause of
action for such claims without alleging a disabling or lethal
25
injury to another person. This is reflected in the elements of the
causes of action themselves. Code of Civil Procedure section 376,
the subject of the Treat case, provided at the time that a father
or, in his absence, a mother, “may maintain an action for the
injury or death of a minor child . . . caused by the wrongful act or
neglect of another.” (Code Civ. Proc., former § 376 (Code Am.
1873–1874, ch. 383, p. 294, § 39); see Treat, supra, 82 Cal.App. at
p. 613.) A claim for loss of consortium requires “ ‘a tortious injury
to the plaintiff’s spouse . . . .’ ” (LeFiell Manufacturing Co. v.
Superior Court (2012) 55 Cal.4th 275, 284.) A witness to an
“injury-producing” event may recover for negligent infliction of
emotional distress if the witness “is closely related to the injury
victim.” (Thing v. La Chusa (1989) 48 Cal.3d 644, 647 (Thing).)
Similarly, the damages recoverable for these causes of
action all refer back to the disability or death suffered by the
directly injured party. Wrongful death actions allow recovery for,
inter alia, “ ‘the loss of the decedent’s financial support, services,
training and advice’ ” and “ ‘the pecuniary value of the decedent’s
society and companionship.’ [Citation.] ” (Fernandez v. Jimenez
(2019) 40 Cal.App.5th 482, 489, italics added.) Loss of
consortium involves harms to “ ‘ “the noneconomic aspects of the
marriage relation, including conjugal society, comfort, affection,
and companionship,” ’ ” as well as “sexual relations, moral
support, and household services.” (Mealy v. B-Mobile, Inc. (2011)
195 Cal.App.4th 1218, 1223, italics added.) The damages for
emotional distress recoverable in a bystander claim, of course,
reflect the trauma of witnessing a tortious injury to a loved one.
(See Thing, supra, 48 Cal.3d at p. 667.)
In contrast to these examples, the Snyder court took issue
with the holding of Salin, a case extending the derivative injury
26
doctrine to a nonemployee’s injury based on causation alone. In
that case, the plaintiff alleged he suffered a psychotic episode
caused by the negligence or wrongful acts of his employer, and
killed his daughters as a result. (See Salin, supra, 136
Cal.App.3d at p. 190.) He sued for the wrongful death of his
daughters. (Id. at p. 187.) The Court of Appeal affirmed
judgment on the pleadings against the father because “the
circumstances of plaintiff’s employment was, at least, one of the
‘proximate causes’ of the injury and damages suffered by him as a
result of the wrongful death of his daughters,” and therefore his
“ ‘exclusive remedy’ ” was in the workers’ compensation system.
(Id. at p. 191.)
As we have said, the Supreme Court in Snyder stated,
“[S]ections 3600 through 3602 do not directly support
the Salin court’s extension of the derivative injury rule to third
party injuries allegedly caused by an injured employee’s
postinjury acts.” (Snyder, supra, 16 Cal.4th at p. 999, fn. 2.) This
language questioning Salin’s holding is inconsistent with
defendants’ position in the instant case. If, as defendants posit,
the Snyder court intended to apply the derivative injury doctrine
to any injury allegedly caused by an employee injury, Salin
clearly would meet that test. Yet the Snyder court did not
embrace Salin, but instead called its validity into doubt.
Further illustrating the Snyder court’s rejection of
causation as the sole requirement for application of the derivative
injury doctrine is Snyder’s favorable discussion of a Louisiana
fetal injury case, Cushing v. Time Saver Stores, Inc. (La.Ct.App.
1989) 552 So.2d 730 (Cushing). (See Snyder, supra, 16 Cal.4th at
p. 1001.) Cushing involved “a child’s suit for in utero brain
injuries, allegedly caused by his mother’s accidental workplace
27
fall.” (Snyder, at p. 1001.) The Supreme Court in Snyder
summarized Cushing thusly: “While prior Louisiana decisions
had barred civil actions for third party derivative injuries, in all
those cases the claimant’s injury ‘hinged upon the injuries of the
employee. Because Dad or Mom suffered an injury, the family
suffered a loss based on that injury.’ [Citation.] The collateral
loss might be economic, as in a claim for loss of support, or
intangible, as in a claim for loss of consortium based on the
employee’s inability to continue participating in family life.
[Citation.] In contrast, the fetal injuries at issue in Cushing were
not logically derivative of the mother’s injury: ‘Whether Mom is
there to continue bringing home a paycheck or to participate in
the child’s life has no relevance to this child’s alleged brain
damage.’ [Citation.]” (Snyder, at pp. 1001–1002, quoting
Cushing, at pp. 731–732.)
The Supreme Court’s reliance on Cushing establishes that
the mere fact that an employee’s injury is the alleged cause of a
nonemployee’s injury does not make the nonemployee’s injury
“logically derivative” of the employee injury. (Snyder, supra,
16 Cal.4th at p. 1002.) Derivative injuries are the “economic” and
“intangible” losses suffered by an employee’s loved ones as a
result of the employee’s disability or death. (Id. at pp. 1001–
1002.) This definition does not extend to separate physical
injuries suffered by nonemployees, even when, as in Cushing, an
employee’s injury was part of the causal chain leading to those
injuries.
To conclude otherwise would lead to anomalous outcomes.
Consider if the carbon monoxide in Snyder had not merely passed
through the mother to the child, but instead, damaged the
mother’s lungs, thus depriving the fetus of oxygen. Compared to
28
the facts of Snyder, the employer in this hypothetical would be no
less negligent, and the fetus no less injured. Yet under
defendants’ logic, the derivative injury rule would apply to the
fetus in our hypothetical because the mother’s lung injury would
be a but-for cause of the fetus’s oxygen deprivation. Thus, in
contrast to the fetus’s remedies in Snyder, in our hypothetical the
fetus’s remedies would be limited to whatever was available
through workers’ compensation, if anything, rather than tort
remedies. We cannot conceive why the particular manner in
which the fetus was injured should determine whether the
employer should be shielded from full tort liability by the
workers’ compensation system, nor is it apparent that the
compensation bargain underlying the WCA compels such a rule.
We pause here to note that, although the case before us
involves injuries allegedly suffered by family members of an
employee, a construction of the derivative injury rule premised
solely on causation would bar civil claims by any person injured
as a result of the employee’s injury, family member or not.
Indeed, at oral argument, defendants’ counsel conceded the wide
reach of their proposed interpretation of the derivative injury
doctrine.
To take an extreme example, imagine that a researcher in a
laboratory studying dangerous pathogens inadvertently becomes
infected due to the employer’s lax safety protocols. That
researcher then boards a bus home and infects all the passengers
with a lethal virus. Under defendants’ interpretation of Snyder,
the passengers, whose illnesses “ ‘would not have existed in the
absence of injury to the employee’ ” (Snyder, supra, 16 Cal.4th at
29
p. 998), would be barred from asserting civil claims seeking tort
remedies against the laboratory.7
In Snyder’s own words, “The ‘compensation bargain’ . . . is
between businesses and their employees and generally does not
include third party injuries.” (Snyder, supra, 16 Cal.4th at
p. 1004.) “The employee’s ‘concession’ of a common law tort
action under sections 3600 to 3602 extends, as we have seen, to
family members’ collateral losses deriving from the employee’s
injury. Neither the statutory language nor the case law,
however, remotely suggests that third parties who, because of a
business’s negligence, suffer injuries—logically and legally
independent of any employee’s injuries—have conceded their
common law rights of action as part of the societal ‘compensation
bargain.’ ” (Snyder, at pp. 1004–1005.)
2. The derivative injury doctrine does not apply
under the facts of this case
It is readily apparent that the derivative injury doctrine
does not apply to the facts of the case before this court. Plaintiffs
do not seek damages for losses arising from a disabling or lethal
injury to Mrs. Ek, such as loss of her support or companionship,
or emotional trauma caused by observing Mrs. Ek’s suffering.
Nor do they sue for “injuries that arose during the treatment of
[an employee’s] industrial injury” or “in the course of the workers’
compensation claims process.” (King, supra, 5 Cal.5th at
pp. 1052–1053.) Instead, they sue for damages arising from
Mr. Ek’s death, an event allegedly causally related to Mrs. Ek’s
7 We do not suggest that defendants’ alleged conduct is
comparable to this example. We posit it to illustrate the broad
implications of defendants’ argument on tort law.
30
alleged infection by the virus in the workplace, but under Snyder,
not derivative of that infection.
Our holding accords with those of appellate courts of other
jurisdictions on analogous facts. In Woerth v. United States
(6th Cir. 1983) 714 F.2d 648 (Woerth), the plaintiff sued the
United States government after he contracted hepatitis from his
wife, who herself contracted the disease while employed as a
nurse at a Veteran’s Administration facility. (Id. at p. 649.) The
district court dismissed the claim, concluding that, although the
plaintiff was not an employee of the government, his injury was
subject to the exclusive remedy provision of the Federal
Employee’s Compensation Act (FECA). (Woerth, at p. 649; see
Collins v. Plant Insulation Co. (2010) 185 Cal.App.4th 260, 272
[FECA is “an alternative compensation system for federal
employees . . . akin to the alternative compensation system
provided by the California’s workers’ compensation law.”].) In so
concluding, the district court relied upon federal cases holding
that FECA barred claims for loss of consortium by a government
employee’s spouse. (Woerth, at p. 649.)
The Sixth Circuit reversed, stating the proper question for
FECA preclusion is “whether the claim is ‘with respect to the
injury or death of an employee.’ While Woerth’s hepatitis may
derive from his wife as a matter of proximate cause, his cause of
action does not. His right to recover for the negligence of the
United States is based upon his own personal injury, not a right
of ‘husband and wife’ [as it would be in a claim for loss of
consortium]. The fact that the disease was transmitted through
his spouse does not place Woerth in a position different from that
of any other unrelated, but similarly injured tort victim.”
(Woerth, supra, 714 F.2d at p. 650.)
31
In Vallery v. Southern Baptist Hosp. (La.App. 4th Cir.
1993) 630 So.2d 861 (Vallery), a hospital security guard was
exposed to the human immunodeficiency virus (HIV) by a
patient. (Id. at pp. 862–863.) The guard, not yet aware he had
been exposed to the virus, had sexual relations with his wife that
evening. (Id. at p. 862.) Although neither the guard nor his wife
ultimately contracted the virus, they sued the hospital for their
emotional distress and “for loss of consortium due to their having
to use condoms for a year” while being routinely tested for HIV.
(Id. at p. 863.)
The trial court dismissed the suit, concluding the claims
were barred by the exclusive remedy provision of the workers’
compensation statute. (Vallery, supra, 630 So.2d at p. 862.) The
Louisiana Court of Appeal agreed with the trial court as to the
guard’s claims, and also as to the wife’s claim for loss of
consortium, “a claim that arises due to the injury to her
husband.” (Id. at pp. 864–865.)
“However, Mrs. Vallery’s claim for injury to her, i.e.
exposure of Mrs. Vallery to HIV, is not an ‘injury’ referred to in
the worker’s compensation statute. [Citation.] It is self-evident
that the worker’s compensation scheme is to provide an exclusive
remedy in the form of worker’s compensation with regard to
injuries to employees and not with regard to injuries to the
spouses or other ‘dependents’ or ‘relations’ of employees. If
Mrs. Vallery had been visiting her husband at work at the
hospital, and a hospital employee had negligently injured both of
them, no one would suggest that Mrs. Vallery’s claim for her
injury would be subject to the ‘exclusive remedy’ provision of the
32
worker’s compensation statute even though her husband’s claim
would be.”8 (Vallery, supra, 630 So.2d at p. 865.)
Amici contend that the trial court’s ruling in the instant
case is an “outlier” that “conflicts with the decisions of every
other court that has addressed claims arising from alleged
COVID-related injuries in the workplace.” In support, amici cite
trial court rulings from other jurisdictions. As we discuss more
fully below, the cited rulings either were decided on grounds
other than workers’ compensation preemption, or do not
sufficiently address the issues raised in the instant case to be
persuasive.9
In Kuciemba v. Victory Woodworks, Inc., the United States
District Court for the Northern District of California dismissed a
complaint against an employer alleging that an employee
contracted COVID-19 in the workplace, then infected his wife
who developed a severe case of the disease. In the first dismissal
order, the court stated that the claims were “barred by the
exclusive remedy provisions of California’s workers’
compensation statutes,” citing sections 3600 and 3602. (N.D.Cal.,
Feb. 22, 2021, No. 3:20-cv-09355-MMC.)
After the plaintiffs amended their complaint, the court
dismissed the claims with prejudice, stating again that the claims
were barred by WCA exclusivity to the extent they were “based
8 Vallery relied in part on Cushing, the Louisiana fetal
injury case cited favorably in Snyder. (See Vallery, supra,
630 So.2d at p. 865; Snyder, supra, 16 Cal.4th at pp. 1001–1002.)
9 Defendants also cite these cases in arguing for the
appropriateness of writ review, as well as other cases involving
claims based on COVID-19. Defendants notably do not discuss
the reasoning of any rulings in those cases.
33
on allegations that [the wife] contracted COVID-19 ‘through
direct contact with’ [the employee].” Plaintiffs also alleged that
the wife “contracted COVID-19 ‘indirectly through fomites such
as [the employee’s] clothing,” which the district court dismissed
“for failure to plead a plausible claim.” The court further found
that the “defendant’s duty to provide a safe workplace to its
employees does not extend to nonemployees who . . . contract a
viral infection away from those premises.” (N.D.Cal., May 10,
2021, No. 3:20-cv-09355-MMC.)
Setting aside that we are not bound by federal district court
rulings (Mitchell v. State Dept. of Public Health (2016)
1 Cal.App.5th 1000, 1009, fn. 4), the dismissal orders in
Kuciemba are conclusory, with no explanations or discussion of
relevant authority. They provide no basis upon which to question
our holding.
In Lathourakis v. Raymours Furniture Co., Inc.
(NY.Sup.Ct., Mar. 8, 2021, No. 59130/2020), the plaintiff alleged
she contracted COVID-19 at the workplace and transmitted it to
her mother and husband. The husband subsequently died from
COVID-19. Plaintiff sought damages for her own illness and the
emotional distress caused by the death of her husband. It
does not appear the plaintiff sought damages for her husband’s
death apart from the emotional distress it allegedly caused her.
The trial court dismissed the complaint on the basis of
workers’ compensation exclusivity. The sole argument addressed
by the court in its written order was whether the plaintiff
sufficiently pleaded intentional conduct on the part of her
employer to bring her claims outside the scope of the workers’
compensation statute. Although the court mentioned in the
summary of the allegations that the plaintiff’s husband died, the
34
court did not discuss, nor did it indicate the plaintiff addressed,
whether injuries arising from the husband’s death should be
treated differently than the injuries plaintiff suffered from her
own illness for purposes of workers’ compensation preemption.
The case therefore is not instructive on the issues before us. (See
Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73,
85, fn. 4 [“ ‘[C]ases are not authority for propositions that are not
considered.’ [Citation.]”].)
Estate of Madden v. Southwest Airlines Co. (D.Md.
June 23, 2021, 1:21-cv-00672-SAG) [2021 WL 2580119] and
Iniguez v. Aurora Packing Company, Inc. (Ill.Cir.Ct., Kane
County, Mar. 31, 2021, No. 20 L 372) [2020 WL 4734941],
concerned suits against employers based on individuals who died
allegedly from COVID-19 infections brought home from work by
their employee spouses. The courts in these cases dismissed the
complaints upon a finding that the employers owed no duty to the
nonemployee decedents.
Madden did not address workers’ compensation at all.
Iniguez looked to the policies behind workers’ compensation in its
duty analysis, stating that “the relationship of
employer/employee has . . . been codified limiting liability and
damages pursuant to the Worker’s Compensation Act,” and that
extending a duty to someone outside the employer-employee
relationship “would completely disembowel the policy
considerations” underlying that relationship. These cases plainly
do not address what constitutes a derivative injury for purposes
of workers’ compensation preemption.
Kurtz v. Sibley Memorial Hospital (Md.Cir.Ct.,
Montgomery County, Mar. 25, 2021, No. 483758V) was a
wrongful death action based on an employee contracting COVID-
35
19 at work and transmitting it to her husband, who died. The
trial court dismissed the complaint on three bases: The
Washington, D.C. wrongful death statute upon which the
plaintiff relied was inapplicable because the husband contracted
the disease in Maryland, the employer hospital owed no duty to
the husband, and the hospital was shielded by statutory
immunity. Workers’ compensation exclusivity was not at issue.
In contrast to the cases cited by defendants and amici, both
Woerth and Vallery, decisions by the Sixth Circuit and the
Louisiana Court of Appeal, respectively, firmly support our
holding. The trial court’s ruling below was neither an outlier nor
a deviation from the precedent articulated in Snyder.
Defendants and amici argue public policy concerns compel
application of the derivative injury doctrine in this case.
Defendants warn that given the prevalence of COVID-19, courts
will be “overwhelmed by civil litigation brought by non-employee
spouses and other family members.” Amici go further, noting
that in the absence of the derivative injury doctrine, claims may
be brought not only by “the infected employee’s family and
friends who contract COVID-19, but also the family and friends
of each of those individuals who become infected with the virus,
and anyone else who might claim some derivative injury.” Amici
argue that “[s]uch a never-ending chain of derivative injuries and
unchecked liability is antithetical to the WCA.”
Defendants further note the difficulties of proof these cases
create, particularly as to causation, which defendants contend is
“exactly the sort of complex civil litigation issues that [WCA]
exclusivity was adopted to avoid.”
Whatever may be said of these public policy concerns, any
extension of the “ ‘compensation bargain’ ” to encompass the third
36
party injuries at issue here is “more properly addressed to the
Legislature than to this court.” (Snyder, supra, 16 Cal.4th at
p. 1004.) We cannot distort the derivative injury doctrine as
articulated in Snyder to address these policy concerns.
The unique factual and legal issues presented by the
ongoing pandemic will not inexorably lead to unlimited liability.
Unaddressed 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. (See, e.g.,
Kesner, supra, 1 Cal.5th at pp. 1142–1143 [applying the factors
from Rowland v. Christian (1968) 69 Cal.2d 108 to “determine
whether an employer has a duty to members of an employee’s
household to prevent take-home asbestos exposure”].) That
analysis would include an assessment of “public policy concerns
that might support excluding certain kinds of plaintiffs or
injuries from relief.” (Kesner, at p. 1145.) We express no opinion
on the question of duty apart from that it would appear worthy of
exploration.
Finally, we emphasize that today’s holding is based on our
interpretation of the WCA and case law applying that statutory
scheme. Our analysis of issues such as causation and derivative
injuries is limited to that context, and is not intended to apply
more generally to principles of civil litigation.
37
DISPOSITION
The petition is denied. Real parties in interest shall
recover their costs with regard to this writ proceeding.
CERTIFIED FOR PUBLICATION.
BENDIX, Acting P. J.
We concur:
CHANEY, J.
CRANDALL, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
38