9th Circ signals may need help with 'take-home' COVID liability question

3 minute read

Alexis Reyna, 20, works at Chalio Mexican Restaurant, as the coronavirus (COVID-19) disease continues, in East Los Angeles, California, U.S., May 26, 2021. REUTERS/Lucy Nicholson

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  • Case involving woodworker's wife is first to reach a federal appeals court
  • Sending to top state court may be "cutting to the chase"
  • Lower court said workers' comp covered claims because they stemmed from workplace injury

(Reuters) - A U.S. appeals court on Thursday appeared poised to punt to California's top court the question of whether businesses can be held liable under state law when their employees are exposed to COVID-19 at work and then spread it to members of their households.

The case is the first of its kind to reach a federal appeals court, and the result could be costly for businesses in California. Trade groups have warned that allowing "take-home COVID" claims could prompt lawsuits by an infected employee’s family and friends, and anyone infected by that circle of people, creating a never-ending chain of liability.

During oral arguments, two of the three judges on a 9th U.S. Circuit Court of Appeals panel said the importance and novelty of the issue - and a recent state appeals court ruling allowing a different take-home COVID case to proceed - seemed to make it an appropriate time for the California Supreme Court to step in.

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"I'm wondering if we just have to cut to the chase and certify this to the California Supreme Court," Circuit Judge John Wallace said. "This isn’t going to the last of these cases that we see."

Plaintiff Corby Kuciemba says she contracted COVID-19 from her husband, an employee of Victory Woodworks Inc, after he was exposed to the illness at work, and that she spent weeks on a ventilator.

Kuciemba's lawyer, Martin Zurada of Venardi Zurada, said during Thursday's arguments that he agreed that the state's top court should have a chance to address the issue.

But William Bogdan of Hinshaw & Culbertson, who represents Victory, said the step was unnecessary because the California Supreme Court has already made clear that claims deriving from any workplace injury are covered by workers' compensation.

Reuters viewed a livestream of the argument.

U.S. District Judge Maxine Chesney in San Francisco last year said Kuciemba's claims were precluded by state workers' compensation law, which serves as the exclusive remedy for workers injured on the job.

The 9th Circuit panel includes Circuit Judges Margaret McKeown, who also asked on Thursday about sending the case to the state court, and Sidney Thomas.

The case is Kuciemba v. Victory Woodworks Inc, 9th U.S. Circuit Court of Appeals, No. 21-15963.

For Kuciemba: Martin Zurada of Venardi Zurada

For Victory: William Bogdan of Hinshaw & Culbertson

Read more:

Judge says workers' comp bars COVID exposure claims by woodworker's wife

Employer must face worker's lawsuit over husband's COVID death -California court

U.S. business fears never ending liability from 'take-home' COVID-19 lawsuits

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.