Take-Home’s coronavirus claims should not prevail in Maryland and D.C. | Goodell, DeVries, Leach & Dunn, LLP

The COVID-19 pandemic has taken an unimaginable toll on the United States, claiming more than 1.1 million American lives in the past three years.⁽¹⁾ In the aftermath of the pandemic, some families of those who contracted the disease and others seriously injured by it have filed personal injury claims in state court. But some of these coronavirus claims—particularly those about employees who contracted the coronavirus on the job—should not be allowed to proceed in state court.

In many states, workers’ compensation is the exclusive remedy for employees who are injured or develop an occupational disease on the job. Under these exclusive provisions, employees are generally barred from suing their employers for damages arising from personal injury or occupational disease acquired in the course of employment—including harm or injuries from certain viral diseases—absent rare circumstances, such as an employer’s intentional attempt to kill or employee injury. employee.⁽²⁾ But due to the rapid transmission of the novel coronavirus, workers who have fallen ill often pass the infection on to close family members. This gave rise to a “take it home” Covid lawsuit – where plaintiffs assert that the employer is liable for inadequate infection control measures in the workplace, causing the employee to contract COVID and to infect his spouse, children or other family members. Because such claims are being brought on behalf of a non-employee family member, the plaintiffs argued that they are not subject to exclusive workers’ compensation provisions.

Several courts have held take-home coronavirus claims impermissible, including the California courts and — in the case heard by Judel Defries — the Maryland court dealing with claims under Maryland and Washington, D.C. law.

The state of California recently denied take-home coronavirus claims on grounds of public policy

In July 2023, the California Supreme Court took up a coronavirus lawsuit Cosimba v. Victory Woodworks, Inc.⁽³⁾ In March 2020, plaintiff Robert Kosimba was working on a construction site in San Francisco for Victory Woodworks.⁽⁴⁾ Two months later, the company moved a group of other employees back to their work site from another place where they might have been exposed to the virus, allegedly without taking the precautions required by the county health system.⁽⁵⁾ After working with these employees, Robert became infected and, returning home, infected his wife, Corbie Cosimba.⁽⁶⁾ Corby was later hospitalized for several weeks.⁽⁷⁾

The Kuciembas family sued Victory Woodworks in California state court. The case was referred to the Federal Court, which dismissed the claims, prompting an appeal to the Ninth Circuit Court of Appeals, which then submitted approved questions to the California Supreme Court. I wondered if (1) the claims are prohibited under the California Workers’ Compensation Exclusivity Act and (2) “the employer owes a duty of care under California law to prevent the spread of COVID-19 to family members of employees.” )”⁽⁸⁾ The California Supreme Court has determined that exclusive compensation provisions for California workers do not bar claims from a spouse or other non-employee relative.⁽⁹⁾

The next question, whether the employer owes a duty to non-employees to prevent taking COVID home, produced an even more important analysis and contract. The court noted that the general duty in tort under California law is too broad, with the “default rule that each person has a duty to exercise reasonable care, in their activities, for the safety of others.”⁽¹⁰⁾ The court held that the default duty rule “applies in the context of COVID-19,” but that “doesn’t end the matter” because courts can recognize exceptions to the general duty rule “when they are supported by compelling political considerations.”⁽¹¹⁾

California courts use multifactorial testing to determine whether policy considerations justify a departure from the default assumption of duty.⁽¹²⁾ The California Supreme Court held that most of these factors favorite Impose a duty because (1) “It is clearly expected that an employee who is exposed to the virus through the negligence of the employer will transmit the virus to a family member.”⁽¹³⁾ and (2) the defendant’s conduct deserves “moral culpability.”⁽¹⁴⁾ But the court also held that the factor of “the burden borne by the defendant and the consequences borne by society” had a significant influence. against impose a duty.⁽¹⁵⁾ It found that, with the imposition of fees, “the potential for liability for infection outside the workplace could encourage employers to adopt precautions that unduly slow the provision of essential services to the public” or even “to shut down in the event of a new pandemic”. “⁽¹⁶⁾ The duty to prevent secondary infection with COVID-19 will extend to everyone places of work, making every California employer a potential respondent, so that even if the duty of care were limited to family members of employees, the pool of potential plaintiffs would be enormous, numbering not thousands but millions of Californians.⁽¹⁷⁾

In the end, after weighing the factors, the California Supreme Court unanimously refused to find a duty to take home coronavirus claims, given the “exhausting” and “unbearable” financial burden on the defendants, the judicial system, and the litigation community in such claims.⁽¹⁸⁾ Subsequently, the Ninth Circuit affirmed the rejection of Kosimbas’ allegations.⁽¹⁹⁾

Goodell DeVries has won the dismissal of a take-home coronavirus claim in Maryland state court

California Supreme Court in Cosimba He noted that courts applying Maryland law have similarly denied coronavirus claims to the home, including the case against Southwest Airlines.⁽²⁰⁾ The California court recognized that “Maryland law is specifically focused on limiting duties in third parties⁽²¹⁾ context.” In fact, Maryland courts have refused to allow domestic claims, holding that the employer bears no duty to the spouse who allegedly contracted mesothelioma from asbestos fibers brought into the home in her husband’s clothing.⁽²²⁾ and that the laboratory bears no duty to the third spouse contracted with HIV by her husband, who appears to have contracted the virus in an accident at the workplace.⁽²³⁾

Judel DeVries Attorney Kelly Hughes Iverson, Marian de Paolo Factory, Derek StickleatherAnd Sean Gogerty She represented Sibley Memorial Hospital in a three-count wrongful death claim brought by a former hospital nurse who alleged she contracted COVID-19 from a patient or co-worker at the District of Columbia Hospital in March 2020 and, in turn, infected her husband in their home. Maryland home, eventually causing his death. ON MARCH 2021, FOLLOWING DISCLAIMER OF ORDER AND PLEASEMENTS FROM Ms. IVERSON AND MR. GOGHERTY, CIRCUIT COURT FOR MONTGOMERY COUNTY, Maryland He dismissed all claims against the hospital, with a bias. The court expressly found that the hospital had no duty to the third spouse under Maryland or D.C. law.

Takeaways for Employers in Maryland and DC

Logic from Cosimba The decision, the Maryland and D.C. precedent establishing duty to third parties, and the Sibley Memorial Hospital case all indicate that the Maryland and D.C. courts should dismiss future coronavirus claims. Employers facing lawsuits or pre-action claims that raise claims about coronavirus, or other types of coronavirus claims, should consult with an attorney about potential defenses and the potential for dismissal of such claims.

Goodell DeVries is a regional law firm with a national presence. Our team of attorneys handle the most complex legal challenges for clients across the country in business law, medical malpractice law, appellate matters, complex commercial litigation, insurance, and more. If you have a Coronavirus claim and would like to consult with an attorney at Goodell DeVries, please contact us here.

notes

⁽¹⁾ CDC Covid Data Tracker, available at https://covid.cdc.gov/covid-data-tracker/#datatracker-home (last accessed August 25, 2023).

⁽²⁾ Maryland Law, Ann, Labor and Employment § 9-509; See also DC Code § 32-1504.

⁽³⁾ 14 cal. V 993 (2023).

⁽⁴⁾ Identification card. at 1005.

⁽⁵⁾ Identification card.

⁽⁶⁾ Identification card.

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⁽⁸⁾ Identification card. in 1004.

⁽⁹⁾ Identification card. In 1005-1016.

⁽¹⁰⁾ Identification card. in 1016 (internal citations omitted).

⁽¹¹⁾ Identification card. in 1021

⁽¹²⁾ Identification card. (according to Rowland v. Christian69 Cal.2d 108 (1968).

⁽¹³⁾ Identification card. at 1025.

⁽¹⁴⁾ Identification card. in 1026.

⁽¹⁵⁾ Identification card. In 1026-1030.

⁽¹⁶⁾ Identification card. in 1028.

⁽¹⁷⁾ Identification card. in 1029.

⁽¹⁸⁾ Identification card. In 1030-1031

⁽¹⁹⁾ Cosimba v. Victory Woodworks, Inc.74 F.4th 1039 (9th Cir. 2023).

⁽²⁰⁾ See Madden v. Sue property. Airlines, Inc, Civil Procedure No. 1:21-cv-00672-SAG, 2021 US Dist. LEXIS 117266 (Dr. Maryland June 23, 2021).

⁽²¹⁾ Cosimba, 14 cal. Fifth in 1032.

⁽²²⁾ Adams v. Owens Illinois, Inc., 119 m d. 395 (1998).

⁽²³⁾ Du v Pharmacia and Upjohn Corporation388 Maryland 407, 879A.2D 1088 (2005).