Workers Comp Zone


In July 2023 the California Supreme Court decided two closely watched cases, the Kuciemba v. Victory Woodworks case and the Adolph v. Uber Technologies case.

Although neither are workers’ compensation cases, both involve issues which are likely to be encountered by workers’ comp applicant attorneys and plaintiff-side employment lawyers. So the California workers’ comp community should take time to become familiar with both decisions.

I’ll give a brief recap of the cases (links to the cases are at bottom of the post) and quick commentary on why they are important.

Cory Kuciemba v. Victory Woodworks, decided on July 6, 2023, involved a tort action filed in California Superior Court by Mrs. Kuciemba after she contracted COVID and became seriously ill, allegedly via transmission from her infected husband. The claim revolved around allegations that Mr. Kuciemba’s employer failed to take COVID precautions required by a county safety order, thereby causing Mr. Kuciemba to become infected and then to take home COVID to his wife.

After the matter was removed to the federal court, Mrs. Kuciemba’s “take home COVID” claims were dismissed, but on appeal the U.S. Court of Appeals for the 9th Circuit asked the California Supreme Court to answer two questions: (1) if an employee contracts COVID at the workplace and brings the virus home to a spouse, does California workers’ comp law bar the spouse’s negligence claim against the employer? and (2) Does an employer owe a duty of care under California law to prevent COVID from spreading to household members?

The California Supreme Court holds that California workers’ comp law does not bar a spouse’s negligence claim under the alleged circumstances. In so holding the court does a deep dive into the “derivative injury doctrine” and contrasts derivative injuries (where the injury is not only factually caused by the work injury but also “legally dependent” on the worker’s injury) with a family member’s claim for her own independent injury. Reading the analysis isn’t for the faint of heart. As it examines legal precedents in several fetal injury cases, the court distinguishes other cases and eventually, after long discussion, grinds to its conclusion: “exclusivity provisions of the WCA [Workers’ Compensation Act] do not bar Corby’s claims against Victory”.

But then the California Supreme Court answers the second question with a “no”. California law does not impose a duty of care on employers to prevent the spread of COVID to employees’ household members.

The court notes that although Civil Code section 1714 sets forth a general duty of care, and although it was foreseeable that transmission could occur and the employer’s conduct allegedly created an unreasonable risk of infection, other factors come into play. Foreseeability alone was not sufficient to create a tort duty. And so the California Supreme Court referenced different policy factors such as moral blame, the policy of preventing future harm and encouraging health order compliance, economic impacts on employers, the extent of burden to employers and possible consequences for the community, possible unintended consequences, impact on the judicial system, insurance for those claims, etc.

Looking at the various factors, the court concludes that “Given these considerations, we conclude “the burden to the defendant and consequences to the community” weigh against imposing a duty of care and thereby authorizing liability for its breach.”

So at the end of the day, the ruling in Kuciemba is very situation-specific. Opening the door to waves of family take-home COVID transmission tort lawsuits was a bridge too far for the court. But the court’s analysis on the derivative injury doctrine may leave the way open for spousal lawsuits in certain other situations.

What about Erik Adolph v. Uber Technologies, decided on July 17, 2023?

The case is important in that it preserves the ability of a worker to file a PAGA claim on behalf of other workers who also suffer employment law violations.

This seems important to may workers’ comp claimants, as many workers find they have suffered labor law violations in addition to their workplace injury.

PAGA is the Private Attorneys General Act of 2004. PAGA was enacted to allow aggrieved employees to file civil actions against an employer to pursue enforcement of labor law remedies, including penalties. A worker who files such an action acts as a proxy for the California Labor and Workforce Development Agency.

The 2022 United States Supreme Court decision in Viking River Cruises, Inc. v. Moriana noted that the Federal Arbitration Act required arbitration of PAGA individual claims against Viking pursuant to a predispute employment contract with an arbitration provision.

But the question for the California Supreme Court was whether an aggrieved employee who has been compelled to arbitrate claims under PAGA that are based on Labor Code violations experienced by the worker has standing to pursue PAGA claims arising out of workplace violations experienced by other workers. The court says yes, “an order compelling arbitration of the individual claims does not strip the plaintiff of standing as an aggrieved employee to litigate claims on behalf of other employees under PAGA”.

The case arose out of a lawsuit filed against Uber by Erik Adolph, an Uber Eats driver. Adolph had failed to opt out of Uber’s services agreement, so was bound by its terms to arbitrate.

But could Adolph file California civil court PAGA claims on behalf of other Uber workers even if he himself had to arbitrate his personal claims? Yes, says the California Supreme Court. The Court notes that the U.S. Supreme Court had concluded that a PAGA plaintiff required to arbitrate lost standing to file PAGA claims on behalf of others.

The California Supreme Court refuses to kneel to the U.S. Supreme Court. In their view, this is a matter of statutory interpretation and thus they note that “we are not bound by the high court’s interpretation of California law.”

The court notes that PAGA was enacted to provide an expansion of vigorous enforcement against unlawful workplace practices, and in recognition by the legislature that there was insufficient state funding of state workforce enforcement. The court says that “Narrowing PAGA standing in the manner Uber urges would likely reduce state revenues and increase state costs of enforcement”.

Here is a link to the Kuciemba v. Victory Woodworks decision:

And here is the ruling in Adolph V. Uber Technologies:

Stay tuned.

Julius Young