The California Supreme Court has accepted for review the question of whether the workers’ compensation act does bars a claim against an employer by a household contact of an employee who contacted COVID at work. The court granted the request, made under California Rules of Court, rule 8.548, that the court will decide questions of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit.
KUCIEMBA v. VICTORY WOODWORKS Division SF Case Number S274191
The concept of litigation by household contact is longstanding. A negligence action can be brought by the household contact directly against the employer. The case is identical to the claims right by family members of Asbestos workers who brought fiber home on their clothes, contaminated the household environment, and subjected the household members to diseases such as asbestosis, lung cancer, and mesothelioma.
New Jersey has long-recognized household claims and has permitted that to recover against the employer by instituting a civil action based on negligence.
“A spouse of a former employee, Exxon, contracted mesothelioma due to her husband's occupational exposure to asbestos fiber at work. The husband had been employed by Exxon and was exposed to asbestos fiber while insulating and repairing equipment. He brought the asbestos home on his work clothes that the spouse laundered at home,
“While the spouse was also a former employee of Exxon, she was employed in a capacity where she did not come into occupational contact with asbestos fiber. The evidence established at trial demonstrated that mesothelioma is rare cancer that was exclusively related to exposure to asbestos fiber. The court held that the “Exclusivity Rule” did not bar a claim by the spouse directly against the employer. The court also held that the bystander exposure to asbestos fiber by way of the husband's employment need not be the sole exposure to asbestos that the spouse suffered and that it only needed to be a substantial contributing factor to the disease process. The court reasoned that the “dual persona doctrine” was applicable and that the employer had taken on a completely separate and independent role with respect to the spouse that was totally separate and unrelated to that of employment. Anderson v. A.J. Friedman Supply Co., Inc., 416 N.J. Super. 46, 3 A.3d 545, 31 I.E.R. Cas. (BNA) 330 (App. Div. 2010). Gelman, Jon L, Workers’ Compensation Law, 38 NJPRAC 9.22 (Thomson-Reuters 2022).
The California decision will have a significant impact on the potential liability risk exposure of employers.
Recommended Citation: Gelman, Jon L., California Supreme Court Agrees to Review COVID Take Home Liability Case, Workers' Compensation Blog, June 23, 2022), https://workers-compensation.blogspot.com/2022/06/california-supreme-court-agrees-to.html
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Jon L. Gelman of Wayne, NJ, is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (Thomson-Reuters). For over five decades, the Law Offices of Jon L Gelman 1.973.696.7900 email@example.com have represented injured workers and their families who have suffered occupational accidents and illnesses.
Blog: Workers ' Compensation
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Author: "Workers' Compensation Law" Thomson-Reuters