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Wife Can't Blame Husband's Co. For Her COVID-19 Infection

By Mike Curley · February 23, 2021, 12:50 PM EST

A California federal judge has thrown out a woman's bid to hold her husband's employer responsible for her COVID-19 infection, finding that her claims that her husband contracted the disease at work and then passed it on to her are barred by the state's workers' compensation law.

In an order filed Monday, U.S. District Judge Maxine M. Chesney dismissed with leave to amend the suit by Corby and Robert Kuciemba, giving a win to Victory Woodworks Inc. in finding that because Corby Kuciemba's injury is dependent entirely on her husband's work-related infection, the state's workers' compensation law provides the only possible remedy.

The judge also dismissed her public nuisance claim under San Francisco public health law, saying she does not have standing to pursue those claims.

"By its decision, the court recognizes that the law precludes a claim against an employer by any outsider allegedly hurt by an employee's on-the-job injury," William Bogdan of Hinshaw & Culbertson LLP, representing Victory, said in a statement Tuesday. "Courts almost always grant plaintiffs the right to amend, but we believe no additional facts will have any impact on the underlying principles at issue or the legal basis for the court's ruling — that an injury arising out of the employment relationship cannot support a liability claim by a non-employee."

Reached Tuesday by Law360, Bogdan said at a hearing two weeks ago, while he had also argued that California did not recognize a "take-home" liability for employers for viruses, the judge only decided on the narrow issue of workers' compensation law's preemption, saying that when the injury to a non-employee is dependent on injury to the employee, it's covered by the state law's exclusive remedy provision, and declined to address the other liability issues.

And while the Kuciembas were granted leave to amend, Bogdan said he does not believe any additional allegations will change the fact that Corby Kuciemba's injury stems directly from her husband's.

He added the decision shows that holding companies liable for infections to non-employees would be going too far.

"I think it's a recognition that, were this claim to go forward, anyone who contracts COVID and lives with somebody who has a job would potentially have a claim," he said. "So the ramifications of the dismissal are quite wide-reaching."

In the suit, Corby Kuciemba alleges that her husband was infected with COVID-19 and, though asymptomatic, transmitted the disease to her. According to the suit, it was Victory's duty to keep her from being harmed. According to court records, she later amended the suit to allege that she caught it through Robert Kuciemba's clothes.

Monday's order comes following a hearing two weeks ago, in which counsel for the Kuciembas and Victory argued the merits of the motion to dismiss.

In a brief filed in January, Victory said that the nature of Corby Kuciemba's claims was asking too much of companies, as finding that Victory is liable for her infection would in effect require them to ensure that no one in the public could possibly be infected by workers.

"We live in a world where a father blowing out the candles on his 60th birthday cake can infect a house full of family and friends," the company said in January. "With society in such an upheaval, all Victory Woodworks was required to do, and did its best to do, was attempt to minimize the risk of COVID-19 transmission to its employees. It cannot be charged with the duty to prevent the outside world from contracting the disease."

In the January brief, Victory further argued that it never owed a duty to Corby Kuciemba, as she never visited the job site, and that even if he was asymptomatic, it is still Robert Kuciemba's injury that caused her infection, not any action of Victory's.

California courts have recognized that household members injured as a result of an employee's work-related injury fall under the workers' compensation law's exclusive remedy provision, the company said, noting that no court has held a company liable for the spread of other infectious diseases transmitting from the workplace to the home, such as the flu.

On the public nuisance claims, Victory had argued that the San Francisco health orders do not provide a private right of action, so the Kuciembas do not have standing to pursue those claims.

Mark L. Venardi of Venardi Zurada LLP, representing the Kuciembas, told Law360 late Tuesday that they disagree with the ruling, and are evaluating whether they can amend the pleading.

"Defendant knowingly exposed not only its workers but their family household members to COVID[-19]. The exposure was foreseeable and potentially life threatening," he said. "Our client suffered a serious direct injury as a result of defendant's willful violation of mandatory health orders and needs to be held accountable. Mrs. Kuciemba was not employed by defendant and therefore does not have a workers compensation remedy and, if this ruling stands, has no remedy at all even though she was on her death bed because a corporation chose profits over safety."

Victory is represented by William Bogdan and Michael McConathy of Hinshaw & Culbertson LLP.

The Kuciembas are represented by Mark L. Venardi, Martin Zurada and Mark Freeman of Venardi Zurada LLP.

The case is Kuciemba et al. v. Victory Woodworks Inc., case number 3:20-cv-09355, in the U.S. District Court for the Northern District of California.

--Editing by Alyssa Miller.

Update: This story has been updated with additional comment from Victory's attorney and with a comment from the Kuciembas' attorney.

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