Author: Chris Boggs

COVID has led to many “firsts" over the last 11 months, well, at least many “firsts" in our lifetimes. Another “first" was filed in California Superior Court recently (but ultimately moved to US District Court).

Kuciemba v Victory Woodworks appears to be the first case in the US that has the wife of a COVID-infected employee suing her spouse's employer because she contracted COVID from him. Corby Kuciemba and husband Robert are suing Victory Woodworks claiming that Victory is legally liable for Mrs. Kuciemba's bout with COVID that resulted in her hospitalization that including weeks on a ventilator.

Insurance Journal reported Kuciemba's suit alleges that Victory Woodworks violated local and federal virus safety guidelines and that the company's failure to take basic precautions caused Robert Kuciemba to contract the virus and unknowingly bring it home and infect his wife, Corby Kuciemba.

Whether this case makes it to trial is still in the hands of U.S. District Judge Maxine M. Chesney. If Judge Chesney allows the case to proceed, this may be the first COVID-related case to involve and trigger employers' liability coverage.

Employers' Liability

Because it is “part of" the workers' compensation policy, employers' liability coverage is often ignored by some agents. But employers' liability is actually a very important gap filler between workers' compensation (WC) coverage and commercial general liability (CGL) coverage.

Employers' Liability dovetails to fill specific employee-related coverage gaps within the WC and the CGL policies. Although included as part of the workers' compensation policy, employers' liability (EL) is similar to and contains components of both the CGL and the WC policies, but it shares slightly more similarities with the CGL than with WC. A detailed description of these similarities and other specifics of EL coverage is found in the VU article, “Employers' Liability: A Primer."

Specific requirements must be met before employers' liability responds to a claim; for the subject case, Kuciemba v. Victory Woodworks, the four key requirements to be met are:

• The employer must be negligent in and legally liable for causing injury or illness to the employee (for a discussion on the requirements necessary to prove negligence and legal liability, see the VU article, “How Does a 'Person' Become Legally Liable");
• The employee's illness or injury leading to another party's illness or injury must arise out of and in the course and scope of employment;
• The injury/illness must be suffered by a non-employee (an “outside party"); and
• The injury/illness must be of a type covered by the employers' liability policy.

If any of these requirements is missing, the employers' liability coverage does not respond.

Employers' liability responds to four types of claims:

1. Third-party-over actions;
2. Loss of consortium (loss of family service);
3. Consequential bodily injury; and
4. Dual Capacity actions.
   

The Kuciemba's are asserting consequential bodily injury. When the employee contracts a work-related (not one that was simply contracted at work) infectious disease that is subsequently spread to another member of the immediate family, this is the prime example of consequential bodily injury covered by the employers' liability policy.

To qualify for coverage, the consequential bodily injury must be the direct result of a work-related injury suffered by the employee and the employer must be negligent in causing the employee's sickness.

Wait and See

First the judge must decide if this case will even be heard. If it is dismissed, this is all academic. However, if Judge Chesney decides to allow the case to proceed, many agents may have the opportunity to witness the first employers' liability claim they have seen in their career play out on a national stage.

The hurdles are high for the plaintiffs:

• Proving the husband contracting COVID was work related;
• Proving the employer was negligent in causing the employee's illness; and
• Proving Mrs. Kuciemba's only exposure was from her husband.    

But if the plaintiffs can clear these hurdles, the case does go to trial and the employers' liability coverage is triggered, this may be a key lesson in employers' liability coverage limits. Standard EL limits related to coverage for employee disease is $100,000 Each Occurrence for Employee Disease with a $500,000 Employee Disease Aggregate. This may not be sufficient depending on the outcome.

Currently, this is all in the hands of the judge. The conversation may end here, or we may all get a lesson on employers' liability the hard way. We must simply wait and see.

Guess What? We Don't Have to Wait

Shortly after the completion of this article, Judge Chesney threw out the case, but she did give the Kuciemba's the opportunity to redraft their complaint. So while there is no longer a reason to wait on this ruling, it may be resurrected with new complaints.