Corby Kuciemba v. Victory Woodworks, Inc. ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CORBY KUCIEMBA; ROBERT No. 21-15963
KUCIEMBA,
Plaintiffs-Appellants, D.C. No.
3:20-cv-09355-MMC
v.
ORDER CERTIFYING
VICTORY WOODWORKS, QUESTIONS TO THE
INC., a Nevada Corporation, SUPREME COURT OF
Defendant-Appellee. CALIFORNIA
Filed April 21, 2022
Before: J. Clifford Wallace, Sidney R. Thomas, and
M. Margaret McKeown, Circuit Judges.
Order
2 KUCIEMBA V. VICTORY WOODWORKS
SUMMARY *
California Law
The panel certified to the Supreme Court of California
the following questions:
1. If an employee contracts COVID-19 at his workplace
and brings the virus home to his spouse, does
California’s derivative injury doctrine bar the
spouse’s claim against the employer?
2. Under California law, does an employee owe a duty
to the households of its employees to exercise
ordinary care to prevent the spread of COVID-19?
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
KUCIEMBA V. VICTORY WOODWORKS 3
ORDER
We certify the questions set forth in Part II of this order
to the California Supreme Court. All further proceedings in
this case are stayed pending final action by the California
Supreme Court, and this case is withdrawn from submission
until further order of this court.
I. Administrative Information
We provide the following information in accordance
with Rule 8.548(b)(1) of the California Rules of Court.
The caption of this case is:
No. 21-15963
Corby Kuciemba and Robert Kuciemba,
Plaintiffs and Appellants,
v.
Victory Woodworks, Inc.,
Defendant and Appellee.
The names and addresses of counsel are:
For Plaintiffs-Appellants Corby Kuciemba and Robert
Kuciemba: Mark T. Freeman, Mark L. Venardi, Martin
Zurada, Venardi Zurada, LLP, 101 Ygnacio Valley Road,
Suite 100, Walnut Creek, CA 94596.
For Defendant-Appellee Victory Woodworks, Inc.:
William A. Bogdan, Hinshaw & Culbertson, LLP, 18th
floor, One California Street, San Francisco, CA 94111.
4 KUCIEMBA V. VICTORY WOODWORKS
Plaintiffs-Appellants Corby Kuciemba and Robert
Kuciemba should be deemed the petitioners, if the California
Supreme Court agrees to consider these questions. See Cal.
R. Ct. 8.548(b)(1).
II. Certified Questions
Pursuant to Rule 8.548(b)(2) of the California Rules of
Court, we respectfully request that the Supreme Court of
California decide the certified questions presented below.
1. If an employee contracts COVID-19 at his workplace
and brings the virus home to his spouse, does California’s
derivative injury doctrine bar the spouse’s claim against the
employer?
2. Under California law, does an employer owe a duty
to the households of its employees to exercise ordinary care
to prevent the spread of COVID-19?
We recognize that our phrasing of these questions does
not restrict the Court’s consideration of the issues involved
and that the Court may rephrase the questions as it sees fit.
See id. 8.548(f)(5).
III. Statement of Facts
A.
In response to the COVID-19 pandemic, San Francisco
issued a shelter-in-place order in March 2020, effectively
shuttering many local businesses. These restrictions were
relaxed two months later when San Francisco issued a
revised order (the “Health Order”) allowing certain essential
industries, including the construction industry, to reopen.
Although these businesses were permitted to reopen, the
KUCIEMBA V. VICTORY WOODWORKS 5
Health Order imposed stringent conditions on their
operations in order to limit the spread of COVID-19.
After the Health Order was issued, Robert Kuciemba
began working for Victory Woodworks, Inc. (“Victory”), a
furniture/construction company, at a jobsite in San
Francisco. Mr. Kuciemba and his wife, Corby Kuciemba
(collectively “the Kuciembas”), allege that they strictly
complied with the City’s various COVID-19 orders,
followed all recommended safety precautions, and
minimized their exposure to other people. The only person
in their household to have frequent contact with others was
Mr. Kuciemba, through his work at Victory’s jobsite.
According to the Kuciembas, Victory knowingly
transferred workers from an infected construction site to
Mr. Kuciemba’s jobsite without following the safety
procedures required by the Health Order. Mr. Kuciemba
was forced to work in close contact with these employees
and soon developed COVID-19, which he brought back
home.
Mrs. Kuciemba is over sixty-five years old and was at
high risk from COVID-19 due to her age and health. She
tested positive for the COVID-19 disease on July 16, 2020,
and developed severe respiratory symptoms.
Mrs. Kuciemba was hospitalized for more than a month after
contracting COVID-19 and was kept alive on a respirator.
B.
The Kuciembas filed suit against Victory in California
Superior Court, alleging that Victory caused
Mrs. Kuciemba’s injuries by violating the Health Order.
Mrs. Kuciemba asserted state law claims for negligence,
negligence per se, and negligence (premises liability) while
6 KUCIEMBA V. VICTORY WOODWORKS
Mr. Kuciemba brought a claim for loss of consortium.
Victory removed to federal district court and moved to
dismiss. The district court granted Victory’s motion,
holding (as relevant here) that Mrs. Kuciemba’s claims
against Victory were barred by California’s derivative injury
doctrine and, in the alternative, that Victory did not owe a
duty to Mrs. Kuciemba. This timely appeal followed.
IV. The Need for Certification
Certification is warranted if there is no controlling
precedent and the California Supreme Court’s decision
could determine the outcome of a matter pending in our
court. See Cal. R. Ct. 8.548(a). This appeal not only meets
both criteria, but also presents issues of significant public
importance for the State of California: the scope of an
employer’s liability in tort for the spread of COVID-19, the
application of the public policy exception to Cal. Civ. Code
§ 1714(a)’s general duty of care in the context of a
pandemic, and—perhaps most sweepingly—whether
California’s derivative injury doctrine applies to injuries
derived in fact from an employee’s workplace injury.
A.
The Kuciembas allege that Victory negligently allowed
COVID-19 to spread from its worksite into their household.
Victory argues that California law does not recognize such a
cause of action. Specifically, Victory argues that
Mrs. Kuciemba’s claims are barred by the derivative injury
doctrine and that, even if the derivative injury doctrine does
not apply, Victory did not owe Mrs. Kuciemba a duty of
care.
No controlling precedent resolves whether the derivative
injury doctrine bars Mrs. Kuciemba’s claims. This doctrine
KUCIEMBA V. VICTORY WOODWORKS 7
finds its provenance in California’s Worker’s Compensation
Act (“WCA”), Cal. Lab. Code § 3200 et seq., which
provides the exclusive remedy for many workplace injuries.
Under the WCA, employees are “afforded relatively swift
and certain payment of benefits to cure or relieve the effects
of industrial injury without having to prove fault but, in
exchange, give[] up the wider range of damages potentially
available in tort.” King v. CompPartners, Inc., 423 P.3d 975,
978 (Cal. 2018). The WCA, however, is not the exclusive
remedy just for employees. Under the derivative injury
doctrine, the WCA is also deemed “the exclusive remedy for
certain third party claims deemed collateral to or derivative
of” an employee’s work-related injuries. Snyder v.
Michael’s Stores, Inc., 945 P.2d 781, 784 (Cal. 1997)
(collecting examples).
The parties dispute the scope of California’s derivative
injury doctrine and whether it reaches the facts of this case.
Victory argues, relying primarily on Salin v. Pacific Gas &
Electric Co., 185 Cal. Rptr. 899 (Cal. Ct. App. 1982), that
this doctrine bars all claims against an employer that flow in
fact from a workplace injury suffered by an employee.
Because Mrs. Kuciemba alleges that she contracted COVID-
19 from her husband, who contracted the virus at work, her
claims are derivative of her husband’s workplace injury and
therefore barred by the WCA’s exclusivity provisions (or so
the argument goes).
The Kuciembas disagree. They highlight that Salin has
been twice called into question by the California Supreme
Court and has not been favorably cited by a California court
in decades. See Snyder, 945 P.2d at 785 n.2; Horwich v.
Superior Ct., 980 P.2d 927, 936 (Cal. 1999). The Kuciembas
also point to the California Supreme Court’s decision in
Snyder, 945 P.2d 781, which they interpret as limiting the
8 KUCIEMBA V. VICTORY WOODWORKS
derivative injury doctrine to a narrow class of claims: claims
that logically or legally require a plaintiff to show injury to
a third party, such as claims for loss of consortium or
wrongful death.
After briefing concluded, the California Court of Appeal
decided See’s Candies, Inc. v. Superior Court, 288 Cal. Rptr.
3d 66 (Cal. Ct. App. 2021). Faced with essentially identical
facts to those here, the Court of Appeal largely agreed with
the Kuciembas’ interpretation of Snyder and held that the
derivative injury rule does not bar claims brought by an
employee’s spouse against an employer for injuries arising
from a workplace COVID-19 infection. See id. at 80–81.
All the same, Snyder dealt with very different facts from
those present here and the Court of Appeal’s reasoning in
See’s Candies—although instructive—does not eliminate
the need for clear guidance from California’s highest court.
Faced with uncertain precedent regarding the reach of
California’s derivative injury doctrine, we conclude this
question is suitable for certification.
In addition, no controlling precedent resolves whether
Victory owed Mrs. Kuciemba a duty of care. By statute,
everyone in California “is responsible, not only for the result
of his or her willful acts, but also for an injury occasioned to
another by his or her want of ordinary care or skill.” Cal.
Civ. Code § 1714(a). 1 For reasons of public policy,
however, California’s courts have occasionally read
exceptions into this general duty of care to limit “the
1
Mrs. Kuciemba brought both a general negligence claim and a
premises liability claim against Victory. Neither party has suggested that
the differences between these claims are material. See Kesner v.
Superior Ct., 384 P.3d 283, 301 (Cal. 2016) (“[T]he duty arising from
possession and control of property is adherence to the same standard of
care that applies in negligence cases.”).
KUCIEMBA V. VICTORY WOODWORKS 9
otherwise potentially infinite liability which would follow
from every negligent act.” Bily v. Arthur Young & Co.,
834 P.2d 745, 761 (Cal. 1992). “The conclusion that a
defendant did not have a duty constitutes a determination by
the court that public policy concerns outweigh, for a
particular category of cases, the broad principle enacted by
the Legislature that one’s failure to exercise ordinary care
incurs liability for all the harms that result.” Kesner v.
Superior Ct., 384 P.3d 283, 290 (Cal. 2016).
No California court has yet considered whether public
policy favors creating an exception for employers who
negligently infect their employee’s family members with
COVID-19. See See’s Candies, 288 Cal. Rptr. 3d at 87
(noting but not reaching this issue). The Kuciembas argue
that California would decline to recognize such an
exception, relying primarily on the California Supreme
Court’s decision in Kesner, 384 P.3d 283, which declined to
create an exception in favor of employers who negligently
allowed their employees to carry asbestos fibers home to
their families. Although there are obvious analogies
between a worker who brings home asbestos and a worker
who brings home COVID-19, the public policy concerns
addressed in Kesner are potentially distinct from those
present here. Given its likely economic significance, we
conclude that “the spirit of comity and federalism,” Kremen
v. Cohen, 325 F.3d 1035, 1038 (9th Cir. 2003), dictates that
California’s courts be offered the opportunity to answer this
question in the first instance.
B.
Resolving these questions will dispose of this appeal.
The district court concluded that the derivative injury
doctrine applied and also that Victory did not owe a duty of
care to Mrs. Kuciemba. If either holding is correct, the
10 KUCIEMBA V. VICTORY WOODWORKS
district court’s ruling must be affirmed and the Kuciembas’
First Amended Complaint must be dismissed. 2 If neither
holding is correct, the district court’s ruling must be reversed
and the Kuciembas’ suit must be allowed to proceed.
We therefore conclude that this case presents prime
questions for the California Supreme Court to address. See
Cal. R. Ct. 8.548(a). The answers given by the California
Supreme Court will dispose of this appeal currently pending
before the Ninth Circuit. We agree to accept the Court’s
answers.
V. Accompanying Materials
The Clerk of this court is hereby directed to file in the
California Supreme Court, under official seal of the United
States Court of Appeals for the Ninth Circuit, copies of all
relevant briefs and excerpts of record, and an original and
ten copies of the request with a certification of service on the
parties, pursuant to California Rules of Court 8.548(c), (d).
This case is withdrawn from submission. Further
proceedings in this case before our court are stayed pending
final action by the California Supreme Court. The Clerk is
directed to administratively close this docket, pending
further order. The parties shall notify this court within
fourteen days of the California Supreme Court’s acceptance
2
The Kuciembas have attempted to skirt the district court’s
derivative-injury-doctrine holding by alleging in their First Amended
Complaint that Mrs. Kuciemba may have been infected with COVID-19
by particles of the virus carried home by her husband on his clothes and
possessions (rather than in his lungs). Whether or not the Kuciembas
have adequately pleaded this alternative theory of transmission, the
merits of their claim are still controlled by whether Victory owed
Mrs. Kuciemba a duty of care.
KUCIEMBA V. VICTORY WOODWORKS 11
or rejection of certification and, if certification is accepted,
within fourteen days of the California Supreme Court’s
issuance of a decision.
SO ORDERED.