The Ninth Circuit today continued its recent increase in requests to the Supreme Court for help deciding issues of California law. In Kuciemba v. Victory Woodworks, a panel of the federal court has asked for answers to these 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 employer owe a duty to the households of its employees to exercise ordinary care to prevent the spread of COVID-19?”

The case was removed to federal court, where a district court dismissed it.

According to the Ninth Circuit’s order, the plaintiffs claim that the defendant company “knowingly transferred workers from an infected construction site to [the employee-plaintiff’s] jobsite without following the safety procedures required by [a San Francisco] Health Order,” that the employee “was forced to work in close contact with these employees and soon developed COVID-19, which he brought back home,” where he infected his high-risk wife, who became severely ill.

Video of last month’s Ninth Circuit oral argument is here.

The Supreme Court almost always agrees to answer questions posed by the Ninth Circuit. It has granted 12 of the last 13 requests for help in resolving questions of California law, dating back to July 2018.  But this request might be an exception.

The Supreme Court just last week denied review of a published Court of Appeal opinion in a Covid take-home case, See’s Candies, Inc. v. Superior Court. The opinion decided that the exclusivity provision of the Workers’ Compensation Act did not bar the employee-plaintiff’s action there because the employee-plaintiff’s husband’s death was “allegedly causally related to [her] alleged infection by the virus in the workplace, but . . . not derivative of that infection.” That might be enough for the Supreme Court to decline to answer the Ninth Circuit’s first question, although the Ninth Circuit claims that the “reasoning in See’s Candies — although instructive — does not eliminate the need for clear guidance from California’s highest court” because there are other cases that make for “uncertain precedent regarding the reach of California’s derivative injury doctrine.”

See’s Candies expressly declined to address the second question the Ninth Circuit today posed. The appellate court’s opinion said it was not deciding whether there is “a duty of care to nonemployees infected with COVID-19 as a result of an employee contracting the disease at work.” However, the Supreme Court five years ago itself held in Kesner v. Superior Court (2016) 1 Cal.5th 1132 that employers and landowners owe a duty of care to workers’ household members who are exposed to asbestos when the workers carry the asbestos home on their person or clothing. (Horvitz & Levy represented the defendant in Kesner.) But, the Ninth Circuit order says, “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.”

The Supreme Court might deny the Kuciemba request and include in its denial order a citation to See’s Candies and Kesner. That would essentially answer the Ninth Circuit’s questions without accepting the case. The court has done that kind of thing before. (See: The shadow docket . . . of California’s Supreme Court, part 2.)

This is the fifth Ninth Circuit request for Supreme Court assistance since December 2021. Before that, more than eight months had passed without an ask.

The Supreme Court should let the Ninth Circuit know by late June — give or take — whether it will answer the questions.  Three other requests, all made within the last two months, are still pending.


Rule 8.548

Asked and answered:  California Supreme Court responses to Ninth Circuit questions

The constitutionality of the Supreme Court answering the Ninth Circuit’s legal questions

Ask not what the Supreme Court can do for the Ninth Circuit

Justice Kruger and Judge Owens talk about the Supreme Court answering Ninth Circuit questions