Kuciemba v. Victory Woodworks Inc.

CASE NAME: Kuciemba v. Victory Woodworks Inc.

TYPE OF CASE: Negligence

COURT: 9th U.S. Circuit Court of Appeals

JUDGE(S): Justice Clifford Wallace, Justice Sidney Thomas, Justice M. Margaret McKeown

DEFENSE LAWYERS: Hinshaw & Culbertson LLP, William A. Bogdan

PLAINTIFF LAWYERS: Venardi Zurada, Martin Zurada

Post-COVID-19, California employers faced an onslaught of lawsuits alleging they'd sent workers home with the virus to infect others in the household. But a team of lawyers led by William A. Bogdan of Hinshaw & Culbertson LLP, Robert E. Dunn of Eimer Stahl LLP and Benjamin J. Horwich and Joseph D. Lee of Munger, Tolles & Olson LLP put in place a roadblock to avert so-called take-home Covid suits.

To do it required a revision in California's duty analysis that the team achieved through an odyssey from a state trial court to a federal district court to a federal appellate court to the state Supreme Court and back to the federal appellate court. The upshot: employers do not owe a duty of care under California law to prevent the spread of COVID-19 to employees' household members. Associate Justice Carol A. Corrigan wrote for the unanimous high court. Kuciemba v. Victory Woodworks Inc., S274191 (Cal. S. Ct., op. filed July 25, 2023).

"Plaintiff lawyers were ready to run out and file these cases, and some were already in progress," said Bogdan, lead counsel for Victory Woodworks, the workplace where plaintiff Robert Kuciemba, an employee, claimed he was exposed to the virus and then sickened his wife Corby Kuciemba in their home. "I was in touch with a little network of defense counsel across the country who reported these cases were in the works."

Bogdan worked with Dunn, amicus counsel for the Chamber of Commerce of the US, and Horwich and Lee, amicus counsel for See's Candies Inc.

The state high court's ruling ratified a dismissal of the case by Senior U.S. District Judge Maxine M. Chesney of San Francisco -- after Bogdan had first removed the case from state to federal court. Following Chesney's ruling, the plaintiffs' appeal became the subject of a certified question of state law on the duty of care asked by the 9th U.S. Circuit Court of Appeals of the California Supreme Court. When the Supreme Court answered there was no such duty in these circumstances, the circuit panel affirmed Chesney.

To persuade the Supreme Court justices, lead counsel Bogdan and the two amici attorneys divided oral argument into three equal parts, with each attorney addressing one prong of the defense. In its opinion, the court held that if the imposition of a duty interferes with society's ability to function and the stultifying fear of potential liability erodes the efficacy of public safeguards, the court will not impose a duty, Bogdan said.

"The Kuciemba case involved complex and novel legal issues of workers' compensation preemption and scope of the duty of care," Lee said, "and the California Supreme Court came to the right conclusion by holding that an employer's duty of care doesn't extend to members of an employee's household. The ruling is very significant for employers in California, who could have faced massive liability for 'take home' COVID-19 illnesses."

Plaintiff lawyer Martin J. Zurada of Venardi Zurada LLP did not return a message seeking comment.

-John Roemer