Employers Face Wrongful Death Claims from Pandemic

Nationwide, at least 18 cases of wrongful death have been alleged by surviving family members of employees who died from COVID-19. The lawsuits contend that the employers provided unsafe working conditions and failed to follow federal and local COVID-19 safety guidance. What’s more, the lawsuits seek to go beyond the “exclusive remedy” of workers compensation and seek monetary damages by alleging negligence. “Exclusive remedy” is shorthand for the bargain between employees and employers that exists in the workers' compensation system where employees give up their right to sue employers in exchange for no fault insurance against any injuries they incur (see our article, “5 Exceptions to the Exclusive Remedy Rule” in this issue).

Employer defendants in more than half of the COVID-19 injury or wrongful death lawsuits being tracked by the National Council on Compensation Insurance (NCCI) argue that the workers compensation exclusive remedy provisions in state laws bar such litigation. As courts continue to open, litigation by a worker or worker’s surviving family member against an employer over a COVID-19 infection or death is likely to continue.

“The COVID litigation logjam broke in the spring,” Carin Burford, Ogletree, Deakins, Nash, Smoak & Stewart P.C., in Birmingham, Ala., told Business Insurance, adding that lawsuits are likely to pile up.

“Court cases involving COVID-19 infections that bring in aspects of exclusive remedy … [are] not entirely unexpected,” Adam Levell, NCCI’s senior counsel, wrote in an email to Business Insurance, adding that it’s likely “more cases may emerge in the coming months/year as the pandemic evolves and states continue to loosen pandemic-related restrictions, businesses reopen, and people return to the office/traditional workplace.”

Lanzo v. Generations Behavioral Health is typical of these pandemic wrongful death cases, as summarized by law firm Fisher Philips: The plaintiff, the wife of a deceased employee working as a nurse at a mental health facility, alleges wrongful death under Ohio law. In support of her claim, the plaintiff alleges that the mental health facility failed or refused to follow COVID-19 directives issued by the state in order to reduce the spread of the virus. This, the complaint states, exposed her husband, Raymond Lanzo, to COVID-19.
The complaint does not claim the facility was wrong to operate during the pandemic, but that it failed to implement the policies and procedures that it should have in place to follow the state’s pandemic directives. The plaintiff further alleges that the company was “negligent” in its failure to provide “appropriate safety equipment.”

Allegations in the complaint also include that the mental health facility’s conduct was “wanton and willful,” likely both to enhance damages and avoid any argument by Generations Behavioral Health that workers’ compensation bars the claims, as simple negligence claims against an employer are typically barred by the workers’ compensation laws. Nevertheless, the plaintiff is seeking more than $25,000 in damages, including medical bills and funeral expenses.

Most of the cases are still pending, though there has been at least one decision. In Brooks v. Corecivic of Tennessee LLC, the U.S. District Court in the Southern District of California ruled last September that the exclusive remedy barred claims by a detention officer who said her former employer failed to maintain a healthy work environment and that she suffered emotional distress as a result.

“This is all very new; we have to stay flexible to see the trend and see where things will progress,” Oana Constantin, an associate in the San Diego office of Gordon Rees Scully Mansukhani LLP, told a Business Insurance reporter.

“I am hoping that the courts will summarily dismiss these cases because there is not an intent to injure,” said Steve Bennett, Washington-based assistant vice president for workers compensation programs and counsel for the American Property Casualty Insurance Association. “One hundred years of law shows the exclusive remedy bars this unless there is intentional tort.”