Davis Walsh Quoted in Business Insurance on Possible Elimination of Exclusive Remedy Rule

October 12, 2021

In an Oct. 5, 2021, Business Insurance article, McGuireWoods partner Davis Walsh analyzed a workers’ compensation lawsuit pending in a California appellate court that may signal a new wave of COVID lawsuits—referred to as “take home” cases.

The case involved an employee who claimed to have contracted COVID-19 at work and alleged that she then transmitted COVID to her elderly husband, leading to his death. In response, her employer invoked the “exclusive remedy” rule, which bars such negligence suits as part of the workers’ compensation system in California. The trial judge allowed the case to proceed, overruling the defendant’s argument that workers’ compensation would bar a relative’s lawsuit.  The case is now on appeal.

Given breakthrough infections, vaccine opposition and guidance on boosters, eliminating liability risk for employers will be difficult if states allow “take home” cases to move forward, Walsh said. “The consequence of this is that businesses, regardless of the actions they take to prevent the spread of COVID in the workplace, are going to get sued — some being found liable.

“Thus far, outside of the workers comp world, we’ve generally seen a very limited number of lawsuits related to tracking COVID. Now that the courts have allowed these cases to proceed, I think that’s going to change — we’re going to see more of those types of lawsuits,” said Walsh, co-editor of the book “Infectious Disease Litigation: Science, Law, and Procedure” (American Bar Association, February 2021).