Take Home Exposure Insufficient to Overcome Demurrer Based Upon Exclusivity Provision of Workers’ Compensation Act California Court of Appeal, First District, Division 5, July 23, 2018

CALIFORNIA — Plaintiffs, Allen and Pamela Rudolph, filed suit against Rudolph & Setten, Inc. (R&S), a general contracting company started by Allen Rudolph’s father, alleging that the plaintiff was exposed to asbestos as a child from take home exposure via his father, and also while employed by the company himself.  R&S filed a demurrer to the suit, alleging that the claims were barred by the exclusivity provision of California’s workers’ compensation act.  The demurrer was sustained by the trial court.  The plaintiffs filed an amended complaint, alleging the same claims, except deleting the phrase “employed by” with regard to R&S and modifying the claim to state that such exposure occurred while Allen “work[ed] in various capacities” for R&S.  R&S again demurred, and the trial court sustained the demurrer without leave to amend.  The trial court found that the plaintiffs were bound by their original allegation that Allen was employed by R&S.

On appeal, the plaintiffs argued that the exclusivity provision did not apply because of the alleged take home exposure that occurred long before and separate from his occupational exposure.  The appellate court explained that such an argument was made by plaintiffs in prior California case law and has been rejected by the appellate court.  In this case, the plaintiffs alleged that Allen developed mesothelioma and that the injury was caused by exposure to asbestos at both home and work.  Thus, a substantial contributing cause of Allen’s injury was his occupational exposure, and his injury “is covered by workers’ compensation, even if another, nonindustrial cause also substantially contributed to the injury.”  Under California case law, take home exposure did not create a separate injury outside of workers’ compensation coverage.  As such, this claim was barred by the workers’ compensation exclusivity doctrine.  The trial court’s demurrer was therefore affirmed.

Read the full case decision here.

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