By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.
On March 9, 2020, Ronald & Eva Weissberger sued Princess Cruise Lines, Ltd. in the U.S. District Court for the Central District of California. Mr. & Mrs. Weissberger are passengers aboard the Grand Princess which departed out of San Francisco on Feb. 21, 2020, and has been anchored off the coast of California since March 4, 2020 since March 4, 2020 as a result of an outbreak of COVID-19.
Two unique aspects of the suit are worthy noting.
First, the only causes of action actually plead are negligence and gross negligence (likely to invoke insurance coverage). The allegations nevertheless also support a claim of intentional misconduct. In this regard, the suit alleges: “Defendant PRINCESS chose to place profits over the safety of its passengers, crew and general public in continuing to operate business as usual, despite their knowledge of the risk of actual injury to Plaintiffs, who are elderly with underlying medical conditions.”
Second, neither of the plaintiffs has actually contracted COVID-19. Their alleged damages stem only from the actual risk of immediate exposure to the virus. The suit specifically alleges: “… Plaintiffs are suffering from emotional distress, are traumatized from the fear of developing COVID-19 as they sit minute after minute in their confined cabin on an infected vessel, and this emotional harm will continue to plague them.”
Frankly, the suit against Princess Cruises may have dubious merit. Still, the suit must now be defended, even if frivolous, at considerable expense. This expense, along with unwanted media attention, means the suit has settlement value. The plaintiffs likely had no problem finding an attorney willing to file a lawsuit under such circumstances.
Now that Coronavirus litigation has begun, other potential plaintiffs will soon join the party. They will see the suit against Princess Cruises as a model even as to persons who never contracted the virus.
So, why should employers be worried? After all, worker’s compensation insurance generally provides a shield from liability to employers not available to cruise lines. This shield can be especially formidable for injuries which are mental and emotional in nature. Still, there are circumstances in which this shield may not be available.
In Texas, for instance, an employer can opt out of worker’s compensation insurance coverage for its employees. A non-subscriber Texas employer, therefore, is not shielded from negligence claims, such as those asserted against Princess Cruises, for failure to provide a safe workplace.
In Illinois, moreover, the Worker’s Compensation Act provides the exclusive remedy only for “accidental injuries” that occur in the workplace. As recognized in 2018 by the U.S. District for the Northern District of Illinois in Phillips v. Exxon Mobil Corporation, there are circumstances in which a claim for intentional infliction of emotional distress is not barred by worker’s compensation insurance. An Illinois employer, therefore, is not shielded from claims, such as those effectively asserted against Princess Cruises, for intentional misconduct in the face of COVID-19.
As long as end-arounds exist to state worker’s compensation laws, employers should anticipate the tremendous incentive for employees exposed to the threat of contracting COVID-19 to exploit them. They will likely find no shortage of attorneys willing to try an end-around as to such a high-profile subject matter. Even if frivolous, a suit making claims, such as those asserted against Princess Cruises, will still need to be defended.
How can the risk of such a lawsuit be mitigated by employers? Follow the advice of the CDC on the webpage specifically developed or business and employers. This webpage can be accessed here. The more proactive an employer is in safeguarding the health of its employees, the lower the risk of an unfortunate lawsuit.
Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding labor and employment law issues. To contact him for a speaking engagement please e-mail him at firstname.lastname@example.org.