Schmidt, Sethi & Akmajian Blog

Torts—Workers’ Compensation Exclusive Remedy/Intentional Acts

Posted by Ted A. Schmidt | Jan 26, 2017 | 0 Comments

McKee v. State, 755 Ariz. Adv. Rep. 30 (App. Div. I, December 30, 2016) (J. Gould)


Plaintiff's son, Grant McKee [McKee] was a firefighter with Granite Mountain Interagency Hotshot Crew and died fighting the Yarnell fire. Plaintiff filed a lawsuit against the State and the State Forestry Division seeking damages for wrongful death and intentional infliction of emotional distress. The State filed a motion to dismiss plaintiff's claims, arguing that her wrongful death claim was barred by the workers' compensation exclusive remedy provision, that plaintiff failed to state a claim for intentional infliction of emotional distress, and that the State Forestry Division was a non-jural entity that could not be sued. The trial court granted the motion and the Arizona Court of Appeals affirmed.

In Arizona, workers' compensation is the exclusive remedy for work-related injury or death of an employee. A.R.S. §23-1022(A). Only where the employer's willful conduct causes injury or death may a tort claim be brought against the employer. An employee of a public agency working under the jurisdiction and control of another public agency pursuant to an IGA is considered an employee of both agencies for purposes of the exclusive remedy provision of workers' compensation.

Here plaintiff argued McKee was an employee of the City of Prescott at the time of his death but not an employee of the State Forestry Division because of noncompliance with A.R.S. §11-952(F). This statute requires “appropriate action by ordinance or resolution” to extend the term of an IGA. Plaintiff claims this was  not done so the IGA was no longer in effect at the time of McKee's death. However, the IGA in question provided, it "will continue in force from year to year unless terminated by either party." Hence, the agreement was perpetual and did not require a subsequent resolution to be effective.

In order to avoid the exclusive remedy of workers' compensation a plaintiff must prove the employer engaged in “willful misconduct” defined as “an act done knowingly and purposely with the direct object of injuring another." A.R.S. §23-1022(B). Specifically it must be proven that  

“(1) the employer's willful misconduct must have been the cause of the employee's injury,

(2) the willful misconduct must have been an act done . . . knowingly and purposely with

the direct object of injuring another,"

(3) the act that caused the injury must have been the personal act of the employer, and

(4) the act must have reflected "a willfully disregard of the life, limb or bodily safety

of employees."

Most important here, there must be a “deliberate intention” to injure. Intent is not implied from gross negligence or wanton conduct. Plaintiff did not allege intent to injure.

Further, plaintiff argued that since she personally had no right to workers' compensation benefits she could not be bound by McKee's election to accept such benefits. Diaz v. Magma Copper Co., 190 Ariz. 544, 549 (App. 1997) holds otherwise. Arizona's wrongful death statute provides that the action is subject to the same defenses that could be raised against the decedent had he survived. A.R.S. §12-611.

Next the plaintiff alleged intentional infliction of emotional distress. Specifically she claimed that defendants' gross negligence caused her severe emotional distress as did the defendants' negligent misrepresentation of the facts surrounding the Yarnell fire in order to avoid blame. These claims stand  separate and apart from the wrongful death claim and are therefore not barred by the workers' compensation exclusive remedy. However, this tort requires the  plaintiff be present when the extreme and outrageous conduct forming the basis of the claim occurred. Plaintiff does not allege she was present so these claims must fail as well.

Finally, in order to sue a governmental entity that entity must have been granted the power to sue and be sued by the state legislature. Here there was no grant of these powers to the Forestry Division. Hence it is a non-jural entity and cannot be sued.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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