Merritt-Chapman & Scott Corporation v. Frazier

• Citation: 289 F.2d 849
• Decision Date: 18 April 1961
• Docket Number: No. 16543.,16543.
• Parties: MERRITT-CHAPMAN & SCOTT CORPORATION, Appellant, v. Bernice M. FRAZIER, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

289 F.2d 849 (1961)

MERRITT-CHAPMAN & SCOTT CORPORATION, Appellant, v. Bernice M. FRAZIER, Appellee.

No. 16543.

United States Court of Appeals Ninth Circuit.

April 18, 1961.

Shimmell, Hill & Kleindienst, Rouland W. Hill, Phoenix, Ariz., for appellant.

Langerman & Begam, Samuel Langerman, Phoenix, Ariz., for appellee.

Before STEPHENS, Senior Circuit Judge, and MERRILL and KOELSCH, Circuit Judges.

KOELSCH, Circuit Judge.

This is an action for wrongful death under the statutes of Arizona.¹ Jurisdiction of the District Court is based upon diversity of citizenship.

On August 24, 1957 Robert C. Frazier was instantly killed by a rockslide at the site of the Glen Canyon Dam near Page, Arizona. He was then working at the bottom of the canyon on the westerly side of the Colorado River where his employer, Mountain States Construction Company, was engaged in driving a tunnel through which to divert the water of the river while the dam was being constructed.

Thereafter Bernice M. Frazier, his surviving widow, on behalf of herself and the decedent's four minor children, commenced this action in the District Court for damages against Merritt-Chapman & Scott Corporation, the company building the dam. She charged in her complaint that the defendant, in the course of excavating near the rim of the canyon above the place where Frazier was working, had negligently caused the fatal slide. The jury rendered a verdict in favor of plaintiff, judgment was duly entered, and the defendant has appealed.

Defendant contends that the District Court lacked jurisdiction over the subject matter of this suit because before plaintiff filed her complaint the cause of action for Frazier's death had been irrevocably vested in the State of Arizona for the benefit of the Workmen's Compensation Fund of that State.

The Workmen's Compensation Act of Arizona extends monetary benefits to the dependents of an employee who, while engaged in his duties, is killed by the wrongful act of a third person not in the same employ. However, such dependents may not claim the death benefits available to them under the Act and in addition prosecute the cause of action for wrongful death: they must choose between the two rights (State ex rel. Industrial Comm. v. Reese, 1952, 74 Ariz. 425, 250 P.2d 1001). The Act also provides that if the "election" is to take compensation then "the claim against such other person shall be assigned to the state for the benefit of the compensation fund or to the person liable for the payment thereof" (Sec. 23-1023, Ariz.Rev.Stat.) and that a "* * * legal representative in event death results, who makes application for an award * * * waives the right to exercise any option to institute proceedings in court. * * *" Sec. 23-1024, subd. A., Ariz.Rev.Stat. However, an application for an award of death benefits will constitute the requisite "election" (which effects the transfer of the cause of action to the state by operation of law (Moseley v. Lily Ice Cream Co., 1931, 38 Ariz. 417, 300 P. 958) ) if, but only if, the applicant when filing the application has knowledge "(1) of the alternative remedies and (2) that the acceptance of one waives the right to the other citations omitted. With this construction Sec. 56-950, supra (i. e., Sec. 23-1024, Ariz.Rev.Stat.), is constitutional.² If the applicant does not have this knowledge, whether his ignorance be one of law or fact, he has in fact made no binding election." State ex rel. Industrial Comm. v. Pressley, 1952, 74 Ariz. 412, 416, 250 P.2d 992, 994.

Defendant initially raised the issue of jurisdiction in the District Court by motion for summary judgment. This motion was denied, defendant then renewed the objection and was granted a hearing on the issue. The evidence was undisputed: Mrs. Frazier had applied for benefits following her husband's death, but testified that at the time she was ignorant of her right to bring suit against defendant. She did not learn of this right until shortly before December 3, 1957, the date when the Industrial Commission of Arizona entered an award in favor of Mrs. Frazier and her children. It also appears that on December 23, 1957, Mrs. Frazier, by an instrument entitled "Election of Remedy," notified the Industrial Commission that she elected to prosecute the cause of action against the wrongdoer, and the Commission, on January 14, 1958 made an order suspending and withholding payment under the award. No payments have ever been made.

At the conclusion of the hearing, the District Court rejected the defendant's objections to jurisdiction, saying:

"The essential finding is that the plaintiff, Bernice Frazier at the time when she made the claim for compensation did not know of her right to elect to bring an action against the third party as provided by the statute; that thereafter when advised of her rights, she promptly made an election in the light of her alternative benefits, and that the election was timely and validly asserted, and that accordingly this Court has jurisdiction of this action, the Court concludes as a matter of law.

"The objection to the jurisdiction of this Court is denied."

Defendant does not contend that this conclusion of the District Court lacks evidentiary support but rather vigorously urges that the award which the Commission made on December 3, 1957 pursuant to plaintiff's application constituted an adjudication of all matters essential to an allowance of death benefits including the fact that plaintiff had made a valid election; and that this award was a final one which under Rule 37 of the Commission may not be set aside, modified or otherwise disturbed unless a petition for rehearing is filed within twenty days of the service of the award.³

Defendant then concludes that "* * * the Commission lost `power to deal with the case' for the lack of a timely petition for rehearing; re-examination of the award was forever foreclosed. The award `became final and not subject to reversal by the commission.'"

However, we must disagree. The commission still had jurisdiction over the matter on December 23, 1957, for twenty days had not yet elapsed. By filing the "Election Remedies" on that date, the defendant notified the commission that she had never waived her right to seek damages.⁴ If the "Election" was to be countenanced the award could not stand. In addition, as a petition for rehearing the "Election" would prevent the award from becoming final and would preserve and continue the jurisdiction of the commission "to enter into such further proceedings as will result in a proper award." Smith v. Industrial Comm., 1959, 87 Ariz. 69, 347 P.2d 1010, 1011.

The "Record of Commission Action" of January 14, 1957, wherein the order of the Commission appears, unmistakably demonstrates that the "Election" was accepted and dealt with by that body as an application for rehearing.⁵ By that order the Commission conformed the award to the "Election" making the former subject to and contingent upon plaintiff's first asserting a suit for damages. After such suit the award would be effective but only if plaintiff's recovery was less than the amount of the death benefits established by the award. In that event, plaintiff would be entitled to the difference.⁶

Following the District Court's decision on the Motion to Determine Jurisdiction and Motion for Summary Judgment, defendant commenced a suit in the Superior Court of Arizona under the Declaratory Judgment Act of that State and at the same time moved the District Court to suspend its proceedings pending the outcome of that suit. The denial of a stay is also assigned as error.

The issues tendered by defendant's complaint in the State Court were essentially the same as those presented to the District Court by defendant's Motion to Determine Jurisdiction and for Summary Judgment. Defendant, however, urges that since their resolution rested upon underlying questions of local law not the subject of statute nor as yet declared by the highest court of Arizona, the District Court "should have deferred its decision with respect to matters of local law until those issues could have been decided with finality in an action then pending in the state court."

We conclude that the lower court did not abuse its discretion by refusing to stay the proceeding before it.

The defendant had already submitted these very issues to the District Court and only after an adverse decision solicited the State Court to pass upon them. Justification for the denial of the stay might well be rested on that fact. However, there is a more cogent reason for our conclusion. Although the decision of a federal court on a doubtful issue of state law has been characterized as "* * * a forecast rather than a determination, * * * a tentative answer which may be displaced tomorrow by a state adjudication," (Railroad Comm. of Texas v. Pullman Co., 1941, 312 U.S. 496, 499, 500, 61 S.Ct. 643, 645, 85 L.Ed. 971) the Supreme Court has also repeatedly emphasized "* * * the duty of the federal courts, if their jurisdiction is properly invoked, to decide questions of state law whenever necessary to the rendition of a judgment."

Moreover, that court has held that the mere fact the District Court in the exercise of its diversity jurisdiction is obliged to make decisions based upon its interpretation of state law is not alone sufficient ground for declining jurisdiction. Meredith v. City of Winter Haven, 1943, 320 U.S. 228, 234, 64 S.Ct. 7, 88 L.Ed. 9. In this connection it was declared that while "the submission of special issues to a state court is a useful device in judicial administration in such circumstances as existed in the Magnolia, Spector, Fieldcrest and Pullman cases, supra⁷ * * * in the absence of special circumstances, 320 U.S. at pages 236, 237, 64 S.Ct. at pages 11, 12, 88 L.Ed. 9, it is not to be used to impede the normal course of action where federal courts have been granted jurisdiction of the controversy." Propper v....