Begay v. Kerr-McGee Corp., Civ. 79-1016 Phx. WPC.

Citation499 F. Supp. 1317
Decision Date01 October 1980
Docket NumberNo. Civ. 79-1016 Phx. WPC.,Civ. 79-1016 Phx. WPC.
PartiesEsther Lee BEGAY, surviving wife of John Lee, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Harvey Lee Begay and his wife, Mamie Begay; Herbert N. Begay and his wife, Ella Begay; Hosteen Alsissze Begay and his wife, Jane Doe Begay; John N. Begay and his wife, Mable Lee Begay; Kee H. Begay and his wife, Elise Begay; Roy Bekis and his wife, Annabella Bekis; Bernard D. Benally and his wife, Jeanette Benally; Billy Benally and his wife, Lucille Benally; Dan T. Benally and his wife, Jane Doe Benally; Harry Lee Benally and his wife, Minnie Benally; Henry J. Benally and his wife, Nancy Benally; John Benally and his wife, Nellie G. Benally; Lucy W. Benally, surviving wife of Roy Benally, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Nellie Benally, surviving wife of Harrison Benally, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Rose T. Benally, surviving wife of Todacheene Benally, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Bruce Billy and his wife, Elizabeth Billy; Thomas Blackhorse, Sr. and his wife, Grace Blackhorse; Alice Blackwater, surviving wife of Frank Blackwater, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Ruth Charley, surviving wife of Joe Charley, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; George Tangle Chee and his wife, Jane Doe Chee; Asa Cody and his wife, Jennie Cody; Lucy Coleman, surviving wife of Joe Coleman, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Lucy Coty, surviving wife of Lee C. Coty, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Fannie Dick, surviving wife of Clark Dick, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Clarence Frank and his wife, Minnie Frank; Agatha Garnenez, surviving wife of Jim Tom Garnenez, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; James N. Garnenez, aka James Jim, and his wife, Jane Doe Garnenez; Bessie George, surviving wife of King George, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Jessie Harrison, surviving wife of Phillip Harrison, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Manson Harvey and his wife, Mary Louise Harvey; Fern Hosteen, surviving wife of Harry Hosteen, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Ray Hosteen and his wife, Lula Hosteen; Fred Jim and his wife, Rita Rose Jim; Grey Jim and his wife, Lena Jim; Marie Joe, surviving wife of Dee Joe, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Raymond S. Joe and his wife, Dorothy Mae Joe; Mae N. John, surviving wife of Tom W. John, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Frank John and his wife, Evelyn John; Harry W. Johnson and his wife, Jane Doe Johnson; Mary Jane Johnson, surviving wife of Fred E. Johnson, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Mary Louise Johnson, surviving wife of Billy Johnson, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Roscoe Kinsel and his wife, Elizabeth Kinsel; Allen Lee and his wife, Lilly Lee; Tom A. Lee, Sr. and his wife, Alice S. Lee; Wilbert Mark and his wife, Jane Doe Mark; Sam Marshall, Sr. and his wife, Jane Doe Marshall; Frank Nacheenebetah and his wife, Jane Doe Nacheenebetah; Bernard Nakai and his wife, Louise Nakai; Joe Lee Nakai and his wife, Jane Doe Nakai; Leroy L. Nakai and his wife, Esther Mae Nakai; Pearl Nakai, surviving wife of John Smith Nakai, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Paul Nakaidinae and his wife, Louise Nakaidinae; Annie Mae Nelson, surviving wife of Alfred Nelson, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Kenneth Nez and his wife, Jane Doe Nez; Louis K. Nez and his wife, Jane Doe Nez; Mary Jane Nez, surviving wife of Keedah Hosteen Nez, aka Keedah Hosteen Nez Begay, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Donald Roe and his wife, Corena Roe; Harry Russell and his wife, Jane Doe Russell; Harry Smith, Jr. and his wife, Jane Doe Smith; James Smith and his wife, Jane Doe Smith; Bessie Sorrelhorse, surviving wife of Tony Sorrelhorse, Jr., deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Elsie J. Tapaha, surviving wife of John Tapaha, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Joe Tom Tapaha and his wife, Susie Tapaha; Carl Thomas and his wife, Alberta Thomas; Frank Tsosie and his wife, Lola Tsosie; George Tutt, Sr. and his wife, Bessie H. Tutt; King Tutt and his wife, Jane Doe Tutt; Jane Washburn, surviving wife of John Washburn, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Betty Joe Yazzie, surviving wife of Kee Yazzie, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Betty Joe Yazzie, surviving wife of Robert Yazzie, deceased, individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Delores Yazzie, surviving wife of Peter Fred Yazzie, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Fannie Yazzie, surviving wife of Clifford Yazzie, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Hanagran Yazzie and his wife, Amy Yazzie; James H. Yazzie and his wife, Jane Doe Yazzie; Kelewood Yazzie and his wife, Stella Mae Yazzie; Mary Ann Yazzie, surviving wife of Selow Yazzie, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased, Plaintiffs, v. The KERR-McGEE CORPORATION; Kerr McGee Oil Industries, Inc.; Vanadium Corporation of America; Foote Mineral Co.; Amax, Inc.; Climax Uranium Company; and Climax Molybdenum Company, Defendants.
CourtU.S. District Court — District of Arizona

William P. Mahoney, Jr. and Frank J. Barry, Tucson, Ariz., of Mahoney & Rood, Stewart L. Udall, Phoenix, Ariz., for plaintiffs.

Steven C. Lester, of Jennings, Strouss & Salmon, Ralph Mahowald, of O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, et al., Robert K. Park, John R. Greer, Phoenix, Ariz., for defendants Kerr-McGee Corp. and Kerr-McGee Oil Industries, Inc.

Newman R. Porter, Alvin H. Shrago, of Evans, Kitchel & Jenckes, Phoenix, Ariz., for Amax, Inc., Climax Uranium Co. and Climax Molybdenum Co.

Douglas L. Irish, of Lewis & Roca, Phoenix, Ariz., for Foote Mineral Co. and Vanadium Corp. of America.

James P. Linn, Raymond E. Tompkins, William R. Burkett, B. J. Zimmerman, Richard F. Campbell, Oklahoma City, Okl., for Kerr-McGee Corp.

Rosemary Collyer, Raymond J. Turner, of Dawson, Nagel, Sherman & Howard, Denver, Colo., for Foote Mineral Co. and its related parties defendant.

MEMORANDUM AND ORDER

COPPLE, District Judge.

In their fourth amended complaint, plaintiffs seek to invoke this court's jurisdiction on the basis of both diversity of citizenship and federal question. Between 1948 and 1966, plaintiffs, and plaintiffs' decedents, all Navajo Indians, were employed at the defendants' uranium mining operations located on the Navajo Indian Reservation. During this time period, these uranium workers are alleged to have been exposed to radon and "radon daughter" products. This exposure is alleged to have caused the plaintiffs and plaintiffs' decedents to suffer lung cancer and other radiation-related illnesses. Plaintiffs seek damages under the theories of negligence, strict liability, and intentional tort.

Defendants have moved to dismiss this complaint on the basis that this court lacks subject matter jurisdiction and the complaint fails to state a claim.

In their memoranda, the parties have raised issues regarding the existence of a federal question, the applicability of Arizona's Occupational Disease Disability Act (ODDA) and Workmen's Compensation Laws to Indian reservations, and several exceptions to the exclusive remedies afforded under these two statutory schemes.

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  • Superior Oil Co. v. Merritt
    • United States
    • U.S. District Court — District of Utah
    • September 16, 1985
    ...involved, the courts have refused to extend the rationale of Oneida to hold that a federal question is present." Begay v. Kerr-McGee Corp., 499 F.Supp. 1317, 1322 (D.Ariz.1980), aff'd, 682 F.2d 1311 (9th Cir.1982). Oneida I is therefore inapplicable to Superior's Superior has tried to bring......
  • Begay v. Kerr-McGee Corp.
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    ...to comply with Arizona's workers' compensation statutory notice requirement, Ariz.Rev.Stat. § 23-906(D), (E) (Supp.1981). 499 F.Supp. 1317 (D.Ariz.1980). Following the filing of this final amended complaint and substantial discovery, the parties stipulated that the notice requirement had no......
  • Galloway v. Vanderpool
    • United States
    • Arizona Supreme Court
    • May 23, 2003
    ...have consistently recognized and applied the rule that the right to elect a remedy is personal to the employee. Begay v. Kerr-McGee Corp., 499 F.Supp. 1317, 1323 (D.Ariz. 1980); Coyner v. Indus. Comm'n., 77 Ariz. 210, 212-13, 269 P.2d 712, 713 (1954); Ringling Bros. & Barnum & Bailey Combin......
  • Henderson v. Casino
    • United States
    • U.S. District Court — Southern District of California
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    ...if they injury was sustained on an Indian reservation, do not give rise to federal jurisdiction. See, e.g., Begay v, Kerr-McGee Corp., 499 F. Supp. 1317, 1322 (D. Ariz. 1980). Accordingly, because Plaintiff has not set forth any cognizable ground for this Court to exercise jurisdiction over......
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