Bonner v. Minico, Inc., CV-87-0016-PR

Decision Date22 November 1988
Docket NumberNo. CV-87-0016-PR,CV-87-0016-PR
Citation766 P.2d 598,159 Ariz. 246
PartiesJohn Michael BONNER, as surviving spouse of Mary Kathryn Bonner, deceased, on his own behalf and in his representative capacity for the surviving children, Carrie Ann Bonner, and John Joseph Bonner, and the surviving parents, Charles Goldsborough and Hope Goldsborough, Plaintiffs/Appellants, v. MINICO, INC., an Arizona corporation; Mini Storage Security Co., an Arizona corporation; Mini Storage Service Corporation, an Arizona corporation; and Richard R. Ford, Defendants/Appellees.
CourtArizona Supreme Court

Jennings, Strouss & Salmon by Michael A. Beale and Mikel L. Moore, Phoenix, for defendant/appellee Minico, Inc.

Teilborg, Sanders & Parks, P.C. by John C. Gemmill, Phoenix, for defendant/appellee Ford.

MOELLER, Justice.


Mary Bonner was employed for several years by Minico, Inc. On April 9, 1984, while at work in her office, she was shot to death by Richard Ford, president of Minico. Her surviving husband, John Bonner, brought this wrongful death action against Ford and Minico in superior court. The amended complaint sought damages for John Bonner as surviving husband, for two surviving Bonner children, and for Mary Bonner's surviving parents. The trial court dismissed the amended complaint, finding that the court had no subject matter jurisdiction because the shooting did not fall within the "wilful misconduct" exception of A.R.S. § 23-1022 and Ariz. Const. art. XVIII, § 8. The court of appeals affirmed the dismissal and we granted review. We have jurisdiction pursuant to Ariz. Const. art. VI, § 5(3) and Rule 23, Ariz.R.Civ.App.P., 17B A.R.S.


Richard Ford, president of Minico, falsely believed that Mary Bonner and Howard Gooding, Ford's business partner, were conspiring against him. Acting under this false belief, Ford went to Mary's office and shot her several times, fatally injuring her. He then walked to his car, got in it and drove into a pole, hoping to kill himself. He survived. 1

John Bonner's amended complaint in superior court alleged that Mary's death, while in the course of her employment, was the result of Ford's "wilful misconduct." Thus, plaintiff contended that A.R.S. § 23-1022 permitted him to make a post-injury election to reject worker's compensation benefits and to sue the employer and co-employee for wrongful death in superior court.

Minico first filed a motion for summary judgment in the trial court, contending that Ford was not acting within the scope of his employment and, thus, Minico was not liable for Ford's actions. Both plaintiff and Ford opposed the motion. In opposition, Ford suggested that plaintiff's exclusive remedy was under worker's compensation and, therefore, the superior court lacked jurisdiction. At the hearing on the "scope of employment" motion, the court questioned whether it had subject matter jurisdiction over the matter. To resolve this question, the court allowed the parties to conduct additional discovery, file supplemental memoranda, and orally argue whether Ford's actions constituted "wilful misconduct."

Relying on Morgan v. Hays, 102 Ariz. 150, 426 P.2d 647, cert. denied, 389 U.S. 859, 88 S.Ct. 105, 19 L.Ed.2d 125 (1967), the trial court first determined that it was the appropriate entity to determine whether it had subject matter jurisdiction. The trial court then determined that the killing was not "wilful misconduct" within A.R.S. § 23-1022. In accordance with this finding, the trial court dismissed the case for lack of jurisdiction over plaintiff's objection that he was entitled to a jury trial on the disputed jurisdictional issue. The court of appeals agreed with the trial court's analysis and affirmed the dismissal.


We granted review to resolve the following issues:

1. In a civil case, what is the proper method to resolve disputed jurisdictional facts when those disputed jurisdictional facts are intertwined with the merits of the case?

2. Was the proper method to resolve disputed jurisdictional facts used in this case?

We recognize that often jurisdictional questions arise in the context of determining which of two or more alternative fora is the appropriate one to resolve a dispute. That is not the case here. Here, the superior court is clearly the proper forum to resolve the "jurisdictional" issue. No party to this suit and neither of the lower courts have suggested otherwise. The dispute here is over the method that the superior court should use to resolve the dispute.

1. The Problem

In most cases, absent a pre-accident election by the employee, workers' compensation is the employee's exclusive remedy against the employer for work-related injuries. Arizona cases have long stated that the superior court lacks "jurisdiction" over work-related injury cases if the employee's exclusive remedy is workers' compensation. Article XVIII, § 8 of the Arizona Constitution, however, creates an exception to the exclusive remedy rule for injuries or deaths which are the result of acts of the employer (or co-employee) done "knowingly and purposely with the direct object of injuring another and the act indicates a wilful disregard of the life, limb or bodily safety of employees." A.R.S. § 23-1022 implements this constitutional exception.

Although these constitutional and statutory provisions set forth a limited exception that permits an employee to reject workers' compensation and sue the employer, they do not address the question of who determines, as between court or jury, whether the exception applies. The plaintiff here claims he is entitled to a jury resolution under article II, § 23 of the Arizona Constitution, which provides: "The right to trial by jury shall remain inviolate...." The defendants contend, and the lower courts held, that the trial judge is required or, at least, permitted to make the decision. They rely primarily upon our decision in Morgan v. Hays for this proposition.

2. Morgan v. Hays and Other Arizona Authorities

The court of appeals, relying on Morgan v. Hays, 102 Ariz. 150, 426 P.2d 647, cert. denied, 389 U.S. 859, 88 S.Ct. 105, 19 L.Ed.2d 125 (1967), held that the question of whether plaintiff's claim fell within the constitutional and statutory exception was a question of law for the court. Under the court of appeals' view, the issue remained one for the court alone to resolve even though the underlying facts were disputed.

In Morgan, the defendant employer moved to dismiss the employee's complaint, contending that the suit was barred because the employee had earlier applied for and received workers' compensation benefits. Id. at 151, 426 P.2d at 648. The employee contended that he was entitled by article XXIII, § 2 of the Arizona Constitution to have a jury decide whether he had accepted compensation and had, therefore, waived his right to sue. Id. at 151-52, 426 P.2d at 648-49.

After a four-day hearing, the trial judge advised counsel that he was declining to rule on the jurisdictional issue before trial. The employer then filed a writ with this court; we directed the trial court to rule on the matter of subject matter jurisdiction. The trial court then ruled that it did not have jurisdiction and dismissed the action.

A three-member majority of this court affirmed the dismissal and held that the trial court, not the jury, determines whether it has jurisdiction. The majority stated:

[we find no reason] to permit the question of jurisdiction to be submitted to a jury in the trial of a case on the merits which might well result in a two or three week trial in a case where the court would have to direct a verdict in favor of a defendant under the evidence. We do not feel that the rule (Rule 42(b) Arizona Rules of Civil Procedure 16 A.R.S., as amended, 1966) permitting the court to order a separate trial on the question of jurisdiction would be sufficient to overcome this objection, in that it would require delay and determination by the court as to whether the facts in each case would justify such a separate trial.

Id. 102 Ariz. at 155, 426 P.2d at 652.

We make two observations concerning the majority holding in Morgan. First, from the language quoted, the court apparently felt that there was no factual dispute to submit to a jury for resolution even if the issue were properly a jury issue. Second, Morgan was not a "wilful misconduct exception" case and the jurisdictional issue presented was wholly unrelated to the merits of the case. Two members of the court dissented vigorously, contending that the majority opinion violated the employee's right to a jury trial as guaranteed by the Arizona Constitution.

In reaching its decision, the Morgan court relied heavily on two of its earlier cases, State ex rel. Industrial Comm'n v. Pressley, 74 Ariz. 412, 250 P.2d 992 (1952), and S.H. Kress & Co. v. Superior Court, 66 Ariz. 67, 182 P.2d 931 (1947).

In Kress, the employee was an illegally employed thirteen-year-old boy. His guardian sought and received workers' compensation benefits in the form of payments for medical bills and a lump sum award. The guardian then filed a common-law negligence action in court, arguing that, because of his age, the employee was legally incapable of electing a remedy. This court held that the employee's age did not bar a valid waiver. Because it was uncontroverted that benefits had been accepted, the superior court lacked jurisdiction, and, therefore, was precluded from proceeding. Id. at 75, 182 P.2d at 939. We note that Kress, like Morgan, involved a jurisdictional issue unrelated to the merits of the case. Kress also involved solely an issue of law, there being no disputed facts.

The Ninth Circuit cited Kress a few years later in a case involving Arizona law. See Taylor v. Hubbell, 188 F.2d 106 (9th Cir.), cert. denied, 342 U.S. 818,...

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