Bussanich v. Douglas, 2
| Decision Date | 18 November 1986 |
| Docket Number | No. 2,CA-CV,2 |
| Parties | Joan BUSSANICH, Plaintiff/Appellant, v. Robert R. DOUGLAS, Defendant/Appellee. 5780. |
| Court | Arizona Court of Appeals |
Miller & Pitt, P.C. by Barry N. Akin and Anne M. Ryan, Tucson, for plaintiff/appellant.
Chandler, Tullar, Udall & Redhair by D.B. Udall and E. Hardy Smith, Tucson, for defendant/appellee.
This is an appeal from the granting of a motion for summary judgment. Both parties, psychologists, were public employees employed by the Southern Arizona Mental Health Center, a state mental health agency administered by the Department of Health Services. During an "in-service" workshop on handguns, the defendant was negligent in his handling of a firearm which discharged and seriously injured the plaintiff.
The plaintiff filed this negligence action against her fellow employee for damages for personal injuries. Based on the 1980 amendment to art. 18, § 8 of the Arizona Constitution and A.R.S. § 23-1022, the defendant moved for summary judgment contending that plaintiff's exclusive remedy was for the receipt of workmen's compensation benefits. The plaintiff opposed the motion, contending that A.R.S. § 23-1022 was unconstitutional as applied to public employees and that the constitutional amendment did not authorize the legislature to enact any statutes limiting public employees who have been negligently injured by a fellow employee in the course of their employment to compensation benefits. The trial court held that plaintiff's exclusive remedy was workmen's compensation and we agree.
A.R.S. § 23-1022(A) provides:
"The right to recover compensation pursuant to this chapter for injuries sustained by an employee or for the death of an employee is the exclusive remedy against the employer or any co-employee acting in the scope of his employment, ..." (Emphasis added.)
A.R.S. § 23-1024(A) provides:
"An employee, or his legal representative in event death results, who accepts compensation waives the right to exercise any option to institute proceedings in court against his employer or any co-employee acting within the scope of his employment, or against the employer's workmen's compensation insurance carrier or administrative service representative."
Prior to the 1980 amendment, art. 18, § 8 of the Arizona Constitution read as follows:
"The Legislature shall enact a Workmen's Compensation Law applicable to workmen engaged in manual or mechanical labor in all public employment whether of the State, or any political subdivision or municipality thereof as may be defined by law and in such private employments as the Legislature may prescribe by which compensation shall be required to be paid to any such workman, in case of his injury and to his dependents, as defined by law, in case of his death, by his employer, if in the course of such employment personal injury to or death of any such workman from any accident arising out of and in the course of, such employment, is caused in whole, or in part, or is contributed to, by a necessary risk or danger of such employment, or a necessary risk or danger inherent in the nature thereof, or by failure of such employer, or any of his or its agents or employee or employees to exercise due care, or to comply with any law affecting such employment; provided that it shall be optional with any employee engaged in any such private employment to settle for such compensation, or to retain the right to sue said employer as provided by this Constitution; and, provided further, in order to assure and make certain a just and humane compensation law in the State of Arizona, for the relief and protection of such workmen, their widows, children or dependents, as defined by law, from the burdensome, expensive and litigious remedies for injuries to or death of such workmen, now existing in the State of Arizona, and producing uncertain and unequal compensation therefor, such employee, engaged in such private employment, may exercise the option to settle for compensation by failing to reject the provisions of such Workmen's Compensation Law prior to the injury...."
In Kilpatrick v. Superior Court, 105 Ariz. 413, 466 P.2d 18 (1970), the supreme court concluded that the 1925 amendment to this section, broadening coverage and requiring an election of remedies prior to injury, did not empower the legislature to abolish the rights of injured workers against their co-employees. In response to the Kilpatrick decision, the legislature amended A.R.S. § 23-1022(A) of the Workmen's Compensation Act to provide explicitly that the right to recover compensation under the Act was the exclusive remedy for injuries caused by an employer or any co-employee acting in the scope of employment. The supreme court reviewed the amendment in 1972 and reiterated its holding in Kilpatrick: "Absent constitutional authority, the legislature cannot interfere with a worker's rights to sue a co-employee." Halenar v. Superior Court, 109 Ariz. 27, 504 P.2d 928 (1972).
In response to Kilpatrick and Halenar, the legislature proposed the 1980 amendment to correct the deficiencies noted in these cases. The amendment, which was approved by the voters, is as follows with the amended portions in capital letters:
Plaintiff contends that the unambiguous language of the 1980 amendment, "... provided that it shall be optional with any employee engaged in any such private employment to settle for such compensation, or to retain the right to sue ... any person employed by said employer, acting in the scope of his employment ...," makes workmen's compensation for those persons who have not rejected the benefits of the act pursuant to A.R.S. § 23-906 the exclusive remedy only for persons in private employ- - ment. Nowhere in the proviso are public employees mentioned.
The defendant contends that the 1980 amendment to the constitution was an attempt by the legislature to correct the constitutional...
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