Callan v. Bernini
| Decision Date | 22 March 2006 |
| Docket Number | No. 2 CA-SA 2005-0085.,2 CA-SA 2005-0085. |
| Citation | 141 P.3d 737,213 Ariz. 257 |
| Parties | Robert CALLAN and Jane Doe Callan, husband and wife; City of Tucson, a municipal corporation and a governmental subdivision of the state, by and through its Tucson Police Department; Richard Miranda and Jane Doe Miranda, husband and wife; David Azuelo and Jane Doe Azuelo, husband and wife; Arnold Lopez and Jane Doe Lopez, husband and wife; John Stamatopoulos and Jane Doe Stamatopoulos, husband and wife; Robert Shoun and Jane Doe Shoun, husband and wife; and Mark Tempf and Jane Doe Tempf, husband and wife, Petitioners, v. Hon. Deborah BERNINI, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and Luis A. Pimber and Cynthia D. Pimber, husband and wife, Real Parties in Interest. |
| Court | Arizona Court of Appeals |
Kimble, Nelson & Audilett, P.C. by Daryl A. Audilett and Rebecca Parker-Perry, Tucson, Attorneys for Petitioners.
Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C., by James W. Stuehringer, Tucson, Attorneys for Real Parties in Interest.
¶ 1 Petitioners Robert Callan, the City of Tucson, and various employees of the City and their spouses (collectively, Callan) seek special action relief from the respondent judge's denial of their motion for summary judgment in the negligence action brought against them by real parties in interest, Luis and Cynthia Pimber. In the motion, relying on A.R.S. § 23-1022(D) and an intergovernmental agreement (IGA) between the City of Tucson and other governmental entities, Callan argued the superior court lacked subject matter jurisdiction of the complaint because Luis Pimber's exclusive remedy was workers' compensation benefits, which he had received.
¶ 2 We generally do not accept jurisdiction of special actions challenging a trial court's denial of a motion for summary judgment, even though a denial is not appealable. See City of Phoenix v. Yarnell, 184 Ariz. 310, 909 P.2d 377 (1995); Ft. Lowell-NSS Ltd. P'ship v. Kelly, 166 Ariz. 96, 800 P.2d 962 (1990). There are, however, exceptions to that rule. One such exception is when "the question presented is a pure issue of law and the error by the trial court is patent." King v. Superior Court, 138 Ariz. 147, 673 P.2d 787 (1983). Both elements of that exception are present here.
¶ 3 Moreover, our accepting jurisdiction and granting relief will end this case. See Emmons v. Superior Court, 192 Ariz. 509, 968 P.2d 582 (App.1998); Southwest Cooperative Wholesale v. Superior Court, 13 Ariz. App. 453, 477 P.2d 572 (1970). Although Callan theoretically has "an equally plain, speedy, and adequate remedy by appeal," Rule 1(a), Ariz. R.P. Spec. Actions, 17B A.R.S., we see no reason to permit this case to proceed to trial only to have us hold on appeal that the respondent judge had no jurisdiction to conduct that trial.
¶ 4 In addition, this special action presents issues of first impression. See Piner v. Superior Court, 192 Ariz. 182, 962 P.2d 909 (1998). We must determine whether the language of A.R.S. § 23-1022(D) and the IGA divests the superior court of jurisdiction over Pimber's negligence action, and even if it does, whether the Pimbers may nevertheless pursue their action because the parties to the IGA failed to post the notice required by § 23-1022(E).
¶ 5 Accordingly, we accept jurisdiction of the special action. We also grant relief because we conclude the respondent judge abused her discretion in erroneously determining these purely legal issues. See Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, 63 P.3d 282 (2003); State v. Chapple, 135 Ariz. 281, 660 P.2d 1208 (1983).
¶ 6 The following facts are undisputed. In August 2003, Luis Pimber was employed by the University of Arizona Police Department (UAPD) and was assigned as an undercover narcotics officer to the Metropolitan Area Narcotics Trafficking Interdiction Squad (MANTIS).1 Robert Callan was a police officer employed by the Tucson Police Department (TPD) and a member of the special weapons and tactical (SWAT) unit. Callan injured Pimber during an operation conducted on August 6 with MANTIS and SWAT officers. Pimber has received workers' compensation benefits from UAPD's insurer as a result of his injuries. The Pimbers sued Callan for willful misconduct and TPD and its supervisor employees for negligence.
¶ 7 Relying on the IGA, Callan argued in the summary judgment motion that Pimber's workers' compensation benefits were his sole remedy because both UAPD and TPD had been Pimber's employer at the time he was injured, making Callan Pimber's co-employee. The respondent judge disagreed and granted Pimber partial summary judgment, finding as a matter of law that he and Callan had not been co-employees. She also ruled that a jury must determine whether Callan's acts had constituted willful misconduct, erroneously stating that Callan agreed with that ruling.
¶ 8 Under § 23-1022(A), an injured employee's right to workers' compensation benefits "is the exclusive remedy against the employer or any co-employee acting in the scope of his employment." Therefore, an employee who accepts compensation benefits for a work-related injury "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." A.R.S. § 23-1024(A). And, unless the employee rejected the workers' compensation system before the injury occurred, see A.R.S. § 23-906, "the superior court lacks subject matter jurisdiction over any common law tort action that the employee files against a co-employee acting within the scope of his or her employment." Mitchell v. Gamble, 207 Ariz. 364, ¶ 5, 86 P.3d 944, 947 (App.2004). Under A.R.S. § 23-1023(A), on the other hand, "an employee entitled to compensation" who "is injured or killed by the negligence or wrong of another not in the same employ ... may pursue his remedy against such other person."
IGA Provision and A.R.S. § 23-1022(D)
¶ 9 At the crux of this special action is the meaning of the language in the IGA provision and the parallel language of the statute from which that provision was taken, § 23-1022(D). That section provides:
An employee of a public agency, as defined in § 11-951, who works under the jurisdiction or control of or within the jurisdictional boundaries of another public agency pursuant to a specific intergovernmental agreement or contract entered into between the public agencies as provided in § 11-952 is deemed to be an employee of both public agencies for the purposes of this section. The primary employer shall be solely liable for the payment of workers' compensation benefits for the purposes of this section.
The IGA provision does not substantially differ from § 23-1022(D). Accordingly, we consider both provisions together. Article 8 of the IGA reads in part as follows:
A. For the purpose of workmen's compensation, an employee of a party to this agreement, who works under the jurisdiction or control of, or who works within the jurisdictional boundaries of another party pursuant to this particular intergovernmental agreement for mutual aid in law enforcement, shall be deemed to be an employee of the party who is his primary employer and of the party under whose jurisdiction and control he is then working as provided in A.R.S. Section 23-1022(D) and the primary employer party of such an employee shall be sole[l]y liable for payment of worker[s'] compensation benefits for the purpose of this section. Each party herein shall comply with [the] provisions of A.R.S. Section 23-1022(E) by posting the public notice required.
We review de novo the interpretation of contracts and statutes. Orfaly v. Tucson Symphony Society, 209 Ariz. 260, 99 P.3d 1030 (App.2004) (contracts); Rowland v. Kellogg Brown & Root, Inc., 210 Ariz. 530, 115 P.3d 124 (App.2005) (statutes).
¶ 10 Two other statutes are pertinent here. Section 11-952(A), A.R.S., provides in relevant part:
If authorized by their legislative or other governing bodies, two or more public agencies by direct contract or agreement may contract for services or jointly exercise any powers common to the contracting parties and may enter into agreements with one another for joint or cooperative action....2
A public agency includes "the federal government or any federal department or agency, Indian tribe, this state, any other state, all departments, agencies, boards and commissions of this state or any other state, counties, school districts, cities, towns, all municipal corporations, and any other political subdivisions of this state or any other state." A.R.S. § 11-951. No one disputes that all parties to the IGA constitute public agencies under that definition. And Pimber does not dispute that the public agencies entered into the IGA or that, at the time he was injured, the IGA was in effect, UAPD was his primary employer, and he was assigned to MANTIS.
¶ 11 The respondent judge did not address the question of the meaning of § 23-1022(D), finding only that the IGA provision was ambiguous. Because the IGA provision refers to the statute, however, we begin our analysis with the statutory language. In determining the meaning of a statute, we look first to its language, keeping in mind that we must "`find and give effect to legislative intent.'" Bothell v. Two Point Acres, Inc., 192 Ariz. 313, ¶ 17, 965 P.2d 47, 53 (App. 1998), quoting Mail Boxes Etc., U.S.A. v. Indus. Comm'n, 181 Ariz. 119, 121, 888 P.2d 777, 779 (1995). If we find the language unambiguous, we apply it as written, without resorting to principles of statutory interpretation. Hayes v. Continental Ins. Co., 178 Ariz. 264, 268, 872 P.2d 668, 672 (1994). "Ambiguity exists if there is uncertainty about the meaning or interpretation of a statute's terms." Id.
¶ 12 We find the language in both the statute and...
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