Chevron Chemical Co. v. Superior Court, s. 15617-S

• Decision Date: 04 February 1982
• Docket Number: 15636-SA and 15642-SA,Nos. 15617-S,s. 15617-S
• Citation: 131 Ariz. 431,641 P.2d 1275
• Parties: CHEVRON CHEMICAL COMPANY, a Delaware corporation; Standard Oil Company of California, a Delaware corporation; Everett Wingate, dba E. F. Wingate Company; Bert A. Farmer, Petitioners, v. SUPERIOR COURT of the State of Arizona, in and for the County of Maricopa, Warren L. McCarthy, Judge; Suzanne L. Hale, surviving spouse of Afton B. Hale, deceased, for and on behalf of herself and her minor children, Real Party in Interest, Respondents. B. A. DVORAK, M.D., and George S. Craft, M.D., Petitioners, v. SUPERIOR COURT of the State of Arizona, in and for the county of Maricopa, and the Honorable Warren L. McCarthy, a Judge thereof; and Paul Balmer and Theresa Balmer, husband and wife, Real Parties in Interest, Respondents. Dan CLEMENT and Jane Doe Clement, individually and as husband and wife, et al., Petitioners, v. The SUPERIOR COURT of the State of Arizona, in and for the County of Maricopa; The Honorable James Moeller, a judge thereof; and Rosa Coldiron, surviving spouse of Bryon Randolph Coldiron, deceased, Respondents.
• Court: Arizona Supreme Court

Page 1275

641 P.2d 1275

131 Ariz. 431

CHEVRON CHEMICAL COMPANY, a Delaware corporation; Standard Oil Company of California, a Delaware corporation; Everett Wingate, dba E. F. Wingate Company; Bert A. Farmer, Petitioners, v. SUPERIOR COURT of the State of Arizona, in and for the County of Maricopa, Warren L. McCarthy, Judge; Suzanne L. Hale, surviving spouse of Afton B. Hale, deceased, for and on behalf of herself and her minor children, Real Party in Interest, Respondents.

B. A. DVORAK, M.D., and George S. Craft, M.D., Petitioners, v. SUPERIOR COURT of the State of Arizona, in and for the county of Maricopa, and the Honorable Warren L. McCarthy, a Judge thereof; and Paul Balmer and Theresa Balmer, husband and wife, Real Parties in Interest, Respondents.

Dan CLEMENT and Jane Doe Clement, individually and as husband and wife, et al., Petitioners, v. The SUPERIOR COURT of the State of Arizona, in and for the County of Maricopa; The Honorable James Moeller, a judge thereof; and Rosa Coldiron, surviving spouse of Bryon Randolph Coldiron, deceased, Respondents.

Nos. 15617-SA, 15636-SA and 15642-SA.

Supreme Court of Arizona, In Banc.

Feb. 4, 1982.

Rehearing Denied March 16, 1982.

Ryley, Carlock & Ralston by Raymond M. Hunter, Phoenix, for petitioner Chevron/Standard.

Robbins & Green by Michael J. O'Grady, Phoenix, for petitioner Chevron.

Sorenson, Moore, Benham, Garrett & Julian by George R. Sorenson, Phoenix, for petitioner Wingate.

D. W. Grainger, Phoenix, for petitioner Farmer.

William R. Jones, Jr., Don C. Stevens II, Phoenix, for respondent Hale. Browder & Kenney by Robert W. Browder, Phoenix, Brief amicus curiae Rexnord, Inc.

Lewis & Roca, Phoenix, for petitioners Farmer and Craft.

John C. Gemmill, Phoenix, for petitioner Dvorak.

John S. Schaper, Phoenix, Brief amicus curiae Great American Ins. Co.

Snell & Wilmer by James R. Condo, R. Chris Reece, Phoenix, Brief amicus curiae PPG Industries, Inc.

Langerman, Begam, Lewis & Marks by Noel Fidel, Phoenix, Brief amicus curiae Billy Clyde Hartman, Paul C. Lane, Sammie Slivers, and The Arizona Trial Lawyers Ass'n and for real parties in interest and respondent Coldiron.

Jones, Teilborg, Sanders, Haga & Parks, Phoenix, for petitioner Dvorak and respondent Hale.

Roger Kaufman, Phoenix, for petitioner Craft.

Levine & Harris by John D. Harris, Phoenix, for real parties in interest.

Gallagher & Kennedy by Michael L. Gallagher, Kevin E. O'Malley, Phoenix, for petitioners.

Severiano A. Rodarte, Phoenix, for respondent Coldiron.

CAMERON, Justice.

In July and September of 1981, the defendants, in three separate suits, were denied their motions for summary judgment by judges of the Superior Courts. Thereafter, all three defendants, Chevron Chemical Company, Dr. B. A. Dvorak, and Daniel Clement, petitioned this court by way of special action to review the trial courts' decisions. Because there is no plain, speedy and adequate remedy by appeal and because there appear to be numerous other parties similarly situated, we granted the petitions for special action. Since the questions presented in all three petitions were identical, the cases were consolidated for disposition by this court. We also granted the petitions of the various amici curiae to file briefs. We have jurisdiction pursuant to Rule 8, Rules of Procedure for Special Actions, 17A A.R.S.

We must answer the following questions on review:

1. Is our decision in Ross v. Superior Court, 128 Ariz. 301, 625 P.2d 890 (1981), to be given retroactive application?

2. Is section 2 of H.B. 2176, which amends A.R.S. § 23-1023, unconstitutional in that it denies petitioners' due process of law by reviving claims purportedly barred by our decision in Ross, supra?

The facts necessary for a determination of these questions are as follows. In Cause No. 15617-SA, Chevron Chemical Company v. Superior Court, Afton Hale was fatally injured in the course and scope of his employment on 20 March 1978. In May and June of 1978, the deceased's wife was notified by the State Compensation Fund of her right to receive benefits and of her right to proceed against third parties not her husband's employer. Four months after the accident, Suzanne Hale assigned her right to proceed against third parties to the State Compensation Fund. Eleven months after the accident, Suzanne Hale requested a reassignment of the right to sue third parties, and on 21 March 1979, one year and one day after the injury, the State Compensation Fund reassigned the claim to her. One month later, on 24 April 1979, Suzanne Hale filed suit against the defendants for the wrongful death of her husband.

In Cause No. 15636-SA, Dvorak v. Superior Court, Paul Balmers injured his back while in the course and scope of his employment in July of 1975. He was treated for his injury by defendant doctors in March of 1976. One year later, Balmers' right to proceed against the defendants was assigned, by operation of law, A.R.S. § 23-1023(B), to the State Compensation Fund. More than one year after Balmers' treatment by the defendant doctors, in August of 1977, Balmers allegedly received a reassignment of his right to proceed against the defendants from the State Compensation Fund. A suit was filed against defendants seven months later, in March of 1978, two years after treatment by defendants.

In Cause No. 15642-SA, Clement v. Superior Court, Byron Coldiron was fatally injured while in the course and scope of his employment on 5 January 1978. Benefits were paid to the deceased's wife, Rosa Coldiron, from the State Compensation Fund, and the right to proceed against third parties was automatically assigned to the State Compensation Fund by operation of law in January of 1979. A.R.S. § 23-1023(B), supra. One day less than two years after the injury, on 4 January 1980, Rosa Clement received a reassignment of the right to proceed against third parties from the State Compensation Fund and suit was filed against the defendants on the same day.

All three cases against the third party defendants were proceeding to trial when, on 24 February 1981, this court held, in Ross v. Superior Court, 128 Ariz. 301, 625 P.2d 890 (1981), that once the claim has been assigned to the employer or the employer's insurance carrier, it could not be reassigned. This court stated that, as a matter of common law, a "claim assigned to the insurance carrier by operation of law is neither assignable to a third person or reassignable to the insurance claimant." Id. at 302, 625 P.2d at 891. Pursuant to our holding in Ross, supra, all three defendants filed motions for summary judgment claiming that because the purported reassignments were invalid, the suits were barred as a matter of law.

On 27 April 1981, in apparent response to our decision in Ross, supra, the Arizona legislature passed, and the Governor signed into law, an amendment to A.R.S. § 23-1023 known as H.B. 2176. The amendment provided that any assigned claim "may be reassigned in its entirety to the employee or his dependents" and that "(a)fter the reassignment, the employee entitled to compensation, or his dependents, shall have the same right to pursue the claim as if it had been filed within the first year." H.B. 2176, § 1(B) amending A.R.S. § 23-1023. Moreover, in a section entitled "Existing claims; assignments," the amendment provides:

"A. Any claim which was or may be commenced pursuant to assignment or reassignment under § 23-1023, Arizona Revised Statutes, as amended by Laws 1968, fourth special session, chapter 6, § 38, and further amended by Laws 1971, chapter 73, § 16, and Laws 1974, chapter 184, § 14, prior to expiration of the statute of limitations and which has not been finally adjudicated or which is currently being appealed or for which time for appeal has not expired shall be valid. After the reassignment, the employee entitled to compensation or his dependents shall have the same rights to pursue the claim as if it had been filed within the first year.

"B. No cause of action shall be revived by this section if that cause of action is barred by a limitation of actions as provided in title 12, chapter 5, Arizona Revised Statutes. The provisions of § 12-505, subsection A, Arizona Revised Statutes, shall not apply to this section." H.B. 2176, § 2(A) & (B), amending A.R.S. § 23-1023.

Having taken the defendants' motion for summary judgment under advisement until this time, the Superior Court judges denied the motions. From a denial of their motions for summary judgment, the defendants in the three actions petitioned this court by way of special action. In accepting jurisdiction in these cases, we note that this court is extremely reluctant to grant a petition for special action based upon a denial of a motion for summary judgment. It is only under the most extraordinary circumstances that we will do so. In the instant case, we accepted jurisdiction because it appears from the pleadings that there are numerous litigants who are uncertain as to the law, and that a decision of this court is necessary to settle the matter and prevent further and unnecessary litigation.

RETROACTIVE APPLICATION OF ROSS v. SUPERIOR COURT

As long as the protection of the Workmen's Compensation Act has been accepted the employee or his survivors are limited in the amount recoverable from the employer, or what is more often the case, the employer's workman's compensation carrier. The employee may receive an amount for lost wages and medical care, but not for pain and suffering. Sorenson v. Six Companies, Inc., 53 Ariz. 83, 85 P.2d 980 (1939); Bugh v. Bugh, 125 Ariz. 190, 608 P.2d 329 (1980). This limitation on the extent of the workmen's recovery is something the employee accepts along with the benefits of the act. The employee does not, however, give up his right to proceed against a negligent third party, and as to this third party, the employee may sue for pain and suffering and other matters normally associated with negligence and tort...