Diaz v. Magma Copper Co.

• Decision Date: 13 May 1997
• Docket Number: No. 2,CA-CV,2
• Parties: , 243 Ariz. Adv. Rep. 33 Rachel and Augustine DIAZ, wife and husband, parents of Leonardo M. Diaz, deceased, Plaintiffs/Appellants, v. MAGMA COPPER COMPANY, a Delaware corporation; State of Arizona; Douglas Martin, Arizona Mine Inspector, Defendants/Appellees. Rachel and Augustine DIAZ, wife and husband, Plaintiffs/Appellant, v. David NECOCHEA, Defendant/Appellee. 96-0051.
• Court: Arizona Court of Appeals

Page 1165

950 P.2d 1165

190 Ariz. 544, 243 Ariz. Adv. Rep. 33

Rachel and Augustine DIAZ, wife and husband, parents of Leonardo M. Diaz, deceased, Plaintiffs/Appellants, v. MAGMA COPPER COMPANY, a Delaware corporation; State of Arizona; Douglas Martin, Arizona Mine Inspector, Defendants/Appellees.

Rachel and Augustine DIAZ, wife and husband, Plaintiffs/Appellant, v. David NECOCHEA, Defendant/Appellee.

No. 2 CA-CV 96-0051.

Court of Appeals of Arizona Division 2, Department B.

May 13, 1997.

Review Denied Feb. 18, 1998. ^*

Miller, Pitt & McAnally, P.C. by Thomas G. Cotter, Tucson, for Plaintiffs/Appellants.

Grant Woods, Attorney General by Thomas J. Dennis, Phoenix, for Defendants/Appellees State of Arizona and Martin.

Korn Waterman & Simon, P.C. by Diana J. Simon, Tucson, for Defendants/Appellees Necochea and Magma Copper Company.

OPINION

ESPINOSA, Presiding Judge.

Appellants Rachel and Augustine Diaz appeal from summary judgments granted in favor of appellees Magma Copper Company, Magma employee David Necochea, the State of Arizona, and State Mine Inspector Douglas Martin in the Diazes' action seeking damages for the death of their son Leonardo Diaz in a mining accident. For the reasons set forth below, we affirm the judgment granted in favor of Magma and Necochea, but reverse the judgment granted in favor of the State and Martin and remand for further proceedings.

Facts and Procedural History

We view the evidence and all reasonable inferences therefrom in the light most favorable to the party opposing the motion below. Hill-Shafer Partnership v. Chilson Family Trust, 165 Ariz. 469, 799 P.2d 810 (1990). Leonardo Diaz worked at Magma Copper Company's San Manuel mine as a "chute blaster." A chute blaster keeps "muck" (ore-containing rock broken up by explosives) flowing smoothly down vertical shafts called "raises." The chute blaster ensures that the muck flowing from the ore body is small enough to pass through a "grizzly," basically, a sieve made of steel rails placed 17 inches apart. After passing through the grizzly, the muck continues down the raise to an underground train that takes it to the surface. To prevent miners from falling between the grizzly rails, a nylon lanyard is attached from their lamp belt to an overhead safety line.

On December 14, 1993, Diaz was working in a "grizzly drift" that was 140 feet long with eight grizzlies spaced 17 1/2 feet apart. He had been instructed to keep his raises full of muck, that is, to keep muck flowing in all eight grizzlies. Shortly after 8:00 that evening, a coworker heard a cry for help and saw Diaz's lanyard between the grizzly rails and Diaz buried in muck to his waist, with his head about one foot below the rails. Mine personnel attempted to rescue Diaz, but it took almost three hours to extricate him, and by then Diaz had stopped breathing. During this time, Magma put the company ambulance on standby and alerted the local hospital, but declined offers of assistance from San Manuel medical personnel. Magma eventually summoned local paramedics who arrived shortly after Diaz was extricated and tried unsuccessfully to revive him. Diaz was pronounced dead from "mechanical asphyxiation." It was subsequently determined that the overhead safety line had failed. At the time of the accident, Diaz was unmarried, had no dependents, and was subject to the provisions of the Workers' Compensation Act ("the Act"). A.R.S. §§ 23-901 to 23-1091.

The Diazes sued the State of Arizona and State Mine Inspector Douglas Martin, seeking damages for civil rights violations pursuant to 42 U.S.C. § 1983 and wrongful death based on failure to discover and report safety violations during statutorily required inspections. Their complaint also alleged claims against Magma for wrongful death and employer liability. A.R.S. § 23-801. The Diazes later brought a separate action for wrongful death and medical negligence against David Necochea, a Magma dispensary worker who had administered first aid to Diaz while he was trapped. The two actions were consolidated.

Magma moved for summary judgment on the ground the Diazes' claims were barred by the exclusive remedy provisions of the Act and did not fall within any of the statutory exceptions. Necochea's motion for summary judgment asserted coemployee immunity pursuant to A.R.S. § 23-1022(A). The State too sought summary judgment, arguing that no cause of action existed under Section 1983, that mine inspectors have no legal duty enforceable through a private cause of action, and that it was entitled to immunity under A.R.S. § 12-820.01. The Diazes subsequently amended their complaint to add a claim for bad faith under the Act. The trial court granted Magma's motion to dismiss the bad faith claim and granted the motions for summary judgment. This appeal followed. ¹

Standard of Review

Whether the Diazes' claims against Magma and Necochea are barred under Arizona's workers' compensation scheme and whether the State may invoke statutory immunity are questions of law or mixed questions of fact and law which are reviewed de novo. Baker v. Clover, 177 Ariz. 37, 864 P.2d 1069 (App.1993).

Constitutionality of Exclusive Workers' Compensation Remedies

a. Article 18 § 6 and Employer's Liability for Wrongful Death

The Diazes first contend that, as applied to them, the exclusivity provisions of the Workers' Compensation Act violate the Arizona Constitution, primarily Article 18 § 6, which states: "The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation." The Diazes argue the legislature cannot prohibit their wrongful death and employer's liability claims, lacking express constitutional authorization to do so.

The trial court relied on Mariscal v. American Smelting & Refining Co., 113 Ariz. 148, 548 P.2d 412 (1976), in determining that the Diazes' claims against Magma were barred by law. The Diazes argue that this court should not "extend" that case to uphold the trial court's ruling. Mariscal, however, is directly on point. There, our supreme court held that nondependent parents of an employee who was subject to the provisions of the Act could not maintain a wrongful death action for loss of consortium against the employer. The Diazes attempt to distinguish Mariscal by arguing that the court there did not consider the constitutional claims raised in this appeal and that a wrongful death action has since been recognized to be a "fundamental right." We decline to adopt this argument for several reasons.

The law is well established that, as to employees covered by the Act, its exclusive remedy provisions do not offend the anti-abrogation clause. "[T]he compensation system mandated by Article 18, § 8 [directing the legislature to create the workers' compensation system] with its provisions for election of remedies qualifies, within the limits of its provisions, the otherwise absolute terms of § 6." Allen v. Southwest Salt Co., 149 Ariz. 368, 372, 718 P.2d 1021, 1025 (App.1986). See also Anderson v. Industrial Commission, 147 Ariz. 456, 711 P.2d 595 (1985); Pressley v. Industrial Commission, 73 Ariz. 22, 236 P.2d 1011 (1951). Furthermore, an employee's decision to accept workers' compensation benefits, thereby voluntarily relinquishing the right under article 18, § 6, to bring an action against the employer, binds the worker's family as well. Dunn v. Industrial Commission, 177 Ariz. 190, 866 P.2d 858 (1994); Conner v. El Paso Natural Gas Co., 123 Ariz. 291, 599 P.2d 247 (App.1979). Those cases, however, involved dependents of the employee who were generally eligible to receive death benefits under the Act. The Diazes argue that as nondependents who are not entitled to benefits, they cannot constitutionally be bound by their son's election. ²

In Mardian Construction Co. v. Superior Court, 157 Ariz. 103, 754 P.2d 1378 (App.1988), Division One of this court considered a loss of consortium claim brought by an employee's wife against her husband's employer arising out of injuries he had sustained during the course and within the scope of his employment. In concluding that Arizona's workers' compensation scheme evidences a clear intent "to bar any common law right-of-action which might possibly flow from a work-related injury," (emphasis added), the court adopted the rationale of former Chief Justice Burger, then writing for the District of Columbia Circuit Court of Appeals in Smither and Co. v. Coles, 100 U.S.App.D.C. 68, 70, 242 F.2d 220, 222, cert. denied, 354 U.S. 914, 77 S.Ct. 1299, 1 L.Ed.2d 1429 (1957):

The history of the development of [workers' compensation statutes] creating a compensable right independent of the employer's negligence and notwithstanding an employee's contributory negligence, recalls that the keystone was the exclusiveness of the remedy. This concept emerged from a balancing of the sacrifices and gains of both employees and employers, in which the former relinquished whatever rights they had at common law in exchange for a sure recovery under the compensation statutes, while the employers on their part, in accepting a definite and exclusive liability, assumed an added cost of operation which in time could be actuarially measured and accurately predicted; incident to this both parties realized a saving in the form of reduced hazards and costs of litigation.

* * * * * * Thus, anything that tends to erode the exclusiveness of either the liability or the recovery strikes at the very foundation of statutory schemes of this kind, now universally accepted and acknowledged.

Mardian, 157 Ariz. at 106, 754 P.2d at 1381.

While Mardian did not deal with the constitutional theory advanced here, we find its rationale pertinent to our examination of the Diazes' claims, particularly since, like the Diazes, the plaintiff spouse in Mardian was not a "dependent" for purposes of the Act's compensation provisions or her independent tort claim. ³...