Halenar v. Superior Court in and for Maricopa County

Decision Date21 December 1972
Docket NumberNo. 10822,10822
Citation504 P.2d 928,109 Ariz. 27
PartiesLinda Joy HALENAR, widow of Robert J. Halenar, Deceased, on behalf of herself and on behalf of Robert James H. halenar, Jr., et al., Petitioners, v. SUPERIOR COURT of Arizona, IN AND FOR the COUNTY OF MARICOPA et al., Respondents.
CourtArizona Supreme Court

Moore, Romley, Kaplan, Robbins & Green by Graig R. Kepner, Phoenix, for petitioners.

Jennings, Strouss & Salmon by Jon L. Kyl, Phoenix, for respondents.


This is an original application pursuant to A.R.S. 17, Rules of Procedure for Extraordinary Writs to review by certiorari the granting of a summary judgment entered in favor of respondents.

Petitioners are the widows of Robert J. Halenar and William R. Morgart, deceased. As dependents in their individual capacities and in behalf of their surviving children, they filed a complaint in the Superior Court of Maricopa County for damages, alleging that respondents, fellow employees of Unidynamics, negligently caused the death of decedents. Summary judgment was rendered against petitioners on respondents' motion, the court below holding that under Arizona's Workmen's Compensation Act a negligence action cannot be maintained for injuries inflicted by a fellow employee.

Arizona's Workmen's Compensation Act, by § 23--1022, subsec. A, as amended by Laws of 1970, provides:

'The right to recover compensation pursuant to the provisions of this chapter for injuries sustained by an employee shall be the exclusive remedy against the employer Or any co-employee acting in the scope of his employment * * *.' (Emphasis added.)

The italicized portion of § 23--1022, subsec. A was added shortly after our decision in Kilpatrick v. Superior Court, 105 Ariz. 413, 466 P.2d 18 (1970), in which we held that an employee had a right of action against a fellow employee for injuries incurred in the course of his employment. Since there seems to be a legislative misconception concerning the extent of our holding in that case, we reiterate the controlling points made in it.

Kilpatrick was anchored on three constitutional considerations. First, on § 6, Article 18, of the Arizona Constitutions, A.R.S., providing that '(t)he right of action to recover damages for injuries shall never be abrogated * * *.' We said, 'A decision which would deny the right to sue fellow employees who are the actual wrongdoers could not be correct, for it would be contrary to the plain language used in direct derogation of the express rights guaranteed in Section 6.' 105 Ariz. 413, 419--420, 466 P.2d 18, 24--25. Second, on § 31 of Article 2 of the Constitution of Arizona, providing that '(n)o law shall be enacted in this State limiting the amount of damages to be recovered for causing the death or injury of any person,' and similar language in § 6 of Article 18. We said, 'A decision relegating to the employee the single remedy (against a fellow employee) of compensation would limit recovery in absolute contradiction of the express words of the Constitution twice repeated.' 105 Ariz. 413, 420, 466 P.2d 18, 25. Third, on the use of the word 'employer' in the proviso of § 8, Article 18, reading:

'(P)rovided that it shall be optional with any employee * * * to settle for such compensation, or to retain the right to sue said employer as provided by this Constitution * * *.'

We said that the election by the employee was directed solely to the right to sue the employer, for '(w)ere it intended otherwise, language would have been used which would also have embraced the fellow employee, the actual wrongdoer.' 105 Ariz. 413, 418, 466 P.2d 18, 23 (footnote omitted).

We concluded that a court could not constitutionally interfere with the common law right of an employee to sue a fellow employee and, of course, the legislature is bound by the same constitutional limitations.

The question now to be decided is whether dependents have the right to sue a fellow employee of the decedent for wrongful death under the particular language of the legislative amendment.

There is, of course, no common law right of action for wrongful death.

'Under the common law there was no right of action for damages for wrongful death. The right is statutory and was originally provided...

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    ...liability unconstitutional on any analysis. See Grantham v. Denke, 359 So.2d 785 (Ala.1978); Halenar v. Superior Court in & for Cty. of Maricopa, 109 Ariz. 27, 504 P.2d 928 (1972). It is even more unsettling to recall the conclusion reached unanimously by this court in LaBounty v. American ......
  • Boswell v. Phoenix Newspapers, Inc.
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    ...damages for injuries as existing under the common law. Kilpatrick, 105 Ariz. at 419, 466 P.2d at 24; see also Halenar v. Superior Court, 109 Ariz. 27, 504 P.2d 928 (1972) (legislature bound by the constitution in dealing with common law rights of We do not find the language of any of the ca......
  • Reed v. Brunson
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    • March 4, 1988
    ...relied on two Arizona Supreme Court cases, Kilpatrick v. Superior Court, 105 Ariz. 413, 466 P.2d 18 (1970), and Halenar v. Superior Court, 109 Ariz. 27, 504 P.2d 928 (1972), which held that such a statute was unconstitutional under the following constitutional provision, which is set out op......
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