Hills v. Salt River Project Ass'n
| Decision Date | 29 January 1985 |
| Docket Number | CA-CIV,No. 1,1 |
| Citation | 698 P.2d 216,144 Ariz. 421 |
| Parties | Vivian M. HILLS, surviving widow of James Riley Hills, for and on Behalf of herself and her minor children, David Hills and Ginny Hills, Plaintiff-Appellant, v. SALT RIVER PROJECT ASSOCIATION; Dale W. Gish and Jane Doe Gish, husband and wife; Frank Lawrence and Jane Doe Lawrence, husband and wife; Hector A. Munoz and Jane Doe Munoz, husband and wife; Michael G. Twohig and Jane Doe Twohig, husband and wife; Donald W. Hines and Jane Doe Hines, husband and wife; Kenneth F. Breon and Jane Doe Breon, husband and wife; James A. Ochoa and Jane Doe Ochoa, husband and wife; Larry Newell and Jane Doe Newell, husband and wife; Jim Rucker and Jane Doe Rucker, husband and wife; Gene Baird and Jane Doe Baird, husband and wife; Phil Gonzalez and Jane Doe Gonzalez, husband and wife; Bernard Whilelock and Jane Doe Whilelock, husband and wife; Charles Hill and Jane Doe Hill, husband and wife; Estate of Michael L. Parsons; John and Jane Does I through XX, employees of Salt River Project Association; Ford Motor Company, a Delaware corporation; R.O. Corporation, a Kansas Corporation, Defendants-Appellees. 6975. |
| Court | Arizona Court of Appeals |
Appellant in this case is the surviving widow of James Reilly Hills (Hills), deceased. She brings this action on her own behalf as well as on behalf of her two minor children.
On August 11, 1980, while Hills was working on electric power lines in the course of his employment with Salt River Project Association (S.R.P.), the lines came into contact with the boom on a truck in which Hills was riding causing his death by electrocution. At the time of the accident, S.R.P. was a self-insured employer in compliance with Arizona's Worker's Compensation statutes. Following Hills' death, appellant applied for and received the appropriate worker's compensation death benefits.
On July 12, 1983 appellant brought this wrongful death action against S.R.P. and a number of other ficticious defendants alleging negligence and strict liability in tort. Through an amended complaint filed August 9, 1982, appellant joined a number of the decedent's former co-employees at S.R.P. as additional parties defendant. Also joined as defendants were appellees Ford Motor Company (Ford) and R.O. Corporation (R.O.) who were alleged to have manufactured the truck and boom involved in the fatal accident. All defendants filed motions for summary judgment which were granted by the trial court and this appeal followed.
The central issue in this appeal is whether worker's compensation death benefits constituted appellant's exclusive remedy. More specifically, the following questions are presented:
1. Was summary judgment properly granted on appellant's claim that S.R.P. was subject to liability under the "dual capacity" doctrine.
2. Was appellant's tort claim against R.O., Ford and the decedent's co-employees assigned to S.R.P. as a matter of law.
3. Was appellant required to obtain a reassignment of her tort claim from S.R.P. before proceeding with this action.
4. Is A.R.S. § 23-1023 unconstitutional as it was applied in this case.
THE CLAIM AGAINST S.R.P.
The parties agree that since the decedent had failed to reject compensation prior to his fatal accident, he thereby elected to be covered under Arizona's Worker's Compensation statutes which would normally preclude a tort action against his employer. See Arizona Constitution Art. 18 Sec. 8; A.R.S. § 23-906. Unless a worker rejects compensation, the benefits are "the exclusive remedy against the employer." A.R.S. § 23-1022(A). The exclusive remedy provision also immunizes the employer from wrongful death actions by a deceased worker's survivors or personal representative. Mariscal v. American Smelting and Refining Co., 113 Ariz. 148, 548 P.2d 412 (1976); Jackson v. Northland Construction Co., 111 Ariz. 387, 531 P.2d 144 (1975).
Notwithstanding her acceptance of compensation, appellant nevertheless argues that she should be permitted to pursue a tort action against S.R.P. Relying on the so-called "dual capacity" doctrine, she contends that S.R.P. acted not only as an employer but also as a manufacturer of the truck and boom involved in the accident, thereby creating an unreasonably dangerous product. She further argues that S.R.P. held an additional relationship with the decedent as a supplier of electricity.
Before addressing this issue, it is necessary to briefly discuss the procedural posture of this case.
Following limited discovery, which consisted only of written interrogatories directed to S.R.P. by appellant, appellees filed motions for summary judgment without supporting affidavits. The answers to interrogatories establish that Ford manufactured the truck, R.O. manufactured the boom and S.R.P. assumed the responsibility for certain unspecified modifications and/or alterations to the equipment. Drawing all inferences in favor of appellant against whom summary judgment was granted, see Brown v. Sears, Roebuck & Co., 136 Ariz. 556, 667 P.2d 750 (App.1983), we will assume that S.R.P. participated in the process of manufacturing the ultimate product which was involved in the fatal accident.
S.R.P. first argues that it was not sued in its capacity as an alleged manufacturer and that all of appellant's product liability allegations were directed at the other defendants. While we agree that appellant's complaint is not a model pleading in this regard, count seven of the amended complaint includes the following allegations:
The defendants named herein and DOES I through XX were mechanical, electrical and design engineers who modified the boom and/or truck and/or both and/or provided a list of specifications to the manufacturers FORD MOTOR COMPANY and RO CORPORATION, which created a dangerous product and unreasonably so to the plaintiff's decedent who was working on said modified truck and boom at the time of his accident.
We find that the complaint sufficiently alleged that S.R.P. participated as a co-manufacturer of the specific equipment in question and sought damages on a products liability theory.
S.R.P., as well as the other appellees, argues that its motion for summary judgment required appellant to respond with evidence that a defective product had, in fact, been manufactured. We disagree. Where mere allegations in a complaint are attacked by a motion for summary judgment supported by proof of specific facts, an obligation devolves on plaintiff to present evidence sufficient to show that there is a triable issue. Ong Hing v. Arizona Harness Raceway, 10 Ariz.App. 380, 459 P.2d 107 (1969); see Byars v. Arizona Public Service Co., 24 Ariz.App. 420, 539 P.2d 534 (1975). Here, however, appellees presented no evidence, by way of affidavit or otherwise. There was thus nothing in the motions for summary judgment for appellant to controvert as to whether the equipment was defective and the answers to interrogatories on file did not address the issue. While we agree that a motion for summary judgment may be made solely on the pleadings, it is then functionally the same as a motion to dismiss for failure to state a claim and the plaintiff may rest on the well-pleaded allegations of his complaint. See 6 Moore's Federal Practice, 2nd § 56.02 (1983).
Returning to the substantive issue, the so-called "dual capacity" doctrine permits an employer, normally shielded from tort liability by the exclusive remedy principle, to become liable in tort to his own employee if he acts, in addition to his capacity as an employer, in a second capacity conferring on him obligations independent of those as an employer. Robbins v. Seekamp, 122 N.H. 318, 444 A.2d 537 (1982).
The majority of jurisdictions hold that an employer, who is also a manufacturer, modifier, installer or distributor of a product used in the work, cannot be held liable in damages to his own employee on a theory of products liability. See 2A A. Larson, The Law of Workmen's Compensation § 72.83 at 14-239 (1982). 1 Several jurisdictions, notably California, have held to the contrary. See Douglas v. E & J Gallo Winery, 69 Cal.App.3d 103, 137 Cal.Rptr. 797 (1977). 2
While no Arizona appellate court has addressed the precise issue now under consideration, our courts have consistently refused to permit actions against an employer based on other statutory or common law duties arising in the course of the employer-employee relationship. For example, in Denman v. Duval Sierrita Corp., 27 Ariz.App. 684, 558 P.2d 712 (1976), Division 2 of this Court held:
Appellant theorizes that appellee is acting in a dual capacity and as an insurance carrier is a third party liable in common law negligence. This theory is without support in the case law or logic. It defeats the public policy of the State of Arizona as set forth in Workmen's Compensation statutes. It would work to penalize the self-insurer and is without merit.
27 Ariz.App. at 685, 558 P.2d at 713. See also Vineyard v. Southwest Engineering and Contracting Co., 117 Ariz. 52, 570 P.2d 823 (App.1977); Williams v. Magma Copper Co., 5 Ariz.App. 236, 425 P.2d 138 (1967).
Our legislature has clearly stated that if a worker does not reject the compensation scheme, compensation benefits are "the exclusive...
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