Kirkpatrick v. Industrial Commission

• Decision Date: 10 November 1969
• Docket Number: CA-CIV,No. 1,1
• Parties: Frank KIRKPATRICK, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, and State Compensation Fund, Robert L. Myers, Judge, Maricopa County Superior Court, Respondents; KITCHELL CONTRACTORS, INC., an Arizona corporation, Real Party In Interest. 1046.
• Court: Arizona Court of Appeals

Page 670

460 P.2d 670

10 Ariz.App. 564

Frank KIRKPATRICK, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, and State Compensation Fund, Robert L. Myers, Judge, Maricopa County Superior Court, Respondents KITCHELL CONTRACTORS, INC., an Arizona corporation, Real Party In Interest.

No. 1 CA-CIV 1046.

Court of Appeals of Arizona, Division 1, Department A.

Nov. 10, 1969.

As Amended Nov. 13, 1969.

Machmer, Lehman & Cantor, by Stan A. Lehman, Phoenix, for petitioner

Snell & Wilmer, by John E. Lundin, Phoenix, for real party in interest Kitchell Contractors, Inc.

Michael A. Lasher, Former Chief Counsel, Donald L. Cross, Chief Counsel, for respondent The Industrial Commission of Arizona.

Robert K. Park, Chief Counsel, by Courtney L. Varner, Phoenix, for respondent State Compensation Fund.

STEVENS, Judge.

The matter before the Court is an application for extraordinary relief arising out of discovery procedures in a pending Superior Court action. The complaint was filed in the Superior Court on 13 September 1968 and alleges that the plaintiff was injured on 22 September 1967. He seeks recovery in tort.

At the outset we desire to expressly state that this opinion is not an interpretation of the effect of the amendments to the Workmen's Compensation Act which became effective 1 January 1969. We further limit this opinion to the discovery problems incident to the tort action which the injured workman, as an individual, filed against alleged third-party tortfeasors after his claims file had been opened by The Industrial Commission, he not having rejected the Workmen's Compensation Act. This Court has purposely refrained from causing The Industrial Commission claims file to be transmitted to this Court in connection with the Court's consideration of the issues.

The petitioner (Kirkpatrick) is the plaintiff in a personal injury action in the Superior Court for Maricopa County. Kirkpatrick's complaint named Allison Steel Manufacturing Co. (Allison), and Kitchell Contractors, Inc. (Kitchell) as defendants alleging that the scaffolding which broke while he was standing on it causing his injuries had been erected or used by both defendants and that they were negligent in failing to properly maintain the scaffolding in a safe condition.

Because Kirkpatrick was employed by Desert Steel Company at the time he sustained his injury and had recovered workmen's compensation from Desert Steel's insurance carrier, The Industrial Commission of Arizona (Commission), it was necessary for him to file an election pursuant to A.R.S. § 23--1023 to sue the third parties, Allison and Kitchell. Neither defendant's answer questioned the propriety of Kirkpatrick's suit against them nor has the issue been raised by either of them in their answers to Kirkpatrick's petition now before this Court. See, Moseley v. Lily Ice Cream Co., 38 Ariz. 417, 300 P. 958 (1931); Industrial Comm. v. Nevelle, 58 Ariz. 325, 119 P.2d 934 (1941); State ex rel. Industrial Commission v. Pressley, 74 Ariz. 412, 250 P.2d 992 (1952); and State ex rel. Industrial Commission v. Reese, 74 Ariz. 425, 250 P.2d 1001 (1952). Thus, we need not consider the question. Moseley v. Lily Ice Cream, supra; Milam v. Milam, 101 Ariz. 323, 419 P.2d 502 (1966); and Allen v. Graham, 8 Ariz.App. 336, 446 P.2d 240 (1968).

Pursuant to Rule 1 of the Rules of the Arizona Supreme Court, 17 A.R.S., the petitioner seeks to invoke the jurisdiction of this Court in relation to an order entered by the respondent judge. The order denied the petitioner's motion for a protective order and denied his motion to quash a subpoena duces tecum. It is not an appealable order, and it may be challenged by a petition for extraordinary relief. Dean v. Superior Court In and For Maricopa County, 84 Ariz. 104, 324 P.2d 764, 73 A.L.R.2d 1 (1958) and Watts v. Superior Court In and For Maricopa County, 87 Ariz. 1, 347 P.2d 565 (1959).

The subpoena duces tecum which the petitioner sought to quash was issued on The first was issued on or about 23 January 1969 along with the noticing of the taking of a deposition of the custodian of records for the Commission. It commanded the custodian to produce at the deposition, 'any and all records, claims, documents, investigations and photographs relating to Mr. Frank Kirkpatrick, Claim No. BE 43003--S.'

5 February 1969 at the request of Allison under Rule 45, Rules of Civil Procedure, 16 A.R.S. It was the second of three subpoenas duces tecum which Allison caused to be issued.

The custodian appeared at the deposition with the subpoenaed file, but, pursuant to the advice of counsel, refused to permit Allison's counsel to inspect its contents on the grounds that all matters contained in the file were privileged except for awards or orders reflecting official Commission action. The custodian did, however, go through the file, pursuant to a request of Allison's counsel, and describe generally the documents it contained.

Thereafter, Allison again noticed the taking of the deposition of the custodian and caused the second subpoena duces tecum to be served. It commanded the custodian to appear at the deposition and produce the following:

'Any and all Industrial Commission claims forms, supplemental claims for compensation, medical reports, investigation, photographs, x-rays, boards, planks, shoring, as well as any and all of the items identified in the deposition of John Reigelsberger, which said deposition was taken on January 22, 1969, a copy of which will be made available upon request, as well as any and all other documents which are a part of the claim file or investigation file of the claim of Frank Kirkpatrick, the same being No. BE 43003--S * * *.'

Thereupon, petitioner filed his motions for a protective order and to quash the subpoena. After an order was entered staying the taking of the second deposition of the custodian pending oral argument and a ruling by the trial court, Allison filed its response to the petitioner's motions. Attached thereto was this affidavit of Allison's counsel:

'Jon L. Kyle, being first duly sworn upon his oath, deposes and says:

'1. That he is one of the attorneys for the defendant ALLISON STEEL MANUFACTURING CO., an Arizona corporation, in the lawsuit entitled FRANK KIRKPATRICK v. ALLISON STEEL MANUFACTURING CO., et al, Cause No. 215756, and that he makes this affidavit in support of Defendant's Response to Plaintiff's Mo-Motion for Protective Order and/or to Quash Subpoena and Defendant's Motion for Costs.

'2. That the Industrial Commission of the State of Arizona is in possession of a file, same being No. BE 43003--S, which file pertains to the plaintiff herein, FRANK KIRKPATRICK, and his claim for Workmen's Compensation arising from the accident which is the basis of the plaintiff's complaint herein.

'3. That the information, photographs, and materials in the possession of the Industrial Commission are relevant to the issues in the above-captioned case, and that there is no other way to obtain the information than through the inspection of the items sought.

'4. That the accident which is the basis for both the Workmen's Compensation claim and the instant lawsuit concerns certain scaffolding from which the plaintiff fell, which scaffolding is no longer in existence, but photographs and portions of it are still in the possession of the Industrial Commission.

'5. That the plaintiff's physical condition is in question by virtue of the complaint filed, and that the medical privilege has been waived by the exchange of certain medical reports and other information, and that the medical reports, claims, x-rays, etc. in the Industrial Commission filed and designated '6. That the items listed in the above paragraphs as well as the other categories of other information listed in the subpoena duces tecum referred to above, are all necessary for the preparation of this case for trial for the purposes of evaluation, for settlement, or trial, and for use in both substantive and impeachment evidence of the trial of this action.'

in the subpoena duces tecum served on Aaron Nelson on February 10, 1969, are relevant and necessary and unobtainable in any other way.

From the respondent judge's denial of Kirkpatrick's motions and a resetting of the taking of the second deposition of the custodian, Kirkpatrick sought extraordinary relief of this Court. On 12 March 1969 the matter was heard. Kirkpatrick, Allison and Kitchell appeared by their respective counsel. The Commission and the Fund did not make a formal appearance. At the conclusion of the hearing, the petition was taken under advisement. On 14 March 1969 this Court ordered that all discovery efforts relative to the Commission's claims file be stayed pending further order of the Court and that the following be transmitted to the Court:

(1) All copies of minute entry orders entered in connection with Kirkpatrick's Superior Court action; and

(2) The deposition of the custodian.

Thereafter, the trial court entered two summary judgments in favor of Allison, one against Kirkpatrick and the other against Kitchell on the Kitchell cross-claim, which had been filed on 26 February 1969. Upon Allison's motion to dismiss the pending matter as to it, this Court acted affirmatively.

After the Rule 1 hearing held on 14 March 1969 the Court requested further briefs. After the briefs had been filed the Court requested further oral argument.

Of the four grounds urged in support of the petitioner's writ, only two will be discussed at length. These are:

(1) Whether the second subpoena duces tecum designated with sufficient particularity the documents sought to be produced; and

(2) Whether the affidavit of Allison's counsel constituted a sufficient showing of good cause to overcome Kirkpatrick's motions for a protective order and to quash the subpoena duces tecum.

As to the petitioner's contention that the Commission is a party by the force of A.R.S. *s 23--1023 and that a Rule 45 subpoena duces tecum...