Lerma v. Keck

• Decision Date: 16 July 1996
• Docket Number: No. 1,CA-CV,1
• Citation: 186 Ariz. 228,921 P.2d 28
• Parties: Alma LERMA, a single woman, Plaintiff-Appellant, v. Andrew KECK and Tina Keck, husband and wife, Defendants-Appellees. 95-0555.
• Court: Arizona Court of Appeals

Page 28

921 P.2d 28

186 Ariz. 228

Alma LERMA, a single woman, Plaintiff-Appellant, v. Andrew KECK and Tina Keck, husband and wife, Defendants-Appellees.

No. 1 CA-CV 95-0555.

Court of Appeals of Arizona Division 1, Department B.

July 16, 1996.

[186 Ariz. 230] Rivera, Scales & Kizer by Jose de Jesus Rivera, Phoenix, for Plaintiff-Appellant.

Jones, Skelton & Hochuli by Gary H. Burger, Phoenix, for Defendants-Appellees.

OPINION

WEISBERG, Judge.

Alma Lerma ("plaintiff") appeals the trial court's grant of Andrew and Tina Keck's ("defendants") motion for new trial. Plaintiff argues that Ariz.Rev.Stat.Ann. ("A.R.S.") section 12-2505(A), as construed by this court in Wareing v. Falk, 182 Ariz. 495, 897 P.2d 1381 (App.1995), violates the Arizona Constitution's equal protection and special legislation provisions. We, however, conclude that the statute is constitutional and therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff worked as a housekeeper at the Hyatt Regency Hotel. Using a passkey, she entered defendants' room in order to turn down the beds for the evening. Plaintiff's entry, however, awakened defendants, who had recently checked in and fallen asleep in their room. Assuming plaintiff to be an intruder, Andrew Keck struck her and pushed her out into the hall, at which point he realized that she was a hotel employee. Andrew Keck was arrested and subsequently pled no contest to misdemeanor assault by intentionally, knowingly, or recklessly causing physical injury to another person. See A.R.S. § 13-1203(A).

Plaintiff filed a civil suit against defendants seeking compensatory and punitive damages. After trial, the jury found in favor of plaintiff and determined that she had suffered damages of $63,000. The jury found Andrew Keck 70% at fault and Hyatt 30% at fault. Plaintiff then filed a motion for judgment notwithstanding the verdict ("JNOV"), arguing that defendants were not entitled to the benefit of comparative negligence because Andrew Keck's conduct was willful and wanton. The trial court granted the motion and entered judgment for plaintiff in the amount of $63,000.

On the same day that the trial court granted plaintiff's motion, this court issued its opinion in Wareing, in which we concluded that willful and wanton defendants are entitled to the benefits of comparative negligence under Arizona's Uniform Contribution Among Tortfeasors Act ("UCATA"). ¹ 182 Ariz. at 500-01, 897 P.2d at 1386-87. Defendants therefore filed a motion arguing that they were now permitted to compare their negligence to Hyatt's. Plaintiff opposed the motion on the ground that UCATA, as construed in Wareing, is unconstitutional because it allows wanton and willful defendants to benefit from comparative negligence, but denies the same benefit to willful and wanton claimants. Without addressing plaintiff's constitutional arguments, the trial court granted defendants' motion, reversed its earlier decision on plaintiff's motion for JNOV, and entered judgment for plaintiff in the amount of $44,100, corresponding to defendants' 70% share of plaintiff's damages.

Plaintiff has timely appealed.

DISCUSSION

A. UCATA and Wareing v. Falk

Prior to the enactment of UCATA, Arizona followed the common law in negligence actions. Under the common law, a plaintiff's contributory negligence could completely bar recovery of damages. To ameliorate this often harsh result, certain exceptions were developed, such as the willful and wanton doctrine, which provided that a defendant whose conduct was willful and wanton could not assert the defense of contributory negligence. Southern Pacific Transp. Co. v. Lueck, 111 Ariz. 560, 562, 535 P.2d 599, 601 (1975).

Whether the willful and wanton doctrine has survived UCATA was the subject of our opinion in Wareing. The appellee in Wareing argued that the doctrine survived because willful and wanton conduct differs in kind from negligence and UCATA applies only to claims of negligence. We, however, concluded that willful and wanton conduct does not differ in kind from negligence, but merely in degree. Wareing, 182 Ariz. at 498-99, 897 P.2d at 1384-85 (relying on DeElena v. Southern Pacific Co., 121 Ariz. 563, 566, 592 P.2d 759, 762 (1979)). The doctrine, therefore, no longer applies after UCATA, and willful and wanton defendants could now benefit from comparative negligence. Id. at 500-01, 897 P.2d at 1386-87.

The appellee in Wareing nevertheless argued that this could not be the intent of the legislature because A.R.S. section 12-2505(A) explicitly precludes willful and wanton claimants from the right to comparative negligence. See A.R.S. § 12-2505(A) ("There is no right to comparative negligence in favor of any claimant who has intentionally, wilfully or wantonly caused or contributed to the injury or wrongful death."). The legislature, the appellee argued, could not have intended to treat willful and wanton claimants and willful and wanton defendants differently. We disagreed, however, concluding that other provisions in UCATA "clearly demonstrate that the legislature intended that wanton defendants be treated differently than wanton claimants." Wareing, 182 Ariz. at 501, 897 P.2d at 1387.

In the instant case, the trial court relied upon Wareing 's construction of UCATA to conclude that defendants are entitled to compare their negligence with that of Hyatt, a non-party at fault. Plaintiff argues that UCATA, as interpreted by Wareing, thus violates the Arizona Constitution's guarantee of equal protection of the laws, see Ariz. Const. art. 2, § 13, and prohibition on special laws, see id. art. 4, pt. 2, § 19, because it discriminates against willful and wanton claimants.

B. Standing

Defendants argue that plaintiff does not have standing to challenge the constitutionality of A.R.S. section 12-2505(A). They assert that, because she is not a willful and wanton claimant, plaintiff cannot challenge the statute on the ground that it discriminates against such persons. We disagree.

In Church v. Rawson Drug & Sundry Co., 173 Ariz. 342, 842 P.2d 1355 (App.1992), the

plaintiff challenged the constitutionality of UCATA's abolition of joint and several liability in favor of comparative negligence, in part on equal protection grounds. Finding that the plaintiff had standing to make her equal protection argument, we stated:

All that is necessary to assert the constitutional challenge is that the individual making the assertion be confronted with some "threatened or actual injury" from the operation of the statute. Because the statute affects the amount the plaintiff will recover, she has standing to challenge it.

Id. at 349, 842 P.2d at 1362 (citations omitted). The same is true in the instant case.

Plaintiff argues that granting the benefits of comparative negligence to willful and wanton defendants violates equal protection because the same benefits are denied to willful and wanton claimants. Although not a willful and wanton claimant, plaintiff nevertheless is injured by the operation of the statute because permitting defendants to compare their negligence to Hyatt affects the amount she can recover on her claim. See id. We therefore conclude that plaintiff has standing to challenge the constitutionality of A.R.S. section 12-2505(A).

C. Equal Protection

1. Standard of Review

The parties dispute which standard of review applies to this legislation. Plaintiff argues that we should apply strict scrutiny, which requires that the statutory classification be necessary to accomplish a compelling government interest. Kenyon v. Hammer, 142 Ariz. 69, 78, 688 P.2d 961, 970 (1984); Church, 173 Ariz. at 349, 842 P.2d at 1362. Strict scrutiny applies when the legislation impinges upon a fundamental right or discriminates based upon a suspect classification. Church, 173 Ariz. at 349, 842 P.2d at 1362.

Defendants argue that we should apply the rational basis test, which applies to economic or social legislation that does not affect a fundamental right or discriminate based upon a suspect classification. Id. at 350, 842 P.2d at 1363. Under the rational basis test, the legislation is presumed constitutional, and will be upheld if 1) the legislation serves a legitimate state interest and 2) the classification rationally furthers that interest. Kenyon, 142 Ariz. at 78, 688 P.2d at 970.

Plaintiff does not contend that she is a member of a suspect classification. Accordingly, we must decide whether UCATA's challenged application impinges upon a fundamental right. We conclude that it does not.

Under the Arizona Constitution, claimants have a fundamental right to bring and pursue an action for damages. Kenyon, 142 Ariz. at 83, 688 P.2d at 975 (relying upon Ariz. Const. art. 18, § 6). In Kenyon, the legislation at issue provided that the statute of limitations for medical malpractice actions begins to run from the time of the injury, whereas the statute of limitations for other personal injury actions generally runs from the time the injury was or should have been discovered. Id. at 72, 688 P.2d at 964. Faced with an equal protection challenge, the supreme court concluded that strict scrutiny applied because the legislation impinged upon the fundamental right to bring an action for damages. Id. at 83, 688 P.2d at 975.

The Court in Kenyon distinguished its earlier decision in Eastin v. Broomfield, 116 Ariz. 576, 570 P.2d 744 (1977), which had applied the rational basis test to other provisions of the same act. The Court explained:

In Eastin, we upheld many portions of the act, but did not consider the statute of limitations. The panel "screening" procedure, the admission of the panel's findings as evidence at the subsequent trial, and the abolition of the collateral source rule were upheld by applying a rational basis test. These portions of the statute do not affect the essence of the fundamental right to bring a lawsuit; they merely regulate what is done with the action after it is brought and prescribe the...