Martinez v. Bucyrus-Erie Co.

• Decision Date: 22 March 1976
• Docket Number: No. 11757,BUCYRUS-ERIE,11757
• Court: Arizona Supreme Court
• Parties: Luis MARTINEZ, Appellant, v.COMPANY, Road Machinery Co., Hudspeth Steel & Mfg. Co., Inc., and Herbert Ring, Appellees.

Page 473

547 P.2d 473

113 Ariz. 119

Luis MARTINEZ, Appellant, v. BUCYRUS-ERIE COMPANY, Road Machinery Co., Hudspeth Steel & Mfg. Co., Inc., and Herbert Ring, Appellees.

No. 11757.

Supreme Court of Arizona, In Division.

March 22, 1976.

Rehearing Denied April 27, 1976.

Harrison, Myers & Singer, by Mark I. Harrison, Phoenix, for appellant.

Lewis & Roca, by Walter Cheifetz, Mary M. Schroeder, Marty Harper, Phoenix, for appellee Bucyrus-Erie Co.

Snell & Wilmer, by Bruce Norton, Phoenix, for appellee Road Machinery Co.

Renaud, Cook, Miller & Cordova, by J. Gordon Cook, Phoenix, for appellee Hudspeth Steel & Mfg. Co., Inc.

Behrens, MacLean & Jacques by John H. MacLean, Phoenix, for appellee Herbert Ring.

Robert K. Park, Chief Counsel, State Compensation Fund, by J. Victor Stoffa, Phoenix, amicus curiae.

STRUCKMEYER, Vice Chief Justice.

This action was brought by Luis Martinez to recover damages for injuries sustained during the course of construction of the Phoenix Civic Center in Phoenix, Arizona. The action was dismissed by the trial court on the ground that Martinez' complaint had not been filed within one year, as required by % A.r.s./ § 23--1023(B), and this appeal followed. Appellees, defendants in the court below, have cross-appealed, urging that the trial court erroneously failed to grant their motion for a summary judgment on the ground that the complaint failed to state a cause of action. Since the order of dismissal of Martinez' complaint is affirmed, we find it unnecessary to reach the merits of the cross-appeal.

The facts in this case are simple and for the purpose of the decision here are not in dispute. On May 14, 1970, the appellant, Luis Martinez, while in the course of his employment sustained certain injuries. He thereafter received workmen's compensation benefits pursuant to Arizona law. Subsequently, and nearly two years later, on May 9, 1972, he brought this action for damages against appellees as third party tort-feasors.

By A.R.S. § 23--1023(A), an employee entitled to compensation if injured or killed by the negligence of another not in the same employ may pursue an action for damages against such other. By subsec. B of § 23--1023, if the employee does not pursue his remedy against such other person within one year, the claim 'shall be deemed assigned to the insurance carrier.' The exact language of § 23--1023(B) is:

'If the employee entitled to compensation under this chapter, or his dependents, does not pursue his or their remedy against such other person by instituting an action within one year after the cause of action accrues, the claim against such other person shall be deemed assigned to the insurance carrier, or to the person liable for the payment thereof. Such a claim so assigned may be prosecuted or compromised by the insurance carrier or the person liable for the payment thereof.'

It is to be recognized immediately that the word 'assign' has a definite, fixed, legal meaning and that an unconditional assignment passes to the assignee all the rights, title or interest of the assignor in or to the property or property rights comprehended by the assignment. Valley National Bank of Arizona v. Byrne, 101 Ariz. 363, 419 P.2d 720 (1966). Essentially the right acquired by the assignee is simply that previously possessed by the assignor. Consequently, all of Martinez' interest passed to the insurance carrier by operation of law when after one year he failed to institute an action for damages against the third party tort-feasor.

It is also clear that Martinez had no further interest or right upon which he could subsequently base an action.

In Taylor v. New York Cent. R. Co., 294 N.Y. 397, 62 N.E.2d 777 (1945), it was held that if a compensation claimant fails to institute an action against a third party tort-feasor within the time limit provided by the legislature, the cause of action passes to the employer or the employer's insurer. The New York Court of Appeals said:

'Under section 29 of the Workmen's Compensation Law it is unnecessary for an injured employee to choose in the first instance between taking compensation and pursuing by suit his cause of action against a third person alleged to have injured him. He may take the compensation from his employer or his employer's insurer and nonetheless bring an action against the third person. But 'such action must be commenced not later than six months after the awarding of compensation and in any event before the expiration of one year from the date such action accrues.' If the injured workman fails to bring the action within the time so limited, 'such failure shall operate as an assignment of the cause of action against such other * * * to the person * * * liable for the payment of such compensation.' That is plain language. The cause of action, after the stated time has gone by, passes to the employer or insurer.' 62 N.E.2d at 778--779.

Similarly, in Erb v. Atchison, Topeka & Sante Fe Railway Co., 180 Kan. 60, 299 P.2d 35, the court held where a statute provides for the assignment of the injured workman's claim after one year that thereafter he could not maintain an action, saying:

'Under the provisions of G.S.1949, 44--504, when an injury for which compensation is payable is caused under circumstances creating a legal liability against someone other than the employer to pay damages, the injured workman has the right to receive compensation under the act and to pursue his remedy by proper action in a court of competent jurisdiction against such negligent third party. Such action, if prosecuted by...