Moretto v. Samaritan Health System
| Citation | 190 Ariz. 343,947 P.2d 917 |
| Decision Date | 30 October 1997 |
| Docket Number | CA-CV,No. 1,1 |
| Parties | 255 Ariz. Adv. Rep. 23 Edward MORETTO, Plaintiff-Appellant, v. SAMARITAN HEALTH SYSTEM, an Arizona corporation; authorized and d/b/a Havasu Samaritan Regional Hospital, Defendant-Appellee. 97-0079. |
| Court | Arizona Court of Appeals |
Plaintiff-Appellant Edward Moretto ("Moretto") appeals from summary judgment for Defendant-Appellee Samaritan Health System ("Samaritan"). Moretto had sought malpractice damages from Samaritan alleging that a physical therapist treating his compensable industrial knee injury negligently caused a secondary back injury. Two issues are presented. First, did procedural irregularities deprive Moretto of a reasonable opportunity to present facts to oppose summary judgment? Second, does Ariz.Rev.Stat. Ann. ("A.R.S.") subsection 23-1023(B) (1995), as interpreted in Lavello v. Wilson, 150 Ariz. 235, 722 P.2d 962 (App.1985), apply to bar Moretto's civil cause of action for the negligence of a third party when Moretto did not claim or accept workers' compensation benefits for the secondary back injury?
We conclude that Moretto failed to preserve any procedural issue by not objecting below and, furthermore, that any irregularity would be harmless if Samaritan's interpretation of Lavello is correct. However, we also conclude that Samaritan's interpretation is incorrect because a claim for or acceptance of workers' compensation benefits for the secondary injury is necessary for subsection 23-1023(B) to apply. We accordingly reverse summary judgment for Samaritan and remand to the trial court.
On November 3, 1995, Moretto filed a complaint concerning events occurring on July 13, 1994. Moretto alleged that he was a patient at Samaritan's hospital, that a physical therapist employed by the hospital directed Moretto to sit on a stool with wheels and negligently left him unattended to put on a leg brace and shoe, and that as he leaned forward to put on the brace and shoe, the stool slid out from under him, he fell to the floor, and he herniated a disc.
Samaritan filed an answer on January 16, 1996, raising, among other defenses, "[a]ll affirmative defenses identified in Rule 12(b)," failure to join a party under Rule 19, and failure to prosecute by the real party in interest.
Discovery ensued, but Moretto's answers to interrogatories and deposition transcript are not included in the record. Moretto's Rule 26.1 disclosure statement is part of the record as an exhibit to another document. See generally Rule 26.1, Ariz. R. Civ. P. (1987 & Supp.1996) (hereinafter "Rule ___"). In this statement, Moretto disclosed that he was present at Samaritan's hospital "for his daily physical therapy ... necessitated by a previous injury." The record also includes a letter by Samaritan's counsel confirming that he had received Moretto's workers' compensation claim file from the responsible carrier.
On August 30, 1996, Samaritan filed a Motion To Dismiss under Rules 12(b)(6) and 12(b)(7), asserting that Moretto had failed to state a claim upon which relief could be granted and that he was not the real-party-in-interest. Samaritan represented that Moretto had suffered a compensable industrial knee injury and was being treated for this injury when he allegedly suffered the secondary back injury. Samaritan also represented that it had found no evidence that the workers' compensation carrier responsible for the knee injury had reassigned the back injury claim to Moretto. Samaritan did not provide documentary support for these factual representations, but, based upon them, it argued that the complaint should be dismissed because Moretto filed it more than one year after the back injury had occurred. To support this argument, Samaritan cited subsection 23-1023(B) but did not cite Lavello.
Moretto responded by addressing the legal standards for a motion to dismiss and their applicability to a statute of limitations defense. He did not object, however, to Samaritan's factual representations that supplemented the allegations of the complaint nor did he deny the truth of these representations. Instead, he argued that Samaritan had failed to establish that Moretto had ever claimed or accepted workers' compensation benefits for the back injury. Moretto contended that without such proof, Samaritan's motion must fail: "Without a claim, there was no claim to reassign."
In its reply, Samaritan construed Moretto's response as having denied that he claimed or received workers' compensation benefits for the primary knee injury. Samaritan then quoted from Moretto's deposition to establish that Moretto had claimed and received benefits for the primary knee injury. Samaritan also for the first time cited Lavello for the proposition that subsection 23-1023(B) applies to a claim for medical malpractice that aggravated an industrial injury.
The trial court then heard oral argument on the "Motion To Dismiss." The court's minute entry does not mention any procedural objection by Moretto. The court ultimately ruled that Lavello is dispositive:
In Lavello, the Court ruled that an action for negligent aggravation of an industrial injury through medical malpractice constitutes a third-party action subject to the provisions of A.R.S. 23-1023(B) [sic]. If the Plaintiff did not commence the action against the Defendants within one year of its accrual, or obtain an express reassignment of the claim from his employer's insurance carrier[,] the Court is required to enter judgment dismissing the action. IT IS SO ORDERED.
The trial court entered a final judgment indicating it had granted Samaritan's motion for summary judgment. Moretto timely appealed.
On review, Moretto raises several issues. We consolidate them generally into procedural and substantive issues.
Moretto asserts that procedural irregularities deprived him of a reasonable opportunity to present facts to oppose summary judgment. We agree that the procedure in this case was irregular. We disagree, however, that Moretto preserved any procedural issue for appellate review or that the irregularity was harmful if Samaritan has correctly interpreted Lavello.
The procedural irregularities include the following. A motion to dismiss tests the formal sufficiency of a claim for relief. See, e.g., Parks v. Macro-Dynamics, Inc., 121 Ariz. 517, 519-20, 591 P.2d 1005, 1007-08 (App.1979); accord 5A Charles Alan Wright and Arthur R. Miller, Federal Practice And Procedure § 1356, at 294 (2d ed.1990). This motion accordingly should be granted only when a plaintiff has pled facts that reveal a legal bar to recovery. See Wright & Miller, supra § 1357, at 344-45. If a complaint is facially sufficient but unpled facts establish a legal bar to relief, then the appropriate motion is under Rule 56. See Wright and Miller, supra § 1357, at 348-49, 358; id. § 1364, at 474-75; e.g., Tregenza v. Great American Communications Co., 12 F.3d 717, 718-19 (7th Cir.1993), cert. denied, 511 U.S. 1085, 114 S.Ct. 1837, 128 L.Ed.2d 465 (1994)(applying rule to statute of limitations defense); see also Rule 12(b); Rule 12(c); e.g., Frey v. Stoneman, 150 Ariz. 106, 108-09, 722 P.2d 274, 276-77 (1986) (). Under Rule 56, an unsworn and unproven assertion of fact in a memorandum is insufficient to establish that undisputed facts entitle a movant to summary judgment. See Prairie State Bank v. Internal Revenue Service, 155 Ariz. 219, 221 n. 1A, 745 P.2d 966, 968 n. 1A (App.1987) (citing Rule 56(e)); see also Uniform Rules of Practice of the Superior Court of Arizona, Rule IV(f); accord Wright & Miller, supra § 1365, at 481; id. § 1366, at 499-500.
In the current case, Samaritan did not contend that Moretto's complaint was facially invalid. 1 Instead, it contended that unpled facts established that Moretto did not have capacity to sue when he filed the complaint and that the statute of limitations had since run so that Moretto was barred from filing a complaint. 2 Samaritan supported this contention, however, by merely asserting in its memorandum that Moretto injured his back while being treated for an industrial knee injury and had not obtained a reassignment of the back injury claim from the responsible workers' compensation carrier. This did not comply with Rule 56. 3
Despite these irregularities, however, Moretto has no appellate remedy. To preserve an issue for appeal, an appellant generally must have raised it below. See, e.g., Schoenfelder v. Arizona Bank, 165 Ariz. 79, 88, 796 P.2d 881, 890 (1990). Here, Moretto had an opportunity to raise any procedural irregularity during oral argument or by motion for new trial, but he failed to do so. Therefore, he has not preserved any procedural issue for appeal.
Furthermore, Moretto does not dispute that he injured his back while being treated for a compensable industrial knee injury and that he did not obtain a reassignment of the back injury claim from the responsible workers' compensation carrier. We accordingly turn to the substantive issue.
Moretto asserts that Samaritan has misinterpreted subsection 23-1023(B) and Lavello to apply to the current case because Moretto suffered a secondary back injury rather than an aggravation of his primary industrial knee injury and never claimed or accepted workers' compensation benefits for the secondary back injury. Samaritan answers by arguing that these facts are immaterial to the applicability of subsection 23-1023(B) and of Lavello.
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