Ringling Bros. & Barnum & Bailey Combined Shows, Inc. v. Superior Court In and For Pima County

• Decision Date: 01 December 1983
• Docket Number: CA-CIV,No. 2,2
• Citation: 680 P.2d 174,140 Ariz. 38
• Court: Arizona Court of Appeals
• Parties: RINGLING BROS. & BARNUM & BAILEY COMBINED SHOWS, INC., Petitioner, v. The SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF PIMA; The Honorable Harry Gin, a judge thereof, and Fidel Farias, on behalf of himself and his son Julio Farias, and as Personal Representative of the Estate of his minor son, (Alfredo) Julio Farias; Rosalba Farias, individually and as wife of Fidel Farias and mother of Julio Farias; Carmeline Farias, Gregorio Farias, Farrah Marie Farias, individually and as brother and sisters of Julio Farias, real parties in interest, Respondents. 4850.

Page 174

680 P.2d 174

140 Ariz. 38

RINGLING BROS. & BARNUM & BAILEY COMBINED SHOWS, INC., Petitioner, v. The SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF PIMA; The Honorable Harry Gin, a judge thereof, and Fidel Farias, on behalf of himself and his son Julio Farias, and as Personal Representative of the Estate of his minor son, (Alfredo) Julio Farias; Rosalba Farias, individually and as wife of Fidel Farias and mother of Julio Farias; Carmeline Farias, Gregorio Farias, Farrah Marie Farias, individually and as brother and sisters of Julio Farias, real parties in interest, Respondents.

No. 2 CA-CIV 4850.

Court of Appeals of Arizona,

Division 2.

Dec. 1, 1983.

Rehearing Denied Jan. 11, 1984.

Review Denied April 19, 1984.

[140 Ariz. 40] Jennings, Strouss & Salmon, by Steven C. Lester and Jefferson L. Lankford, Phoenix, for petitioner.

[140 Ariz. 41] John F. Day, Phoenix, for respondents real parties in interest.

OPINION

HATHAWAY, Judge.

This special action was taken from the respondent court's denial of the petitioner's motion to dismiss for lack of subject matter jurisdiction and motion for reconsideration. In light of our conclusion that the trial court abused its discretion in denying the petitioner's motion and that the petitioner's ultimate right to appeal is not an equally plain, speedy and adequate remedy, we accept jurisdiction and vacate the trial court's order.

The action in superior court was commenced by the real parties in interest Fidel Farias, on his own behalf and as personal representative of the estate of his son, Julio Farias, and other members of the Farias family (Farias) against petitioner Ringling Brothers & Barnum & Bailey Combined Shows, Inc., (Ringling Brothers) and other defendants, seeking damages arising out of the death of Julio Farias. Fidel Farias, Julio Farias and three others were engaged to perform a trapeze act in the Ringling Brothers circus known as "The Flying Farias." During a rehearsal of the act at the Tucson Community Center prior to the evening performance on June 25, 1980, Julio sustained severe injuries in a fall which ultimately resulted in his death. The Farias' first amended complaint sets forth several theories of liability, including negligence and product liability, and additionally seeks damages on behalf of the family members who witnessed the accident on the ground of negligent infliction of emotional distress.

Ringling Brothers' motion to dismiss alleged that Julio Farias was an employee of Ringling Brothers at the time of his death, that his death resulted from acts which occurred in the course of his employment, and that the exclusive remedy of the Fariases was under the workmen's compensation laws. The motion was accompanied by numerous exhibits, including the Farias' contract with Ringling Brothers, which will be discussed more fully below. The Farias' response to this motion, which was also accompanied by exhibits in support of their contentions, treated the motion as being in essence a motion for summary judgment which could be successfully resisted on the grounds that "there [exist] material issues of fact and law for the trier of fact to decide." It appears that the trial court also viewed the motion as one which, because of the existence of a factual dispute, should not be finally resolved until after a trial on the merits. In its minute entry order denying the motion, the trial court stated:

"While it very well may be that the deceased was an employee of Defendant Ringling Brothers, there are some doubts which remain in this Court's mind, and it would seem that the trial Judge who hears all of the evidence would be in a better position to decide the issue."

It is apparent that the effect of the trial court's order was merely to postpone a determination of the issue pending a trial on the merits of the action, and in this the trial court failed to perform a duty in which it had no discretion.

In Morgan v. Hays, 102 Ariz. 150, 426 P.2d 647 (1967), the Arizona Supreme Court held that where the issue of workmen's compensation coverage has been raised in a negligence action against an employer, the trial court must determine whether or not it has jurisdiction of the action before proceeding to trial. Reaffirming its earlier decision in State ex rel. Industrial Commission v. Pressley, 74 Ariz. 412, 250 P.2d 992 (1952), the court stated:

"If petitioner was covered by workmen's compensation, then his compensation would be determined by The Industrial Commission of Arizona, and the superior court would not have jurisdiction to try the issues presented; therefore, under the procedure that has been followed in this state for some fourteen years, the court must first determine whether it has jurisdiction before trying a case." 102 Ariz. at 152, 426 P.2d 647.

The rationale for this rule, serving as it does the interests of both judicial economy and the prevention of delay and expense to the parties, is self-evident.

The Fariases argue that the trial court's decision to defer a ruling on the issue of jurisdiction until the trial on the merits was proper, relying on Howard P. Foley Company v. Harris, 10 Ariz.App. 78, 456 P.2d 398 (1969). The Foley decision is distinguishable on two grounds. First, the issue of jurisdiction in that case was determined in a separate trial to an advisory jury prior to the trial on the merits. Foley clearly does not stand for the proposition that a decision on the jurisdictional issue may be postponed until after a trial on the merits. Second, the appellant's objection in Foley to the utilization of an advisory jury was not raised until the appeal was taken. In the absence of a timely objection, the court held simply that the use of an advisory jury was not error. The court did not hold that the appellee had a right to a trial before an advisory jury.

In the present case, Ringling Brothers filed a motion to dismiss, accompanied by exhibits in support of its contentions. In light of this challenge, the burden then rested upon the Fariases to prove the existence of jurisdiction. Cf. Magidow v. Coronado Cattle Company, 19 Ariz.App. 38, 504 P.2d 961 (1972) (applied to personal jurisdiction). If the Fariases had wanted the issues submitted to an advisory jury, as in the Foley case, it was incumbent upon them to file a motion to that effect pursuant to Rule 39(k), Arizona Rules of Civil Procedure, 16 A.R.S., in response to Ringling Brothers' motion to dismiss. The granting of such a motion is in any event discretionary. Rule 39(k). Having failed to do so, and having submitted evidence in support of their contentions, the Fariases cannot now argue that a decision on the jurisdictional issue should await a further evidentiary hearing.

The petitioner's motion to dismiss is grounded on the premise that Julio Farias was an employee of Ringling Brothers within the meaning of the workmen's compensation laws, that he was injured in an accident arising out of and in the course of his employment, and that therefore the respondents' exclusive remedy under A.R.S. §§ 23-906 and 23-1022(A) was the right to recover workmen's compensation dependency benefits. The principal issue raised was whether the decedent was an employee of Ringling Brothers or an independent contractor. The Arizona courts have consistently held that the determination of this issue is governed by the "right to control" test, that is, whether the employer retains the right to supervise or control the method of reaching the result contracted for, or whether his control is limited to the result reached, leaving the method to the other party. Blasdell v. Industrial Commission, 65 Ariz. 373, 181 P.2d 620 (1947); Fry v. Industrial Commission, 26 Ariz.App. 140, 546 P.2d 1149 (1976). In making this determination, the court "must look to the totality of the facts and circumstances of each case examining the sign posts or indicia of control." Reed v. Industrial Commission, 23 Ariz.App. 591, 593, 534 P.2d 1090, 1092 (1975). No one factor is in itself controlling. El Dorado Insurance Co. v. Industrial Commission, 25 Ariz.App. 617, 545 P.2d 465 (1976). Among the relevant factors are those set forth in the Restatement of Agency, § 220:

"(a) the extent of control which, by the agreement, the master may exercise over the details of the work;

(b) whether or not the one employed is engaged in a distinct occupation or business;

(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

(d) the skill required in the particular occupation;

(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

(f) the length of time for which the person is employed (g) the method of payment, whether by the time or by the job;

(h) whether or not the work is a part of the regular business of the employer;

(i) whether or not the parties believe they are creating the relation of master and servant; and

(j) whether the principal is or is not in business."

See Fry v. Industrial Commission, supra. Other factors which the courts have considered include the terms of the parties' contract, the withholding from wages of state and federal income tax and social security payments, and the payments of workmen's compensation premiums. Industrial Commission v. Meddock, 65 Ariz. 324, 180 P.2d 580 (1947); El Dorado Insurance Co. v. Industrial Commission, supra.

In support of its contention that Julio Farias was its employee at the time of the accident, Ringling Brothers submitted the affidavit of Jerome Sowalsky, its vice president and general counsel, to which was attached a copy of an agreement dated October 2, 1979, which was prepared for "The Flying Farias" for the 1980 Ringling Brothers' season. The agreement is a standard form "engagement contract" prepared by the American Guild of Variety...