Vineyard v. Southwest Engineering & Contracting Co., Inc.
| Decision Date | 02 August 1977 |
| Docket Number | CA-CIV,No. 1,1 |
| Parties | Jesse R. VINEYARD and Joan E. Vineyard, husband and wife, Appellants, v. SOUTHWEST ENGINEERING AND CONTRACTING COMPANY, INC., and Ward Engineering, Inc., dba Southwest-Ward Engineering, a partnership, Appellees. 3130. |
| Court | Arizona Court of Appeals |
Barber, Haralson & Kinerk by Dale Haralson, Richard M. Davis, Tucson, for appellants.
O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P. C. by J. Victor Stoffa, Phoenix, for appellees.
This is an action by an injured employee to recover damages directly from his employer for an industrial accident. The employee has applied for and received workmen's compensation benefits, and both the parties agree that normally such benefits would provide the employee's exclusive remedy as against the employer. A.R.S. §§ 23-906 and 23-1022. The employee nevertheless seeks to maintain this action as a breach of the safety provisions of a collective bargaining agreement. The trial court rendered summary judgment in favor of the employer, and we affirm.
The appellant, Jesse Vineyard, was employed by Southwest Engineering and Contracting Company as a construction worker. He was at the time of the accident working under a collective bargaining agreement to which Southwest Engineering and the International Union of Operating Engineers Local No. 428 of Arizona were signatory. That contract provided, among other things, for the installation by the employer of safety devices on heavy equipment.
The appellant was injured when a piece of heavy equipment he was operating rolled over. A canopy over the driver's seat broke, crushing appellant's legs. It is assumed for purposes of this appeal that the appellant's injuries could at least partially have been avoided by the presence of safety devices such as those called for in the labor contract.
The issue in this case is whether by virtue of that contract the employer and the union agreed that employees injured on the job would be entitled to recover damages against the employer beyond those provided by a workmen's compensation law. This Court in Lechuga, Inc. v. Montgomery, 12 Ariz.App. 32, 36, 467 P.2d 256, 260 (1970), has indicated that nothing in the workmen's compensation law prohibits such an express contract. But in view of the exclusivity provisions of the statute which are "part of the quid pro quo in which the sacrifices and gains of employees and employers are to some extent put in balance," 2A A. Larson, Workmen's Compensation Law § 65.10 at 12-4, absent an express agreement, the workmen's compensation laws should offer the exclusive remedy.
We must therefore determine whether this particular contract entitles the employee to maintain this action for damages in addition to workmen's compensation.
The contract does provide that the employer furnish safety equipment. It further specifies that when such safety equipment is not provided, employees are authorized to refuse to work and to continue to be paid during such work stoppages. There is nothing in the contract itself, however, authorizing either a lawsuit for personal injury damages in the event of a...
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