Posted Mar 2023
This update focuses on the interplay between workers’ compensation and tort claims. Here are a few areas.
Exclusive Remedy: A.R.S. § 23-1022 bars negligence actions by employees against their employers and co-employees. Co-employees may still be sued for intentional torts. This is the wilful misconduct exception and requires the co-employee having acted “knowingly and purposely with the direct object of injuring another.” Employers are still entitled to the immunity even if a co-employee’s conduct meets this standard unless the employer itself intended the injury. E.g., Gamez v. Brush Wellman, Inc., 201 Ariz. 266 (App. 2001) (“Even if the alleged conduct. . . includes such elements as knowingly permitting a hazardous work condiction to exist. . . [or] wilfully failing to furnish a safe place to work. . . the conduct still falls short of the kind of actual intention to injure that robs the injury of accidental character.”). There are circumstances where an accident may be outside the scope of employment. Olson v. Staggs-Bilt Homes, Inc., 23 Ariz.App. 574 (1975) (security guard engaged in horseplay outside scope of employment). An employer is someone who regularly hires employees whom they control. E.g., Putz v. Indus. Comm’n, 203 Ariz. 146 (App. 2002) (sole proprietor residential contractor was not a covered employer when he would occasionally hire helpers when he needed extra help); Wagner v. State, 393 P.3d 156 (App. 2017) (an employee of a private contractor working in a state-owned prison is a statutory employee of the State based on control and because the services are the usual and regular course of the State’s business); Meno’s Constr., L.L.C. v. Indus. Comm’n of Ariz., 246 Ariz. 521 (App. 2019) (ICA is required to evaluate each contractor and subcontractor to determine whether an employee has more than one statutory employer).
Statute of Limitations: While the two-year personal injury applies to most tort cases, if an employee was injured while on the job, A.R.S. 23-1023 (B) states the employee must file suit within the first year or it is automatically assigned to the workers’ compensation carrier. At that point, the employee must obtain a reassignment before pursuing the claim. The employee cannot file suit and then later get an assignment after the statute of limitations. E.g., Stephens v. Textron, Inc., 127 Ariz. 227 (1980) (holding reassignment of a claim after the two-year statute of limitations had expired did not preserve the claim). . . .
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