Opinion
2 CA-CV 2024-0115
10-25-2024
Veronica Haro, surviving mother and statutory beneficiary of Santino Sanchez, deceased, Plaintiff/Appellant, v. Solterra Team Services, LLC, an Arizona Limited liability company; and Lupita Aguirre, Defendants/Appellees.
Ahwatukee Legal Office P.C., Phoenix By David L. Abney and Phillips Law Group P.C., Phoenix By Timothy A. LeDuc and Nasser Abujbarah Counsel for Plaintiff/Appellant. Greenberg Traurig LLP, Phoenix By Lindsay J. Fiore and Jorge Coss Counsel for Defendants/Appellees.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. C20230881 The Honorable Brenden J. Griffin, Judge.
COUNSEL
Ahwatukee Legal Office P.C., Phoenix By David L. Abney and
Phillips Law Group P.C., Phoenix By Timothy A. LeDuc and Nasser Abujbarah Counsel for Plaintiff/Appellant.
Greenberg Traurig LLP, Phoenix By Lindsay J. Fiore and Jorge Coss Counsel for Defendants/Appellees.
Brearcliffe, Judge authored the decision of the Court, in which Presiding Judge Sklar and Vice Chief Judge Eppich concurred.
MEMORANDUM DECISION
BREARCLIFFE, Judge:
¶1 Veronica Haro, the surviving mother of decedent Santino Sanchez, appeals the superior court's dismissal of her wrongful death claim against Sanchez's employer on the grounds of workers' compensation exclusivity. We affirm.
Factual and Procedural Background
¶2 "In reviewing the grant of a motion to dismiss for failure to state a claim, this court assumes the truth of all well-pled facts alleged in the complaint, . . . and will 'indulge all reasonable inferences therefrom.'" Verduzco v. Am. Valet, 240 Ariz. 221, ¶ 7 (App. 2016) (quoting Cullen v. AutoOwners Ins. Co., 218 Ariz. 417, ¶ 7 (2008)). The following facts are drawn from Haro's second amended complaint or are undisputed facts from the parties' relevant papers below.
Solterra did not expressly bring its motion to dismiss under any specific subsection of Rule 12(b), Ariz. R. Civ. P. A motion to dismiss a complaint on the basis of workers' compensation exclusivity may properly be brought under either Rule 12(b)(1) for lack of subject matter jurisdiction or Rule 12(b)(6) for failure to state a claim. See, e.g., Ringling Bros. & Barnum & Bailey Combined Shows v. Superior Ct., 140 Ariz. 38, 41, 45-46 (App. 1983) (motion brought under Rule 12(b)(1)); McKee v. State, 241 Ariz. 377, ¶¶ 4-5 (App. 2016) (motion brought under Rule 12(b)(6)). Nonetheless, the analysis is the same in all relevant respects.
¶3 Appellant Haro is the mother of Sanchez, who was employed by Appellee Solterra Team Services as a dishwasher at its assisted living facility. On September 17, 2021, Sanchez came to work "noticeably intoxicated and under the influence of alcohol." Appellee Lupita Aguirre, a manager at Solterra, noticed that Sanchez "was heavily intoxicated, fired him, told him to go home early, and did not arrange for transportation to take" him home. While driving himself home, Sanchez "drove off the road, flipped his car over, and died."
For purposes of this decision only, we assume that Solterra is vicariously liable for the acts of its manager Aguirre and therefore refer only to Solterra as the tortfeasor herein.
¶4 Solterra "agreed to take responsibility" to transport Sanchez home under its written policy, providing that it would "arrange transportation for any employee who feels that they may be impaired from the use of drugs or alcohol." On other occasions, Solterra "provided transportation services for employees who had come to work sick or were otherwise unable to travel home safely," but, on this occasion, Solterra did not arrange to transport Sanchez home.
¶5 Solterra fired Sanchez because its manager was angry that he came to work intoxicated. Rather than follow its policy, Solterra fired him "out of spite" and, "with the intent to seriously harm or injure" him, "told him to drive home while he was heavily intoxicated." Solterra knew that Sanchez was "likely to injure himself or others because he was not able to safely operate his vehicle." "[I]t was clear" that Sanchez "could not safely operate a vehicle at high speeds and therefore posed a substantial and present risk to himself and others on the road that day." Solterra's "direct purpose in sending . . . Sanchez home was to seriously injure" him "as retribution for him being intoxicated at work."
¶6 As alleged in Haro's complaint, Solterra intentionally disregarded its own applicable policy and acted "knowingly and purposely" "with the direct object of injuring" Sanchez. Solterra's disregard of its policy "reflected a willful disregard of the life, limb or bodily safety" of Sanchez. Solterra "was conscious of the high risk of harm posed by its conduct."
¶7 Following Sanchez's death, Haro filed her complaint for wrongful death alleging, as relevant here, Solterra's "intentional and willfull misconduct" caused his death. Solterra moved to dismiss the complaint, reasoning, in part, that Haro's wrongful death claim was barred by the exclusivity of Arizona's workers' compensation law. The superior court granted Solterra's motion to dismiss, certified its judgment pursuant to Rule 54(c), Ariz. R. Civ. P., and Haro appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A).
Discussion
¶8 "To prevail on a motion to dismiss for failure to state a claim, the moving party must establish that the claimant would not be entitled to relief under any set of facts susceptible of proof." Verduzco, 240 Ariz. 221, ¶ 7. On appeal, "[w]e review de novo the dismissal of a complaint pursuant to Rule 12(b)(6), as well as issues of statutory interpretation." Shepherd v. Costco Wholesale Corp., 250 Ariz. 511, ¶ 11 (2021) (citation omitted). "[W]hether Appellant's wrongful death claim is barred by the exclusive remedy prescribed in the Arizona workers' compensation system is a legal question subject to de novo review." McKee v. State, 241 Ariz. 377, ¶ 5 (App. 2016).
¶9 "It is well settled that work-related injury claims are generally redressed exclusively under Arizona's workers' compensation scheme." Gamez v. Brush Wellman, Inc., 201 Ariz. 266, ¶ 5 (App. 2001). Arizona workers' compensation system is established at article XVIII, § 8 of the Arizona Constitution, and as statutorily implemented in A.R.S. §§ 23-901 to 23-1105. "The underlying principle of the compensation system is a trade of tort rights for an expeditious, no-fault method by which an employee can receive compensation for accidental injuries sustained in work-related accidents." Stoecker v. Brush Wellman, Inc., 194 Ariz. 448, 451 (1999). Its purpose is to ensure "a just and humane compensation law . . . for the relief and protection" of employees, "their widows, children or dependents . . . from the burdensome, expensive and litigious remedies for injuries . . . or death . . . now existing." Ariz. Const. art. XVIII, § 8.
¶10 Generally, workers compensation is the exclusive remedy for workplace injuries because an employee who accepts compensation waives "the right to exercise any option to institute proceedings in court against his employer." § 23-1024(A). That is, an employee subject to workers' compensation exclusivity is barred from bringing otherwise valid common law tort claims against his employer, such as for personal injury (negligence) or, as here, in wrongful death. Gamez, 201 Ariz. 266, ¶¶ 5, 8-9 (personal injury claims barred); Diaz v. Magma Copper Co., 190 Ariz. 544, 547-48 (1997) (wrongful death action barred). "The exclusivity provision is part of the quid pro quo between the employee's no-fault recovery and the employer's obligation to pay benefits." Stoecker, 194 Ariz. 448, ¶ 15.
¶11 Notwithstanding workers' compensation exclusivity, "the Arizona Constitution allows an employee who would otherwise be barred . . . to sue his or her employer if the employee has suffered an injury caused by the employer's wilful misconduct." Gamez, 201 Ariz. 266, ¶ 5; Ariz. Const. art. XVIII, § 8. That is, a lawsuit may proceed where the employee's injury is "the result of an act done by the employer or a person employed by the employer knowingly and purposefully with the direct object of injuring another, and the act indicates a wilful disregard of the life, limb or bodily safety of employees." Ariz. Const. art. XVIII, § 8.
¶12 In its motion to dismiss, Solterra claimed that Haro had failed to allege wilful misconduct necessary to except her claims from workers' compensation exclusivity. The superior court agreed, concluding that [t]he statute defines it as acting knowingly and purposefully with the direct object of injuring the employee. I just don't think that that's alleged here. I think what's alleged here rises to the level of gross negligence, recklessness, but I don't think an inference can be drawn that fits that narrow statutory exception. The court was correct. Although, "when adjudicating a Rule 12(b)(6) motion to dismiss, Arizona courts look only to the pleading itself and consider the well-pled factual allegations contained therein," "mere conclusory statements are insufficient to state a claim upon which relief can be granted." Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, ¶ 7 (2008). "The inclusion of conclusory statements does not invalidate a complaint, but a complaint that states only legal conclusions, without any supporting factual allegations, does not satisfy Arizona's notice pleading standard under Rule 8." Id. (citation omitted).
¶13 There are four elements necessary to properly plead wilful misconduct:
(1) the employer's wilful misconduct must have been the cause of the employee's injury, (2) the wilful misconduct must have been "an act done
. . . knowingly and purposely with the direct object of injuring another," (3) the act that caused the injury must have been the personal act of the employer, and (4) the act must have reflected "a wilful disregard of the life, limb or bodily safety of employees." Gamez, 201 Ariz. 266, ¶ 6 (alteration in Gamez) (quoting Ariz. Const. art. XVIII, § 8). Although Haro stated that Solterra had engaged in wilful misconduct and that it had intentionally and personally acted to injure Sanchez, such were conclusory assertions only. Based on the well-pleaded and non-conclusory facts of the complaint, Haro failed to show wilful misconduct.
¶14 "Wilful misconduct" is a term of art, defined in the statute as intentional conduct with the direct intention to injure another. A.R.S. § 23-1022(B). Wilful misconduct requires something more than negligent or even grossly negligent behavior: the "direct object" of the conduct must have been to "injur[e] another." Id.; see also McKee, 241 Ariz. 377, ¶ 18 ("There must be 'deliberate intention as distinguished from some kind of intention presumed from gross negligence.'" (quoting Serna v. Statewide Contractors, Inc., 6 Ariz.App. 12 (1967)); Gamez, 201 Ariz. 266, ¶ 7 ("Gross negligence is not sufficient to establish wilful misconduct under § 231022."). As we explained in Gamez, an employer's liability cannot . . . be stretched to include accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of a conscious and deliberate intent directed to the purpose of inflicting an injury. Even if the alleged conduct . . . includes such elements as knowingly permitting a hazardous work condition to exist . . . the conduct still falls short of the kind of actual intention to injure that robs the injury of accidental character. 201 Ariz. 266, ¶ 7 (first alteration in Gamez, second and third alteration added) (quoting Arthur Larson &Lex K. Larson, Larson's Workers' Compensation Law § 103.03, 103-7 (2001)); see also Diaz, 190 Ariz. at 551 (although evidence showed defendant was negligent, evidence was insufficient to show defendant's "objective was to injure" plaintiff).
¶15 Our case law describes the required conduct as the equivalent of "an intentional left jab to the chin." Allen v. Sw. Salt Co., 149 Ariz. 368, 371 (App. 1986) (quoting 2A A. Larson, Workmen's Compensation Law § 68.13 (1982)). It is a high bar, and, in the roughly one hundred years since Arizona adopted workers' compensation, no reported case has determined that an employer engaged in wilful misconduct. Indeed, some notably egregious conduct by employers has not met the required threshold. See, e.g., Diaz, 190 Ariz. at 547, 551; Serna, 6 Ariz.App. at 506, 508; Allen, 149 Ariz. at 370-72; Lowery v. Universal Match Corp., 6 Ariz.App. 98 (1967).
¶16 Here, although we accept that Solterra knew Sanchez was intoxicated and could not safely drive, and that it ordered him to drive himself home, knowing and intending that he be injured (or killed), it is only pleaded that Sanchez's death resulted from his own accidental, singlecar automobile accident. No "personal act" of Solterra comparable to an intentional left jab to the chin directly caused Sanchez's accident, injury, and death. Gamez, 201 Ariz. 266, ¶ 6.
¶17 Haro needed to allege facts of more than a personal act that was the first in a series of events that ended in Sanchez's death. She needed to allege facts of an intentional act of Solterra that had injury or death as its purpose and that had the effect of causing, in a straight causal line, uninterrupted by chance, that injury or death. Here, Haro did not allege that any agent of Solterra piloted the car into the rollover with the intent that Sanchez be harmed or killed. And, although we must accept that Solterra "told [Sanchez] to drive home" drunk, Sanchez nonetheless undertook to drive himself home. Even given that Sanchez's crash and resulting injury and death, was probable-even highly probable-it cannot be said to have been the direct object of Solterra's personal act.
¶18 Solterra's conduct as alleged here, no matter how negligent, reckless, heartless, or cruel, does not meet Arizona's "most restrictive" threshold of wilful misconduct. Serna, 6 Ariz.App. at 16. Haro retains her remedies under Arizona's comprehensive workers' compensation act, but she is barred from bringing this action. Id.
Disposition
¶19 Because Arizona's workers' compensation remedy is the sole remedy for Haro's grievous loss here, we affirm the judgment. Because Haro is not the prevailing party, we deny her request for attorney fees on appeal.