Russell v. Beck

22 Ariz. App. 436 (1974) 528 P.2d 187

James W. RUSSELL, Appellant,
v.
Gerald Nevel BECK, Appellee.

No. 2 CA-CIV 1663.

Court of Appeals of Arizona, Division 2.

November 22, 1974. Rehearing Denied December 11, 1974. Review Denied January 21, 1975.

Scoville, Hofmann & Salcito, P.C. by Leroy W. Hofmann, Phoenix, for appellant.

Burch, Cracchiolo, Levie, Guyer & Weyl by John F. Day, Phoenix, for appellee.

OPINION

HOWARD, Judge.

This appeal questions the applicability of A.R.S. § 23-1023 to suits against a fellow employee.

On November 1, 1971, appellant and appellee were both employed by Inspiration Consolidated Copper Company. On that date appellant was injured on the employer's premises when he was struck by a Dodge truck owned by his employer and operated by appellee. At the time of the accident both appellant and appellee were within the scope and in the course of their employment.

On January 7, 1973, appellant filed suit in the superior court against appellee for personal injuries incurred as a result of the accident. Appellee's motion to dismiss based on A.R.S. § 23-1023 was granted by the trial court. A.R.S. § 23-1023 provides:

"A. If an employee entitled to compensation under this chapter is injured or killed by the negligence or wrong of another not in the same employ, such injured employee, or in event of death his dependents, may pursue his remedy against such other person.

B. If the employee entitled to compensation under this chapter, or his dependents, does not pursue his or their remedy against such other person by instituting an action within one year after the cause of action accrues, the claim against such other person shall be deemed assigned to the insurance carrier, or to the person liable for the payment thereof. Such a claim so assigned may be prosecuted or compromised by the insurance carrier or the person liable for the payment thereof." (Emphasis added)

It is appellee's position that since appellant had not filed suit against the appellee within one year, appellant's claim was assigned either to the insurance carrier or to the person liable for payment of compensation to appellant.

Appellant contends that § 23-1023 does not apply to suits against a fellow employee and therefore the two-year limitation period of A.R.S. § 12-542 should apply.

In Henshaw v. Mays, 20 Ariz. App. 300, 512 P.2d 604 (1973) the court held that after one year, as between the injured workman and the insurance carrier, the right to maintain an action against the tortfeasor passes to the carrier. The court further held that the compensation carrier can reassign its claim to the injured workman and thus allow the workman to bring an action against the tortfeasor more than one year after the accident but within two years. Therefore, if § 23-1023 applies to this case, the motion to dismiss was proper since appellant did not plead reassignment of the claim to him from his compensation carrier.

The Arizona Supreme Court in Halenar v. Superior Court, 109 Ariz. 27, 504 P.2d 928 (1972), held unconstitutional that part of A.R.S. § 23-1022 which purports to prohibit an employee from suing a co-employee acting in the scope of his employment.

A.R.S. § 23-1023 was passed by the legislature under the assumption that A.R.S. § 23-1022 was constitutional and that is why the co-employee is specifically excluded from its terms.

It is clear that A.R.S. § 23-1023 was intended to encompass all suits against third parties and we hold that its provisions apply to a suit against a co-employee.

Affirmed.

HATHAWAY, C.J., and KRUCKER, J., concur.