dissenting.
¶ 18 I respectfully dissent.
¶ 19 Serrano, a City employee at one time, and the City were represented by the same lawyer. The parties actively participated in all of the arbitration proceedings, including the arbitration hearing. Serrano answered Lane’s interrogatories and submitted to a deposition. The City and Serrano appeared and participated in every way, except for the fact that Serrano was not physically present at the arbitration hearing. Serrano was never served with, nor did Lane attempt to serve him with, a subpoena to compel his attendance at the arbitration hearing.
¶ 20 Lane moved the trial court to strike the City’s and Serrano’s appeal of the arbitration award solely because Serrano did not appear at the arbitration hearing. The court granted the motion as to Serrano, but denied the motion as to the City.
¶ 21 The difficulty arises because the entry of judgment against Serrano is the same as an entry of judgment against the City. Lane’s only claim against the City is based on vicarious employer liability and, if the judgment against Serrano is allowed to stand, the City’s appeal is effectively moot.
¶22 Lane contends that she was denied the right to examine Serrano. It should be noted that Lane’s counsel had ample opportunity to examine Serrano during his deposition. Rule 32 of the Arizona Rules of Civil Procedure provides that any portion of Serrano’s deposition testimony could have been used at the hearing, subject only to the admissibility provisions of the Arizona Rules of Evidence. While I agree with the majority that there are many reasons why a party would want to examine the opposing party before the hearing officer, I disagree with the pronouncement that Lane was entitled to assume Serrano’s presence and that it wast the responsibility of Serrano’s lawyers to secure his presence for the benefit of the opposing party. Rather, had Lane wanted to examine Serrano at the hearing, it was incumbent upon Lane to compel Serrano’s attendance.
¶ 23 The City was faultless and could have done little more to defend itself. There is no allegation that the City acted in bad faith or directed Serrano to forego appearing at the hearing. The majority concedes that the City is entitled to appeal. But, the bottom line is that the City automatically loses because the acts of an employee are imputed to the employer and the City cannot escape the judgment against Serrano that establishes his, and hence the City’s, liability. No matter how righteous the City’s defense, the recalcitrant actions of an ex-employee will render the City defenseless.
¶ 24 Rule 7(a) of the Uniform Rules of Procedure for Arbitration, now Rule 76(a) of the Arizona Rules of Civil Procedure, amended in 1990 to prevent violations of the spirit *375of the arbitration rules,7 allows only those who have appeared and participated in the arbitration proceedings to take an appeal from an arbitration award. In Graf, upon which the majority understandably places great reliance, the court was dealing with the imposition of a sanction imposed because a party, acting in bad faith, failed to provide discovery. 192 Ariz. at 404, 966 P.2d at 1008. That is certainly not conduct attributable to the City or to Serrano in this case.
¶ 25 The majority concludes that Serrano would be able to give material first-hand testimony about the accident. When faced with such a situation, most lawyers needing a party’s testimony would have compelled that party’s appearance at the arbitration hearing by the use of a subpoena. I know of no rule that requires a party to attend a civil hearing and to submit to an examination therein absent a court order or a subpoena. Serrano had the right to absent himself from the proceedings. Neither Graf nor Rule 76(a) mandates a party’s physical appearance at the arbitration hearing.
¶26 It is entirely possible for all of the parties, including Serrano, to present their positions without Serrano being present. Absolutely nothing in this case required Serrano to be present in order for him and the City to establish a defense. Had Serrano lost his life as a result of the accident, would the City and Serrano’s estate be strictly liable because they were unable to resurrect Serrano for the hearing?
¶27 In my view, not only does the City have the right to appeal, it also has the right to contest Serrano’s liability in a trial de novo.
. See former Ariz. Unif. R.P. Arb. 7(a) state bar committee note.