SUPREME COURT OF ARIZONA
En Banc
PATRICK GALLOWAY and LOIS ) Arizona Supreme Court
GALLOWAY, husband and wife, dba ) No. CV-02-0269-PR
GALLOWAY CONSTRUCTION, )
) Court of Appeals
Petitioners, ) Division Two
) No. 2 CA-SA 02-0014
v. )
) Pinal County Superior
THE HONORABLE JANNA L. ) Court
VANDERPOOL, JUDGE OF THE SUPERIOR ) No. CV200100166
COURT OF THE STATE OF ARIZONA, )
in and for the County of Pinal, )
) O P I N I O N
Respondent, )
)
)
)
FRANK CASTRO and CINDY CASTRO, )
the surviving parents of JOSHUA )
CASTRO, deceased, )
)
Real Parties in Interest. )
__________________________________)
Special Action from the Superior Court of Pinal County
No. CV200100166
The Honorable Janna L. Vanderpool, Judge
ORDER REVERSED AND REMANDED TO SUPERIOR COURT WITH INSTRUCTIONS
________________________________________________________________
Decision Order of the Court of Appeals, Division Two
No. 2 CA-SA 02-0014 Filed June 3, 2002
AFFIRMED
________________________________________________________________
Skypeck & Sorensen Phoenix
by Don D. Skypeck
and Wendi A. Sorensen
and John H. Ishikawa
Attorneys for Petitioners
Law Office of Michael T. Middleton Tempe
by Michael T. Middleton
Attorney for Real Parties in Interest
________________________________________________________________
McGregor, Vice Chief Justice
¶1 The question presented is whether the survivors of an
employee who dies from a work-related injury can elect between
accepting workers’ compensation or pursuing a legal action when the
employer failed to provide a statutorily required notice informing
the employee of his or her option to reject workers’ compensation.
We adhere to the principle of stare decisis and hold that because
Arizona’s statutes make the right to elect personal, the right
does not pass to a deceased employee’s survivors.
I.
¶2 Frank and Cindy Castro (“the Castros”) are the non-
dependent, surviving parents of Joshua Castro. Joshua died after
a trench collapsed on him while he worked for the Galloway
Construction Company, owned by Patrick and Lois Galloway (“the
Galloways”). The Castros brought a wrongful death action against
the Galloways for the death of their son.
¶3 The Galloways moved to dismiss the wrongful death action,
arguing that under Arizona Revised Statutes (A.R.S.) section 23-
1022.A (1995), workers’ compensation provided the exclusive remedy.
The trial judge denied the motion to dismiss.
¶4 The Galloways filed a petition for a special action in
the court of appeals. The court accepted jurisdiction and granted
relief, relying on Corral v. Ocean Accident & Guarantee Corp., 42
Ariz. 213, 23 P.2d 934 (1933), and Jackson v. Northland Constr.
2
Co., 111 Ariz. 387, 531 P.2d 144 (1975). Galloway v. Vanderpool,
No. 2 CA-SA 2002-0014, at 7 ¶ 11 (Ariz. Ct. App. June 3, 2002).
In its concluding remarks, however, the court of appeals asked this
court to revisit the holdings of Corral and Jackson. Id. We
accepted review and exercise jurisdiction pursuant to Article VI,
Section 5.3 of the Arizona Constitution.
II.
¶5 In most instances, Arizona’s workers’ compensation law1
provides the exclusive remedy for a worker injured or killed in a
work-related accident, unless the worker rejected compensation
prior to being injured. A.R.S. § 23-906.C (1995) (workers
conclusively presumed to have elected compensation unless they
reject compensation prior to injury); id. § 23-1022.A (making
workers’ compensation the exclusive remedy). The compensation
statutes, however, also include important exceptions to the general
rule.
¶6 One exception applies when an employer fails to post a
written notice, required by A.R.S. section 23-906.D, informing
employees that they have the right to reject compensation. If an
employer fails to provide the required notice, an employee is not
deemed to have accepted compensation and retains the right to elect
1
The Arizona Constitution directs the legislature to
establish a workers’ compensation law. Ariz. Const. art. XVIII,
§ 8. The current workers’ compensation law appears at A.R.S.
section 23-901 through 23-1091.
3
to pursue a statutory or common law remedy after his injury. Id.
§ 23-906.E.2
¶7 The Galloways conceded, for purposes of the motion to
dismiss, that they did not post the required notice. Thus, had
Joshua Castro survived the trench collapse, he could have elected
between accepting compensation and pursuing a legal action.
Because he did not survive, his parents brought this wrongful death
action, giving rise to the question whether the right to elect a
remedy in the event of the employee’s death passes to the
employee’s survivors or personal representative.
¶8 We have twice addressed this issue and twice held that
the option of rejecting workers’ compensation if an employer fails
to post the required notice is personal to the employee and,
therefore, does not pass to the employee’s survivors or personal
representative. Jackson, 111 Ariz. at 390, 531 P.2d at 147;
2
Section 23-906.E provides:
If an employer fails to post and keep posted the notice
as required by this section, or fails to keep available
at the place where the employees are hired the blank
forms of notice to be signed by the employee, no employee
who thereafter engages in employment for such employer,
during the time that the notices are not posted or during
the time that the blanks are not available, shall be
deemed to have accepted the provisions of this chapter,
and it shall be optional for such employee, if injured
during the period when blanks were not available or the
notice was not posted, to accept compensation under the
provisions of this chapter or maintain other action
against the employer.
A.R.S. § 23-906.E (emphasis added).
4
Corral, 42 Ariz. at 220, 23 P.2d at 937.
¶9 In Corral, an employee died after being electrocuted
while constructing a hotel. 42 Ariz. at 216, 23 P.2d at 935. The
decedent’s administratrix brought an action under Arizona’s
employers’ liability law,3 arguing that the compensation act did
not bar the suit because the employer failed to post the
statutorily required notices informing employees of their right to
reject compensation.4 Id. at 216-19, 23 P.2d at 935-36. We held
that the administratrix could not elect which remedy to pursue and
explained:
The employee’s personal representative is given no right
of option. The right is personal to the employee.
If an employee is killed and has not during his
lifetime rejected the compensation law, his rights and
those of his dependents are conclusively and irrevocably
fixed by the compensation law and must be administered
by the Industrial Commission.
Id. at 220, 23 P.2d at 937.
¶10 In Jackson, a wrongful death action,5 we again confronted
3
At the time we decided Corral, the employers’ liability
law was codified at sections 3153 through 3162 of the Civil Code
of 1913. The current employers’ liability law appears at A.R.S.
sections 23-801 through 23-808 (1995).
4
The law at the time of Corral was similar to A.R.S.
section 23-906 in that “no employee . . . [employed] during the
time” the employer failed to post a notice “shall be deemed to have
accepted the provisions of this Act, and it shall be optional for
such employee, if injured during said period . . . to accept
compensation . . . or maintain other action against the employer
under the laws of this State.” 1925 Ariz. Sess. Laws ch. 83, § 60.
5
Section 12-611 provides:
5
the issue of who can exercise the option and affirmed the Corral
holding that the option provided by A.R.S. section 23-906 is
personal to the employee. 111 Ariz. at 390, 531 P.2d at 147.
Employees Jackson and Ovary died after sustaining work-related
injuries. Id. at 388, 531 P.2d at 145. Jackson’s widow and the
personal representative of Ovary’s estate brought wrongful death
actions against the employer, claiming that the employer failed to
post the required statutory notices. Id.
¶11 The plaintiffs in Jackson, raising an argument also made
in this proceeding, urged this court to overrule Corral. Id. They
argued that Corral’s holding is inconsistent with A.R.S. section
23-1024,6 which states that an employee, or his legal
When death of a person is caused by wrongful act, neglect
or default, and the act, neglect or default is such as
would, if death had not ensued, have entitled the party
injured to maintain an action to recover damages in
respect thereof, then, and in every such case, the person
who or the corporation which would have been liable if
death had not ensued shall be liable to an action for
damages, notwithstanding the death of the person injured,
and although the death was caused under such
circumstances as amount in law to murder in the first or
second degree or manslaughter.
A.R.S. § 12-611 (1992).
6
Section 23-1024 provides:
A. An employee, or his legal representative in event
death results, who accepts compensation waives the right
to exercise any option to institute proceedings in court
against his employer or any co-employee acting within the
scope of his employment, or against the employer’s
workers’ compensation insurance carrier or administrative
service representative.
6
representative if death results, waives the right to institute
court proceedings if the employee or representative accepts
compensation. Id. That language, the plaintiffs argued, was
meaningless if it did not allow them, as legal representatives of
employees where death resulted, to exercise the right to elect
between compensation and a tort action. Id. at 388-89, 531 P.2d
at 145-46. Two dissenting justices agreed with this argument,
asserting that Corral made “surplusage the phrase ‘or his legal
representative in the event death results.’” Id. at 391, 531 P.2d
at 148 (Cameron, C.J., dissenting) (quoting A.R.S. § 23-1024).
¶12 The Jackson majority, however, rejected the plaintiffs’
contention:
The section merely provides what occurs when “any option”
has been exercised. It does not purport to define what
the options are, nor does it specifically state who may
exercise the options. The section provides that when an
option is exercised it has certain consequences. The
section is not the grant of authority for exercising that
option.
Id. at 389, 531 P.2d at 146.
¶13 Moreover, the majority pointed out, during the forty
years after this court decided Corral, although the legislature had
amended and revised the workers’ compensation statutes, it had not
B. An employee, or his legal representative in event
death results, who exercises any option to institute a
proceeding in court against his employer waives any right
to compensation.
A.R.S. § 23-1024 (1995) (emphasis added).
7
modified the language of section 23-906 so as to alter the Corral
holding. Id. at 388, 531 P.2d at 145. The court presumed,
therefore, that the legislature had approved of the statutory
construction of Corral and had “adopted such construction for the
re-enacted statute.” Id.
¶14 The Jackson majority found additional support for its
holding by comparing the language of A.R.S. section 23-906, which
governs the effect of an employer’s failure to post the required
notice, with that of section 23-907,7 which governs the effect of
an employer’s failure to obtain compensation insurance or establish
its ability to self-insure. Id. at 390, 531 P.2d at 147. In
section 23-906, the notice statute, the legislature granted only
the employee the right to elect a remedy after sustaining an
injury. In section 23-907, in contrast, the legislature
specifically granted both the employee and his dependents in the
event of death the right to elect between a civil action or
compensation if the employer failed to procure workers’
compensation insurance.8 The court found this distinction
7
The pertinent clause of A.R.S. section 23-907 provides:
“An employee of [an employer who fails to secure compensation], or
the employee’s dependents in case death ensued, may, in lieu of
proceeding against the employer by civil action in court, file his
application with the commission for compensation in accordance with
the provisions of this chapter . . . .” A.R.S. § 23-907.B (Supp.
2002) (emphasis added).
8
The Castros were not dependents of their son Joshua.
This fact, however, does not affect our analysis of whether the
8
significant, noting that “when the legislature wanted to grant an
option to the dependents as well as the employee” it did so by
clearly extending the right to dependents. Id.
¶15 Now, seventy years after we decided Corral and nearly
thirty years after our Jackson decision, the Castros ask us to
overturn the longstanding rule that the right to elect between
compensation and a legal remedy is personal to an employee.9 The
arguments the Castros advance do not lack force. As the Castros
point out, the effect of the interpretation adopted in Corral and
Jackson is to deprive an employee’s survivors of the opportunity
to bring an action for damages pursuant to A.R.S. section 12-611.
They also question the wisdom of a policy that permits a deceased
employee’s dependents to elect between workers’ compensation and
an action at law if an employer fails to obtain compensation
insurance but not if an employer fails to post a required notice.
They ask that we interpret section 23-906 as depriving an employer
of immunity from actions at law, which would result in a
Castros can exercise the option provided by A.R.S. section 23-906.
9
Since our decisions in Corral and Jackson, Arizona courts
have consistently recognized and applied the rule that the right
to elect a remedy is personal to the employee. Begay v. Kerr-McGee
Corp., 499 F. Supp. 1317, 1323 (D. Ariz. 1980); Coyner v. Indus.
Comm’n., 77 Ariz. 210, 212-13, 269 P.2d 712, 713 (1954); Ringling
Bros. & Barnum & Bailey Combined Shows, Inc. v. Superior Court, 140
Ariz. 38, 45, 680 P.2d 174, 181 (App. 1983); Johnson v. Kerr-McGee
Oil Indus., Inc., 129 Ariz. 393, 397, 631 P.2d 548, 552 (App.
1981); Ream v. Wendt, 2 Ariz. App. 497, 502, 410 P.2d 119, 124
(1966).
9
noncompliant employer facing the same consequences, regardless
whether the injured employee survives. Because we earlier rejected
these arguments, we must consider them within the context of our
earlier decisions and the doctrine of stare decisis.
¶16 The doctrine of stare decisis, which requires us to give
weight to previous decisions addressing the same issue, seeks to
promote reliability so that parties can plan activities knowing
what the law is. See White v. Bateman, 89 Ariz. 110, 113, 358 P.2d
712, 713-14 (1961). Importantly, our deference to precedent is
strongest when prior decisions construe a statute. See State v.
Hickman, No. CR-01-0424-PR, 2003 WL 21142964, at *10 ¶ 38 (Ariz.
May 19, 2003). “[E]ven those who regard ‘stare decisis’ with
something less than enthusiasm recognize that the principle has
even greater weight where the precedent relates to interpretation
of a statute.” Walker v. Walker, 178 S.E.2d 46, 46 (Ga. Ct. App.
1970).
¶17 We are most likely to adhere to precedent interpreting
a statute because, if the court interprets the statute other than
as the legislature intended, the legislature retains the power to
correct us. See Edelman v. Jordan, 415 U.S. 651, 671 n.14, 94 S.
Ct. 1347, 1360 n.14 (1974). Once published, our interpretation
becomes part of the statute. See Local 266, Int’l Bhd. of Elec.
Workers v. Salt River Project Agric. Improvement & Power Dist., 78
Ariz. 30, 43, 275 P.2d 393, 402 (1954). If the legislature amends
10
a statute after it has been judicially construed, but does not
modify the statute in a manner that changes the court’s
interpretation, we presume the legislature approved of the court’s
construction and intended that it remain a part of the statute.
Cagle v. Butcher, 118 Ariz. 122, 124 n.2, 575 P.2d 321, 323 n.2
(1978); Jackson, 111 Ariz. at 388, 531 P.2d at 145; Madrigal v.
Indus. Comm’n, 69 Ariz. 138, 144, 210 P.2d 967, 971 (1949); Hause
v. City of Tucson, 199 Ariz. 499, 502 ¶ 10, 19 P.3d 640, 643 (App.
2001). Accordingly, if the court revises its statutory
construction in a later decision, our departure from precedent
arguably “amounts to an amendment of the statute itself rather than
simply a change in the thinking of the judiciary with respect to
common law concepts which are properly” within this court’s
control. Froud v. Celotex Corp., 456 N.E.2d 131, 137 (Ill. 1983).
¶18 We conclude that the principle of stare decisis applies
with particular force in this matter. In Jackson, we declined to
reverse Corral, noting that the legislature had re-enacted A.R.S.
sections 23-906 and 23-1024 in substantially the same language.
111 Ariz. at 388, 531 P.2d at 145. Notably, since our Jackson
decision, the legislature has amended A.R.S. section 23-906 six
more times,10 and made only minor changes, none of which altered the
10
See 1987 Ariz. Sess. Laws, 3d Spec. Sess., ch. 2, § 2;
1984 Ariz. Sess. Laws ch. 188, § 23; 1983 Ariz. Sess. Laws ch. 87,
§ 1; 1980 Ariz. Sess. Laws ch. 246, § 21; 1978 Ariz. Sess. Laws ch.
92, § 7; 1977 Ariz. Sess. Laws ch. 109, § 1.
11
Corral/Jackson rule. We therefore must presume that the
legislature approves of this court’s holding that the right to
elect between compensation and legal remedies when an employer
fails to post notice is personal to the employee.
¶19 The legislature, of course, can amend the workers’
compensation statutes to afford relief of the kind sought here by
the Castros, and that body provides the appropriate forum to argue
that public policy considerations favor abandoning the rule
announced in Corral and Jackson. See Kilpatrick v. Superior Court,
105 Ariz. 413, 422, 466 P.2d 18, 27 (1970); State v. Cotton, 197
Ariz. 584, 591 ¶ 26, 5 P.3d 918, 925 (App. 2000).
III.
¶20 For the foregoing reasons, we affirm the court of
appeals’ decision order. We reverse the trial court’s order and
remand with instructions to grant the Galloways’ motion to dismiss.
____________________________________
Ruth V. McGregor, Vice Chief Justice
CONCURRING:
____________________________________
Charles E. Jones, Chief Justice
____________________________________
Rebecca White Berch, Justice
12
__________________________________
Michael D. Ryan, Justice
____________________________________
Sheldon H. Weisberg, Judge*
*
Pursuant to Article VI, Section 3 of the Arizona
Constitution, the Honorable Sheldon H. Weisberg, Judge of the
Arizona Court of Appeals, Division One, was designated to sit on
this case.
13