Soto v. Umom New Day

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

VALERIE SOTO, et al., Plaintiffs/Appellants,

v.

UMOM NEW DAY CENTERS, Defendant/Appellee.

No. 1 CA-CV 22-0671
FILED 12-26-2023

Appeal from the Superior Court in Maricopa County
No. CV2018-010821
The Honorable Scott A. Blaney, Judge

AFFIRMED

COUNSEL

Law Firm of Richard T. Treon, Gilbert
By Richard T. Treon
Counsel for Plaintiffs/Appellants

Grasso Law Firm, P.C., Chandler
By Robert Grasso, Jr., Robert J. Lydford, N. Patrick Hall
Counsel for Defendant/Appellee
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MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Brian Y. Furuya joined.

B A I L E Y, Judge:

¶1 Valerie Soto1 appeals the superior court’s summary judgment
in favor of United Methodist Outreach Ministries New Day Centers
(“UMOM”) and denial of her motion for a new trial and/or motion to alter
or amend the judgment. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In 2016, UMOM employed Soto as a Youth Mentor at its
community center, which offered services to children and young adults
who resided at UMOM’s neighboring housing facility. In August 2016, a
former boyfriend, who had been stalking Soto, entered the community
center while she was working. Soto was concerned about the children in
the center and her co-workers’ safety, so she led the man outside. The man
then shot Soto multiple times, rendering her a paraplegic.

¶3 The day after the shooting, UMOM filed an Employer’s
Report of Industrial Injury with UMOM’s workers’ compensation insurer,
CopperPoint Mutual Insurance Company (“CopperPoint”). A few days
later, CopperPoint mailed Soto a letter asking for additional information
and notified her that it had placed a lien on any amount she could collect
from a third party. CopperPoint also notified UMOM’s director of human
resources that it intended to deny Soto’s claim, once she properly filed one,
because CopperPoint believed Soto’s injury did not arise out of her

1 Valerie Soto appeals on behalf of herself and her children, Valentina Soto,

Adriana Medina, and Isaac Medina. References to “Soto” in this decision
refer to Valerie Soto.

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employment. In September 2016, a Worker’s Report of Injury and Release
of Medical Information was filed on Soto’s behalf.2

¶4 Later that month, a manager called Soto and informed her
that CopperPoint was denying her claim because the shooter had a personal
motivation for the incident. That same day, CopperPoint mailed Soto a
notice denying her claim and informing her that she had ninety days to file
an appeal with the Industrial Commission.

¶5 Soto claimed that she did not receive CopperPoint’s letters
because they were mailed to her apartment while she was in the hospital.
Soto also initially claimed that it was her supervisor at UMOM who told
her that her workers’ compensation claim was being denied, but she later
retracted that statement and confirmed that she first learned about the
denial through the phone call with CopperPoint’s claims manager.3 Soto
also later recalled that her UMOM supervisor had told her she could not
discuss work matters with Soto and had instructed Soto to direct her
questions to UMOM’s human resources director.

¶6 Soto did not appeal the denial of her workers’ compensation
claim. In August 2018 — two years after she was shot — Soto filed a
complaint against UMOM in the superior court, alleging UMOM breached
its duty to provide a safe and secure place of work, and its duty of good
faith and fair dealing, and was liable for damages for negligent
misrepresentation, fraud, and bad faith.

¶7 In September 2019, UMOM moved for summary judgment.
The parties later stipulated that UMOM would withdraw its motion so the
parties could “simplify/narrow the legal issues.” In June 2020, UMOM
filed an amended motion for summary judgment, arguing the superior
court lacked subject matter jurisdiction because Soto’s injuries occurred
during the course and within the scope of her employment, so workers’
compensation was her exclusive remedy. Soto requested discovery relief

2 Soto initially claimed that she did not file the workers’ compensation claim

but states in her opening brief that her daughter filed it on her behalf and
further admits that she “participated in filing the claim by drawing a line
through the ‘Name and Address of Insurance Company’ . . . and making
her illegible signature on page 2 of the form.”

3 Soto’s medical records showed that in September 2016 she had “moderate

cognitive impairments predominantly in the areas of memory and problem
solving.”

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under Rule 56(d) of the Arizona Rules of Civil Procedure so she could
depose UMOM and CopperPoint employees, and the superior court
granted her motion.

¶8 In April 2022, the superior court granted UMOM’s amended
motion for summary judgment, finding it lacked subject matter jurisdiction
because the Industrial Commission had exclusive jurisdiction over Soto’s
claims. Soto filed a motion for a new trial and/or to alter or amend the
judgment, which the superior court denied.

¶9 We have jurisdiction over Soto’s timely appeal under Article
6, Section 9, of the Arizona Constitution and Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

¶10 Opening briefs must contain an argument with “appropriate
references to the portions of the record on which the appellant relies.”
ARCAP 13(a)(7)(A). Soto’s opening brief repeatedly fails to cite the record,
and some statements are not supported by the record. Soto’s reply brief is
similarly deficient. See ARCAP 13(d). An appellant risks waiving
arguments when she “fails to make a ‘bona fide and reasonably intelligent
effort to comply with the rules.’” Ramos v. Nichols, 252 Ariz. 519, 522, ¶ 8
(App. 2022) (citation omitted). But because we prefer to resolve an appeal
on its merits, we address Soto’s arguments. See Clemens v. Clark, 101 Ariz.
413, 414 (1966).

¶11 We review the grant of summary judgment de novo,
construing the evidence and reasonable inferences in the light most
favorable to the opposing party. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12
(2003). Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the moving party is entitled to judgment
as a matter of law.” Ariz. R. Civ. P. 56(a); accord Orme Sch. v. Reeves, 166
Ariz. 301, 305 (1990).

I. Subject matter jurisdiction cannot be vested in the superior court
solely by estoppel.

¶12 Soto argues that UMOM should be estopped from arguing
her claim was covered by workers’ compensation because it “secretly
assert[ed] a different legal position in the [workers’ compensation] claim
proceeding,” and failed to disclose communications between UMOM and
CopperPoint. But “[s]ubject-matter jurisdiction is ‘conferred by our
constitution or statutes’ and ‘cannot be vested in a court solely by waiver

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or estoppel.’” Tanner v. Marwil, 250 Ariz. 43, 45, ¶ 9 (App. 2020) (citation
omitted); accord Swichtenberg v. Brimer, 171 Ariz. 77, 81–82 (App. 1991).
Further, Soto offered no evidence that UMOM controlled CopperPoint’s
decision to deny Soto’s claim — or participated in the decision at all — other
than filing the initial report of injury, which UMOM was required to file.
See A.R.S. § 23-908(A) (“Every employer that is affected by this chapter . . .
shall file with the commission and the employer’s insurance carrier from
time to time a full and complete report of every known injury to the
employee arising out of or in the course of employment and resulting in
loss of life or injury requiring medical treatment.”).

II. The superior court lacked subject matter jurisdiction over Soto’s
negligence claims.

¶13 “Unless an employee specifically rejects workers’
compensation before injury, the workers’ compensation system is the
exclusive remedy for that employee to recover damages resulting from his
or her employer’s negligence.” Wagner v. State, 242 Ariz. 95, 97, ¶ 6 (App.
2017) (citations omitted); see also A.R.S. § 23-1022(A).4 Soto does not argue
that she rejected workers’ compensation before her injury. See A.R.S. § 23-
906. Thus, if Soto could have recovered workers’ compensation, the
superior court lacks jurisdiction over her negligence claims.

¶14 Whether Soto could have recovered workers’ compensation
turns on whether her injury was caused by an “accident arising out of and
in the course of [her] employment.” A.R.S. § 23-1021; see also Delbridge v.
Salt River Project Agric. Improvement & Power Dist., 182 Ariz. 46, 50 (App.
1994) (“[I]f [Plaintiff’s injury] arose out of and occurred in the course of [her]
employment, [her] exclusive remedy is workers’ compensation benefits.”).
“When the material facts are undisputed, the question whether a claimant’s
injury arose out of and in the course of her employment is a question of law
that we review independently.” Keovorabouth v. Indus. Comm’n, 222 Ariz.
378, 381, ¶ 8 (App. 2009) (citation omitted). We strictly interpret the
workers’ compensation statutes “when loss of the worker’s common law
rights is the object for which the statute is invoked.” Delbridge, 182 Ariz. at
50 (citation omitted).

4 As is relevant here, A.R.S. § 23-1022(A) states, “The right to recover
compensation pursuant to this chapter for injuries sustained by an
employee or for the death of an employee is the exclusive remedy against
the employer . . . except as provided by § 23-906, and except that if the
injury is caused by the employer’s wilful misconduct . . . .”

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¶15 The material facts here are undisputed. The parties agree that
Soto was at work when she was injured and that she was injured during
normal work hours. Soto alleged in her complaint that she was injured
because of UMOM’s inadequate security, and UMOM listed this fact in
support of its amended motion for summary judgment. Finally, the parties
agree that Soto did not request a hearing with the Industrial Commission
concerning the denial of her workers’ compensation benefits.

A. Soto’s injury either arose out of her employment or her
negligence claim fails.

¶16 “To arise out of employment, an injury must result from some
risk of the employment or be incidental to the discharge of the duties
thereof.” W. Millwork v. Indus. Comm’n, 536 P.3d 305, 311, ¶ 29 (App. 2023)
(citation omitted). We consider whether the origin is distinctly work
related, wholly personal, mixed, or neutral. Id. at 311–12, ¶ 29 (citations
omitted). We also consider the nature of the risk, as “contributed by
employment,” and place it into one of the following categories:

(1) The peculiar risk doctrine—the source of the injury is
peculiar to the occupation;
(2) The increased risk doctrine—the employment
quantitatively increases the chance of injury;
(3) The actual risk doctrine—the employment subjects the
employee to the risk of this injury; or
(4) The positional risk doctrine—the injury would not have
occurred but for the fact that the employment placed the
employee in a position where he was injured.

Id. at 312, ¶ 30 (citations omitted).

¶17 The superior court found that this was a mixed-risk case. We
agree. Mixed-risk cases include those in which the origin of the risk is
“partially work related and partially personal.” Id. at 312, ¶ 29 (citations
omitted). In mixed-risk cases, we apply the actual risk doctrine and
consider whether the employment subjected the employee to the risk of the
injury. Id. at ¶¶ 30, 33; see also Nowlin v. Indus. Comm’n, 167 Ariz. 291, 293
(App. 1990) (stating that under the actual risk doctrine, “it is immaterial if
the risk is common to the public, if it is in fact a risk of this employment”).
“We do ‘not weigh the relative importance of the personal and employment
causes, nor do we look for primary and secondary causes; we merely
inquire whether the employment was a contributing factor.’” W. Millwork,
536 P.3d at 312, ¶ 33 (citation omitted).

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¶18 An employee’s injury arises out of her employment when the
employment subjects her to a risk of harm resulting from criminal activity.
See, e.g., S.E. Rykoff & Co. v. Indus. Comm’n, 172 Ariz. 22, 24–25 (App. 1992)
(holding that an employee injured by someone trying to break into the
employee’s car could recover workers’ compensation because the employee
was required to work at night and there had been prior vehicle break-ins,
but “[d]espite this knowledge,” the employer “did not provide a security
guard or a secured area for its employee parking”); Lane v. Indus. Comm’n,
218 Ariz. 44, 48–49, ¶¶ 14–17 (App. 2008) (holding that a police officer shot
while mountain biking could recover workers’ compensation because his
code of conduct “exposed [him] to an increased risk of being injured by
gunfire if a crime or other threat to life occurred in his presence” and “the
risk of harm . . . was distinctly related to his employment status”).

¶19 In deciding a motion for summary judgment, the superior
court must construe the facts and reasonable inferences in a light most
favorable to Soto. See Andrews, 205 Ariz. at 240, ¶ 12. Soto’s complaint
claimed that she “was hired specifically because of her extensive criminal
justice/corrections facility background . . . because of the high crime rate
in the area and among the residents.” Soto further alleged that, “Despite
its knowledge of the dangers associated with the Community Center . . .
UMOM failed to provide adequate security for its professional employees.”
Finally, Soto alleged, “But for the lack of ‘hard’ security . . . Soto would not
have been able to be accessed by [the shooter] and she would not have had
to lead him out of the building to protect other persons.” In contrast, in her
opening brief, Soto changes her position and claims that “the only thing
that caused the shooting was the prior personal relationship between [Soto]
and her assailant.”

¶20 Either way, Soto’s claim fails. Absent her allegation that
UMOM’s inadequate security caused her injury, Soto’s complaint could not
support a negligence claim. With the allegation of a causal connection, Soto
establishes a claim that should have been substantiated through a hearing
with the Industrial Commission, where Soto would have to show that
UMOM’s inadequate security was a contributing cause of her injury, or that
her employment otherwise subjected her to the risk of her injury. See
Keovorabouth, 222 Ariz. at 380, ¶ 7 (“It is the claimant’s burden to prove all
elements of a compensable claim.” (citation omitted)); W. Millwork, 536 P.3d
at 312, ¶ 33. Cf. Epperson v. Indus. Comm’n, 26 Ariz. App. 467, 470–71 (1976);
Dependable Messenger, Inc. v. Indus. Comm’n, 175 Ariz. 516, 518–20 (App.
1993); Est. of Sims v. Indus. Comm’n, 138 Ariz. 112, 115 (App. 1983); Wyckoff
v. Indus. Comm’n, 14 Ariz. App. 288, 289–90 (1971).

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¶21 Thus, assuming Soto could present evidence supporting her
original negligence claim — that UMOM’s inadequate security subjected
Soto to the risk of her injury — those facts would show that her employment
was a contributing cause of her injury, the first prong in qualifying for
benefits in the Industrial Commission.

B. Soto’s injury occurred in the course of her employment.

¶22 “’[I]n the course of’ refers to the time, place, and
circumstances of the injury in relation to the employment.” Ibarra v. Indus.
Comm’n, 245 Ariz. 171, 174, ¶ 14 (App. 2018) (citations omitted). “An injury
is not compensable merely because it occurred during work hours and on
work premises.” Dependable Messenger, 175 Ariz. at 520 (citations omitted).
Instead, the employee must be “doing what a person so employed may
reasonably do within work hours and [be] at a place where [she] may
reasonably be during that time.” Id. (citation omitted). Generally, an
activity is in the course of employment when it benefits the employer, but
not when it is a “specifically-prohibited action.” Id.

¶23 Soto was injured during her normal work hours. Although
Soto was shot outside the building where she worked, she was on UMOM’s
property. The circumstances also bore a close relation to her employment
because Soto was employed as a Youth Mentor, and she believed she was
protecting the children and her co-workers when she led the shooter
outside. Her actions also benefitted UMOM because Soto prevented the
man from harming additional persons inside UMOM’s building. Finally,
UMOM’s employee handbook directed employees that “cooperation in
detecting hazards and, in turn, eliminating them, is a requirement of your
employment.” When Soto led the shooter outside, she was following
UMOM policy — identifying a hazard and eliminating it by removing the
man from the building. Cf. Burnett v. Indus. Comm’n, 158 Ariz. 548, 549, 551
(App. 1988) (holding that an injury occurred in the course of employment
when the employee used unauthorized means, but his ultimate goal was
sanctioned by his employer because the employer’s policy instructed
employees to challenge persons creating a disorder). Thus, Soto’s injury
occurred in the course of her employment.

C. The combined weight of these elements satisfies the
workers’ compensation standard.

¶24 We consider the totality of circumstances under both
elements to determine whether there is “sufficient indicia of employment-
connection.” Noble v. Indus. Comm’n, 188 Ariz. 48, 52–53 (App. 1996). The

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“arising out of” element is satisfied here because Soto alleged that UMOM
caused her injury by providing inadequate security. The “course of
employment” element is also satisfied because Soto was at work when the
incident occurred, she was benefitting UMOM by protecting the children
and her co-workers, and she was following an employment requirement by
detecting and eliminating a hazard. Because the “combined weight of these
elements” satisfies the standard, Soto’s exclusive remedy was through
workers’ compensation, and the superior court did not err in granting
summary judgment. Id. at 53.

III. Soto could not bring a bad-faith claim against UMOM.

¶25 Arizona Revised Statutes § 23-930(A) provides that the
Industrial Commission “has exclusive jurisdiction as prescribed in this
section over complaints involving alleged unfair claim processing practices
or bad faith by an employer.” Even so, bad-faith denial of a claim can be
brought separately when damages are “caused by the denial of workers’
compensation benefits rather than the damages resulting from the
workplace injury.” Merkens v. Fed. Ins. Co., 237 Ariz. 274, 277–78, ¶¶ 16, 18–
19 (App. 2015) (citation omitted). But an employee must first seek a
compensability determination from the Industrial Commission, and Soto
did not. See id. at 277–78, ¶¶ 18–19 (affirming summary judgment when the
plaintiff sued her employer’s workers’ compensation carrier for bad faith,
but the plaintiff had not challenged the insurance carrier’s denial of
benefits).

IV. The superior court did not misinterpret Rule 56.

¶26 Soto also argues the superior court erred by misinterpreting
Rule 56 of the Arizona Rules of Civil Procedure. We review issues about
the application and interpretation of court rules de novo. Duckstein v. Wolf,
230 Ariz. 227, 231, ¶ 8 (App. 2012).

¶27 A party opposing a motion for summary judgment must file
a statement specifying (1) “the numbered paragraphs in the moving party’s
statement that are disputed” and (2) “those facts that establish a genuine
dispute or otherwise preclude summary judgment in favor of the moving
party.” Ariz. R. Civ. P. 56(c)(3)(B).

¶28 Soto filed a statement purportedly satisfying Rule 56(c)(3)(B)
on September 8, 2020. But ten days later, the superior court ordered Soto to
file a replacement response and a replacement statement of facts so Soto
could incorporate new information identified through the Rule 56(d)
discovery. The court’s minute entry stated that Soto’s filing “shall not

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supplement or incorporate the filings now of record but rather shall replace
entirely and supersede fully the filings now of record” and warned that
motions could not be filed “in combination with another” and could not
“incorporate by reference.” The superior court also orally warned Soto that
her replacement statement of facts could not supplement or incorporate her
prior filings.

¶29 Later, Soto filed a replacement statement of facts with a list of
exhibits and provided the referenced exhibits, but this statement did not
comply with Rule 56 because it did not identify, in numbered paragraphs,
which facts Soto was disputing. Soto asserts her statement of facts
containing the list of exhibits was acceptable as an affidavit under Rule 56.
Soto is correct that a party may file an affidavit under Rule 56(c)(5), but
nothing in Rule 56(c)(5) eliminates the requirement that the opposing party
file a statement specifying the disputed facts. Thus, Soto’s statement filed
after the court’s replacement order did not comply with Rule 56(c)(3)(B).

¶30 Soto further argues the superior court erred by not
considering her statement of facts filed on September 8, 2020. But Soto had
notice that she needed to file a replacement statement of facts, and she cites
no authority supporting her contention that the superior court erred by
enforcing its order.

¶31 Finally, even assuming the superior court erred, nothing in
Soto’s superseded statement of facts changes the outcome here. Many
disagreements that Soto identifies are irrelevant to subject matter
jurisdiction — and thus immaterial — including, for example, her allegation
that she did not receive notice of her denial because UMOM gave
CopperPoint the wrong address for her residence.5 Also, Soto identifies
disagreements with portions of UMOM’s statement where UMOM cited
Soto’s complaint. But UMOM did not misrepresent Soto’s complaint, and
Soto’s alleged disagreements involve her contradicting her own complaint.
Cf. Perdue v. La Rue, 250 Ariz. 34, 39, ¶ 17 (App. 2020) (“A party cannot
defeat summary judgment by submitting an affidavit that contradicts the
party’s prior sworn testimony.” (citation omitted)). On this record, the

5 Soto admitted she received notice of the denial through a phone call with

CopperPoint, but even if Soto had not received notice, the workers’
compensation process offered Soto a remedy, which she failed to pursue.
See A.R.S. § 23-947(B)(3) (“The industrial commission or any court shall not
excuse a late filing [of a request for a hearing] unless any of the following
applies: . . . The person to whom the notice is sent shows by clear and
convincing evidence that the notice was not received.”).

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superior court did not misinterpret Rule 56 of the Arizona Rules of Civil
Procedure, but even if it had, Soto’s superseded statement of facts would
not have changed the outcome.

V. Soto waived her abuse of process argument.

¶32 Soto alleges UMOM engaged in an abuse of process, but she
did not raise that claim until her reply to UMOM’s response to her motion
for a new trial and/or to alter or amend the judgment. Replies may only
address matters raised in the responsive memorandum. Ariz. R. Civ. P.
7.1(a)(3). And a claim raised for the first time in a reply is waived, so we do
not address it. See Westin Tucson Hotel Co. v. State Dep’t of Revenue, 188 Ariz.
360, 364 (App. 1997).

VI. We do not reach Soto’s allegation that UMOM violated its
disclosure duties.

¶33 “[A] court that lacks subject matter jurisdiction cannot
adjudicate the action.” State v. Maldonado, 223 Ariz. 309, 311, ¶ 14 (2010).
Because we conclude the superior court lacked subject matter jurisdiction,
we do not reach Soto’s allegation that UMOM violated its disclosure duties.
See Swichtenberg, 171 Ariz. at 87.

VII. We grant UMOM its taxable costs on appeal.

¶34 UMOM requests its costs incurred on appeal. We award
UMOM its taxable costs upon compliance with Rule 21, ARCAP.

CONCLUSION

¶35 We affirm the superior court’s summary judgment in favor of
UMOM and denial of Soto’s motion for a new trial and/or to alter or amend
the judgment.

AMY M. WOOD • Clerk of the Court
FILED: AA

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