MARCIA MCKEE, the surviving mother of GRANT QUINN MCKEE, both individually and on behalf of all statutory beneficiaries of GRANT QUINN MCKEE, deceased, Plaintiffs/Appellants,
STATE OF ARIZONA, a public entity; and the ARIZONA STATE FORESTRY DIVISION, a public entity, Defendants/Appellees.
from the Superior Court in Maricopa County Nos.
CV2014-009068, CV2014-009069 and CV2014-009070 (Consolidated)
The Honorable J. Richard Gama, Judge
& Roberts PC, Scottsdale By Craig A. Knapp, Dana R.
Roberts and David L. Abney Counsel for Plaintiffs/Appellants
Arizona Attorney General's Office, Phoenix By Brock J.
Heathcotte and Daniel P. Schaack Co-Counsel for
Defendants/Appellees and Stinson Leonard Street LLP, Phoenix,
By Michael L. Parrish Co-Counsel for Defendants/Appellees
Presiding Judge Andrew W. Gould delivered the opinion of the
Court, in which Judge Peter B. Swann and Judge Patricia A.
Marcia McKee ("Appellant") appeals from the
superior court's order dismissing her claims for wrongful
death and intentional infliction of emotional distress.
Appellant argues the court erred in concluding that her son
was an employee of the State of Arizona and the Arizona State
Forestry Division and, as a result, her claim was barred by
the workers' compensation statutes' exclusive remedy
provision. Appellant also contends she stated a claim for
intentional infliction of emotional distress and she should
be permitted to sue both the State and the State Forestry
Division. For the following reasons, we affirm.
AND PROCEDURAL BACKGROUND
Beginning in 1997, the State Forestry Division and the
Prescott Fire Department entered into a cooperative
intergovernmental agreement ("IGA") whereby the two
agencies agreed to collaborate their resources to provide
fire protection to the Prescott community and surrounding
wilderness areas. For his work as a member of the Granite
Mountain Interagency Hotshot Crew, Grant McKee
("McKee") was employed by the Prescott Fire
Department. However, because McKee worked within the
jurisdictional boundaries of the State Forestry Division
pursuant to the IGA, he was also deemed an employee of the
State. Ariz. Rev. Stat. ("A.R.S.") §
23-1022(D) (West 2016).
On June 30, 2013, Appellant's son, McKee, was a member of
the Granite Mountain Interagency Hotshot Crew who died while
bravely fighting the Yarnell Hill Fire. At the time of
McKee's death, he was unmarried, had no children or
dependents, and he was not contributing to the support of
Appellant filed a lawsuit against the State and the State
Forestry Division seeking damages for wrongful death and
intentional infliction of emotional distress. The State filed a
motion to dismiss Appellant's claims, arguing that her
wrongful death claim was barred by the workers'
compensation exclusive remedy provision and the
firefighter's rule, that she failed to state a claim for
intentional infliction of emotional distress, and that the
State Forestry Division was a nonjural entity that could not
be sued. The court granted the motion and dismissed
Appellant's claims with prejudice. Appellant timely
Standard of Review
We review the superior court's dismissal of a complaint
under Rule 12(b)(6) de novo. Coleman v. City of
Mesa, 230 Ariz. 352, 355, ¶ 7 (2012). We review
issues of statutory interpretation de novo. City of
Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172,
178, ¶ 5 (App. 2008). In addition, whether
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. Mitchell v. Gamble, 207 Ariz. 364, 367,
¶ 7 (App. 2004).
Appellant concedes that if McKee was an employee of the State
at the time of his death, her ability to sue for wrongful
death is limited by Arizona's workers' compensation
exclusive remedy provision. However, as discussed more fully
below, Appellant argues that McKee was not a State employee
at the time of his death, and therefore not subject to the
exclusive remedy provision.
Workers' Compensation: Exclusive Remedy
Generally, a plaintiff may bring a wrongful death claim as an
"independent claim for damages sustained by the
decedent's survivors." Diaz v. Magma Copper
Co.,190 Ariz. 544, 549 (App. 1997); see also
Vasquez v. State,220 Ariz. 304, 310, ¶ 16 (App.
2008). However, the right to bring a wrongful death action
exists only if the decedent would have been able to maintain
an action for damages if death had not ensued. A.R.S. §
12-611; Diaz, 190 Ariz. at 549 (stating that
"plaintiffs must still come within the terms of the
wrongful death statute"). Thus, a claim filed by a