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McKee v. State

Court of Appeals of Arizona, First Division

December 30, 2016

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,
v.
STATE OF ARIZONA, a public entity; and the ARIZONA STATE FORESTRY DIVISION, a public entity, Defendants/Appellees.

         Appeal from the Superior Court in Maricopa County Nos. CV2014-009068, CV2014-009069 and CV2014-009070 (Consolidated) The Honorable J. Richard Gama, Judge

         AFFIRMED.

          Knapp & 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. Orozco joined.

          OPINION

          GOULD, Judge.

         ¶1 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.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 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).[1]

         ¶3 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.

         ¶4 Appellant filed a lawsuit against the State and the State Forestry Division seeking damages for wrongful death and intentional infliction of emotional distress.[2] 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 appealed.

         DISCUSSION

         I. Standard of Review

         ¶5 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).

         II. Wrongful Death

         ¶6 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.

         A. Workers' Compensation: Exclusive Remedy

         ¶7 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 plaintiff ...


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