THE EXCLUSIVE REMEDY AND
THE YARNELL HILL FIRE
By Attorney Dennis Kurth
Snow, Carpio & Weekley
The Yarnell Hill Fire was a tragic event that resulted in the deaths of nineteen “hotshot” firefighters on June 30, 2013. Speculation grew about who, if anyone, was responsible for the hotshots having left a position of relative safety above the fire to move to one of extreme peril in the path of the fire.
The hotshots were direct employees of the Prescott Fire Department (City of Prescott) and their survivors were entitled to workers’ compensation benefits from the City. They worked in the surrounding wilderness area, however, under an intergovernmental agreement (“IGA”) with the State of Arizona Forestry Division.
Several families of the hotshot victims sued the State of Arizona and State Forestry Division as third-parties whose negligence caused their deaths. Their theory was that a couple of supervisors directed by the Forestry Division had left their posts and neglected their duty to protect the hotshots.
The State of Arizona and the State Forestry Division argued that the Plaintiffs’ lawsuits were barred by the “exclusive remedy” provision of the Arizona workers’ compensation law. That section of the statute, A.R.S. §23-1022(A), one of the philosophical pillars of the workers’ compensation law, gives employers who procure workers’ compensation insurance immunity from a civil lawsuit by an injured worker or a worker’s family in the event of the workers’ death. Workers’ compensation is said to be the “exclusive remedy” against the employer.
The Court of Appeals, in upholding the Superior Court’s dismissal of the Plaintiffs’ lawsuits in McKee v. State, et. al., (Ct. App. 12/30/16), held that the hotshots, because of the IGA, were employees of both the City of Prescott and the State Forestry Division and therefore were barred from suing the State of Arizona and the State Forestry Division by the exclusive remedy statute.
Plaintiffs also argued the sole statutory exception to the exclusive remedy rule, that the State’s actions rose to the level of “willful misconduct” (A.R.S. §23-1022 (A)(B)) as a basis for circumventing the exclusive remedy statute. Reviewing the statute and case law the Court concluded that the willful misconduct exception required that the Plaintiffs prove that the State had acted with the deliberate intention of harming the hotshots and the Plaintiffs had not even alleged that. Even gross negligence, according to case law, does not rise to the level of willful intent. Consequently, Plaintiffs had no cause of action under the exclusive remedy “willful misconduct” exception either.
The McKee case illustrates the continuing strength of the exclusive remedy statute. Even in the face of a horrific event where the workers’ compensation remedy only provided burial expenses to the mother of the unmarried and childless hotshot in McKee, the law cannot be circumvented easily. All but three of the Plaintiffs’ cases settled for very modest amounts (about $50,000) before the remaining three went to the Court of Appeals.
Indeed in Arizona jurisprudence, there has been only one case involving the successful application of the willful misconduct exception and that was a case in which the employer shot the employee to death in his office. (See Bonner v. Minico (1988). Even in Bonner the result was uncertain because the employer, in the criminal case, argued that temporary insanity deprived him of the ability to form the legal intent to murder. In Bonner, the Arizona Supreme Court held that the employer wanted to eliminate the decedent and knew that pointing the gun at her and pulling the trigger might kill her and that was sufficient to hold the employer liable in a civil wrongful death action.
Perhaps long in the future more information will appear as to the cause of the hotshots’ death. As of now, however, only one hotshot survived and he has not yet spoken on the record as to whose mistake might have led to the disaster.
For more information on Workers' Compensation or Social Security Disability, please contact Snow, Carpio & Weekley toll-free at 855-325-4781 or visit our website at www.workinjuryaz.com. We serve the entire State of Arizona and have offices located in Phoenix, Tucson, Yuma and Lake Havasu City.