                                 IN THE

 SUPREME COURT OF THE STATE OF ARIZONA

                  TWIN CITY FIRE INSURANCE COMPANY,
                   Plaintiff/Counter-Defendant/Appellee,

                                    v.

                            GRACIELA LEIJA,
                  Defendant/Counter-Claimant/Appellant.


                           No. CV-17-0280-PR
                           Filed August 2, 2018


          Appeal from the Superior Court in Maricopa County
               The Honorable Michael J. Herrod, Judge
           The Honorable J. Richard Gama, Judge, (Retired)
                         No. CV2012-004506
                             AFFIRMED

             Opinion of the Court of Appeals, Division One
                       243 Ariz. 175 (App. 2017)
             AFFIRMED IN PART, VACATED IN PART


COUNSEL:

Donald L. Myles, Jr., Jefferson T. Collins, Lori L. Voepel (argued), Jones,
Skelton & Hochuli, P.L.C., Phoenix, Attorneys for Twin City Fire Insurance
Company

Joel B. Robbins (argued), Anne E. Findling, Robbins & Curtin, PLLC,
Phoenix; and David L. Abney, Ahwatukee Legal Office, P.C., Phoenix,
Attorneys for Graciela Leija

Mark A. Kendall (argued), CopperPoint Mutual Insurance Company,
Phoenix, Attorneys for Amicus Curiae CopperPoint Mutual Insurance
Company
                     TWIN CITY FIRE INS. CO. v. LEIJA
                          Opinion of the Court

 Nathan B. Webb, Miller, Pitt, Feldman & McAnally, P.C., Tucson, Attorneys
 for Amici Curiae Mark Ballinger and Patricia Ballinger

 Taylor C. Young, Mandel Young PLC, Phoenix, Attorneys for Amicus
 Curiae American Insurance Association

 David W. Lippman, Lippman Recupero, Tucson, Attorneys for Amicus
 Curiae National Association of Subrogation Professionals


 JUSTICE PELANDER authored the opinion of the Court, in which CHIEF
 JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and JUSTICES
 TIMMER, GOULD, and LOPEZ joined. JUSTICE BOLICK concurred in the
 result.


 JUSTICE PELANDER, opinion of the Court:

¶1             Under the Arizona Workers’ Compensation Act (the “Act”),
 an insurance carrier obtains a lien on a claimant’s (or a claimant’s
 dependents’) recovery from third persons who negligently injured or killed
 the claimant to the extent of workers’ compensation benefits paid (less
 reasonable and necessary expenses incurred in securing the recovery).
 A.R.S. § 23-1023(D). In Aitken v. Industrial Commission, this Court held that
 the insurance carrier may assert the lien “only to the extent that the
 compensation benefits paid exceed the [non-party] employer’s
 proportionate share of the total damages fixed by verdict in the
 [third-party] action.” 183 Ariz. 387, 392 (1995). We today hold that a
 claimant who settles all of his or her third-party claims is not entitled to a
 post-settlement trial to determine the percentage of employer fault solely to
 reduce or extinguish the insurance carrier’s lien.

                                      I.

¶2              Victor Leija died while working as a window washer when he
 fell from a building after a scaffold collapsed. Victor’s widow and children
 (collectively, “Leijas”) claimed workers’ compensation benefits through
 Victor’s employer’s workers’ compensation carrier, Twin City Fire
 Insurance Company (“Twin City”). Twin City accepted the claim and pays
 monthly benefits of $1857 to the Leijas. Eventually, the payments will total
 approximately $575,000.




                                       2
                     TWIN CITY FIRE INS. CO. v. LEIJA
                          Opinion of the Court

¶3            Exercising their right under the Act to bring a tort claim
 against any third person who negligently caused Victor’s death, see
 § 23-1023(A), the Leijas filed a negligence action against the City of
 Glendale, which owned the building from which Victor fell, the building’s
 property manager and maintenance company, and the companies that
 furnished and fabricated the scaffold.

¶4             During settlement negotiations between the Leijas and the
 third-party defendants, Twin City asserted its right under § 23-1023(D) to
 fully enforce a lien against all settlement proceeds for the amount of
 workers’ compensation benefits it had paid and would pay in the future.
 Nevertheless, Twin City offered to reduce its lien by five percent if the
 Leijas settled all their third-party claims. The Leijas rejected the offer,
 arguing that Twin City was required to reduce its lien by more than five
 percent due to the alleged comparative fault of Victor’s employer in causing
 the accident. Although Twin City did not object to any settlement, it never
 wavered from its position that it was not required to reduce its lien. The
 Leijas ultimately settled with all the third-party defendants for $1.6 million.

¶5              After that settlement, Twin City filed this action against the
 Leijas to enforce its lien. Consistent with its pre-settlement position, Twin
 City sought to fully enforce its lien under § 23-1023(D) against all the
 settlement proceeds to the extent of past and future workers’ compensation
 benefits. The Leijas counterclaimed, arguing, as relevant here, that Twin
 City breached its duty of good faith and fair dealing by refusing to reduce
 its lien to account for Victor’s employer’s alleged comparative
 fault. Alternatively, the Leijas requested that the superior court set a trial
 to establish the employer’s proportionate fault and the resulting amount of
 Twin City’s lien.

¶6             On the parties’ cross-motions for summary judgment, the
 superior court ruled in Twin City’s favor, reasoning that “a separate action
 after compromise of the third-party claim is not the appropriate vehicle to
 allocate fault” to a non-party employer. The court further reasoned that,
 contrary to the Leijas’ assertions, a workers’ compensation insurance carrier
 does not owe a duty of good faith and fair dealing to reduce its lien against
 a claimant’s settlement proceeds to account for a non-party employer’s
 alleged comparative fault.

¶7             The court of appeals reversed, holding that “when a worker
 settles a claim against a third party for less than the limits of the third
 party’s insurance, the worker may obtain a judicial determination of
 whether the carrier’s lien should be reduced to account for the employer’s


                                        3
                     TWIN CITY FIRE INS. CO. v. LEIJA
                          Opinion of the Court

 comparative fault.” Twin City Fire Ins. Co. v. Leija, 243 Ariz. 175, 177 ¶ 1
 (App. 2017). The court reasoned that “the fact that the Leijas settled their
 [third-party] claims rather than try them to a verdict does not preclude
 equitable apportionment under Aitken.” Id. at 181 ¶ 20. The court observed
 that “the settlement with [the City of] Glendale did not touch multiple
 layers of coverage and the record contains significant evidence of employer
 fault.” Id. ¶ 21. Therefore, the court stated, Twin City’s lien should be
 equitably apportioned because “estimations of [Victor’s] employer’s
 comparative fault undoubtedly affected the amount the Leijas were able to
 recover in settlement.” Id. ¶ 19. The court of appeals remanded the case to
 the superior court to set “a trial to equitably apportion Twin City’s lien”
 and directed that court to “address the specifics of such a proceeding,”
 including “whether damages and the employer’s comparative fault should
 be determined by the court or by a jury.” Id. ¶ 23.

¶8             Finally, because the court of appeals “ruled that the Leijas
 have a right to a trial by which Twin City’s lien may be apportioned,” it
 found “no need” to reconsider the principle that a workers’ compensation
 carrier does not breach its duty of good faith and fair dealing when, “absent
 a fair adjudication of damages and employer comparative fault,” it refuses
 to compromise or reduce its lien under § 23-1023(D). Id. at 182 ¶ 28.

¶9             We granted review because this case presents recurring issues
 of statewide importance. We have jurisdiction under article 6, section 5(3)
 of the Arizona Constitution and A.R.S. § 12-120.24.

                                       II.

¶10           We review legal questions, including statutory issues, de
 novo. In re Marriage of Friedman & Roels, 244 Ariz. 111, 114 ¶ 11 (2018).

¶11             The Arizona Constitution requires the legislature to “enact a
 workmen’s compensation law” that generally permits a worker to collect
 compensation when he or she is injured in the course of employment. Ariz.
 Const. art. 18, § 8. The legislature implemented this constitutional mandate
 shortly after statehood. Grammatico v. Indus. Comm’n, 211 Ariz. 67, 70 ¶ 13
 (2005). The Act, now codified in A.R.S. §§ 23-901 to -1091, generally
 provides that every employee is “entitled to receive and shall be paid . . .
 compensation” for the loss sustained due to the employee’s injury when the
 employee’s accidental injury or death occurred in the course of the
 employee’s employment. § 23-1021.

¶12             An employer who complies with the Act is generally immune
 from tort liability for an employee’s accidental injury or death that occurred


                                        4
                      TWIN CITY FIRE INS. CO. v. LEIJA
                           Opinion of the Court

 in the course of the employee’s employment. § 23-906(A); see also
 § 23-1022(A) (stating that an employee’s “right to recover compensation”
 under the Act is generally “the exclusive remedy against the employer or
 any co-employee acting in the scope of his employment”); § 23-1024(A)
 (stating that “[a]n employee . . . 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”).

¶13               Although an employer is generally immune from tort liability
 when an employee accepts compensation under the Act, the employee may
 bring a tort claim against a third person when the employee was “injured
 or killed . . . by the negligence or wrong” of the third person. § 23-1023(A).
 When an employee brings such a third-party claim, the Act vests the
 employer’s insurance carrier with a lien on any recovery (less reasonable
 and necessary expenses) that the employee collects from the third-party to
 the extent of the compensation benefits paid by the insurance carrier.
 § 23-1023(D); see also Dietz v. Gen. Elec. Co., 169 Ariz. 505, 511 (1991) (noting
 that “the lien provisions in favor of immune employers have been part of
 the workers’ compensation system since 1925”). This case concerns the
 application of this lien on an employee/claimant’s settlement proceeds
 recovered from third-party defendants.

¶14             After the legislature abolished joint and several liability by
 amending the Uniform Contribution Among Tortfeasors Act in 1987, we
 ruled in Dietz that a third-party defendant may name a
 plaintiff/employee’s employer as a non-party at fault under A.R.S.
 § 12-2506. 169 Ariz. at 510–11; see also § 12-2506(B) (stating that “[i]n
 assessing percentages of fault the trier of fact shall consider the fault of all
 persons who contributed to the alleged injury . . . regardless of whether the
 person was, or could have been, named as a party to the suit”); Ariz. R. Civ.
 P. 26(b)(5) (requiring notice for claims of non-party fault).

¶15             Following Dietz, this Court recognized in Aitken that
 permitting a third-party defendant to name a plaintiff/employee’s
 employer as a non-party at fault creates an inequity when a trier of fact
 allocates some percentage of fault to the non-party employer. 183 Ariz. at
 390–91. That is so, we reasoned, because such an allocation forces the
 plaintiff “to endure the combined effect of first having his or her award
 reduced by reason of the employer’s fault, and thereafter having to satisfy
 a lien against this diminished recovery in favor of the employer and its
 carrier to the full extent of compensation benefits provided.” Id. at 392.




                                         5
                      TWIN CITY FIRE INS. CO. v. LEIJA
                           Opinion of the Court

¶16            To cure this inequity, Aitken held that “a carrier may assert a
 lien on a third party recovery only to the extent that the compensation
 benefits paid exceed the employer’s proportionate share of the total
 damages fixed by verdict in the [underlying] action.” Id.; see also Grijalva v.
 Ariz. State Comp. Fund, 185 Ariz. 74, 76 (1996) (stating that Aitken’s equitable
 apportionment rule applied “following a contested third party trial that
 necessitated a determination of liability and damages, including the
 apportionment of fault among parties and nonparties as required by law”);
 Weber v. Tucson Elec. Power Co., 202 Ariz. 504, 504–05 ¶ 1, 506–07 ¶ 10
 (App. 2002) (concluding that equitable apportionment applied when a
 plaintiff/employee brought a tort claim against two third-party
 defendants, settled with one of them, and prevailed against the other
 defendant at trial, in which the jury assigned fault to the non-party
 employer, because the claimant’s damages were in fact reduced due to the
 non-party employer’s fault and because the trial was not “a sham or
 collusive proceeding that resulted in extraneous and irrelevant findings on
 damages or the apportionment of fault”).

¶17             Neither party nor any amicus has urged us to overrule Aitken
 or otherwise revisit its equitable apportionment rule as applied to contested
 cases that are tried to a verdict. Notably, in Aitken we explicitly invited the
 legislature to amend § 23-1023(D) if it disagreed with our interpretation of
 it. 183 Ariz. at 393. Despite that invitation, the legislature has not
 statutorily abolished or modified the equitable apportionment rule that
 Aitken embraced, even though the legislature amended an unrelated part of
 § 23-1023(D) in 2012. 2012 Ariz. Sess. Laws, ch. 240, § 1 (2d Reg. Sess.).
 Therefore, we assume, without deciding, Aitken’s continued validity and
 adherence to legislative intent in applying the lien provision. 1


 1  In his concurring opinion, Justice Bolick faults the Court in Aitken for
 unconstitutionally usurping legislative powers it does not have and
 improperly rewriting the law. Infra ¶¶ 31, 38 (Bolick, J., concurring in the
 result). Professing to “police our constitutional boundaries,” he therefore
 urges us to “overturn Aitken and return this issue to the legislature, where
 it belongs.” Infra ¶ 46. Its nautical humor aside, infra ¶¶ 32–35, the
 concurrence disregards that courts generally refrain from addressing
 questions the parties did not raise — especially when doing so would,
 assuming the concurrence is correct, require us to sua sponte overrule our
 prior case law. See Dolan v. United States, 560 U.S. 605, 619 (2010) (refusing
 to depart from the Court’s precedents “when this case does not require us
 to do so” and when “the issue has not been adequately briefed” and lower
 courts “had no opportunity to consider the argument”); State ex rel. Brnovich


                                        6
                      TWIN CITY FIRE INS. CO. v. LEIJA
                           Opinion of the Court

¶18             In contrast to the contested third-party action that was tried
 to verdict in Aitken, Grijalva involved a plaintiff/employee’s “pretrial
 attempt to settle a third party claim without approval of the compensation
 carrier,” followed by an “apportionment of fault apparently carried out for
 the sole purpose of impacting the carrier’s lien rights.” 185 Ariz. at 76. This
 Court viewed that as an “artful contrivance[]” that “Aitken neither requires
 nor authorizes.” Id. at 76–77. Indeed, we stated that if a plaintiff/employee
 “is entitled to receive or has received settlement proceeds” from a
 third-party defendant, then the insurance carrier “has a lien and/or a future
 credit against those proceeds.” Id. at 77; see also Stout v. State Comp. Fund
 (Stout I), 197 Ariz. 238, 240 ¶ 7, 242 ¶ 15 (App. 2000) (rejecting
 plaintiff/employee’s argument that “the rule of equitable apportionment
 from Aitken should apply to cases that are resolved by settlement” and
 concluding that “equitable apportionment does not apply when a
 third-party action is settled at policy limits and there is no evidence that
 employer fault affected the offer to settle at policy limits”).

¶19             Twin City argues that claimants who settle all their
 third-party claims “should not be granted post-settlement trials to
 determine the percentage of employer fault,” and insurance carriers should
 not be forced “to reduce their liens accordingly.” It reasons that Aitken and
 Grijalva impose an equitable apportionment rule only when “two
 conditions are met: (1) the employer’s share of fault was determined by
 verdict and applied to reduce the claimant’s damages; and (2) the verdict
 was obtained in the third-party action.” According to Twin City, “[w]ithout
 the statutorily required reduction of a claimant’s recovery based on the
 percentage of employer fault apportioned by a jury in the third-party
 action, there is simply no Aitken-type of inequity to ameliorate.”

¶20             The Leijas, on the other hand, argue that “[t]here is no
 justification for failing to offset the lien amount for an employer’s fault
 simply because the parties have, with the [insurance] carrier’s consent,
 settled before trial.” Under the Leijas’ view, a claimant should not “be


 v. City of Tucson, 242 Ariz. 588, 599 ¶ 45 (2017) (stating that “[w]e generally
 do not reach out . . . to upset established precedent when no party has raised
 or argued such issues”); State v. Valenzuela, 239 Ariz. 299, 306 ¶ 21 (2016)
 (declining to address issues “[t]he parties did not brief”); cf. Kimble v. Marvel
 Entm’t, LLC, 135 S. Ct. 2401, 2409 (2015) (stating that “stare decisis carries
 enhanced force when a decision . . . interprets a statute,” even when the
 decision relied not on statutory text alone but on “the policies and purposes
 animating the law,” because the legislature may alter what the Court does).


                                        7
                      TWIN CITY FIRE INS. CO. v. LEIJA
                           Opinion of the Court

 penalized twice for the employer’s fault, first by having to compromise
 during settlement negotiations, and second, by having a lien placed on an
 already reduced settlement for the full amount of compensation benefits,
 without any consideration of employer fault.”

¶21             We agree with Twin City. Neither Aitken nor Grijalva
 authorizes the post-settlement trial process proposed by the court of
 appeals. Aitken expressly limits application of the equitable apportionment
 rule to situations where a claimant’s total damages are “fixed by verdict” in
 the third-party action. 183 Ariz. at 392. Grijalva likewise expressly
 recognized and applied that limitation. 185 Ariz. at 76–77. In the settlement
 context, a claimant’s proceeds are not “fixed by verdict,” Aitken, 183 Ariz.
 at 392, and a settlement between a claimant and a third-party defendant
 does not “necessitate[] a determination of liability and damages, including
 the apportionment of fault among parties and nonparties,” Grijalva, 185
 Ariz. at 76. Simply stated, neither the applicable statutes nor our prior
 decisions authorize a post-settlement trial process.

¶22            In addition, there are good reasons to limit application of the
 equitable apportionment rule to only those cases that are tried to verdict.
 The inequity we recognized in Aitken will exist in every such case when the
 jury allocates some percentage of fault to a non-party employer. But that
 inequity will not exist in every case where a claimant settles with a
 third-party defendant. It is purely speculative to assume that, based solely
 on a claimant and a third-party defendant settling at some amount below
 the defendant’s insurance policy limits, the claimant’s recovery was
 reduced by the non-party employer’s alleged fault. In short, a third-party
 defendant’s insurance policy limits are not a proxy for employer fault.

¶23             Many factors may influence a plaintiff/employee’s decision
 to settle with a third-party defendant and the settlement amount. Indeed,
 a claimant may settle below a third-party defendant’s insurance policy
 limits for many reasons that have nothing to do with employer fault. For
 example, the claimant may not have suffered a severe injury, might have
 difficulty proving fault or causation on the part of the third-party
 defendant, or might be risk-averse and would prefer a potentially smaller
 recovery to avoid the risk of trial, including the risk that the jury will
 apportion a substantial amount of fault to the claimant or the claimant’s
 employer. Cf. id. at 77 (observing that “it is uncertainty about the result that
 most often leads to settlement”). There is no basis to assume that in every
 settlement between a claimant and a third-party defendant, the claimant
 suffered the inequity that Aitken sought to cure.



                                        8
                     TWIN CITY FIRE INS. CO. v. LEIJA
                          Opinion of the Court

¶24            Notably, an insurance carrier could also be concerned with
 the risk that a jury will apportion a substantial amount of fault to the
 claimant or the claimant’s employer because that could adversely affect the
 carrier by reducing the claimant’s recovery and, consequently, the value of
 the carrier’s lien. Therefore, a carrier may understandably wish to
 incentivize the claimant to settle by voluntarily reducing its lien in
 exchange for a settlement. Cf. Boy v. Fremont Indem. Co., 154 Ariz. 334, 337
 (App. 1987) (“By compromising its lien to help achieve settlement, the
 insurer may guarantee at least some recovery for itself.”).

¶25            Moreover, the post-settlement trial process proposed by the
 court of appeals would itself create perverse incentives and inequities.
 Generally, a claimant in a third-party action “has every incentive to
 maximize the percentage of fault allocated to the third-party defendant”
 because the claimant wants to receive the highest amount of damages he or
 she can obtain. Stout v. State Comp. Fund (Stout II), 202 Ariz. 300, 303 ¶ 11
 (App. 2002). Consequently, the claimant “necessarily has every incentive
 to minimize the percentage of fault allocated to the employer” because “any
 fault assigned to the employer will typically reduce that assigned to the
 third-party defendant.” Id.

¶26             But a post-settlement trial process would transform this
 incentive structure. Under the court of appeals’ construct, a claimant would
 try to maximize a third-party defendant’s fault (and therefore to minimize
 the fault attributable to the claimant’s employer) so as to maximize the
 amount of the claimant’s settlement. Then, in the post-settlement trial with
 the insurance carrier, the claimant would be incentivized to take the
 diametrically opposite position by maximizing the fault attributable to the
 employer (and therefore minimizing the fault accruing to the settling
 third-party defendant) solely to reduce or extinguish the insurance carrier’s
 lien on the settlement proceeds.

¶27             Even assuming that an insurance carrier’s refusal to waive or
 reduce its lien might be inequitable in some circumstances, it is difficult to
 understand how the possible gamesmanship created by a post-settlement
 trial process is more equitable than permitting an insurance carrier to
 exercise its statutorily authorized lien on a claimant’s settlement proceeds
 to the extent of compensation benefits paid when, for the reasons
 previously discussed, there may be no inequity at all. Accordingly, we hold
 that a claimant who settles all his or her third-party claims may not obtain
 a post-settlement trial to determine the percentage of employer fault solely
 to reduce or extinguish the insurance carrier’s lien.



                                       9
                     TWIN CITY FIRE INS. CO. v. LEIJA
                          Opinion of the Court

¶28            In so holding, we recognize that even in a settlement context,
 an insurance carrier has an obligation to act in good faith toward a claimant
 by giving equal consideration to the claimant’s interests. See Stout I, 197
 Ariz. at 242 ¶¶ 19–22; cf. Boy, 154 Ariz. at 335, 337 (concluding pre-Aitken,
 that workers’ compensation insurer “did not breach its duty to act in good
 faith when it refused to compromise its lien against any [third-party]
 recovery,” and noting that “[t]he duty of good faith . . . merely requires the
 insurer to give equal consideration to the interests of both parties”). Under
 these circumstances, as amicus CopperPoint Insurance Company
 acknowledged at oral argument, good faith might entail a workers’
 compensation insurer considering and reasonably acting on a claimant’s
 request to reduce the lien on third-party settlement proceeds, particularly
 when evidence of employer fault is clear, undisputed, and substantial.

¶29             The record in this case includes some evidence of employer
 fault. Perhaps for that reason, Twin City offered to reduce its lien by five
 percent if the Leijas settled with the third-party defendants. In view of that
 offer and the Leijas’ failure to preserve or argue in this Court any issue
 relating to their bad faith claim, we have no basis for overturning the
 superior court’s grant of summary judgment in favor of Twin City on that
 claim. See Stout I, 197 Ariz. at 243 ¶ 22 (stating that because “a carrier’s
 statutory lien has strong protection under the law,” “the carrier may
 reasonably protect its right to recover the lien amount” and is “not required
 to completely disregard its own interests”).

                                      III.

¶30            For the reasons stated above, we affirm the superior court’s
 judgment in favor of Twin City as it relates to the enforcement of Twin
 City’s lien and the Leijas’ bad faith claim. We vacate paragraphs 9 through
 28 of the court of appeals’ opinion as well as paragraphs 1 and 33 to the
 extent they are inconsistent with this opinion. We affirm the balance of the
 court of appeals’ opinion.




                                       10
                     TWIN CITY FIRE INS. CO. v. LEIJA
                   JUSTICE BOLICK, Concurring in the Result

 JUSTICE BOLICK, concurring in the result.

¶31            I join my colleagues’ resolution of this difficult case.
 However, its difficulty is in large part the byproduct of the decision
 twenty-three years ago in Aitken that the Court should rewrite rather than
 apply the statutes governing the issues before us. The Court today chooses
 not to address whether we exceeded our constitutional powers in doing so,
 because the parties have not asked us to overrule Aitken. With respect, I
 disagree.

¶32            The notion that we can ignore the constitutional contours of
 our authority if the parties do not question it brings to mind a story told by
 the famed journalist Ambrose Bierce more than a century ago. The story
 essentially goes that a Supreme Court justice was sitting by a river when a
 traveler approached and asked, “I wish to cross. Will it be lawful to use this
 boat?”

¶33            “It will,” the justice replied; “it is my boat.”

¶34           The traveler thanked him and rowed away. But quickly the
 boat took on water, forcing the traveler to abandon the journey. An
 indignant spectator asked the justice, “Why did you not tell him that your
 boat had a hole in it?”

¶35            “The matter of the boat’s condition,” the jurist replied, “was
 not brought before me.” 2 See Ambrose Bierce, A Defective Petition, in 6 The
 Collected Works of Ambrose Bierce 294 (1911).

¶36            The question that supposedly is not before us is the implied
 premise that this Court’s decision in Aitken, which we persist in applying
 today, was a proper exercise of our constitutionally limited powers. Supra
 ¶ 17. In my view, that question, regardless of whether the parties raise it,
 is always properly before us.

¶37             In our constitutional system, which distributes separate and
 defined powers among the branches of government, no more fundamental
 tenet exists than that the judiciary must never exercise legislative powers.
 In The Federalist, Alexander Hamilton remarked that “liberty can have
 nothing to fear from the judiciary alone,” but warned that we “have every
 thing to fear” from a union of judicial and legislative powers. The Federalist
 No. 78, at 298 (The Legal Classics Library ed., 1983). Following nearly a

 2I am indebted to Chief Justice Stephen Markman of the Michigan Supreme
 Court for a version of this story.


                                        11
                     TWIN CITY FIRE INS. CO. v. LEIJA
                   JUSTICE BOLICK, Concurring in the Result

 century and a quarter of experience with the national constitution, the
 Arizona Constitution’s framers considered separation of powers so
 important that they enshrined it in its own article, decreeing that the three
 branches “shall be separate and distinct, and no one . . . shall exercise the
 powers properly belonging to either of the others.” Ariz. Const. art. 3.
 Specifically, the judicial power “does not license judges to craft new laws
 to govern future conduct, but only to ‘discer[n] the course prescribed by
 law’ as it currently exists and to ‘follow it’ in resolving disputes between
 people over past events.” Sessions v. Dimaya, 138 S. Ct. 1204, 1227 (2018)
 (Gorsuch, J., concurring) (quoting Osborne v. Bank of U.S., 22 U.S. 738, 866
 (1824)).

¶38            The Court transgressed that constitutional boundary, for
 beneficent purposes yet blatantly and overtly, in Aitken. 183 Ariz. 387. The
 case involved the interplay between the lien statute, § 23-1023(D), and the
 recent legislative abolition of joint and several liability, § 12-2506. The
 plaintiff argued that the combined effect of the two statutes violated the
 constitutional guarantee of a just and humane worker’s compensation law,
 Ariz. Const. art. 18, § 8, and the prohibition against laws limiting the
 amount of damages for death or injury, id. art. 2, § 31. Aitken, 183 Ariz.
 at 389. As the Court explained, “a reasonable balance between the rights of
 employer and employee, consistent with the underlying goals of the
 compensation scheme, has existed for more than twenty years. That
 balance appears to have been skewed by the almost complete abolition of
 joint and several liability.” Id. at 392.

¶39             When a statute is reasonably susceptible of two
 interpretations, a court may and should construe it in a plausible manner
 that avoids holding it unconstitutional. State v. Burbey, 243 Ariz. 145, 149
 ¶ 17 (2017) (“When we can reasonably interpret a statute in a way that
 preserves its constitutionality, we pursue that course.”); see also Antonin
 Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 66–68
 (2012). But Aitken made no pretense that the statute was ambiguous,
 instead objecting to the statute as written. 183 Ariz. at 390. Indeed, it
 examined cases from other states applying similar statutory language
 literally, characterizing the results in those cases as inequitable. Id.
 at 390–91.

¶40             Instead of construing and applying the statutory language,
 the Court wrote into the law “a rule of equitable apportionment,” thus
 “making it function as closely as possible to the way in which it has always
 operated and in accord with what appears to have been the intent of the
 legislature at the time of its passage.” Id. at 393. This it did because “[w]e


                                       12
                      TWIN CITY FIRE INS. CO. v. LEIJA
                    JUSTICE BOLICK, Concurring in the Result

 know exactly how [the lien statute] is supposed to operate and what it was
 designed to accomplish because we have been working with and applying
 it since its enactment in the mid-1960s.” Id. at 391. The Court reasoned that
 when the legislature enacted § 12-2506, “it did not anticipate the manner in
 which compensation liens would operate outside the universe of joint and
 several liability.” Id. Given that oversight, “we cannot agree with the
 suggestion that our courts are powerless to compensate for the clearly
 unintended consequences of these recent developments in the law . . . .
 Courts should not limit themselves to the rigid construction or application
 of a statute when significant changes in circumstance since its enactment
 produce results plainly contrary to legislative intent.” Id. Thus, “[w]e now
 hold that a carrier may assert a lien on a third party recovery only to the
 extent that the compensation benefits paid exceed the employer’s
 proportionate share of the total damages fixed by verdict in this action.” Id.
 at 392.

¶41             The Court may well have been correct that the legislature
 overlooked the impact the abolition of joint and several liability might have
 on the lien provisions. And unquestionably, the result was harsh. Neither
 of those facts, however, licenses courts to rewrite the law.

¶42             Aitken proceeded from the fundamentally flawed premise
 that “[w]e interpret and apply laws so as to further ‘the general legislative
 goals that can be adduced from the body of legislation in question.’” Id.
 (quoting Dietz, 169 Ariz. at 510). What a wide-ranging commission that
 would be, “adducing” not a statute’s text, not even the particular statute’s
 intent, but the “general legislative goals” of an entire “body of legislation.”
 Regardless of a court’s beneficent motivation, such a self-anointed mandate
 bestows vast legislative powers upon a branch of government intended to
 have none.

¶43            We should repudiate the premise and the precedent, both of
 which are antithetical to our constitutional separation of powers. I certainly
 cannot say it better than our own abundant opinions and other authorities.
 “Our task in statutory construction is to effectuate the text if it is clear and
 unambiguous.” BSI Holdings, LLC v. Ariz. Dep’t of Transp., 244 Ariz. 17, 19
 ¶ 9 (2018). “It is a universal rule that courts will not enlarge, stretch,
 expand, or extend a statute to matters not falling within its express
 provisions.” State ex rel. Morrison v. Anway, 87 Ariz. 206, 209 (1960). “To
 depart from the meaning expressed by the words is to alter the statute, to
 legislate and not to interpret. If the true construction will be followed by
 harsh consequences, it cannot influence the courts in administering the law.
 The responsibility for the justice or wisdom of legislation rests with the


                                        13
                     TWIN CITY FIRE INS. CO. v. LEIJA
                   JUSTICE BOLICK, Concurring in the Result

 legislature, and it is the province of the courts to construe, not to make, the
 laws.” Barlow v. Jones, 37 Ariz. 396, 399–400 (1930) (quoting 25 Ruling Case
 Law 963, § 218); accord State ex rel. Polk v. Campbell, 239 Ariz. 405, 408 ¶ 12
 (2016) (“We decline to effectively, if not actually, rewrite [the statute], as
 that is the legislature’s prerogative, not ours.”). “The question . . . is not
 what Congress ‘would have wanted,’ but what Congress enacted . . . .”
 Argentina v. Weltover, Inc., 504 U.S. 607, 618 (1992). Thus, “[t]he absent
 provision cannot be supplied by the courts. What the legislature ‘would
 have wanted,’ it did not provide, and that is the end of the matter.” Scalia
 & Gardner, supra ¶ 39, at 94. 3

¶44              In forbidding us legislative powers, the framers were
 prescient. The precept that courts can divine and effectuate law from
 intentions unmanifested in statute “is anomalous and philosophically
 indefensible as violating the separation of powers, and it produces
 considerable judicial mischief.” Id. at 349–50. Not only are judges neither
 empowered nor equipped to perform legislative functions, but courtrooms
 are ill-suited to a legislative forum. Apart from sweeping legislative
 pronouncements in cases like Aitken, courts render decisions based not on
 broad social considerations but on the specific facts of the cases and parties
 before them. See Sessions, 138 S. Ct. at 1228 (Gorsuch, J., concurring) (“Nor
 do judges . . . act in the open and accountable forum of a legislature, but in
 the comparatively obscure confines of cases and controversies.”). To
 determine how the judicial rule applies to different situations requires
 parties to either speculate or file more cases — and we have had quite a
 number, including Grijalva, 185 Ariz. 74, Stout I, 197 Ariz. 238, and Stout II,
 202 Ariz. 300. Because of the ad hoc nature of litigation, once we enter the
 lawmaking arena, we must necessarily construct the law as we go along.
 Tellingly, the portions of the Court’s opinion that apply the law to the facts,
 supra ¶¶ 19–29, reference only court decisions and not statutes, for perfectly
 good reason: there is no statute to apply. So that those who consult the
 statutes in this area will be misinformed, because the applicable rule exists
 only in an evolving series of court decisions.

¶45             I join the result today because my able colleagues have
 conscientiously navigated our prior decisions in a way that does not further
 extend the gulf between the statutes and our jurisprudence. However, the
 fact that our able colleagues on the court of appeals conscientiously reached

 3 In this instance, had the Court struck down the statutory scheme as
 unconstitutional in Aitken, it would have comported with separation of
 powers by preserving the legislature’s role in determining whether and
 how to replace it.


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                      TWIN CITY FIRE INS. CO. v. LEIJA
                    JUSTICE BOLICK, Concurring in the Result

  a different decision highlights how difficult it is to predict from our prior
  opinions what we will decide next.

¶46            I join only the result, however, because we would do better to
 overturn Aitken and return this issue to the legislature, where it belongs. I
 recognize that the parties have not asked us to overrule Aitken, nor would I
 expect them to do so given that such a request is usually unnecessary to the
 outcome and might imply that existing law is not on that party’s side.
 However, it is up to us to police our constitutional boundaries, and, by
 failing to overrule Aitken, we continue to exercise legislative powers we do
 not possess.

¶47             I also recognize that doing so could force us to confront two
 pillars of the stare decisis doctrine: legislative acquiescence and the reliance
 interest in our existing caselaw. In most cases, either basis would militate
 strongly in favor of maintaining precedent interpreting statutes, but for the
 following reasons they should not prevail here.

¶48             The Court observes that Aitken “explicitly invited” the
 legislature to change the statutes if it disagreed with the decision but it has
 not done so. Supra ¶ 17. The legislature’s failure to RSVP to a judicial
 invitation cannot insulate a decision from reconsideration. As the United
 States Supreme Court has admonished, “the doctrine of legislative
 acquiescence is as best only an auxiliary tool for use in interpreting
 ambiguous statutory provisions.” Jones v. Liberty Glass Co., 332 U.S. 524,
 533–34 (1947). That limited use makes sense: if the court is choosing
 between two equally plausible statutory interpretations and the legislature
 does not disturb its holding, we generally should not disturb it either.

¶49             In Aitken, of course, there was nothing ambiguous in the
 statute, thus we should not impute to the legislature an intent to embrace
 the de facto statute the Court created. As we recognized recently, “The
 doctrine of legislative acquiescence is limited to instances in which the
 legislature has considered and declined to reject the relevant judicial
 interpretation.” Delgado v. Manor Care of Tucson, 242 Ariz. 309, 314 ¶ 24
 (2017) (internal quotation marks omitted) (quoting Sw. Paint & Varnish Co.
 v. Ariz. Dep’t of Envtl. Quality, 194 Ariz 22, 25–26 ¶ 21 (1999)). Here, the
 Court notes that the legislature subsequently changed an unrelated part of
 the statute. Supra ¶ 17. However, “we do not presume legislative intent
 when a statute is amended in ways unrelated to the judicial construction at
 issue absent some affirmative indication the legislature considered and
 approved our construction.” Id. (internal quotation marks omitted)
 (quoting Lowing v. Allstate Ins. Co., 176 Ariz. 101, 106 (1993)); accord Sw. Paint


                                         15
                      TWIN CITY FIRE INS. CO. v. LEIJA
                    JUSTICE BOLICK, Concurring in the Result

  & Varnish Co., 194 Ariz. at 26 ¶ 21 (“We have squarely rejected the idea that
  silence is an expression of legislative intent.”). The Supreme Court applies
  the doctrine only when there is “overwhelming evidence,” Solid Waste
  Agency of N. Cook Cty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 169 n.5
  (2001), that Congress explicitly considered the “precise issue” presented to
  the court, Bob Jones Univ. v. United States, 461 U.S. 574, 600 (1983); see also
  Morales-Izquierdo v. Gonzales, 486 F.3d 484, 493 (9th Cir. 2007). Mere inaction
  and passage of time are insufficient to invoke the doctrine.

¶50            However, even if the legislature had explicitly considered the
 Court’s handiwork and voted unanimously to present us with an award for
 work well done, that would still be insufficient to sustain the precedent in
 this case. The legislature cannot, by either acquiescence or abdication,
 confer upon us legislative powers. That matter was already decided by our
 constitution. Ariz. Const. art. 3; see also Sessions, 128 S. Ct. at 1227 (Gorsuch,
 J., concurring).

¶51              Finally, it is usually inappropriate to upset precedent on
 which parties have come to rely. Here, I would deal with that issue by
 making our ruling prospective only, so that parties in litigation before the
 date of our opinion could still rely on the Aitken framework, amorphous as
 it is. Cf. Turken v. Gordon, 223 Ariz. 342, 351–52 ¶¶ 44–49 (2010) (prospective
 application is appropriate when a ruling overturns settled precedent,
 establishes a new legal principle, or would produce inequitable results if
 retroactively applied).

¶52           The legislature, not the courts, should resolve the policy
 conundrum that was before us in Aitken and has reappeared repeatedly in
 different permutations since then. But until we correct the error, parties
 aggrieved by uncertainty in the law will continue to bring those issues to
 us, rather than to the branch of government that is constitutionally
 empowered to resolve them.




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