                                IN THE
             ARIZONA COURT OF APPEALS
                             DIVISION ONE


  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.

                          No. 1 CA-CV 15-0800
                             FILED 12-30-16


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

                              AFFIRMED


                               COUNSEL

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
                          MCKEE v. STATE, et al.
                           Opinion of the Court



                                 OPINION

Presiding Judge Andrew W. Gould delivered the opinion of the Court, in
which Judge Peter B. Swann and Judge Patricia A. Orozco joined.


G O U L D, 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.




1      We cite to the current version of the statute absent material revisions.



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                           MCKEE v. STATE, et al.
                            Opinion of the Court

¶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

2    Appellant’s case was consolidated with two other similar cases;
however, all other plaintiffs settled their claims against the State.


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                           MCKEE v. STATE, et al.
                            Opinion of the Court

terms of the wrongful death statute”). Thus, a claim filed by a plaintiff in a
wrongful death case is subject to the same defenses as could have been
asserted against the decedent if he had lived. Diaz, 190 Ariz. at 549.

¶8            In Arizona, workers’ compensation is the exclusive remedy
for compensation against an employer for the work-related injury or death
of an employee. A.R.S. § 23-1022(A). An employee can elect to maintain an
action at law for damages in lieu of receiving workers’ compensation only
where an employer’s wilful misconduct caused the employee’s injury or
death. Id. An employee of a public agency working under the jurisdiction
and control of another public agency pursuant to an IGA is considered an
employee of both agencies for purposes of the exclusive remedy provision
of workers’ compensation. A.R.S. § 23-1022(D); Callan v. Bernini, 213 Ariz.
257, 260, ¶ 12 (App. 2006) (“[A]n employee of a party to an IGA who is
injured in the course of employment may not seek damages in a common
law tort action from another party to the IGA.”).

       B.     Compliance with A.R.S. § 11-952

¶9             Appellant argues the IGA between the City of Prescott and
the State Forestry Division was not effective because it was not approved
in compliance with A.R.S. § 11-952(F). Appellant argues that McKee
remained an employee of the City of Prescott, and was never an employee
of the State, because the resolution purporting to approve the IGA did not
comply with A.R.S. § 11-952(F). This statute provides:

       [a]ppropriate action by ordinance or resolution . . . approving
       or extending the duration of the agreement or contract shall
       be necessary before any such agreement, contract or extension
       may be filed or become effective.

¶10            Appellant interprets A.R.S. § 11-952(F) as requiring an agency
to specifically approve the duration of an IGA. Here, Appellant claims the
IGA is ineffective because the City’s resolution does not expressly approve
the duration of the IGA. As a result, she argues McKee never became an
employee of the State.

¶11            Our goal in interpreting a statute is to “ascertain the
legislature’s intent.” Lyons v. State Bd. of Equalization, 209 Ariz. 497, 499, ¶ 8
(App. 2005). To do so “we look first to the [statute’s] language and will
ascribe plain meaning to its terms unless the legislature assigned a special
meaning to one or more terms.” Id. (internal citations omitted). “‘We
construe the statute as a whole, and consider its context[.]’” People’s Choice
TV Corp., Inc. v. City of Tucson, 202 Ariz. 401, 403, ¶ 7 (2002) (quoting State ex


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                           MCKEE v. STATE, et al.
                            Opinion of the Court

rel. Ariz. Dep’t of Revenue v. Phoenix Lodge No. 708, Loyal Order of Moose, Inc.,
187 Ariz. 242, 247 (App. 1996)). “[W]e will not interpret a statute in such a
way as to produce ‘absurd results,’ or ‘render [any word, phrase, clause, or
sentence] superfluous, void, insignificant, redundant or contradictory.’”
TDB Tucson Group, L.L.C. v. City of Tucson, 228 Ariz. 120, 123, ¶ 9 (App. 2011)
(quoting Patterson v. Maricopa Cty. Sheriff's Office, 177 Ariz. 153, 156 (App.
1993)).

¶12           We find no textual basis for Appellant’s reading of A.R.S.
§ 11-952(F). Section 11-952 addresses agreements or contracts that two or
more public agencies can enter for services or for joint or cooperative action.
A.R.S. § 11-952(A). Under canons of statutory construction, we read the
“or” separating “approving” and “extending the duration” to be
disjunctive. State v. Piotrowski, 233 Ariz. 595, 598, ¶ 16 (App. 2014). Thus,
we read the language of subsection F as simply requiring appropriate
agency action approving (1) the agreement, or (2) the duration of any
extension of the agreement.

¶13           This construction is also consistent with the context of the
statute. In addition to duration, an IGA must specify a number of matters,
including the purpose, financing/budget, and methods to be employed in
accomplishing its purpose. A.R.S. § 11-952(B)(1)-(4). However, absent from
subsection F is any language requiring that a public body expressly and
separately approve any of these requirements. Additionally, A.R.S. § 11-
952(G) provides that an IGA may be extended as many times as the public
agencies wish but the “extension may not exceed the duration of the
previous agreement.” Reading section F and G together, the initial IGA
must be approved by a public agency, and if it has a finite duration, and the
agencies wish to extend the agreement beyond its initial duration, any
extension must be approved in the same manner as the initial IGA.

¶14           Here, the IGA between Prescott and the State Forestry
Division directs that it “will continue in force from year to year unless
terminated by either party.” The resolution passed by the City of Prescott
approves all the terms of the IGA, including its duration. Because the IGA
has a perpetual duration, there is no need for the City to pass a resolution
“extending the duration of the agreement.” A.R.S. § 11-952(F).

¶15           Accordingly, the resolution approving the IGA complies with
A.R.S. § 11-952. The IGA is effective. Thus, McKee was an employee of the
State pursuant to the IGA at the time of his death.




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                          MCKEE v. STATE, et al.
                           Opinion of the Court

       C.     Wilful Misconduct

¶16           Appellant argues the State’s actions rose to the level of wilful
misconduct, and therefore her claim is not subject to the exclusive remedy
provisions of workers’ compensation pursuant to A.R.S. § 23-1022(A). See
Ariz. Const., art. XVIII, § 8.

¶17          Wilful misconduct is defined as “an act done knowingly and
purposely with the direct object of injuring another.” A.R.S. § 23-1022(B).
The courts have defined four elements that must be present to maintain a
wilful misconduct action:

       (1) the employer’s wilful misconduct must have been the
       cause of the employee’s injury,

       (2) the wilful misconduct must have been “an act done . . .
       knowingly and purposely with the direct object of injuring
       another,”

       (3) the act that caused the injury must have been the personal
       act of the employer, and

       (4) the act must have reflected “a wilful disregard of the life,
       limb or bodily safety of employees.”

Gamez v. Brush Wellman, Inc., 201 Ariz. 266, 269, ¶ 6 (App. 2001) (quoting
Ariz. Const. art. XVIII, § 8).

¶18           Thus, wilful misconduct requires proof of deliberate,
intentional misconduct; “[e]ven gross negligence or wantonness amounting
to gross negligence does not constitute a ‘willful act’ under this definition;
the negligence or wantonness must be accompanied by the intent to inflict
injury upon another.” Diaz, 190 Ariz. at 551 (citing Serna v. Statewide
Contractors, Inc., 6 Ariz. App. 12, 15 (1967). There must be “deliberate
intention as distinguished from some kind of intention presumed from
gross negligence.” Serna, 6 Ariz. App. at 16.

¶19          Even assuming all facts alleged in Appellant’s complaint are
true, Appellant fails to allege defendants intended to cause the death of
McKee. Republic Nat. Bank of New York v. Pima Cty., 200 Ariz. 199, 201, ¶ 2
(App. 2001). The complaint alleges a series of negligent and grossly
negligent acts that, if proven, culminated in the deaths of the Granite
Mountain Hotshot crew; however, it does not allege these acts were done
knowingly and purposely with the direct object of injuring the firefighters.


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                            MCKEE v. STATE, et al.
                             Opinion of the Court

See Serna, 6 Ariz. App. at 16 (recognizing that the death of the decedent was
the direct result of refusal to follow safety recommendations of inspectors
but finding no wilful misconduct). Specifically, Appellant argues the
actions of the division supervisor and an air tactical supervisor in leaving
their posts was a dereliction of duty causing McKee’s death. However,
Appellant does not allege that either of the supervisors did so with the
deliberate intention of harming McKee or any member of the Granite
Mountain Hotshot crew.

¶20            Thus, as a matter of law, Appellant’s complaint does not
allege that defendants acted with the requisite intent to constitute wilful
misconduct. See Fid. Sec. Life Ins. Co. v. State, Dep’t of Ins., 191 Ariz. 222, 224,
¶ 4 (1998) (affirming the dismissal of a complaint if “satisfied as a matter of
law that plaintiffs would not be entitled to relief under any interpretation
of the facts susceptible of proof”).

       D.      Waiver

¶21            Appellant reasons that because she is not eligible to receive
McKee’s death benefits under workers’ compensation, she is not bound by
her son’s election to receive workers’ compensation benefits. In support of
this position, she reads A.R.S. § 23-1024, which states that an employee who
institutes a proceeding against his employer waives any right to
compensation, to indicate that a party who cannot receive compensation
cannot waive the right to sue. Thus, she concludes that because she could
not waive the right to sue, she should be permitted to maintain a wrongful
death action against the State.

¶22             Appellant’s argument is contrary to established law. In Diaz,
the decedent’s parents, who were nondependents and ineligible to receive
workers’ compensation benefits, argued they could not be bound by their
son’s election. Id., at 548. The court rejected this argument, and held that
an employee’s election of workers’ compensation benefits “binds not only
the employee’s dependents, but the employee’s nondependent parents as
well.” Id., at 550-51. The court reasoned that a wrongful death action “must
still come within the terms of the wrongful death statute,” and the
decedent’s parents were “subject to the same defenses as could have been
asserted against the decedent, had the decedent lived and brought an action
for personal injury.” Diaz, 190 Ariz. at 549; see Mariscal v. American Smelting
& Refining Co., 113 Ariz. 148, 149-50 (1976) (holding that nondependent
parents of deceased worker could not bring a wrongful death action against
his company because “[t]he parents’ right to sue were determined by the
decedent’s decision to accept the provisions of the [w]orkmen’s


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                           MCKEE v. STATE, et al.
                            Opinion of the Court

[c]ompensation [a]ct.”).       Diaz also reasoned that allowing the
nondependent parents to avoid their son’s election would undermine the
State’s “compelling interest in the preservation and integrity of its workers’
compensation system.” Id., at 550.

¶23          Accordingly, we conclude that Appellant’s wrongful death
claim is barred by operation of the exclusive remedy provision of the
workers’ compensation statutes.3

III.   Intentional Infliction of Emotional Distress

¶24           The complaint alleges two factual bases for Appellant’s
intentional infliction of emotional distress claim. The first is that the
defendants’ reckless and negligent actions led to McKee’s death which
resulted in severe emotional harm to Appellant. The second is that the
defendants negligently misrepresented facts regarding the Yarnell Fire
incident in an effort to avoid blame for McKee’s death which violated the
public trust and caused emotional harm to Appellant. Both parties concede
that these claims are factually related but separate and independent from
Appellant’s wrongful death claim; as a result, the exclusive remedy
provisions of the workers’ compensation statutes do not apply.

¶25            The tort of intentional infliction of emotional distress allows
recovery where (1) the conduct by the defendant is “extreme” and
“outrageous”; (2) “the defendant either intend[s] to cause emotional
distress or recklessly disregard[s] the near certainty that such distress will
result from his conduct”; and (3) “severe emotional distress occur[s] as a
result of defendant’s conduct.” Ford v. Revlon, Inc., 153 Ariz. 38, 43 (1987);
Cont'l Life & Acc. Co. v. Songer, 124 Ariz. 294, 304–05 (App. 1979). For one
to recover for intentional infliction of emotional distress arising from death
or injury to a family member, the plaintiff must allege she was present at
the time of the extreme and outrageous conduct. Restatement (Second) of
Torts § 46(2) & cmt. l (limiting liability for intentional infliction of emotional
distress to plaintiffs that are present at the time of the conduct “as
distinguished from those who discover later what has occurred”); see also
Ford v. Revlon, 153 Ariz. at 43 (stating that Arizona follows the elements set
out in Restatement (Second) of Torts).



3     Because we conclude that the exclusive remedy of the workers’
compensation statutes applies to bar Appellant’s wrongful death action, we
do not address whether the common-law firefighter’s rule would also bar
Appellant’s claim.


                                        8
                           MCKEE v. STATE, et al.
                            Opinion of the Court

¶26            Appellant has not alleged sufficient grounds for an
intentional infliction of emotional distress claim. Specifically, Appellant
has failed to allege that she was present at the time of the allegedly extreme
and outrageous conduct leading to her son’s death, or that any of
defendants’ conduct was directed at her. We find no error.

IV.    Nonjural Entity

¶27           Appellant argues the trial court erroneously concluded the
State Forestry Division was a nonjural entity when it dismissed her claims
against that party. Appellant reasons that compliance with the notice of
claim statute, A.R.S. § 12-821.01, gave rise to her ability to sue the State
Forestry Division.

¶28            “Governmental entities have no inherent power and possess
only those powers and duties delegated to them by their enabling statutes.”
Braillard v. Maricopa Cty., 224 Ariz. 481, 487, ¶ 12 (App. 2010). “Thus, a
governmental entity may be sued only if the legislature has so provided.”
Id. The legislature will so provide in plain language in the entity’s enabling
statutes. See, e.g., A.R.S. § 38-882(D) (“The corrections officer retirement
plan is a jural entity that may sue and be sued.”); A.R.S. § 23-106(A) (“The
[Industrial] commission may, in its name, sue and be sued.”).

¶29           Here, there is no provision in the State Forestry Division
enabling statute stating that it may sue or be sued. See A.R.S. §§ 37-1301, -
1306. As a result, the State Forestry Division is a nonjural entity.

¶30            Additionally, the notice of claim statute does not, as
Appellant contends, contain language suggesting its purpose is to confer
the power to sue and be sued on a nonjural entity. When a plaintiff has a
claim against a public entity, the notice of claim statute requires the plaintiff
to file notice with the public entity stating a factual basis and a settlement
amount for the claim prior to filing the cause of action. A.R.S. § 12-821.01.
However, the purpose of the notice of claim statute is limited to providing
“the government entity with an opportunity to investigate the claim, assess
its potential liability, reach a settlement prior to litigation, budget and
plan.” Havasupai Tribe of Havasupai Reservation v. Ariz. Bd. of Regents, 220
Ariz. 214, 223, ¶ 30 (App. 2008).

¶31            Finally, we must construe the notice of claim statute in
harmony with the enabling statutes for the State Forestry Division.
Midland Risk Mgmt. Co. v. Watford, 179 Ariz. 168, 171 (App. 1994) (“It is a
fundamental rule of statutory construction that courts will construe
conflicting statutes in harmony when possible.”). Here, the more specific


                                       9
                          MCKEE v. STATE, et al.
                           Opinion of the Court

statute is the enabling statute for the State Forestry Division, while the
notice of claim statute is a general statute that applies to all claims against
public entities; as a result, the enabling statute controls. Watford, 179 Ariz.
at 171. The logical prerequisite to having a cause of action against a public
entity is that the entity has the power to sue and be sued. See Braillard, 224
Ariz. at 487, ¶ 12. Thus, in instances where a nonjural entity has been served
a notice of claim, the more specific enabling statutes of the agency will
control regarding the question of whether the entity has the power to sue
or be sued. In this case, the State Forestry Division remains a nonjural entity
regardless of Appellant’s compliance with A.R.S. § 12-821.01. The superior
court correctly dismissed Appellant’s claims against the State Forestry
Division.

                               CONCLUSION

¶32           For the reasons discussed above, we affirm the superior
court’s order dismissing Appellant’s complaint.




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


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