Arizona Court of Appeals Division Two Holds that Peace Officers Collaborating Pursuant to Intergovernmental Agreement are Co-Employees for Purposes of Workers’ Compensation Principles.

Luis Pimber, an undercover narcotics officer, received workers’ compensation benefits after being injured on the job by a Tucson police officer in the course of a joint operation. He sued the officer for willful misconduct and sued the Tucson Police Department and its supervisor employees for negligence. The defendants moved for summary judgment, arguing that workers’ compensation benefits were Pimber’s sole remedy. The trial judge disagreed, granting partial summary judgment to Pimber. Relying on A.R.S. § 23-1022(D) and an intergovernmental agreement (IGA) between the City of Tucson and Pimber’s employer, the defendants petitioned for special action relief. The Court of Appeals accepted special action jurisdiction, noting that the question presented was a pure issue of law, the error made by the trial court was “patent,” acceptance of the petition and the granting of relief could prevent a needless trial, and the petition presented an issue of first impression. The Court noted that under Section 23-1022(A), an injured employee’s right to workers’ compensation benefits “is the exclusive remedy against the employer or any co-employee acting in the scope of his employment.” Acceptance of workers’ compensation benefits waives the right to file a lawsuit in connection with the same injury, and prevents the superior court from accepting jurisdiction over any such action. On the other hand, A.R.S. § 23-1023(A) provides that an employee entitled to compensation may sue when injured by another who is “not in the same employ.” And under Section 23-1022(D), an employee of a public agency who works under or within the jurisdiction of another public agency pursuant to an intergovernmental agreement is deemed to be an employee of both agencies. The relevant IGA contained a similar provision and cited Section 23-1022(D). The Court found that the language of the statute and the IGA unambiguously provided that Pimber and the individual defendant were co-employees. The Court also noted that this interpretation was consistent with the statute’s history, insofar as the statute had been enacted in response to a Court of Appeals decision permitting an injured officer to sue for injuries caused by another officer engaged in a joint operation – a decision that plunged the defendant officer’s employer into “dire financial straits.” The Court rejected the trial judge’s finding that Pimber’s claim should be permitted to proceed nevertheless because his employer failed to post a statutorily-required notice alerting employees to the fact that they may be deemed to be employees of multiple public agencies when an IGA is in effect. Stressing the plain language of the IGA, the Court also rejected the trial judge’s conclusion that, in light of the “totality of the circumstances,” Pimber and the defendant officer were not co-employees at the time of the injury.

The decision was authored by Judge Espinosa and joined by Judge Pelander and retired Judge Druke, sitting by designation.