Unpublished Disposition, 930 F.2d 26 (9th Cir. 1986)

MEMORANDUM^* 

The Estate of Rodolfo Chavez (the Estate) appeals from the order granting summary judgment, in this wrongful death action, in favor of the decedent's employer, Dela-Tek, Inc. (Dela-Tek). Dela-Tek filed a motion for summary judgment in which it argued that a wrongful death action could not be maintained under Arizona law because the Estate would not be able to show that Dela-Tek's general manager acted knowingly and purposefully with the direct object of injuring the decedent. Dela-Tek argued that without such proof, the Estate's exclusive remedy is a claim filed pursuant to the Arizona Workmen's Compensation Act. The district court granted summary judgment without comment. The Estate seeks reversal on the ground that the facts it presented raised a material issue of fact regarding whether this action comes within the "wilful misconduct" exception to the requirement that the exclusive remedy for injuries that occur in the course and scope of employment is a claim under the Arizona Workmen's Compensation Act. Upon reviewing the evidence independently, we affirm because we conclude that the facts presented by the Estate do not show wilful misconduct.

* The decedent was killed in an explosives accident while mixing and cleaning one of Dela-Tek's munitions blenders. Dela-Tek is a munitions manufacturer operating in Arizona and a division of Technical Ordnance, Inc. The decedent was employed to clean a Simpson mixer after certain munitions blending operations were accomplished. He was completing this cleansing process when an accident occurred which resulted in his death. To support its claim that the decedent's death was the result of wilful misconduct, the Estate submitted the following evidence:

1. Affidavits of other employees stating they had received no training for handling explosives,

2. A list of fourteen OSHA violations issued immediately following Chavez's death,

3. An affidavit of a Dela-Tek employee who stated that the safety officers were often overruled by management; and prior to government inspections, the employees were instructed to produce or assemble the explosives in a manner different from that ordinarily used and after the inspectors were gone the employees were instructed to return to the former procedures, and

4. The affidavit of Dean Jacobson, a forensic engineer, who declared the following:

It is the opinion of this affiant that, based on the documentary and testimonial evidence and numerous cited violations of governmental standards that to a reasonable degree of scientific and engineering certainty the deaths of Mr. Alfredo Aquirre and Rodolfo Chavez, and the injuries of Mr. Pat Antone on 5-19-86 were the direct result of blatant, willful and coercive forces of the Dela-Tek management to conduct a workplace environment that knowingly and continuously put the lives of their employees in mortal danger....

II

The Estate contends that the evidence shows that Dela-Tek consciously chose to conduct the manufacture of munitions in such a hazardous manner that it virtually ensured the occurrence of the accident that killed the decedent. The Estate maintains that sufficient evidence was presented to raise a genuine issue of material fact that Dela-Tek was guilty of wilful misconduct.

We review a grant of summary judgment de novo. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989) (citing Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986)), cert. denied, --- U.S. ----, 110 S. Ct. 3217 (1990). This court "must determine whether, viewing the evidence in a light most favorable to the nonmoving party, there are any genuine issues of material fact and whether the district court applied the relevant substantive law." Tzung v. State Farm Fire and Cas. Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989) (citing Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986)). "This court also reviews a district court's interpretation of state law de novo." Springs Industries, Inc. v. Kris Knit, Inc., 880 F.2d 1129, 1131 (9th Cir. 1989).

By statute, Arizona has provided that a workers' compensation claim is the exclusive remedy against an employer for an injury which occurs within the scope of employment. A.R.S. Sec. 23-1022(A). The statute furnishes an exception, however, to this "exclusive remedy" provision. Id. Section 23-1022(A) of the Arizona Revised Statutes provides in pertinent part:

The right to recover compensation pursuant to this chapter for injuries sustained by an employee or for the death of an employee is the exclusive remedy against the employer or any co-employee acting in the scope of his employment ... except that if the injury is caused by the employer's wilful misconduct, ... or if a corporation, on the part of an elective officer of the corporation, and the act indicates a wilful disregard of the life, limb or bodily safety of employees, the injured employee may either claim compensation or maintain an action at law for damages against the person or entity alleged to have engaged in the wilful misconduct.

A.R.S. Sec. 23-1022(A) (emphasis added). "Wilful misconduct" is defined in Sec. 23-1022(B) as "an act done knowingly and purposely with the direct object of injuring another."

The Arizona courts have interpreted the words "wilful misconduct" as used by the legislature in section 23-1022(A) of the Arizona Revised Statutes. In Serna v. Statewide Contractors, Inc., 6 Ariz.App. 12, 429 P.2d 504 (Ariz.Ct.App.1967) (reh'g denied), the court stated as follows: "Gross negligence, or wantonness amounting to gross negligence, is not sufficient to constitute a 'willful act' under our statutory definition. It must be shown that the negligence or wantonness was accompanied by the intent to inflict an injury upon another person." Id. at 507. In Allen v. Southwest Salt Co., 149 Ariz. 368, 718 P.2d 1021 (Ariz.Ct.App.1986), the Arizona Court of Appeals reaffirmed its holding in Serna in the following words:

Serna is sound, and it is also in accord with the weight of authority. It is sound because its decision is mandated by our constitutional and statutory provisions, as a reading of Article 18, Sec. 8 and A.R.S. Sec. 23-1022 will confirm. That those provisions are in accord with those of most other states is reflected by recent decisions and by Professor Larson. According to Larson, there must be a 'genuine intentional injury,' comparable to 'an intentional left jab to the chin.' 2A A. Larson, Workmen's Compensation Law Sec. 68.13 at 13-8, 13-9 and 13-27 (1982).

Id. at 1024.

The Arizona Supreme Court approved the reasoning set forth in the Serna and Allen cases in Bonner v. Minico, 159 Ariz. 246, 766 P.2d 598 (Ariz.1988). In addressing the "wilful misconduct" exception to Arizona's workers' compensation laws, the court stated: "Arizona courts have consistently held that to fit within the statutory exception, a plaintiff must show something more than ordinary negligence or even gross negligence." Bonner, 766 P.2d at 607 (citing Allen v. Southwest Salt Co., 149 Ariz. at 372, 718 P.2d at 1025 (Ariz.Ct.App.1986), and Serna v. Statewide Contractors, Inc., 6 Ariz.App. 12, 429 P.2d 504 (Ariz.Ct.App.1967) (reh'g denied)).

The evidence submitted by the Estate indicates that Dela-Tek's ordnance manufacturing procedures may have been grossly negligent. There is no evidence in the record, however, that any Dela-Tek agent intended to inflict any injury upon the decedent. Accordingly, the district court did not err in concluding that the facts presented by the Estate do not demonstrate "wilful misconduct." Thus, the Estate has not shown that its claim comes within the exception to the exclusive remedy provision of Arizona's workers' compensation laws.

III

The Estate also argues that the question whether the facts of this case fall within the "wilful misconduct" exception to A.R.S. Sec. 23-1022 should be decided by a jury. To support this contention, the Estate relies on Bonner v. Minico, Inc., 159 Ariz. 246, 766 P.2d 598 (Ariz.1988). This reliance is misplaced. The Arizona Supreme Court held, in Bonner, that "where the determination of a trial court's jurisdiction necessarily involves the determination of disputed facts, which facts are intertwined with the merits of the case, the resolution of the disputed fact issues is for the fact-finder." Id. at 608. This matter does not present any disputed questions of fact concerning the district court's jurisdiction. In view of our conclusion that the Estate has failed to demonstrate that there is a genuine issue of material fact concerning "wilful misconduct," the district court did not err in granting summary judgment.

AFFIRMED