Lead Opinion
OPINION
This special action was taken from the order of the trial court denying in part petitioners’ motion for summary judgment. Because petitioners have no equally plain, speedy or adequate remedy by way of appeal, and because the granting of relief will serve to terminate this litigation, we accept jurisdiction and grant reliеf. Wingate v. Gin,
Petitioners Richard and Gloria Dalton are husband and wife. Gloria Dalton operates a business known as Motifs Interior Design, which appears from the record to be а sole proprietorship. Although there is some dispute as to the facts, it appears that Richard had his own business as a financial consultant, and had little or nothing to dо with the operation of Gloria’s business. At the time of the events which are the subject of this litigation, Corrine Doty was employed by the business as a designer. In August of 1985, Doty was riding as a passenger in a car registered in Richard Dalton’s name and driven by Gloria Dalton when it was involved in an accident which resulted in Doty’s death. It is undisputed that at the time of the acсident Doty was acting within the scope of her employment, as Dalton and Doty were on their way to meet with a client of the business.
The present wrongful death action was brought by respondents, alleging wrongful conduct on the part of both Gloria Dalton and the driver of the other car involved in the accident, and that Richard Dalton was alsо liable because he had “unreasonably failed to maintain the front passenger seat restraints in proper operating condition and/or negligently, recklessly оr intentionally caused or allowed said restraints to be in improper condition.” Petitioners filed a motion for summary judgment on the complaints on the ground that respondеnts’ exclusive remedy was workers’ compensation benefits as provided by A.R.S. § 23-1022(A). The court granted the motion “on the issue of the defense of workmen’s compensation insurance coverage,” but denied the motion “on the issue of negligence arising out of the failure of defendants Daltons to provide seatbelts in working condition____” This speсial action followed the denial of petitioners’ motion for reconsideration.
Initially, we dispose of respondents’ contention that we should not consider this special action because petitioners did not raise the issue of Richard Dalton’s immunity as an employer until after the trial court’s initial ruling on the motion for summary judgment. The рetitioners’ motion sought judgment as to both Richard and Gloria Dalton on the ground of the exclusivity of workers’ compensation. Implicit in the motion's argument was petitioners’
Although the trial court gave no reasons in support of its order, it appears that the court may have accepted the respondents’ contention that Richard Dalton was not Corrine Doty’s employer and could bе sued as a third party under A.R.S. § 23-1023(A). As noted above, respondents bore the burden of proof on this issue in order to establish the jurisdiction of the trial court. Although respondents’ opposition to the motion for summary judgment states that Richard Dalton was the registered owner of the car “and ‘an’ owner of said vehicle,” there was no allegation much lеss evidence that either the car was his separate property or that the business was the separate property of Gloria Dalton. Absent such evidencе, both are presumed to be community property. Bender v. Bender,
Respondents contend that even assuming the business was a community asset, that alone is not sufficient to establish that Richard was Doty’s employer under the workers’ compensation statutes. Rather, they argue, petitioners were required to prove the existence of a business partnership or joint venture between Richard and Gloria before both could be deemed to be Doty’s employer. This being a question of fact for the jury, respondents conсlude that summary judgment was properly denied. We disagree.
As a general rule, whether an employment relationship exists for purposes of workers’ compensatiоn is determined by application of the doctrine of “right to control.” Home Insurance Co. v. Industrial Commission,
Under Arizona’s community property laws, both husband and wife have the right to control community assets. Specifically, A.R.S. § 25-214(B) and (C) provide:
B. The spouses have equal management, control and disposition rights over their community property, and have equal power to bind the community.
C. Either spouse separately may acquire, manage, control or dispose of community property, or bind the community, except that joinder of both spouses is required in any of the following cases:
1. Any transaction for the acquisition, disposition or encumbrance of an interest in real property other than an unpatented mining claim оr a lease of less than one year.
2. Any transaction of guaranty, indemnity or suretyship.
As a community asset, Motifs Interior Design was subject to Richard Dalton’s right
Since both Richard and Gloria Dalton were employers
Notes
. Petitioners have construed respondents’ arguments as perhaps raising an issue of "dual capacity.” Under this theory, which has not been widely followed, workers’ compensation may not be the employee's exclusive remedy where the employer is acting in а capacity other than as an employer at the time his conduct causes injury to the employee. This claim has twice been rejected by Division One of this court in the context of a products liability claim. Allen v. Southwest Salt Co.,
Concurrence Opinion
specially concurring.
I specially concur. The fact that the business is a community asset is sufficient to establish the right to control in both sрouses, and thus make both of them employers for purposes of the workers’ compensation statutes. That Richard Dalton may have relinquished his right to control to his wife, and that she acted as agent for the community, does not alter his status as an employer. See Conner v. El Paso Natural Gas Co.,