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Dugan v. Fujitsu Business Communications Systems Inc.3/18/1997
WEISBERG, Judge
Joseph Dugan, individually and as guardian of his wife, Sarah Dugan, and their four adult children, Margaret Dugan Radovanovich, Diane Dugan Roche, Lynne Dugan, and Brian Dugan (plaintiffs) appeal the trial court's entry of summary judgment in favor of Fujitsu Business Communications, Inc. (defendant). We reverse in part and affirm in part.
FACTUAL AND PROCEDURAL HISTORY
On November 2, 1990, Sarah Dugan suffered a heart attack and collapsed, unconscious, at her place of employment, American Express Travel Related Services (AETRS). Sarah's co-workers attempted to call the 9-1-1 emergency telephone number to summon aid. They were, however, unable to reach the 9-1-1 operator from their workplace telephones. Unbeknownst to its employees, AETRS had purchased a telephone system which blocked 9-1-1 service in favor of an in-house emergency number. Due to the inability to directly access 9-1-1 services, emergency medical help was delayed and Sarah suffered prolonged oxygen deprivation causing severe, irreversible brain damage.
Defendant manufactured and sold the telephone system that prevented access to 9-1-1 emergency service. No warnings that 9-1-1 service was blocked were posted on or near the telephones.
Plaintiffs brought suit against defendant and several others who are not parties to this appeal, alleging defendant's liability. Personal claims were made on Sarah's behalf and loss of consortium claims were brought by Joseph and the children.
Defendant moved for summary judgment, arguing that plaintiffs' claims were barred by the automatic assignment provision of Ariz. Rev. Stat. Ann. (A.R.S.) section 23-1023(B). A.R.S. section 23-1023(A) permits an employee who is injured on the job , and/or the employee's dependents, to file an action against any party, other than the employer and other employees, responsible for the employee's injuries. Subsection (B) provides:
If the employee entitled to [workers' compensation], or his dependents, does not pursue his or their remedy against such other person by instituting an action within one year after the cause of action accrues, the claim against such other person shall be deemed assigned to the insurance carrier, or to the person liable for the payment thereof. Such a claim so assigned may be prosecuted or compromised by the insurance carrier or the person liable for the payment thereof, or may be reassigned in its entirety to the employee or his dependents. After the reassignment, the employee entitled to compensation, or his dependents, shall have the same rights to pursue the claim as if it had been filed within the first year.
Defendant argued that this action must be dismissed because plaintiffs had neither filed suit within one year after Sarah's injury nor obtained a valid reassignment of the claim.
Plaintiffs responded and filed a cross-motion for summary judgment, asserting arguments that have not been raised in this appeal. In their reply on their cross-motion for summary judgment, plaintiffs argued that A.R.S. section 12-502, which tolls the statute of limitations for claims of incompetent persons, acted similarly upon the automatic assignment provision of A.R.S. section 23-1023(B). Defendant countered that A.R.S. section 12-502 did not apply because A.R.S. section 23-1023(B) is not a statute of limitations and, in any event, plaintiffs had never alleged in their complaint that Sarah was of unsound mind.
The trial court granted summary judgment in favor of defendant, finding that A.R.S. section 12-502 does not toll the automatic assignment provision of A.R.S. section 23-1023(B). Plaintiffs appeal, renewing their
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