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Moretto v. Samaritan Health System10/30/1997
VOSS, Judge
Plaintiff-Appellant Edward Moretto ("Moretto") appeals from summary judgment for Defendant-Appellee Samaritan Health System ("Samaritan"). Moretto had sought malpractice damages from Samaritan alleging that a physical therapist treating his compensable industrial knee injury negligently caused a secondary back injury. Two issues are presented. First, did procedural irregularities deprive Moretto of a reasonable opportunity to present facts to oppose summary judgment? Second, does Ariz. Rev. Stat. Ann. ("A.R.S.") subsection 23-1023(B) (1995), as interpreted in Lavello v. Wilson, 150 Ariz. 235, 722 P.2d 962 (App. 1985), apply to bar Moretto's civil cause of action for the negligence of a third party when Moretto did not claim or accept workers' compensation benefits for the secondary back injury?
We conclude that Moretto failed to preserve any procedural issue by not objecting below and, furthermore, that any irregularity would be harmless if Samaritan's interpretation of Lavello is correct. However, we also conclude that Samaritan's interpretation is incorrect because a claim for or acceptance of workers' compensation benefits for the secondary injury is necessary for subsection 23-1023(B) to apply. We accordingly reverse summary judgment for Samaritan and remand to the trial court.
PROCEDURAL AND FACTUAL HISTORY
On November 3, 1995, Moretto filed a complaint concerning events occurring on July 13, 1994. Moretto alleged that he was a patient at Samaritan's hospital, that a physical therapist employed by the hospital directed Moretto to sit on a stool with wheels and negligently left him unattended to put on a leg brace and shoe, and that as he leaned forward to put on the brace and shoe, the stool slid out from under him, he fell to the floor, and he herniated a disc.
Samaritan filed an answer on January 16, 1996, raising, among other defenses, "all affirmative defenses identified in Rule 12(b)," failure to join a party under Rule 19, and failure to prosecute by the real party in interest.
Discovery ensued, but Moretto's answers to interrogatories and deposition transcript are not included in the record. Moretto's Rule 26.1 disclosure statement is part of the record as an exhibit to another document. See generally Rule 26.1, Ariz. R. Civ. P. (1987 & Supp. 1996) (hereinafter "Rule __"). In this statement, Moretto disclosed that he was present at Samaritan's hospital "for his daily physical therapy . . . necessitated by a previous injury ." The record also includes a letter by Samaritan's counsel confirming that he had received Moretto's workers' compensation claim file from the responsible carrier.
On August 30, 1996, Samaritan filed a Motion To Dismiss under Rules 12(b)(6) and 12(b)(7), asserting that Moretto had failed to state a claim upon which relief could be granted and that he was not the real-party-in-interest. Samaritan represented that Moretto had suffered a compensable industrial knee injury and was being treated for this injury when he allegedly suffered the secondary back injury. Samaritan also represented that it had found no evidence that the workers' compensation carrier responsible for the knee injury had reassigned the back injury claim to Moretto. Samaritan did not provide documentary support for these factual representations, but, based upon them, it argued that the complaint should be dismissed because Moretto filed it more than one year after the back injury had occurred. To support this argument, Samaritan cited subsection 23-1023(B) but did not cite Lavello.
Moretto responded by addressing the legal standards for a motion to dismiss and their applicability to a statute of
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