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Dugan v. American Express Travel Related Services Co.9/5/1995
EHRLICH, Judge
Sarah Dugan's husband, Joseph Dugan, and the Dugans' four adult children (collectively, "plaintiffs") appeal from the summary judgment in favor of American Express Travel Related Services Company, Inc. ("TRS") and the subsequent denial of their motions for new trial. Because we conclude that Mrs. Dugan had a compensable brain injury due to an industrially-related, intervening injury combining with her non-industrial, pre-existing heart condition, we affirm the trial court's judgment that the plaintiffs are precluded from maintaining an action in tort against TRS.
FACTS AND PROCEDURAL HISTORY
Mrs. Dugan had a history of cardiovascular problems. On November 2, 1990, while working for TRS, she suffered a "heart event" and lost consciousness. Her job responsibilities and work environment did not contribute to the cardiac episode. After Mrs. Dugan collapsed, her co-workers attempted to call the 9-1-1 emergency telephone number to summon aid. They were, however, unable to contact the emergency operator from the TRS telephones because, unbeknownst to the co-workers, TRS had blocked that number in favor of an in-house emergency number. Due to the inability to reach 9-1-1 services, emergency medical assistance was delayed, and Mrs. Dugan suffered prolonged oxygen deprivation (anoxia) resulting in severe, irreversible brain damage.
The plaintiffs sued TRS (and others not parties to this appeal) to recover for Mrs. Dugan's brain injury on her behalf and for themselves. They maintained as to TRS that Mrs. Dugan's injuries were the result of an independent tort rather than from an injury within the contemplation of the Arizona Workers' Compensation Act. See Ariz. Rev. Stat. Ann. ("A.R.S.") ยงยง 23-901 through 1091. The plaintiffs asserted that, by blocking 9-1-1 access without advising its employees of the method by which to summon emergency assistance, TRS negligently failed to warn of this jeopardy and provide a safe workplace for Mrs. Dugan. They also alleged that TRS negligently interfered with a third person's ability to render aid.
The plaintiffs moved the trial court for partial summary judgment, arguing that they were entitled to institute a tort action against TRS rather than proceed in accordance with the workers' compensation statutes because Mrs. Dugan's heart event did not arise out of her employment. They elaborated that, under A.R.S. section 23-1043.01(A), which generally exempts "heart-related" injuries, her injury was excluded from worker's compensation coverage because there was no evidence that any factor in the employment setting was a substantial, contributing cause of her heart event. TRS then sought summary judgment on the basis that the claims asserted against it were preempted by the workers' compensation law. Agreeing with the plaintiffs that Mrs. Dugan's heart event bore no relationship to her employment, TRS maintained that the plaintiffs' claims thus were based on its alleged negligent aggravation of Mrs. Dugan's condition. It argued that Mrs. Dugan's brain injury was compensable because it arose out of and occurred within the course of her employment.
The trial court denied the plaintiffs' motion for partial summary judgment and granted TRS's motion. It specifically determined that Mrs. Dugan's brain injury arose out of her employment with TRS because, accepting the plaintiffs' contentions as true, if Mrs. Dugan's heart event had occurred at a different place, she would not have suffered her impairment. The court characterized Mrs. Dugan's brain injury as an aggravation of a pre-existing physical condition, the damages from which are covered by workers' compensation.
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