12.2.3 Wilful Misconduct of Employer or Co-Employee

• Jurisdiction: Arizona

. The exclusive remedy protection does not extend to an employer or co-employee whose wilful misconduct causes an injury.^[45] “`Wilful misconduct’ . . . means an act done knowingly and purposely with the direct object of injuring another.’’^[46] Such liability has been a feature of Arizona workers’ compensation law since the original legislation in 1925.^[47] As in cases of nonposting and lack of insurance, an injured employee who desires to sue the employer civilly for wilful misconduct must elect between that or accepting the compensation remedy.^[48] The same rules of waiver exist here as in the other statutory exceptions to exclusivity.

The history of the wilful misconduct exception to exclusivity, from Serna v. Statewide Contractors, Inc.^[49] to Bonner v. Minico, Inc.,^[50] shows such a strict interpretation of “wilful misconduct’’ that only a single case has been reported in which the standard has been met. The appellate courts have rejected one attempt after another to equate the most aggravated forms of gross negligence with the deliberate intent to injure necessary to establish wilful misconduct.^[51]

In order to meet the deliberate intent to injure standard, there must be proof that the employer intended the injury itself, not just the act that resulted in the injury. The focus is on the intentional versus accidental quality of the precise injurious conduct rather than the degree of depravity of the conduct.^[52] This strict interpretation is consistent with the philosophy behind this exception, which is to shield the employer from tort liability on all “accidental’’ injuries but to leave him exposed to tort liability for any deliberate injuries.^[53]

Attempts to overturn the strict interpretation of wilful misconduct in Serna in the context of less flagrant employer misconduct have been rejected. In a suit against an employer for failure to provide safety devices to protect a maintenance employee from dangerous gasses and chemicals, the court of appeals found no intent to inflict injury.^[54]

Nor did the employer’s breach of provisions in a collective bargaining agreement requiring it to provide safety equipment that would have prevented the plaintiff’s injury establish a deliberate intent to injure. Although the contract allowed the employee the right to stop work for a violation, the court of appeals found nothing in the contract that would sustain a cause of action for personal injuries that the injured employee could enforce against the employer as a third-party beneficiary. Consequently, the exclusive remedy applied.^[55]

A decade after Serna, the court of appeals passed up an invitation to “reopen’’ the debate on exclusivity and follow a movement in Ohio^[56] and several other states to broaden the concept of deliberate injury to include aggravated forms of negligence. In Allen v. Southwest Salt Co.,^[57] plaintiff’s attempt to sue the employer civilly for an injury caused by an allegedly unsafe machine prompted the court to reaffirm the soundness of Serna and the strict interpretation of wilful misconduct. The movement in Ohio and elsewhere was viewed...