12.2.4.2 Election of Tort Lawsuit

• Jurisdiction: Arizona

.While it is clear that a successful claim for workers’ compensation benefits will bar a later suit against the employer, it is less certain whether an unsuccessful, or even unresolved, common-law suit against the employer will bar a later workers’ compensation claim.^[80]

Despite statutory language implying that even the filing of what turns out to be an unsuccessful common-law suit against an insured employer causes a waiver of the workers’ compensation remedy,^[81] that is probably not the case in Arizona, nor in the majority of jurisdictions in the country.^[82] This result is consistent with the purpose of the workers’ compensation act as a security system for employees. According to Professor Larson, a strict application of the common-law election doctrine would “transform it into a grandiose sort of double-or-nothing gamble.’’^[83]

The supreme court first addressed this problem in Jeune v. Industrial Commission.^[84] There, plaintiff sued his employer for nonposting of notices under the predecessor to A.R.S. § 23-906.^[85] At the end of the trial, the superior court directed a verdict for the employer on the sole ground that the evidence failed to show nonposting. On appeal, the supreme court affirmed the trial court.^[86] Thereafter, plaintiff filed a claim at the Industrial Commission, which was dismissed for lack of jurisdiction.

In restoring plaintiff’s compensation claim, the court reasoned that since the employer was found to have posted the notices, plaintiff never had a nonposting remedy and was instead bound by the conclusive presumption of coverage for not having rejected coverage prior to the injury. According to the court, the Workers’ Compensation Act should be liberally construed so that injured employees are assured of compensation. The nonposting exception to exclusivity was not intended to create a trap for unwary claimants but to...