12.2.8 The Dual Capacity Doctrine

• Jurisdiction: Arizona

. The area of employer immunity cannot be left without mentioning this legal oddity. It is a theory by which injured workers have attempted to avoid the exclusive compensation remedy and sue their employers. In Arizona, the doctrine has been recognized in several opinions, but never applied.^[136]

Under the dual capacity doctrine, an insured employer may be liable in tort to its injured employee if, in addition to its capacity as an employer, it acted in a second capacity conferring on itself obligations independent of those imposed upon it as an employer. The second set of obligations must be completely independent of the employer’s obligations as an employer and not intertwined. Unless the duty involved in the accident arose solely from the separate obligations, the exclusive remedy immunity should apply.^[137]

Professor Larson suggests that the term “dual persona’’ replace “dual capacity’’ because some courts have stretched the doctrine beyond reasonable limits by using it where there was not a separate legal persona completely independent from and unrelated to the employer’s persona as an employer, but merely a separate relationship or, simply, a separate theory of liability. Such liberal application of the doctrine could jeopardize the exclusive remedy principle because the typical employer, in the course of an average day, may have several legal capacities such as vendor, manufacturer, vehicle owner, doctor, hospital, etc.^[138]

In Arizona the dual capacity doctrine has appeared twice in the products liability context. The plaintiff in both cases attempted to qualify the employer, through the doctrine, as an “other person’’ subject to liability under A.R.S. § 23-1023 (A). Neither effort was successful.

In Hills v. Salt River Project Association,^[139] the...