12.3.1.1 Co-Employees

• Jurisdiction: Arizona

. A great majority of states now exclude co-employees from the definition of third parties subject to suit.^[157] In Arizona, co-employee liability while acting in the scope of employment was finally abolished in 1980 by constitutional amendment^[158] and statutory change.^[159] Although the constitution expressly applies to private employment only, courts have extended the provision to public employees on the basis of legislative intent and constitutional construction.^[160]

The philosophy behind co-employee immunity is that the co-employee is a participant in the compromise of rights between employers and employees that underlies the workers’ compensation system and is therefore entitled to freedom from common-law suits. Immunity of the co-employee is part of the quid pro quo for relinquishment of the right to sue the employer civilly.^[161]

While abolishing co-employee liability for negligent conduct, the 1980 constitutional amendment applied to co-employees the wilful misconduct exception^[162] that had been applicable to employers since the original legislation in 1925. Thus, a co-employee can be sued if his...