Opinion
No. 1 CA-CV 13-0161
02-04-2014
KEVIN WIRTS, a single man, Plaintiff/Appellant, v. S & B FOOD ENTERPRISES, INC. dba PIZZA HUT, an Arizona corporation, Defendant/Appellee.
Goldberg & Osborne, Prescott By Lee M. Nation Counsel for Plaintiff/Appellant Lewis Brisbois Bisgaard & Smith, LLP, Phoenix By Stephen D. Hoffman, Bruce C. Smith Counsel for Defendant/Appellee
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Yavapai County
No. P1300CV201100361
The Honorable Kenton D. Jones, Judge
AFFIRMED IN PART; REMANDED
COUNSEL
Goldberg & Osborne, Prescott
By Lee M. Nation
Counsel for Plaintiff/Appellant
Lewis Brisbois Bisgaard & Smith, LLP, Phoenix
By Stephen D. Hoffman, Bruce C. Smith
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Chief Judge Diane M. Johnsen delivered the decision of the Court, in which Judge Peter B. Swann and Judge Jon W. Thompson joined. JOHNSEN, Judge:
¶1 Kevin Wirts appeals from the superior court's entry of summary judgment in favor of S&B Food Enterprises, Inc. For the following reasons, we affirm in part and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
¶2 A vehicle driven by Frank Aragona, a delivery driver for S&B, collided with Wirts as Wirts was riding a bicycle through a commercial parking lot. It is undisputed that, at the time of the accident, Aragona was acting within the course and scope of his employment with S&B.
¶3 Wirts filed a claim with Aragona's insurer. Eventually, in exchange for payment of $15,000, Wirts executed the following release:
I, Kevin Wirts, being of lawful age, for sole consideration of [and] in consideration of the sum of Fifteen Thousand Dollars and 00/100 ($15,000.00), to be paid, do/does hereby . . . release, acquire and forever discharge Frank Aragona and his/her/their or its agents, servants, successors, heirs, executors, administrators and all other persons, firms, corporations, associations, or partnerships [ ] from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever, which the undersigned now has/have or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen bodily and personal injuries and property damage and the consequences thereof resulting or to result from the accident, casualty or event which occurred on or about [ ] 03/24/2009, at or near Prescott, AZ.
¶4 Wirts then filed suit against S&B, alleging it was vicariously liable for Aragona's negligence. S&B moved for summary judgment, arguing the release that Wirts gave Aragona barred the vicarious liability claim. While the summary judgment motion was pending, Wirts moved for leave to amend his complaint to add allegations that S&B negligently hired, trained and supervised Aragona. The superior court allowed the amendment, then granted S&B's summary judgment motion.
¶5 Wirts timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") section 12-2101(A) (2014).
Absent material revision after the relevant date, we cite a statute's current version.
DISCUSSION
¶6 Wirts argues the superior court erred in granting S&B's motion for summary judgment because the release of Aragona did not constitute a release of S&B. Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a). We review the entry of summary judgment de novo, viewing the facts and inferences drawn therefrom in the light most favorable to the party against which judgment was entered. Amtrust Bank v. Fossett, 223 Ariz. 438, 439, ¶ 4, 224 P.3d 935, 936 (App. 2009).
¶7 When a plaintiff sues both the agent and the principal for the negligence of the agent, "the release of an employee from liability . . . operates as a release of the employer." De Graff v. Smith, 62 Ariz. 261, 269, 157 P.2d 342, 345 (1945) (quoting 35 Am. Jur. § 534). The rationale underlying this rule is that a principal being sued for vicarious liability is not a "true joint tortfeasor[] under Arizona law." Law v. Verde Valley Med. Ctr., 217 Ariz. 92, 96, ¶ 16, 170 P.3d 701, 705 (App. 2007). Instead, in such a case the principal's liability is merely derivative of the direct liability of the agent, the true tortfeasor. See Jamerson v. Quintero, 233 Ariz. 389, 391-92 ¶¶ 14, 17, 313 P.3d 532, 535-36 (App. 2013). Thus, when an agent "is adjudicated to have no liability," there is no fault to attach or impute to the principal and "any vicarious liability of the principal necessarily falls away." Id.; see also Law, 217 Ariz. at 96, ¶ 13, 170 P.3d at 705.
¶8 Applying this rule, the release of Aragona (the agent) necessarily relieved S&B (the principal) of any vicarious liability based upon the doctrine of respondeat superior. Contrary to Wirts's argument, it does not matter that S&B is not named in the release; once Wirts released Aragona from all liability arising from the parking lot accident, he forfeited any vicarious liability claim he might have had against S&B based on the alleged negligence of Aragona. See De Graff, 62 Ariz. at 268-69, 157 P.2d at 344-45. For that reason, the superior court did not err in granting S&B's motion for summary judgment with regard to Wirts's vicarious liability claim.
¶9 The release Wirts executed does not, however, bar his claim against S&B based on alleged negligent hiring, training and supervision. See De Graff, 62 Ariz. at 266, 157 P.2d at 344 (verdict in favor of the servant does not bar recovery against the master for negligence "on which, independently of the acts of the servant, liability may be predicated"); Ford v. Revlon, Inc., 153 Ariz. 38, 42, 734 P.2d 580, 584 (1987) (when "there is independent negligence on the part of the master, the master may be liable, apart from his derivative liability for his servant's wrongful acts").
¶10 S&B's motion for summary judgment was filed before the court granted Wirts leave to amend his complaint to add allegations of negligent hiring, training and supervision. Indeed, in its reply memorandum, filed after the motion for leave to amend, S&B asserted that the only claim pending against it was the vicarious liability claim.
The judgment the superior court entered states that "all of Plaintiff's claims" are dismissed, but implies, by its reference to Arizona Rule of Civil Procedure 54(b), that at least one allegation was not disposed of.
¶11 On appeal, S&B argues we should construe the judgment to include the dismissal of the negligent hiring, training and supervision allegations made in the amended complaint and affirm the dismissal on the ground that in responding to the motion for summary judgment, Wirts offered no facts to support those allegations. But because S&B's motion for summary judgment did not challenge the factual basis of the negligent hiring, training and supervision allegations (indeed, the motion was filed before those allegations were made), Wirts was not required to offer evidence to support those allegations in his response to the motion. See Nat'l Bank of Arizona v. Thruston, 218 Ariz. 112, 116-17, ¶¶ 21-22, 180 P.3d 977, 981-82 (App. 2008). Moreover, because S&B's motion for summary judgment did not challenge the allegations first made in the amended complaint, we will not construe the order granting the motion to address those allegations.
CONCLUSION
¶12 For the above reasons, we affirm the dismissal of the vicarious liability allegations against S&B but remand the matter for further proceedings regarding the negligent hiring, training and supervision allegations in the amended complaint.
Having initially postponed oral argument at the request of counsel, the court determines that oral argument would not assist in the resolution of the appeal.
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