NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

THOMAS KOPP, et al., Plaintiffs/Appellants,

v.

PHYSICIAN GROUP OF ARIZONA, INC., et al., Defendants/Appellees.

MELISSA ORNELAS, Plaintiff/Appellant,

v.

PHYSICIAN GROUP OF ARIZONA, INC., et al., Defendants/Appellees.

MARIA JUDITH GONZALEZ, et al., Plaintiffs/Appellants,

v.

PHYSICIAN GROUP OF ARIZONA, INC., et al., Defendants/Appellees.

Nos. 1 CA-CV 16-0227

 1 CA-CV 16-0228

 1 CA-CV 16-0232

 (Consolidated)

Appeal from the Superior Court in Maricopa County

Nos. CV2012-092733, CV2012-092734, CV2011-098899

The Honorable David M. Talamante, Judge

AFFIRMED
2

COUNSEL

Udall Shumway, PLC, Mesa

By H. Michael Wright, Lincoln M. Wright

Co-Counsel for Plaintiffs/Appellants

Tolman Law Firm, Tempe

By J. Robert Tolman

Co-Counsel for Plaintiffs/Appellants

The Checkett Law Firm, PLLC, Scottsdale

By John J. Checkett, James G. Bennett

Co-Counsel for Defendants/Appellees

Broening Oberg Woods & Wilson, Phoenix

By Kevin R. Myer

Co-Counsel for Defendants/Appellees

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Samuel A. Thumma and Judge James P. Beene joined.

W I N T H R O P, Judge:

¶1 Thomas and Angela Kopp, Melissa Ornelas, and Maria Judith

and Ralph Gonzalez (collectively, “Plaintiffs”), appeal the superior court’s 

judgment entered pursuant to Rule 54(b), Ariz. R. Civ. P., dismissing

derivative negligence claims against Physician Group of Arizona, Inc.; Iasis

Healthcare Corp.; Iasis Healthcare Holdings, Inc.; Iasis Finance, Inc.; and St. 

Luke’s Medical Center, LP d/b/a Tempe St. Luke’s Hospital, A Campus of 

St. Luke’s Medical Center (collectively, “Defendants”). For the following 

reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Thomas Kopp, Melissa Ornelas, and Maria Judith Gonzalez 

each underwent bariatric surgery performed by Eric S. Schlesinger, M.D.,

at Tempe St. Luke’s Hospital.

¶3 In 2011 and 2012, Plaintiffs separately filed medical 

malpractice complaints against Dr. Schlesinger and Defendants; these cases 
KOPP v. PHYSICIANS et al.

Decision of the Court

3

were later consolidated for discovery purposes. In these complaints, 

Plaintiffs alleged Dr. Schlesinger was negligent in his surgical care, and the 

remaining Defendants were not only vicariously liable for Dr. Schlesinger’s 

negligence, but also independently negligent in the administrative 

structure of the bariatric surgery program, including the failure to impose 

reasonable controls for both physician and nursing care.

¶4 Plaintiffs entered a settlement agreement with Dr. 

Schlesinger, which required Plaintiffs to dismiss their claims against him 

with prejudice, and further provided: “This Agreement does not preclude 

[Plaintiffs] from pursuing independent claims against the hospital entities 

named as defendants in [Plaintiffs’ cases] but does preclude [Plaintiffs] 

from pursuing claims against the hospital entities named as defendants . . . 

based on a theory of vicarious liability or respondeat superior relating to 

[Dr. Schlesinger’s] acts and/or omissions.” The agreement also provided 

that the settlement was not an admission of any wrongdoing by Dr. 

Schlesinger.

¶5 Thereafter, counsel for Plaintiffs and Dr. Schlesinger 

stipulated to dismiss with prejudice all claims against Dr. Schlesinger and 

“any claims against any co-defendants for vicarious liability.” Consistent 

with the settlement agreement, the stipulation further provided: “Plaintiffs 

specifically reserve and do not dismiss independent claims against the 

remaining Defendants that do not relate to vicarious liability for Dr. 

Schlesinger’s alleged actions.” The superior court then dismissed with 

prejudice all claims against Dr. Schlesinger.

¶6 The remaining Defendants then moved to dismiss most of the 

remaining claims against them, arguing the claims were derivative of the 

negligence claims against Dr. Schlesinger and should be dismissed 

pursuant to Torres v. Kennecott Copper Corporation, 15 Ariz. App. 272, 488 

P.2d 477 (1971). In response, Plaintiffs argued that all remaining claims 

against Defendents were non-derivative; i.e., claims predicated only on the 

independent negligence of Defendants. Defendants conceded that some 

claims, such as a claim based on nurses’ alleged negligence in postoperative wound care, could still stand as independent claims, but 

Plaintiffs’ claims of negligent credentialing, hiring, and supervision of Dr. 

Schlesinger were all predicated on his negligence and should be dismissed.

¶7 Following a hearing, the superior court dismissed with 

prejudice Plaintiffs’ negligent credentialing, hiring, and supervision claims
KOPP v. PHYSICIANS et al.

Decision of the Court

4

based on the settlement with Dr. Schlesinger.

1 The court subsequently 

issued orders extending discovery and disclosure deadlines to allow 

Plaintiffs to do more discovery related to the remaining independent 

claims.

¶8 The superior court later signed a proffered non-appealable 

order consistent with its previous rulings:

Plaintiffs’ settlement with Dr. Schlesinger prevents 

Plaintiffs from pursuing any negligence claims against 

Defendants [Physicians Group of Arizona, Inc. (“PGA”)] and 

[Tempe St. Luke’s Medical Center et al. (“TSL”)] that can be 

characterized as a vicarious liability cause of action or as a 

derivative claim. This includes the negligent credentialing 

claims, the negligent supervision and the negligent . . . hiring 

claims. Any independent negligence claims alleged against 

Defendants PGA and TSL which are not based on or derivative of 

the negligence of Dr. Schlesinger survive the settlement with Dr. 

Schlesinger, if any.

. . . . 

IT IS [] ORDERED dismissing the negligent 

credentialing claims against Defendants PGA and TSL with 

prejudice;

IT IS FURTHER ORDERED dismissing the negligent 

supervision claims against Defendants PGA and TSL with 

prejudice;

IT IS FURTHER ORDERED dismissing the negligent 

hiring claims against Defendants PGA and TSL with 

prejudice[;]

IT IS FURTHER ORDERED dismissing any negligence 

claims that are based on or derivative of the negligence of Dr. 

Schlesinger.

(Emphasis added.)

 

1 The superior court did not make clear whether it was treating the 

motion to dismiss as a motion pursuant to Rule 12(b)(6), Ariz. R. Civ. P., or 

as a motion for summary judgment.
KOPP v. PHYSICIANS et al.

Decision of the Court

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¶9 As noted, the order submitted to and signed by the court did 

not contain Rule 54(b) language, and the parties continued to litigate

concerning the remaining claims. Nine months later, however, the parties 

submitted a joint stipulation to convert the previous order to a judgment 

with Rule 54(b) language.

¶10 The superior court issued a signed Rule 54(b) judgment

reflecting the dismissal of the vicarious and derivative liability claims.

Plaintiffs filed separate timely notices of appeal, and this court consolidated 

the appeals, designating case no. 1 CA-CV 16-0227 (Kopp), as the primary 

number. We have jurisdiction pursuant to Arizona Revised Statutes 

(“A.R.S.”) section 12-2101(A)(1) (2016).

ANALYSIS

¶11 Plaintiffs argue the superior court erred in dismissing their 

claims of negligent credentialing, hiring, and supervision on the basis that 

the claims were derivative of the alleged negligence of Dr. Schlesinger.

¶12 Defendants attached exhibits to their motion to dismiss, and 

because matters outside the pleadings were presented to and not excluded 

by the superior court, we review the motion to dismiss as a motion for 

summary judgment. See Ariz. R. Civ. P. 12(d); Frey v. Stoneman, 150 Ariz. 

106, 108-09, 722 P.2d 274, 276-77 (1986), cited in Drew v. Prescott Unified Sch. 

Dist., 233 Ariz. 522, 524, ¶ 7, 314 P.3d 1277, 1279 (App. 2013).

¶13 “In reviewing the grant of a motion for summary judgment, 

we construe the facts and reasonable inferences in the light most favorable 

to the opposing party and will affirm only if no genuine issues of material 

fact exist and the moving party is entitled to judgment as a matter of law.” 

Drew, 233 Ariz. at 524, ¶ 8, 314 P.3d at 1279 (citing Wells Fargo Bank v. Ariz. 

Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust Fund, 201 

Ariz. 474, 482, ¶¶ 13-14, 38 P.3d 12, 20 (2002); Orme Sch. v. Reeves, 166 Ariz. 

301, 309, 802 P.2d 1000, 1008 (1990)). “We review de novo issues of statutory 

interpretation and the court’s application of the law.” Id. (citing Dressler v. 

Morrison, 212 Ariz. 279, 281, ¶ 11, 130 P.3d 978, 980 (2006); State Comp. Fund 

v. Yellow Cab Co., 197 Ariz. 120, 122, ¶ 5, 3 P.3d 1040, 1042 (App. 1999)).

¶14 Here, Plaintiffs entered a settlement agreement and 

stipulation dismissing their claims against Dr. Schlesinger. Further, 

Plaintiffs agreed to the timing, structure, and terms of the settlement. 

Moreover, they agreed that no wrongdoing on the part of Dr. Schlesinger 

“is implied or should be inferred” by the agreement. Pursuant to both the 

plain terms of the settlement agreement and Torres, the dismissal of 
KOPP v. PHYSICIANS et al.

Decision of the Court

6

Plaintiffs’ negligence claims against Dr. Schlesinger preclude Plaintiffs 

from litigating Defendants’ alleged liability as vicariously derived from any 

alleged negligence of Dr. Schlesinger. See Torres, 15 Ariz. App. at 274, 488 

P.2d at 479; see also Jamerson v. Quintero, 233 Ariz. 389, 390, ¶ 6, 313 P.3d 532, 

533 (App. 2013) (“When a plaintiff sues both the agent and the principal for 

the negligence of the agent, a judgment in favor of the agent bars the 

plaintiff’s vicarious liability claim against the principal, even when the 

judgment is the product of a settlement.” (citing Chaney Bldg. Co. v. City of 

Tucson, 148 Ariz. 571, 574, 716 P.2d 28, 31 (1986); Law v. Verde Valley Med.

Ctr., 217 Ariz. 92, 96, ¶ 13, 170 P.3d 701, 705 (App. 2007))). Plaintiffs’ claims 

that Defendants negligently credentialed, hired, or supervised Dr. 

Schlesinger were all predicated on—and therefore derivative of—the 

negligence of Dr. Schlesinger. See Torres, 15 Ariz. App. at 274-75, 488 P.2d 

at 479-80. Accordingly, the superior court did not err in dismissing those 

claims.

2

¶15 Plaintiffs devote much of their briefs to the argument that 

their independent negligence claims against Defendants are not barred. To 

the extent Plaintiffs argue the superior court dismissed these independent 

negligence claims, their argument misapprehends the court’s judgment and 

the procedural posture of this case. The superior court’s partial final 

judgment dismissed with prejudice only the vicarious negligent 

credentialing, hiring, and supervision claims against Defendants. That was 

proper pursuant to both the explicit terms of the settlement agreement and

the well-established jurisprudence of DeGraff,

3 Torres, Law, and Jamerson. 

The court did not enter any sort of judgment under Rule 54(c), or otherwise 

resolve that portion of the case involving independent liability claims

against Defendants. Accordingly, that portion of the case remains pending.

 

2 Moreover, we reject Plaintiffs’ implication that Arizona’s 1984 

adoption of the Uniform Contribution Among Tortfeasors Act (“UCATA”), 

see A.R.S. §§ 12-2501 to -2509 (2016), should be construed as having 

abrogated Torres with respect to vicarious liability. See generally Law, 217 

Ariz. at 94-96, ¶¶ 9-13, 170 P.3d at 703-05 (discussing UCATA and 

concluding that “UCATA has not changed the law pertaining to vicarious 

liability”). Further, Plaintiffs fail to provide support for their argument that 

the application of Torres and Law has a “chilling effect” on settlements, and 

we decline here to revisit those cases on that basis.

3 DeGraff v. Smith, 62 Ariz 261, 157 P.2d 342 (1945).
KOPP v. PHYSICIANS et al.

Decision of the Court

7

CONCLUSION

¶16 For the foregoing reasons, we affirm the superior court’s 

judgment. We award taxable costs to Defendants upon compliance with 

Arizona Rule of Civil Appellate Procedure 21.