IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

MARCIA MCKEE, the surviving mother of GRANT QUINN MCKEE, 

both individually and on behalf of all statutory beneficiaries of GRANT 

QUINN MCKEE, deceased, Plaintiffs/Appellants,

v.

STATE OF ARIZONA, a public entity; and the ARIZONA STATE 

FORESTRY DIVISION, a public entity, Defendants/Appellees.

No. 1 CA-CV 15-0800

Appeal from the Superior Court in Maricopa County

Nos. CV2014-009068, CV2014-009069 and CV2014-009070

(Consolidated)

The Honorable J. Richard Gama, Judge

AFFIRMED

COUNSEL

Knapp & Roberts PC, Scottsdale

By Craig A. Knapp, Dana R. Roberts and David L. Abney

Counsel for Plaintiffs/Appellants

Arizona Attorney General’s Office, Phoenix

By Brock J. Heathcotte and Daniel P. Schaack

Co-Counsel for Defendants/Appellees

and

Stinson Leonard Street LLP, Phoenix,

By Michael L. Parrish

Co-Counsel for Defendants/Appellees
MCKEE v. STATE, et al.

Opinion of the Court

2

OPINION

Presiding Judge Andrew W. Gould delivered the opinion of the Court, in 

which Judge Peter B. Swann and Judge Patricia A. Orozco joined.

G O U L D, Judge:

¶1 Marcia McKee (“Appellant”) appeals from the superior

court’s order dismissing her claims for wrongful death and intentional 

infliction of emotional distress. Appellant argues the court erred in 

concluding that her son was an employee of the State of Arizona and the 

Arizona State Forestry Division and, as a result, her claim was barred by 

the workers’ compensation statutes’ exclusive remedy provision. 

Appellant also contends she stated a claim for intentional infliction of 

emotional distress and she should be permitted to sue both the State and 

the State Forestry Division. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Beginning in 1997, the State Forestry Division and the Prescott 

Fire Department entered into a cooperative intergovernmental agreement 

(“IGA”) whereby the two agencies agreed to collaborate their resources to 

provide fire protection to the Prescott community and surrounding 

wilderness areas. For his work as a member of the Granite Mountain 

Interagency Hotshot Crew, Grant McKee (“McKee”) was employed by the 

Prescott Fire Department. However, because McKee worked within the 

jurisdictional boundaries of the State Forestry Division pursuant to the IGA, 

he was also deemed an employee of the State. Ariz. Rev. Stat. (“A.R.S.”) §

23-1022(D) (West 2016).

1

¶3 On June 30, 2013, Appellant’s son, McKee, was a member of 

the Granite Mountain Interagency Hotshot Crew who died while bravely 

fighting the Yarnell Hill Fire. At the time of McKee’s death, he was 

unmarried, had no children or dependents, and he was not contributing to 

the support of Appellant.

 

1 We cite to the current version of the statute absent material revisions.
MCKEE v. STATE, et al.

Opinion of the Court

3

¶4 Appellant filed a lawsuit against the State and the State 

Forestry Division seeking damages for wrongful death and intentional 

infliction of emotional distress.2 The State filed a motion to dismiss 

Appellant’s claims, arguing that her wrongful death claim was barred by 

the workers’ compensation exclusive remedy provision and the firefighter’s 

rule, that she failed to state a claim for intentional infliction of emotional 

distress, and that the State Forestry Division was a nonjural entity that 

could not be sued. The court granted the motion and dismissed Appellant’s 

claims with prejudice. Appellant timely appealed. 

DISCUSSION

I. Standard of Review

¶5 We review the superior court’s dismissal of a complaint under 

Rule 12(b)(6) de novo. Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012). 

We review issues of statutory interpretation de novo. City of Tucson v. Clear 

Channel Outdoor, Inc., 218 Ariz. 172, 178, ¶ 5 (App. 2008). In addition, 

whether Appellant’s wrongful death claim is barred by the exclusive 

remedy prescribed in the Arizona workers’ compensation system is a legal 

question subject to de novo review. Mitchell v. Gamble, 207 Ariz. 364, 367,

¶ 7 (App. 2004). 

II. Wrongful Death

¶6 Appellant concedes that if McKee was an employee of the 

State at the time of his death, her ability to sue for wrongful death is limited 

by Arizona’s workers’ compensation exclusive remedy provision. 

However, as discussed more fully below, Appellant argues that McKee was 

not a State employee at the time of his death, and therefore not subject to 

the exclusive remedy provision.

A. Workers’ Compensation: Exclusive Remedy 

¶7 Generally, a plaintiff may bring a wrongful death claim as an 

“independent claim for damages sustained by the decedent’s survivors.” 

Diaz v. Magma Copper Co., 190 Ariz. 544, 549 (App. 1997); see also Vasquez v. 

State, 220 Ariz. 304, 310, ¶ 16 (App. 2008). However, the right to bring a 

wrongful death action exists only if the decedent would have been able to 

maintain an action for damages if death had not ensued. A.R.S. § 12-611; 

Diaz, 190 Ariz. at 549 (stating that “plaintiffs must still come within the 

 

2 Appellant’s case was consolidated with two other similar cases; 

however, all other plaintiffs settled their claims against the State. 
MCKEE v. STATE, et al.

Opinion of the Court

4

terms of the wrongful death statute”). Thus, a claim filed by a plaintiff in a 

wrongful death case is subject to the same defenses as could have been 

asserted against the decedent if he had lived. Diaz, 190 Ariz. at 549. 

¶8 In Arizona, workers’ compensation is the exclusive remedy 

for compensation against an employer for the work-related injury or death 

of an employee. A.R.S. § 23-1022(A). An employee can elect to maintain an 

action at law for damages in lieu of receiving workers’ compensation only 

where an employer’s wilful misconduct caused the employee’s injury or 

death. Id. An employee of a public agency working under the jurisdiction 

and control of another public agency pursuant to an IGA is considered an 

employee of both agencies for purposes of the exclusive remedy provision 

of workers’ compensation. A.R.S. § 23-1022(D); Callan v. Bernini, 213 Ariz. 

257, 260, ¶ 12 (App. 2006) (“[A]n employee of a party to an IGA who is 

injured in the course of employment may not seek damages in a common 

law tort action from another party to the IGA.”).

B. Compliance with A.R.S. § 11-952

¶9 Appellant argues the IGA between the City of Prescott and 

the State Forestry Division was not effective because it was not approved 

in compliance with A.R.S. § 11-952(F). Appellant argues that McKee 

remained an employee of the City of Prescott, and was never an employee 

of the State, because the resolution purporting to approve the IGA did not 

comply with A.R.S. § 11-952(F). This statute provides:

[a]ppropriate action by ordinance or resolution . . . approving 

or extending the duration of the agreement or contract shall 

be necessary before any such agreement, contract or extension 

may be filed or become effective. 

¶10 Appellant interprets A.R.S. § 11-952(F) as requiring an agency 

to specifically approve the duration of an IGA. Here, Appellant claims the 

IGA is ineffective because the City’s resolution does not expressly approve 

the duration of the IGA. As a result, she argues McKee never became an 

employee of the State.

¶11 Our goal in interpreting a statute is to “ascertain the 

legislature’s intent.” Lyons v. State Bd. of Equalization, 209 Ariz. 497, 499, ¶ 8 

(App. 2005). To do so “we look first to the [statute’s] language and will 

ascribe plain meaning to its terms unless the legislature assigned a special 

meaning to one or more terms.” Id. (internal citations omitted). “‘We 

construe the statute as a whole, and consider its context[.]’” People’s Choice 

TV Corp., Inc. v. City of Tucson, 202 Ariz. 401, 403, ¶ 7 (2002) (quoting State ex 
MCKEE v. STATE, et al.

Opinion of the Court

5

rel. Ariz. Dep’t of Revenue v. Phoenix Lodge No. 708, Loyal Order of Moose, Inc.,

187 Ariz. 242, 247 (App. 1996)). “[W]e will not interpret a statute in such a 

way as to produce ‘absurd results,’ or ‘render [any word, phrase, clause, or 

sentence] superfluous, void, insignificant, redundant or contradictory.’” 

TDB Tucson Group, L.L.C. v. City of Tucson, 228 Ariz. 120, 123, ¶ 9 (App. 2011) 

(quoting Patterson v. Maricopa Cty. Sheriff's Office, 177 Ariz. 153, 156 (App. 

1993)).

¶12 We find no textual basis for Appellant’s reading of A.R.S. 

§ 11-952(F). Section 11-952 addresses agreements or contracts that two or 

more public agencies can enter for services or for joint or cooperative action. 

A.R.S. § 11-952(A). Under canons of statutory construction, we read the 

“or” separating “approving” and “extending the duration” to be 

disjunctive. State v. Piotrowski, 233 Ariz. 595, 598, ¶ 16 (App. 2014). Thus, 

we read the language of subsection F as simply requiring appropriate 

agency action approving (1) the agreement, or (2) the duration of any 

extension of the agreement. 

¶13 This construction is also consistent with the context of the 

statute. In addition to duration, an IGA must specify a number of matters, 

including the purpose, financing/budget, and methods to be employed in 

accomplishing its purpose. A.R.S. § 11-952(B)(1)-(4). However, absent from 

subsection F is any language requiring that a public body expressly and 

separately approve any of these requirements. Additionally, A.R.S. § 11-

952(G) provides that an IGA may be extended as many times as the public 

agencies wish but the “extension may not exceed the duration of the 

previous agreement.” Reading section F and G together, the initial IGA

must be approved by a public agency, and if it has a finite duration, and the 

agencies wish to extend the agreement beyond its initial duration, any

extension must be approved in the same manner as the initial IGA. 

¶14 Here, the IGA between Prescott and the State Forestry 

Division directs that it “will continue in force from year to year unless 

terminated by either party.” The resolution passed by the City of Prescott 

approves all the terms of the IGA, including its duration. Because the IGA 

has a perpetual duration, there is no need for the City to pass a resolution 

“extending the duration of the agreement.” A.R.S. § 11-952(F). 

¶15 Accordingly, the resolution approving the IGA complies with 

A.R.S. § 11-952. The IGA is effective. Thus, McKee was an employee of the 

State pursuant to the IGA at the time of his death.
MCKEE v. STATE, et al.

Opinion of the Court

6

C. Wilful Misconduct

¶16 Appellant argues the State’s actions rose to the level of wilful 

misconduct, and therefore her claim is not subject to the exclusive remedy 

provisions of workers’ compensation pursuant to A.R.S. § 23-1022(A). See 

Ariz. Const., art. XVIII, § 8. 

¶17 Wilful misconduct is defined as “an act done knowingly and 

purposely with the direct object of injuring another.” A.R.S. § 23-1022(B). 

The courts have defined four elements that must be present to maintain a 

wilful misconduct action: 

(1) the employer’s wilful misconduct must have been the 

cause of the employee’s injury, 

(2) the wilful misconduct must have been “an act done . . . 

knowingly and purposely with the direct object of injuring 

another,” 

(3) the act that caused the injury must have been the personal 

act of the employer, and 

(4) the act must have reflected “a wilful disregard of the life, 

limb or bodily safety of employees.” 

Gamez v. Brush Wellman, Inc., 201 Ariz. 266, 269, ¶ 6 (App. 2001) (quoting

Ariz. Const. art. XVIII, § 8). 

¶18 Thus, wilful misconduct requires proof of deliberate, 

intentional misconduct; “[e]ven gross negligence or wantonness amounting 

to gross negligence does not constitute a ‘willful act’ under this definition; 

the negligence or wantonness must be accompanied by the intent to inflict 

injury upon another.” Diaz, 190 Ariz. at 551 (citing Serna v. Statewide 

Contractors, Inc., 6 Ariz. App. 12, 15 (1967). There must be “deliberate 

intention as distinguished from some kind of intention presumed from 

gross negligence.” Serna, 6 Ariz. App. at 16.

¶19 Even assuming all facts alleged in Appellant’s complaint are 

true, Appellant fails to allege defendants intended to cause the death of

McKee. Republic Nat. Bank of New York v. Pima Cty., 200 Ariz. 199, 201, ¶ 2

(App. 2001). The complaint alleges a series of negligent and grossly 

negligent acts that, if proven, culminated in the deaths of the Granite 

Mountain Hotshot crew; however, it does not allege these acts were done 

knowingly and purposely with the direct object of injuring the firefighters. 
MCKEE v. STATE, et al.

Opinion of the Court

7

See Serna, 6 Ariz. App. at 16 (recognizing that the death of the decedent was 

the direct result of refusal to follow safety recommendations of inspectors 

but finding no wilful misconduct). Specifically, Appellant argues the 

actions of the division supervisor and an air tactical supervisor in leaving 

their posts was a dereliction of duty causing McKee’s death. However, 

Appellant does not allege that either of the supervisors did so with the 

deliberate intention of harming McKee or any member of the Granite 

Mountain Hotshot crew. 

¶20 Thus, as a matter of law, Appellant’s complaint does not 

allege that defendants acted with the requisite intent to constitute wilful 

misconduct. See Fid. Sec. Life Ins. Co. v. State, Dep’t of Ins., 191 Ariz. 222, 224, 

¶ 4 (1998) (affirming the dismissal of a complaint if “satisfied as a matter of 

law that plaintiffs would not be entitled to relief under any interpretation 

of the facts susceptible of proof”).

D. Waiver

¶21 Appellant reasons that because she is not eligible to receive 

McKee’s death benefits under workers’ compensation, she is not bound by 

her son’s election to receive workers’ compensation benefits. In support of 

this position, she reads A.R.S. § 23-1024, which states that an employee who 

institutes a proceeding against his employer waives any right to 

compensation, to indicate that a party who cannot receive compensation 

cannot waive the right to sue. Thus, she concludes that because she could 

not waive the right to sue, she should be permitted to maintain a wrongful

death action against the State.

¶22 Appellant’s argument is contrary to established law. In Diaz,

the decedent’s parents, who were nondependents and ineligible to receive 

workers’ compensation benefits, argued they could not be bound by their 

son’s election. Id., at 548. The court rejected this argument, and held that 

an employee’s election of workers’ compensation benefits “binds not only 

the employee’s dependents, but the employee’s nondependent parents as 

well.” Id., at 550-51. The court reasoned that a wrongful death action “must 

still come within the terms of the wrongful death statute,” and the 

decedent’s parents were “subject to the same defenses as could have been 

asserted against the decedent, had the decedent lived and brought an action 

for personal injury.” Diaz, 190 Ariz. at 549; see Mariscal v. American Smelting 

& Refining Co., 113 Ariz. 148, 149-50 (1976) (holding that nondependent 

parents of deceased worker could not bring a wrongful death action against 

his company because “[t]he parents’ right to sue were determined by the 

decedent’s decision to accept the provisions of the [w]orkmen’s 
MCKEE v. STATE, et al.

Opinion of the Court

8

[c]ompensation [a]ct.”). Diaz also reasoned that allowing the 

nondependent parents to avoid their son’s election would undermine the 

State’s “compelling interest in the preservation and integrity of its workers’ 

compensation system.” Id., at 550. 

¶23 Accordingly, we conclude that Appellant’s wrongful death 

claim is barred by operation of the exclusive remedy provision of the 

workers’ compensation statutes.

3

III. Intentional Infliction of Emotional Distress

¶24 The complaint alleges two factual bases for Appellant’s 

intentional infliction of emotional distress claim. The first is that the 

defendants’ reckless and negligent actions led to McKee’s death which 

resulted in severe emotional harm to Appellant. The second is that the 

defendants negligently misrepresented facts regarding the Yarnell Fire 

incident in an effort to avoid blame for McKee’s death which violated the 

public trust and caused emotional harm to Appellant. Both parties concede 

that these claims are factually related but separate and independent from 

Appellant’s wrongful death claim; as a result, the exclusive remedy 

provisions of the workers’ compensation statutes do not apply. 

¶25 The tort of intentional infliction of emotional distress allows 

recovery where (1) the conduct by the defendant is “extreme” and 

“outrageous”; (2) “the defendant either intend[s] to cause emotional 

distress or recklessly disregard[s] the near certainty that such distress will 

result from his conduct”; and (3) “severe emotional distress occur[s] as a 

result of defendant’s conduct.” Ford v. Revlon, Inc., 153 Ariz. 38, 43 (1987);

Cont'l Life & Acc. Co. v. Songer, 124 Ariz. 294, 304–05 (App. 1979). For one 

to recover for intentional infliction of emotional distress arising from death 

or injury to a family member, the plaintiff must allege she was present at 

the time of the extreme and outrageous conduct. Restatement (Second) of 

Torts § 46(2) & cmt. l (limiting liability for intentional infliction of emotional 

distress to plaintiffs that are present at the time of the conduct “as 

distinguished from those who discover later what has occurred”); see also 

Ford v. Revlon, 153 Ariz. at 43 (stating that Arizona follows the elements set 

out in Restatement (Second) of Torts). 

 

3 Because we conclude that the exclusive remedy of the workers’ 

compensation statutes applies to bar Appellant’s wrongful death action, we 

do not address whether the common-law firefighter’s rule would also bar 

Appellant’s claim.
MCKEE v. STATE, et al.

Opinion of the Court

9

¶26 Appellant has not alleged sufficient grounds for an 

intentional infliction of emotional distress claim. Specifically, Appellant 

has failed to allege that she was present at the time of the allegedly extreme 

and outrageous conduct leading to her son’s death, or that any of 

defendants’ conduct was directed at her. We find no error. 

IV. Nonjural Entity

¶27 Appellant argues the trial court erroneously concluded the 

State Forestry Division was a nonjural entity when it dismissed her claims 

against that party. Appellant reasons that compliance with the notice of 

claim statute, A.R.S. § 12-821.01, gave rise to her ability to sue the State 

Forestry Division. 

¶28 “Governmental entities have no inherent power and possess 

only those powers and duties delegated to them by their enabling statutes.” 

Braillard v. Maricopa Cty., 224 Ariz. 481, 487, ¶ 12 (App. 2010). “Thus, a 

governmental entity may be sued only if the legislature has so provided.” 

Id. The legislature will so provide in plain language in the entity’s enabling 

statutes. See, e.g., A.R.S. § 38-882(D) (“The corrections officer retirement 

plan is a jural entity that may sue and be sued.”); A.R.S. § 23-106(A) (“The 

[Industrial] commission may, in its name, sue and be sued.”).

¶29 Here, there is no provision in the State Forestry Division 

enabling statute stating that it may sue or be sued. See A.R.S. §§ 37-1301, -

1306. As a result, the State Forestry Division is a nonjural entity. 

¶30 Additionally, the notice of claim statute does not, as 

Appellant contends, contain language suggesting its purpose is to confer 

the power to sue and be sued on a nonjural entity. When a plaintiff has a 

claim against a public entity, the notice of claim statute requires the plaintiff 

to file notice with the public entity stating a factual basis and a settlement 

amount for the claim prior to filing the cause of action. A.R.S. § 12-821.01. 

However, the purpose of the notice of claim statute is limited to providing 

“the government entity with an opportunity to investigate the claim, assess 

its potential liability, reach a settlement prior to litigation, budget and 

plan.” Havasupai Tribe of Havasupai Reservation v. Ariz. Bd. of Regents, 220 

Ariz. 214, 223, ¶ 30 (App. 2008). 

¶31 Finally, we must construe the notice of claim statute in 

harmony with the enabling statutes for the State Forestry Division. 

Midland Risk Mgmt. Co. v. Watford, 179 Ariz. 168, 171 (App. 1994) (“It is a 

fundamental rule of statutory construction that courts will construe 

conflicting statutes in harmony when possible.”). Here, the more specific 
MCKEE v. STATE, et al.

Opinion of the Court

10

statute is the enabling statute for the State Forestry Division, while the 

notice of claim statute is a general statute that applies to all claims against 

public entities; as a result, the enabling statute controls. Watford, 179 Ariz.

at 171. The logical prerequisite to having a cause of action against a public 

entity is that the entity has the power to sue and be sued. See Braillard, 224 

Ariz. at 487, ¶ 12. Thus, in instances where a nonjural entity has been served 

a notice of claim, the more specific enabling statutes of the agency will 

control regarding the question of whether the entity has the power to sue 

or be sued. In this case, the State Forestry Division remains a nonjural entity 

regardless of Appellant’s compliance with A.R.S. § 12-821.01. The superior

court correctly dismissed Appellant’s claims against the State Forestry 

Division.

CONCLUSION

¶32 For the reasons discussed above, we affirm the superior

court’s order dismissing Appellant’s complaint.