SUPREME COURT OF ARIZONA

En Banc

PATRICK GALLOWAY and LOIS ) Arizona Supreme Court

GALLOWAY, husband and wife, dba ) No. CV-02-0269-PR

GALLOWAY CONSTRUCTION, )

) Court of Appeals

Petitioners, ) Division Two

) No. 2 CA-SA 02-0014

v. )

) Pinal County Superior

THE HONORABLE JANNA L. ) Court

VANDERPOOL, JUDGE OF THE SUPERIOR ) No. CV200100166

COURT OF THE STATE OF ARIZONA, )

in and for the County of Pinal, )

) OPINION

Respondent, )

)

)

)

FRANK CASTRO and CINDY CASTRO, )

the surviving parents of JOSHUA )

CASTRO, deceased, )

)

Real Parties in Interest. )

__________________________________)

Special Action from the Superior Court of Pinal County

No. CV200100166

The Honorable Janna L. Vanderpool, Judge

ORDER REVERSED AND REMANDED TO SUPERIOR COURT WITH INSTRUCTIONS

________________________________________________________________

Decision Order of the Court of Appeals, Division Two

No. 2 CA-SA 02-0014 Filed June 3, 2002

AFFIRMED

________________________________________________________________

Skypeck & Sorensen Phoenix

by Don D. Skypeck

and Wendi A. Sorensen

and John H. Ishikawa

Attorneys for Petitioners

Law Office of Michael T. Middleton Tempe

by Michael T. Middleton

Attorney for Real Parties in Interest

________________________________________________________________
2

McGregor, Vice Chief Justice

¶1 The question presented is whether the survivors of an

employee who dies from a work-related injury can elect between

accepting workers’ compensation or pursuing a legal action when the

employer failed to provide a statutorily required notice informing

the employee of his or her option to reject workers’ compensation.

We adhere to the principle of stare decisis and hold that because

Arizona’s statutes make the right to elect personal, the right

does not pass to a deceased employee’s survivors.

I.

¶2 Frank and Cindy Castro (“the Castros”) are the nondependent, surviving parents of Joshua Castro. Joshua died after

a trench collapsed on him while he worked for the Galloway

Construction Company, owned by Patrick and Lois Galloway (“the

Galloways”). The Castros brought a wrongful death action against

the Galloways for the death of their son.

¶3 The Galloways moved to dismiss the wrongful death action,

arguing that under Arizona Revised Statutes (A.R.S.) section 23-

1022.A (1995), workers’ compensation provided the exclusive remedy.

The trial judge denied the motion to dismiss.

¶4 The Galloways filed a petition for a special action in

the court of appeals. The court accepted jurisdiction and granted

relief, relying on Corral v. Ocean Accident & Guarantee Corp., 42

Ariz. 213, 23 P.2d 934 (1933), and Jackson v. Northland Constr.
1 The Arizona Constitution directs the legislature to

establish a workers’ compensation law. Ariz. Const. art. XVIII,

§ 8. The current workers’ compensation law appears at A.R.S.

section 23-901 through 23-1091.

3

Co., 111 Ariz. 387, 531 P.2d 144 (1975). Galloway v. Vanderpool,

No. 2 CA-SA 2002-0014, at 7 ¶ 11 (Ariz. Ct. App. June 3, 2002).

In its concluding remarks, however, the court of appeals asked this

court to revisit the holdings of Corral and Jackson. Id. We

accepted review and exercise jurisdiction pursuant to Article VI,

Section 5.3 of the Arizona Constitution.

II.

¶5 In most instances, Arizona’s workers’ compensation law1

provides the exclusive remedy for a worker injured or killed in a

work-related accident, unless the worker rejected compensation

prior to being injured. A.R.S. § 23-906.C (1995) (workers

conclusively presumed to have elected compensation unless they

reject compensation prior to injury); id. § 23-1022.A (making

workers’ compensation the exclusive remedy). The compensation

statutes, however, also include important exceptions to the general

rule.

¶6 One exception applies when an employer fails to post a

written notice, required by A.R.S. section 23-906.D, informing

employees that they have the right to reject compensation. If an

employer fails to provide the required notice, an employee is not

deemed to have accepted compensation and retains the right to elect
2 Section 23-906.E provides:

If an employer fails to post and keep posted the notice

as required by this section, or fails to keep available

at the place where the employees are hired the blank

forms of notice to be signed by the employee, no employee

who thereafter engages in employment for such employer,

during the time that the notices are not posted or during

the time that the blanks are not available, shall be

deemed to have accepted the provisions of this chapter,

and it shall be optional for such employee, if injured

during the period when blanks were not available or the

notice was not posted, to accept compensation under the

provisions of this chapter or maintain other action

against the employer.

A.R.S. § 23-906.E (emphasis added).

4

to pursue a statutory or common law remedy after his injury. Id.

§ 23-906.E.2

¶7 The Galloways conceded, for purposes of the motion to

dismiss, that they did not post the required notice. Thus, had

Joshua Castro survived the trench collapse, he could have elected

between accepting compensation and pursuing a legal action.

Because he did not survive, his parents brought this wrongful death

action, giving rise to the question whether the right to elect a

remedy in the event of the employee’s death passes to the

employee’s survivors or personal representative.

¶8 We have twice addressed this issue and twice held that

the option of rejecting workers’ compensation if an employer fails

to post the required notice is personal to the employee and,

therefore, does not pass to the employee’s survivors or personal

representative. Jackson, 111 Ariz. at 390, 531 P.2d at 147;
3 At the time we decided Corral, the employers’ liability

law was codified at sections 3153 through 3162 of the Civil Code

of 1913. The current employers’ liability law appears at A.R.S.

sections 23-801 through 23-808 (1995).

4 The law at the time of Corral was similar to A.R.S.

section 23-906 in that “no employee . . . [employed] during the

time” the employer failed to post a notice “shall be deemed to have

accepted the provisions of this Act, and it shall be optional for

such employee, if injured during said period . . . to accept

compensation . . . or maintain other action against the employer

under the laws of this State.” 1925 Ariz. Sess. Laws ch. 83, § 60.

5 Section 12-611 provides:

5

Corral, 42 Ariz. at 220, 23 P.2d at 937.

¶9 In Corral, an employee died after being electrocuted

while constructing a hotel. 42 Ariz. at 216, 23 P.2d at 935. The

decedent’s administratrix brought an action under Arizona’s

employers’ liability law,3 arguing that the compensation act did

not bar the suit because the employer failed to post the

statutorily required notices informing employees of their right to

reject compensation.4 Id. at 216-19, 23 P.2d at 935-36. We held

that the administratrix could not elect which remedy to pursue and

explained:

The employee’s personal representative is given no right

of option. The right is personal to the employee.

If an employee is killed and has not during his

lifetime rejected the compensation law, his rights and

those of his dependents are conclusively and irrevocably

fixed by the compensation law and must be administered

by the Industrial Commission.

Id. at 220, 23 P.2d at 937.

¶10 In Jackson, a wrongful death action,5 we again confronted
When death of a person is caused by wrongful act, neglect

or default, and the act, neglect or default is such as

would, if death had not ensued, have entitled the party

injured to maintain an action to recover damages in

respect thereof, then, and in every such case, the person

who or the corporation which would have been liable if

death had not ensued shall be liable to an action for

damages, notwithstanding the death of the person injured,

and although the death was caused under such

circumstances as amount in law to murder in the first or

second degree or manslaughter.

A.R.S. § 12-611 (1992).

6 Section 23-1024 provides:

A. An employee, or his legal representative in event

death results, who accepts compensation waives the right

to exercise any option to institute proceedings in court

against his employer or any co-employee acting within the

scope of his employment, or against the employer’s

workers’ compensation insurance carrier or administrative

service representative.

6

the issue of who can exercise the option and affirmed the Corral

holding that the option provided by A.R.S. section 23-906 is

personal to the employee. 111 Ariz. at 390, 531 P.2d at 147.

Employees Jackson and Ovary died after sustaining work-related

injuries. Id. at 388, 531 P.2d at 145. Jackson’s widow and the

personal representative of Ovary’s estate brought wrongful death

actions against the employer, claiming that the employer failed to

post the required statutory notices. Id.

¶11 The plaintiffs in Jackson, raising an argument also made

in this proceeding, urged this court to overrule Corral. Id. They

argued that Corral’s holding is inconsistent with A.R.S. section

23-1024,6 which states that an employee, or his legal
B. An employee, or his legal representative in event

death results, who exercises any option to institute a

proceeding in court against his employer waives any right

to compensation.

A.R.S. § 23-1024 (1995) (emphasis added).

7

representative if death results, waives the right to institute

court proceedings if the employee or representative accepts

compensation. Id. That language, the plaintiffs argued, was

meaningless if it did not allow them, as legal representatives of

employees where death resulted, to exercise the right to elect

between compensation and a tort action. Id. at 388-89, 531 P.2d

at 145-46. Two dissenting justices agreed with this argument,

asserting that Corral made “surplusage the phrase ‘or his legal

representative in the event death results.’” Id. at 391, 531 P.2d

at 148 (Cameron, C.J., dissenting) (quoting A.R.S. § 23-1024).

¶12 The Jackson majority, however, rejected the plaintiffs’

contention:

The section merely provides what occurs when “any option”

has been exercised. It does not purport to define what

the options are, nor does it specifically state who may

exercise the options. The section provides that when an

option is exercised it has certain consequences. The

section is not the grant of authority for exercising that

option.

Id. at 389, 531 P.2d at 146.

¶13 Moreover, the majority pointed out, during the forty

years after this court decided Corral, although the legislature had

amended and revised the workers’ compensation statutes, it had not
7 The pertinent clause of A.R.S. section 23-907 provides:

“An employee of [an employer who fails to secure compensation], or

the employee’s dependents in case death ensued, may, in lieu of

proceeding against the employer by civil action in court, file his

application with the commission for compensation in accordance with

the provisions of this chapter . . . .” A.R.S. § 23-907.B (Supp.

2002) (emphasis added).

8 The Castros were not dependents of their son Joshua.

This fact, however, does not affect our analysis of whether the

8

modified the language of section 23-906 so as to alter the Corral

holding. Id. at 388, 531 P.2d at 145. The court presumed,

therefore, that the legislature had approved of the statutory

construction of Corral and had “adopted such construction for the

re-enacted statute.” Id.

¶14 The Jackson majority found additional support for its

holding by comparing the language of A.R.S. section 23-906, which

governs the effect of an employer’s failure to post the required

notice, with that of section 23-907,7 which governs the effect of

an employer’s failure to obtain compensation insurance or establish

its ability to self-insure. Id. at 390, 531 P.2d at 147. In

section 23-906, the notice statute, the legislature granted only

the employee the right to elect a remedy after sustaining an

injury. In section 23-907, in contrast, the legislature

specifically granted both the employee and his dependents in the

event of death the right to elect between a civil action or

compensation if the employer failed to procure workers’

compensation insurance.8 The court found this distinction
Castros can exercise the option provided by A.R.S. section 23-906.

9 Since our decisions in Corral and Jackson, Arizona courts

have consistently recognized and applied the rule that the right

to elect a remedy is personal to the employee. Begay v. Kerr-McGee

Corp., 499 F. Supp. 1317, 1323 (D. Ariz. 1980); Coyner v. Indus.

Comm’n., 77 Ariz. 210, 212-13, 269 P.2d 712, 713 (1954); Ringling

Bros. & Barnum & Bailey Combined Shows, Inc. v. Superior Court, 140

Ariz. 38, 45, 680 P.2d 174, 181 (App. 1983); Johnson v. Kerr-McGee

Oil Indus., Inc., 129 Ariz. 393, 397, 631 P.2d 548, 552 (App.

1981); Ream v. Wendt, 2 Ariz. App. 497, 502, 410 P.2d 119, 124

(1966).

9

significant, noting that “when the legislature wanted to grant an

option to the dependents as well as the employee” it did so by

clearly extending the right to dependents. Id.

¶15 Now, seventy years after we decided Corral and nearly

thirty years after our Jackson decision, the Castros ask us to

overturn the longstanding rule that the right to elect between

compensation and a legal remedy is personal to an employee.9 The

arguments the Castros advance do not lack force. As the Castros

point out, the effect of the interpretation adopted in Corral and

Jackson is to deprive an employee’s survivors of the opportunity

to bring an action for damages pursuant to A.R.S. section 12-611.

They also question the wisdom of a policy that permits a deceased

employee’s dependents to elect between workers’ compensation and

an action at law if an employer fails to obtain compensation

insurance but not if an employer fails to post a required notice.

They ask that we interpret section 23-906 as depriving an employer

of immunity from actions at law, which would result in a
10

noncompliant employer facing the same consequences, regardless

whether the injured employee survives. Because we earlier rejected

these arguments, we must consider them within the context of our

earlier decisions and the doctrine of stare decisis.

¶16 The doctrine of stare decisis, which requires us to give

weight to previous decisions addressing the same issue, seeks to

promote reliability so that parties can plan activities knowing

what the law is. See White v. Bateman, 89 Ariz. 110, 113, 358 P.2d

712, 713-14 (1961). Importantly, our deference to precedent is

strongest when prior decisions construe a statute. See State v.

Hickman, No. CR-01-0424-PR, 2003 WL 21142964, at *10 ¶ 38 (Ariz.

May 19, 2003). “[E]ven those who regard ‘stare decisis’ with

something less than enthusiasm recognize that the principle has

even greater weight where the precedent relates to interpretation

of a statute.” Walker v. Walker, 178 S.E.2d 46, 46 (Ga. Ct. App.

1970).

¶17 We are most likely to adhere to precedent interpreting

a statute because, if the court interprets the statute other than

as the legislature intended, the legislature retains the power to

correct us. See Edelman v. Jordan, 415 U.S. 651, 671 n.14, 94 S.

Ct. 1347, 1360 n.14 (1974). Once published, our interpretation

becomes part of the statute. See Local 266, Int’l Bhd. of Elec.

Workers v. Salt River Project Agric. Improvement & Power Dist., 78

Ariz. 30, 43, 275 P.2d 393, 402 (1954). If the legislature amends
10 See 1987 Ariz. Sess. Laws, 3d Spec. Sess., ch. 2, § 2;

1984 Ariz. Sess. Laws ch. 188, § 23; 1983 Ariz. Sess. Laws ch. 87,

§ 1; 1980 Ariz. Sess. Laws ch. 246, § 21; 1978 Ariz. Sess. Laws ch.

92, § 7; 1977 Ariz. Sess. Laws ch. 109, § 1.

11

a statute after it has been judicially construed, but does not

modify the statute in a manner that changes the court’s

interpretation, we presume the legislature approved of the court’s

construction and intended that it remain a part of the statute.

Cagle v. Butcher, 118 Ariz. 122, 124 n.2, 575 P.2d 321, 323 n.2

(1978); Jackson, 111 Ariz. at 388, 531 P.2d at 145; Madrigal v.

Indus. Comm’n, 69 Ariz. 138, 144, 210 P.2d 967, 971 (1949); Hause

v. City of Tucson, 199 Ariz. 499, 502 ¶ 10, 19 P.3d 640, 643 (App.

2001). Accordingly, if the court revises its statutory

construction in a later decision, our departure from precedent

arguably “amounts to an amendment of the statute itself rather than

simply a change in the thinking of the judiciary with respect to

common law concepts which are properly” within this court’s

control. Froud v. Celotex Corp., 456 N.E.2d 131, 137 (Ill. 1983).

¶18 We conclude that the principle of stare decisis applies

with particular force in this matter. In Jackson, we declined to

reverse Corral, noting that the legislature had re-enacted A.R.S.

sections 23-906 and 23-1024 in substantially the same language.

111 Ariz. at 388, 531 P.2d at 145. Notably, since our Jackson

decision, the legislature has amended A.R.S. section 23-906 six

more times,10 and made only minor changes, none of which altered the
12

Corral/Jackson rule. We therefore must presume that the

legislature approves of this court’s holding that the right to

elect between compensation and legal remedies when an employer

fails to post notice is personal to the employee.

¶19 The legislature, of course, can amend the workers’

compensation statutes to afford relief of the kind sought here by

the Castros, and that body provides the appropriate forum to argue

that public policy considerations favor abandoning the rule

announced in Corral and Jackson. See Kilpatrick v. Superior Court,

105 Ariz. 413, 422, 466 P.2d 18, 27 (1970); State v. Cotton, 197

Ariz. 584, 591 ¶ 26, 5 P.3d 918, 925 (App. 2000).

III.

¶20 For the foregoing reasons, we affirm the court of

appeals’ decision order. We reverse the trial court’s order and

remand with instructions to grant the Galloways’ motion to dismiss.

____________________________________

Ruth V. McGregor, Vice Chief Justice

CONCURRING:

____________________________________

Charles E. Jones, Chief Justice

____________________________________

Rebecca White Berch, Justice
*Pursuant to Article VI, Section 3 of the Arizona

Constitution, the Honorable Sheldon H. Weisberg, Judge of the

Arizona Court of Appeals, Division One, was designated to sit on

this case.

13

__________________________________

Michael D. Ryan, Justice

____________________________________

Sheldon H. Weisberg, Judge*