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Ortiz v. Clinton11/12/1996
SKELLY, Judge
This appeal addresses whether an employee who was intoxicated while driving on the job and who failed to heed his co-worker's order to stop the vehicle was acting outside the scope of his employment. We hold that the trial court correctly concluded that the employee was within the scope of his employment and that the co-worker's exclusive remedy against the employee is workers' compensation benefits.
FACTS AND PROCEDURAL HISTORY
Appellant Renee Ortiz and Appellee Jeremy Clinton worked for Hozhoni Foundation for the Handicapped, Inc. ("Hozhoni"). Hozhoni provides homes and full-time care for individuals with developmental disabilities ("residents"). Ortiz was a weekend home manager for Hozhoni, and Clinton was a residential aide in the home Ortiz managed.
On August 21, 1993, Ortiz and Clinton took three residents of the home on a trip in a Hozhoni-owned van. During the trip, Ortiz and Clinton consumed three quarts of beer and one-half of a fifth of tequila. They returned to the home for about an hour before deciding to take the residents to dinner, which Hozhoni employees are encouraged to do.
On the way to the restaurant, Clinton began speeding. Ortiz told Clinton three times to stop, but he refused. Clinton then attempted to pass another car and lost control. The van rolled over into a drainage ditch, seriously injuring Ortiz.
Hozhoni prohibits employees from drinking on the job or engaging in any other conduct that might endanger the residents. Both Ortiz and Clinton acknowledge that their behavior the day of the accident violated these rules. When asked by a State Compensation Fund investigator, "Do you feel that you deserted your employment by drinking as you did?" Clinton answered, "Yes. It was a stupid, stupid thing to do."
Ortiz received workers' compensation benefits. She and her husband also sued Clinton personally. Clinton filed a motion for summary judgment, arguing that the Ortizes' exclusive remedy was workers' compensation benefits pursuant to Arizona Revised Statutes Annotated ("A.R.S.") §§ 23-1021(A) and 23-1022(A) because Clinton was acting within the scope of his employment at the time of the accident. The Ortizes countered, arguing that Clinton had abandoned his employment at the time of the accident because, due to his intoxication, he was not engaged in any act beneficial to Hozhoni and thus was acting outside the scope of his employment.
The trial court granted Clinton's motion for summary judgment, agreeing that the workers' compensation statute barred the Ortizes' lawsuit because Clinton, pursuant to the respondeat superior doctrine, was acting within the scope of his employment at the time of the accident. Neither his intoxication nor his failure to follow Ortiz's instructions to stop took him out of his employment.
Following entry of judgment in favor of Clinton, the Ortizes filed a motion for new trial. The trial court denied the motion, and the Ortizes timely appealed.
Discussion
The Ortizes raise three issues. First, does evidence of Clinton's intoxication create a question of fact as to whether he was acting within the scope of his employment at the time of the accident and thus preclude summary judgment? Second, did Clinton's failure to obey Ortiz's order to stop driving take him outside the scope of his employment? Third, is Clinton's admission that he deserted his employment by drinking on the job admissible at trial?
Preliminarily, however, the parties disagree about what the phrase "acting in the scope of his employment" means in § 23-1022(A) of the workers' compensation statute. The Ortizes a
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