$36 Million Claim Filed in Yarnell Hill Fire

The first claim has been filed in the tragic Yarnell Hill Fire that killed 19 firefighters on June 30, 2013. The family of firefighter Grant McKee filed a civil claim that seeks in excess of $36 million.

The claim alleges negligence on the part of the City of Prescott, the County of Yavapia, and the State of Arizona in violating the 10 standard firefighting orders, ignoring the 13 watch-out situations, and various other strategic and tactical errors.

Here is a copy of the claim: YARNELL FIRE SUIT- notice of claim

Interestingly, the claim argues that because McGee was denied workers compensation benefits, the city of Prescott cannot claim liability protection under the workers compensation exclusivity principle. Under the exclusivity doctrine, workers compensation benefits are considered to be the “exclusive” remedy to an employee who suffers a LODD or injury. By virtue of denying McKee workers comp coverage the city opened itself up to liability.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer’s Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

  • Jim Panknin

    I dont' see much of anything good coming from this lawsuit, especially if the charges against the defendants are upheld.

  • Andrew

    Re workers comp, the claim document doesn't say that McKee was *denied* workers comp, it says "… Marcia McKee did not make a claim for or receive … benefits …even if she had, the City of Prescott failed to properly post the … rule in the workspace…." (page 14, Section 4, "City of Prescott is Not Entitled….")

    Now, I'm far from being an attorney, but it seems to me there is a BIG difference between "was denied … bebefits" and "did not make a claim for" benefits.

    Or am I misreading this? (Wouldn't be the first time, won't be the last)

    • Andrew

      The issue is not what the complaint says – it is what the law is. Arizona is one of those states that is rather strict in terms of the benefits it grants to employees.

      In this case the state in its infinite wisdom decided that certain of the 19 dead firefighters did not qualify for workers comp. Here is an article on it.

      • Andrew

        Okay, that sorta-kinda makes sense (well, it doesn't really *make sense* but it makes sense, if you follow my drift).  Thank you for the clarification.

  • Jim Panknin

    Well, I guess I am confused now.  I had understood that the comp. package they are disputing was one offered by the City of Precott to full time employees.  I assume this package is more lucrative than the Arizona State Workers Comp. which I would think would still be in effect for those not covered by the citys program.  I had thought that all the disputes concerning benefits were centered around Prescott not being able to award benefits because of employment status of the firefighters.  I haven't heard, until now, anything about the state refusing to give benefits. 
    I would have thought that if an employer doesn't offer comp. benefits thent he state benefits would auto maticlly take over, much like a volunteer firefighter is typically(?) covered at an incident.  The volunteer is not an employee with rights to benefits in the collective bargaining agreement, but he/she is covered by the state workers comp. if injured or killed in the line of duty.

    • Jim

      Not every state grants volunteer firefighters employee status for workers compensation purposes. Even then, it is not the state's responsibility to pay for the workers comp insurance in the event the locals fail to. It falls back on the local community to pay for the coverage.

      Reading the series of articles that came out in August (the ones where the families claimed they were being cheated out of benefits because of a "loophole") combined with this allegations in the lawsuit – it appears that the McGee family is saying that they were denied workers comp benefits. Perhaps there are other benefits they believe they were cheated out of as well – but when workers compensation is one of those benefits there is a layer of liability protection that is lost.

      If the community denied McGee (let's say) life insurance coverage that they granted to full time employees… the family may feel cheated… but it has no liability consequence to the community.

      If the community denied McGee workers comp coverage… besides the family feeling cheated – it allows the family to sue the community and the community loses the immunity protection it otherwise would have had through the workers comp exclusivity doctrine.

  • Jim Panknin

    So, to make sure I understand correctly.  If the jurisdiction has a workers comp. package in the CBA that covers full-time employees and then covers it's part-time employees with state workers comp. then there would be no liability (even if the state workers comp. pays out considerably less than the CBA comp. does).
    Conversely, if the jurisdiction has workers comp. through the CBA for full-time employees and did nothing to cover the part-time employees then they would be liable.

    • Jim

      Workers comp cannot be created by a CBA, or even local ordinances. It has to be created by state law. It involves a socialological-trade off: an injured workers gets taken care at an employers expense (no-fault) – in exchange for giving up the right to sue the employer and co-workers. If you think Obama-care is controversial you should have been around for the discussions about workers comp!!!!!

      It is the trade off that is at issue in the McGee lawsuit. If McGee was not entitled to workers comp under state law because he was considered to be a seasonal employee (or for what ever other reason there is… contract employee, compensated volunteer, special loophole employee to save the town some money… what ever the excuse was for him not to be covered) then the city is not entitled to the normal workers comp immunity.

      You used the expression "workers comp package in the CBA". Anything in the CBA may be considered part of the employees comp package but it is not part of workers compensation.

      Both of my books cover this issue pretty extensively, and discuss the various exceptions.

  • Jim Panknin

    So if all employees are covered by state workers comp. and full-time employees are given extra benefits per the CBA then the jurisdiction has no liability to the part-time employees for the additional benefits?
    This has been my understanding of what the survivors have been fighting.  They feel that they should be receiving the additional benefits.  Two articles to support this:
    Firefighter Close Calls even states specifically that "It should be noted that ALL of the families will receive worker's compensation and the federal payment of $328,000. "
    So it will be interesting to see where this all leads to. 

    And I guess that I need to pick up copies of your books, 🙂

    • Jim

      The comp issue is separate from the benefits issue. I do not know enough about the specifics of the Granite Mountain Hotshots employment status to say for sure – but many employers try to avoid having to pay their employees workers comp (I think its something they teach in beancounter… I mean business school today)… they will call them subcontractors, they will say they are temporary employees, etc. etc. etc. Again – I do not know what the specifics are – but I do know employers try to keep their costs down – and workers comps costs do add quite a bit to the hourly cost of an employee.

      What employers forget (or perhaps choose to risk) is that workers comp gives the employer liability protection in the event the employee is hurt/killed.

      The equality between the benefit packages that the city gives to full and part time employees is a separate matter entirely from the workers comp issue. There are questions of fairness (is it fair to deny part time employees the same benefits that full timers get) and there are also questions of whether these firefighters actually were part timers/seasonale – or whether they qualified as full time employees. Again… those issues are different from the workers comp issues. They tend to get lumped together (even by well intentioned news reporters) but they are separate issues.


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