Estate of Wesolowski v. Indus. Comm'n
In Estate of Wesolowski v. Indus. Comm'n, 192 Ariz. 326, 965 P.2d 60 (App. 1998), Special Fund contested liability for the claim and the matter proceeded to a hearing. Id. at 328,6, 965 P.2d at 62.
The election of remedies defense was not asserted until after the ALJ had issued her post-hearing award. Id. at 329,9, 965 P.2d at 63.
When Special Fund requested administrative review, it asserted the defense for the first time. Id. The ALJ ruled that it was too late. Id.
The Court agreed, explaining:
This ruling by the ALJ was correct. Section 23-1024(B) provides an "election of remedies defense." See Spear v. Industrial Comm'n, 114 Ariz. 601, 603-05, 562 P.2d 1099, 1101-03 (App. 1977). The defense is lost if not asserted before an award for a compensable claim is entered. Id. at 603, 562 P.2d at 1101. Election of remedies is similarly treated in other areas of law. See 28A C.J.S. Election of Remedies 31, at 670 (1996) (characterizing election of remedies as an affirmative defense that is waived unless timely asserted). Id. at10.
The Court concluded that Special Fund had waived the defense. Id. at11.