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Apodaca v. AAA Gas Co.3/11/2003
at its conclusion, Velasquez signed a two and one-half page statement prepared by the investigator. According to Plaintiffs, the pertinent and damaging statements attributed to Velasquez were as follows:
(1) he and Joe Salazar were helping diagnos the truck through procedures . . . on the back of the truck & there was no flow coming out; (2) Joseph had the bypass hose hooked up off the back into the tank to see if it would pump. . . ; and (3) when we got the truck from AAA, they said they had just put some fuel in there, but I didn't know how much. (Internal quotation marks omitted.)
Plaintiffs challenge the admission of these statements on three grounds: (1) the statement is prohibited by NMSA 1978, § 41-1-1 (1971); (2) the statement was not properly authenticated; and (3) as a result of medication and post traumatic shock, Velasquez was incompetent to give the statement at the time it was taken, making the statement unreliable.
Admissibility Under Section 41-1-1 (Release Act)
The Release Act governs settlements, releases, and statements of injured patients. The Act excludes from evidence any statement for "use in negotiating a settlement or obtaining a release" taken by a "person whose interest is or may become adverse" to an injured patient during the patient's first fifteen days of confinement in a hospital, if it is disavowed fifteen days after discharge or not acknowledged before a notary . Section 41-1-1(A)(3). The provisions of the Act do not apply if the injured party prepares a written, notarized acknowledgment of his or her willingness to give the statement at least five days before the statement is taken. NMSA 1978, Section 41-1-2 (1971)
Although the statement was taken by OSHA, a government agency and a non-party to the suit, Plaintiffs argue OSHA was a potentially "adverse party" within the meaning of the statute, because the OSHA report blamed Cañada employees for the explosion. The trial court, however, found that OSHA was not an adverse party and that the statute was not applicable.
We agree under the facts of this case that the statute is not applicable. On its face, the Release Act pertains only to adverse or potentially adverse parties and prevents those parties from obtaining statements from injured patients for the purpose of settlement or release. " he statute was enacted to prevent injustice to [the insured by an insurer] while he is hospitalized or under the care of a doctor." Mitschelen v. State Farm Mut. Auto. Ins. Co., 89 N.M. 586, 589, 555 P.2d 707, 710 (Ct. App. 1976); Ponce v. Butts, 104 N.M. 280, 283, 720 P.2d 315, 318 (Ct. App. 1986) ("The Act requires fair and impartial conduct by the insurer.").
Unlike an insurance investigator who may be profit motivated, an OSHA compliance officer conducting a routine interview in the normal course of business is not an adverse party within the meaning of the statute. The stated purpose of OSHA is "to assure every employee safe and healthful working conditions" at least in part by "the effective enforcement of the health and safety regulations." NMSA 1978, § 50-9-2(B) (1993). Specifically, the Act requires every employer to furnish a workplace free from hazards that cause or are likely to cause death or serious physical harm to its employees. NMSA 1978, § 50-9-5(A) (1975). To accomplish this goal, OSHA officers are authorized to question employees. NMSA 1978, § 50-9-10(A)(2) (1993). Moreover, the OSHA officer in this case was not interested in seeking a settlement or negotiating a release from the employee, even if the statement subsequently resulted in the issuance of a citation to the employer. Therefore, the subject matter of the statute, pr
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