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Eskew v. National Farmers Union Insurance Co.9/18/2000
Plaintiffs-Appellants Gary and Vickie Eskew (collectively, Employee) and Intervenors-Appellees National Farmers Union Insurance Company and ENMR Telephone Cooperative (collectively, Insurer) dispute whether Insurer may be assessed costs when there was no net recovery for Employee in his lawsuit against alleged tortfeasors. The trial court ruled as a matter of law that Insurer could not be assessed any share of the costs. We reverse.
Facts
Employee was injured at work. Insurer paid benefits under the Workers' Compensation Act, NMSA 1978 §§ 52-1-1 to 52-10-1 (1929, as amended through 1999) (the Act). Employee brought suit against Defendants Michael A. Rowley, M.D. and Mario Gutierrez, M.D. for alleged medical malpractice for their treatment of his work-related injury. Employee settled with Rowley but went to trial with Gutierrez.
Trial was scheduled for October 26, 1998. Insurer moved to intervene to protect its right to reimbursement on October 13, 1998, attaching a proposed complaint-in-intervention. The court granted the motion on October 30, 1998, after the case had gone to the jury. On the same day, the jury returned a verdict in favor of Gutierrez. Judgment was entered accordingly.
The trial court awarded costs in favor of Gutierrez against Employee. It ruled that it could not assess costs against Insurer. This appeal followed.
Standard of Review
Normally we review the trial court's award or denial of costs under Rule 1-054 NMRA 2000 for abuse of discretion. See Dunleavy v. Miller, 116 N.M. 353, 362, 862 P.2d 1212, 1221 (1993) (stating general rule that trial court has discretion to assess costs). The issue presented to us in this case, however, is a question of law which we review de novo. Cf. State v. Roman, 1998-NMCA-132, 8, 125 N.M. 688, 964 P.2d 852 (stating trial court's interpretation of the Rules of Criminal Procedure is question of law which is reviewed de novo); Stein v. Alpine Sports, Inc., 1998-NMSC-040, 6, 126 N.M. 258, 968 P.2d 769 ("Our review of denial of a Rule 1-060(B) motion is generally for an abuse of discretion, unless the issue is one of law.").
Application of Rule 1-054(D)(1)
Rule 1-054(D)(1) provides that "costs, but not attorneys' fees, shall be allowed as a matter of course to the prevailing party unless the court otherwise directs." It is substantially similar to the federal rule. Compare Rule 1-054(D)(1) with Fed. R. Civ. P. 54(d)(1) (1993). "Cases decided under the federal rule [54(d)] are often persuasive to this Court if they are not in conflict with controlling New Mexico authority and are based on sound logic and policies consistent with the law of this state." Gallegos v. Southwest Community Health Servs., 117 N.M. 481, 489, 872 P.2d 899, 907 (Ct. App. 1994).
The general rule is that the trial court has sound discretion to award, deny, and/or apportion costs under Rule 1-054. See id. at 490, 872 P.2d at 908. Under federal law, this discretion includes the power to assess costs against those who intervene on the losing side. See First Nat'l Bank v. Southern Cotton Oil Co., 86 F.2d 33, 35 (5th Cir. 1936) (" hose similarly situated with plaintiff as the losing parties, who came in and adopted plaintiff's bill and sought to participate in its benefits, should stand, in regard to such costs as may be taxed in favor of appellants, in like case with plaintiff."); Nicolaus v. West Side Transp., Inc., 185 F.R.D. 608, 611 (D. Nev. 1999) ("` n intervenor is entitled to the same cost considerations as the original parties.'") (quoting 10 Charles Alan Wright et al., Federal Practice and Procedure § 2667, at 224 (3d ed.
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