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Eskew v. National Farmers Union Insurance Co.9/18/2000
1998)); cf. Delta Air Lines, Inc. v. Civil Aeronautics Bd., 505 F.2d 386, 388 (D.C. Cir. 1974) (acknowledging that intervenors could be awarded costs on appeal).
Notwithstanding the general rule, the trial court ruled that, as a matter of law, Insurer could not be required to pay any costs. In its letter decision to the parties, it explained:
The Intervenor [Insurer] will not be held liable for any portion of the costs based on the workers' compensation statutory scheme as well as the language of Fernandez v. Ford Motor Company, 118 N.M. 100, 879 P.2d 101 (Ct. App. 1994). Although there are no New Mexico cases which directly reach this issue, the Texas Court of Appeals has held that an insurer which provided workers' compensation coverage and which intervened to enforce the statutory right of reimbursement was not liable to a defendant who prevailed at trial since the Workers' Compensation Act was silent as to costs when no recovery was paid. Steenbergen v. Ford [Motor Co.], 814 S.W.2d 755 (Tx. 1991).
We believe it unwise to begin crafting exceptions to the general rule. Under the general application of Rule 1-054(D)(1), the trial court has discretion to decide whether to assess costs against an insurer which provided workers' compensation insurance coverage and has intervened in the worker 's suit against an alleged tortfeasor. However, we must analyze the Act to determine whether it contemplates an exception to the general rule.
The Workers' Compensation Act
The trial court's ruling was based in part upon the Act. The relevant portion of the Act provides:
he receipt of compensation from the employer shall operate as an assignment to the employer or his insurer . . . of any cause of action, to the extent of payment by the employer to or on behalf of the worker for compensation or any other benefits to which the worker was entitled under the Workers' Compensation Act . . . that the worker or his legal representative or others may have against any other party for the injury or disablement. Section 52-5-17(B).
Notably, the Act is silent as to an intervenor's responsibility for sharing in the costs and expenses of the lawsuit. In the face of such silence, we may use fundamental fairness as a guide to determine whether the assessment of costs under the Act is appropriate. See Transport Indem. Co. v. Garcia, 89 N.M. 342, 345, 552 P.2d 473, 476 (Ct. App. 1976) (assessing proportionate share of costs of third-party action against tortfeasor against insurer and stating that in the absence of guidance from the Act, fundamental fairness is the guideline).
Although the statute speaks of an "assignment," New Mexico appellate courts have held that Section 52-5-17(B) provides an employer or his insurance company with a right of reimbursement. See St. Joseph Healthcare Sys. v. Travelers Cos., 119 N.M. 603, 606, 893 P.2d 1007, 1010 (Ct. App. 1995). In order to protect this right of reimbursement, employers or their insurers may intervene in a worker 's suit against an alleged tortfeasor. See id. at 607-08, 893 P.2d at 1011-12. We have previously held that when an insurer invokes its right of reimbursement from a worker who has recovered from a tortfeasor, it must pay its proportionate share of the expenses of the lawsuit. See Transport Indem. Co., 89 N.M. at 345, 552 P.2d at 476. However, as the trial court correctly observed, no New Mexico case has yet decided the scope of the intervenor's responsibility for costs when the worker loses the worker's suit against the tortfeasor.
According to Insurer, a worker's failure to prevail in the tort action mandates a different result from whe
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