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Eskew v. National Farmers Union Insurance Co.9/18/2000
n the worker recovers. Insurer further argues that when an insurer intervenes solely to protect its statutory right of reimbursement, the insurer does not participate in or control the tort action. Consequently, Insurer contends that an insurer exercising its right of reimbursement necessarily cannot be liable for costs when the tort action is unsuccessful.
In the absence of a definitive legislative statement, the Insurer's proposed blanket rule is inappropriate if only because it would preclude consideration of the equities in specific cases. Instead, we adhere to the general rule in applying Rule 1-054 that trial courts possess the discretion to require an intervening insurance carrier to pay an equitable share of the costs awarded to the prevailing party. Indeed, the facts that Insurer argues are relevant facts for the trial court to consider. In its informed discretion, the court may consider, among other things, whether the intervenor had the opportunity to participate in the lawsuit and if so, the extent of its participation. See Carter v. General Motors Corp., 983 F.2d 40, 44 (5th Cir. 1993) ("an intervenor's relative inactivity in a lawsuit may influence a court's exercise of its discretion" in awarding costs); Kim v. Ford Motor Co., 429 N.W.2d 203, 205 (Mich. Ct. App. 1988) (stating that despite intervenor's limited participation in trial and negotiation, the intervenor was "a party in interest for purposes of recovery, it remain a party in interest for the purpose of taxation of costs"); Rehn v. Bingaman, 40 N.W.2d 673, 676 (Neb. 1950) (holding that intervening employer who actively participated in trial was subject to share in payment of costs); Ferguson v. Bole, 77 A.2d 711, 713 (Pa. Super. Ct. 1951) (affirming assessment of costs before and after intervention against intervenor who substituted in part for party of record); cf. Schweich v. Ziegler, Inc., 463 N.W.2d 722, 734-35 (Minn. 1990) (holding that intervenor, to protect its right of subrogation, was jointly liable with worker for costs associated with losing claims).
Our holding is consistent with the policy behind Section 52-5-17. Our Supreme Court has held that the purpose of the statute is to encourage payment by those at fault, thereby easing the burden on the workers' compensation system. See Gutierrez v. City of Albuquerque, 1998-NMSC-027, 9, 125 N.M. 643, 964 P.2d 807. "The legislature intended Section 52-5-17 to facilitate, not chill, actions in tort against third parties." Id. A blanket rule that workers who lost suits against alleged tortfeasors could never look to employers or employers' insurers for help with costs might discourage such suits. Fernandez v. Ford Motor Co.
Fernandez, upon which the trial court relied, does not compel a different result. Fernandez held that an insurance carrier with a conflict of interest (insuring not only worker 's employer but some of the defendants as well) should not be permitted to intervene "until the underlying case is ready for judgment." Fernandez, 118 N.M. at 107, 879 P.2d at 108. Fernandez also held that delaying the insurer's intervention until the judgment was ready was appropriate to avoid prejudice to the plaintiff and because the insurer's right to reimbursement did not arise until worker recovered from the tortfeasor. See id.
The propriety of the Fernandez rule, that an employer's insurer's intervention is proper only when the case is ready for judgment, is not before us. As a result, we do not decide whether Fernandez absolutely prohibits earlier or active intervention. See Garcia v. General Elec., 1999-NMCA-139, 16, 128 N.M. 291, 992 P.2d 304 (suggesting that insurers, as parties in third-party tort actions, can liti
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