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Eskew v. National Farmers Union Insurance Co.9/18/2000
gate issues in their own interest, even if plaintiffs do not). Any conflict between the language in Fernandez and Garcia will have to be resolved in another case in which the issue is squarely presented to the trial court and litigated there before being raised on appeal. Furthermore, Fernandez did not consider responsibility for costs. We see no reason why a trial court cannot assess costs against an insurer joined at the last minute if the facts indicate that it is fair to do so. Steenbergen v. Ford
Insurer urges us to follow Steenbergen, upon which the trial court further relied in support of its ruling below. Steenbergen construed the Texas Worker 's Compensation Act, which provided that the insurer should pay costs when the worker recovered but was silent as to the payment of costs when the worker did not recover. See Steenbergen, 814 S.W.2d at 762. The court refused to read authorization for such cost-sharing into the statute. "A court cannot judicially amend a statute, adding words not implicitly contained in the language of the statute." Id.
Section 52-5-17 differs substantially from the Texas statute at issue in Steenbergen because New Mexico's statute is completely silent on the issue of assessing costs. See Security Ins. Co. v. Chapman, 88 N.M. 292, 298-99, 540 P.2d 222, 228-29 (1975) (stating that decisions regarding workers' compensation from other states may be persuasive if their statutes are comparable to New Mexico's). While Section 52-5-17 gives a right of recovery, it is our case law that holds that the employer-insurer must share in fees and costs if it participates in the worker 's recovery. See Transport Indem. Co., 89 N.M. at 345, 552 P.2d at 476. Hence, we are not construing statutory language as was the Steenbergen court. We hold that the trial court has the discretion to assess an equitable share of the costs against an intervening insurance company when a worker loses in an action against the tortfeasor.
Remaining Arguments
Insurer argues that even if it is not exempt from costs as a matter of law, it should not be assessed costs in this case because all costs were incurred before it was allowed to intervene. It relies in part on California cases which we do not find persuasive because the California statutes for awarding costs differ from Rule 1-054(d)(1). See Garcia v. Hyster Co., 34 Cal. Rptr. 2d 283, 287-88 (Ct. App. 1994) (holding that where detailed statutes did not expressly provide "for the award of costs in favor of a prevailing defendant against a plaintiff in intervention for any period preceding the filing of the complaint in intervention," such costs would not be allowed).
The trial court, holding that Insurer was exempt from costs, did not address Insurer's contention. The parties stipulated on appeal to include the record proper and transcript that pertained only to the proceedings concerning costs. We are unable to ascertain what occurred in the trial court prior to such proceedings. Therefore, because of the procedural posture of this case and because we are unwilling to pronounce on an issue not decided by the trial court, we leave it to the informed discretion of the trial court to decide whether costs accruing before intervention should be assessed against Insurer in this particular situation. Cf. Swiftships Freeport, Inc. v. M.V. "Cayman Endeavor", 692 F. Supp. 722, 723 (S.D. Tex. 1988) (recognizing that costs accruing before intervention in admiralty action will be charged against intervenor if it is equitable to do so).
Insurer also contends it never actually intervened because it did not file its complaint-in-intervention. Its failure to file its complaint is not dispositive.
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