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Gutierrez v. City of Albuquerque8/25/1998
statute says_employers are to get a pro tanto reimbursement from a worker's tort recovery to the extent that the employer has paid compensation benefits." . While the statute says nothing about "pro tanto reimbursement," the appeals court assumed that a worker's tort award corresponds interchangeably with compensation benefits, and awarded Employer a full reimbursement, without regard to the elements of the tort recovery. This does not effectuate the legislature's intent. Since the worker is so low on the priority list, this method discourages workers from pursuing third party claims, particularly in cases where the recovery at stake is modest. As Judge Bosson stated in his Dissent:
"Under the facts of this case, the reimbursement may well equal or exceed all that is left of the tort settlement. Yet, Worker suffered substantial, lasting injuries (e.g., lost wages, lost earning capacity, pain and suffering), some of which are not compensated at all under workers' compensation benefits or only partially so. If the City takes the entire tort settlement, Worker will be left with no compensation for these additional injuries. Only the City and Worker's own attorney would benefit from the settlement. Worker gains nothing for her efforts in pursuing the third-party litigation." (footnotes omitted).
The majority's construction frustrates the legislature's intent to encourage tort suits where third-party wrongdoers are held responsible. See (broader policy is to achieve equitable allocation of responsibility). We also cannot agree with the majority's use of a plain meaning analysis to support this allocation method. Our case law demonstrates that Section 52-5-17 is far from being clear and unambiguous. Compare Kandelin v. Lee Moor Contracting Co., 37 N.M. at 489-90, 24 P.2d at 736-37 (provision may operate by subrogation or assignment), with ) ("It is clear that in a work 's compensation action the statute created no right of subrogation or assignment in the [employer's] insurer."). We feel the plain meaning analysis caused the Court of Appeals to focus on the prohibition against windfall at the expense of the legislature's broader policy objectives of achieving an equitable distribution of the risk of loss and an equitable allocation of responsibility. Cf.
3. Method suggested by Dissent and TLA
{24} Judge Bosson's Dissent suggests, and amicus New Mexico Trial Lawyers Association (TLA) argues for, an allocation of Worker's tort proceeds based on a determination of comparative fault. See (Bosson, J., Dissenting). Amicus also argues that when a worker recovers less than the total damages from a third party because of a worker's comparative negligence, the employer's reimbursement should be proportionately reduced. There is no finding in this case that the Worker was comparatively negligent, and nothing in the record suggests that she was. Even if there were, we fail to see how this would be relevant in determining the amount of reimbursement. The respective fault of the parties is not necessarily connected to the damage elements covered by the tort recovery. For example, if a third party were entirely at fault yet the worker's injuries were largely pain and suffering, as in this case, nothing would prevent the employer from reaching monies fairly negotiated to remedy an uncompensated injury . In such cases, tort recoveries for pain and suffering would go to employers as "reimbursement," contrary to the legislative intent to reimburse only to the extent of payment of compensation by the employer.
4. Worker's Method
{25} One of the allocation methods urged by Worker also fails to comply with the intent of the statute. Worker argues that no reimburseme
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