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Enriquez v. Cochran7/30/1998
ible, other than the injured worker." The essence of BSA's theory is that the unreimbursed portion of the worker's recovery cannot be paid to the worker by anyone. BSA correctly points out that under a joint and several liability judgment, it will be required to pay the Council's fifteen percent share. While we agree that BSA will be liable for the Council's share of the total comparative fault, we disagree that that payment is contrary to the letter or spirit of the WCA.
{116}We have already summarized the letter of Section 52-1-10.2. It expressly diminishes the employer's right to reimbursement by the employer's percentage of fault. In ), cert. granted, 120 N.M. 828, 907 P.2d 1009 (1995), we recognized that Section 52-1-10.1 provided one legislatively recognized instance in which the injured worker could recover both workers' compensation benefits and the worker's full measure of tort damages, even if that would amount to "double recovery." The legislature having provided an exception to the usual rule prohibiting double recovery found in the reimbursement section of the workers' compensation laws, NMSA 1978, 52-5-17 (1990), we cannot say that there is anything in the spirit of the WCA that would prohibit the imposition of joint and several liability that we have already recognized. Additionally, we agree with Plaintiff that any right to reimbursement under Section 52-5-17, as modified by Section 52-1-10.1, belongs to the Council, not BSA.
{117}The only entity served by refusing to impose joint and several liability as suggested by BSA would be the third party wrongdoer. Applying a WCA concept in favor of a third party who is a stranger to a WCA transaction serves no public policy goal of which we are aware. In fact, to do so would subvert the goals of full compensation and the encouragement of safety by providing a windfall to the third party wrongdoer. See (insured motorist carrier not allowed to claim a credit against uninsured motorists benefits for worker's compensation benefits paid and unreimbursed by agreement with worker's compensation carrier); Nieman v. Heil Co., 471 N.W.2d 790, 791 (Iowa 1991) (denying a prejudgment credit in the amount of worker's compensation benefits received against products liability judgment against manufacturer); Unsatisfied Claim & Judgment Fund Bd. v. Salvo, 189 A.2d 638, 639 (Md. 1963) (judgment against unsatisfied claim fund not permitted to have judgment reduced by amount of worker's compensation benefits received by cab driver).
{118}As Professor Larson noted:
The concept underlying third party actions is the moral idea that the ultimate loss from wrongdoing should fall upon the wrongdoer. . . . It should never be forgotten that the distortions of our old-fashioned fault concepts that have been thought advisable for reasons of social policy are exclusively limited to providing an assured recovery for the injured person; they have never gone on--once the injured person was made whole--to change the rules on how the ultimate burden was borne.
So, it is elementary that if a stranger's negligence was the cause of injury to claimant in the course of employment, the stranger should not be in any degree absolved of his normal obligation to pay damages for such an injury.
The obvious Disposition of the matter is to give the employer so much of the negligence recovery as is necessary to reimburse him for his compensation outlay, and to give the employee the excess. This is fair to everyone concerned: the employer, who, in a fault sense, is neutral, comes out even; the third person pays exactly the damages he would normally pay, which is correct, since to reduce his burden because of the relation between
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