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Kitchell v. Public Service Co. of New Mexico12/3/1998
M committed an intentional act. The issue presented by Kitchell's claim is where the intent was directed. It is held that "proof on the element of intent to injure must be of an `actual intention' to injure, not merely an intent to do the act which may result in the claimed injury." , quoting Boatmen's Bank of Butler v. Berwald, 752 S.W.2d 829, 833 (Mo. Ct. App. 1988). The facts adduced by Kitchell tend to prove only that PNM intentionally terminated him from his employment and ended his right to company-paid health insurance. He bears a "heavy burden" in proving that PNM had an actual intent to injure him.
{17} Without asking what the justification for PNM's act might have been, which is the next step in the analysis, we need to discern the intent of PNM. "The terms malice and intent to injure have been used synonymously with our jurisprudence on prima facie tort." Id. 10. Malice in turn is the "intentional doing of a wrongful act without just cause or excuse. This means that the defendant not only intended to do the act which is ascertained to be wrongful, but that he knew it was wrong when he did it." (internal quotation marks and citations omitted); see also .
{18} There is no evidence that PNM intended to harm or injure Kitchell when his health benefits were terminated almost three years after which he became totally disabled and unable to perform any work for PNM. By then he had received over $160,000 in social security and workers' compensation benefits as well as continuous benefits from PNM's self- funded health plan. Certainly, this is not evidence of an intent to harm Kitchell especially since the termination could have occurred any time after he became permanently and totally disabled. Further, the Human Rights Commission found PNM innocent of any discrimination against Kitchell on account of his disabilities. We therefore reverse the order denying PNM's motion for summary judgment as to Count III.
{19} For the foregoing reasons, the judgment of the trial court is reversed and the case is remanded with instructions to dismiss the complaint with prejudice.
{20} IT IS SO ORDERED.
DAN A. McKINNON, III, Justice
WE CONCUR:
GENE E. FRANCHINI, Chief Justice
JOSEPH F. BACA, Justice
PAMELA B. MINZNER, Justice
PATRICIO M. SERNA, Justice
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