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Dominguez v. Perovich Properties3/30/2005
gued that Plaintiff failed to properly allege a Delgado claim in his second amended complaint. Employer further argued that Plaintiff could not, as a matter of law, meet the three-pronged Delgado test even were it determined that Plaintiff properly alleged a Delgado claim. Together with his memorandum in opposition to Employer's second motion for summary judgment, Plaintiff sought leave to file a third amended complaint in order to specifically allege a Delgado claim. The district court granted Employer's second motion for summary judgment and denied Plaintiff's motion for leave to file a third amended complaint. In a letter opinion, the district court determined that based on undisputed facts Plaintiff could not meet the requirement of Delgado that Employer wilfully caused an injury to Plaintiff. The district court's grant of summary judgment for Employer implicitly invoked the Act's exclusivity and thus immunity provisions. See § 52-1-8 (stating that employer who complies with the Act "shall not be subject to any other liability," except as provided in the Act); § 52-1-9 (providing for compensation under the Act "in lieu of any other liability whatsoever").
Plaintiff's points on appeal are: (1) there exist genuine issues of material fact as to the willfulness of Employer's acts and omissions; (2) the court erred in determining as a matter of law that he could not meet the Delgado requirements for a conclusion of wilful conduct permitting a tort action and meeting the exception to the Act's preclusion of such claims in Section 52-1-9; and (3) the court erred in denying his motion for leave to file a third amended complaint. Because these three issues are intertwined, we discuss them together in one point.
DISCUSSION
The difficult analytic issue is whether an employer's egregious and knowing general disregard for safety measures can come within Delgado and thereby remove the employer's protection from a tort claim. See § 52-1-8 (stating, in what is known as the Act's exclusivity provision, that " ny employer who has complied with the provisions of the . . . shall not be subject to any other liability whatsoever for the . . . personal injury to any employee, except as provided in the ").
Plaintiff's material facts essentially are as follows: Employer had no mandatory manual lock-out devices for the equipment although such devices were available to lock the electrical start up for the conveyor and to lock the conveyor belt itself from moving while a person was on it. Employer did not report Plaintiff's accident as required by law to the United States Mine Safety and Health Administration (MSHA). Employer did not have a mining permit for the gravel pit where the accident occurred. Employer avoided mine safety inspections by not obtaining a permit. Employer also took affirmative action to prevent inspectors from finding mine safety violations. Employer never held safety meetings or gave instructions even though Plaintiff and others were told there would be safety meetings as required by law. Plaintiff's safety certificate had expired months before the accident, and his request to Employer that he attend a safety course to get his certificate renewed fell on deaf ears. Employer's office manager told Plaintiff, after the accident, that she was told by Employer to report the accident as having occurred at a site different than where it actually occurred, and the report of the accident to the Workers' Compensation Administration contains a false statement as to the site where the accident occurred and also a false statement that Plaintiff "fell." The MSHA cited Employer for mine safety law violations, including failure to use lock-out devices, failing to report other wor
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