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Dominguez v. Perovich Properties3/30/2005
kers' accidents, and failure to notify the MSHA of mining operations. The MSHA report corroborates that Employer's office manager was told by Employer to report the accident as happening at a different site. Employer does not contest the foregoing facts.
Plaintiff contends that these facts show Employer's gravel pit and rock crushing operations were run in an intentionally and wilfully dangerous, reckless, and unsafe way with total disregard for safety and licensing requirements. He refers to a statement in the MSHA report that under the circumstances, injury to an employee was reasonably likely to happen in a given time. It is based on these facts and contentions that Plaintiff opposed summary judgment and seeks reversal on appeal under Delgado. There being no genuine issue of material fact, we review the grant of summary judgment in this case de novo, determining whether Employer is entitled to dismissal of Plaintiff's claims as a matter of law. See Self v. United Parcel Serv., Inc., 1998-NMSC-046, 6, 126 N.M. 396, 970 P.2d 582; Goodman v. Brock, 83 N.M. 789, 793, 498 P.2d 676, 680 (1972).
Applicable Case Law
Our stage for study is best set by discussing the cases of Delgado, Morales v. Reynolds, 2004-NMCA-098, 136 N.M. 280, 97 P.3d 612, cert. denied, 2004-NMCERT-008, 136 N.M. 491, 100 P.3d 197, Cordova v. Peavey Co., 273 F. Supp. 2d 1213 (D.N.M. 2003) [hereinafter Cordova I], and the Tenth Circuit case affirming Cordova v. Peavey Co., No. 03-2295, 2004 WL 2307344 (10th Cir. Oct. 14, 2004) [hereinafter Cordova II].
1. Delgado
In Delgado, the district court entered a Rule 1-012(B)(6) NMRA dismissal of the plaintiff's complaint asserting tort claims against the deceased worker 's employer on the ground that the Act provides the exclusive remedy for the claims alleged and the employer was, therefore, immune from tort liability. Delgado, 2001-NMSC-034, 1. The plaintiff alleged that the worker "died following an explosion that occurred at a smelting plant . . . after a supervisor ordered [the worker] to perform a task that, according to [the plaintiff], was virtually certain to kill or cause [the worker] serious bodily injury." Id. The plaintiff also alleged that the employer chose to subject the worker to that risk despite its knowledge that by performing the task the worker "would suffer serious injury or death as a result." Id. The material facts are more fully set out in Delgado and are also succinctly set out in Morales, 2004-NMCA-098, 9.
This Court affirmed the district court's dismissal in Delgado. Delgado, 2001-NMSC-034, 1. The Supreme Court reversed. Id. The Court rejected the actual-intent-to-injure test that theretofore had been invoked to escape the Act's immunity. Id. 23-24. The Court held "that when an employer intentionally inflicts or willfully causes a worker to suffer an injury that would otherwise be exclusively compensable under the Act, that employer may not enjoy the benefits of exclusivity, and the injured worker may sue in tort." Id. 24. The Court's underlying goal was to equalize the "bilateral abuse" that can occur when, for example, " n unscrupulous worker . . . might seek recovery from a self-induced injury, knowing that the Act generally awards compensation regardless of fault[,] n employer . . . may . . . subject a worker to injury after determining that the economic advantage of the injurious work outweighs the limited economic detriment that the Act will impose upon the employer after the injury occurs." Id. 13.
The Supreme Court in Delgado set out the following test:
willfulness renders a worker's injury non-accidental, and therefore outside the scope of t
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