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Wagner v. AGW Consultants5/24/2005
ditional attorney fees in the amount of $2500 pursuant to Section 52-1-54(I), which provides:
The workers' compensation judge may exceed the maximum amount [of attorney fees] stated in this subsection . . . if he finds that a claimant, an insurer or an employer acted in bad faith with regard to handling the injured worker 's claim and the injured worker or employer has suffered economic loss as a result. However, in no case shall this additional amount exceed two thousand five hundred dollars ($2,500). As used in this subsection, "bad faith" means conduct . . . that amounts to fraud, malice, oppression or willful, wanton or reckless disregard of the rights of the worker or employer.
AGW also requested findings that Worker acted in bad faith. Because the WCJ made no findings at all regarding the bad faith of either party, we remanded the case and asked the WCJ to enter findings and conclusions on the issue.
{101} The WCJ found that, while some of Turner's filings were without a sound basis in law or fact, Turner was not Worker 's employer and, therefore, Turner's bad faith was irrelevant. AGW was Worker's employer, and the WCJ found that AGW "did not file excessive, frivolous, or bad faith matters." Consequently, the WCJ concluded that AGW "did not engage in bad faith or unfair claims processing."
{102} This Court has treated bad faith in this context as a finding of fact subject to substantial evidence review. Murphy v. Duke City Pizza, Inc., 118 N.M. 346, 349, 881 P.2d 706, 709 (Ct. App. 1994); Trujillo v. City of Albuquerque, 116 N.M. 640, 646, 866 P.2d 368, 374 (Ct. App. 1993). However, since those cases were decided, the law concerning mixed questions of law and fact has been extended to civil cases. See, e.g., Ponder v. State Farm Mut. Auto. Ins. Co., 2000-NMSC-033, 6-7, 129 N.M. 698, 12 P.3d 960; Souter v. Ancae Heating & Air Conditioning, 2002-NMCA-078, 19, 132 N.M. 608, 52 P.3d 980. Therefore, "bad faith" is a mixed question of law and fact.
{103} Worker asserts a general argument that the "voluminous and repetitive filings of pleadings," the "repetitious and irrelevant examination" of witnesses, and the "unreasonable contestation of every claim set forth by Worker" establish AGW's bad faith. However, as Worker admits, most of this litigation excess was due to the conduct of Turner rather than AGW. Worker claims that AGW was equally guilty of Turner's bad faith conduct because it concurred in Turner's pleadings.
{104} We are not persuaded. The record shows that Turner filed fifty motions, and AGW did not file any pleadings indicating its concurrence in any of those motions. It is true that AGW adopted and incorporated by reference Turner's list of witnesses and exhibits and Turner's requested findings of fact and conclusions of law. However, we cannot say it was unreasonable for the WCJ to conclude that AGW's adoption of a small number of Turner's pleadings did not constitute "fraud, malice, oppression or willful, wanton or reckless disregard of the rights of the worker ." Section 52-1-54(I). The purpose of the bad faith statutory provision is to punish and to deter others from the commission of like offenses. Sanchez v. Wohl Shoe Co., 108 N.M. 276, 278, 771 P.2d 984, 986 (Ct. App. 1989). The statute's purpose would be ill-served if AGW were punished for the pleadings it filed, which were appropriate and which raised colorable defenses, or for concurring in three of Turner's relatively innocuous pleadings.
{105} The WCJ made no findings regarding Worker's bad faith or lack of bad faith. Although AGW has not appealed the WCJ's determination that Worker did not act in bad faith, it filed a supplemental brief after r
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