Padilla v. Wall Colmonoy Corp.

• Decision Date: 11 September 2006
• Docket Number: No. 25,638.,25,638.
• Citation: 2006 NMCA 137,145 P.3d 110
• Parties: Lorie PADILLA, individually and as Personal Representative of the Estate of Joseph M. Padilla, Plaintiff-Appellee, v. WALL COLMONOY CORPORATION and Daniel Nazzarett, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

145 P.3d 110

2006 NMCA 137

Lorie PADILLA, individually and as Personal Representative of the Estate of Joseph M. Padilla, Plaintiff-Appellee, v. WALL COLMONOY CORPORATION and Daniel Nazzarett, Defendants-Appellants.

No. 25,638.

Court of Appeals of New Mexico.

September 11, 2006.

As Revised October 31, 2006.

James A. Branch, Jr., Law Office of James A. Branch, Jr., LLC, Ronald T. Taylor, Ronald Taylor Law Office, Albuquerque, NM, for Appellee.

Kerri L. Allensworth, Foster Johnson McDonald Lucero Koinis, Albuquerque, NM, for Appellants.

Daniel P. Ulibarri, O'Brien & Ulibarri, P.C., Albuquerque, NM, for Amicus Curiae N.M. Defense Lawyers Association.

Randi McGinn, Albuquerque, NM, Caren I. Friedman, Santa Fe, NM, for Amicus Curiae N.M. Trial Lawyers Association.

OPINION

FRY, Judge.

{1} This workplace tort case presents the question of whether our Supreme Court's decision in Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148, applies to acts or omissions that are alleged to have occurred before that decision was issued. Unpersuaded that retroactivity would be unfair to employers or that the presumption of retroactivity is overcome by other considerations, we conclude that a worker may sue in tort using Delgado's test for non-accidental injury, regardless of when the acts or omissions occurred. Therefore, we affirm the district court's decision denying the employer's motion to dismiss for failure to state a claim under Rule 1-012(B)(6) NMRA.

BACKGROUND

{2} The relevant facts are taken from the allegations of the complaint filed by Plaintiff Lorie Padilla on behalf of herself and as personal representative of the estate of her husband, Joseph M. Padilla (collectively referred to as Worker), which we accept as true for purposes of reviewing a motion to dismiss. Callahan v. N.M. Fed'n of Teachers-TVI, 2006-NMSC-010, ¶ 4, 139 N.M. 201, 131 P.3d 51. Worker worked for Defendant Wall Colmonoy Corporation (Employer) from approximately 1979 to 1991. Worker's daily tasks for ten of those years included "receiving, bottling and shipping toxic [metal] powders and materials" in Employer's shipping department. This resulted in substantial exposure to substances that Worker claims Employer knew at the time were hazardous to human health, including powdered nickel and chromium.

{3} In 2001, our Supreme Court decided Delgado, which defined workplace injuries that were intentional or willful, and therefore non-accidental, and that could support suit in tort outside of New Mexico's workers' compensation scheme. See 2001-NMSC-034, ¶ 1, 131 N.M. 272, 34 P.3d 1148. In 2002, Worker sought medical treatment for breathing difficulty and was diagnosed with usual interstitial pulmonary disease. Worker alleges that his treating physician has determined that the inhalation of the toxic powders was the cause of his illness. Worker filed suit against Employer in 2004 alleging various tort claims including negligence and intentional infliction of emotional distress. Worker died later in 2004 from his illness, and the district court granted a motion to amend the complaint to substitute Worker's estate as the plaintiff, and to add a claim for wrongful death.

{4} In his suit, Worker alleges that Employer failed to provide protective equipment, safety training, or safe working conditions in spite of known risks from the Employer's products, and that Employer violated various health and safety regulations. Worker also alleges that Employer dismissed Worker's attempts to raise health concerns, and that Employer only took action to comply with health and safety regulations when an inspection was expected. Worker has described Employer's conduct as "willful and intentional" and, therefore, Worker claims that Employer's culpability rises to the level described in Delgado for a workplace tort claim that falls outside of the exclusivity provisions of the Workers' Compensation Act (the "Act"), NMSA 1978, §§ 52-1-1 to-70 (1929, as amended through 2005).

{5} In response to Worker's suit, Employer moved for dismissal on the ground that the exclusivity provision in the Act bars a claim for negligence. In particular, Employer argued to the district court, and argues now on appeal, that because Worker alleges acts or omissions pre-dating the Delgado decision, the willfulness test articulated in Delgado does not apply. Thus, Employer implicitly argues that a more restrictive test, the so-called "actual intent to harm" test, applies to this case. The district court denied the motion to dismiss but authorized an interlocutory appeal on the question of which standard applies to acts or omissions occurring before Delgado was decided. This Court granted the request for an interlocutory appeal pursuant to NMSA 1978, § 39-3-4 (1999) and Rule 12-203(A) NMRA. In addition, this Court granted motions for amicus briefing from the New Mexico Trial Lawyers Association and New Mexico Defense Lawyers' Association.

DISCUSSION

{6} This case squarely presents the question of which standard governs a claim for a workplace tort allegedly occurring prior to the date our Supreme Court issued the Delgado decision. This Court has previously assumed without deciding that Delgado applies retroactively. Dominguez v. Perovich Props., Inc., 2005-NMCA-050, ¶ 23, 137 N.M. 401, 111 P.3d 721. We conclude that Delgado's test for when a workplace injury is non-accidental, and therefore outside of the scope of the Act, should apply to acts or omissions taking place prior to the date of the Delgado decision.

{7} Despite some dispute below, the parties appear to agree on appeal that Defendants' motion to dismiss was argued and decided under Rule 1-012(B)(6). Granting a motion for dismissal under Rule 1-012(B)(6) is appropriate only if Plaintiff is not entitled to recover under any theory of the facts alleged in the complaint. We review the denial of a motion to dismiss de novo because such a motion tests the legal sufficiency of the allegations. See Padwa v. Hadley, 1999-NMCA-067, ¶ 8, 127 N.M. 416, 981 P.2d 1234 (describing de novo review for the grant of a motion to dismiss for failure to state a claim); Thompson v. Montgomery & Andrews, P.A., 112 N.M. 463, 464, 816 P.2d 532, 533 (Ct.App. 1991) (stating that "[a] Rule 12(B)(6) motion tests the legal sufficiency of the complaint, not the facts that support it"). The question of whether a judicial decision should be given retroactive effect is also subject to de novo review. Stein v. Alpine Sports, Inc., 1998-NMSC-040, ¶ 6, 126 N.M. 258, 968 P.2d 769.

{8} To provide context, we begin with a brief review of Delgado and its impact on workers' compensation law in New Mexico. We then turn to the presumption of retroactivity and whether Delgado should be applied to acts or omissions occurring before that decision was issued.

1. Delgado's Impact

{9} New Mexico's workers' compensation system is intended to replace litigation for accidental workplace injuries with a comparatively rapid and efficient system for compensation that disregards the fault of the employer or worker. See Delgado, 2001-NMSC-034, ¶ 12, 131 N.M. 272, 34 P.3d 1148; Morales v. Reynolds, 2004-NMCA-098, ¶ 6, 136 N.M. 280, 97 P.3d 612. For such an accidental injury, the administrative system created by the Act is a worker's exclusive remedy, and the worker may not sue the employer in court. Id.; § 52-1-8 (stating that an employer who has complied with the Act will not be subject to any other liability to an employee). However, the Act does not cover injuries that are not considered "accidents." Delgado, 2001-NMSC-034, ¶ 20, 131 N.M. 272, 34 P.3d 1148; Morales, 2004-NMCA-098, ¶ 7, 136 N.M. 280, 97 P.3d 612. The distinction between an accidental injury and a non-accidental injury is therefore critical because an employee may sue in tort for a non-accidental injury. Id. Our Supreme Court changed the law when, in Delgado, it altered the test for when a worker could show that his injury was not an accident. Morales, 2004-NMCA-098, ¶ 8, 136 N.M. 280, 97 P.3d 612 (stating that "[i]n Delgado, our Supreme Court broadened the scope of the accident exception with respect to employers").

{10} Prior to the decision in Delgado, an employer could only be sued outside the scope of the Act's exclusivity provision if the injured worker could show that the employer had an actual intent to injure the worker. See Dominguez, 2005-NMCA-050, ¶ 12, 137 N.M. 401, 111 P.3d 721; Morales, 2004-NMCA-098, ¶ 7, 136 N.M. 280, 97 P.3d 612. See generally Mariposa Padilla Sivage, Workers' Compensation: Exclusivity, Common Law Remedies, and the Reconsideration of the Actual Intent Test — Delgado v. Phelps Dodge Chino, Inc., 32 N.M. L.Rev. 567, 572-77 (2002) (tracing the development of the scope of exclusivity under the Act). Thus, for an injury to be non-accidental under the actual intent test, a worker had to prove the employer "intended a deliberate infliction of harm upon the employee." Delgado, 2001-NMSC-034, ¶ 16, 131 N.M. 272, 34 P.3d 1148 (internal quotation marks omitted). As a practical matter, this standard provided employers with "virtually absolute immunity" even when sending a worker to "certain harm or death." Id. ¶ 18.

{11} In Delgado, our Supreme Court held that, contrary to legislative intent, the actual-intent-to-harm test improperly favored employers and concluded that a worker may sue an employer in tort when an employer "willfully or intentionally injures a worker." Id. ¶¶ 1, 17. The Court set out a three-part willfulness test to determine when a workplace injury is non-accidental and therefore outside of the scope of the Act. Id. ¶ 1. Such a non-accidental injury arises when:

(1) the worker or employer engages in an intentional act or omission, without just cause or excuse, that is reasonably expected to result in the injury suffered by the worker; (2) the worker or employer expects the intentional act or omission to result in the injury, or has utterly...