1998 -NMCA- 179, Martin-Martinez v. 6001, Inc.

• Citation: 126 N.M. 319,968 P.2d 1182,1998 NMCA 179
• Decision Date: 14 October 1998
• Docket Number: No. 18322,MARTIN-MARTINE,P,18322
• Court: Court of Appeals of New Mexico
• Parties: , 1998 -NMCA- 179 Tinalaintiff-Appellant, v. 6001, INC., d/b/a T.D.'s Showclub, Defendant-Appellee.

Page 1182

968 P.2d 1182

126 N.M. 319, 1998 -NMCA- 179

Tina MARTIN-MARTINEZ, Plaintiff-Appellant, v. 6001, INC., d/b/a T.D.'s Showclub, Defendant-Appellee.

No. 18322.

Court of Appeals of New Mexico.

Oct. 14, 1998.

Certiorari Denied Nov. 30, 1998.

Charles R. Peifer, Cody K. Kelley, Browning & Peifer, P.A., Albuquerque, for Appellant.

Mark Patrick Geiger, Geiger Law Offices, P.C., Albuquerque, for Appellee.

OPINION

WECHSLER, Judge.

¶1 This appeal raises questions concerning the applicability of the exclusivity provisions of the Workers' Compensation Act (Act), NMSA 1978, § 52-1-6(D), (E) (1990) (effective January 1, 1992), § 52-1-8 (1989), and § 52-1-9 (1973). Plaintiff, Tina Martin-Martinez, filed her complaint against her employer, 6001, Inc., and Kenny Blume, a manager at the club, for intentional torts and negligence. The district court granted summary judgment to 6001, Inc. on all claims based on the exclusionary provisions of the Act. In her appeal, Plaintiff argues that: (1) 6001, Inc. engaged in intentional actions toward Plaintiff not compensable under the Act either because Defendant Blume was the alter ego of 6001, Inc., or because the circumstances support a reasonable inference that 6001, Inc. directly intended to harm Plaintiff; (2) the Act does not apply because Blume assaulted Plaintiff after her discharge from employment; and (3) 6001, Inc. waived the exclusivity provisions of the Act. We affirm the grant of summary judgment.

Facts

¶2 Plaintiff was employed by 6001, Inc. as a dancer at TD's Showclub. According to Plaintiff's complaint, at approximately 1:30 a.m. on December 31, 1995, at the end of her shift, Plaintiff noticed that items of her clothing were missing from her locker. She summoned Joe Reese, the manager on duty that night at the club. Kenny Blume, another manager, came into the locker room after Reese and ordered the other employees out of the room while Reese spoke with Plaintiff. Blume then yelled at Plaintiff using obscenities, struck her in the chest, fired her, and ordered her to leave the club. When Plaintiff reached into her locker to remove her personal belongings, Blume slammed the locker door on Plaintiff's hand, breaking a finger. Plaintiff's complaint requests damages from 6001, Inc. and Blume for "past and future expenses, lost earnings, past and future pain and suffering, temporary and permanent imparement [sic], disfigurement, emotional distress, humiliation, and punitive damages" for claims of assault, battery, and negligence of both 6001, Inc. and Blume.

¶3 6001, Inc. filed a motion to dismiss, or, in the alternative, for summary judgment on the grounds that Plaintiff was acting in the course and scope of her employment and that the Act provided the exclusive remedy for Plaintiff's injuries. The district court granted the motion, and Plaintiff appeals.

Exclusivity Provisions of the Workers' Compensation Act

¶4 The exclusivity of the Act's remedies for accidental injuries or death arising out of and in the course of a worker's employment is an underlying policy of the Act. The legislature has expressed this policy in different ways throughout the Act. Under Section 52-1-6(D) the employer and the worker surrender their rights to any other method, form, or amount of compensation or determination on account of personal injuries or death of the worker except as provided in the Act. By virtue of Section 52-1-6(E), a worker may not maintain a cause of action outside the Act against an employer or an employer's representative for any matter relating to the occurrence of or payment of any injury or death covered by the Act. Section 52-1-8(C) provides that an employer which has complied with the Act's provisions relating to insurance is not subject to any other liability for a worker's death or personal injury, and that all statutory and common-law rights and remedies are abolished except as provided in the Act. Finally, Section 52-1-9 sets the employer's obligation to pay compensation in lieu of any other liability when the employer has complied with the Act's insurance provisions the worker has performed "service arising out of and in the course of his [or her] employment" at the time of the accident, and the worker's "injury or death is proximately caused by [an] accident arising out of and in the course of ... employment and is not intentionally self-inflicted."

¶5 Our Supreme Court has considered these statutory provisions to reflect the "legislative balancing" of "the recognized public policy supporting ... exclusivity." Dickson v. Mountain States Mut. Cas. Co., 98 N.M. 479, 480, 650 P.2d 1, 2 (1982). In Mountain States Telephone & Telegraph Co. v. Montoya, 91 N.M. 788, 791, 581 P.2d 1283, 1286 (1978), our Supreme Court recognized with approval the analysis currently stated in 6 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 65.11, at 12-1, 12-12 (1997) (Larsons), that exclusivity "is part of the quid pro quo in which the sacrifices and gains of employees and employers are to some extent put in balance, for, while the employer assumes a new liability without fault, he is relieved of the prospect of large damage verdicts."

¶1 Intentional Acts of Employer

¶6 The quid pro quo in which the exclusivity provisions have their genesis does not sanction absolving an employer from its own intentional acts. Consequently, when our appellate courts confront a case in which the employer has acted intentionally or deliberately, our decisions do not impose the Act's exclusivity preclusions. See Coleman v. Eddy Potash, Inc., 120 N.M. 645, 652-53, 905 P.2d 185, 192-93 (1995); Eldridge v. Circle K Corp., 1997-NMCA-022, p 16, 123 N.M. 145, 934 P.2d 1074; Johnson Controls World Servs., Inc. v. Barnes, 115 N.M. 116, 118, 847 P.2d 761, 763 (Ct.App.1993). The best rationale for this result, according to Professor Larson, is that it is inconsistent for the employer to argue that "the injury was 'accidental' and therefore was under the exclusive provisions of the [Workers'] Compensation Act, when [the employer itself] intentionally committed the act." 6 Larsons, supra, § 68.11, at 13-4.

¶7 In the most recent intentional tort case, our Supreme Court held that a district court's dismissal of an employee's claim for damages for the tort of intentional spoliation of evidence, rather than negligent spoliation of evidence, was not barred by the Act's exclusivity provisions. See Coleman, 120 N.M. at 653, 905 P.2d at 193. The Court applied the test of "whether the injury stems from an actual intent to injure the worker." Id.

¶8 This Court has applied the same analysis in addressing exclusivity in the context of a worker's claim for damages based on an intentional tort committed by an employer. See Barnes, 115 N.M. at 118, 847 P.2d at 763 (exclusivity provision does not bar common-law action for damages when the injury stems from an actual intent of employer to injure worker); see also Maestas v. El Paso Natural Gas Co., 110 N.M. 609, 612, 798 P.2d 210, 213 (Ct.App.1990) ("[E]mployer must intend to injure an employee before [it] can be held liable outside the Act."); Gallegos v. Chastain, 95 N.M. 551, 554, 624 P.2d 60, 63 (Ct.App.1981) (actual intent to injure on the part of employer required to avoid the exclusivity provisions of the Act); Sanford v. Presto Mfg. Co., 92 N.M. 746, 748, 594 P.2d 1202, 1204 (Ct.App.1979) (actual intent to injure is necessary to justify common-law complaint for damages); cf. Eldridge, 1997-NMCA-022, p 26, 123 N.M. 145, 934 P.2d 1074 (workers' compensation administration required to defer to district court to determine jurisdiction of worker's claims for intentional tort).

¶9 Plaintiff argues that in Beavers v. Johnson Controls World Services, Inc., 120 N.M. 343, 901 P.2d 761 (Ct.App.1995), this Court expanded a worker's ability to overcome the Act's exclusivity provision to include not only an employer's intentional tort, but also an employer's hired supervisor's intentional tort. Plaintiff misconstrues our holding in Beavers. In Beavers, the plaintiff had first filed a workers' compensation claim which the workers' compensation judge (WCJ) dismissed because the plaintiff did not raise a compensable claim that her mental disability "arose in connection with disciplinary, corrective, or job evaluation action by her employer." Id. at 347, 901 P.2d at 765. The plaintiff testified at the trial of her intentional tort claims that she suffered mental distress because of the conduct of her supervisor. See id. at 345, 901 P.2d at 763. The district court dismissed the plaintiff's claim of intentional infliction of emotional distress and submitted the prima facie tort claim to the jury. See id. at 347, 901 P.2d at 765.

¶10 This Court concluded that the Act's exclusivity provisions did not bar the prima facie tort claim because the WCJ had determined that the plaintiff's mental disability was noncompensable under the Act. See id. at 348, 901 P.2d at 766. Indeed, if the Act does not provide a remedy, the exclusivity provisions do not apply because the employer has not relinquished any benefit. See Russell v. Protective Ins. Co., 107 N.M. 9, 12, 751 P.2d 693, 696 (1988) (when cause of action is unrelated to worker's physical or psychological job-related injury, then it is independent from the cause of action contemplated by the Act).

¶11 The Beavers case is more analogous to other exclusivity cases in which our appellate courts have distinguished cases based upon an employer's intentional tort from those in which the Act's exclusivity provisions may not apply because the worker's claims fall outside the purview of the Act for other reasons. See Coleman, 120 N.M. at 652-53, 905 P.2d at 192-93; see, e.g., Sabella v. Manor Care, Inc., 1996-NMSC-014, pp 17, 19, 121 N.M. 596, 915 P.2d 901 (Act's exclusivity provisions do not bar claims for sex discrimination under New Mexico Human Rights Act because each Act is designed to remedy different...