34 P.3d 1148 (N.M. 2001), 26,360, Delgado v. Phelps Dodge Chino, Inc.
| Citation | 34 P.3d 1148, 131 N.M. 272, 2001 -NMSC- 34 |
| Opinion Judge | [7] The opinion of the court was delivered by: Franchini, Justice |
| Party Name | Michelle DELGADO, as personal representative of the estate of Reynaldo Delgado, individually, and as the parent of Danielle Delgado, a minor child, and Gabrielle Delgado, a minor child, Plaintiff-Petitioner, v. PHELPS DODGE CHINO, INC., a Delaware corporation, Charlie White, individually and in his corporate capacity, and Mike Burkett, individually |
| Attorney | McGinn & Associates, P.A., Randi McGinn, Clay Campbell, Albuquerque, NM, for Petitioner., Silva, Reider & Maestas, P.C., Paul Maestas, Christopher A. Riehl, Albuquerque, NM, for Respondents., Carpenter & Chavez, William H. Carpenter, David Stout, Michael B. Browde, Albuquerque, NM, for Amicus Cur... |
| Case Date | October 29, 2001 |
| Court | New Mexico Supreme Court |
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OPINION
{1} Reynaldo Delgado died following an explosion that occurred at a smelting plant in Deming, New Mexico, after a supervisor ordered him to perform a task that, according to Petitioner, was virtually certain to kill or cause him serious bodily injury. Respondents allegedly chose to subject Delgado to this risk despite their knowledge that he would suffer serious injury or death as a result. Delgado's widow brought a number of tort claims against Phelps Dodge and the individual supervisors who allegedly caused Delgado's death. The trial court dismissed the case on the grounds that the Workers' Compensation Act ("the Act") provides the exclusive remedy for Delgado's death, and that Respondents therefore enjoy immunity from tort liability. The Court of Appeals upheld that ruling in a memorandum opinion. See Delgado v. Phelps Dodge Chino, Inc., NMCA 20,972, slip. op. (May 3, 2000). We granted certiorari to determine whether Respondents' behavior falls within the Act's exclusivity provisions. Our review of the Act reveals that it is effectively silent on the scope of employer exclusivity. Unequipped with legislative guidance on the matter, we apply NMSA 1978, § 52-5-1 (1990) and conclude that worker and employer rights under the Act must be subject to the same standard of conduct and equivalent consequences for misconduct. Accordingly, we reject the "actual intent test" and hold that when an employer willfully or intentionally injures a worker, that employer, like a worker who commits the same misconduct, loses the rights afforded by the Act. See NMSA 1978, § 52-1-11 (1989). For purposes of the Act, willfulness occurs 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 injury to occur, or has utterly disregarded the consequences of the intentional act or omission; and (3) the intentional act or omission proximately causes the worker's injury. We reverse the Court of Appeals and remand to the trial court to apply the test we adopt today.
I.
{2} In reviewing a trial court's decision to grant a motion to dismiss under Rule 1-012(B)(6) NMRA 2001, we accept as true all facts properly pleaded. See N.M. Life Ins. Guar. Ass'n v. Quinn & Co., 111 N.M. 750, 753, 809 P.2d 1278, 1281 (1991). For purposes of this appeal, we therefore accept as true the following facts, which were properly pleaded in Petitioner's complaint. 1
{3} In the summer of 1998, thirty-three-year-old Reynaldo Delgado resided in Deming, New Mexico, with his wife, Petitioner Michelle Delgado, and two minor children. Mr. Delgado had been working at the Phelps
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[131 N.M. 275] Dodge smelting plant in Hurley, New Mexico, for two years. The smelting plant distills copper ore from unuseable rock, called "slag," by superheating unprocessed rock to a temperature in excess of 2,000 degrees Fahrenheit. During the process, the ore rises to the top, where it is harvested, while the slag sinks to the bottom of the furnace where it drains through a valve called a "skim hole." From there, the slag passes down a chute into a fifteen-foot-tall iron cauldron called a "ladle," located in a tunnel below the furnace. Ordinarily, when the ladle reaches three-quarters of its thirty-five-ton capacity, workers use a "mudgun" to plug the skim hole with clay, thus stopping the flow of molten slag and permitting a specially designed truck, called a "kress-haul," to enter the tunnel and lift and remove the ladle.
{4} On the night of June 30, Delgado's shorthanded work crew, under the supervision of Mike Burkett and Charlie White, was being pressured to work harder in order to compensate for the loss of production and revenue incurred after a recent ten day shut down. Suddenly, the crew experienced an especially dangerous emergency situation known as a "runaway." The ladle had reached three-quarters of its capacity but the flowing slag could not be stopped because the mudgun was inoperable and manual efforts to close the skim hole had failed. To compound the situation, the consistency of the slag caused it to flow at a faster rate than ever, thus resulting in the worst runaway condition that many of the workers on the site had ever experienced. Respondents could have shut down the furnace, thereby allowing the safe removal of the ladle of slag. However, in order to avoid economic loss, Respondents chose instead to order Delgado, who had never operated a kress-haul under runaway conditions, to attempt to remove the ladle alone, with the molten slag still pouring over its fifteen-foot brim. In doing so, Respondents knew or should have known that Delgado would die or suffer great bodily harm.
{5} When Delgado entered the tunnel, he saw that the ladle was overflowing and radioed White to inform him that he was neither qualified nor able to perform the removal. White insisted. In response to Delgado's renewed protest and request for help, White again insisted that Delgado proceed alone. Shortly after Delgado entered the tunnel, the lights shorted out and black smoke poured from the mouth of the tunnel. Delgado's co-workers watched as he emerged from the smoke-filled tunnel, fully engulfed in flames. He collapsed before co-workers could douse the flames with a water hose. "Why did they send me in there?" Delgado asked co-workers, "I told them I couldn't do it. They made me do it anyway. Charlie sent me in." Delgado had suffered third-degree burns over his entire body and died three weeks later in an Arizona hospital.
{6} The dilapidated kress-haul, recovered after the incident, exemplified the horror of the night's events. The vehicle's windows and tires had melted from the overspilled slag. The caps to the kress-haul's gas tanks were missing and the entire vehicle had burned. Delgado had managed to secure one of the ladle's hooks to the kress-haul before the flames consumed him.
{7} On December 1, 1998, Petitioner filed a complaint in district court against Respondents Phelps Dodge Chino, Inc., White, and Burkett. The complaint stated actions for wrongful death and loss of consortium, prima facie tort, and intentional infliction of emotional distress based on the theory that in ordering Delgado to remove the overflowing ladle, Respondents acted intentionally, with the knowledge that Delgado would be seriously injured and killed as a result of their actions. Respondents filed a motion to dismiss, pursuant to Rule 1-1012(B)(6) ("failure to state a claim upon which relief can be granted"). Judge Jeffreys granted the motion, finding that Petitioner's claims, even if proven true, established only that Respondents "did engage in a series of deliberate or intentional acts which they knew or should have known would almost certainly result in serious injury or death to Reynaldo Delgado, but the complaint falls short of alleging that [they] actually intended to harm Reynaldo Delgado."
{8} In a memorandum opinion, the Court of Appeals affirmed the trial court's decision to grant the motion to dismiss. See Delgado, NMCA 20,972, slip op. Citing Johnson Controls World Services, Inc. v. Barnes, 115 N.M. 116, 119, 847 P.2d 761, 764 (Ct.App.1993), and 6 Arthur Larson & Lex K. Larson,
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[131 N.M. 276] Larson's Workers' Compensation Law § 103.03 (2000), the Court of Appeals held that the Act provides an employer immunity from tort liability unless the worker's injury stems from the employer's "actual intent" to injure the worker. See Delgado, NMCA 20,972, slip op. at 5. The Court affirmed the dismissal because it agreed with the trial court that Petitioner's complaint failed to allege facts that established actual intent. See id. at 6.
{9} Petitioner argues that the Court of Appeals erred in affirming the trial court because: (1) Johnson Controls misinterprets the term "accident"; (2) Johnson Controls contradicts rules of statutory construction by inserting the requirement of actual intent; (3) intentional acts for purposes of the Act should be defined in the same way as intentional acts in other contexts; (4) the actual intent test creates an absurd result; and (5) the actual intent test violates equal protection. Petitioner asks us to adopt a test that would lift the bar of exclusivity when the employer knows that its conduct is substantially certain to result in the worker's serious injury or death. In the alternative, Petitioner argues that Respondents' conduct satisfied the actual intent test.
{10} Respondents counter that Petitioner failed to preserve her argument that Johnson Controls was wrongly decided, and that, in any case, stare decisis binds this Court to application of the actual intent test. They argue that Johnson Controls was decided correctly, that the actual...
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