Escobedo v. American Emp. Ins. Co., 76-1107
| Decision Date | 11 January 1977 |
| Docket Number | No. 76-1107,76-1107 |
| Citation | 547 F.2d 544 |
| Parties | Roberto F. ESCOBEDO, Plaintiff-Appellant, v. AMERICAN EMPLOYERS INSURANCE CO., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Anthony F. Avallone, Las Cruces, N. M., for plaintiff-appellant.
William W. Bivins of Bivins, Weinbrenner & Regan, Las Cruces, N. M. (Grambling, Mounce, Deffebach, Simms, Hardie & Galatzan, El Paso, Tex., on the brief), for defendant-appellee.
Before SETH and HOLLOWAY, Circuit Judges, and CHILSON, * Senior United States District Judge.
This is a diversity action brought by the appellant-plaintiff seeking to recover damages from the appellee-defendant on allegations that the defendants acted in bad faith in terminating the payment of installments of compensation to which the plaintiff claims he was entitled under the New Mexico Workmen's Compensation Act (N.M.S.A. § 59-10-1 et seq.).
The plaintiff's complaint in pertinent parts alleges that plaintiff was an employee of Agricultural Products Co., Inc.; that defendant Insurance Company had insured the employer's obligation to pay compensation benefits to injured employees as required by the New Mexico Workmen's Compensation Act; that in December 1970, plaintiff was injured in the course of his employment; that defendant commenced payment of compensation benefits in installments as required by the Act, but after about seven months, failed and refused to make further payments; that the defendant's termination of the payment of installment benefits was made in bad faith; that the resulting delays and harassment by protracted legal proceedings caused the plaintiff to compromise his claim for compensation benefits for an unreasonable amount.
The Workmen's Compensation Act provides that if the employer fails or refuses to pay a workman any installment of compensation to which the workman is entitled, it is the duty of the workman to file a claim therefor in the state district court (59-10-13.6); the Clerk of the Court then serves the claim and a summons upon the defendants by mail and the defendants have thirty days from the date of the mailing in which to file an answer in defense of the claim. (59-10-13.7); when the claim is at issue, the judge shall advance the case on the court's calendar and dispose of the case as promptly as possible and the trial shall be conducted in a summary manner. (59-10-13.10).
When defendants terminated the installment payments of benefits, plaintiff followed this procedure and filed his claim in the District Court of Dona Ana County, New Mexico. After lengthy negotiations, a settlement was reached and upon a stipulation and joint motion of the parties, a judgment was entered by the state court in favor of the plaintiff and against defendants in the amount of $13,500 plus $750 for plaintiff's attorneys fees. The stipulation for judgment, which was approved by the state court, contained a release of plaintiff's compensation...
To continue reading
Request your trial
-
Deanda v. AIU INS.
...755 S.W.2d 399, (Mo.App., 1988); Hayes v. Aetna Fire Underwriters, 187 Mont. 148, 609 P.2d 257, (1980); Escobedo v. American Employers Ins. Co., 547 F.2d 544, (C.A.10 N.M.1977)(applying New Mexico law); Penn v. Standard Acci. Ins. Co., 4 A.D.2d 796, 164 N.Y.S.2d 618, (3d Dept., 1957); Kuney......
-
Jones v. National Union Fire Ins. Co.
...while of some importance under other circumstances, see, e.g., Dearing v. Perry, 499 N.E.2d 268 (Ind.App.1986), is insignificant in this case. 6Escobedo v. American Employers Ins. Co., 547 F.2d 544 (10th Cir.1977) (applying New Mexico law); Whitten v. American Mut. Liability Ins. Co., 468 F......
-
Yocum v. Phillips Petroleum Co.
...Club, 562 S.W.2d 163 (Mo.App.1978); Chavez v. Kennecott Copper Corp., 547 F.2d 541 (10th Cir. 1977); Escobedo v. American Employers Insurance Co., 547 F.2d 544 (10th Cir. 1977); Sandoval v. Salt River Project, Etc., 117 Ariz. 209, 571 P.2d 706 (1977); Ragsdale v. Watson, 201 F.Supp. 495 (W.......
-
Carpentino v. Transport Ins. Co.
...to bar a tort action against an insurer for wrongful termination or delay of compensation payments. See Escobedo v. American Employers Ins. Co., 547 F.2d 544, 545 (10 Cir.1977) (applying New Mexico law); Whitten v. American Mutual Liability Ins. Co., 468 F.Supp. 470, 475 (D.S.C.1977) (apply......