Lopez v. Am. Baler Co.

• Decision Date: 27 March 2014
• Docket Number: No. CIV 11-0227 JB/GBW,CIV 11-0227 JB/GBW
• Parties: HELEN LOPEZ, as Personal Representative of Wrongful Death Estate of JIM CLARK, Deceased, Plaintiff, v. AMERICAN BALER COMPANY, a foreign corporation; METSO CORPORATION, a foreign corporation; METSO LINDEMANN, a foreign corporation; LINDEMANN RECYCLING EQUIPMENT, INC., a foreign corporation; DON DICKASON and MARTHA DICKASON, individually and d/b/a dmDICKASON PERSONNEL SERVICES, Defendants, and LINDEMANN RECYCLING EQUIPMENT, INC., Defendant/Third-Party Plaintiff, v. CITY OF LAS CRUCES, Third-Party Defendant.
• Court: U.S. District Court — District of New Mexico

HELEN LOPEZ, as Personal Representative of

Wrongful Death Estate of JIM CLARK, Deceased, Plaintiff, v. AMERICAN BALER COMPANY, a foreign corporation;

METSO CORPORATION, a foreign corporation;

METSO LINDEMANN, a foreign corporation;

LINDEMANN RECYCLING EQUIPMENT, INC.,

a foreign corporation; DON DICKASON and MARTHA DICKASON,individually and d/b/a dmDICKASON PERSONNEL SERVICES, Defendants,andLINDEMANN RECYCLING EQUIPMENT, INC., Defendant/Third-Party Plaintiff, v. CITY OF LAS CRUCES, Third-Party Defendant.

No. CIV 11-0227 JB/GBW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

March 27, 2014

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on Defendants Don Dickason, Martha Dickason and dmDickason Personnel Services' Motion for Summary Judgment and Memorandum in Support Thereof, filed August 28, 2013 (Doc. 80)("MSJ"). The primary issue is whether the exclusive-remedy provisions of the New Mexico Workers' Compensation Act, N.M. Stat. Ann. §§ 52-1-1 to -70 ("NMWCA"), preclude Plaintiff Helen Lopez, as the personal representative ofthe wrongful death estate of Jim Clark, from bringing a breach-of-contract claim against the Defendants Don Dickason and Martha Dickason, individually and doing business as dmDickason Personnel Services (collectively "the Dickason Defendants") for failing to provide a safe work place. The Court will grant the MSJ, because the NMWCA "provides exclusive remedies," N.M. Stat. Ann. § 52-1-6(E), and a breach-of-contract claim based on an implied contract for the failure to provide a safe workplace circumvents the NMWCA's purpose.

FACTUAL BACKGROUND

On November 16, 2007, Jim Clark, a dmDickason Personnel employee, was working at the City of Las Cruces, New Mexico, Recycling Center. See Payroll History Report at 1, filed August 28, 2013 (Doc. 80-1); Workers Compensation - First Report of Injury or Illness at 1, filed August 28, 2013 (Doc. 80-2)("First Injury Report"); MSJ ¶ 1, at 2 (setting forth this fact); Plaintiff's Response to Defendants Don Dickason Martha Dickason and dmDickason Personnel Services Motion for Summary Judgment and Memorandum in Support Thereof ¶ 1, at 3, filed September 23, 2013 (Doc. 83)("Response")(not disputing this fact).¹ Sometime during the day, the Lindemann Baler -- a machine used for baling recycled materials -- jammed, and J. Clarkentered the baler to unjam it. See First Injury Report at 1; Complaint for Wrongful Death, Negligence, Personal Injuries and Damages, Infliction of Emotional Distress Due to Negligence, and Products Liability ¶¶ 10-11, at 3, filed in state court November 3, 2010, filed in federal court March 14, 2011 (Doc. 1-1)("Complaint"); MSJ at 2; Response at 1-2.² While inside, the baler reengaged and fatally injured J. Clark. See First Injury Report at 1; Complaint ¶ 11, at 3; MSJ at 2.³

No other dmDickason Personnel employees were present at the Recycling Center or instructed J. Clark to enter the baler on November 16, 2007. See Deposition of Apolinar Garcia 126:13-16 (Maestas, Garcia), taken March 5, 2013, filed August 28, 2013 (Doc. 80-3), filed September 23, 2013 (Doc. 83-4)("Garcia Depo.");⁴ id., at 128:24-129:23 (Maestas, Garcia); Deposition of Max Gonzalez at 118:5-22 (Maestas, Gonzalez), taken March 6, 2013, filed August 28, 2013 (Doc. 80-4)("Gonzalez Depo."); MSJ ¶¶ 3-4, at 3 (setting forth this fact); Response at 3 (not disputing this fact). At least two City of Las Cruces employees were present -- Bonnie Tafoya, a supervisor⁵ at the Recycling Center, and Apolinar Garcia, who was operating the baler at the time of J. Clark's accident. See Garcia Depo. at 30:7-19 (Jamieson; Garcia); id. at121:16-122:9 (Maestas, Garcia); id. at 132:9-19 (Maestas, Garcia); MSJ ¶¶ 5-7, at 3 (setting forth this fact); Response at 3 (not disputing this fact).

J. Clark had worked for dmDickason Personnel since early January, 2007. See Payroll History Report at 1; Response ¶ 1, at 3 (setting forth this fact).⁶ When J. Clark was hired, dmDickason Personnel had a Policies and Procedures Handbook that it provided to J. Clark, which J. Clark had in the hotel room where he was living at the time of his death.⁷ See Deposition ofKaylea Clark⁸ at 116:19-117:16 (Roach, K. Clark), taken June 28, 2013, filed September 23, 2013 (Doc. 83-1)("K. Clark Depo."); Policies and Procedures Handbook, filed September 23, 2013 (Doc. 83-2); Response ¶ 2, at 3 (setting forth this fact).⁹ The "safety policy statement" in the Policies and Procedures Handbook states:

Our team approach to accident prevention and safe work practices will ensure that dmDickason field employees are provided a working environment that promotes safety, health and the professionalism that you and our clients have the right to expect. Our primary concern is for your safety and welfare. In order the [sic] achieve this goal, guidelines have been established that recognizes each of our responsibilities:

• dmDickason will promote a safe and healthy work place for all of our employees

• Client and supervisors who control the workplace will demonstrate a commitment to an accident free workplace

• Temporary employees must take responsibility to work safely and observe the client's safe work practices.

Safety rules and safe work practices are designed as a preventative tool to ensure your safety. However, they are only as effective as your willingness to cooperate. These guidelines are not optional. As a condition of your employment, know these guidelines and consider them required elements of your job assignment.

dmDickason takes the responsibility as your employer very seriously, and we have gone to great lengths to provide a safe work environment. If you are injured on the job, dmDickason will deal promptly with legitimate claims and workers compensation insurance will pay medical expenses and wages. dmDickason has extensive experience investigating claims and will fight fraudulent claims with all available resources.

Policies and Procedures Handbook at 3. See Response ¶ 10, at 4 (setting forth this fact).¹⁰ While working at the City of Las Cruces Recycling Center, J. Clark was subject to the same rules and regulations as the City of Las Cruces employees and worked under Tafoya's supervision. See Garcia Depo. at 124:8-125:5 (Maestas, Garcia); MSJ ¶ 2, at 2 (setting forth this fact); Response at 3 (not disputing this fact).

Employees were not trained on safe operation of the baler until after J. Clark's accident. See Deposition of Ernesto De La Rosa at 87:17-19 (Jamieson, De La Rosa), taken July 18, 2013, filed September 23, 2013 (Doc. 83-3)("De La Rosa Depo."); Response ¶ 3, at 3 (setting forth this fact).¹¹ Although dmDickason Personnel knew its employees would be working around the baler at the Recycling Center, no one from dmDickason Personnel came onto the site to inspect the work environment before J. Clark's accident. See Tafoya Depo. at 107:15-110:22 (Roach, Tafoya); Response ¶ 11, at 4 (setting forth this fact).¹² It was dangerous to go into the baler hopper underthe circumstances at the time of J. Clark's death. See De La Rosa Depo. at 67:17-19 (Jamieson, De La Rosa); Response ¶ 4, at 3 (setting forth this fact).¹³ When a jam occurred in the baler, a worker would climb into the baler to try to unjam it manually, while the baler remained energized and was not shut off; Garcia testified that, in his experience, the baler probably jammed about fifty times. See Garcia Depo at 46:8-:49:2 (Jamieson, Garcia); Response ¶ 5, at 3 (setting forth this fact).¹⁴ Before the accident, Tafoya knew that the Recycling Center machinery was dangerous and was fighting for enhanced safety procedures in recycling, but her safety concerns were ignored. See Deposition of Bonnie Tafoya at 83:8-86:20 (Jamieson, Tafoya), taken July 19, 2013, filed September 23, 2013 (Doc. 83-5)("Tafoya Depo."); Response ¶ 7, at 3 (setting forth this fact).¹⁵

The parties dispute whether the baler was defective and unreasonably dangerous, and whether the manufacturer could reasonably foresee such defects.¹⁶ According to Lopez' experts,the baler was defective and unreasonably dangerous in its intended use for several reasons, including the failure of the machine to have interlocked access doors to the machine that would de-energize the machine when a worker entered. See Report on a Fatal Incident Involving a Paper Baler by Michael Huerta at 2-6, filed September 23, 2013 (Doc. 83-6)("Huerta Report"); Expert Report Lopez/Clark v. American Baler and LREI, incident November 17, 2007 by Tom Lawless at 1-2, filed September 23, 2013 (Doc. 83-7)("Lawless Report"); Preliminary Report Re: Lopez v. American Baler Company by William F. Kitzes at 1-5, filed September 23, 2013 (Doc. 83-8)("Kitzes Report"); Response ¶ 7, at 4 (setting forth this fact); American Baler Company and Lindemann Recycling Equipment, Inc.'s Reply to Plaintiff's Response to the Dickason Defendants' Motion for Summary Judgment for the Purpose of Disputing and Objecting to Plaintiff's Additional Material Facts at 1, filed October 10, 2013 (Doc. 86)("American Baler Reply")(disputing this fact). Lopez' experts assert that it was foreseeable and known to the manufacturer that the baler jammed, that manual unjamming occurred, and that workers would be in the machine while it was energized in the absence of interlocked access. See Huerta Report at2-6; Lawless Report at 1-2; Kitzes Report at 1-5; Response ¶ 9, at 4 (setting forth this fact); American Baler Reply at 1 (disputing this fact).

PROCEDURAL BACKGROUND

Lopez filed a lawsuit for wrongful death against the Defendants on November 3, 2012, in the First Judicial District Court for Santa Fe County, New Mexico. See Complaint at 1. The Defendants removed this action to federal court on March 24, 2011. See Defendant Lindemann Recycling Equipment, Inc.'s Notice of Removal of Action ¶ 1, at 1, filed March 14, 2011 (Doc. 1). In Count I, Lopez alleges that the Dickason Defendants "breached their duties to Mr. Clark by failing to inspect and...