Notwithstanding anything in the worker’s compensation law to the contrary, if the fault of the worker’s employer or those for whom the employer is legally responsible, other than the injured worker, is found to have proximately caused the worker’s injury, the employer’s right to reimbursement from the proceeds of the worker’s recovery in any action against any wrongdoer shall be diminished by the percentage of fault, if any, attributed to the employer or those for whom the employer is responsible, other than the injured worker.
HISTORY:
Laws 1987, ch. 141, § 4.
Notes to Decisions
Fault.
52-1-10.1 NMSA 1978 expressly diminished the employer’s right to reimbursement by the employer’s percentage of fault; however, an employer’s right to reimbursement from the proceeds of the worker’s recovery in any action against any wrongdoer shall be diminished by the percentage of fault, if any, attributed to the employer or those for whom the employer was responsible, other than the injured worker. Enriquez v. Cochran, 1998-NMCA-157, 126 N.M. 196, 967 P.2d 1136, 1998 N.M. App. LEXIS 140 (N.M. Ct. App.), cert. denied, 1998-NMCA-157, 126 N.M. 532, 972 P.2d 351, 1998 N.M. LEXIS 355 (N.M. 1998).
Liability.
Employee’s personal injuries sustained by inherently dangerous activity of felling trees qualified him for a public policy exception of the New Mexico Workers’ Compensation Act, 52-1-10.1 NMSA 1978, to warrant the imposition of joint and several tort liability on an employer pursuant to 41-3A-1 NMSA 1978. Enriquez v. Cochran, 1998-NMCA-157, 126 N.M. 196, 967 P.2d 1136, 1998 N.M. App. LEXIS 140 (N.M. Ct. App.), cert. denied, 1998-NMCA-157, 126 N.M. 532, 972 P.2d 351, 1998 N.M. LEXIS 355 (N.M. 1998).
In plaintiff’s personal injury action against a non-profit corporation and a volunteer, the corporation’s argument against the imposition of joint and several liability under 41-3A-1 NMSA 1978 on the ground that it would provide plaintiff, it’s purported statutory employee, with a double recovery in violation of the New Mexico Workers’ Compensation Act, 52-1-1.1 NMSA 1978 et seq., had no merit where the state legislature’s provision in 52-1-10.1 NMSA 1978 for an exception to the usual rule prohibiting double recovery found in 52-5-17 NMSA 1978 indicated that there was nothing in the spirit of the act that would prohibit the imposition of joint and several liability that the court had already recognized and where any right to reimbursement under 52-5-17 NMSA 1978, as modified by 52-1-10.1 NMSA 1978, belonged to plaintiff’s true employer, not to the corporation. Enriquez v. Cochran, 1998-NMCA-157, 126 N.M. 196, 967 P.2d 1136, 1998 N.M. App. LEXIS 140 (N.M. Ct. App.), cert. denied, 1998-NMCA-157, 126 N.M. 532, 972 P.2d 351, 1998 N.M. LEXIS 355 (N.M. 1998).
Negligence.
Section 52-1-10.1 NMSA 1978 provided for a reduction in an employer’s right to reimbursement by the percentage of its fault in proximately causing a worker’s injury; thus, an injured worker’s claim that the administrative judge erred in failing to find that her employer’s negligence was a proximate cause of her injury was of significance in computing whether the employer was entitled to reimbursement from the injured employee’s third party settlement and, if so, how much. Trujillo v. Sonic Drive-In/Merritt, 1996-NMCA-106, 122 N.M. 359, 924 P.2d 1371, 1996 N.M. App. LEXIS 86 (N.M. Ct. App. 1996).
Remedies.
Where an injured worker entered into a stipulated settlement with his employer’s general contractor, making him financially whole, 52-1-10.1 NMSA 1978, which only governed the employer’s right to reimbursement, had no bearing on the case; the worker was not allowed to recover from a third party and also to pursue a workers’ compensation claim against his employer. Apodaca v. Formwork Specialists, 1990-NMCA-102, 110 N.M. 778, 800 P.2d 212, 1990 N.M. App. LEXIS 111 (N.M. Ct. App. 1990), cert. denied, 110 N.M. 749, 799 P.2d 1121, 1990 N.M. LEXIS 331 (N.M. 1990), overruled, Montoya v. AKAL Sec., 1992-NMSC-056, 114 N.M. 354, 838 P.2d 971, 1992 N.M. LEXIS 261 (N.M. 1992).
Workers’ compensation.
Where an injured employee, who had been paid workers’ compensation by his employer’s insurer, recovered a judgment against a third party who had allegedly caused his injury, under former 59-10-25C, 1953 Comp., which was a reimbursement statute, the employee’s expenses for the third-party action were to be prorated between the carrier and the employee. Transport Indem. Co. v. Garcia, 1976-NMCA-059, 89 N.M. 342, 552 P.2d 473, 1976 N.M. App. LEXIS 586 (N.M. Ct. App.), cert. denied, 90 N.M. 9, 558 P.2d 621, 1976 N.M. LEXIS 968 (N.M. 1976).
Research References and Practice Aids
New Mexico Law Review.
Workers’ Compensation Law—Pursuing The “Benevolent Purpose” Of New Mexico’s Workers’ Compensation Statute As A Reimbursement Statute: Montoya v. Akal Security, Inc., Vickie R. Wilcox, 24 N.M. L. Rev. 577 (1994).