June 4, 2020- Virgil Martinez v. Chevron Mining, Inc., No. A-1-CA-37140

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
VIRGIL MARTINEZ and GLORIA	2
MARTINEZ,	3
Plaintiffs-Appellants,	4
v. 	No. A-1-CA-37140	5
CHEVRON MINING, INC., PHILLIP A.	6
HOWARD, and JOHN DOES,	7
Defendants-Appellees.	8
APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY	9
Sarah C. Backus, District Judge	10
Law Office of Jane B. Yohalem	11
Jane B. Yohalem	12
Santa Fe, NM	13
Bleus & Associates, LLC	14
George Anthony Bleus	15
Albuquerque, NM	16
for Appellants	17
Modrall, Sperling, Roehl, Harris & Sisk, P.A.	18
Jennifer G. Anderson	19
Elizabeth A. Martinez	20
Albuquerque, NM	21
for Appellees	22
Court of Appeals of New Mexico
Filed 6/4/2020 11:45 AM

2
MEMORANDUM OPINION	1
VARGAS, Judge.	2
{1} 	This appeal asks us to consider whether an employee, who suffered emotional	3
distress after witnessing the death of a coworker, can bring a claim in tort under	4
Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, ¶ 1, 131 N.M. 272, 34 P.3d	5
1148 (holding that an employer loses its rights afforded under the exclusivity	6
provision of the Workers’ Compensation Act when it “willfully or intentionally	7
injures a worker”). Concluding the amended complaint fails to state a claim that	8
Defendants Chevron Mining, Inc., Phillip A. Howard, and certain John Does	9
intentionally or willfully caused Plaintiff Virgil Martinez (Virgil) to suffer an injury	10
that was otherwise exclusively compensable under the Workers’ Compensation Act	11
(the Act), NMSA 1978, §§ 52-1-1 to -70 (1929, as amended through 2017), we	12
affirm the district court’s dismissal of the amended complaint.	13
BACKGROUND	14
{2} 	Virgil, along with his wife, Plaintiff Gloria Martinez (Gloria) (collectively,	15
Plaintiffs), filed suit against Defendants. After dismissal of the original complaint,	16
Plaintiffs were permitted to file their first amended complaint, which alleges the	17
following. Virgil was employed at the Questa Mine & Mill in May 2013. The mine	18
was owned and operated by Chevron Mining, Inc., and Howard was the general	19
manager of the mine. During Virgil’s shift on May 16, 2013, his coworker, Isaac	20

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Garcia, died in a work-related accident when he was crushed by a malfunctioning	1
locomotive after being directed by his supervisor to fix the derailment of a loaded	2
ore car.	3
{3} 	Plaintiffs allege that in the time leading up to the accident, numerous	4
employees, 	including 	Virgil, 	voiced 	concerns 	to 	mine 	supervisors 	about 	the	5
defective, unreliable, and unsafe condition of railway couplings, railcar brake lines,	6
locomotive wheels, trolleys, and railway tracks at the mine. Plaintiffs also allege that	7
several employees had been injured as a result of these unsafe conditions. Plaintiffs	8
further allege that Defendants knew they should have replaced unsafe equipment on	9
the trains, but failed to do so. Further, Defendants knew they should have either	10
stopped 	operations 	altogether 	or 	isolated 	portions 	of 	the 	track 	and 	rerouted	11
production so that they could fix damaged railway tracks.	12
{4} 	On the day of the incident, Virgil was operating an electric locomotive pulling	13
several ore-loaded railway cars. After being told by Virgil that one of the railway	14
cars had “derailed,” the acting supervisor of the mine instructed Garcia to investigate	15
and fix the derailment. Garcia informed the acting supervisor that the railway	16
coupling had become disconnected and voiced concerns about fixing the derailment.	17
Because he felt Garcia was not properly trained to address the issue, Virgil also	18
expressed concern to the acting supervisor about assigning Garcia to resolve the	19

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derailment. Notwithstanding Garcia’s and Virgil’s objections, the acting supervisor	1
instructed Garcia to fix the derailment.	2
{5} 	While he was attempting to fix the derailment, the locomotive malfunctioned	3
and Garcia was pinned between two railway cars. Virgil rushed to Garcia, but was	4
unsuccessful in his attempts to render first aid and assistance. Garcia died as a result	5
of the injuries sustained during the incident. Plaintiffs sued Defendants, alleging that	6
Defendants’ wrongful actions caused Virgil to witness the protracted and painful	7
death of Garcia, resulting in Virgil’s emotional distress and Gloria’s loss of	8
consortium.	9
{6} 	Defendants filed a motion to dismiss for failure to state a claim, arguing	10
Plaintiffs’ claims were barred by an employer’s immunity from tort liability under	11
the Act. Plaintiffs argued that, notwithstanding the Act’s provision of immunity from	12
tort liability, their claims were permitted under Delgado, 2001-NMSC-034, ¶ 2. The	13
district court disagreed, ruling that “there does not appear to be any authority to	14
support [Plaintiffs’] theory that a count for intentional infliction of bystander	15
emotional distress falls within the Delgado exception to the [Act’s] exclusivity.”	16
Because it was derivative of Virgil’s emotional distress claim, the district court also	17
dismissed Gloria’s loss of consortium claim. This appeal followed.	18

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DISCUSSION	1
{7} 	Plaintiffs raise two issues on appeal. We initially address Plaintiffs’ argument	2
that the district court erred in dismissing Plaintiffs’ complaint because Virgil’s claim	3
for intentional infliction of emotional distress (IIED) satisfies the requirements of	4
Delgado, rendering the Act inapplicable. As this issue is dispositive, we need not	5
reach Plaintiffs’ additional claim—that Virgil stated a legally sufficient first-party	6
claim for IIED.	7
Standard of Review	8
{8} 	“A motion to dismiss for failure to state a claim tests the legal sufficiency of	9
the complaint, not the factual allegations of the pleadings which, for purposes of	10
ruling on the motion, the court must accept as true.” Walsh v. Montes, 2017-NMCA-	11
015, ¶ 6, 388 P.3d 262 (internal quotation marks and citation omitted). “On review,	12
we accept all well-pleaded factual allegations in the complaint as true and resolve	13
all doubts in favor of the sufficiency of the complaint.” Id. (internal quotation marks	14
and citation omitted). Our review is limited to a determination of whether “the	15
essential elements prerequisite to the granting of the relief sought can be found or	16
reasonably inferred” from the complaint. Derringer v. State, 2003-NMCA-073, ¶ 5,	17
133 N.M. 721, 68 P.3d 961 (internal quotation marks and citation omitted). “A	18
district court’s decision to dismiss a case for failure to state a claim under Rule 1-	19

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012(B)(6) is reviewed de novo.” Walsh, 2017-NMCA-015, ¶ 6 (internal quotation	1
marks and citation omitted).	2
Workers’ Compensation Exclusivity	3
{9} 	Plaintiffs argue the district court erred in finding their claims to be insufficient	4
under the Delgado exception to the Act’s exclusivity provision. 1 See § 52-1-8	5
(providing that an “employer who has complied with [the Act] . . . shall not be	6
subject to any other liability whatsoever for the death of or personal injury to any	7
employee, except as provided in the [Act]”). “The purpose of the Act’s exclusivity	8
provision is to achieve balance between injured workers’ need for compensation and	9
employers’ need to limit liability for work-related injuries.” Richey v. Hammond	10
Conservancy Dist., 2015-NMCA-043, ¶ 7, 346 P.3d 1183. However, “[t]he Act	11
makes an exception to the general rule of exclusivity of remedies for events that are	12
not accidents.” Morales v. Reynolds, 2004-NMCA-098, ¶ 7, 136 N.M. 280, 97 P.3d	13
612 (alteration, internal quotation marks, and citations omitted). “[W]hen an	14
employer intentionally inflicts or willfully causes a worker to suffer an injury that	15
would otherwise be exclusively compensable under the Act, that employer may not	16
1Defendants make various arguments that Plaintiffs failed to preserve many
of the arguments advanced on appeal. Because we conclude Plaintiffs fail to state a
Delgado claim, we simply assume for purposes of this appeal that Plaintiffs
adequately preserved their arguments.

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enjoy the benefits of exclusivity, and the injured worker may sue in tort.” Delgado,	1
2001-NMSC-034, ¶ 24.	2
{10} 	Our Supreme Court clarified that an employer willfully causes a worker to	3
suffer injury when:	4
(1) the . . . employer engages in an intentional act or omission, without	5
just cause or excuse, that is reasonably expected to result in the injury	6
suffered by the worker; (2) the . . . employer expects the intentional act	7
or omission to result in the injury, or has utterly disregarded the	8
consequences; and (3) the intentional act or omission proximately	9
causes the injury.	10
Id. ¶ 26. The Court explained that the first prong requires that we consider “whether	11
a reasonable person would expect the injury suffered by the worker to flow from the	12
intentional act or omission.” Id. ¶ 27. The second prong mandates that we evaluate	13
“the subjective state of mind of the . . . employer.” Id. ¶ 28. And the third prong	14
demands that we examine “the causal relationship between the intent and the injury.”	15
May v. DCP Midstream, L.P., 2010-NMCA-087, ¶ 7, 148 N.M. 595, 241 P.3d 193	16
(internal quotation marks and citation omitted). “Not only must a party proffer	17
evidence meeting each of Delgado’s three elements, but they must also demonstrate	18
their opponent acted unconscionably and with a comparable degree of egregiousness	19
as the employer in Delgado.” Pearson v. Johnson Controls, N. N.M., LLC, 2011-	20
NMCA-034, ¶ 15, 149 N.M. 740, 255 P.3d 318 (internal quotation marks and	21
citation omitted); see also id. ¶ 19 (characterizing the Delgado exception as a	22
“narrow exception”).	23

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{11} 	Defendants contend that the allegations in the first amended complaint fail to	1
meet the foreseeability and proximate cause requirements of Delgado. For the	2
reasons that follow, we agree. In evaluating an employer’s right to enjoy the benefits	3
of exclusivity, “the critical measure for Delgado claims is whether the employer has,	4
in a specific dangerous circumstance, required the worker to perform a task where	5
the employer is or should clearly be aware that there is a substantial likelihood the	6
worker will suffer injury or death by performing the task.” Richey, 2015-NMCA-	7
043, ¶ 28 (emphases added) (alterations, internal quotation marks, and citation	8
omitted). Here, Plaintiffs’ amended complaint asserts that Garcia, not Virgil, was	9
directed to resolve the derailment, which resulted in Garcia’s death. Accepting as	10
true Plaintiffs’ assertion that Virgil suffered from mental distress as a result of	11
witnessing the incident and attending to Garcia as he died, see Walsh, 2017-NMCA-	12
015, ¶ 6, we nevertheless conclude the district court did not err because Plaintiffs	13
have failed to allege that Defendants required Virgil to perform a task that meets the	14
requirements of Delgado. See Richey, 2015-NMCA-043, ¶ 28; see also Dominguez	15
v. Perovich Props., Inc., 2005-NMCA-050, ¶¶ 10, 19, 21, 137 N.M. 401, 111 P.3d	16
721 (relying on the federal district court’s interpretation of Delgado’s first prong as	17
“requiring general foreseeability,” which involves an examination of whether “the	18
assignment of tasks to the plaintiff was . . . reasonably expected to result in the	19
[plaintiff’s injury]” (emphasis added)).	20

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{12} 	While Virgil does allege that Defendants, despite knowing the health and	1
safety hazards, “ordered” him and other employees to continue to work with the	2
defective, unreliable, and unsafe locomotive ore cars and to engage in activities	3
Defendants knew or should have known would likely lead to death or great bodily	4
harm, these allegations are insufficient, as they do not identify “a specific dangerous	5
circumstance” in which Defendants required Virgil “to perform a task” that was	6
likely to result in Virgil’s injury or death. See Dominguez, 2005-NMCA-050, ¶ 22.	7
Instead, Plaintiffs’ claim seems to be that by requiring Virgil to perform his job at	8
all, Defendants “knew or should have known” it was likely that Virgil would suffer	9
injury or death. Absent a “specific dangerous circumstance,” these allegations are	10
insufficient to state a claim under Delgado. See May, 2010-NMCA-087, ¶ 13	11
(“[H]aving an employee perform a routine, familiar task which he had performed	12
before is not the same as sending an employee to face certain injury. The absence of	13
safety measures by itself demonstrates neither intent nor an inherent probability of	14
injury[.]”).	15
{13} 	Plaintiffs 	further 	argue 	the 	district 	court 	erred 	in 	ruling 	they 	did 	not	16
sufficiently state a claim under Delgado because the district court misconstrued their	17
IIED claim as a third-party, rather than a first-party, claim. Their argument	18
mischaracterizes the basis for the district court’s order. The district court based its	19
decision not on the nature of Plaintiffs’ IIED claim, but on the extent to which	20

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Delgado contemplates whether claims made by witnesses to intentional or willful	1
injuries to another employee fall outside the scope of the Act’s exclusivity. We	2
conclude Plaintiffs’ amended complaint did not sufficiently state a claim under	3
Delgado, and the district court did not err in granting Defendants’ motion to	4
dismiss. 2
5
CONCLUSION	6
{14} 	For the foregoing reasons, we affirm.	7
{15} 	IT IS SO ORDERED.	8
_________________________________	9
JULIE J. VARGAS, Judge	10
WE CONCUR:	11
_________________________________	12
JENNIFER L. ATTREP, Judge	13
_________________________________	14
KRISTINA BOGARDUS , Judge	15
2We recognize that Plaintiffs filed a motion to reconsider, arguing that under
Baldonado v. El Paso Natural Gas Co., 2008-NMSC-005, 143 N.M. 288, 176 P.3d
277, “bystander plaintiffs are entitled to recover under Delgado for severe emotional
distress brought about by intentional conduct—or, by reckless conduct where a
‘special relationship’ exists between the parties.” The district court denied Plaintiffs’
motion. In light of our ruling that Plaintiffs failed to identify a “specific dangerous
circumstance” in which Defendants required Virgil to “perform a task,” we need not
address Plaintiffs’ claims about the applicability of Baldonado.