May 04, 2010 – Jose Valdez v. R-Way, LLC, No. 29,342

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: May 4, 2010
NO. 29,342
JOSE VALDEZ,
Plaintiff-Appellant,
v.
R-WAY, LLC,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
James A. Hall, District Judge
Voorhees Law Firm, PC
Scott F. Voorhees
Santa Fe, NM
for Appellant
Keleher & McLeod, P.A.
Thomas F. Keleher
Thomas C. Bird
Cassandra R. Malone
Albuquerque, NM
for Appellee

OPINION
SUTIN, Judge.
{1} 	This interlocutory appeal presents the question whether settlement with an
employee releases the employer from claims based on respondeat superior. Plaintiff
Jose Valdez’s vehicle was rear-ended by a vehicle driven by Romancita Salazar, and
Plaintiff sued Ms. Salazar in negligence and also claimed that Ms. Salazar’s employer,
Defendant R-Way, LLC, was vicariously liable. 	Plaintiff and Ms. Salazar settled.
Plaintiff fully released Ms. Salazar from all claims arising from the accident. 	The
release between these two parties specifically preserved Plaintiff’s claim against
Defendant. The district court granted Defendant’s motion to dismiss Plaintiff’s claim
against Defendant on the ground that the settlement with the employee destroyed
Plaintiff’s claim against Defendant, and the court denied Plaintiff’s motion for
reconsideration. The district court certified the matter for interlocutory appeal. This
Court granted Plaintiff’s application for interlocutory appeal. We hold that the release
of Ms. Salazar released Defendant despite reservation of Plaintiff’s claim against
Defendant, on the ground that where an employer’s liability arises only by virtue of
the doctrine of respondeat superior, and not through any independent negligence of
the employer, the employer is not a true joint tortfeasor.

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DISCUSSION
The Issue, Standard of Review, and Relevant Law
{2} 	The issue is, under circumstances in which Plaintiff settled with Defendant’s
employee, Ms. Salazar, but retained his vicarious liability claim against Defendant,
whether the court erred in dismissing that vicarious liability claim on the ground that
release of Ms. Salazar constituted a release of Defendant notwithstanding preservation
in the settlement agreement of the claim against Defendant. This issue is purely one
of law and, in part, requires interpretation of statutes. Our review is de novo. 	See
State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995) (“We review
questions of law de novo.”); Morgan Keegan Mortgage Co. v. Candelaria, 1998-
NMCA-008, ¶ 5, 124 N.M. 405, 951 P.2d 1066 (filed 1997) (noting that interpretation
of a statute is a question of law which an appellate court reviews de novo). “[I]t is the
particular domain of the [L]egislature, as the voice of the people, to make public
policy . . . . 	Courts should make policy . . . only when the body politic has not
spoken.” Aguilera v. Bd. of Educ., 2005-NMCA-069, ¶ 26, 137 N.M. 642, 114 P.3d
322 (alteration in original) (omissions in original) (internal quotation marks and
citation omitted), aff’d, 2006-NMSC-015, 139 N.M. 330, 132 P.3d 587.
{3} 	The Uniform Contribution Among Tortfeasors Act, NMSA 1978, §§ 41-3-1 to
-8 (1947, as amended through 1987) (the Uniform Contribution Act), is relevant

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insofar as Section 41-3-1 defines the term “joint tortfeasors” as “two or more persons
jointly or severally liable in tort for the same injury to person or property, whether or
not judgment has been recovered against all or some of them.” 	The Uniform
Contribution Act is also relevant insofar as Section 41-3-4 states that “[a] release by
the injured person of one joint tortfeasor, whether before or after judgment, does not
discharge the other tortfeasors unless the release so provides[.]”
{4} 	In Harrison v. Lucero, 86 N.M. 581, 584, 525 P.2d 941, 944 (Ct. App. 1974),
modified on other grounds by Vidal v. American General Cos., 109 N.M. 320, 785
P.2d 231 (1990), this Court recognized that “absent any delict of the [employer] other
than through the [employee], the exoneration of the [employee] removes the
foundation upon which to impute negligence to the [employer].” (Internal quotation
marks and citation omitted.) In Kinetics, Inc. v. El Paso Prods. Co., 99 N.M. 22, 27,
653 P.2d 522, 527 (Ct. App. 1982), this Court quoted the foregoing passage from
Harrison and held that, with the release of an agent, the means by which liability can
be imputed to the principal is destroyed. 	The rationale for this ruling was that the
Uniform Contribution Act did not apply to defendants sued under vicarious liability
theories because vicarious liability is a legal fiction imputing the wrongdoing of an
agent to the principal. See id. at 28, 653 P.2d at 528. The Kinetics Court concluded
that the Uniform Contribution Act did not apply to vicarious liability situations

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because the agent and principal were not “joint tortfeasors.” Id.
{5} 	In 1987 the Legislature enacted the Several Liability Act, NMSA 1978, §§ 41-
3A-1 to -2 (1987). Section 41-3A-1(A) provides that
[i]n any cause of action to which the doctrine of comparative fault
applies, the doctrine imposing joint and several liability upon two or
more wrongdoers whose conduct proximately caused an injury to any
plaintiff is abolished except as otherwise provided hereafter. 	The
liability of any such defendants shall be several.
Section 41-3A-1(C)(2) provides that “[t]he doctrine imposing joint and several
liability shall apply . . . to any persons whose relationship to each other would make
one person vicariously liable for the acts of the other, but only to that portion of the
total liability attributed to those persons[.]”
{6} 	Before the Several Liability Act was adopted, pursuant to joint and several
liability, two or more wrongdoers whose conduct proximately caused an injury to any
plaintiff were wholly liable for full damages even though they might have been only
partially at fault. 	However, the Several Liability Act abolished joint and several
liability in situations where the doctrine of comparative fault applies. Section 41-3A-
1(A). Under comparative fault, and following adoption of the Several Liability Act,
two or more wrongdoers inflicting an injury are “liable only for that portion of the
total dollar amount awarded as damages to the plaintiff that is equal to the ratio of
such defendant’s fault to the total fault attributed to all persons.” Section 41-3A-1(B).

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The Several Liability Act, however, preserved joint liability in vicarious liability
situations. Section 41-3A-1(C)(2).
{7} 	Those whose liability is only vicarious and thus fault-free have no fault to be
allocated; rather, those whose liability is only vicarious are one hundred percent
responsible because, although they are fault-free, “someone else’s fault is imputed to
them by operation of law.” Wiggs v. City of Phoenix, 10 P.3d 625, 629 (Ariz. 2000)
(en banc); see also Restatement (Third) of Torts: 	Apportionment of Liability § 13
cmts. b, c (2000) (“[T]he party vicariously liable should be liable for the entire share
of harm assigned to the tortious actor. . . . 	The vicariously liable party has not
committed any breach of duty to the plaintiff but is held liable simply as a matter of
legal imputation of responsibility for another’s tortious acts.”). Because fault cannot
be allocated between “persons whose relationship to each other would make one
person vicariously liable for the acts of the other,” it would be reasonable for the New
Mexico Legislature to exclude these situations from the Several Liability Act, which
adopted a several-liability-only scheme for comparative fault situations. Section 41-
3A-1(C)(2). Thus, the Several Liability Act did not change the law pertaining to joint
liability in vicarious liability cases. We interpret Section 41-3A-1(C)(2) as preserving
the vicarious liability of an employer for the conduct of an employee, such that they
may be jointly liable. However, that does not mean that they are true joint tortfeasors.

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We read the Harrison and Kinetics decisions as recognizing a distinction between
traditional joint tortfeasors who are jointly and severally liable and the vicarious
liability of an employer for the employee’s wrongdoing.
{8} 	Plaintiff argues that when Section 41-3A-1 was enacted “the respondeat
superior form of vicarious liability became statutory and is no longer a legal fiction
as stated in Kinetics.” We disagree. “Most state statutes abolishing or modifying joint
and several liability do not address explicitly whether a vicariously liable party
remains fully liable for any fault attributed to the agent.” Restatement, supra cmt. b,
reporter’s note. However, a few jurisdictions have statutes similar to New Mexico’s
Several Liability Act in which it is explicitly indicated that such parties remain jointly
and severally liable. See Ariz. Rev. Stat. Ann. § 12-2506(D)(1) (2001); Idaho Code
Ann. § 6-803(5) (2003); Wash. Rev. Code Ann. § 4.22.070(1)(a) (1993). Like New
Mexico, Arizona has abolished joint and several liability with a few exceptions. See
Ariz. Rev. Stat. Ann. §§ 12-2501 to -2509 (1984, as amended through 2001) (Uniform
Contribution Among Tortfeasors Act (the Arizona Act)). Cases in Arizona decided
before the enactment of the Arizona Act indicated that when the employer’s liability
is vicarious only, a discharge of the negligent employee from any personal liability
relieves the employer as well. See DeGraff v. Smith, 157 P.2d 342, 345 (Ariz. 1945)
(“[A] judgment in favor of either principal or agent in an action brought by a third

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party, rendered upon a ground equally applicable to both, should be accepted as
conclusive against a subsequent right of action against the other. By analogy, it is
held that the release of an employee from liability for injuries inflicted while acting
for the employer operates as a release of the employer.”).
{9} 	Similar to the present case, the plaintiff in Law v. Verde Valley Medical Center,
170 P.3d 701, 704-05 (Ariz. Ct. App. 2007), argued that the adoption of the Arizona
Act abolished their common law pertaining to a situation where exoneration of the
employee relieves the employer of vicarious liability. Although Verde Valley Medical
Center dealt with a judgment in favor of the negligent employee, the plaintiff relied
in part on Ariz. Rev. Stat. Ann. Section 12-2504 pertaining to the release of joint
tortfeasors, which is similar to New Mexico’s Section 41-3-4. See Verde Valley Med.
Ctr., 170 P.3d at 704-05. Particularly on point for the present case, the plaintiff in
Verde Valley Medical argued that the negligent employee and the employer were joint
tortfeasors and that Section 12-2504 made it clear that a release of one joint tortfeasor
did not automatically release the other joint tortfeasors. Verde Valley Med. Ctr., 170
P.3d at 705. The Verde Valley Medical Center court concluded that the Arizona Act
did not change the Arizona vicarious liability common law and that Section 12-2504
was not applicable because the employer and the negligent employee were not true
joint tortfeasors under Arizona law. 	See Verde Valley Med. Ctr., 170 P.3d at 705

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(concluding that any liability that the employer may have had for the actions or
inactions of its employee “would have been vicarious and not a result of joint or
concerted action”).
{10} 	We conclude that in a similar way the Several Liability Act did not change New
Mexico’s common law pertaining to vicarious liability. Harrison and Kinetics are still
good law and because Defendant’s liability was imputed solely based on the negligent
conduct of Ms. Salazar, without fault of its own, the release of Ms. Salazar removed
the basis on which Defendant’s fault was being imputed. Because Defendant and Ms.
Salazar are not true joint tortfeasors, Section 41-3-4 is inapplicable. See Kinetics, 99
N.M. at 28, 653 P.2d at 528 (concluding that because “the respondeat superior form
of vicarious liability is imposed upon one party through a legal fiction, the parties are
not joint tortfeasors”); see also Dickey v. Meier’s Estate, 197 N.W.2d 385, 387-88
(Neb. 1972) (holding that where an employer’s liability arises only by virtue of the
doctrine of respondeat superior and not through any independent negligence of that
employer, the employer is not a joint tortfeasor in the “technical sense,” and the
release of the employee releases the employer despite reservation of claim against the
employer); Mamalis v. Atlas Van Lines, Inc., 560 A.2d 1380, 1381, 1383-84 (Pa.
1989) (holding that an agent and a principal are not joint tortfeasors under the
Pennsylvania Uniform Contribution Among Tortfeasors Act).

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{11} 	Relying on Juarez v. Nelson, 2003-NMCA-011, 133 N.M. 168, 61 P.3d 877
(filed 2002), overruled on other grounds by Tomlinson v. George, 2005-NMSC-020,
138 N.M. 34, 116 P.3d 105, Plaintiff asserts that cases after the institution of the
Several Liability Act have not followed the Harrison and Kinetics holdings. 	In
Juarez, the district court dismissed the plaintiffs’ claims against a physician in a
medical malpractice action based on the physician’s statute of limitations defense
under NMSA 1978, Section 41-5-13 (1976) of the New Mexico Medical Malpractice
Act, NMSA 1978, §§ 41-5-1 to - 29 (1976, as amended through 2008) (the Act). See
Juarez, 2003-NMCA-011, ¶¶ 5, 26-29. The court also dismissed the plaintiffs’ claims
against the physician’s employer, Presbyterian Health Services (Presbyterian). 	Id.
¶¶ 26-27. The case did not involve a release and, indeed, this Court pointed out that
the effect of a release on the liability of an employer was not at issue in the case. Id.
¶ 28 n.5. In Juarez, we held that because Presbyterian was not a qualified health care
provider under the Act it could not, therefore, claim a benefit of any of its provisions,
including the statute of limitations in Section 41-5-13. 	Juarez, 2003-NMCA-011,
¶¶ 2, 27-29. That benefit, we stated, did not apply to non-health care providers. Id.
¶ 29. 	We held that the dismissal of the physician based on a statute of limitations
defense personal to the physician could not be asserted by Presbyterian as a defense
to a vicarious liability claim for the negligence of the physician. Id.

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{12} 	Plaintiff’s reliance on Juarez is misplaced. As indicated, in Juarez, the
plaintiffs’ action was instituted under a statute that contained its own statute of
limitations available only to qualified health care providers. 	The Act specifically
provided that “[a] health care provider not qualifying under [the Act] shall not have
the benefit of any of the provisions of the . . . Act in the event of a malpractice claim
against it.” 	Juarez, 2003-NMCA-011, ¶ 29 (first alteration in original) (internal
quotation marks and citation omitted); see also Roberts v. Sw. Cmty. Health Servs.,
114 N.M. 248, 254, 837 P.2d 442, 448 (1992) (holding that Section 41-5-13 was a
benefit of the Act and that it did not apply to non-qualified health care providers).
{13} 	Furthermore, in Juarez, this Court did not permit Presbyterian to “piggyback”
on a defense provided to the physician who was a qualified health care provider where
Presbyterian was not sharing the burdens imposed by the Act on qualified health care
providers. 2003-NMCA-011, ¶ 29. We noted, too, that Presbyterian had not provided
any authority to support its theory, which was one of “exoneration” of vicarious
liability involving a dismissal of an employee based on a statute of limitations. Id. ¶
28. Juarez is in no way analogous to the present case or in any way instructive on the
effect of the release in the present case on the liability of Defendant. As well, because
of the peculiar statutory requirements and the specific rationale underlying this
Court’s holding in Juarez, it appears to us that Juarez should be limited to its facts.

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We do not think that Juarez’s discussion of or reliance on authorities outside New
Mexico relating to the issue at hand, turns Juarez into controlling precedent outside
of its particular facts.
{14} 	The present case involves a release by which Plaintiff abandoned his claim, the
effect of which was the extinguishment of the cause of action against Ms. Salazar. See
Marder v. Lopez, 450 F.3d 445, 449 (9th Cir. 2006) (quoting California law defining
a release as “abandonment, relinquishment or giving up of a right or claim to the
person against whom it might have been demanded or enforced . . . and its effect is to
extinguish the cause of action” (omission in original) (internal quotation marks and
citation omitted)); Holve v. Draper, 505 P.2d 1265, 1268 (Idaho 1973) (defining a
release as “‘a surrender of the cause of action, which may be gratuitous, or given for
inadequate consideration’” and stating that “[a] release is a complete abandonment of
the cause of action” (quoting Prosser, Handbook of the Law of Torts 271 (3d ed.
1964))). The cause of action against Ms. Salazar being abandoned by Plaintiff, the
base upon which vicarious liability was imputed to Defendant, was extinguished. See
Mamalis, 560 A.2d at 1381, 1383-84 (holding that, in the absence of a showing of an
affirmative act or failure to act when required to do so by a principal, a release of the
agent “extinguishes the derivative claim against the principal” since an agent and a
principal are not joint tortfeasors under the Pennsylvania Uniform Contribution

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Among Tortfeasors Act).
{15} 	Plaintiff also cites several out-of-state cases to support his argument that the
Uniform Contribution Act allows settlement with Ms. Salazar without destroying
claims against Defendant. We note that some of these cases involved a covenant not
to sue instead of a release. See, e.g., Yates v. New South Pizza, Ltd., 412 S.E.2d 666,
670 (N.C. 1992) (holding that Section 1B-4 of North Carolina’s Uniform Contribution
Among Tortfeasors Act applied to master-servant vicarious liability and that a
covenant not to sue the employee did not release the employer). A covenant not to sue
“is not a present abandonment or relinquishment of a right or claim.” 66 Am. Jur. 2d
Release § 4 (2010). 	At common law, a covenant not to sue was used to avoid the
harsh effects of the rule that the release of one tortfeasor automatically released all
other tortfeasors. 	See Holve, 505 P.2d at 1267-68. 	“[A] covenant not to sue is an
agreement whereby an injured party promises not to assert his claim against one
tortfeasor in exchange for some consideration. Unless the consideration given fully
satisfied the injured parties’ claim, the covenant not to sue did not release other
tortfeasors from liability.” Id. at 1268. Plaintiff does not argue that we should treat
the release of Ms. Salazar as a covenant not to sue. 	The foregoing cases do not
support Plaintiff’s theory of vicarious liability.
{16} 	In reference to other out-of-state cases that Plaintiff cites in support of his

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position, we note that courts are divided as to the effect that a release of a negligent
employee or agent has on the derivative, vicarious liability of an employer or principal
when a plaintiff reserves a claim against the employer or principal. See 24 A.L.R. 4th
547 § 2[a] (1983). 	Because under New Mexico jurisprudence our Uniform
Contribution Act has not been applied to vicarious liability situations, and because we
conclude that the Several Liability Act did not change our common law regarding
vicarious liability, we do not follow decisions from other jurisdictions concluding the
opposite. See Kinetics, 99 N.M. at 27, 653 P.2d at 527 (concluding that the release of
the employee destroyed the means by which liability was being imputed on the
employer 	because 	they 	are 	not 	joint 	tortfeasors 	as 	defined 	by 	the 	Uniform
Contribution Act since, in vicarious liability situations, liability is imposed on the
employer through a legal fiction); Harrison, 86 N.M. at 584, 525 P.2d at 944
(concluding that where the employer is sued under a vicarious liability theory, release
of the employee removed the foundation upon which the negligence of the employee
was imputed upon the employer).
CONCLUSION
{17} 	We affirm the district court’s grant of Defendant’s motion to dismiss and the
court’s denial of Plaintiff’s motion for reconsideration.
{18} 	IT IS SO ORDERED.

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__________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
____________________________
CELIA FOY CASTILLO, Judge
____________________________
ROBERT E. ROBLES, Judge