Cordova v. Peavey Company , 111 F. App'x 992 ( 2004 )


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  •                                                                            F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    OCT 14 2004
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    MANUEL CORDOVA,
    Plaintiff-Appellant,
    v.                                                     No. 03-2295
    (D.C. No. CIV-01-1026 WJ/KBM)
    PEAVEY COMPANY, a wholly                                (D. N.M.)
    owned subsidiary of Conagra, Inc.,                (
    273 F. Supp. 2d 1213
    )
    Defendant-Appellee,
    and
    POARCH BROTHERS, INC.,
    Defendant.
    ORDER AND JUDGMENT           *
    Before McCONNELL , HOLLOWAY , and PORFILIO , Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument.
    Manuel Cordova (Cordova) appeals the district court’s grant of summary
    judgment against him and in favor of Peavey Company (Peavey) on Cordova’s
    claims of personal injury in the course of his employment. We affirm.
    I.
    Background
    Cordova was employed by SOS Staffing Services, Inc. (SOS). In spring
    2000, pursuant to a contract between SOS and Peavey, Cordova began work as a
    temporary employee for Peavey. Under the terms of the contract between SOS
    and Peavey, temporary employees were supposed to perform jobs requiring simple
    manual labor, and they were not supposed to operate machinery or vehicles.
    Nevertheless, on Monday, April 3, 2000, Cordova was instructed to service
    a certain truck and then move it to be loaded with grain. He was told that he
    would be assisting with the loading process, but was not given specific
    instructions as to what part of the process he would handle. On his previous day
    of work (Saturday, April 1), among other tasks, Cordova had watched the loading
    to be sure the truck was being loaded evenly, occasionally had turned power on or
    off to a certain portable grain auger as directed by another worker, Juan Vasquez,
    and had lubricated the running grain auger as directed by a third worker.
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    That Monday, Cordova checked the truck, then moved it to the barn
    containing the grain. He got out of the truck and went to stand next to Vasquez,
    who was lubricating the grain auger’s chain drive. Cordova saw Vasquez take a
    grease gun between the grain auger and the tractor. Cordova assumed that
    Vasquez was between the grain auger and the back of the tractor lubricating
    certain parts that frequently needed attention. Cordova walked around the front
    of the grain auger. He noticed there was some grain and a piece of twine inside
    the chute and reached into the grain auger to remove them. Unaware that
    Cordova was reaching into the grain auger, Vasquez activated the machine.
    Cordova was severely injured as his arm was crushed by the grain auger.
    Ultimately Cordova’s left arm was amputated just below the shoulder.
    Cordova brought suit against Peavey and the manufacturer of the grain
    auger, Poarch Brothers, Inc. SOS intervened in the action as a party-plaintiff.
    The district court ultimately granted judgment in favor of Peavey and against
    Cordova and SOS based on the exclusivity provisions of the New Mexico
    Workman’s Compensation Act, 
    N.M. Stat. Ann. §§ 52-1-6
    (D) and (E), 52-1-8,
    and 52-1-9. Cordova v. Peavey Co. , 
    273 F. Supp. 2d 1213
    , 1216, 1220 (D.N.M.
    2003). The district court subsequently granted a default judgment against Poarch
    Brothers and in favor of Cordova in the amount of $3,803,593.44.
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    II.
    Discussion
    We recently reiterated our standard of review in a diversity case involving a
    grant of summary judgment:
    We review the district court’s grant of summary judgment de novo,
    applying the same legal standards used by that court. Summary
    judgment should not be granted unless the evidence, viewed in the
    light most favorable to the party opposing the motion, shows there
    are no genuine issues of material fact and the moving party is due
    judgment as a matter of law. When, as here, a federal court is
    exercising diversity jurisdiction, it must apply the substantive law of
    the forum state, here, New Mexico. We review the district court’s
    determination of New Mexico law de novo.
    Kysar v. Amoco Prod. Co., 
    379 F.3d 1150
    , 1155 (10th Cir. 2004) (quotations and
    citations omitted).
    The only issue properly on appeal is whether the district court erred in not
    applying certain exceptions to the exclusivity rule that were established by the
    Supreme Court of New Mexico in     Delgado v. Phelps Dodge Chino, Inc.   , 
    34 P.3d 1148
     (N.M. 2001). Although Cordova has also briefed the issue of whether
    Peavey may claim the benefit of the worker’s compensation exclusivity provisions
    as either a special or general employer, Cordova’s notice of appeal states that he
    appeals from the district court’s order of July 16, 2003. That order addressed
    only the Delgado issue and, consequently, we do not have jurisdiction to review
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    any issues other than the   Delgado issue. 1 See Averitt v. Southland Motor Inn of
    Okla. , 
    720 F.2d 1178
    , 1180-81 (10th Cir. 1983) (“[A]n appellate court has
    jurisdiction to review only the judgment or part of the judgment designated in the
    notice of appeal. Although we construe notices of appeal liberally in order to
    avoid denying review of issues that the parties clearly intended to appeal, we may
    not disregard the plain requirements of the rule and read into the notice something
    that is not there.”) (quotations and citations omitted);   Foote v. Spiegel , 
    118 F.3d 1416
    , 1422 (10th Cir. 1997) (same). Thus, we turn our attention to       Delgado .
    In Delgado , a supervisor ordered Delgado to remove a fifteen-foot iron
    cauldron brimming over with molten slag, without shutting down a furnace or
    otherwise correcting an especially dangerous emergency condition that caused
    additional slag to continue flowing. 34 P.3d at 1151. Although Delgado
    protested the orders, and informed the supervisor that he was not qualified or
    competent to perform the removal        because he had never operated a kress-haul (a
    special truck for removing the cauldron) alone under runaway conditions, the
    supervisor insisted he proceed.      Id. Delgado “emerged from the smoke-filled
    tunnel, fully engulfed in flames,” suffering third-degree burns over his entire
    1
    Even if we had jurisdiction to review Cordova’s arguments regarding
    Peavey’s status, we note that Vigil v. Digital Equipment Corp. , 
    925 P.2d 883
    ,
    886-87 (N.M. Ct. App. 1996), and    Rivera v. Sagebrush Sales, Inc. , 
    884 P.2d 832
    ,
    834-36 (N.M. Ct. App. 1994), would appear to require an affirmance of the
    district court’s decision.
    -5-
    body. 
    Id.
     He later died of his injuries.   
    Id.
     To address the egregious
    circumstances of this incident, and to bring parity to the New Mexico Worker’s
    Compensation Act, the Delgado court held that the exclusivity provision cannot
    bar a worker’s tort claims against an employer where: (1) the employer “engages
    in an intentional act or omission, without just cause or excuse, that is reasonably
    expected to result in the injury suffered by the worker”; (2) the employer “expects
    the intentional act or omission to result in the injury, or has utterly disregarded
    the consequences”; and (3) the employer’s intentional act or omission is the
    proximate cause of the employee’s injury. 34 P.3d at 1155-56.
    The Court of Appeals of New Mexico recently interpreted       Delgado in
    Morales v. Reynolds , 
    97 P.3d 612
    , (N.M. Ct. App.),     cert. denied , No. 28,785
    (N.M. 2004). Relying in part on the district court’s opinion in the present case,
    Cordova , 
    273 F. Supp. 2d 1213
    , the    Morales court held:
    [T]he mere assertion that the employer did or did not do something
    that somehow led to the injurious event is not adequate to meet the
    requirements of Delgado . . . . Negligence on the part of the
    employer does not expose the employer to tort liability, just as
    negligence on the part of the worker does not preclude relief under
    the Act.
    
    97 P.3d at 616
    . The court determined that, to establish a    Delgado claim, a
    plaintiff must: (1) “plead and show that ‘a reasonable person would expect the
    injury suffered by the worker to flow from the intentional act or omission’”; and
    (2) in the context of summary judgment, provide evidence of the employer’s
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    subjective state of mind, which may be done “by showing that the employer never
    considered the consequences of its actions or that the employer considered the
    consequences and expected the injury to occur.”      
    Id. at 616-17
     (quoting Delgado ,
    34 P.3d at 1156) . In addition, to survive a pre-trial dispositive motion, a plaintiff
    must show that “the employer met each of the three      Delgado elements through
    actions that exemplify a comparable degree of egregiousness as the employer in
    Delgado .” Id. at 617. The court then considered the cases of a plaintiff who was
    injured when his protective gear malfunctioned and a plaintiff who was injured
    while working without safety equipment and determined that neither of them rose
    to the level of Delgado . Id. at 617-19.
    Cordova’s case is much more similar to the situations discussed in       Morales
    than it is to Delgado . The acts and omissions of which Cordova complains
    (including failure to install safety devices, failure to insist on certain safety
    practices, failure to train, and failure to supervise) do not rise to the level of the
    employer’s actions in Delgado . At most, such actions were negligent.       See id. at
    618 (“There is no indication that [defendants] knew or should have known that
    their actions were the equivalent of sending Morales into certain severe injury or
    death.”), 619 (“[T]here is no indication that the failure to provide safety devices
    was anything but negligent in this case.”). In addition, as Cordova admits, no one
    directed him to service or operate the grain auger on the day he was injured (Aplt.
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    App. at 232, 236), and no one required or directed him to remove the twine or
    grain from the grain auger (Aplt. App. at 244-45, 246)      . Consequently, there is no
    proximate cause between any intentional conduct by Peavey and Cordova’s injury.
    See Morales , 
    97 P.3d at 618
     (“The acts or omissions that Morales argues did not
    cause the injurious event in the way that the acts of the employer in    Delgado
    caused Delgado to be set on fire.”).
    For these reasons, the judgment of the district court is AFFIRMED.
    Entered for the Court
    William J. Holloway, Jr.
    Circuit Judge
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