Gutierrez v. City of Albuquerque , 121 N.M. 172 ( 1995 )

OPINION

PICKARD, Judge.

1. The City of Albuquerque challenges a decision of the workers’ compensation judge applying Montoya v. AKLAL Security, Inc., 114 N.M. 354, 838 P.2d 971 (1992), to this case although both the work-related accident and the settlement with the third-party tortfeasor occurred before Montoya was decided. The City also challenges the judge’s decision to apply Montoya in such a way that the City is not reimbursed for all compensation benefits it paid to the extent of the settlement with the third-party tortfeasor. As a preliminary matter, however, the City contends that the release Worker signed with the third-party tortfeasor extinguishes the City’s liability to Worker under general principles of the law governing construction of releases. We hold that the City did not properly preserve its issue concerning the release; that the judge misconstrued the holding of Montoya and that, properly construed, Montoya does not permit the equitable allocation of settlement proceeds under the facts of a case like this one; but that Montoya does operate retroactively to allow Worker to continue to recover compensation benefits notwithstanding her settlement of the third-party tort claim.

1. FACTS

2. Worker was a plumbing inspector for the City. On July 9,1987, while inspecting a residential construction site, Worker slipped and fell on two pieces of cardboard and injured her back. The cardboard was left on the site by Thermal Control, Inc., a job contractor. The City paid Worker substantial compensation and medical benefits.

3. Due to a dispute over the amount of compensation and other benefits due, on April 13, 1990, Worker filed a workers’ compensation claim against the City and soon thereafter a third-party negligence suit against Thermal. On January 10, 1992, Worker settled her claim against Thermal for $140,000 and executed a full release. The settlement may not have been disclosed to the City until shortly after the Montoya opinion was filed, in September 1992. The City then asserted a claim to full reimbursement for all compensation benefits paid Worker pursuant to NMSA 1978, Section 52-5-17 (Repl.Pamp.1991) (effective until Jan. 1, 1991). The City contended that Worker was no longer eligible for compensation benefits because she had elected her remedy by settling the lawsuit with Thermal. See Castro v. Bass, 74 N.M. 254, 259-60, 392 P.2d 668, 672-73 (1964) (holding that a resolution of third-party action constituted an election of remedies thereby freeing the employer from paying any further benefits under workers’ compensation). Worker claimed a right to continuing benefits because, by then, Castro had been overruled by Montoya.

4. Because Castro was still in effect when the accident and settlement occurred, the City moved for summary judgment against Worker’s claim for continuing benefits. The judge applied Montoya retroactively and denied the motion. The judge then heard evidence on the extent of Worker’s damages. As a foundation for calculating the amount of the City’s reimbursement, the judge determined that Worker had sustained $24,969.13 in medical expenses, $220,640 ($27,580 x 8 years) in total lost wages (only a portion paid by workers’ compensation), and $122,000 in pain and suffering (none paid by workers’ compensation), totalling $367,609.13 in actual tort damages. Because Worker had settled her third-party claim for only $140,000, the judge calculated that she had been compensated for only 38% of her total damages. Applying equitable principles, the judge limited the City’s reimbursement to that same percentage of its total pay-out. Accordingly, the judge awarded the City reimbursement of 38% of the amounts it had paid and would pay to Worker thereafter for compensation benefits.

II. DISCUSSION

A. Third-Party Release

5.The City initially argues that Worker’s claim for future compensation benefits is barred by the “Full Release” incorporated within the settlement agreement between Worker and Thermal. Worker responds that the City failed to preserve this issue for our review on appeal. We agree with Worker.

6. The issue of whether the release would bar Worker’s claim was not encompassed in any of the pretrial pleadings; nor was it encompassed in the issues to be decided as they were listed in the pretrial order. The City did not introduce specific evidence on this issue, apart from introducing the release as an exhibit at trial. In this connection, we note that the release was equally relevant to the City’s issue under Castro. When evidence is relevant to an issue within the pleadings, it will not be the basis for trial by consent for issues not raised. Schmitz v. Smentowski, 109 N.M. 386, 390, 785 P.2d 726, 730 (1990). The City did not argue this point at trial or invoke a ruling from the judge on this issue until it filed its requested findings of fact and conclusions of law. Because the issue of whether the release would bar relief against the City is one that raises factual issues concerning the intent of the parties, see generally Hansen v. Ford Motor Co., 120 N.M. 203, 900 P.2d 952 (1995), we believe that the City acted too late in first raising the issue after the trial was over and the evidence closed. See SCRA 1986, 12-216(A) (Cum.Supp.1995) (ruling must be fairly invoked); see also State v. Trujillo, 119 N.M. 772, 776, 895 P.2d 672, 676 (Ct.App.) (preservation requires that timely action be taken), cert. quashed 120 N.M. 394, 902 P.2d 76 (1995); Woolwine v. Furr’s, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct.App.1987) (“To preserve an issue for review on appeal, it must appear that appellant fairly invoked a ruling of the trial court on the same grounds argued in the appellate court.”); cf. Eldin v. Farmers Alliance Mut. Ins. Co., 119 N.M. 370, 376, 890 P.2d 823, 829 (Ct.App.1994) (to the extent a party may wish to rely on an applicable presumption, it should make such wish known in the trial court so party opposing the presumption may rebut it).

7. The City recognized its problems with the preservation of this issue during oral argument before this Court, and we hold that this issue has been foreclosed by lack of preservation.

B. Manner of Applying Montoya

8. Before determining whether to apply Montoya retroactively to this case, we must determine what Montoya means, which will necessarily determine whether the judge correctly applied the principles set forth in that case when he allocated the proceeds of the third-party settlement in an equitable fashion. The question raised is whether the pertinent statute contemplates an apportionment of the settlement proceeds between the City and Worker in circumstances when there is not enough to go around and in circumstances where there is no contention from either party that the settlement was an unfair or inequitable compromise of the third-party claim.

9. The facts of this case highlight the problem of when there is not enough to go around. Of $140,000 recovered in the tort settlement, Worker paid $47,530.70 for attorney fees and related costs. Worker owes another $15,221.78 for doctor’s bills not covered by workers’ compensation. From the balance (approximately $77,000), the City seeks reimbursement for all the benefits it has paid out as well as a credit for any benefits it may owe in the future. That reimbursement may well equal or exceed all that is left of the tort settlement. If so, Worker will retain nothing at all or a marginal sum at best.

10.The issue we confront is whether the statute or Montoya’s interpretation of it contemplates such a result. Since the rights and obligations of parties in workers’ compensation eases are entirely dependent on statutes in the first instance, we should look first to the applicable statute. See generally Pena v. Phelps Dodge Chino Mines, 119 N.M. 735, 738, 895 P.2d 257, 260 (Ct.App.1995). The applicable statute dealing with the subject of a worker’s rights when third-party tortfeasors are involved was enacted in 1929 and, with minor changes in wording and punctuation, has remained consistent since then. The 1929 Act read as follows:

The right of any workman, or, in the ease of his death, of those entitled to receive payment or damages for injuries occasioned to him by the negligence or wrong of any person other than the employer as herein defined shall not be affected by this act, but he or they, as the ease may be, shall not be allowed to receive payment or recover damages therefor and also claim compensation from such employer hereunder, and in such case the receipt of compensation from such employer hereunder shall operate as an assignment to the employer, his or its insurer, guarantor or surety, as the case may be, o[f] any cause of action, to the extent of the liability of such employer to such workman occasioned by such injury which the workman or his legal representative or others may have against any other party for such injuries or death.

1929 N.M. Laws, ch. 113, § 24 (in pertinent part). The 1987 Act, under which this case should be decided, reads as follows:

The right of any worker or employee or, in the case of his death, of those entitled to receive payment or damages for injuries or disablement occasioned to him by the negligence or wrong of any person other than the employer or any other employee of the employer, including a management or supervisory employee, shall not be affected by the Workers’ Compensation Act [Chapter 52, Article 1 NMSA 1978] or the New Mexico Occupational Disease Disablement Law, but the claimant shall not be allowed to receive payment or recover damages for those injuries or disablement and also claim compensation from the employer. In such case, the receipt of compensation from the employer shall operate as an assignment to the employer or his insurer, guarantor or surety of any cause of action, to the extent of payment by the employer to or on behalf of the worker or employee for compensation or any other benefits to which the worker or employee was entitled under the Workers’ Compensation Act or the New Mexico Occupational Disease Disablement Law and which were occasioned by the injury or disablement, which the worker or employee or his legal representative or others may have against any other party for the injury or disablement.

Section 52-5-17.

11. Although both provisions contain considerable repetition and legalese, if we eliminate the excess baggage from them, they do four things. First, they make it clear that the receipt of compensation does not preclude a suit against a person other than the employer, i.e., a third-party tortfeasor. Second, they make it clear that workers suing third-party tortfeasors may not have the double recovery of both the tort damages and the compensation benefits. Third, they explain how this prohibition on double recovery is accomplished — by assignment of the cause of action to the employer. Fourth, they limit the assignment; the assignment is limited under current law “to the extent of payment by the employer to ... the worker ... for compensation ... benefits.” We do not consider it significant that the method of assignment is not traditional assignment or even an assignment of the cause of action, as the statute states, but is rather a reimbursement or an assignment of the recovery. See Montoya, 114 N.M. at 355-56, 838 P.2d at 972-73 (despite assignment language, statute contemplates reimbursement), 114 N.M. at 357, 838 P.2d at 974 (“by virtue of such assignment the employer is reimbursed”).

12. Notwithstanding the plain language of the statute prohibiting a double recovery and establishing as the method of prohibition an assignment of the tort recovery to the employer to the extent the employer paid compensation, the Supreme Court in Castro, 74 N.M. at 254, 392 P.2d at 668, ruled that the statute embodied an election of remedies so that workers who filed tort actions forfeited their entitlement to compensation benefits. In reviewing the continuing vitality of the Castro rule, the Court in Montoya began with the plain language of the statute and noted that it contained no election language. 114 N.M. at 357, 838 P.2d at 973. It next noted the prohibition against double recovery and explained that the broad objective of the statute was achieved by language stating that payment of compensation benefits would operate as an assignment of the cause of action “pro tanto for the payments made” of such benefits. Id. Black’s Law Dictionary defines “pro tanto” as “[f]or so much,” “for as much as may be,” or “as far as it goes.” Black’s Law Dictionary 1222 (6th ed. 1990). In other words, pro tanto means “to the extent of’ in the statutory language.

13. Montoya involved a person who was seriously injured in a work accident and who settled with the third party for a mere $7500. Montoya, 114 N.M. at 354-55, 838 P.2d at 971-72. The issue was whether this settlement operated as an election of remedies so that the worker would forfeit substantial compensation benefits. Once the Supreme Court decided that there was nothing in the language of the statute that should operate as an election and, importantly, that the reimbursement aspect of the statute would alleviate the danger of double recovery, the overruling of Castro followed naturally, and the Court said as much. 114 N.M. at 357, 838 P.2d at 974.

14. We recognize that the Montoya opinion contains language about “equitable distribution of loss” and “equitable allocation of responsibility.” 114 N.M. at 357, 838 P.2d at 974. We believe that this language, rather than requiring or even allowing an allocation of the settlement proceeds in accordance with a judge’s sense of equity, merely reflects the inherent equity in allowing workers to recover from the third parties responsible for their injuries. Larson states the general rule as follows:

When compensable injury is the result of a third person’s tortious conduct, all statutes preserve a right of action against the tortfeasor, since the compensation system was not designed to extend immunity to strangers. To avoid a double recovery by the employee, all but three statutes provide varying systems with the general effect of reimbursing the employer for his compensation outlay and giving the em-. ployee the excess of the damage recovery over the amount of compensation.

2A Arthur Larson, The Law of Workmen’s Compensation § 71.00, at 14-1 (1993) (emphasis added). (At the time of writing, the other three states had no reimbursement statute at all. Larson, supra, § 71.30, at 14-80.) Further:

The obvious disposition of the matter is to give the employer so much of the negligence recovery as is necessary to reimburse him for his compensation outlay, and to give the employee the excess. This is fair to everyone concerned: the employer, who, in a fault sense, is neutral, comes out even; the third person pays exactly the damages he would normally pay, which is correct, since to reduce his burden because of the relation between the employer and the employee would be a windfall to him which he has done nothing to deserve; and the employee gets a fuller reimbursement for actual damages sustained than is possible under the compensation system alone.

Larson, supra, § 71.20, at 14-5 to 14-13 (footnotes omitted). It was this principle that we believe the Supreme Court was trying to capture with its language about equity in Montoya.

15. It is a familiar principle of statutory construction that a court cannot change statutory language or construe a statute to mean something other than what it says. See, e.g., Garcia v. Schneider, Inc., 105 N.M. 234, 236, 731 P.2d 377, 379 (Ct.App.1986). This is sometimes known as the “plain meaning” rule, and it has been recently contrasted with the “rejection-of-literal-language” approach. State ex rel. Helman v. Gallegos, 117 N.M. 346, 347-48, 871 P.2d 1352, 1353-54 (1994). However, as Helman makes clear, the rejeetion-of-literal-language approach is to be used only when the plain meaning of the statute does not appear to express the legislative intent. Id. at 353-54, 871 P.2d at 1359-60.

16. We find nothing in a literal reading of the statute that would be contrary to the legislative intent to permit third-party tort actions while prohibiting double recovery. Indeed, reading the statute to mean what it literally says is consistent with workers’ compensation acts throughout the country, as noted by Larson. Larson, supra, §§ 71.00, 71.30.

17. Nor are we persuaded by the use of the word “subrogation” in the title of the statutory section. We recognize that we relied on the use of the word “subrogation” in another case raising the issue of reimbursement, but arising out of different statutes. See White v. Sutherland, 92 N.M. 187, 585 P.2d 331 (Ct.App.), cert. denied, 92 N.M. 79, 582 P.2d 1292 (1978). However, we do not believe that the rationale of White affords Worker any relief here. First, to the extent that White appears superficially similar, we point out that the White case was dealing with a federal reimbursement statute, and the opinion expressly held that “As to the amount of reimbursement, this statute says nothing.” 92 N.M. at 190, 585 P.2d at 334. Moreover, the White case was dealing with a state statute providing, in the body of the statute, for subrogation “to the extent ... [of] payment.” Id. This Court held that the equitable nature of the remedy of subrogation had to be read together with the words “extent of payment” and that such equitable nature modified those words so that “extent of’ did not mean 100%. Id. Importantly, however, in White, subrogation was part of the actual wording of the statute. In this case, in contrast, the word “subrogation” appears only in the title. The title of a statute, cannot be used to interpret a statute that is otherwise clear in language in the body of the statute. State v. Ellenberger, 96 N.M. 287, 288, 629 P.2d 1216, 1217 (1981). As we have said, although the statute here at issue contains a fair amount of excess verbiage, a careful reading shows clarity of both purpose and method.

18. In addition, when the legislature wishes to provide less than a pro tanto reimbursement, it certainly knows how to do so. Taylor v. Delgarno Transportation, Inc., 100 N.M. 138, 667 P.2d 445 (1983) involved the situation where the employer sought reimbursement from a tort recovery, even for the portion for which employer was at fault. The Taylor court held that the statute at issue in this case provided for reimbursement for all compensation paid by the employer. 100 N.M. at 141, 667 P.2d at 448. The legislature responded with NMSA 1978, Section 52-1-10.1 (Repl.Pamp.1991), providing one instance in which the employer would not be entitled to pro tanto reimbursement — the instance in which the employer was at fault for the injury. The legislature having spoken to the situation in which the employer is at fault, we should not extend nonreimbursement to other situations in which the legislature has not spoken. See State v. Lucero, 114 N.M. 460, 462, 840 P.2d 607, 609 (Ct.App.1992).

19. We have often said, particularly in the workers’ compensation context, that certain situations call for legislative therapy, not judicial surgery. E.g., Johnson Controls World Servs., Inc. v. Barnes, 115 N.M. 116, 122, 847 P.2d 761, 767 (Ct.App.), cert. denied, 115 N.M. 79, 847 P.2d 313 (1993); Moreno v. Las Cruces Glass & Mirror Co., 112 N.M. 693, 696, 818 P.2d 1217, 1220 (Ct.App.1991). The statute that we interpret here calls for reimbursement to the extent of payment of benefits. This statute is consistent with statutes in most other states that have such statutes. See Larson, supra, § 71.00 (quoted above and describing the statutes); § 71.30 (pointing out that three states had no reimbursement statutes at all at the time-of writing). If the extent of reimbursement is to be based on some equitable formula, we believe it would be appropriate for the legislature to set forth the formula, as it has done in so many other portions of the Workers’ Compensation Act. See, e.g., NMSA 1978, § 52-1-20 (Repl.Pamp.1991) (average weekly wage); § 52-1-26.1 to -26.4 (formula for adding factors to impairment rating); §§ 52-1-41 to -43 (number of weeks of benefits and scheduled injuries). The workers’ compensation judge here picked one formula; Judge Bosson’s dissent suggests that another formula might equally be used. This appears to be a classic example of a matter calling for legislative action.

20.Finally, we do not believe that there is anything in the dispositive sentences of Montoya that would allow an equitable allocation of the settlement in this ease. Montoya states, “If fairness of the amount is contested, the workers’ compensation judge must hold a hearing to determine whether the amount paid to satisfy the third-party claim comports with the proportionate fault of the third party and with a reasonable compromise of the liability of that party.” 114 N.M. at 358, 838 P.2d at 975. Although Worker’s tort recovery did not fully compensate her for all of her damages, the fairness of the amount of settlement was not contested in this case. In fact, during oral argument, Worker’s counsel appeared to be of the opinion that the settlement was pretty good or pretty fair to Worker, and the judge below expressly found that the settlement was a reasonable compromise. Worker got 38% of what she estimated her damages to be in a case in which she was the one who slipped on debris that likely was in plain view at a construction site; one of Worker’s previous attorneys estimated her percentage of fault for purposes of settlement to be in the 20-30% range; and there was an admitted problem in the proof of the severity of Worker’s injuries in that she had seen 22 or 23 doctors. Thus, Montoya would not call for a hearing in this case and, even if it did, there would be no basis on which to hold the settlement not proportionate to the fault of the third party or not a reasonable compromise of the claim.

21.For all the foregoing reasons, Montoya should be read to mean what the statute says — employers are to get a pro tanto reimbursement from a worker’s tort recovery to the extent that the employer has paid compensation benefits.

C. Retroactive Application of Montoya

22. The Supreme Court in Beavers v. Johnson Controls World Servs., Inc., 118 N.M. 391, 881 P.2d 1376 (1994), set forth the standard for determining whether a new court decision should be applied retroactively to all pending civil cases or only to cases filed thereafter. First, the court must determine whether “a new rule [has been] adopted by a judicial decision in a civil case.” Id. at 398, 881 P.2d at 1383. We can agree that Montoya is a new rule because it changed the effect of a tort settlement on continuing workers’ compensation obligations. With a new rule, Beavers recognizes a presumption that the rule will apply retroactively to all pending cases. To overcome this presumption, a party must show a sufficiently weighty combination of what the Court called the Chevron Oil factors. Id. (citing Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971)). Those are: (1) the clear and unforeseen break that the new rule makes; (2) the history of the rule and whether retrospective operation would further its operation; and (3) factors of equity. Id.

23. The City relies primarily on the third element and argues that it relied on the old rule from Castro. Before addressing the third of the Chevron Oil factors, we briefly discuss the first two. While the overruling of Castro was a clear break from prior law, in light of the lack of statutory support for the Castro holding, it was perhaps inevitable and foreseeable that our Supreme Court would overrule it. As the Montoya court indicated, the Castro rule was based on a fiction with little statutory support. The unfairness of the Castro rule was patent. The essential fairness of the Montoya rule, as that fairness is described in the passages from Larson quoted above, would therefore be furthered by retrospective operation.

24.As to equity or hardship, the City makes a generalized argument of prejudice: It claims it expected relief from all future obligations once the Thermal action settled. Therefore, the City alleges it elected not to invest much time and effort in investigating Worker’s case and in preparing a defense. It alleges that evidence was lost because of this. Moreover, it alleges that it did not monitor the settlement of the Thermal litigation. However, there is no contention of how the outcome of the Thermal litigation would have been different had the City monitored it.

25. All of the City’s allegations of prejudice relate to its contention, made below, that Worker should be estopped from collecting any more compensation from the City and should be estopped from reimbursing the City for anything less than the full compensation paid to the extent of the settlement. In the only finding related to the City’s estoppel argument, the judge expressly found that the “predicates for application of equitable estoppel do not exist in this case.” The judge having expressly made a finding that the facts did not exist to support the City’s theories of prejudice on which the City bore the burden, the question on appeal is whether it was rational for the judge to have so found. See Gomez v. Bernalillo County Clerk’s Office, 118 N.M. 449, 452, 882 P.2d 40, 43 (Ct.App.1994).

26. The City’s generalized allegations, without specific references to the record showing where it proved its allegations of prejudice, do not compel a reversal of this issue on appeal. See Paiz v. State Farm Fire & Cas. Co., 118 N.M. 203, 209, 880 P.2d 300, 306 (1994) (argument must contain citations to appropriate portions of the record that clearly show how the trial court erred); State v. Hoxsie, 101 N.M. 7, 10, 677 P.2d 620, 623 (1984) (assertion of prejudice is not showing of prejudice), overruled on other grounds by Gallegos v. Citizens Ins. Agency, 108 N.M. 722, 731, 779 P.2d 99, 108 (1989); Blacker v. U-Haul Co., 113 N.M. 542, 545, 828 P.2d 975, 978 (Ct.App.) (generalized allegations of prejudice are insufficient), cert. denied, 113 N.M. 352, 826 P.2d 573 (1992).

27. Nor does Judge Black’s reliance on the legitimacy of the City’s legal defense of election of remedies establish prejudice. Had Worker’s counsel promptly notified the City of the settlement, this case in all likelihood would simply have followed the procedure of Montoya. That is: the City would have moved to dismiss; the judge would have granted the motion; Worker (her attorney knowing of the existence and procedural posture of Montoya) would have appealed to this Court; we would have followed Castro and affirmed, as we did in Montoya; and Worker would have petitioned for certiorari. There is no reason to suppose that the Supreme Court would not have taken this case and would not have decided it in the same fashion as Montoya. Thus, this aspect of the case does not justify an absence of retroactivity.

28. On balance, therefore, the judge correctly applied the presumption of retroactivity in deciding that Montoya should govern this claim. His decision on this issue is affirmed.

III. CONCLUSION

29. We affirm the retroactive application of Montoya to this case. We affirm the disposition regarding the release. We remand, however, for further proceedings. The judge is instructed to award the City a pro tanto reimbursement for sums it expended on benefits paid to Worker in the past and to credit the City for any future benefits to be paid to the extent that there are funds available from the third-party tort settlement.

30. IT IS SO ORDERED.

BLACK, J., concurs in parts I and II A & B and dissents in part. BOSSON, J., concurs in parts I and IIA & C and dissents in part.