Richey v. Hammond Conservancy Dist.

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: 3 Filing Date: JANUARY 28, 2015 4 NO. 32,847 5 MARSHALL RICHEY, 6 Plaintiff-Appellant, 7 v. 8 HAMMOND CONSERVANCY DISTRICT, 9 Defendant-Appellee. 10 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 11 William C. Birdsall, District Judge 12 Alexander A. Wold, P.C. 13 Alexander A. Wold, Jr. 14 Albuquerque, NM 15 for Appellant 16 17 18 19 Miller Stratvert, P.A. Timothy R. Briggs Luke A. Salganek Albuquerque, NM 20 for Appellee 1 OPINION 2 ZAMORA, Judge. 3 {1} The Opinion filed on October 15, 2014 is withdrawn, and the following 4 Opinion is substituted in its place. 5 {2} Plaintiff, Marshall Richey, appeals from the district court’s grant of 6 Defendant’s motion to dismiss for failure to state a claim upon which relief can be 7 granted pursuant to Rule 1-012(B)(6) NMRA. Plaintiff contends that the district 8 court erred in concluding that the facts alleged in his amended complaint failed to 9 state a claim within the exclusivity exception to the New Mexico Workers’ 10 Compensation Act (the Act), as recognized in Delgado v. Phelps Dodge Chino, Inc., 11 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148. We hold that the allegations in the 12 amended complaint are sufficient to satisfy Rule 1-012(B)(6). We therefore reverse 13 and remand for further proceedings. 14 BACKGROUND 15 {3} Plaintiff was injured while working for Hammond Conservancy District 16 (Defendant), and filed a personal injury claim pursuant to Delgado. Plaintiff pleaded 17 the following facts in his amended complaint. In 2010, Plaintiff worked for 18 Employee Connections, Inc., as a temporary worker. On October 18, 2010, Employee 19 Connections “loaned” Plaintiff to Hammond Conservancy District (Defendant) as a 1 temporary worker. At Defendant’s direction, Plaintiff used a small-diameter, short2 nozzle, high-pressure water hose to clean culverts used for flood control. Prior to that 3 date, several workers, including Plaintiff, had advised Defendant that the hose was 4 very difficult to control and had reported “near misses of serious injury and death.” 5 The workers, including Plaintiff, warned Defendant that injury from using the hose 6 to clean out culverts was “certain to result.” In spite of the workers’ protests and over 7 Plaintiff’s objections, Defendant directed Plaintiff to use the hose to clean the culvert. 8 The hose “failed to prevent the loss of control” and, as a result, water from the high9 pressure hose was “injected directly into . . . Plaintiff,” causing severe injuries. 10 {4} Plaintiff alleged that Defendant knew the assigned task was virtually certain 11 to cause injury or death and that compelling him to perform the task in spite of the 12 numerous employee complaints and objections was egregious. Plaintiff also alleged 13 that Defendant’s egregious conduct was the direct, natural, and proximate cause of 14 his injuries. 15 {5} Defendant moved to dismiss pursuant to Rule 1-012(B)(6), arguing that 16 Plaintiff’s claims were barred by the exclusivity provisions of the Act and claiming 17 governmental immunity under the Tort Claims Act, NMSA 1978, §§ 41-1-1 to -30 18 (1976, as amended through 2013). Plaintiff moved to stay Defendant’s Rule 119 012(B)(6) motion pending discovery. The district court held a hearing on Plaintiff’s 2 1 motion to stay, and Plaintiff was permitted to amend his complaint. The parties 2 completed briefing on Defendant’s motion to dismiss. After conducting a hearing on 3 the motion, the district court dismissed Plaintiff’s claims with prejudice pursuant to 4 Rule 1-012(B)(6). This appeal followed. 5 DISCUSSION 6 {6} The fundamental question presented in this appeal is whether Plaintiff’s 7 amended complaint included facts sufficient to state a claim under Delgado. To 8 resolve this question, it is necessary to first examine the evolution of New Mexico’s 9 intentional conduct exception to Worker’s Compensation exclusivity. 10 The Intentional Conduct Exception to Worker’s Compensation Exclusivity 11 {7} The purpose of the Act’s exclusivity provision is to achieve balance between 12 injured workers’ need for compensation and employers’ need to limit liability for 13 work-related injuries. Coates v. Wal-Mart Stores, Inc., 1999-NMSC-013, ¶ 24, 127 14 N.M. 47, 976 P.2d 999. However, the Act’s exclusivity does not preclude claims 15 against employers that intentionally inflict injury upon workers. Id. 16 {8} Prior to our Supreme Court’s decision in Delgado in 2001, worker injuries 17 were only compensable outside the Act if the injured worker could demonstrate the 18 employer’s actual intent to injure the worker. See Coleman v. Eddy Potash, Inc., 19 1995-NMSC-063, ¶ 26, 120 N.M. 645, 905 P.2d 185, overruled by Delgado, 2001- 3 1 NMSC-034, ¶ 23 n.3; see also Flores v. Danfelser, 1999-NMCA-091, ¶ 17, 127 N.M. 2 571, 985 P.2d 173, overruled by Delgado, 2001-NMSC-034, ¶ 23 n.3; Johnson 3 Controls World Servs., Inc. v. Barnes, 1993-NMCA-004, ¶ 12, 115 N.M. 116, 847 4 P.2d 761, overruled by Delgado, 2001-NMSC-034, ¶ 23 n.3; Maestas v. El Paso 5 Natural Gas Co., 1990-NMCA-092, ¶ 9, 110 N.M. 609, 798 P.2d 210, overruled by 6 Delgado, 2001-NMSC-034, ¶ 23 n.3; Gallegos v. Chastain, 1981-NMCA-014, ¶ 5, 7 95 N.M. 551, 624 P.2d 60, overruled by Delgado, 2001-NMSC-034, ¶ 23 n.3; 8 Sanford v. Presto Mfg. Co., 1979-NMCA-059, ¶ 14, 92 N.M. 746, 594 P.2d 1202, 9 overruled by Delgado, 2001-NMSC-034, ¶ 23 n.3. Our courts adopted this actual 10 intent test from Professor Larson’s treatise, 6 Arthur Larson & Lex K. Larson, 11 Larson’s Workers’ Compensation Law § 103.03 (2000). Delgado, 2001-NMSC-034, 12 ¶ 16. 13 Delgado 14 {9} In 2001, our Supreme Court decided Delgado, which changed the law by 15 broadening the exclusivity exception. Padilla v. Wall Colmonoy Corp., 200616 NMCA-137, ¶ 9, 140 N.M. 630, 145 P.3d 110. In Delgado, the worker was ordered 17 by his supervisor to remove a fifteen-foot iron cauldron brimming over with molten 18 slag, without shutting down a furnace or otherwise correcting an especially dangerous 19 emergency “runaway” condition that caused additional slag to continue flowing. 4 1 2001-NMSC-034, ¶ 4. Although the worker protested the orders, and informed the 2 supervisor that he was not qualified or competent to perform the removal because he 3 had never operated a kress-haul (a special truck for removing the cauldron) alone 4 under such conditions, the supervisor insisted he proceed. Id. ¶ 5. The worker 5 “emerged from the smoke-filled tunnel, fully engulfed in flames,” suffering third6 degree burns over his entire body. Id. He later died of his injuries. Id. 7 {10} The Court examined the actual intent test, and rejected it as unbalanced in favor 8 of employers. See id. ¶ 23 (“Under the actual intent test, a single standard of 9 culpability, namely willfulness, will prevent a worker from benefitting from the Act 10 while preserving the corresponding benefits for the employer. This bias violates the 11 explicit mandate of Section 52-5-1, which demands the equal treatment of workers 12 and employers.”) In order to address the egregious conduct of the employer in that 13 case, and to restore balance and equality to the Act, the Supreme Court set forth a new 14 test for determining when conduct falls outside the scope of the Act: 15 16 17 18 19 20 21 [W]illfulness renders a worker’s injury non-accidental, and therefore outside the scope of the Act, when: (1) the worker or 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 worker or employer expects the intentional act or omission to result in the injury, or has utterly disregarded the consequences; and (3) the intentional act or omission proximately causes the injury. 22 Delgado, 2001-NMSC-034, ¶¶ 23, 24, 26. 5 1 {11} The first element of the Delgado test looks at “whether a reasonable person 2 would expect the injury suffered by the worker to flow from the intentional act or 3 omission.” Id. ¶ 27. The second element “requires an examination of the subjective 4 state of mind of the worker or employer.” Id. ¶ 28. This element is satisfied when 5 the worker or employer either failed to consider the consequences of the intentional 6 act or omission, or considered the consequences and expected the injury to occur. Id. 7 This element is not satisfied where “the worker or employer considered the 8 consequences and negligently failed to expect the worker’s injury to be among them.” 9 Id. Finally, the third element requires proximate cause. Id. ¶ 29. 10 Morales 11 {12} In Morales v. Reynolds, 2004-NMCA-098, 136 N.M. 280, 97 P.3d 612, this 12 Court consolidated and decided the first two cases involving Delgado claims reaching 13 us after the Delgado decision. Morales, 2004-NMCA-093, ¶¶ 1,10. The Morales 14 case was an appeal from a district court’s grant of summary judgment in favor of the 15 employer. Id. ¶ 3. The Fernandez case appealed a district court’s dismissal for 16 failure to state a claim. Id. ¶ 5. 17 {13} Our focus in Morales was on “the procedural and evidentiary requirements a 18 plaintiff must meet in order to overcome a motion to dismiss or for summary 19 judgment.” Dominguez v. Perovich Props., Inc., 2005-NMCA-050, ¶ 16, 137 N.M. 6 1 401, 111 P.3d 721. To determine whether the workers’ claims met the Delgado 2 requirements as a matter of law, we considered the type of employer conduct Delgado 3 sought to deter. Morales, 2004-NMCA-098, ¶ 10. 4 {14} Because the Delgado Court did not elaborate on the type of employer conduct 5 that would render a worker’s injury compensable under the new test, we looked to the 6 facts of that case for guidance. Morales, 2004-NMCA-098, ¶ 9. We determined that 7 the Delgado decision stemmed from “a combination of deadly conditions, profit8 motivated disregard for easily implemented safety measures, complete lack of worker 9 training or preparation, and outright denial of assistance to a worker in a terrifying 10 situation.” Morales, 2004-NMCA-098, ¶ 10. 11 {15} We concluded Delgado plaintiffs “must plead or present evidence that the 12 employer met each of the three Delgado elements through actions that exemplify a 13 comparable degree of egregiousness as the employer in Delgado in order to survive 14 a pre-trial dispositive motion.” Morales, 2004-NMCA-098, ¶ 14. We compared this 15 threshold determination of egregiousness to the requirement in intentional infliction 16 of emotional distress (IIED) cases, where “we require the court to determine as a 17 matter of law whether conduct reasonably may be regarded as so extreme and 18 outrageous that it will permit recovery[.]” Id. ¶ 15 (internal quotation marks and 19 citation omitted). 7 1 {16} The purpose for a threshold determination of egregiousness in Delgado cases 2 was to “preserve the bargain of the Act in a meaningful way.” Morales, 20043 NMCA-098, ¶ 16. Our concern was that “[e]xposing employers to the costs of 4 litigating a full trial on the merits of every case in which a worker alleges some wilful 5 conduct or claims that safety was ignored due to profit motive would deprive 6 employers of their benefit from the Act’s bargain.” Id. Even unsuccessful claims, we 7 reasoned, “would be a significant drain on an employer’s financial resources if all 8 questions of employer intent, no matter how slight, were sent to a jury.” Id. 9 {17} Holding that both the Morales and the Fernandez plaintiffs failed to satisfy the 10 threshold determination of egregious employer conduct, as well as the requirements 11 of Delgado, we affirmed the district courts’ decisions in both cases. Morales, 200412 NMCA-098, ¶ 1. 13 Salazar I and Salazar II 14 {18} In 2005, this Court addressed the question of whether the receipt of Worker’s 15 Compensation benefits precludes an injured worker from filing a Delgado claim. 16 Salazar v. Torres, 2005-NMCA-127, ¶ 1, 138 N.M. 510, 122 P.3d 1279 (Salazar I), 17 rev’d in part, 2007-NMSC-019, 141 N.M. 559, 158 P.3d 449 (Salazar II). In Salazar 18 I, the employer instructed the worker to start a truck by pouring gasoline into the 19 truck’s carburetor. 2005-NMCA-127, ¶ 2. While the worker was still pouring the 8 1 gasoline, the employer instructed the worker’s son to start the truck’s ignition. Id. 2 The engine ignited the gasoline and the worker was severely burned. Id. 3 {19} The worker received Worker’s Compensation benefits, and entered into a 4 settlement which included a lump-sum payment for permanent partial disability as 5 well as future medical benefits. Id. ¶¶ 3, 31 (Pickard, J., specially concurring in part 6 and dissenting in part). The worker subsequently filed a claim for damages, pursuant 7 to Delgado. Salazar I, 2005-NMCA-127, ¶ 3. The employer moved for summary 8 judgment and the worker responded. Id. Then, “for the first time in its reply to the 9 response, [the employer] contended that [the w]orker’s version of the facts, even if 10 true, would not rise to the level of egregiousness sufficient to support a Delgado 11 claim.” Salazar I, 2005-NMCA-127, ¶ 3. Summary judgment was granted without 12 an explanation of the district court’s reasoning. Id. 13 {20} A divided panel reversed the district court’s grant of summary judgment. Id. 14 ¶¶ 1, 30. The majority noted that in many cases, injured workers, faced with medical 15 bills and an inability to work, will not be “in a financial position to wait out a lengthy, 16 expensive and risky court proceeding to be compensated for the injury, due to the 17 problems of pressing medical bills, and often the inability to work.” Id. ¶ 11 (internal 18 quotation marks and citation omitted). As a result, the majority concluded that “to 19 consider the receipt of benefits a forfeiture of [a worker’s] right to pursue the 9 1 employer in the courts would not only be harsh and unjust, it would also frustrate the 2 laudable purposes of the Act.” Id. (alteration, internal quotation marks, and citation 3 omitted). 4 {21} Addressing the employer’s argument that the worker’s allegations, even if true, 5 would not satisfy the required elements of a Delgado claim, the majority held that: Worker’s complaint tracks the language of Delgado verbatim in so far as alleging the mental state on [the e]mployer’s part, and [the e]mployer never submitted an affidavit in contesting these allegations. Our law simply requires notice pleading, and without any motion for summary judgment supported by [the e]mployer’s own affidavit regarding willfulness, we hold that [the w]orker’s allegations tracking the language of Delgado were sufficient to withstand what was tantamount to a motion to dismiss for failure to state a claim. 6 7 8 9 10 11 12 13 14 Salazar I, 2005-NMCA-127, ¶ 27 (emphasis added) (citation omitted). 15 {22} A special concurrence and dissent took issue with the majority’s holdings 16 related to both the pleading standard and receipt of benefits for Delgado claims. 17 Salazar I, 2005-NMCA-127, ¶¶ 36, 37 (Pickard, J., specially concurring in part and 18 dissenting in part). As to the issue of benefits, the dissent expressed concern that by 19 allowing employees to sue in tort after accepting compensation, the majority was 20 disrupting the Act’s balance of interests. See id. ¶ 34 (Pickard, J., dissenting) (“[T]he 21 Act represents a bargain between employers and workers pursuant to which each 22 gives up rights and obligations in return for some other benefit. The Act balances a 23 worker’s need for expeditious payment of benefits and an employer’s need to limit 10 1 liability. In [the dissenting Judge’s] view, the majority tips this balance entirely to 2 the side of the worker[.]” (citation omitted)). 3 {23} The special concurrence advocated for a more stringent pleading standard in 4 cases involving Delgado claims, stating: 5 6 7 Our most recent cases of Dominguez and Morales have required a level of egregiousness of employer behavior comparable to that found in Delgado. 8 .... 9 10 11 12 13 14 So as not to require employers to litigate in circumstances where a worker cannot establish the requisite Delgado willfulness at the time of the filing of the complaint, I would adopt a pleading requirement in Delgado cases that requires workers to plead sufficient facts demonstrating that the standard is met or be subject to dismissal for failure to state a claim upon which relief can be granted. 15 Salazar I, 2005-NMCA-127, ¶ 38 (Pickard, J., specially concurring). 16 {24} Our Supreme Court granted certiorari to resolve the question of “whether and 17 when a worker can receive benefits under the Act without compromising a potential 18 intentional tort action under Delgado.” Salazar II, 2007-NMSC-019, ¶ 4. “Based on 19 the clear intent of the Act,” the Court held that when a worker suffers a work-related 20 injury, and “questions whether the injury was intentionally inflicted by the employer,” 21 the worker may collect benefits under the Act, “while pursuing an intentional tort 22 action under Delgado.” Salazar II, 2007-NMSC-019, ¶ 1. However, the Court also 23 concluded that when a worker enters into a final settlement of the claim in exchange 11 1 for a lump-sum payment of indemnity benefits, the worker is then precluded from 2 pursuing a Delgado claim. Salazar II, 2007-NMSC-019, ¶ 1. Because the worker in 3 that case had received a lump-sum payment, representing full settlement of his claim, 4 the Court reversed Salazar I. Salazar II, 2007-NMSC-019, ¶ 1. Notably, Salazar II 5 did not reverse the majority’s holding in Salazar I as to the pleading standard for 6 Delgado claims. Salazar II, 2007-NMSC-019, ¶¶ 4, 30. 7 The Present Case 8 Standard of Review 9 {25} We review motions to dismiss a complaint for failure to state a claim under 10 Rule 1-012(B)(6) de novo. Healthsource, Inc. v. X-Ray Assocs. of N.M., 200511 NMCA-097, ¶ 16, 138 N.M. 70, 116 P.3d 861. In considering a motion to dismiss, 12 we test “the legal sufficiency of the complaint, not the factual allegations of the 13 pleadings which, for purposes of ruling on the motion, the court must accept as true.” 14 Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 2, 134 N.M. 43, 73 P.3d 181 15 (internal quotation marks and citation omitted). Accepting all well-pleaded factual 16 allegations in the complaint as true, we “resolve all doubts in favor of sufficiency of 17 the complaint.” Delfino v. Griffo, 2011-NMSC-015, ¶ 9, 150 N.M. 97, 257 P.3d 917 18 (internal quotation marks and citation omitted). Dismissal under Rule 1-012(B)(6) 19 is appropriate only where the non-moving party is “not entitled to recover under any 12 1 theory of the facts alleged in their complaint.” Delfino, 2011-NMSC-015, ¶ 12 2 (internal quotation marks and citation omitted). 3 {26} Defendant argues that Plaintiff’s amended complaint is legally insufficient to 4 state a Delgado claim because Plaintiff failed to allege Defendant’s subjective intent, 5 and because Plaintiff’s allegations do not satisfy the threshold determination of 6 egregiousness required for Delgado claims. Defendant also argues that an employer’s 7 failure to take safety measures does not meet the Delgado standard. 8 {27} Defendant correctly states that the absence of safety measures generally will 9 not give rise to a Delgado claim. See May v. DCP Midstream, L.P., 2010-NMCA10 087, ¶ 13, 148 N.M. 595, 241 P.3d 193 (“The absence of safety measures by itself 11 demonstrates neither intent nor an inherent probability of injury, and we believe the 12 Supreme Court in Delgado intended more than the disregard of preventative safety 13 devices when contemplating an exception to the Workers’ Compensation Act.”); see 14 also Dominguez, 2005-NMCA-050, ¶ 22 (holding that an employer’s appalling 15 disregard for safety requirements designed to help prevent injury and death on the job 16 does not equate to an employer “specifically and wilfully caus[ing] the [worker] to 17 enter harm’s way, facing virtually certain serious injury or death, as contemplated 18 under Delgado”). However, we are not convinced that Plaintiff is alleging a general 19 failure by Defendant to provide safe equipment or take safety precautions. 13 1 {28} Plaintiff’s allegations are that Defendant was notified that the specific 2 equipment Plaintiff was required to use was dangerous and had nearly caused serious 3 injuries to several employees; that Defendant required Plaintiff to use the equipment 4 in spite of this knowledge and over his objections; and that as a result, Plaintiff was 5 severely injured using the equipment. Under Morales, the “critical measure” for 6 Delgado claims is “whether the employer has, in a specific dangerous circumstance, 7 required the [worker] to perform a task where the employer is or should clearly be 8 aware that there is a substantial likelihood the [worker] will suffer injury or death by 9 performing the task.” Dominguez, 2005-NMCA-050, ¶ 22; see May, 2010-NMCA10 087, ¶ 13. 11 {29} Taking the allegations in Plaintiff’s amended complaint as true, and construing 12 them in a light most favorable to the complaint’s sufficiency, we conclude that 13 Plaintiff’s allegations were sufficient to state a claim under Delgado. See Salazar I, 14 2005-NMCA-127, ¶ 27 (holding that “[the w]orker’s allegations tracking the 15 language of Delgado were sufficient to withstand what was tantamount to a motion 16 to dismiss for failure to state a claim”). 17 {30} To the extent that Defendant argues that under Morales the Rule 12(B)(6) 18 analysis for Delgado claims is different than the analysis typically applied to Rule 19 (12)(B)(6) motions, we are not persuaded. As Salazar I recognized, New Mexico is 14 1 a notice pleading state. Madrid v. Vill. of Chama, 2012-NMCA-071, ¶ 17, 283 P.3d 2 871. We do not require “[district] courts to consider the merits of a plaintiff’s 3 allegations when deciding a motion to dismiss[.]” Id. Rather, we require “only that 4 the plaintiff allege facts sufficient to put the defendant on notice of his claims.” Id.; 5 see Zamora v. St. Vincent Hosp., 2014-NMSC-035, ¶¶ 1, 10, 335 P.3d 243 6 (reaffirming “New Mexico’s longstanding commitment to the nontechnical fair notice 7 requirements”); see also Rule 1-008(A)(2) (stating that a claim for relief shall contain 8 “a short and plain statement of the claim showing that the pleader is entitled to 9 relief”). 10 {31} In Salazar I, 2005-NMCA-127, ¶ 27, we held that the notice pleading standard 11 is applicable in cases involving Delgado claims, and our holding as to that issue was 12 not reversed by Salazar II, 2007-NMSC-019, ¶ 4. We also note that the special 13 concurrence in Salazar I proposed adopting a heightened pleading standard for 14 Delgado claims, indicating that Morales had not already done so. Salazar I, 200515 NMCA-127, ¶ 38.1 Moreover, applying the notice pleading standard to Delgado 16 claims is consistent with the policy and philosophy of the Act as discussed in Salazar 17 II: 1 18 Judge Pickard authored Morales and also wrote the dissenting opinion in 19 Salazar I. 15 Delgado established a high threshold of culpability that should eliminate many claims before trial. In light of this high threshold, injured workers must be afforded a reasonable time to investigate, including pre-trial discovery, whether they have a sustainable Delgado claim. It may not be until the summary judgment stage, or even trial, that a worker has the answer. 1 2 3 4 5 6 7 Salazar II, 2007-NMSC-019, ¶ 14 (citations omitted). 8 {32} Salazar II also addressed the concern expressed in Salazar I’s dissent, that 9 employers may be required to litigate in circumstances where the requisite Delgado 10 willfulness is not established in the complaint: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 We acknowledge that under our holding here, employers who pay compensation benefits may, in some cases, also have to pay legal fees to defend an intentional tort action under Delgado. Even if the worker’s Delgado claim is ultimately dismissed, the employer will never recover the cost of those legal fees. However, the Act does not insulate employers from such contingencies. As noted above, the [L]egislature intended to protect employers from negligence actions for accidental injury, not actions for intentional tort. Accordingly, an employer is protected from having to defend negligence lawsuits, but not against the expense of lawsuits grounded in intentional or willful behavior. We observe that in some instances, perhaps most, prudent employers have the ability to anticipate and plan for the possibility of paying future attorney fees to defend against Delgado claims. [The w]orkers, on the other hand, can rarely plan for injuries inflicted by the willful misconduct of their employers. 26 Salazar II, 2007-NMSC-019, ¶ 22 (citation omitted). 27 Defendant’s Governmental Immunity Defense 28 {33} In its motion to dismiss, Defendant claims that because it is a statutorily created 29 conservancy district, it is an arm of the State and enjoys immunity under the Tort 16 1 Claims Act. Plaintiff argues that immunity was waived pursuant to NMSA 1978, 2 § 41-4-6 (2007). The district court found that Defendant’s Rule 1-012(B)(6) motion 3 to dismiss was well taken, and ordered that Plaintiff’s complaint be dismissed with 4 prejudice pursuant to Rule 1-012(B)(6). Because the district court did not reach the 5 issue of governmental immunity, we leave it for determination on remand. 6 CONCLUSION 7 {34} For the foregoing reasons, we reverse and remand for further proceedings. 8 {35} IT IS SO ORDERED. 9 10 _______________________________ M. MONICA ZAMORA, Judge 11 WE CONCUR: 12 ___________________________________ 13 MICHAEL D. BUSTAMANTE, Judge 14 ___________________________________ 15 RODERICK T. KENNEDY, Judge 17

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