Victory for thief was pivotal in NM Court of Appeals 'Hellhole' designation

Kelly Holleran Apr. 1, 2010, 3:00am

Part 3 in a series on New Mexico's Court of Appeals.

For years, the American Tort Reform Foundation has been paying close attention to the New Mexico Court of Appeals and what it considers consistent liability expanding decisions.

Although this was the first year the ATRF decided to rank the New Mexico Court of Appeals on its 2009-2010 "Judicial Hellhole Report," a number of past rulings offer a glimpse into what the ATRF labels uneven justice.

The ATRF first took notice of the state's court system in 2003 when a state Supreme Court decision allowed an owner who had left his keys in his car at a repair shop to be sued for injuries that resulted when a thief stole the vehicle and led police on a high speed chase that ended in a crash.

Since then, New Mexico's appeals court has received rankings such as "Dishonorable Mention" or "Places to Watch" in the ATRF's annual report. Despite its status, though, the ATRF said the court shows no indications of changing, prompting the group to move it to full Hellhole status.

For improvements to be made, Washington, D.C.-based attorney Cary Silverman of Shook, Hardy and Bacon recommends judges keep in mind that rulings they issue have an impact on the state.

"What we're suggesting is that New Mexico judges just be cognizant of the impact of their rulings," said Silverman, who helped compile the ATRF's report. "There may be cases where bad facts make bad law. There may be situations where you have sympathetic plaintiffs and there is a desire to compensate the plaintiffs in that case. The cases cited in the Judicial Hellhole report are examples of those."

Last year, the appellate judges overturned a long-recognized "baseball rule" that says stadium owners and teams are not liable if a spectator is injured by a flying ball as long as there is a net behind home plate where the risk of injury is the greatest.

The judges decided to overturn the rule when a 4-year-old boy received severe injuries during pre-game batting practice at a minor league baseball stadium in Albuquerque.

"There's a desire to compromise the law or to expand liability but that can have an impact on the state, putting individuals and businesses on the hook where they would not usually be," Silverman said.

New Mexico citizens also play a role in taking the reins to steer the direction of New Mexico's Court of Appeals, Silverman said. Initially, judges are assigned to the court by the governor. But they can only remain on the court through elections.

"Citizens should take the opportunity to question candidates," Silverman said. "It seems that the general trend over time is expanding liability allowing for more damages. [Citizens should question] whether their judicial candidates recognize that as a trend."

New Mexico Court of Appeals Judge Roderick Kennedy said judges perform the job required of them.

"A judge does what a judge has to do," he said in an e-mail message. "On appeal, we're only as good as the trial record."

Like the ATRF, the Judicial Evaluation Institute for Economic Issues has also taken notice of the state's court system and issued a judicial evaluation report in 2009 that cites liability expanding cases.

In the first of its planned biennial report, the Judicial Evaluation Institute gave the highest scoring appellate judge a "D" after ranking each member of the New Mexico Court of Appeals and evaluating them based on their decisions in six broad areas of law � employment, insurance, medical malpractice, other liability lawsuits, product liability and workers' compensation.

At the end of its report, the Judicial Evaluation Institute included a list of lawsuits it deemed to either expand liability or to restrain it. Among the 141 lawsuits examined, the Judicial Evaluation Institute found 66 cases to have a negative effect on liability, thus causing its expansion, and 75 cases to have a positive effect on liability, in effect slowing its expansion.

A few of the cases the Judicial Evaluation Institute determined that expanded liability follow:

  • Granberry v. Albuquerque Police Officers Association

    On June 5, 2008, the New Mexico Court of Appeals found in favor of two police lieutenants who claimed that the Albuquerque Police Officers Association failed to represent them when it filed a prohibited practices complaint on behalf of four other police sergeants.

    The issues began in September 2002 when Granberry, a black male sergeant over the age of 40, and Sanchez, a Hispanic female sergeant, found out about an opening for lieutenant. They participated in required tests but were not promoted. When the APOA found out two ineligible sergeants had been promoted, it filed a prohibited practices complaint.

    However, the officers association failed to include Granberry and Sanchez in the complaint. As a result, when APOA reached a settlement on behalf of four other sergeants, Granberry and Sanchez claimed they lost an opportunity for promotion, income and benefits.

    The APOA argued against the sergeants, saying they had to come forward individually to be represented. The union claims to have had no knowledge of Granberry's and Sanchez's complaints, and contends it should not have been held liable for its failure to represent them.

    But Granberry and Sanchez claimed they have not had to come forward individually in the past to receive union representation. In fact, one of the men named in the settlement had not come forward individually.

    The district court found a summary judgment in favor of the APOA, saying that the union may have had an obligation to know about Granberry's and Sanchez's claims. However, it did not have a duty to investigate whether members should come forth to obtain relief as that would contravene policies aimed at protecting unions � the Callahan standard.

    The court of appeals overturned the district court's ruling.

    "In the instant case, we hold that APOA's duty of fair representation requires that once it assumed representation of the identifiable group of potentially aggrieved participants in the allegedly flawed promotion process by filing a PPC on the group's behalf, it could not arbitrarily exclude some of the members of the group from the resolution of the PPC," former Court of Appeals Judge Lynn Pickard wrote in her opinion.

    The court of appeals reversed the district court's summary judgment and remanded the case to a jury.

    Court of Appeals Judges Jonathan B. Sutin and Roderick Kennedy concurred.

  • Martinez v. Cornejo

    On Nov. 14, 2008, the New Mexico Court of Appeals found in favor of half of the plaintiffs in a class action lawsuit filed against Allstate and one of its adjusters, Jose Cornejo. The plaintiffs � Roxanne Martinez, Orlando Sena, Ramon Gallegos, Charlie Jimenez Jr., Adan Carriaga and Christa Okon � filed their complaint after they say Allstate and its adjuster violated the Trade Practices and Fraud Act by making unreasonably low settlement offers and by refusing to negotiate.

    Allstate and Cornejo fought back. Allstate wanted to see Gallegos' case dismissed, contending he should not have been allowed to file a complaint because the four-year statute of limitations applicable to claims brought under the TPFA had already expired. Cornejo asked that all the plaintiffs' complaints against him be dismissed. He argued that the plaintiffs are only allowed to file suits against insurers and agents. Cornejo claimed he is neither an insurer nor an agent.

    The Santa Fe County District Court sided with both defendants and dismissed the plaintiffs' complaints. But the plaintiffs appealed, and the court sided with them, finding Cornejo to fall under the insurer and agent category. However, the court found Cornejo was only included in the category in 2002 when the Service Contract Regulation Act went into effect. Under the act, the word "persons" was included in the TPFA's definition of insurance organizations. While Cornejo argued the word persons only applies to the Act's newly included providers of service contracts, the court found Cornejo to be included in the category.

    "In our view, if the Legislature had intended only to expand the scope of the definition of insurer to include service contract providers, it would have used the term 'providers,' as it did throughout the rest of the Service Contract Regulation Act, rather than the term 'persons,'" Judge Cynthia A. Fry wrote in her opinion. "We therefore decline to read any ambiguity into the term 'persons' as Cornejo urges us to do."

    However, the court of appeals did find that only those plaintiffs who can prove that Cornejo was involved in the handling of their claims after July 1, 2002, are able to assert claims against him.

    Therefore, the court of appeals reversed the district court's dismissal of Sena's, Martinez's and Okon's complaints, but upheld its dismissal of the remaining plaintiffs' complaints.

    Judges Kennedy and Michael E. Vigil concurred.

  • Woodhull v. Meinel

    On Oct. 24, 2008, the New Mexico Court of Appeals ruled that a jury should decide whether a Web site manager should be held liable for an e-mail message and editorial comments she posted on her Web site.

    The case came before the court of appeals after Angela Woodhull, a Floridian, appealed a lower court's summary judgment in favor of Carolyn Meinell. Woodhull initially sued Meinell after Meinell posted an e-mail message from Woodhull on her Web site,, on Oct. 14, 2003. The message stated "Please contact me. I have a job for you." Just below the message, Meinell added her own comments, saying that Woodhull solicited her to commit a federal crime by offering her a job to break into a news Web site that had written unflattering remarks about Woodhull.

    About two years later, on Jan. 6, 2006, Meinell recapped her original message about Woodhull, then added that Woodhull still offered to pay Meinell to hack into the news Web site, even after Meinell informed her the action is a criminal one. Meinell stated her only recorse against Woodhull was to make fun of her on Meinell's Web site. Through research, Meinell discovered Woodhull had been on America's Funniest Home Videos and was known as the "Wedgie Woman" because of her appearance.

    Also in the 2006 posting, Meinell included an e-mail exchange between she and Mike Gimignani, a staff member at the Independent Florida Alligator, a student-run newspaper at the University of Florida. In her e-mail, Meinell asked Gimignani whether his newspaper's Web site contained information about Woodhull that she disliked. Gimignani responded with details of a play written by Woodhull that may have featured dancing penises and condoms.

    New Mexico's Court of Appeals found that Meinell should not be held responsible for her 2003 posting because of an expired statute of limitations, but could be held liable for her 2006 posting. In its ruling, the court of appeals cited a republication rule that allows a publisher to be sued if a separate document is substantially different from original material posted.

    Under a single publication rule, publishers cannot be sued by any one person who brings multiple lawsuits for libel or slander upon a single publication. Meinell argued the suit should be thrown out because the statute of limitations under the single publication rule had expired.

    "We hold that the 2006 publication is sufficiently different from the 2003 version to create a genuine issue of fact as to whether the 2006 posting can reasonably be viewed as a republication," Judge Michael D. Bustamante wrote. "A jury should make that decision."

    The court of appeals remanded the issue back to district court for review.

    Judges Fry and Celia Foy Castillo Castillo concurred with Bustamante.

  • Johnson v. Hoyt and Son Tree Service and New Mexico Uninsured Employers Fund

    On March 19, 2007, the court of appeals found in favor of worker John Johnson, who was injured while working for Hoyt and Son Tree Service on Dec. 9, 2003. After his injury, Johnson was taken to San Juan Regional Medical Center, then transferred to the University of New Mexico Hospital. Yet again he was transferred to Fort Bayard Hospital, then released. Johnson filed a workers' compensation claim, but, at the time of Johnson's injury, his employer did not have workers' compensation insurance. So the Uninsured Employer's Fund stepped in and agreed to pay Johnson's claim.

    The lawsuit came about after Johnson attempted to change his health care provider to Orthopedic Associates. However, the Uninsured Employer's Fund wanted Johnson to go to Dr. Fred Mosley. Johnson was not happy with the change of care and filed a complaint with the workers' compensation judge.

    The judge sided with the Uninsured Employer's Fund, ruling that because it had not initially chosen a doctor for Johnson, the fund should have the ability to act as an employer and change Johnson's health care provider.

    But the court of appeals reversed the decision and remanded the case back to the Workers Compensation Administration. It found that the Uninsured Employer's Fund did not have a right to change Johnson's health care provider because it was not specifically given that right under a statute.

    "First, we presume that the legislature knows the law when enacting legislation," Judge James J. Wechsler wrote in his opinion. "If the legislature had intended to give the UEF authority with regard to health care providers, it could have done so. Second, even though the UEF may have the same responsibility as an employer to pay benefits, its position is not the same as an employer that has a potentially ongoing relationship with the worker. Third, as we have discussed, other provisions of the Act protect the interests of the UEF. Thus, when we view the Act as a whole, the Act does not grant the UEF the authority to select or change a health care provider under Section 52-1-49."

    Judges Michael D. Bustamante and Pickard concurred.

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