F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 21 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
DARRELL WELLS,
Plaintiff - Appellant,
v. No. 03-2125
(D.C. No. CIV-02-185-RLP)
US FOODSERVICE, INC.; JOHN DOE (New Mexico)
I; JOHN DOE II,
Defendants - Appellees.
ORDER AND JUDGMENT*
Before TYMKOVICH, McWILLIAMS, and PORFILIO, Circuit Judges.
The sole issue remaining in this appeal is whether the district court correctly held
the New Mexico Workers Compensation Act (the Act) provides the exclusive remedy for
this personal injury action. N.M. Stat. Ann. §§ 52-1-1 to 52-1-68. It did, and we affirm
its grant of summary judgment to US Foodservice, Inc., on the ground that its employee
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
failed to allege facts bringing his claim within the ambit of Delgado v. Phelps Dodge
Chino Mine, 34 P.3d 1148 (N.M. 2001).
Darrell Wells was a truck driver for US Foodservice, Inc., a wholesale food
supplier. On February 16, 1999, a truck with a trailer loaded by a Foodservice employee
in Lubbock, Texas, and driven by a Lubbock shuttle driver, arrived in Albuquerque, New
Mexico. There, Mr. Wells picked up the trailer and began delivering its contents to
Foodservice customers in Albuquerque and Santa Fe. At the first delivery stop in
Albuquerque, he raised the trailer door only high enough to remove one box, and
completed that delivery. At the next stop in Santa Fe, several boxes of products which
had fallen inside the trailer fell to the ground as he opened the trailer door. Without
moving these boxes aside, Mr. Wells began unloading and delivering fifteen boxes into
the facility, maneuvering around the boxes strewn on the ground. As Mr. Wells bent over
to pick up another box, a case of Tabasco sauce plummeted from the top of the load in the
trailer and struck him on the back, seriously injuring him.
Mr. Wells filed this diversity action for personal injuries, fraud, and prima facie
tort against Foodservice; John Does I and II, the Lubbock employees who loaded and
drove the trailer (Foodservice, collectively); the US Fidelity and Guaranty Company; and
the St. Paul Companies. All Defendants moved for summary judgment. After Mr. Wells
failed to respond to these latter insurers’ motion for summary judgment, the court
dismissed the complaint against them.
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In the district court, Mr. Wells’ diversity action in negligence sought to remove his
recovery from under the Act by contending Foodservice’s failure to provide a load lock1
on the trailer to prevent the cargo from shifting was an intentional omission under 49
C.F.R. § 393.100 of the Federal Motor Carrier Safety Administration, Department of
Transportation Regulations (the Rules).2 The Rules require, in part, a “tie down
assembly” on all trucks, truck tractors, semitrailers, full trailers, and pole trailers to prevent
loads from shifting and falling. 49 C.F.R. § 393.100.3 There was no tie down assembly or
load lock on Mr. Wells’ truck. Thus, this wilful act or omission, Mr. Wells contended, fell
within the bounds of Delgado, 34 P.3d at 1148, and permitted him to seek recovery
outside of the exclusive remedy provided by the Act. The court disagreed and granted
Fordservice’s motion for summary judgment.
1
Foodservice’s division president, Larry Luman, testified a load lock is “an
aluminum bar that can be configured several different ways. Some of them have
rectangular loops on them, rubbery ends on them, spring tension on it so you can either
set it up vertically or horizontally in your trailer to try to prevent your load from shifting.”
2
49 CFR § 393.100(c) states:
Prevention against shifting of load. Cargo must be contained,
immobilized or secured in accordance with this subpart to
prevent shifting upon or within the vehicle to such an extent
that the vehicle's stability or maneuverability is adversely
affected.
3
Other options under the Rule require equipping the vehicle with “sides, side-
boards, or stakes, and a rear endgate, endboard, or stakes,” § 393.100(b)(1); or “at least
one tiedown assembly that meets the requirements of Sec. 393.102. . . .” § 393.100(b)(2).
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We review the grant of summary judgment de novo, applying the same legal
standard as did the district court. Truck Ins. Exchange v. MagneTek, Inc., 360 F.3d 1206,
1214 (10th Cir. 2004). Summary judgment is then appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
Although we view the evidence and draw reasonable inferences in the light most
favorable to the nonmoving party, the nonmoving party must still present facts susceptible
of permitting a reasonable jury to find in its favor. Truck Ins., 360 F.3d at 1214 (citing
Simms v. Oklahoma ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d
1321, 1326 (10th Cir. 1999)).
In its order, the district court quoted from Foodservice’s motion for summary
judgment certain facts Mr. Wells did not dispute:
Even at this point, [Plaintiff] did not re-stack the load or
otherwise take steps to secure it. Instead, he commenced
deliveries in and out of Pinon Hills, delivering some boxes
that had spilled on the ground and also climbing in and out of
the trailer to retrieve and deliver other boxes of products.
[Plaintiff] alleges that at some point, after he had delivered a
large quantity of the order to Pinon Hills, he was leaning over
to pick up a box from the ground when a case of [T]obasco
[sic] sauce fell from the top of the load in the truck and
st[r]uck him in the back injuring his back.
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The court then applied the analysis set forth in Delgado, which revised the New Mexico
test for holding an employer liable for intentionally injuring his worker. 34 P.3d at 1156.
Under that test, the New Mexico Supreme Court held “willfulness 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.” Id.
On each facet of the Delgado test, our de novo review confirms Mr. Wells’ factual
showing and legal argument fail. First, Mr. Wells ignores 49 C.F.R. § 392.9 of the Rules
which catalogs a series of safe loading requirements a driver must also follow. These
include “examin[ing] the vehicle’s cargo and its load-securing devices within the first 25
miles after beginning a trip and cause any adjustments to be made to the cargo or load-
securing devices . . . as may be necessary to maintain the security of the commercial
motor vehicle’s load; and reexamin[ing] the . . . vehicle’s cargo and its loading-securing
devices periodically during the course of transportation and cause any adjustments to be
made to the cargo or load-securing devices . . . as may be necessary.” § 392.9(b)(2),
§ 392.9(b)(3) (emphasis added).
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Second, Mr. Wells testified he did not know if it was a requirement to inspect the
load before driving but characterized that action as “something you did to basically save
your own neck . . . to make sure it’s loaded right, make sure you’ve got the right product
on your trailer before you leave to go 230 miles away.” Not only did Mr. Wells state he
did not check or restack the load after removing product at Honeywell, the first stop, but
he also stated he did not recall whether he even inspected the load on the day of the
accident. When boxes fell out of the truck at the Pinon Hills stop in Santa Fe, Mr. Wells
continued to unload and walk around the fallen boxes but did not restack the load that had
already evidenced signs of instability.
Further, Mr. Wells testified that a load lock would not prevent products from
falling off the top of a load or keep a load from shifting from side to side.4 Instead, Mr.
Wells agreed a load lock primarily prevented products from sliding down to the end of the
truck. An improperly stacked load with heavier boxes placed on top of lighter boxes, as
he noted, or one in need of restacking would, thus, by his own testimony, not be stabilized
by a load lock. In the face of this evidence coupled with his statement he did not inspect
or recheck his cargo, Mr. Wells’ contention Foodservice’s failure to equip the truck with
a load lock, admittedly only one of several requirements for the safe transportation of
4
The record contains testimony of other truckers who stated they did not use load
locks, or that load locks were available but often not utilized because they did not fully
keep cargo from falling. While witnesses testified a load lock would more likely be used
on cargo placed on pallets, Mr. Wells’ cargo on the day of the accident was not stacked
on pallets.
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cargo, must fail. As Foodservice counsel stated in oral argument, “This case is so not
Delgado.”
Although Mr. Wells admits he did not inspect the load when he began driving or
restack the load as he either observed boxes shifting or removed products, he contends
these actions are relevant only to apportion fault. At the same time, however, he insists
only Foodservice’s omission produced the injury. Instead, Delgado requires the employer
engage in intentional conduct that proximately causes the injury to remove the action
from redress under the Act. See also, Cordova v. Peavey Co., 273 F. Supp. 2d 1213 (D.
N.M. 2003). Under no view of the evidence or the Rules can Mr. Wells satisfy this
showing on summary judgment. At best, even under his theory, Defendants’ conduct was
negligent and not intentional.
Finally, because Mr. Wells failed to reply to the insurers’ motion for summary
judgment or assert the grounds before the district court upon which he should have been
permitted to file a surreply, a third issue raised here, we have no record to review. Mr.
Wells’ unsupported and untested assertions cannot fill that void.
AFFIRMED.
ENTERED FOR THE COURT
John C. Porfilio
Senior Circuit Judge
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