(dissenting).
I respectfully dissent.
In my opinion the trial court’s order dismissing Count I of plaintiff’s complaint on a jurisdictional ground was correct as to defendant Allsup’s Convenience Stores Inc., but not as to the defendant Singleton.
' Plaintiff filed two separate lawsuits: (1) a common law action for damages against Allsup’s and Singleton, and (2) a workmen’s compensation action for injuries sustained while employed as a clerk at Allsup’s. The common law action sought alternatively in Count I, damages against both defendants, alleging the failure of Allsup’s to provide a safe place to work (negligence), and against Singleton for kidnapping, physical abuse and rape (intentional tort). Count II of the common law action was directed only against Allsup’s, and sought damages for wrongful termination from employment. No order was entered as to Count II.
On September 14, 1981 the trial court granted an order dismissing Count I of plaintiff’s complaint based on the following grounds.
IT IS THEREFORE ORDERED ADJUDGED AND DECREED that Count I of plaintiff’s complaint filed herein be and the same is hereby dismissed for the reason that plaintiff’s exclusive remedy is under the Workmen’s Compensation Act of New Mexico and the court has jurisdiction over the subject matter under cause number CV-81-115 [workmen’s compensation action] and lacks jurisdiction over the subject matter of Count I of plaintiff’s complaint filed in cause number CV 80-198 [common law action].
The trial court ruled that Count I of plaintiff’s common law action for damages against defendants Allsup’s and Singleton were each barred by the exclusivity provision of the Workmen’s Compensation Act and that plaintiff’s exclusive remedy was under her workmen’s compensation suit. Insofar as the dismissal purported to dismiss plaintiff’s action against defendant Singleton for intentional infliction of injuries upon plaintiff, the ruling of the trial court was in error. Once the Workmen’s Compensation Act was found to provide plaintiff a remedy, that act was exclusive and plaintiff had no right to bring a common law negligence action against his employer. Segura v. Molycorp, 97 N.M. 13, 636 P.2d 284 (1981); Galles Chevrolet Co. v. Chaney, 92 N.M. 618, 593 P.2d 59 (1979).
The exclusivity provision of the Workmen’s Compensation Act, however, does not preclude an employee or his estate from seeking damages against a third party who is not an employer, co-employee, or insuror or guarantor of the employer. Matkins v. Zero Refrigerated Lines, 93 N.M. 511, 602 P.2d 195 (Ct.App.1979). Thus, Count I of plaintiff’s initial cause of action should not have been dismissed as against the defendant Singleton.
The trial court determined that plaintiff had “actual knowledge” of the existence of workmen’s compensation coverage by Allsup’s. This was determined by the court below as a “jurisdictional fact.” In my opinion the existence of workmen’s compensation coverage and exclusivity provisions of the Workmen’s Compensation Act constitute jurisdictional issues which the trial court should preferably resolve prior to trial on the merits.
N.M.R.Civ.P. 12(h)(3), specifies that: “Whenever it appears by suggestions of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.
Restatement (Second), Judgments, § 11 C. Jurisdiction to Determine Jurisdiction, states:
Whether a court whose jurisdiction has been invoked has subject matter jurisdiction of the action is a legal question that may be raised by a party to the action or by the court itself. When the question is duly raised, the court has the authority to decide it * * * A court has authority to determine its own authority, or as it is sometimes put, “jurisdiction to determine its jurisdiction”. [Emphasis supplied.]
Under N.M.R.Civ.P. 12(d), it is also stated that “the defenses specifically enumerated in (l)-(7) * * * of this rule * * * shall be heard and determined before trial on application of either party, unless the court orders that the determination thereof be deferred until the trial.”
The trial court has the option of (1) hearing the jurisdictional factual questions before trial; (2) hearing the issue at trial; or (3) bifurcating the trial and deciding the issue of whether or not plaintiff had “actual knowledge” of the workmen’s compensation coverage.
Jurisdictional issues are for a court, not a jury to decide, whether or not they hinge on legal or factual determinations. Williamson v. Tucker, 632 F.2d 579 (CA 5 1980). District courts have the authority to make factual findings which are decisive of jurisdiction. In Williamson, supra, the court held that this “means that the district court is not limited to an inquiry into undisputed facts. It may hear conflicting written and oral evidence and decide for itself the factual issues which determine jurisdiction.” Williamson, also holds that “a Rule 12(b)(1) motion can be based on the court’s resolution of disputed facts as well as on the plaintiff’s allegations and undisputed facts in the record.”
Plaintiff’s complaint fails to allege any facts that take the case outside the provisions of § 52-1-6, N.M.S.A.1978. Even though facts are not pleaded which show jurisdiction, a party seeking to preserve jurisdiction in the court must make some showing that the court has jurisdiction. Mountain Fuel Supply Co. v. Johnson, 586 F.2d 1375 (CA2d 1978).
When a question of a district court’s jurisdiction is raised, either by a party or by the court on its own motion, under Rule 12(b)(1), the court may inquire by affidavits or otherwise, into the facts as they exist. Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed.2d 1209 (1947). In Exchange Nat. Bank of Chicago v. Touche Ross & Co., 544 F.2d 1126 (Ca.2d 1976, the court held: “[U]nder Rule 56, a party opposing a Rule 12(b)(1) motion cannot rest on the mere assertion that factual issues may exist.
The trial court’s order (Tr. 75), dismissing Count I of plaintiff’s complaint was rendered after notice and opportunity to both parties, to present facts regarding the trial court’s jurisdiction. Under Rule 12(b)(1), the plaintiff has the burden of establishing jurisdictional facts. Plumbers Speciality Supply v. Enterprise Products, 96 N.M. 517, 632 P.2d 752 (1981).
As stated in Williamson, supra, the district court has the power to dismiss for lack of subject matter jurisdiction on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.
Here, the trial court set forth its order of dismissal, its determination that it lacked subject matter jurisdiction and that plaintiff was not prejudiced by Allsup’s delay in filing proof of compliance with the Workmen’s Compensation Act. Appellant has confused summary judgment with the court’s ruling under 12(b)(1). Under the latter rule the court can decide disputed jurisdictional facts.
The instant case is not dissimilar from the decision rendered by this court in Arnold v. State, 94 N.M. 278, 609 P.2d 725 (Ct.App.1980). There plaintiff had alleged that she was assaulted and raped while residing in a residence provided by her employer. The court there held plaintiff’s sole remedy was not in tort, but under the Workmen’s Compensation Act.
I am of the opinion that the trial court was correct in entering its order ruling that plaintiff’s sole remedy against Allsup’s was under the Workmen’s Compensation Act. Plaintiff is not left without a remedy; she is provided a remedy under a remedial act which the legislature has decreed to be exclusive. § 52-1-6, supra. See Dickson v. Mountain States Mutual Cas. Co., 21 N.M.S. B.Bull. 1084 (Ct.App.1982). I would, however, reverse the order of the trial court in its dismissal of Count I of plaintiff’s tort action against defendant Singleton.