dissenting.
We respectfully dissent. We would hold that Inland’s insurer is not entitled to reimbursement for the workmen’s compensation benefits paid to Taylor. We believe that a negligent employer or its insurer should be reimbursed from an employee’s recovery from other tort-feasors for workmen’s compensation benefits paid, but only to the extent that these payments exceed the negligent employer’s proportionate share of the damages.
The applicable statute, NMSA 1978, Section 52-l-56(C), provides as follows:
The right of any workman, * * * to receive payment or damages for injuries occasioned to him by the negligence or wrong of any person other than the employer or any other employee of the employer, * * * shall not be affected by the Workmen’s Compensation Act, but he * * shall not be allowed to receive payment or recover damages therefor and also claim compensation from the employer, and in such case the receipt of compensation from the employer shall operate as an assignment to the employer, his or its insurer, guarantor or surety, * * * of any cause of action to the extent of payment by the employer to the workman * * *.
Under contributory negligence principles, a plaintiff could receive full compensation for his damages from a third-party tort-feasor. Under such circumstances, a plaintiff who was also allowed to keep the workmen’s compensation benefits he received would have received a double recovery. The legislature enacted Section 52-l-56(C) to provide a right of reimbursement to the employer or his insurer for any workmen’s compensation benefits received by such an employee in order to prevent double recovery. Security Insurance Co. v. Chapman, 88 N.M. 292, 540 P.2d 222 (1975); Herrera v. Springer Corp., 85 N.M. 6, 508 P.2d 1303 (Ct.App.), rev’d on other grounds, 85 N.M. 201, 510 P.2d 1072 (1973).
New Mexico has now adopted the doctrine of pure comparative negligence. Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981). In addition, the doctrine of joint and several liability no longer exists in New Mexico. Bartlett v. New Mexico Welding Supply, Inc., 98 N.M. 152, 646 P.2d 579 (Ct.App.), cert. denied, 98 N.M. 336, 648 P.2d 794 (1982). The rationale behind Scott v. Rizzo and Bartlett, with which we agree, is that apportionment (and payment) of damages among tort-feasors should be in proportion to the fault of each party. The Court of Appeals in Scott v. Rizzo made no attempt to determine how various legal rules would be affected by the adoption of the comparative negligence doctrine but instead expected that adaptations would be carried out on a case by case basis. The court emphasized that common sense should assist in the fair application of the comparative negligence doctrine. Id. Common sense tells us that although the purpose of Section 52-l-56(C) remains unchanged, Scott v. Rizzo and Bartlett affect the way we should apply Section 52-l-56(C) to uphold the intent of the legislature in its enactment.
The cases which were decided under the doctrine of contributory negligence and under joint and several liability principles were correct in providing that the employer or its insurer must be reimbursed for workmen’s compensation benefits paid because in those cases the workman could have recovered 100% of his damages from a third-party tort-feasor in addition to receiving workmen’s compensation benefits. Castro v. Bass, 74 N.M. 254, 392 P.2d 668 (1964). That would clearly have been a double recovery. Under current New Mexico law, a workman will not recover the entire amount of his damages from a third-party tort-feasor if the employer was partially negligent. Double recovery can occur only if the workmen’s compensation benefits paid exceed the negligent employer’s proportionate share of liability. In the instant case, Taylor may recover a maximum of 85% of his damages from third-party tortfeasors. To limit Taylor’s workmen’s compensation benefits to the employer’s 10% share of the damages would not result in a double recovery in violation of the purpose of Section 52-l-56(C).
The provisions of NMSA 1978, Section 52-1-8, that an employer shall not be subject to any cause of action outside of the workmen’s compensation act limits an employer’s liability but does not in any way affect the employer’s right to reimbursement. An employer’s right to reimbursement stems from Section 52-l-56(C).' We agree that because the only cause of action against an employer is under the Workmen’s Compensation Act, a determination of the employer’s negligence is irrelevant to his liability and is inappropriate for the purpose of awarding damages as against the employer. We do not agree, however, that a determination of the employer’s negligence is inappropriate for all other purposes. We also do not agree that the employer is therefore entitled to reimbursement of all workmen’s compensation benefits paid. Nothing in New Mexico’s workmen’s compensation statutes or case law prevents a determination of the employer’s negligence for use as a factor in measuring the amount of reimbursement to which he may be entitled. We believe the employer’s negligence is pertinent to the issue of whether he is entitled to reimbursement and, if so, the amount thereof.
We would therefore hold that the comparative negligence doctrine should be read in conjunction with the workmen’s compensation statutes to require that an employer or its workmen’s compensation carrier should be reimbursed from monies recovered by the injured workman from a third-party tort-feasor only in those instances where the employer or its insurer has paid more than its proportionate share of the employee’s damages. On no occasion would the employer or its insurer be subjected to greater liability than that allowed by the Workmen’s Compensation Act. There should, of course, be no reimbursement in those cases in which the employer’s share of liability is greater than or equal to the amounts paid under workmen’s compensation because such reimbursement would be at the expense of the injured worker. Reimbursement to a negligent employer or its insurer should occur only when the amounts paid in workmen’s compensation benefits exceed the employer’s proportionate share of liability and the employee is able to recover additional sums from a third-party tort-feasor because only in this instance would the employee enjoy a double recovery. Reimbursement to a negligent employer or its insurer in any other instance would be at the expense of the injured workman and would allow a negligent employer to escape even the limited liability imposed by the Workmen’s Compensation Act. A non-negligent employer or its insurer should be entitled to reimbursement of all benefits paid as workmen’s compensation when the injured employee recovers from a third-party tort-feasor.
The Workmen’s Compensation Act should be construed liberally so as to give effect to its benevolent purpose. Glover v. Sherman Power Tongs, 94 N.M. 587, 613 P.2d 729 (Ct.App.), cert. denied, 94 N.M. 675, 615 P.2d 992 (1980). “[Wjorkmen’s compensation statutes should be liberally and fairly construed in the workman’s favor to insure the full measure of his exclusive statutory remedy.” Evans v. Stearns-Roger Manufacturing Co., 253 F.2d 383, 387 (10th Cir.1958).
If Inland’s insurer is reimbursed for the workmen’s compensation benefits Mr. Taylor has been paid, Mr. Taylor would be denied the full recovery to which he is entitled. Inland, whose 10% share of the liability would amount to $140,000, is relieved from paying that because of the limited liability imposed by the workmen’s compensation statutes. Under the majority opinion, Taylor’s recovery of the $1,400,000 awarded by the jury will be further reduced by requiring him to reimburse the employer from the $510,000 paid by Delgarno and any other amounts he receives from other tortfeasors. We note that Delgarno has settled with Taylor for less than its 50% share of liability. This results in a further windfall to the employer and an inequitable treatment of the workman. This does not fulfill the intent of the legislature. For the foregoing reasons, we would hold that Inland’s insurer is not entitled to reimbursement in this case.