(dissenting).
I dissent.
Now, we have reached that area of the law in which Continental Insurance Company, a compensation carrier who has paid Hess, a “workman,” compensation benefits and attorney fees in the amount of $14,-756.32, seeks to force Hess, as an involuntary plaintiff, to bow to Continental’s demands that Hess allow Continental to receive from a third party tortfeasor the sum of $14,756.32 to the detriment of Hess.
This is a matter of first impression.
Continental paid Hess compensation benefits in the amount of $14,756.32. This payment operated as an assignment to Continental “to the'extent of payment by the employer * * * which the workman * * * may have against any other party for the injuries * * *.” Section 52-l-56(C), N.M.S. A.1978. The “other party” was Ester Wueschinski, a third party tortfeasor, whose liability insurance carrier admitted Ester’s liability to Hess, and was ready to pay Hess total coverage of $15,000.00. Hess was “entitled to receive payment” from Ester, irrespective of the Workmen’s Compensation Act, § 52-l-56(C), but Hess decided not to accept the payment.
Under the assignment, Continental could not collect the $14,756.32 from Ester unless Hess joined with Continental in its claim. Continental and Hess attempted to negotiate a reasonable compromise on the disbursement of the $15,000.00. Hess suffered serious injuries and was damaged far in excess of $15,000.00. Continental and Hess each wanted $10,000.00 in disbursement and no reasonable compromise was effected.
Continental sued Ester and made Hess an involuntary plaintiff. Hess moved to dismiss Continental’s complaint. The court found “that the involuntary plaintiff cannot be compelled to sue the defendant against her express wishes, and FINDS said motion is well taken.” The court ordered “that the Complaint of the Continental Insurance Company be, and the same hereby is dismissed.”
Continental appealed. We should affirm.
A. Dismissal of complaint was not a final order.
“A dismissal of a complaint without prejudice is not a final order and is not appealable.” Armijo v. Co-Con Const. Co., 92 N.M. 295, 296, 587 P.2d 442 (Ct.App.1978). Continental’s complaint was dismissed without prejudice. The appeal should be dismissed.
B. Continental failed to establish reversible error.
Continental claims it took all reasonable measures to insure that Hess would receive the amount to which she was entitled under New Mexico law. This point is not the issue. The only question involved is whether Hess as an involuntary plaintiff, can, against her expressed wishes, be compelled to sue Ester. Continental states:
* * * Although Continental is not asking for a right of subrogation * * * it would be appropriate that it be allowed to join Hess as an involuntary plaintiff * * * so that appropriate relief may be had by all parties and the goals of the statute complied with. [Emphasis added.]
Hess cannot be made an involuntary plaintiff because Continental thinks it would be appropriate.
Continental also claims “that there must always be some method for the insurer to pursue its claim against a third party[.] * * [I]f the District Court ruling stands, an insurer will be denied an opportunity to pursue the third party, or may be pressured into accepting an inappropriate amount in reimbursement.” [Emphasis added.] In a Memorandum Brief filed in district court, Continental stated that plaintiff’s motion to dismiss was “tantamount to blackmail. Plaintiff * * * submits that there is an improper and illegal use of a right granted to the workman under New Mexico law.” [Emphasis added.] It may be suggested that this vicious attack on Hess may have affected the finding made by the trial court. In any event, Hess cannot be made an involuntary plaintiff because Continental must have “some method” of relief. Other methods can be devised.
Continental has failed to establish reversible error in the dismissal of its complaint.
The majority opinion has introduced into this appeal Rule 19(a) of the Rules of Civil Procedure. It provides that if a person refuses to join as a plaintiff, “he may be made * * * in a proper case, an involuntary plaintiff.” [Emphasis added.] The district court is not mandated to make Hess an involuntary plaintiff. Whether Hess should or should not be made an involuntary plaintiff rests within the discretion of the trial court. To reverse the order entered, this Court must hold that the district judge acted beyond the bounds of reason. In my opinion, he did not.
This is not a “proper” case to require Hess to allow Continental the use of her name. Continental does not have a statutory right of reimbursement. In Seaboard Fire & Marine Insurance Company v. Kurth, No. 4112, certiorari just quashed, an attempt was made in a special concurring opinion to clear up the confusion that exists in the so-called “reimbursement” statute. A repetition thereof is unnecessary.
The statute and judicial decisions have placed Hess in a vulnerable position. If this cause is reversed, $15,000.00 will be deposited in the registry of the court. The court might feel compelled to pay Continental $14,756.32 to the detriment of Hess. The majority opinion states that “The result of such deprivation does no more than place the issue of proper division of the proceeds * * * before the trial court.” [Emphasis added.] “Proper” division of reimbursement means that Continental will receive about all of the $15,000.00. The district court should be allowed to determine disbursement of the money within its discretion, based upon all of the facts and circumstances. An injustice will not then arise. Whenever any doubt exists, our duty is to resolve that doubt in favor of the workman. It would be inane to repeat again the spirit of the Workmen’s Compensation Act. A compensation insurer has had extensive experience in this field. If it wanted to proceed alone against a third party tortfeasor it had a duty to fairly seek a right to subrogation from t1 ; workman. It did obtain a long three pag Agreement and Stipulation of Release and Settlement from Hess, properly so, in which it protected itself. With knowledge of the third party tortfeasor’s potential liability, Continental made no mention thereof. The record is silent on this subject matter. Fault rests with Continental, not Hess. Otherwise, we may assume that Continental, because of Hess’s serious injuries, did not intend to deprive Hess of all rights she might have in her third party tortfeasor’s claim. Injustice arises if Hess is denied any rights.