(specially concurring in part and dissenting in part).
{30} I am unable to concur in the majority opinion’s holding, which permits workers to accept the benefits of the workers’ compensation system and then sue employers in tort. In addition, while I do not disagree with much of what is contained in the majority opinion on the other issues discussed, I write separately because, if this jurisdiction is going to allow employers to fund tort suits against themselves, I believe we would be wise to adopt a special pleading rule such as is present in the majority of states, which is to the effect that the worker’s tort complaint must allege specific facts from which a conclusion can be drawn that the exclusivity bar of the Workers’ Compensation Act is not present.
1. Tort Suit Following Collection of Benefits
{31} As the majority notes, Worker received workers’ compensation benefits, settled his claim for indemnity benefits, and then filed a complaint in district court. Majority Opinion, ¶3. In fact, his complaint was filed just days after a mediation conference in which the recommended resolution, ultimately accepted by both parties, was to settle Worker’s claim for permanent partial disability for a lump sum, representing all future, benefits except medical expenses, which were left open.
{32} In ruling that Worker may accept compensation and then turn around and sue in tort, the majority follows a number of cases allowing such a procedure. However, there are a number of other cases that do not allow such a procedure. See, e.g., Williams v. Delta Steel Corp., 695 N.E.2d 633, 636-37 (Ind.Ct.App.1998); Medina v. Herrera, 927 S.W.2d 597, 600-02 (Tex.1996); see generally 6 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law [hereinafter Larson’s ] § 102.03[2] (2004) (stating that a “successful compensation claim will ordinarily bar a subsequent damages suit” (footnotes omitted)).
{33} There appear to be various formalistic reasons why some cases do not allow tort suits to follow successful claims for eompensation. For example, the Medina case held that the doctrine of election of remedies precluded the worker from pursuing the inconsistent remedies of claiming that an event was an accident and at the same time intentional. 927 S.W.2d at 600-02. The Williams case also referred to election of remedies and, in addition, referred to other cases indicating that a workers’ compensation award is res judicata as to the accidental, as opposed to intentional, nature of the worker’s injuries. 695 N.E.2d at 635. I agree with the majority that such formalism is not warranted in determining whether a worker can collect compensation benefits and then sue in tort, and I agree that there is nothing inconsistent in viewing the accidental nature of the injuries from the worker’s perspective while viewing the intent requirement from the employer’s perspective. See Larson’s § 103.02 (explaining that it is not inconsistent to analyze the incident from the perspective of the person having the burden of establishing the affirmative, which would be different for workers than for employers).
{34} To me, the real reason for holding one way or another on the issue at hand, at least in the absence of legislative guidance such as was present in the Gagnard case, 612 So.2d at 735, should be one’s views of the policy and philosophy behind the Workers’ Compensation Act. Even the seminal Delgado case recognizes that the Act represents a bargain between employers and workers pursuant to which each gives up rights and obligations in return for some other benefit. 2001-NMSC-034, ¶ 12. The Act balances a worker’s need for expeditious payment of benefits and an employer’s need to limit liability. Id. In my view, the majority tips this balance entirely to the side of the worker, contrary to the mandate of NMSA 1978, § 52-5-1 (1990) (providing that the Act is not tó be read in favor of one side or the other, workers or employers), by allowing a worker to obtain the expeditious payment of benefits without giving up anything. This was exactly the rationale of the Williams case in rejecting the worker’s argument that the majority in our ease has accepted:
We also reject the Williams’ public policy argument. Specifically, the Williams assert:
Even assuming, arguendo, that an employee was familiar with the Worker’s Compensation Act and realized that by agreeing to receive temporary total disability benefits and having had his medical bills paid by his employer’s compensation carrier, he was waiving his right to pursue an intentional tort claim, the employee is presented with the untenable choice of waiving his right to pursue a legitimate intentional tort claim, or being forced to survive with no income and not having his medical bills paid until a court finally resolves the question of whether he may pursue an action in state court.
We disagree that the election of remedies doctrine places an employee in an “untenable position.” The election of remedies doctrine naturally flows from the exclusivity provision of the Act. That provision “is part of the quid pro quo in which the sacrifices and gains of employees and employers are to some extent put in balance, for, while the employer assumes a new liability without fault, he is relieved of the prospect of large damage verdicts.” 6 Larson’s Workers’ Compensation Law, § 65.20 at 12-1 to 12-12 (1997); see also Baker, 637 N.E.2d at 1274 (“Workers compensation obviates the uncertainty, delay and expense of common law remedies by substituting a fixed compensation according to reimbursement schedules.”). Given the policies served by the Act, we cannot conclude that an injured employee should benefit from the advantages afforded by the Act and still avail himself of a common law remedy.
695 N.E.2d at 636-37.
{35} Further, it is not only the threat of large damage verdicts that employers avoid by participating in the workers’ compensation system. It is also the costs of litigating in district court, which are not insubstantial, even if the case is concluded on summary judgment motions.
{36} Thus, I would rule that a worker who wished to bring a Delgado claim against the employer should have to forego the benefits provided by the Workers’ Compensation Act, just as the workers did in the Delgado case itself (as was established in the record in this case) and in the Eldridge case, 1997-NMCA-022, ¶ 3, 123 N.M. 145, 934 P.2d 1074. If the tort claim fails, then there would be the possibility that the worker might be able to pursue workers’ compensation benefits. See Larson’s § 102.03[1] (indicating that a choice of an unsuccessful remedy is not an election). In such a ease, the sentiments on which the majority rely might carry the day.
2. Pleading Requirements
{37} I concur in the portion of the majority opinion holding that without its own affidavit establishing the facts concerning its state of mind, Employer was not entitled to summary judgment. That portion of the opinion is based on existing New Mexico law, and Worker was not on notice that the allegations of his complaint were insufficient. However, if this state is to place itself in the company of those states that allow workers to collect compensation benefits and then sue in tort, I believe that it would be both prudent and most consistent with the balance struck by the Workers’ Compensation Act to require a worker to plead facts showing that the Delgado standard is met.
{38} Our most recent cases of Dominguez and Morales have required a level of egregiousness of employer behavior comparable to that found in Delgado. See Dominguez v. Perovich Props., Inc., 2005-NMCA-050, ¶¶ 7, 21-22, 137 N.M. 401, 111 P.3d 721; Morales, 2004-NMCA-098, ¶¶ 9-14. Larson’s commends courts for being appropriately conservative in limiting exceptions to exclusivity “to the most egregious cases.” Id. § 103.04, at 103-34.1. Larson’s, however, goes a step further, and points out the importance of requiring the pleading of facts that would bring the case within the exception to exclusivity such that bare eonclusory allegations are insufficient. Id. § 103.05. So as not to require employers to litigate in circumstances where a worker cannot establish the requisite Delgado willfulness at the time of the filing of the complaint, I would adopt a pleading requirement in Delgado cases that requires workers to plead sufficient facts demonstrating that the standard is met or be subject to dismissal for failure to state a claim upon which relief can be granted.