SOLIZ V. BRIGHT STAR ENTERS., 1986-NMCA-037,
104 N.M. 202, 718 P.2d 1350 (Ct. App. 1986)
JOSEPH E. SOLIZ, Plaintiff-Appellee,
vs.
BRIGHT STAR ENTERPRISES, BITUMINOUS INSURANCE COMPANY,
VICENTE JASSO, the STATE SUPERINTENDENT OF INSURANCE,
and THE NEW MEXICO SUBSEQUENT INJURY FUND,
Defendants; THE NEW MEXICO SUBSEQUENT
INJURY FUND, Defendant-Appellant
COURT OF APPEALS OF NEW MEXICO
1986-NMCA-037, 104 N.M. 202, 718 P.2d 1350
APPEAL FROM THE DISTRICT COURT OF BERNALILLO
COUNTY, H. RICHARD BLACKHURST, Judge.
Petition for Writ of Certiorari Denied
May 20, 1986
DAVID A. ARCHULETA, Albuquerque, New
Mexico for Plaintiff-Appellee.
J. E. CASADOS, GALLAGHER & CASADOS,
P.C., Albuquerque, New Mexico for Defendant-Appellant.
HOWARD R. THOMAS, MATTHEW P. HOLT, SAGER,
CURRAN, STURGES & TEPPER, P.C., Albuquerque, New Mexico for Defendants.
{1} This is an appeal from a
district court order directing defendants to pay the costs
{*203}
of a deposition of plaintiff's expert medical witness in a workmen's
compensation case.
{2} The single issue
presented on appeal is whether the trial court's order allowing general
discovery as opposed to a particular finding of good cause and materiality for
a particular item of discovery, complies with the requirements of the Workmen's
Compensation Act, NMSA 1978, Section
52-1-34. We reverse.
{3} Plaintiff filed an action
seeking an award of workmen's compensation benefits. Thereafter, defendants,
Bright Star Enterprises (Bright Star) and Bituminous Insurance Company
(Bituminous) filed a motion seeking permission "to undertake all discovery
procedures authorized by the Rules of Civil Procedure." The motion filed
by defendants did not list and the parties did not apprise the court of the
names of any specific persons or entity sought to be deposed.
{4} Thereafter, the trial
court entered an order reciting:
Defendants' Motion for discovery having come regularly before
the Court and the Court being fully advised in the premises, FINDS that good
cause exists for discovery as authorized by the New Mexico Rules of Civil
Procedure, and that the evidence to be obtained will probably be material to
the issues of this cause,
IT IS THEREFORE ORDERED that Plaintiff and Defendants
may engage in any discovery procedure authorized by the New Mexico Rules of
Civil Procedure, pursuant to Section 52-1-34 N.M.S.A. 1978, without either
Plaintiff or Defendants waiving their rights to object to the taking of or paying
for any specific discovery procedure. [Emphasis added.]
{5} After entry of the order,
plaintiff took the deposition of his expert, Dr. Ronald Racca. This was the
only deposition taken by plaintiff. Defendants and the New Mexico Subsequent
Injury Fund (Fund), settled with plaintiff; however, on plaintiff's motion for
an order to show cause, defendants were ordered to pay the costs of the
deposition of Dr. Racca, and the Fund and the Superintendent of Insurance were
ordered to pay plaintiff an additional attorney's fee incident to obtaining the
order. The Fund and the Superintendent of Insurance pursue an appeal herein.
Bright Star and Bituminous did not appeal from the entry of the order directing
payment, but with leave of this court have filed amicus briefs herein.
{6} Discovery proceedings in
a worker's compensation action are governed by statutory requirements. Section
52-1-34, provides:
The Rules of Civil Procedure for the District Courts and the
Supreme Court Rules shall apply to all claims, actions and appeals under the
Workmen's Compensation Act * * * except where provisions of the Workmen's
Compensation Act directly conflict * * * in which case the * * * Workmen's
Compensation Act shall govern * * * provided, however, that any interrogatories,
discovery procedures and depositions * * * shall be had only after motion
* * * and the court * * * finds, after due hearing, that good cause
exists, that the evidence to be obtained will probably be material to the
issues of the cause and the court enters an order authorizing the same.
[Emphasis added.]
{7} A party seeking discovery
in a worker's compensation case, must comply with a two-step process: first,
the party must file a motion with the court seeking authorization to conduct
discovery. Second, the court must find that good cause exists for the
discovery, that the evidence to be obtained will probably be material to the
issues of the cause and that the court should enter an order authorizing the
discovery. Section 52-1-34. This procedure is mandatory.
Reed v. Fish
Engineering Corp., 74 N.M. 45,
390 P.2d 283 (1964).
See also Maschio v.
Kaiser Steel Corp., 100 N.M. 455,
672 P.2d 284 (Ct. App. 1983).
{8} In
Reed, Justice
Moise, speaking for the supreme court, stated that compliance with the two-step
process outlined in Section 52-1-34 is a prerequisite to obtaining
{*204} discovery in a workmen's compensation
action, and that:
Clearer language could not have been devised to state that
discovery procedures authorized by the rules of civil procedure would not be
applicable without the motion and order required by the statute. * * * [Section
52-1-34 states that] discovery could be had "only" after motion and
the making of certain findings after hearing, and the entry of an order. For us
to conclude this was merely directory and not mandatory would do violence to
and nullify the language used.
Id. 74 N.M. at 53, 390 P.2d at 289.
{9} The motion of defendants
and the general order entered by the trial court did not satisfy the
requirements of Section 52-1-34. Under the express terms of the order, the
parties did not waive any objections as to discovery or the payment of any
resulting costs. The statutory requirement necessitating a finding that there
is "good cause" for undertaking discovery and that the evidence
sought to be obtained "will probably be material" cannot properly be
entered in general, without identifying the specific discovery sought or
individuals or entities to be deposed, and a determination by the court that
the specific discovery or deposition requested will probably be material to the
cause. The statute may not be construed in such a way as to nullify its
provisions.
Reed v. Fish Engineering Corp.;
Varos v. Union Oil Co. of
California,
101 N.M. 713,
688 P.2d 31 (Ct. App. 1984). Without a showing of
"good cause" for a particular deposition, it is not proper to
authorize the taking of a deposition.
Escobedo v. Agriculture Products Co.,
86 N.M. 466,
525 P.2d 393 (Ct. App. 1974). Except as authorized by statute, no
allowance for expenses of a deposition may be made in workmen's compensation
cases.
Reed.
{10} Plaintiff argues that
Fund does not have standing to appeal from the order requiring it to pay for
Dr. Racca's deposition. We disagree. The Fund objected to entry of the order;
it has a real and substantial interest in the subject matter before the court
and is an aggrieved party.
See Home Fire & Marine Insurance Co. v. Pan
American Petroleum Corp.,
72 N.M. 163,
381 P.2d 675 (1963). The order will
have an immediate adverse pecuniary effect on the Fund, and the Fund has
standing in this appeal.
St. Sauver v. New Mexico Peterbilt, Inc.,
101
N.M. 84,
678 P.2d 712 (Ct. App. 1984).
{11} Plaintiff argues that
general orders authorizing discovery in workmen's compensation proceedings are
proper, and that a narrow interpretation of the statute will result in trial
delays because excessive motions will be filed, necessitating needless
expenditure of court time. We disagree. Since under the Workmen's Compensation
Act, a defendant is required to pay the cost and expense of any discovery or
deposition which has been authorized by the court, irrespective of the merits
or outcome of the action, the language of Section 52-1-34, requiring a finding
of good cause and materiality, is intended to protect against possible abuse of
discovery and serves as a protective limitation thereon. Moreover, claims under
the Workmen's Compensation Act, NMSA 1978, Sections
52-1-1 through
52-1-69, are
intended to be advanced on the calendar and disposed of as promptly as possible.
§ 52-1-35(A). Blanket orders allowing unspecified discovery do not further that
goal. To the contrary, the general order entered will foster unnecessary
discovery with resulting delay and cost, resulting in consequences not
sanctioned by the Act.
{12} The order entered by the
court failed to meet the requirements imposed under Section 52-1-34. A finding
of good cause or materiality cannot be made in the abstract.
{13} The order appealed from
is reversed.
WE CONCUR: BIVINS, Judge and ALARID, Judge.