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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 GERARD GUTIERREZ,

 3          Plaintiff-Appellant,

 4 v.                                                                                     No. 32,352

 5 J.W. DRILLING, INC.,

 6          Defendant-Appellee,

 7 and

 8 CHESAPEAKE OPERATING, INC.,

 9          Defendant.

10 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
11 Mark Terrence Sanchez, District Judge

12   Trenchard & Hoskins
13   Royce E. Hoskins
14   Josephine Lue
15   Roswell, NM

16 for Appellant

17 Beall & Biehler
18 Josh A. Harris
19 Albuquerque, NM
 1 for Appellee

 2                           MEMORANDUM OPINION

 3 SUTIN, Judge.

 4       Gerard Gutierrez appeals from the district court’s entry of summary judgment

 5 in favor

 6 of Gutierrez’s employer, J.W. Drilling. The district court dismissed Gutierrez’s

 7 claims against J.W. Drilling on the ground that the exclusivity provision of the

 8 Workers’ Compensation Act barred Gutierrez from recovering from J.W. Drilling in

 9 tort. This Court issued a calendar notice proposing to affirm. Gutierrez has filed a

10 memorandum in opposition to our proposed disposition, and J.W. Drilling has filed

11 a memorandum in support. Having considered the arguments of the parties, we

12 affirm.

13       In this Court’s calendar notice, we pointed out that in Delgado v. Phelps Dodge

14 Chino, Inc., 2001-NMSC-034, ¶ 26, 131 N.M. 272, 34 P.3d 1148, our Supreme Court

15 carved out a limited exception to the exclusivity provision of the Workers’

16 Compensation Act. We noted that “[t]o survive a pre-trial motion for summary

17 judgment on a Delgado claim, [a p]laintiff must plead or present evidence that the

18 employer met each of the three Delgado elements through actions that exemplify a

19 comparable degree of egregiousness as the employer in Delgado.” May v. DCP


                                            2
 1 Midstream, L.P., 2010-NMCA-087, ¶ 7, 148 N.M. 595, 241 P.3d 193 (internal

 2 quotation marks and citation omitted). Gutierrez continues to maintain that J.W.

 3 Drilling’s failure to actually repair or replace defective machinery, despite warnings

 4 from a supervisor that the failure to do so would result in an injury or death,

 5 approximates the egregious conduct exhibited by the employer in Delgado. We

 6 disagree.

 7        In Delgado, “the employee was ordered to attempt to remove a giant cauldron

 8 of molten slag in a situation for which he had not been trained using unfamiliar

 9 equipment underneath a thirty-ton, overflowing cauldron.” May, 2010-NMCA-087,

10 ¶ 12. “When confronted with [this] new and frightening situation that he was

11 completely unprepared for, the worker radioed his superiors and repeatedly insisted

12 that he did not want to perform the task and he was not trained to handle the

13 situation.” Id. ¶ 14. The worker’s requests for help in Delgado were denied. Morales

14 v. Reynolds, 2004-NMCA-098, ¶ 9, 136 N.M. 280, 97 P.3d 612. As we noted in our

15 proposed disposition, in determining whether a case meets the requirements of

16 Delgado, it is this conduct that Delgado sought to deter that we must bear in mind.

17 Id. ¶ 10.

18        In the present case, Gutierrez alleges that J.W. Drilling’s supervisor had

19 informed it of the problem with the cathead and that injury or death would occur if it


                                             3
 1 continued operating the defective equipment. [DS 6; MIO 3] J.W. Drilling made

 2 several, albeit unsuccessful, attempts to fix the cathead [DS 5]; it warned the crew to

 3 be careful given the still malfunctioning equipment [RP 103-04]; and it had the crew

 4 work at a slower pace because the cathead was not working properly [RP 106].

 5 Furthermore, the task being performed by Gutierrez when he was injured was a

 6 routine task that he was trained to do. [RP 110-11] While Gutierrez asserted he was

 7 uncomfortable with the malfunctioning cathead, Gutierrez did not assert that he

 8 requested the job to be stopped at anytime. [DS 6-7; MIS 5] We conclude that the

 9 situation faced by Gutierrez “is simply not analogous to the anticipated and sudden

10 calamity that the worker in Delgado faced.” May, 2010-NMCA-087, ¶ 14. Moreover,

11 we conclude it was appropriate for the district court to grant summary judgment on

12 this ground as reasonable minds could not differ in this conclusion. See Morales,

13 2004-NMCA-098, ¶ 15 (indicating that when reasonable persons may differ on the

14 question, it is a question for the jury to decide).

15        Gutierrez asserts that the facts of this case are distinguishable from previous

16 cases in which this Court has held that a worker did not demonstrate a comparable

17 level of egregiousness to the conduct in Delgado. [MIO 4 (citing Morales, 2004-

18 NMCA-098, May, 2010-NMCA-087, and Chairez v. James Hamilton Constr. Co.,

19 2009-NMCA-093, 146 N.M. 794, 215 P.3d 732).] Yet, regardless of the factual


                                               4
1 distinctions Gutierrez draws between these cases and his own, the nature and character

2 of the employer conduct in each of these cases and his own is largely the same. See

3 Morales, 2004-NMCA-098 (failure to provide safety equipment); Chairez, 2009-

4 NMCA-093 (modifications to machinery); May, 2010-NMCA-087 (modifications to

5 machinery). Accordingly, the district court’s order granting summary judgment in

6 favor of J.W. Drilling is affirmed.

7        IT IS SO ORDERED.


8                                         __________________________________
9                                         JONATHAN B. SUTIN, Judge


10 WE CONCUR:


11 _______________________________
12 JAMES J. WECHSLER, Judge


13 _______________________________
14 CYNTHIA A. FRY, Judge




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