                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           OCT 14 2004
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk


    MANUEL CORDOVA,

                 Plaintiff-Appellant,

    v.                                                     No. 03-2295
                                                (D.C. No. CIV-01-1026 WJ/KBM)
    PEAVEY COMPANY, a wholly                                (D. N.M.)
    owned subsidiary of Conagra, Inc.,                (273 F. Supp. 2d 1213)

                 Defendant-Appellee,

    and

    POARCH BROTHERS, INC.,

                 Defendant.


                              ORDER AND JUDGMENT           *




Before McCONNELL , HOLLOWAY , and PORFILIO , Circuit Judges.




          After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Manuel Cordova (Cordova) appeals the district court’s grant of summary

judgment against him and in favor of Peavey Company (Peavey) on Cordova’s

claims of personal injury in the course of his employment. We affirm.

                                         I.

                                   Background

      Cordova was employed by SOS Staffing Services, Inc. (SOS). In spring

2000, pursuant to a contract between SOS and Peavey, Cordova began work as a

temporary employee for Peavey. Under the terms of the contract between SOS

and Peavey, temporary employees were supposed to perform jobs requiring simple

manual labor, and they were not supposed to operate machinery or vehicles.

      Nevertheless, on Monday, April 3, 2000, Cordova was instructed to service

a certain truck and then move it to be loaded with grain. He was told that he

would be assisting with the loading process, but was not given specific

instructions as to what part of the process he would handle. On his previous day

of work (Saturday, April 1), among other tasks, Cordova had watched the loading

to be sure the truck was being loaded evenly, occasionally had turned power on or

off to a certain portable grain auger as directed by another worker, Juan Vasquez,

and had lubricated the running grain auger as directed by a third worker.


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      That Monday, Cordova checked the truck, then moved it to the barn

containing the grain. He got out of the truck and went to stand next to Vasquez,

who was lubricating the grain auger’s chain drive. Cordova saw Vasquez take a

grease gun between the grain auger and the tractor. Cordova assumed that

Vasquez was between the grain auger and the back of the tractor lubricating

certain parts that frequently needed attention. Cordova walked around the front

of the grain auger. He noticed there was some grain and a piece of twine inside

the chute and reached into the grain auger to remove them. Unaware that

Cordova was reaching into the grain auger, Vasquez activated the machine.

Cordova was severely injured as his arm was crushed by the grain auger.

Ultimately Cordova’s left arm was amputated just below the shoulder.

      Cordova brought suit against Peavey and the manufacturer of the grain

auger, Poarch Brothers, Inc. SOS intervened in the action as a party-plaintiff.

The district court ultimately granted judgment in favor of Peavey and against

Cordova and SOS based on the exclusivity provisions of the New Mexico

Workman’s Compensation Act, N.M. Stat. Ann. §§ 52-1-6(D) and (E), 52-1-8,

and 52-1-9. Cordova v. Peavey Co. , 273 F. Supp. 2d 1213, 1216, 1220 (D.N.M.

2003). The district court subsequently granted a default judgment against Poarch

Brothers and in favor of Cordova in the amount of $3,803,593.44.




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                                        II.

                                    Discussion

      We recently reiterated our standard of review in a diversity case involving a

grant of summary judgment:

      We review the district court’s grant of summary judgment de novo,
      applying the same legal standards used by that court. Summary
      judgment should not be granted unless the evidence, viewed in the
      light most favorable to the party opposing the motion, shows there
      are no genuine issues of material fact and the moving party is due
      judgment as a matter of law. When, as here, a federal court is
      exercising diversity jurisdiction, it must apply the substantive law of
      the forum state, here, New Mexico. We review the district court’s
      determination of New Mexico law de novo.

Kysar v. Amoco Prod. Co., 379 F.3d 1150, 1155 (10th Cir. 2004) (quotations and

citations omitted).

      The only issue properly on appeal is whether the district court erred in not

applying certain exceptions to the exclusivity rule that were established by the

Supreme Court of New Mexico in     Delgado v. Phelps Dodge Chino, Inc.   , 34 P.3d

1148 (N.M. 2001). Although Cordova has also briefed the issue of whether

Peavey may claim the benefit of the worker’s compensation exclusivity provisions

as either a special or general employer, Cordova’s notice of appeal states that he

appeals from the district court’s order of July 16, 2003. That order addressed

only the Delgado issue and, consequently, we do not have jurisdiction to review




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any issues other than the   Delgado issue. 1 See Averitt v. Southland Motor Inn of

Okla. , 720 F.2d 1178, 1180-81 (10th Cir. 1983) (“[A]n appellate court has

jurisdiction to review only the judgment or part of the judgment designated in the

notice of appeal. Although we construe notices of appeal liberally in order to

avoid denying review of issues that the parties clearly intended to appeal, we may

not disregard the plain requirements of the rule and read into the notice something

that is not there.”) (quotations and citations omitted);   Foote v. Spiegel , 118 F.3d

1416, 1422 (10th Cir. 1997) (same). Thus, we turn our attention to       Delgado .

       In Delgado , a supervisor ordered Delgado to remove a fifteen-foot iron

cauldron brimming over with molten slag, without shutting down a furnace or

otherwise correcting an especially dangerous emergency condition that caused

additional slag to continue flowing. 34 P.3d at 1151. Although Delgado

protested the orders, and informed the supervisor that he was not qualified or

competent to perform the removal        because he had never operated a kress-haul (a

special truck for removing the cauldron) alone under runaway conditions, the

supervisor insisted he proceed.      Id. Delgado “emerged from the smoke-filled

tunnel, fully engulfed in flames,” suffering third-degree burns over his entire


1
        Even if we had jurisdiction to review Cordova’s arguments regarding
Peavey’s status, we note that Vigil v. Digital Equipment Corp. , 925 P.2d 883,
886-87 (N.M. Ct. App. 1996), and    Rivera v. Sagebrush Sales, Inc. , 884 P.2d 832,
834-36 (N.M. Ct. App. 1994), would appear to require an affirmance of the
district court’s decision.

                                              -5-
body. Id. He later died of his injuries.   Id. To address the egregious

circumstances of this incident, and to bring parity to the New Mexico Worker’s

Compensation Act, the Delgado court held that the exclusivity provision cannot

bar a worker’s tort claims against an employer where: (1) the employer “engages

in an intentional act or omission, without just cause or excuse, that is reasonably

expected to result in the injury suffered by the worker”; (2) the employer “expects

the intentional act or omission to result in the injury, or has utterly disregarded

the consequences”; and (3) the employer’s intentional act or omission is the

proximate cause of the employee’s injury. 34 P.3d at 1155-56.

       The Court of Appeals of New Mexico recently interpreted       Delgado in

Morales v. Reynolds , 97 P.3d 612, (N.M. Ct. App.),     cert. denied , No. 28,785

(N.M. 2004). Relying in part on the district court’s opinion in the present case,

Cordova , 273 F. Supp. 2d 1213, the    Morales court held:

       [T]he mere assertion that the employer did or did not do something
       that somehow led to the injurious event is not adequate to meet the
       requirements of Delgado . . . . Negligence on the part of the
       employer does not expose the employer to tort liability, just as
       negligence on the part of the worker does not preclude relief under
       the Act.

97 P.3d at 616. The court determined that, to establish a    Delgado claim, a

plaintiff must: (1) “plead and show that ‘a reasonable person would expect the

injury suffered by the worker to flow from the intentional act or omission’”; and

(2) in the context of summary judgment, provide evidence of the employer’s

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subjective state of mind, which may be done “by showing that the employer never

considered the consequences of its actions or that the employer considered the

consequences and expected the injury to occur.”      Id. at 616-17 (quoting Delgado ,

34 P.3d at 1156) . In addition, to survive a pre-trial dispositive motion, a plaintiff

must show that “the employer met each of the three      Delgado elements through

actions that exemplify a comparable degree of egregiousness as the employer in

Delgado .” Id. at 617. The court then considered the cases of a plaintiff who was

injured when his protective gear malfunctioned and a plaintiff who was injured

while working without safety equipment and determined that neither of them rose

to the level of Delgado . Id. at 617-19.

      Cordova’s case is much more similar to the situations discussed in       Morales

than it is to Delgado . The acts and omissions of which Cordova complains

(including failure to install safety devices, failure to insist on certain safety

practices, failure to train, and failure to supervise) do not rise to the level of the

employer’s actions in Delgado . At most, such actions were negligent.       See id. at

618 (“There is no indication that [defendants] knew or should have known that

their actions were the equivalent of sending Morales into certain severe injury or

death.”), 619 (“[T]here is no indication that the failure to provide safety devices

was anything but negligent in this case.”). In addition, as Cordova admits, no one

directed him to service or operate the grain auger on the day he was injured (Aplt.


                                           -7-
App. at 232, 236), and no one required or directed him to remove the twine or

grain from the grain auger (Aplt. App. at 244-45, 246)      . Consequently, there is no

proximate cause between any intentional conduct by Peavey and Cordova’s injury.

See Morales , 97 P.3d at 618 (“The acts or omissions that Morales argues did not

cause the injurious event in the way that the acts of the employer in    Delgado

caused Delgado to be set on fire.”).

       For these reasons, the judgment of the district court is AFFIRMED.

                                                         Entered for the Court



                                                         William J. Holloway, Jr.
                                                         Circuit Judge




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