This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 PATRICK WELLS, LAURA 7 WELLS, and ROBERT RIVERA, 8 Plaintiffs-Appellants, 9

v. NO. 31,134 10 FULFER OIL & CATTLE COMPANY, 11 LLC, and GREGGORY FULFER, a/k/a 12 GREGG FULFER, 13 Defendants-Appellees. 14 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 15 Steven L. Bell, District Judge 16 Templeman and Crutchfield 17 C. Barry Crutchfield 18 Lovington, NM 19 Curtis L. Marsh 20 Dallas, Texas 21 for Appellants 22 Beall & Biehler 23 Josh A. Harris 24 Albuquerque, NM 25 for Appellees 262 MEMORANDUM OPINION 1 VANZI, Judge. 2 Plaintiffs appeal from the district c ourt’s orders granting summary judgment on 3 all issues in favor of Defe ndants and denying Plaintiffs’ motion to reconsider, ruling 4 that the exclusivity provisions of th e Workers’ Compensation Act (WCA) bar 5 Plaintiffs’ tort claims. Unpersuaded by Pl aintiffs’ arguments that summary judgment 6 was inappropriate, we issued a notice of proposed summary disposition, proposing to 7 affirm. Defendants filed a me morandum in support of our notice, and Plaintiffs filed 8 a memorandum in opposition to our notice. We have considered both responses and 9 remain persuaded that summary judgmen t was proper. We therefore affirm. 10 On appeal, Plaintiffs argue that the district court erred by ruling that Plaintiffs 11 did not allege sufficient facts to support th eir theory that Fulf er Oil & Cattle (Fulfer 12 Oil) was not immune from tort liability under the “dual persona” doctrine and that 13 genuine issues of material fact regarding the dual persona doctrine should have 14 precluded summary judgment. [DS 13-14; MIO 2-7] Plaintiffs’ response to our 15 notice argues that we confused the doctrine of “dual capacity” for the doctrine of 16 “dual persona.” [MIO 1-2] They also argue that Salswedel v. Enerpharm, Ltd. , 107 173 N.M. 728, 764 P.2d 499 (Ct. App. 1988), controls the analysis. [M IO 2] Plaintiffs 1 have not convinced us that our analysis is incorrect or that they established a genuine 2 issue of material fact. 3 Plaintiffs’ response seems to indicate th at the “dual persona” doctrine involves 4 only a “separate legal status.” [MIO 2] To the contrary, “[u]nder the ‘dual persona’ 5 doctrine, an employer may become a third person, vulnerable to a tort suit by an 6 employee, if, and only if, he possesses a s econd persona complete ly independent from 7 and unrelated to his status as employer[,]” and the injury incurred was unrelated to the 8 employment relationship. Salswedel , 107 N.M. at 730-31, 764 P.2d at 501-02 (noting 9 that the “crucial determination is whether an employment relationship existed between 10 [the parties]”). Plaintiffs have not estab lished a role or second persona for Fulfer Oil 11 or Gregg Fulfer that is completely independent from and unrelated to their status as 12 employer and have established no facts to indicate that the injury incurred was 13 unrelated to the employment relationship. Plaintiffs’ factual assertions indicate only 14 that Gregg Fulfer was not Plaintiffs’ only supervisor. [MIO 3-4] This is not sufficient 15 to demonstrate a dual persona that would fit within an exception to the exclusivity 16 provisions of the WCA. See Garrity v. Overland Sheepskin Co. , 1996-NMSC-032, 17 ¶ 40, 121 N.M. 710, 917 P.2d 1382. 184 It appears that Plaintiffs seek to avoid the WCA’s exclusivity by attempting to 1 distinguish Fulfer Oil from a statutory employer and characterize 3-K Oil and Gas 2 Services (3-K) as an independent contractor. See Hamberg v. Sandia Corp. , 3 2008-NMSC-015, ¶ 9, 143 N.M. 601, 179 P.3d 1209 (“A statutory employment 4 relationship exists when any employer procures any work to be donewholly or in part 5 for him by a contractor other than an indepe ndent contractor and the work so procured 6 to be done is a part or process in th e trade or business or undertaking of such 7 employer.” (alteration, intern al quotation marks and citati on omitted)). We base our 8 understanding of Plaintiffs’ arguments on whatthey characterize as material factual 9 issues. 10 Plaintiffs contend that they established the following factual issues surrounding 11 the role of and control exercised by Gregg Fulfer and Fulfer Oil over Plaintiffs: (1) 3- 12 K personnel was hired to erect the storag e tanks for Fulfer Oil with all other 13 operations of Fulfer Oil left to its ow n personnel; (2) Mr. Haddox, not Gregg Fulfer, 14 was the supervisor of 3-K on the installati on of the storage tanks; and (3) Gregg Fulfer 15 did not perform actual day-to-day work for 3-K. [MIO 2-4] 16 Plaintiffs’ factual assertions that 3-K was not their only employer do not 17 indicate that 3-K was an independent contr actor. “An independent contractor is a 18 person who contracts with another to do something for him but who is not controlled 195 by the other nor subject to the other’s rightto control with re spect to his physical 1 conduct in the performance of the undertaking.” Chavez v. Sundt Corp. , 2 1996-NMSC-046, ¶ 9, 122 N.M. 78, 920 P.2d 1032 (internal quotation marks and 3 citation omitted). The standard for an indepe ndent contractor doe s not test the extent 4 to which Fulfer Oil or Gregg Fulfer exerci sed control over Plaintiffs or whether they 5 actually supervised the day-to-day installation of the storage tanks. Rather, the 6 standard looks at the totality of the circumstances “in determining whether the 7 employer has the right to exercise essential control over th e work . . . including but not 8 limited to . . . direct evidence of the exerciseof control, or the right to terminate the 9 employment relationship at will, by either pa rty, and without liability . . . whether or 10 not the work is a part of the employer’s regular business, and a host of other 11 factors[.]” Id. ¶ 10 (internal quotation marks, and citations omitted). 12 Plaintiffs have not alleged any facts th at would indicate that Gregg Fulfer or 13 Fulfer Oil had no right to exercise control over Plaintiffs or the work they were doing 14 when they were injured. As the notice stated and is not disputed by Plaintiffs, Gregg 15 Fulfer owns both Fulfer Oil and 3-K; hewas the employer and overall supervisor of 16 all employees of Fulfer Oil and 3-K with th e power to hire and fire the employees at 17 will. [RP 140; CN 3-4] 3-K does not produce any goods itself; it performs services 18 as a subcontractor for oil production co mpanies on their property and at their 196 direction, including lease operation and tank installation and maintenance. [RP 140] 1 As part of its operations, Fulfer Oil hired 3-K to install four oil storage tanks and to 2 conduct their maintenance and daily lease operation, which Plaintiffs did at the 3 direction of Gregg Fulfer on behalf of Fulfer Oil. [Id.] Plaintiffs were injured in an 4 accidental explosion during the installation of a catwalk on top of an oil storage tank, 5 while they were employed by 3-K and contr acted by Fulfer Oil to perform this work 6 on Fulfer Oil’s property. [Id. ; DS 9] Just because Plaintiffs had a supervisor at 3-K 7 does not mean that Gregg Fulfer, owner and controller of 3-K, or Fulfer Oil, also 8 owned and controlled by Gregg Fulfer, had no right to exercise control over Plaintiffs 9 who are employees of 3-K. No reasonable view of the undisputed facts would 10 indicate that 3-K was an independent contr actor. Rather, the facts indicate that 3-K 11 was a subcontractor. See Chavez , 1996-NMSC-046, ¶ 9 (“When a subcontractor is 12 employed to perform services in the affair s of another and who with respect to the 13 physical conduct in the performance of the serv ices is subject to the other’s control or 14 right to control, the subcontractor is notan independent contractor.” (internal 15 quotation marks and citation omitted)). 16 We believe that Gregg Fulfer and Fulf er Oil were properly characterized as 17 statutory employers and therefore immune from tort liability under the WCA’s 18 exclusivity provisions. See Hamberg , 2008-NMSC-015, ¶ 9. For these reasons and 197 those stated in our notice, we affirm the district court’s order granting summary 1 judgment in favor of Defendants. 2 IT IS SO ORDERED. 3

__________________________________ 4 LINDA M. VANZI, Judge 5

WE CONCUR: 6

_________________________________ 7 JONATHAN B. SUTIN, Judge 8

_________________________________ 9 TIMOTHY L. GARCIA, Judge 10