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

unanimously that oral argument would not materially assist the determination of

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. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

F I LED

United States Court of Appeals

Tenth Circuit

March 28, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JOE BROCK, individually and on

behalf of all similarly situated

persons; SANDRA MCCULLOUGH,

 Plaintiffs,

 and

VINCE DIMARCO,

 Plaintiff-Appellant,

 v.

PRESBYTERIAN HEALTHCARE

SERVICES, INC.,

 Defendant-Appellee.

No. 06-2192

(D.C. No. CV-99-189 MV/RHS)

(D. N.M.)

ORDER AND JUDGMENT

*

Before LUCERO, BRORBY, and McCONNELL, Circuit Judges.
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Vince DiMarco appeals the district court’s grant of summary judgment in

favor of Presbyterian Healthcare Services, Inc. DiMarco brought suit against

Presbyterian under 31 U.S.C. § 3730(h) of the Federal False Claims Act, alleging

that Presbyterian retaliated against him for reporting its fraudulent activities. 

Specifically, DiMarco claimed that Presbyterian provided misleading, defamatory,

and false employment information to a prospective employer, thereby causing him

to lose a job offer. In its summary judgment ruling, the district court held that

DiMarco granted Presbyterian absolute immunity from suit by signing a release

that authorized the disclosure of his employment history. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.

I. Facts and Proceedings

DiMarco is a physician’s assistant who formerly worked at one of

Presbyterian’s hospitals, Lincoln County Medical Center (LCMC). After learning

that patients at LCMC were being billed for services they did not receive,

DiMarco initiated a qui tam suit and resigned. That suit was eventually settled,

and some three years later, DiMarco obtained a provisional offer of employment

at another hospital, Gerald Champion Regional Medical Center (GCRMC). The

job offer from GCRMC was contingent upon receipt of DiMarco’s employment

history at LCMC. To facilitate the transfer of this information, DiMarco signed

releases authorizing the disclosure of his employment history to GCRMC. 
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After receiving DiMarco’s information, GCRMC opted not to hire him. Its

decision was based in part on a form entitled, “Hospital Affiliation Evaluation.” 

Aplee. Suppl. App. at 45-46. On this form, Presbyterian disclosed, among other

things, that “[DiMarco] terminated 9/30/00,” failed to “continuously render[] the

level of care established by [LCMC],” and “had to be counseled regarding patient

relations with inadequate improvement.” Id. Asserting that these representations

were false, deliberately misleading, and in retaliation for his filing of the earlier

qui tam suit, DiMarco sought relief under the False Claims Act’s whistleblower

provision, 31 U.S.C. § 3730(h). 

The district court rejected DiMarco’s contention, however, ruling that he

consented to Presbyterian’s disclosures by signing a broad Release and Immunity. 

The court held that by signing the release, DiMarco extended absolute immunity

to Presbyterian and thereby relinquished his right to sue for retaliation. 

Additionally, because the language in the release was clear and unambiguous, the

court declined to consider whether another release signed by DiMarco limited

Presbyterian’s immunity to disclosures made in good faith. Hence, the court

granted summary judgment in favor of Presbyterian. 

DiMarco subsequently filed this appeal. First, he claims he intended to

release Presbyterian only for disclosures made in good faith. Second, he argues

the district court improperly cited a case that has been superseded by statute. 

Third, he claims Presbyterian violated the implied covenant of good-faith and fair
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dealing. And finally, DiMarco contends Presbyterian possessed at most a

conditional privilege, which it lost by providing false information. 

II. Analysis

We review the district court’s grant of summary judgment de novo to

determine whether a genuine issue of material fact exists, viewing the record in

the light most favorable to the non-moving party, DiMarco. Campbell v. Gambro

Healthcare, Inc., ___ F.3d ___, No. 06-3062, 2007 WL 706934, at *4 (10th Cir.

Mar. 9, 2007). 

A. 

DiMarco first claims the district court erred in concluding that Presbyterian

was absolutely immune from suit. His position is essentially that he did not

intend to be bound by the terms of the Release and Immunity, but rather by the

terms of another release providing for only good-faith disclosures. This

“good-faith” release, DiMarco argues, limited Presbyterian’s immunity to

good-faith disclosures. 

Before addressing DiMarco’s contention, however, we first examine New

Mexico’s law governing the disclosure of employment information. Courts in

New Mexico have established that where an employee consents to the release of

information, a former employer enjoys absolute immunity from suit. Baker v.

Bhajan, 871 P.2d 374, 377-78 (N.M. 1994); Gengler v. Phelps, 589 P.2d 1056,

1057-58 (N.M. Ct. App. 1978). This rule is predicated on the notion that “[i]n the
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business and professional world, public policy necessitates the disclosure of an

employee’s prior services when inquiry is made with the consent of the

employee.” Gengler, 589 P.2d at 1058. By contrast, where an employee has not

consented to the release of his employment information, a former employer has a

qualified privilege to release information “if for a proper purpose and to one

having a legitimate interest in the statements.” Baker, 871 P.2d at 378 (citation

omitted). This qualified privilege attaches “to protect from liability those who,

for the purpose of furthering the interest in question, give information which,

without their knowledge or reckless disregard as to its falsity, is in fact untrue.” 

Gengler, 589 P.2d at 1058 (quotation omitted). 

Applying these principles to the case before us, we conclude that by

signing the Release and Immunity, DiMarco granted Presbyterian absolute

immunity from suit. The express terms of the release provide, “I extend absolute

immunity to, release from any liability, including civil liability, and agree not to

sue . . . any third parties . . . for any actions, recommendations, reports,

statements[,] communications, or disclosures.” Aplt. App. at 41. It continues, “I

also expressly authorize said third parties to release this information to [GCRMC]

and its authorized representative upon request.” Id. Lastly, the Release and

Immunity defines the term “third parties” to mean “all individuals from whom

information has been requested.” Id. This unambiguous, all-inclusive language

denotes the broad scope of DiMarco’s consent, see Baker, 871 P.2d at 377, and
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clearly manifests his intent to grant absolute immunity to third parties such as

Presbyterian.

Still, DiMarco insists that he intended to release Presbyterian only for

disclosures made in good faith. To substantiate this claim, he offers the

deposition testimony of GCRMC’s medical staff coordinator, Diane Melendrez,

and argues it shows that GCRMC used only the so-called “good-faith” release

when obtaining information from other facilities. We need not consider this

evidence because the Release and Immunity clearly and unambiguously manifests

his intent. See Montoya v. Villa Linda Mall, Ltd., 793 P.2d 258, 259 (N.M. 1990)

(“absent an ambiguity, a court is bound to interpret and enforce a contract’s clear

language”). Nevertheless, our review of this testimony indicates that

Ms. Melendrez used the good-faith release interchangeably with the Release and

Immunity for purposes of convenience. Indeed, when asked if only the good-faith

release would be provided to LCMC, Ms. Melendrez replied, “It’s just more

convenient for me to have a separate release that [applicants] sign so that I can

just send it instead of having to copy this part of their application.” Aplee. Suppl.

App. at 49. Although she acknowledged that the good-faith release was “to be

used to obtain information from other facilities,” id., she maintained that she has

also used the Release and Immunity to do so as well. Construing this testimony

in the light most favorable to DiMarco, we fail to see how it demonstrates his

intent to limit Presbyterian’s immunity, or his intent not to be bound by the terms
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of the Release and Immunity. His argument ignores the plain provisions of that

contract, as well as New Mexico’s law granting employers absolute immunity

where an employee consents to the disclosure of his employment information. 

Accordingly, we conclude that by signing the Release and Immunity, DiMarco

granted Presbyterian absolute immunity for all disclosures concerning his

employment history.

B.

Nevertheless, DiMarco challenges the district court’s summary judgment

ruling by arguing that the court relied on superseded authority. He argues that

Baker v. Bhajan, 871 P.2d 374 (N.M. 1994), which was cited by the district court,

was effectively overruled by New Mexico’s employer immunity statute, N.M.

Stat. § 50-12-1. To support this proposition, he points out that N.M. Stat.

§ 50-12-1 was enacted in the legislative session following Baker, demonstrating

that New Mexico’s legislature intended to overrule that decision.

N.M. Stat. § 50-12-1 is the statutory embodiment of New Mexico’s

common-law qualified privilege that attaches to good-faith disclosures. See Davis

v. Bd. of County Comm’rs, 987 P.2d 1172, 1182 (N.M. Ct. App. 1999) (“The

statute would appear to track much of the common-law privilege relating to

defamation and good-faith comments in the employment context.”); see also

Lawrence L. Summers, Wrongful Discharge: Contract, Public Policy, and Tort

Claims, 663 PLI/Lit 9, 110-11 (2001) (citing both N.M. Stat. § 50-12-1 and Baker
-8-

to explain that “many states have enacted legislation to shield employers from

statements made in employee references,” but “a signed release acts as a consent

to statements made to prospective employers and holds them absolutely

privileged”). The statute provides:

When requested to provide a reference on a former or current

employee, an employer acting in good faith is immune from liability

for comments about the former employee’s job performance. The

immunity shall not apply when the reference information supplied

was knowingly false or deliberately misleading, was rendered with

malicious purpose or violated any civil rights of the former

employee.

N.M. Stat. § 50-12-1. 

As DiMarco correctly points out, N.M. Stat. § 50-12-1 was enacted in 1995,

one year after Baker was decided. But nothing in the language of the statute

indicates that it was intended to overrule Baker or its rule that absolute immunity

attaches when the parties so contract. “A statute will be interpreted as

supplanting the common law only if there is an explicit indication that the

legislature so intended.” Sims v. Sims, 930 P.2d 153, 158 (N.M. 1996) (citation

omitted). Given the absence of any such indication, we decline to divine a

legislative intent to overrule Baker.

C.

DiMarco also contends Presbyterian violated the implied covenant of good

faith and fair dealing by deliberately disclosing false and misleading information. 

“Generally, in the absence of an express provision on the subject, a contract
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contains an implied covenant of good faith and fair dealing between the parties.” 

Kropinak v. ARA Health Servs., Inc., 33 P.3d 679, 681 (N.M. Ct. App. 2001)

(citations omitted). But an implied covenant of good faith and fair dealing cannot

override the express provisions of a contract. Melnick v. State Farm Mut. Auto

Ins. Co., 749 P.2d 1105, 1109-10 (N.M. 1988). Here, DiMarco signed a release

extending absolute immunity to third parties such as Presbyterian for any

disclosures, and the implied covenant of good faith and fair dealing cannot

counteract those express terms. Additionally, the covenant is “breached only

when a party seeks to prevent the contract’s performance or to withhold its

benefits from the other party.” Azar v. Prudential Ins. Co. of America, 68 P.3d

909, 925 (N.M. Ct. App. 2003). As DiMarco admits, Presbyterian “was not a

party to any of the releases.” Aplt. Br. at 9. Consequently, it cannot be said to

have violated an implied covenant of a contract to which it was not a party.

D.

Finally, DiMarco argues that Presbyterian possessed no more than a

conditional privilege, which it lost by making false disclosures. This argument is

foreclosed, however, because we have already concluded that Presbyterian

enjoyed absolute immunity.
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III. Conclusion

The judgment of the district court is AFFIRMED.

Entered for the Court

Michael W. McConnell

Circuit Judge