NM Stat § 52-1-8 (2021)
2021 New Mexico Statutes|Chapter 52 - Workers' Compensation|Article 1 - Workers' Compensation|Section 52-1-8 - Defenses to action by employee.

In an action to recover damages for a personal injury sustained by an employee while engaged in the line of his duty as such or for death resulting from personal injuries so sustained in which recovery is sought upon the ground of want of ordinary care of the employer, or of the officer, agent or servant of the employer, it shall not be a defense: A. that the employee, either expressly or impliedly, assumed the risk of the hazard complained of as due to the employer's negligence; B. that the injury or death was caused, in whole or in part, by the want of ordinary care of a fellow servant; and C. that the injury of [or] death was caused, in whole or in part by the want of ordinary care of the injured employee where such want of care was not willful. Any employer who has complied with the provisions of the Workers' Compensation Act relating to insurance or any of the employees of the employer, including management and supervisory employees, shall not be subject to any other liability whatsoever for the death of or personal injury to any employee, except as provided in the Workers' Compensation Act, and all causes of action, actions at law, suits in equity, and proceedings whatever, and all statutory and common-law rights and remedies for and on account of such death of, or personal injury to, any such employee and accruing to any and all persons whomsoever, are hereby abolished except as provided in the Workers' Compensation Act. History: Laws 1937, ch. 92, § 3; 1941 Comp., § 57-905; 1953 Comp., § 59-10-5; Laws 1971, ch. 253, § 2; 1973, ch. 240, § 3; 1989, ch. 263, § 6. ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law. Compiler's notes. — The New Mexico Rules of Civil Procedure for the district courts now provide for only one form of action, known as "civil action." See Rule 1-002 NMRA. I. GENERAL CONSIDERATION.Act not invalid class legislation. — Contention that insofar as negligent employers are relieved from the burden of contribution the Workmen's [Workers'] Compensation Act is exemplary of invalid class legislation is devoid of merit. Beal v. Southern Union Gas Co., 1956-NMSC-113, 62 N.M. 38, 304 P.2d 566. Limitation on employer liability not violative of equal protection. — The fact that wrongful death actions against employers by survivors of employees killed in the scope of their employment are not allowed, while wrongful death actions are allowed if the employee was killed outside the scope of his employment, does not render the section violative of equal protection. Sanchez v. M.M. Sundt Constr. Co., 1985-NMCA-087, 103 N.M. 294, 706 P.2d 158. Proceedings under Workmen's [Workers'] Compensation Act are exclusive, completely preempting any other action than is set out in the act. Sanchez v. Hill Lines, Inc.,123 F. Supp. 42 (D.N.M. 1954). Act's remedy exclusive. — Once the Workmen's [Workers'] Compensation Act provides a remedy, that act is exclusive and the claimant has no right to bring an action in common-law negligence against his employer. Galles Chevrolet Co. v. Chaney, 1979-NMSC-027, 92 N.M. 618, 593 P.2d 59. Election of remedies. — Worker's compensation and tort claims are inconsistent remedies. Whether the doctrine of election of remedies applies depends upon whether plaintiff has made a choice of one of these remedies. Romero v. J.W. Jones Constr. Co., 1982-NMCA-140, 98 N.M. 658, 651 P.2d 1302. The acceptance of compensation and medical benefits cannot be held to be an election to pursue a remedy under the worker's compensation statute if the plaintiff is unaware that he is receiving benefits under the compensation statute. Romero v. J.W. Jones Constr. Co., 1982-NMCA-140, 98 N.M. 658, 651 P.2d 1302. Workmen's [Workers'] Compensation Act is compulsory, not elective, and compliance may be accomplished by filing an undertaking in the nature of insurance, by filing a certificate in evidence thereof, or by qualifying as a self-insurer; the failure of an employer to comply in any way constitutes a violation of the act and subjects him to a claim in tort for negligence by an employee. Montano v. Williams, 1976-NMCA-017, 89 N.M. 86, 547 P.2d 569, aff'd, 1976-NMSC-022, 89 N.M. 252, 550 P.2d 264. Purpose of workmen's [workers'] compensation laws is to provide not only for employees a remedy which is both expeditious and independent of proof of fault, but also for employers a liability which is limited and determinate. Sanchez v. Hill Lines, Inc., 123 F. Supp. 42 (D.N.M. 1954). Employee not liable for injury or death of co-employee. — Under the act, an employee of an employer who has complied with the requirements of the act is not subject to liability under the common law for the injury or death of a co-employee. Matkins v. Zero Refrigerated Lines, 1979-NMCA-095, 93 N.M. 511, 602 P.2d 195. Employee's immunity extends to all causes of action. — The immunity of an employee for an injury done to a fellow employee is not limited to negligent injury; rather, the provisions of the Workmen's [Workers'] Compensation Act accord immunity for all causes of action, all common-law rights and remedies, for negligence or wrong, including intentional torts. Gallegos v. Chastain, 1981-NMCA-014, 95 N.M. 551, 624 P.2d 60. Section has no application to occupation excepted from act. — Defendant-employers in negligence action by farm laborer are not barred by this section of the Workmen's [Workers'] Compensation Act from relying on the common-law defenses of contributory negligence and assumed risk, because this section can have no application to an occupation that is excepted from the act, and supreme court has held it does not apply to employers of farm and ranch labor. Thompson v. Dale, 1955-NMSC-040, 59 N.M. 290, 283 P.2d 623. Claim must be against employer. — Claims based on the Occupational Disease Disablement Act or Workers' Compensation Act can be raised only against an employer. Garrity v. Overland Sheepskin Co., 1996-NMSC-032, 121 N.M. 710, 917 P.2d 1382. Injury subsequent to discharge. — The Workers' Compensation Act (Chapter 52, Article 1 NMSA 1978) is not automatically terminated by the firing or quitting of an employee, but applies to injury occurring during a reasonable period while employee winds up affairs and leaves premises. Martin-Martinez v. 6001, Inc., 1998-NMCA-179, 126 N.M. 319, 968 P.2d 1182, cert. denied, 126 N.M. 532, 972 P.2d 351 (1998). Amnesty to employer where no express indemnity contract. — The exclusive remedy provision of the Workmen's [Workers'] Compensation Act grants amnesty to an employer for all causes of action relating to employees' injuries, regardless of the question of independent breach of duty, where there is no express contract of indemnity. Royal Indem. Co. v. Southern Cal. Petroleum Corp., 1960-NMSC-053, 67 N.M. 137, 353 P.2d 358. Silicosis not injury by accident. — Silicosis acquired over a period of years and without the element of excessive exposure and sudden and unexpected occurrence of injury or illness is an occupational disease and not an injury by accident. Aranbula v. Banner Mining Co., 1945-NMSC-032, 49 N.M. 253, 161 P.2d 867. Worker's claim for intentional spoliation of evidence against his employer was not barred by the act's exclusive remedy provisions. Coleman v. Eddy Potash, Inc., 1995-NMSC-063, 120 N.M. 645, 905 P.2d 185. II. EMPLOYER LIABILITY.A. IN GENERAL.Workmen's [Workers'] Compensation Act does not look to fault of employer; instead, the employer is liable to the employee for compensation if the conditions of 52-1-9 NMSA 1978 are met. Taylor v. Delgarno Transp., Inc., 1983-NMSC-052, 100 N.M. 138, 667 P.2d 445. Workmen's [Workers'] Compensation Act abrogates or modifies the Joint Tortfeasor's Contribution Act to the extent that it has application to the liability of an employer to an employee. If the basis for employer's liability is the injuries to its employee, it is limited by the Workmen's [Workers'] Compensation Act, and there can be no contribution. Beal v. Southern Union Gas Co., 1956-NMSC-113, 62 N.M. 38, 304 P.2d 566. The New Mexico Workmen's [Workers'] Compensation Act abrogates the New Mexico Joint Tort-feasor's Contribution Act. Hill Lines v. Pittsburg Plate Glass Co., 222 F.2d 854 (10th Cir. 1955). For an injury to be compensable, it must arise out of and in the course of employment and not willfully suffered or intentionally inflicted. Gough v. Famariss Oil & Ref. Co., 1972-NMCA-045, 83 N.M. 710, 496 P.2d 1106, cert. denied, 83 N.M. 698, 496 P.2d 1094. Must be accidental injury to permit recovery. — Statutes require that there must be an injury caused by accident, an "accidental injury" to permit recovery. Aranbula v. Banner Mining Co., 1945-NMSC-032, 49 N.M. 253, 161 P.2d 867. Accidental injuries may arise without the usually attending factors of narrow limits of time for the beginning and completion of the injury, or without unusual, or extraordinary conditions of employment not common to others, but there must be an accident, as distinguished from common occupational, or industrial, sickness or disease. Aranbula v. Banner Mining Co., 1945-NMSC-032, 49 N.M. 253, 161 P.2d 867. The term "injury by accident" as employed in the section means nothing more than an accidental injury, or an accident, as the word is ordinarily used; it denotes an unlooked for mishap, or an untoward event which is not expected or designed. Aranbula v. Banner Mining Co., 1945-NMSC-032, 49 N.M. 253, 161 P.2d 867 (decided under former law). Want of ordinary care means negligent conduct on the part of employee. Gough v. Famariss Oil & Ref. Co., 1972-NMCA-045, 83 N.M. 710, 496 P.2d 1106, cert. denied, 83 N.M. 698, 496 P.2d 1094. Employer may voluntarily relinquish statutory protection of limited liability. — Although the workmen's [workers'] compensation statute affords an employer release from unlimited liability in exchange for a limited amount of compensation for the injured employee, if the employer desires to voluntarily relinquish his statutory protection, he may do so. City of Artesia v. Carter, 1980-NMCA-006, 94 N.M. 311, 610 P.2d 198, cert. denied, 94 N.M. 628, 614 P.2d 545. Legislature intended to declare void any contract provisions which seek to impose additional liability on an employer. Gulf Oil Corp. v. Rota-Cone Field Operating Co., 1972-NMCA-167, 84 N.M. 483, 505 P.2d 78, writ quashed, 85 N.M. 636, 515 P.2d 640 (1973). Limitation of employer's liability for injuries sustained by employee covered by the Workmen's [Workers'] Compensation Act covers all instances where that injury is sought to be made the basis for further and additional liability by the employee or others in his behalf, and indirect liability for such injury is also foreclosed both by the terms of the act and because the employer's liability for such injury is not in tort. Beal v. Southern Union Gas Co., 1956-NMSC-113, 62 N.M. 38, 304 P.2d 566. Employer is not subject to liability in addition to Workmen's [Workers'] Compensation Act even where the employer voluntarily enters into a contract which also seeks indemnity. Gulf Oil Corp. v. Rota-Cone Field Operating Co., 1972-NMCA-167, 84 N.M. 483, 505 P.2d 78, writ quashed, 85 N.M. 636, 515 P.2d 640 (1973). Standard in New Mexico for foreclosure of employee's common-law tort remedies is whether the employer has substantially complied with the Workmen's [Workers'] Compensation Act. Strict compliance is not necessary, but failure of an employer to substantially comply with the act constitutes a violation of the act and subjects him to a claim for negligence by an employee. Williams v. Montano, 1976-NMSC-022, 89 N.M. 252, 550 P.2d 264. Where an employer did not substantially comply with the filing provisions of the Workers' Compensation Act, the exclusive remedy provisions of this section and 52-1-6 and 52-1-9 NMSA 1978 did not apply to bar a wrongful death action against the employer. Peterson v. Wells Fargo Armored Servs. Corp., 2000-NMCA-043, 129 N.M. 158, 3 P.3d 135, cert. denied, 129 N.M. 207, 4 P.3d 35. No compensable disability for impairment unconnected with injury. — If a claimant, through voluntary conduct unconnected with his injury, takes himself out of the labor market or if he, after injury, resumes employment and is fired for misconduct, his impairment playing no part in the discharge, there is no compensable disability. Aranda v. Mississippi Chem. Corp., 1979-NMCA-097, 93 N.M. 412, 600 P.2d 1202, cert. denied, 93 N.M. 683, 604 P.2d 821. No evidence connecting disability with old injury. — Where defendant alleged that plaintiff's condition was caused by disability resulting from old injury, instead of injury received while working for defendant, evidence produced by defendant that two injuries were not in the same location and that plaintiff could not have performed heavy physical labor, in which he was engaged prior to second injury, if he had not fully recovered from old injury, did not sustain such allegations, where there was no substantial evidence connecting the disability, for which plaintiff claimed compensation, with the first injury. Robinson v. Mittry Bros., 1939-NMSC-038, 43 N.M. 357, 94 P.2d 99. B. INTENTIONAL ACTS.The willfulness rule from Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148 applies retroactively and a worker may sue in tort using the willfulness test for a non-accidental injury, regardless of when the acts or omissions occurred. Padilla v. Wall Colmonoy Corp., 2006-NMCA-137, 140 N.M. 630, 145 P.3d 110, cert. denied, 2006-NMCERT-010, 140 N.M. 674, 146 P.3d 809. Applicability to intentional acts. — Exclusivity provisions of Workers' Compensation Law (Chapter 52, Article 1 NMSA 1978) apply to injury to claimant's hand caused by manager intentionally slamming locker door. Martin-Martinez v. 6001, Inc., 1998-NMCA-179, 126 N.M. 319, 968 P.2d 1182, cert. denied, 126 N.M. 532, 972 P.2d 351. Employer's awareness of task's danger. — The critical measure is whether the employer has, in a specific dangerous circumstance, required the employee to perform a task where the employer is or should clearly be aware that there is a substantial likelihood the employee will suffer injury or death by performing the task. Dominguez v. Perovich Props., Inc., 2005-NMCA-050, 137 N.M. 401, 111 P.3d 721, cert. denied, 2005-NMCERT-005, 137 N.M. 522, 113 P.3d 345. III. DEFENSES.A. IN GENERAL.Availability of common-law defenses for employer. — Under the Workmen's [Workers'] Compensation Act, where an employer is subject to the act and has failed to comply therewith, an employee who sustains compensable injuries is afforded one of two remedies: (1) maintain a civil action against the employer for damages suffered or (2) in lieu of a common-law action, apply to the district court for compensation benefits under the act. In both instances, the employer is denied the common-law defenses of contributory negligence, assumption of risk and the fellow servant rule. However, if the employer is not subject to the act, the act itself would not apply to the employer and an employer would be entitled to all common-law defenses in a common-law action for negligence brought by an employee. Arvas v. Feather's Jewelers, 1978-NMCA-075, 92 N.M. 89, 582 P.2d 1302. Assumption of risk not available as affirmative defense. — Assumption of risk is no longer recognized as an affirmative defense. What has heretofore been called "assumption of risk" can be covered entirely by the reasonable man standard of contributory negligence. If pleaded and warranted by the evidence, the ground formerly occupied by the doctrine of assumption of risk will be covered by the law pertaining to negligence and contributory negligence. Williamson v. Smith, 1971-NMSC-123, 83 N.M. 336, 491 P.2d 1147. Employers may not shift the blame for providing safety devices. — Although employer provided safety devices, shifting the blame to fellow employees' failure to properly employ safety devices is not a defense to a workers' compensation claim, which is consistent with 52-1-10 NMSA 1978, which imposes a responsibility on the employer to create a safe work environment by ensuring that safety devices are supplied and properly employed. Benavides v. Eastern N.M. Med. Ctr., 2014-NMSC-037, rev'g No. 32,450, mem. op. (N.M. Ct. App. Mar. 25, 2013) (non-precedential). Employer's responsibility to create a safe workplace. — Where employee nurse slipped and fell on a wet hospital floor, the employer hospital was prohibited from claiming, as a defense, that the custodial staff failed to employ the wet floor signs that were provided by the hospital. Benavides v. Eastern N.M. Med. Ctr., 2014-NMSC-037, rev'g No. 32,450, mem. op. (N.M. Ct. App. Mar. 25, 2013) (non-precedential). Defenses not available where employer not operating under provisions. — Where an employer did not carry workmen's [workers'] compensation insurance, nor had he relieved himself of such requirement as required by Section 52-1-4 NMSA 1978, the employer was not operating under the provisions of the act, and his employee, under such circumstances, could not have been conclusively presumed to have accepted the provisions thereof. Consequently, action at law lies in favor of the employee and against the employer, and the defenses enumerated in this section were not available to employer. Addison v. Tessier, 1957-NMSC-002, 62 N.M. 120, 305 P.2d 1067 (decided under former law). Defense of estoppel not bar to employee's action. — Employer at all times knew that he did not carry workmen's [workers'] compensation insurance and had not relieved himself of so doing as provided by the act; therefore, he is not in a position to invoke the doctrine of estoppel as a bar to employee's cause of action. Addison v. Tessier, 1957-NMSC-002, 62 N.M. 120, 305 P.2d 1067. B. DEFENSES ALLOWED."Willful" means the intentioned doing of a harmful act without just cause or excuse or an intentional act done in utter disregard for the consequences. Gough v. Famariss Oil & Ref. Co., 1972-NMCA-045, 83 N.M. 710, 496 P.2d 1106, cert. denied, 83 N.M. 698, 496 P.2d 1094. Negligent conduct not defense, but willful misconduct is. — The legislature intended this section to mean that negligent conduct of an employee which causes an injury is not a defense to a claim for workmen's [workers'] compensation, but willful misconduct is a defense. Gough v. Famariss Oil & Ref. Co., 1972-NMCA-045, 83 N.M. 710, 496 P.2d 1106, cert. denied, 83 N.M. 698, 496 P.2d 1094. Employer's avoidance of liability under act. — To escape liability an employer must show that when the wrongful act was committed, the employee had abandoned his employment and was acting for a purpose of his own which was not incident to his employment. Nichols v. United States, 796 F.2d 361 (10th Cir. 1986). In order to create estoppel by acceptance of workmen's [workers'] compensation benefits it is essential that the person against whom estoppel is claimed, should have acted with full knowledge of the facts and of his rights. Maynerich v. Little Bear Enters., Inc., 1971-NMCA-079, 82 N.M. 650, 485 P.2d 984. Equitable considerations apply to workmen's [workers'] compensation claims and defenses. Anaya v. City of Santa Fe, 1969-NMSC-025, 80 N.M. 54, 451 P.2d 303. Even though the Workmen's [Workers'] Compensation Act does not specifically provide for equitable defenses, this court has considered equitable claims and defenses in workmen's [workers'] compensation proceedings: fraud or mutual mistake, incapacity to contract, estoppel, misconduct, undue influence, misrepresentation or coercion. Anaya v. City of Santa Fe, 1969-NMSC-025, 80 N.M. 54, 451 P.2d 303. Unreasonable delay in filing claim. — Where claimant delayed six years and nine months before filing claim, the trial court correctly held that the cause was barred by unreasonable delay and laches. Anaya v. City of Santa Fe, 1969-NMSC-025, 80 N.M. 54, 451 P.2d 303. The question of whether a workmen's [workers'] compensation claim is barred by laches must be determined by the facts and circumstances in each case and according to right and justice. Anaya v. City of Santa Fe, 1969-NMSC-025, 80 N.M. 54, 451 P.2d 303. Delay in filing does not remove limitation on employer's liability. — A delay in filing, pursuant to Section 52-1-4 NMSA 1978, does not remove the limitation on the employer's liability because the statutory purpose is met when the employer obtains compensation protection for his workmen. Quintana v. Nolan Bros., 1969-NMCA-083, 80 N.M. 589, 458 P.2d 841. A delay in filing, pursuant to Section 52-1-4 NMSA 1978, does not necessarily remove the limitations on the employer's liability found in Sections 52-1-6 and 52-1-8 NMSA 1978, and this section. Quintana v. Nolan Bros., 1969-NMCA-083, 80 N.M. 589, 458 P.2d 841. Violation of specific instruction bars recovery. — Violation of specific instructions which limit the scope or sphere of work which an employee is authorized to do bars recovery of workmen's [workers'] compensation for an injury so sustained. Gough v. Famariss Oil & Ref. Co., 1972-NMCA-045, 83 N.M. 710, 496 P.2d 1106, cert. denied, 83 N.M. 698, 496 P.2d 1094. Facts constitute willful misconduct on part of employee. — Facts that an employee in the absence of an emergency (1) intentionally violated the instructions of employer by permitting someone else to drive, (2) knowing this person had engaged in drinking intoxicating beverages, (3) and intentionally permitted this person to drive a truck carrying gasoline down a mountain road with numerous hair-pin curves under very hazardous weather conditions without experience in driving this particular truck were sufficient to meet definition of willful misconduct. Gough v. Famariss Oil & Ref. Co., 1972-NMCA-045, 83 N.M. 710, 496 P.2d 1106, cert. denied, 83 N.M. 698, 496 P.2d 1094. IV. SPECIAL EMPLOYER.Special employer. — Where the plaintiff provided graphic design services to the defendant pursuant to a professional services contract between the defendant and a third party and the plaintiff controlled the details of the conceptualization, design and creation of the projects he worked on while the defendant assigned projects to the plaintiff that were limited to a description of the desired end product, monitored technical performance, and inspected and accepted the plaintiff's work, the defendant was the plaintiff's special employer. Hamberg v. Sandia Corp., 2008-NMSC-015, 143 N.M. 601, 179 P.3d 1209. Tort claim barred. — Summary judgment appropriate where temporary staffing agency employee is injured while performing a task that was not authorized or known about by his employer the injured special employee is limited to compensation under the New Mexico Workers' Compensation Act. Cordova v. Peavey Co., 273 F. Supp. 2d 1213 (D.N.M. 2003). A temporary employer was immune from a common law tort claim of a temporary employee since it met the test of special employer; it had contractually assured that the general employer would provide workers' compensation coverage, and the temporary employee had signed a contract agreeing to look to the general employer for his remedy for on-the-job injuries. Vigil v. Digital Equip. Corp., 1996-NMCA-100, 122 N.M. 417, 925 P.2d 883, cert. denied, 122 N.M. 279, 923 P.2d 1164. Employee of contractor though provided by another company. — An employee who was employed by another company which provided manpower to a contractor on a project and was subject to orders on the job from the contractor's supervisory personnel was an employee of the contractor and entitled to workmen's [workers'] compensation for injuries on the job and may not sue the contractors in tort on negligence. Shipman v. Macco Corp., 1964-NMSC-091, 74 N.M. 174, 392 P.2d 9. Liability of company hiring employees of temporary agency. — Although the injured employee in this case was directly employed by the temporary agency, the lumberyard where the employee worked is a special employer and thus is liable for workers' compensation. Since the lumberyard provided for workers' compensation coverage through its contract with the temporary agency, the employee was barred from asserting a negligence action against the lumberyard. Rivera v. Sagebrush Sales, Inc., 1994-NMCA-119, 118 N.M. 676, 884 P.2d 832, cert. denied, 118 N.M. 585, 883 P.2d 1282. Proof of special employee. — In cases where a third person having sued the general employer for injuries arising from the negligence of his employee, such general employer defending on the ground that such negligent employee was, at the time, in the special employ of another person, in order for the defense to prevail, the general employer must not only show that the workman [worker] was in the special employ of another, but also that such workman's [worker's] status as a general employee of the defendant had temporarily ceased and negative the fact that the employee was the servant of both employers at the time of the accident. Jones v. George F. Getty Oil Co., 92 F.2d 255 (10th Cir. 1937), cert. denied, 303 U.S. 644, 58 S. Ct. 644, 82 L. Ed. 1106 (1938). V. THIRD PARTY CLAIMS.Section preempts any third-party action for indemnity or contribution against employer for liability to his employee as an alleged joint tort-feasor. Hill Lines v. Pittsburg Plate Glass Co., 222 F.2d 854 (10th Cir. 1955). Exclusive remedy prohibits recovery by third party based on negligence. — Where a third party plaintiff filed its complaint against third party defendant, alleging that the accident was caused by his negligence and was therefore a breach of contract, recovery of any judgment obtained against it over and from third party defendant, and, by a second count, sought similar recovery on the theory of an implied agreement for indemnity in the event of negligence, each of the actions was held prohibited by the exclusive remedy section of Section 52-1-9 NMSA 1978. Royal Indem. Co. v. Southern Cal. Petroleum Corp., 1960-NMSC-053, 67 N.M. 137, 353 P.2d 358. Stranger has no contribution right against employer. — Under New Mexico's Workmen's [Workers'] Compensation Act, a stranger to the employer-employee relationship who is liable to the employee for injuries received by the employee in the course of his employment does not have a right of contribution against the employer, even if the employer was also at fault. Sanchez v. Hill Lines, Inc., 123 F. Supp. 42 (D.N.M. 1954). Company not entitled to contribution from contractor where latter came under act. — Where contractor's employees were injured in the course of employment by a gas explosion and filed separate actions against the gas company, the gas company would not be entitled to indemnity on a contribution from the contractor since the contractor came within the Workmen's [Workers'] Compensation Act and had paid or was paying all obligations thereunder to employees, and contractor's liability was limited to that under the act in absence of the contract of indemnity between the contractor and the gas company. Beal v. Southern Union Gas Co., 1956-NMSC-113, 62 N.M. 38, 304 P.2d 566. Third-party indemnity claim from employer not barred. — The public policy expressed in the workmen's [workers'] compensation statute does not bar a claim for indemnity by the third party from the employer where that claim is based on an express contract of indemnity. City of Artesia v. Carter, 1980-NMCA-006, 94 N.M. 311, 610 P.2d 198, cert. denied, 94 N.M. 628, 614 P.2d 545. Consortium action by spouse of injured employee barred. — The spouse of an injured employee is barred by the limitations of this section from maintaining an independent action for loss of consortium against the employer arising out of the injury to the employee. Roseberry v. Phillips Petroleum Co., 1962-NMSC-029, 70 N.M. 19, 369 P.2d 403. An action for loss of consortium by the spouse of an injured worker is barred by the exclusivity provisions of the Worker's Compensation Act. Archer v. Roadrunner Trucking, Inc., 1997-NMSC-003, 122 N.M. 703, 930 P.2d 1155. Law reviews. — For article, "Survey of New Mexico Law, 1979-80: Torts," see 11 N.M.L. Rev. 217 (1981). For article, "Statutory Adoption of Several Liability in New Mexico: A Commentary and Quasi-Legislative History," see 18 N.M.L. Rev. 483 (1988). For survey of workers' compensation law in New Mexico, see 18 N.M.L. Rev. 579 (1988). For note, "The District Court Should Make the Initial Determination of Jurisdiction in Workers' Compensation Cases Involving Intentional Tort Claims - Eldridge v. Circle K Corp.," see 28 N.M.L. Rev. 665 (1998). For note, "Workers' Compensation: Exclusivity, Common Law Remedies, and the Reconsideration of the Actual Intent Test Delgado v. Phelps Dodge Chino, Inc.," see 32 N.M. L. Rev. 567 (2002). For note, "Trends in New Mexico Law 1994-95: Workers' Compensation Law New Mexico Clarifies the Meaning of a Special Employer as Distinct from a Statutory Employer: Rivera v. Sagebrush Sales, Inc.," see 26 N.M. L. Rev. 655 (1996). Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers' Compensation § 49. Action at law to recover for injury as affected by decision or finding made in workmen's compensation proceeding concerning same injury, 84 A.L.R.2d 1036. Common-law action for negligence against workmen's compensation insurance carrier, right of employee to maintain, 93 A.L.R.2d 598. Employee's action against employer for fraud, false imprisonment, defamation or the like, workmen's compensation provision as precluding, 74 A.L.R.3d 838. Modern status: "dual capacity doctrine" as basis for employee's recovery from employer in tort, 23 A.L.R.4th 1151. Willful, wanton, or reckless conduct of co-employee as ground of liability despite bar of workers' compensation, 57 A.L.R.4th 888. "Dual capacity doctrine" as basis for employee's recovery for medical malpractice from company medical personnel, 73 A.L.R.4th 115. Workers' compensation: effect of allegation that injury was caused by, or occurred during course of, worker's illegal conduct, 73 A.L.R.4th 270. Violation of employment rule barring claim for worker's compensation, 61 A.L.R.5th 375. 100 C.J.S. Workmen's Compensation §§ 557 to 563; 101 C.J.S. Workmen's Compensation §§ 917 to 1045.