F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                APR 21 2004
                                    TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                     Clerk


 DARRELL WELLS,

               Plaintiff - Appellant,

 v.                                                          No. 03-2125
                                                     (D.C. No. CIV-02-185-RLP)
 US FOODSERVICE, INC.; JOHN DOE                             (New Mexico)
 I; JOHN DOE II,

               Defendants - Appellees.




                              ORDER AND JUDGMENT*


Before TYMKOVICH, McWILLIAMS, and PORFILIO, Circuit Judges.




      The sole issue remaining in this appeal is whether the district court correctly held

the New Mexico Workers Compensation Act (the Act) provides the exclusive remedy for

this personal injury action. N.M. Stat. Ann. §§ 52-1-1 to 52-1-68. It did, and we affirm

its grant of summary judgment to US Foodservice, Inc., on the ground that its employee



      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
failed to allege facts bringing his claim within the ambit of Delgado v. Phelps Dodge

Chino Mine, 

(N.M. 2001).

       Darrell Wells was a truck driver for US Foodservice, Inc., a wholesale food

supplier. On February 16, 1999, a truck with a trailer loaded by a Foodservice employee

in Lubbock, Texas, and driven by a Lubbock shuttle driver, arrived in Albuquerque, New

Mexico. There, Mr. Wells picked up the trailer and began delivering its contents to

Foodservice customers in Albuquerque and Santa Fe. At the first delivery stop in

Albuquerque, he raised the trailer door only high enough to remove one box, and

completed that delivery. At the next stop in Santa Fe, several boxes of products which

had fallen inside the trailer fell to the ground as he opened the trailer door. Without

moving these boxes aside, Mr. Wells began unloading and delivering fifteen boxes into

the facility, maneuvering around the boxes strewn on the ground. As Mr. Wells bent over

to pick up another box, a case of Tabasco sauce plummeted from the top of the load in the

trailer and struck him on the back, seriously injuring him.

       Mr. Wells filed this diversity action for personal injuries, fraud, and prima facie

tort against Foodservice; John Does I and II, the Lubbock employees who loaded and

drove the trailer (Foodservice, collectively); the US Fidelity and Guaranty Company; and

the St. Paul Companies. All Defendants moved for summary judgment. After Mr. Wells

failed to respond to these latter insurers’ motion for summary judgment, the court

dismissed the complaint against them.


                                            -2-
       In the district court, Mr. Wells’ diversity action in negligence sought to remove his

recovery from under the Act by contending Foodservice’s failure to provide a load lock1

on the trailer to prevent the cargo from shifting was an intentional omission under 49

C.F.R. § 393.100 of the Federal Motor Carrier Safety Administration, Department of

Transportation Regulations (the Rules).2 The Rules require, in part, a “tie down

assembly” on all trucks, truck tractors, semitrailers, full trailers, and pole trailers to prevent

loads from shifting and falling. 49 C.F.R. § 393.100.3 There was no tie down assembly or

load lock on Mr. Wells’ truck. Thus, this wilful act or omission, Mr. Wells contended, fell

within the bounds of 

, and permitted him to seek recovery

outside of the exclusive remedy provided by the Act. The court disagreed and granted

Fordservice’s motion for summary judgment.



       1
          Foodservice’s division president, Larry Luman, testified a load lock is “an
aluminum bar that can be configured several different ways. Some of them have
rectangular loops on them, rubbery ends on them, spring tension on it so you can either
set it up vertically or horizontally in your trailer to try to prevent your load from shifting.”

       2
           49 CFR § 393.100(c) states:
               Prevention against shifting of load. Cargo must be contained,
               immobilized or secured in accordance with this subpart to
               prevent shifting upon or within the vehicle to such an extent
               that the vehicle's stability or maneuverability is adversely
               affected.
       3
         Other options under the Rule require equipping the vehicle with “sides, side-
boards, or stakes, and a rear endgate, endboard, or stakes,” § 393.100(b)(1); or “at least
one tiedown assembly that meets the requirements of Sec. 393.102. . . .” § 393.100(b)(2).


                                              -3-
       We review the grant of summary judgment de novo, applying the same legal

standard as did the district court. Truck Ins. Exchange v. MagneTek, Inc., 

,

1214 (10th Cir. 2004). Summary judgment is then appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

Although we view the evidence and draw reasonable inferences in the light most

favorable to the nonmoving party, the nonmoving party must still present facts susceptible

of permitting a reasonable jury to find in its favor. Truck 

(citing

Simms v. Oklahoma ex rel. Dep't of Mental Health & Substance Abuse Servs., 

, 1326 (10th Cir. 1999)).

       In its order, the district court quoted from Foodservice’s motion for summary

judgment certain facts Mr. Wells did not dispute:

              Even at this point, [Plaintiff] did not re-stack the load or
              otherwise take steps to secure it. Instead, he commenced
              deliveries in and out of Pinon Hills, delivering some boxes
              that had spilled on the ground and also climbing in and out of
              the trailer to retrieve and deliver other boxes of products.

              [Plaintiff] alleges that at some point, after he had delivered a
              large quantity of the order to Pinon Hills, he was leaning over
              to pick up a box from the ground when a case of [T]obasco
              [sic] sauce fell from the top of the load in the truck and
              st[r]uck him in the back injuring his back.




                                             -4-
The court then applied the analysis set forth in Delgado, which revised the New Mexico

test for holding an employer liable for intentionally injuring his 

.

Under that test, the New Mexico Supreme Court held “willfulness renders a worker’s

injury non-accidental, and therefore outside the scope of the Act, when: (1) the worker or

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 worker or

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

disregarded the consequences; and (3) the intentional act or omission proximately causes

the injury.” 

facet of the Delgado test, our de novo review confirms Mr. Wells’ factual

showing and legal argument fail. First, Mr. Wells ignores 49 C.F.R. § 392.9 of the Rules

which catalogs a series of safe loading requirements a driver must also follow. These

include “examin[ing] the vehicle’s cargo and its load-securing devices within the first 25

miles after beginning a trip and cause any adjustments to be made to the cargo or load-

securing devices . . . as may be necessary to maintain the security of the commercial

motor vehicle’s load; and reexamin[ing] the . . . vehicle’s cargo and its loading-securing

devices periodically during the course of transportation and cause any adjustments to be

made to the cargo or load-securing devices . . . as may be necessary.” § 392.9(b)(2),

§ 392.9(b)(3) (emphasis added).




                                             -5-
       Second, Mr. Wells testified he did not know if it was a requirement to inspect the

load before driving but characterized that action as “something you did to basically save

your own neck . . . to make sure it’s loaded right, make sure you’ve got the right product

on your trailer before you leave to go 230 miles away.” Not only did Mr. Wells state he

did not check or restack the load after removing product at Honeywell, the first stop, but

he also stated he did not recall whether he even inspected the load on the day of the

accident. When boxes fell out of the truck at the Pinon Hills stop in Santa Fe, Mr. Wells

continued to unload and walk around the fallen boxes but did not restack the load that had

already evidenced signs of instability.

       Further, Mr. Wells testified that a load lock would not prevent products from

falling off the top of a load or keep a load from shifting from side to side.4 Instead, Mr.

Wells agreed a load lock primarily prevented products from sliding down to the end of the

truck. An improperly stacked load with heavier boxes placed on top of lighter boxes, as

he noted, or one in need of restacking would, thus, by his own testimony, not be stabilized

by a load lock. In the face of this evidence coupled with his statement he did not inspect

or recheck his cargo, Mr. Wells’ contention Foodservice’s failure to equip the truck with

a load lock, admittedly only one of several requirements for the safe transportation of


       4
         The record contains testimony of other truckers who stated they did not use load
locks, or that load locks were available but often not utilized because they did not fully
keep cargo from falling. While witnesses testified a load lock would more likely be used
on cargo placed on pallets, Mr. Wells’ cargo on the day of the accident was not stacked
on pallets.

                                            -6-
cargo, must fail. As Foodservice counsel stated in oral argument, “This case is so not

Delgado.”

       Although Mr. Wells admits he did not inspect the load when he began driving or

restack the load as he either observed boxes shifting or removed products, he contends

these actions are relevant only to apportion fault. At the same time, however, he insists

only Foodservice’s omission produced the injury. Instead, Delgado requires the employer

engage in intentional conduct that proximately causes the injury to remove the action

from redress under the Act. See also, Cordova v. Peavey Co., 

(D.

N.M. 2003). Under no view of the evidence or the Rules can Mr. Wells satisfy this

showing on summary judgment. At best, even under his theory, Defendants’ conduct was

negligent and not intentional.

       Finally, because Mr. Wells failed to reply to the insurers’ motion for summary

judgment or assert the grounds before the district court upon which he should have been

permitted to file a surreply, a third issue raised here, we have no record to review. Mr.

Wells’ unsupported and untested assertions cannot fill that void.

       AFFIRMED.



                                          ENTERED FOR THE COURT



                                          John C. Porfilio
                                          Senior Circuit Judge

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