F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        June 6, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 SU SA N BAIN, individually and as the
 personal representative of TH E
 ESTA TE O F JEFFR EY BA IN ,
 D eceased, and C HR IS B AIN ,
 individually,

               Plaintiffs-Appellants,

          v.                                            No. 05-2351
                                                        (D. of N.M .)
 IM C GLOBAL OPERATIO NS, IN C.,                (D.C. No. CIV-03-1354-RCB)
 IM C K ALIUM CA RLSBAD POTA SH
 COM PANY , and PHILCO
 CONSTRUCTIO N, IN C.,

               Defendants-Appellees.



                            OR D ER AND JUDGM ENT *


Before TA CH A, T YM KOV IC H, and GORSUCH, Circuit Judges.




      Jeffrey Bain’s surviving wife and son brought a wrongful death suit against

Philco Construction, Inc., IM C Global Operations, Inc., and IM C Kalium

Carlsbad Potash Company for fatal injuries suffered by Bain when a roll of


      *
        This order and judgment is not binding precedent except under the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.
industrial belting was knocked off of a flatbed and killed him. The IM C entities

settled with the Bains prior to trial, leaving only Philco to face trial.

         A federal jury sitting in diversity decided the accident was caused by a

Philco employee working under the control of IM C at the time of the accident.

Under N ew M exico law , such a finding insulated Philco from wrongful death

liability. The Bains challenge the district court’s interpretation of New M exico

law , arguing that the court erred in instructing the jury as to the elements of their

claim.

         On appeal, our disposition of this case turns on the following question of

New M exico law : whether an employer must demonstrate it relinquished control

of its employee to another em ployer to escape liability for the employee’s

negligence? W e find the district court’s interpretation of New M exico law

correct, and that it accurately instructed the jury.

         Having jurisdiction pursuant to 28 U.S.C. § 1229, we AFFIRM .

                                     I. Background

         The Accident. IM C owned and operated a potash mine outside Carlsbad,

New M exico. IM C retained Philco Construction, Inc., an independent contractor,

to construct a warehouse and other plant facilities at the IM C mine site. Jeffrey

Bain w as employed by a third company at the time as a delivery driver. As part

of his duties, he delivered two rolls of industrial belting to the IM C site for use in

IM C’s mining operations.

                                           -2-
      W hen Bain arrived at the work site, an IM C employee, Amos Urquidez,

began helping Bain unload the belting from a flatbed trailer with a forklift. But

when James Frintz, an employee of Philco, happened on the scene with a different

forklift, the men decided to unload the belting using Frintz’s forklift. In the

process, Frintz accidentally knocked one of the two rolls of belting from the

flatbed with his forklift. The belting rolled onto Bain, resulting in injuries that

led to his death.

      The Trial. Bain’s surviving wife and son brought a diversity suit for

wrongful death against IM C and Philco in the District of New M exico. They

alleged independent acts of negligence by IM C and Philco caused Bain’s death.

Prior to trial, the Bains reached a settlement with IM C, and the case proceeded to

trial against Philco.

      Philco’s trial defense was threefold. It argued (1) Frintz was not negligent

in knocking the belting onto Bain; (2) Bain was contributorily negligent; and (3)

under New M exico law, Frintz was a “special employee” of IM C at the time of

the accident so that any negligence attributable to him should be imputed to IM C,

not Philco. 1 At trial, the Bains conceded the belting was strictly for IM C’s use

      1
         According to the jury instruction used at trial, a “special employee”
arises from the circumstances of the employment relationship:

      A “special employer” is one which borrows the employee of another to
      perform work for its benefit, even if the employee is borrow ed for a
      limited period of time, and the “special em ployer” has the right to
                                                                    (continued...)

                                          -3-
and not for any construction work performed by Philco. In addition, M r.

Urquidez testified that he had “absolute and complete authority for all facets of

the unloading process.” J. App. at 377. The jury found Frintz a special employee

of IM C at the time of the accident, and the court entered judgment in favor of

Philco.

      The Jury Instructions. On appeal, the Bains challenge two of the district

court’s instructions to the jury, one tendered to the jury and one requested but

refused.

      The first challenge arises from the language of the verdict form. The

district court instructed the jury as to the definition of a special employee under

New M exico law. It then submitted the following question on the verdict form:

“W as Frintz an employee of Philco Construction, Inc. or was he a ‘special

employee’ of IM C at the time of the accident?” J. App. at 204. The Bains

objected to the either/or nature of the instruction, arguing Frintz could at the same

time be an employee of Philco and a special employee of IM C. According to the

Bains, under this dual employment theory, if Frintz could be employed by both

companies at the time of the accident, the finding that he was a special employee



      1
       (...continued)
      control the manner in which the details of the work are to be done, even
      though the right of control m ay not be exercised. An employee
      borrowed under these circumstances is called a “special employee.”

J. App. at 180.

                                          -4-
of IM C would not absolve Philco of liability since Philco could remain liable as a

second employer of Frintz during the accident. W ithout the dual employment

theory available, the jury’s conclusion that Frintz was IM C’s special employee

meant Frintz was not employed by Philco at the time of the accident; therefore,

Philco shared no liability for the accident. The Bains’ objection to the either/or

question was overruled.

       The Bains also objected to the district court’s exclusion of a proffered jury

instruction based on the dual employment theory. The Bains wanted the district

court to instruct the jury, “. . . in cases such as this, the entity raising the defense

of special employee must also show that such workman’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 in order to

prevail.” J. App. at 158. They argued that New M exico law required the jury

find Philco had relinquished control of Frintz in order for Philco to escape

liability under the special employee defense. The district court omitted this

instruction over the Bains’ objection, concluding New M exico law did not require

a factual determination that the employee had ceased working for the primary

employer at the time of the negligence.

                                     II. Discussion

       On appeal, the Bains seek remand to the district court for a new trial. They

claim the district court erred in failing to craft jury instructions and a verdict form

                                            -5-
that represent both (1) a relinquishment requirement when using the special

employee defense and (2) the dual employment theory. They have also filed a

motion to certify the legal questions in this appeal to the New M exico Supreme

Court. 2

       W e review de novo a district court’s jury instructions when objection was

made to the challenged instruction at trial. 3 Osteguin v. S. Pac. Transp. Co., 

, 1295 (10th Cir. 1998). Challenges to a judge’s decision to give or

withhold a particular jury instruction are reviewed for abuse of discretion. See

Royal M accabees Life Ins. Co. v. Choren, 

(10th Cir. 2005).

“Because verdict forms are essentially instructions to the jury,” we apply the same

standard as we would to jury instructions. See United States v. Jackson, 

, 1285 (10th Cir. 2000), rev’d on other grounds, 

(2000). Under

these standards of review, we review the district court’s jury verdict form de novo

and its decision not to include the Bains’ proffered instruction for an abuse of

discretion.




       2
        W e deny the motion to certify. The issues of state law are not
exceedingly complex or unsettled. M oreover, the Bains chose a federal forum
when their claims could have been brought in the New M exico courts in the first
instance.
       3
         Philco claims insufficient objections were made to preserve de novo
review for the jury instructions, but we conclude the record was adequate to
demonstrate the basis of the Bains’ objection and their preferred alternatives. See
J. App. at 584–585; see also J. App. at 556–559, 572–577.

                                         -6-
      In addition, we review the district court’s interpretation and determination

of state law de novo. Freightquote.com v. Hartford Cas. Ins., 

, 892

(10th Cir. 2005). “W here the state’s highest court has not addressed the issue

presented, the federal court must determine what decision the state court would

make if faced with the same facts and issue.” Oliveros v. M itchell, 

,

1093 (10th Cir. 2006) (internal quotations omitted); Johnson v. Riddle, 

, 1118 (10th Cir. 2002).

      A. New M exico’s Special Employee D efense

      Philco’s principal trial defense was that Frintz was under the control of IM C

at the time of the accident. Under New M exico employment law, an employer

may be sued only for employee torts committed within the scope of employment.

M onett v. Dona Ana County Sheriff’s Posse, 

, 603 (N.M . Ct. App.

1992); Restatement (Second) of Agency § 219(1) (1957) (“A master is subject to

liability for the torts of his servants committed while acting in the scope of their

employment.”).

      But, “[a]s a general rule, an employer is not liable under respondeat

superior for an injury negligently caused by a[n employee] if the [employee] is not

acting at the time as the [employee] of that employer, and the evidence shows that

the employee has been loaned to the service of another who controls the manner

and details of the employee’s work.” Los Ranchitos v. Tierra Grande, 

, 267 (N .M . Ct. App.1993). This is known as the special employee defense.

                                          -7-
Under this defense, the employee’s primary employer is not liable for negligent

conduct where the employee was temporarily in the employ of another employer at

the time of the accident.

      To establish a special employee relationship, New M exico cases require tw o

findings of fact: One, for which employer is work being performed at the time of

the tortious conduct, and two, which employer had the power to control the w ork

performed and the conduct of the employee. Dunham v. Walker, 

,

689 (N .M . 1955); see also Wuertz v. Howard, 

(N.M . 1966).

      The district court tendered this two-part test to the jury. The Bains argue,

however, that the test applies only when workers compensation claims are

involved. Outside the workers compensation context, as is the case here, they

contend New M exico case law requires a tripartite finding to establish the special

employee defense. They argue an additional element of relinquishment by the

primary employer is necessary— not only was the employee under the control of

another employer and performing work for that employer, but also that the primary

employer relinquished control of its employee, relying on our decision in Jones v.

George F. Getty O il, 

(10th Cir. 1937).

      W e disagree that the New M exico courts have adopted a relinquishment

requirement as part of the special employee defense. In Jones, we addressed the

question of whether employees temporarily borrowed by another employer under



                                         -8-
the tenets of agency law, so-called “special” employees, were covered by New

M exico’s workers compensation statute. W e answered in the affirmative,

concluding that the special employer’s “sole liability to [the injured worker] is

under the New M exico Compensation Act; no common-law liability having

application” because of the preemption of common-law suits provided by workers

compensation. 

      Our decision in Jones was notable because it was the first reported case that

addressed the special employee defense under New M exico law. The Bains argue

that Jones embodies a relinquishment element for cases outside the workers

compensation context that New M exico courts would adopt if presented the

opportunity. 4

      In the seventy years since Jones, a substantial body of case law on the

special employee defense has been developed by the New M exico courts. The

New M exico courts first adopted the two-part test laid out above, with its focus on

for whom the work is done and who controls the work, in Dunham v. Walker, 

, 689 (N.M . 1955) (citing 

). M any subsequent cases

have reaffirmed this rule. See, e.g., Shipman v. M acco Corp., 

(N .M .


      4
         By demonstrating relinquishment, the employer would sever the agency
relationship necessary to respondeat superior liability by showing the employee
was not working within the scope of his employment at the time of the
negligence. Under this theory, without a showing of relinquishment both the
special employer and the defendant employer could be directing the
employee— leaving both susceptible to respondeat superior liability.

                                          -9-
1964); Wuertz v. Howard, 

(N.M . 1966); Barger v. Ford Sales Co.,

(N.M . Ct. App. 1976); Fresquez v. Sw. Indus. Contractors &

Riggers, 

(N .M . Ct. App. 1976).

      W e must ask whether New M exico law then left the door open for an

additional relinquishment requirement in cases where workers compensation

preemption does not apply as the Bains contend. The answ er to that question is

no.

      In our view , the N ew M exico Supreme Court rejected the relinquishment

requirement outside the workers compensation context in Weese v. Stoddard, 

(N .M . 1956). There, a local American Legion post helped construct a

refreshment stand for use at a rodeo. The stand was to be operated by a separate

and distinct sister organization, the W omen’s Auxiliary. The American Legion

loaned one of its members, M r. Stoddard, to the Auxiliary to help with heavy labor

chores. An Auxiliary member asked Stoddard to move a truck that was supporting

a beam attached to a tarpaulin sheltering the refreshment stand from the wind and

sun. As Stoddard moved the truck, the beam fell upon plaintiff Bertha W eese of

the Auxiliary and injured her. W eese sued both Stoddard and the American

Legion.

      In assessing the scope of the special employee defense, the court used the

two-part test adopted in D unham to determine whether the W omen’s Auxiliary or



                                        -10-
the American Legion controlled and directed Stoddard’s work. After finding

Stoddard a special agent of the W omen’s Auxiliary, the court decided special

agency alone (without relinquishment) was sufficient to sever the American

Legion’s respondeat superior liability for W eese’s injury. W hile the case

involved a special agent rather than a special employee, the court made clear the

analysis was the same by using the two-part test established in Dunham for special

employees. 5

      The Bains seek to distinguish Weese by arguing it is really a w orkers

compensation case and should not be applied outside that specific context.

Unfortunately for the Bains, there is nothing in Weese to narrow its holding in that

fashion. First of all, the New M exico Supreme Court plainly found respondeat

superior inapplicable because the agency relationship between the defendant

employer and tortfeasor had been severed by the special employee doctrine. The

court no where relied on workers compensation preemption to support this

rationale. In fact, citing to an agency treatise and the nature of the agency

relationship, the court explained its holding to the contrary:

      [I]n determining whether, in respect of a particular act, a servant, in the
      general employment of one person, who has been loaned for the time being
      to another is the servant of the original employer or of the person whom he
      has been loaned, the test is whether in the particular service which he is
      engaged to perform, the servant continues liable to the direction and


      5
         The court even cited to our Jones decision as an illustration of the
application of the test. 

–48.

                                       -11-
      control of his general employer or becomes subject to that of the person to
      whom he is lent.

(citation omitted) (emphasis added).

      Secondly, while Weese cites to some workers compensation cases for its

agency proposition, it also cites to numerous non-workers compensation cases and

an agency treatise that places no reliance whatsoever upon workers compensation

for its analysis. 

–48 (citing to Finegan v. H.C. & A.I. Piercy Contracting

Co., 

(1919); Issacs v. Prince & Wilds, 133 M iss. 195 (1923); Denton

v. Yazoo & M.V.R. Co., 

(1931); 35 Am. Jur. (M aster and Servant)

§ 541). The special employee defense in Weese is solely premised on severing

respondeat superior liability for the primary employer rather than in establishing

workers compensation preemption.

      Although occurring in the workers compensation context, Wuertz, 

, also undermines the notion that New M exico courts w ould adopt a

relinquishment requirement if given the chance. In Wuertz, the New M exico

Supreme Court had an opportunity to make it more difficult for an employer to use

the special employee defense by adding a consent exception to the defense.

Instead of doing so, the court cited to the Weese decision for the proposition that

even though the general employer consented to his employee helping a special

employer, the special employee defense still applied. 

                                        -12-
      In sum, we cannot ignore the clarity of logic and reasoning with which the

New M exico Supreme Court ignored the relinquishment requirement outside the

workers compensation context in Weese and opted against reducing the availability

of the special employee defense in Wuertz. W ithout a relinquishment requirement,

the two-part test for establishing the special employee defense that the district

court used in the jury instructions correctly stated New M exico law.

      Accordingly, the district court did not abuse its discretion in withholding the

Bains’ requested instruction on relinquishment.

      B. Dual Em ployment

      The Bains also object to the either/or nature of the jury verdict form: “W as

Frintz an employee of Philco Construction, Inc. or was he a ‘special employee’ of

IM C at the time of the accident?” J. App. at 204. They claim it ignored New

M exico’s recognition of dual employment and allowed Philco to escape liability

through the special employee defense without consideration of whether Frintz

might remain in Philco’s employ at the same time. W e agree that New M exico law

allowed the Bains to assert a dual employment theory, but even so, it would not

have changed the outcome of trial.

      New M exico courts recognize dual employment. Rivera v. Sagebrush Sales,

, 834 (N.M . Ct. App. 1994) (“Under certain conditions, both the

general and special employer are liable for workers’ compensation.”); Street v.


                                         -13-
Alpha Constr. Servs., 

, 191 (N.M . Ct. App. 2006) (Kennedy, J.

dissenting) (“[W]orkers can have multiple employers, each of which is immune

from suit” due to workers compensation preemption.). 6 Dual employment is

especially relevant in co-employee workers compensation cases where the

defendant employer and the special employer are both seeking insulation from

liability or where the victim seeks benefits from both employers when one of them

is unable to fully cover the workers compensation expenses. See 3 Arthur Larson

& Lex K. Larson, Larson’s W orkers’ Compensation Law § 67.01[1] (2006).

      New M exico law also recognizes dual employment outside the workers

compensation context. As the New M exico Supreme Court noted in Weese, “if one

person lends his servant to another for a particular employment, the servant, for

anything done in that employment, is dealt with as the servant of the one to whom

he has been lent, although he remains the general servant of the person who lent

him.” 

(citing 35 Am. Jur. (M aster and Servant) § 541).

      But by recognizing dual employment while simultaneously rejecting a

relinquishment requirement, the Weese court made clear that dual employment does

not matter for purposes of respondeat superior liability. The defendant employer

escapes liability by demonstrating the tortfeasor was the special employee of


      6
        Both Rivera and Street are workers compensation cases, but that does not
undermine their relevance as it did when we analyzed the relinquishment
requirement above. W orkers compensation preemption has no logical effect on
whether an employee could have two employers.

                                        -14-
another at the time of the negligent conduct regardless of whether the tortfeasor

also remained an employee of the defendant.

      The Bains argue that under dual employment theory Frintz could still have

been acting within the scope of his employment with Philco at the time of the

accident, making Philco liable under Rivera. The Bains are correct that New

M exico law recognizes dual employment. In the circumstances here, however, it is

obvious that the district court’s failure to craft a different verdict form did not

matter. If the jury had been presented with and chosen the option requested by the

Bains, i.e., Frintz was both the special employee of IM C and the general employee

of Philco, then Philco w ould still remain immune from liability. As Weese makes

clear, a determination of special employment is the sole finding required to insulate

the primary employer. A finding of dual employment in this case would

necessarily also include the required finding of special employment by

IM C— thereby sheltering Philco from liability for Frintz’s negligence.

      Accordingly, the district court’s instructions on dual employment did not

affect the verdict.

                                    III. Conclusion

      For these reasons, we AFFIRM the district court. W e also DENY the motion




                                           -15-
to certify questions of state law to the New M exico courts.



                                                Entered for the Court


                                                Timothy M. Tymkovich
                                                Circuit Judge




                                         -16-