Numerous cases handled by Mettler & LeCuyer, P.C. have “made law” because they resulted in reported decisions which may be relied on as precedent. Usually these are cases which have gone from a trial court through one or more appeals courts. • Some of these cases illustrate the persistence required to obtain a favorable result in the legal system, especially in cases which present new or unusual theories of fact situations. Others are examples of the subject matter of cases handled by the firm. These include reported decisions on: • Employment law • Occupational safety and health • Cases asserting Indian tradition or Indian cultural considerations • Case precedents in Navajo courts • ERISA and pension plan rights cases Past successes cannot be an assurance of future success because each case must be decided on its own merits. Case Precedents Established - Illustrating the persistence required to obtain a favorable result in the legal system, especially in cases which present new or unusual theories of fact situations. Parsons v. Kiel, 106 N.M. 91, 739 P.2d 505 (1987) was a bodily injury claim by a person injured at an auto racing event. The claim had been dismissed on the ground that he was an employee, so could not bring a tort claim. A reopening and an appeal to the New Mexico Supreme Court were required to establish that he had been an employee of the track owner’s other business, and should not have been treated as an employee at the race track. Descheenie v. Bowen, 850 F.2d 624 (10th Cir. 1988) was a case in which an appeal to federal district court was required to establish that the plaintiff was entitled to Social Security benefits on a claim she had filed several years earlier. After the plaintiff prevailed in district court, the Social Security Administration appealed to the United States Court of Appeals, where a favorable decision was again rendered for the plaintiff. DeVaney v. Thriftway Marketing Corp., 1998-NMSC-001, 124 N.M. 512, 953 P.2d 277 (1998), cert. denied __U.S.__, 118 S.Ct. 2296 (1998), established the new tort of malicious abuse of process in New Mexico. The case was originally dismissed in the trial court, and the dismissal was affirmed by the Court of Appeals. However, the New Mexico Supreme Court reversed, and the United States Supreme Court declined to hear the case. Aacen v. San Juan County Sheriff's Dep't, 944 F.2d 691 (10th Cir. 1991) required an appeal to the United States Court of Appeals to declare unconstitutional portions of New Mexico's post-judgment execution statute. Return to Top Case Precedents Established - Employment Law Several of the firm’s reported decisions have been in its employment law practice. These include: Smith v. FDC Corp., 109 N.M. 514, 787 P.2d 433 (1990), the first substantive decision interpreting the New Mexico Human Rights Act. Pike v. Gallagher, 829 F.Supp. 1254 (D.N.M. 1993) allowed a claim that a sheriff's deputy was wrongfully terminated for investigating corruption in department. Kiedrowski v. Citizen's Bank, 119 N.M. 572, 893 P.2d 468 (Ct.App. 1995), cert. den. 119 N.M. 389, 890 P.2d 1321 (1995) allowed a claim for wrongful termination of employment in violation of an implied employment contract. Torrez v. Public Service Company, 908 F.2d 687 (10th Cir. 1990), concerning whether an employee was bound by an agreement not to sue the employer, made in order to receive a severance package. Navajo Nation v. Crockett, No. SC-CV-14-94 (1996), a “whistle blower” case, in which a verdict was entered in favor of government employees who had attended a legislative committee meeting to express concerns about the agency in which they were employed. The Navajo Supreme Court held that their rights had been violated when they were fired for attending and speaking at the meeting. Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481 (10th Cir. 1989), cert. den. 495 U.S. 948 (1990) challenged a trucking company's refusal to hire a member of Native American Church because of his sacramental use of peyote. The court ruled that this constituted religious discrimination. Gorman v. Pittsburgh & Midway Coal Mining Co., 21 Indian Law Rptr. 6033 (Navajo Labor Comm’n 1993) held that the Navajo Preference in Employment Act is not pre-empted by federal labor statutes. Return to Top Case Precedents Established - Occupational Safety and Health Occupational safety and health precedents of the firm are: Buchanan v. Kerr-McGee Corp., 121 N.M. 12, 908 P.2d 242 (Ct. App. 1995), cert. denied (1995), holding that the widow of a uranium miner who died of lung cancer could bring her own worker's compensation claim, even though the miner had released the employer from all claims in settling a prior silicosis claim. Liggett Industries, Inc. v. Federal Mine Safety and Health Review Commission, 923 F.2d 150 (10th Cir. 1991) upheld the right of a mine worker to quit the job after his complaints of unsafe work practices were not addressed. Villanueva v. Sunday Sch. Bd. of S. Baptist Convention, 121 N.M. 98, 908 P.2d 791 (Ct.App. 1995) resolved the method for calculation of the average weekly wage of seasonal workers under the New Mexico Workers’ Compensation Act. Return to Top Case Precedents Established - Cases asserting Indian tradition or Indian cultural considerations Several of the cases which have made law have been cases in which the firm asserted Indian tradition or Indian cultural considerations, such as: Benally v. Amon Carter Museum of Western Art, 858 F.2d 618 (10th Cir. 1988) held that an out-of-state museum could be subject to suit for publishing photographs of a Navajo person, against that person’s traditional beliefs and without her consent. Dawes v. United States, 949 F.2d 402 (Fed. Cir. 1991) was a class action on behalf of all Navajo allottees and heirs, in which the BIA was ordered to pay interest it had earned on individual Indian money accounts it held in trust, where the BIA had invested the money but placed the interest into its own budget. Tsosie v. United States, 825 F.2d 393 (Fed. Cir. 1987) held that a Navajo individual could make a claim under the Treaty of 1868, for damages caused by an assault by a federal health service employee. Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481 (10th Cir. 1989), cert. den. 495 U.S. 948 (1990) challenged a trucking company's refusal to hire a member of Native American Church because of his sacramental use of peyote. The court ruled that this constituted religious discrimination. Gorman v. Pittsburgh & Midway Coal Mining Co., 21 Indian Law Rptr. 6033 (Navajo Labor Comm’n 1993) held that the Navajo Preference in Employment Act is not preempted by federal labor statutes. Descheenie v. Bowen, 850 F.2d 624 (10th Cir. 1988) was a decision that applied Navajo law, instead of state law, to determine a family relationship, for purposes of eligibility for Social Security benefits. Thriftway Marketing Corp. v. State of New Mexico, 111 N.M. 763, 810 P.2d 349 (Ct. App. 1990) held that a Navajo Chapter had standing to challenge the State’s approval of the transfer of a liquor license to a location within the Chapter but outside the boundaries of the Reservation. Chee v. Navajo-Hopi Indian Relocation Comm'n, 18 Indian Law Rptr. 3078 (D.Ariz. 3/22/91) awarded benefits under the Navajo-Hopi Indian Relocation Act. The analysis in this case was relied upon in numerous later claims for Relocation Act benefits. Beller v. United States, No. CIV 02-1368 WPJ/ LFG, U.S. Dist. Ct., District of New Mexico (2003) held that Navajo law regarding common law marriage applied in a federal court proceeding, and that a Navajo witness in a federal civil case did not have to testify as to the content of communications with her spouse. (Memorandum Opinion 9/9/03). Return to Top Case Precedents Established - Case precedents in Navajo courts Case precedents in the Navajo courts include: Navajo Nation v. Crockett, No. SC-CV-14-94 (1996) was an appeal from a verdict in favor of Tribal employees who had attended a Navajo Nation Council committee meeting to express concerns about the entity in which they were employed. The Supreme Court held that their rights had been violated when they were fired for attending and speaking at meeting. Wilson v. Begay, No. A-CV-05-86, N.L.R. Supp. 1 (Nav. Sup. Ct. 1988) in which the Navajo Supreme Court affirmed a decision that applied comparative fault and apportioned fault between two defendants on a percentage basis. Yellowhorse v. Williams, No. SR-CV-037-96 (Shiprock Dist. Ct. 1997) allowed a claim for loss of consortium of a parent because of severe injury to a child. Largo v. Gregory & Cook, No. A-CV-11-93 (Nav. Sup. Ct. 1995) interpreted the Navajo Preference in Employment Act and held that an on-Reservation employer was required to hold job vacancies open while testing potentially qualified Navajo applicants. In Largo v. El Paso Natural Gas Co., No. A-CV-30-93 (Nav. Sup. Ct. 1995), the Court held that a general contractor who tested Navajo welders was liable in damages for unfair testing procedures which had caused the welders not to be hired. Return to Top Case Precedents Established - ERISA and pension plan rights cases ERISA and pension plan rights have been the subject of three reported cases of the firm: Johnson v. Public Employee Retirement Board, 1998-NMCA-174, cert. denied, No. 25,417 (1998), interpreted the standard for payment of disability benefits under the New Mexico Public Employees Retirement Act. Sparks v. National Elevator Industry Health Benefit Plan, No. CIV 98-1336 LH/FLP (D.N.M. 12/30/98); Managed Care Liability Report, vol. 3, no. 1, p. B-1 was a claim by an individual with muscular dystrophy against his group health plan. The court entered an injunction requiring the plan to continue to pay for round-the-clock nursing services. The plan had proposed to cut off the services, which the plaintiff's doctors said would threaten his life. Nechero v. Provident Life & Accident Ins. Co., 795 F. Supp. 374 (D.N.M. 1992) concerned ERISA preemption of state law claims and other ERISA issues. Soon v. PNM Resources, Inc. Employees' Retirement Plan, CIV 04-676 BB/DJS, U.S. Dist. Ct., District of New Mexico, allowed a widow to go forward with a claim for survivor's retirement benefits at the 100% level, where there was evidence that the employer's pension office personnel may have breached their fiduciary duty by misleading him as to the requirement for electing the 100% annuity rate and by failing to process a blank form he submitted. (Memorandum Opinion and Order 5/27/05). Kirby v. TAD Resources International, Inc., et al., 2004 NMCA 95, 95 P.3d 1063 (N.M. App. 2004), held that an ERISA disability claimant could proceed against the ERISA Plan, as a legal entity, even though the Plan's insurance carrier, which would be liable for paying any benefits, had been dismissed from the case and could not be sued based on res judicata. Return to Top