Dupper v. Liberty Mutual Insurance
734 P.2d 743
N.M.
1987
Check Treatment

*1 DUPPER, Petitioner, Alberta

LIBERTY INSURANCE COM- MUTUAL Penney Company,

PANY and J.C.

Inc., Respondents.

No. 16330.

Supreme Court of New Mexico.

Feb.

Rehearing Denied March Wainwright, Paul S. Wain-

Robinson Tepper, Albuquerque, L. wright, Sherrie petitioner. Sloan, Robb, Dickason, Akin & Rodey, McGee, respon- Albuquerque, for Tracy E. dents. *2 1973).

OPINION granted certiorari in this case because we believe that it is time for New WALTERS, Justice. join Mexico to every other state in the appeal This concerns a claim for worker’s country in its view of compensability for compensation by plaintiff Dupper against injuries suffered on an premis Penney Inc., Company, defendants J.C. es. Dupper’s insurer, employer, and its Liberty Of necessity, we must reassess Section Mutual Insurance Dupper Co. had com- 52-1-19, as that statute has been construed shift, pleted signed her out day, for the decisions, see, earlier New Mexico e.g., way was on her parking 615, Riggs, Trembath v. 100 N.M. tripped lot when she “pop-up” sprin- over a (Ct.App.1983), denied, cert. 101 N.M. kler head that had failed to retract after 11, (1984); 677 P.2d 624 Gonzales New Liberty compensation use. denied for her Highway Department; State injury ground on the that the accident oc- Co., Romero Kresge 484, v. S.S. 95 N.M. curred after she had left her duties of (Ct.App.), employment, thereby precluding her from 593, (1981); N.M. 624 P.2d 535 Hayes v. “going-and- under New Mexico’s Ampex Corp.; McDonald v. Artesia Gen coming” provides: rule which 188, Hospital, eral 73 N.M. 386 P.2d 708 injury by shall not include [an accident] (1963); Co., Caviness v. Driscoll Const. occurring while 441, (1935); 49 P.2d 251 Cuellar v. way on his to assume the duties of his Co., American Employer’s Ins. employment leaving or after such 141, (1932), 9 P.2d 685 which cases denied cause of which is not the compensation on-premises injuries oc employer’s negligence. curring while the is “on his NMSA 52-1-19. The trial court § to assume the duties of his ruled had failed to establish duties,” after not proximately by that her was caused J.C. Pen- the employer’s negligence. ney’s negligence, but compensa- awarded NMSA 52-1-19. § by purporting “premises” compensation rule which “inju- allows compensation When worker’s was first occurring ries while enacted, [em- joined New Mexico Kansas in stat- ployees having fixed hours and utorily limiting liability “going- under its going are to and from work before work] and-coming” rule to cases based em- working or after hours or at lunchtime.” 1 ployer negligence. N.M.Laws, ch. Larson, A. The Law Workmen’s Com- 12(L); Kan.Laws, ch. § Cu- § pensation 15.00 § ellar v. Employer’s American Ins. Co. recognize gave Jurisdictions this premis Court its first opportunity to interpret original es rule characterize statute’s identical lan- employer’s premises guage “injurpes] by in a later codification. NMSA 156-112(L). accident Court, out of and in the course of considering § employment.” Injuries occurring off the case where a worker had been however, employer’s premises, are not com employer’s premises, held that unless pensable they unless are covered one of an employer’s negligence proxi- was the exceptions several “going-and-com mate cause of injury, a worker’s a worker ing” rule. 1 Deferring 15.00. “injured while to or from work is law, New Mexico case Court of within the rule is not the course reversed the trial court. employment.” Alexander v. Del of his Id. at 9 gado, (1973); Subsequent see decisions have read this also Gonzales High v. New Mexico State rejecting case as rule. way Department, 97 N.M. 637 P.2d 48 e.g., Telephone Mountain States quashed, 642 Telegraph Montoya, Hayes Ampex Corpora McDonald v. Artesia tion, (Ct.App. Hospital; General but see Gonzales v. Department Highway Drilling Rowan In New Mexico State Wilson v.

(Wood, J., this Court specially concurring). recognized (L) that subdivision of NMSA Cuellar, Judge recognized Watson (now, Section 57-912 problem interpretation and con- inherent 52-1-19) was *3 Section “never intended to result, only explaining: curred in the deprive compensation, a of who brethren, theory my Under of the the injury acting at the time his was within the act and the courts beneficiaries of employment, his his injury, contract of if struggle question, left to with the so are out of was in ‘arose suffered the troublesome, whether, long and often un- ” Id. at 108, employment.’ course of his circumstances, workman, given der a on forty years ago 227 P.2d 382. More than . way his to the of his em- assume duties we held that an accident in arises the ployment, or after is employment course of the it when occurs employment, in the course of and wheth- at a period within the of the the injury er then arose out of place employee reasonably may where the merely complication it. It adds a new in the performance be his duties imposes a new burden the those duties or en- fulfilling while workman. doing in gaged something incidental Co., Employer’s Cuellar v. American Ins. McKinney Dorlac, thereto. v. 48 N.M. at 148, (Watson, J., 153, 36 N.M. at 9 P.2d at 689 146 P.2d at result); see concurring 1 also in give To early holding, to this effect a conclusion, 15.44 at 4-116.2. To reach its exceptions “go number of to specific the rejected majority the had an alternative ing-and-coming” rule have carved been out. reading interpreting the to subsection instance, For worker a he was employer’s negligence that “if mean the crossing highway the while on a coffee injury, of the it shall cause to break was entitled recover under the arisen in be deemed to have out of and exception. Whitehurst “personal comfort” employment, though course of the Co., Baking Rainbo 468, v. 70 374 142, duties,” his id. workman had left at 9 see also Sullivan v. Rain (1962); P.2d 849 686, though Court even ac Co., Baking bo 71 N.M. P.2d 375 326 knowledged clause “seem[ed] where an crossed thing.” Id. very mean that strained shift, during for his and fell street a meal particularly surprising construction was be the cafe. at door of His was began its ex analysis cause out of compensable held be “as plicitly noting idea of “[t]he Id. in employment.” the course his generally as an essential Similarly, a at 375 P.2d at worker foreign theory of workmen’s com may compensated be suffered Id. pensation.” citing at 9 P.2d at “special on for her em while a mission” Merrill v. Penasco Lumber 27 N.M. hours, working ployer outside her normal Judge As Wood i.e., returning agency home from an meet concurrence, special in his Gonzales noted New ing Edens v. city, another the Cuellar opinion can as a be read deci Department, Health and Services Social “approaching premises sion in New rule also, see (1976); 547 Gonzales, 97 N.M. Mexico.” at Carpenter, 98 N.M. Clemmer v. at 49. P.2d We are committed to view (Ct.App.), P.2d that, legislation, as remedial the Work (1982) (injured while trav liberally men’s must eling be personal as well as work-related construed, Soda, business); with all doubts resolved favor v. Pleasuretime Avila See, e.g., Avila Pleasure v. deposit worker. Inc. (employee making bank Soda, Inc., time “special home work was on er after Dorlac, McKinney (Ct.App.1977); rand”). employee required Similarly, Cuellar v. work city drive a vehicle to and from and to Employer’s American Ins. Co. all times within his remain on call at employment” driving “course of while by adoption rule, diction of the we home, though spent simply recognize even he had two and that the “course of em- socializing ployment” one-half hours after work only includes not the time for drinking beginning paid a bar before is actually but also a trip. City during homeward reasonable time Salazar Santa which the Fe, employee is necessarily employer’s passing while quashed, to or from the where the (1985). Thus, actually work is except alleg e.g., done. those cases Reed, 562,165 Brown v. 209 Va. ing S.E.2d accidental on an Russell, Casualty US. premises, pat there has been a consistent Ga.App. 105 S.E.2d 378 rejecting tern of reading a narrow *4 (and Section 52-1-19 its fore join réspectable We company in for runners), in order to allow workers to re saking “going-and-coming” a rule that does cover. recognize premises not a exception. In Supreme As the was said Gonzales at 97 N.M. at Arizona overruled Court very premises its own exception 637 P.2d at narrow who has arrived “[o]ne favor of the generally or is broader and more employer’s premises accepted view. certainly rulings, is Under its old an employment requires where his be, injury occurring him before or after on necessarily to and he work is en- [as] employer’s premises the compensa gaged doing something not incidental there- ble employee unless the exposed had been any above-excepted to” as of the cases. special to “some danger upon risk or the incongruity obvious led the of premises.” McCampbell v. Benevolent urge adoption there to of the Elks, Protective Order 71 Ariz. premises exception. Hayes See also (1950). 226 P.2d Twenty-three (Sutin, Ampex Corporation, J., specially years later the Arizona court held: concurring). Despite urgings, New going Mexico has is only jurisdiction remained the to or com- [W]hen ing place from his that heretofore of work is recognize has refused to and employer’s premises pro- he is injury occurring that an within the premises on the is tective ambit of the occurring Compen- one Workmen’s employee’s within the course Act, sation using at least when the cus- employment. 1 Larson 15.11. § tomary ingress egress means of or Today the is issue once more employee’s route of travel or is otherwise squarely Court, before this and we take in a may reasonably be opportunity this to redeem New Mexico expected to be. orphan from its status and extend Pauley Commission, v. Industrial “course of employment” meaning, first 298, 302, Ariz. (1973). adopted in Dorlac, McKinney v. to the adopt Pauley holding as the rule in workman, instant case. We hold that a New Mexico hereafter. while on the premises coming to The rationale in Pauley was that going or from workplace the actual is in a compensation for industrial accidents is not place where the employee reasonably is dependent upon presence spe of some expected be, to engaged and that he is in a danger. cial risk or Id. at 508 P.2d at necessary incident employment. Feder reasoning, 1163. Under similar compensa al Coram, Insurance Ga.App. tion for an accident in a work-re (1957). Further, 98 S.E.2d 214 as setting depend proof lated should not guidance and in hopes avoiding future employer negligence. Taylor See v. Del litigation, “premises” we define to include Transportation Inc., gamo parking lots intended employees for or cus tomers, whether company “within the main premises or separated prove from negligence it.” The need to un- arises 15.42(a) (citations omitted). if, at 4-98 if, der 52-1-19 only Section aligning ourselves every juris- employee’s injury with other sustained while work, ney). finding the injury supported to from This substan- or not fall within the rule or does tial evidence. generally recognized exceptions of the Dupper The record indicates that left the “going-and-coming” Thus to the rule. con provided by Penney sidewalk for for in- strued, preserves coverage Section 52-1-19 gress egress premise, that Pen- work-related, clearly that are ney inspected sprin- routinely “pop-up” protects employer but otherwise from system, Penney employed kler that a liability employee injuries not caused groundkeeper days who was on site five a employer while the Additionally, week. there nowas evidence to or from work otherwise the sprinkler prior was defective employer’s premises. from away See incident with malfunc- Chaney, Chevrolet Co. v. Galles prior a tion resulted from condition which Penney properly failed repair. Obvious- rule Since we which ly this falls evidence far short of establish- compensation under the allows Workmen’s ing negligence a matter law. circumstances, proper Act in Pursuant clear of Sec unnecessary respond Dupper’s it is 52-1-19, consistently New has *5 of error in trial refusal claim court’s disallowed employ cases where employer negligent. find ees have been or from their agree with defendants and employment. e.g., McDonald v. Arte that this case cannot be distin- Hosp., sia Gen. 386 P.2d 708 law; guished prior accordingly, from case v. S.S. Kresge Romero rule,

to the extent we 484, 623 denied, P.2d 998 contrary cases to the are overruled. Hayes v. Judgment of lower is AF- court Ampex Corp., 85 N.M. FIRMED. (Ct.App.1973). Since failed to prove that her proximately were SCARBOROUGH, C.J., SOSA, Senior by Penney’s negligence, and since it Justice, RANSOM, J., concurs. Dupper’s injuries that uncontradicted oc STOWERS, J., dissents. curred after left the she duties her em ployment Penney, protected with she is not STOWERS, Justice, dissenting. by Compensa the New Mexico Workmen’s I dissent. Section 52-1-19 of the New language tion Act. The statute Compensation Mexico Workmen’s Act is interpretation. clear. There no room for unambiguous. pertinent part clear and statutory The first rule of construction is it states: give that the must courts ascertain Compensa- As used in the Workmen’s * * * Legislature’s effect intentions. “injury by Act accident Legislative intent is to be determined employment” out the course of * * * primarily from the used in the any shall not include statute whole. as a When words while on his doubt, used are from ambiguity Dree the duties or assume of interpretation no other means should after cause be resorted to. neg- of which is not the ligence. 694, 696, Sinyard, v. State (Ct.App.1983), (Cum.Supp.1986) 52-1-19 P.2d added). (emphasis P.2d given A The district statute must be read and ef- specifically court found Legislature, plaintiff-employee, Dupper, as it (Dupper) had fect is written may not established her due not as the court think it should be or part Legisla- would written if the of defendant- have been (Pen- envisaged employer, Penney Company, problems J.C. Inc. ture had all the might in the arise complications * * * * administration course of its NEW MEXICO HOSPITAL ASSOCIA- they TION, find it take the act as Plaintiff-Appellee, Courts must according plain it and construe language employed. If meaning of the HOSPITALS, A.T. & S.F. MEMORIAL effect, given a different the act is to be INC., Defendant-Appellant. respect, it must be an act of in this No. 16497. Legislature. 219, 223, 308 P.2d Foy, 62 N.M. Burch v. Supreme Court of New Mexico. 199, 203 March statutory construc principles These in the case of Perea v. tion were reaffirmed (1980),

Baca, change in stated:

wherein the Court “[i]f necessary proper, that is a statute is Legislature.” at

task for the Id. Taylor In the case of Inc.,

Delgarno Transp., explained: this Court Mexico’s Workmen’s

“New liberally construed

statutes are to be However, provi of the workman.

favor disregarded in may not be

sions of the at

the name of a liberal construction.” Id. *6 omitted). (citations P.2d at 448 Co., 101 N.M. also v. Union Oil

See Varos (Ct.App.1984). degree statutory interpretation,

No no liberal,

matter how can alter the prohibits work-

of Section 52-1-19 which employ- compensation recovery

men’s employ- from their

ees

ment, proximately unless the were employer’s negligence. In-

terpreting Section 52-1-19 to include

“parking exception lot” is neither warrant- justified. Until such time as this

ed nor the Work-

Court holds Section 52-1-19 of unconstitutional,

men’s

it is the law of the state of New Mexico apply to of this case.

and should the facts reasons, I

For the above dissent.