*1
JUDGED are which here- its costs herein and recover $257.04. assessed TRUST, Represent Personal SECURITY Robert Earl ative of the Estate Deceased, Plaintiff, Johnson, Jr., SMITH, Smith, J. Gen d/b/a Ellis Ellis J. Smith, Contractor, Ellis J. d/b/a eral ORIGINAL DISCIPLINARY Associates, Chase J. De Ellis Smith PROCEEDINGS Company, American velopment Star FINAL JUDGMENT Corporation and Commercial Theater THIS MATTER came on hearing Company, be- Insurance d/b/a Com Union fore the upon full report Companies, In Assurance mercial Union recommendations of the Disciplinary surer, Board Defendants.
and the record of the Heаring Committee GOMEZ, Plaintiff, Michael J. which Discipli- considered matter. The nary represented Board was by William W. Gilbert, Fe, Counsel, Santa its Chief and the al., Defendants. J. SMITH et Ellis respondent represented by Bruce G. No. 12213. Stafford, Albuquerque. having The Court presentations heard the and hav- counsel Supreme Mexico. Court of New ing being fully considered the record and March advised, respondent, FINDS that R. Robert
Rickard, guilty unprofessional conduct
involving upon company his insurance fraud $2,500.00 (a felony) excess degree third viola- surrounding circumstances all 1- 1-102(A)(3),
tion of Disciplinary Rules 102(A)(4), New 1-102(A)(6) and § Mexico Statutes 1953 annotated. AD-
NOW IT ORDERED AND IS R. respondent, JUDGED Rоbert Rickard, from hereby be and he is disbarred
OPINION
McMANUS, Senior Justice.
Plaintiffs,
Trust,
Security
the Per
Representative
sonal
Estate of Rob
Johnson, Jr.,
Gomez,
ert E.
and Michael J.
brought negligence
actions
their
Smith,
ah,
employer, Ellis J.
et
in the Unit
ed States District Court for the District of
New Mexico.
answered both cоm
Smith
plaints, alleging as a defense that the New
(the
Compensation
Mexico
Act
Act)
plaintiffs’
exclusive
law tort action.
any
barred
Smith
summary judgment.
filed motions for
consolidated,
cases were
and the following
pursu
was certified to this Court
2-8,
[formerly
ant
N.M.S.A.
§ 34—
(Supp.1975)]:
Does the late
of insur-
ancе or a certificate of
thereof with
Court,
the District
Clerk of
re-
quired by
(Supp.1975)
N.M.S.A. 59-10-3
1978], constitute sub-
[§ 52-1—
Montano,
Williams v.
compliance,
stantial
(1976),
Every employer subject
to the Work-
men’s
Act
to 52-
[52-1-1
1-69 NMSA
shall file in the office
1978]
of the clerk of the district court for the
.county
is,
in which such workman
or it Perkal,
Branch,
Turner W.
Coleman &
contemplated at the time of such agree-
Branch,
Backinoff, Stephen
P.
A.
Rhonda
ment, such workman is to
employed,
Slusher, Albuquerque,
plaintiff.
for
prеvious to or
thirty days
within
Dickason,
Miller, Jr.,
Roy
Rodey,
F.
having
agreement,
made
such
ex-
Sloan,
Larrabee,
Robb,
Akin
B.
Charles
press
implied,
workman,
such
Dines,
Shaffer, Butt, Jones,
K.
Thornton &
good and sufficient undertak-
Shaffer, Albuquerque,
Gill
for defendants.
ing in
or,
the nature of insurance
evi-
recognized
certificate,
аlso
The Court
thereof in the form
deuce
to .
payment
Montano
security
aff’d,
or,
(Ct.App.1976),
Williams v. Monta
workmen,
in case of
(1976),
no, 89 N.M.
death,
person appointed
use,
mandatory,
“shall” is
un
....
to receive the same
court
*3
intent
less inconsistent with the manifest
of
added.)
(Emphasis
to the contеxt
Legislature
repugnant
or
the
52-1-8,
[formerly
Section
N.M.S.A. 1978
v.
the Montano Wil
of the statute. Since
59-10-5,
1974)]
(Repl.
N.M.S.A. 1953
§
Court,
decision,
as
as well
the
liams
part:
in
reads
continually
Appeals,
Court of
has
held
Any
who
with
complied
has
mandatory.
“shall” to be
Mountain States
provisions
Compen-
of the
the
90
Corp.,
Tel. v. New
N.M.
Mexico State
saton Act
to 52-1-69 NMSA
[52-1-1
325,
(1977);
Lujan,
588
v.
563 P.2d
State
90
insurance,-
1978], relating to
.
103,
(1977).
P.2d
N.M.
560
167
subject
liability
be
to any
shall not
other
Nevertheless,
mandatory provisions
the
personal
whatsoever for the
or
death of
by
have
the
of the Act
been eroded
doctrine
any employee,
excеpt
provid-
to
as
compliance”.
of “substantial
This Court
Compensation
ed in the Workmen’s
Act
compliance
the
of
first addressed
added.)
(Emphasis
. .
52-1—4 Mirabal
International
§
52-l-6(D),
[formerly
Section
1978
N.M.S.A.
576,
Corp.,
Minerals
Chemical
59-10-4(D),
(Supp.1975)]
case,
(1967).
plain-
the
In that
provides:
1964,
injured
September
on
but
tiff was
provisions
with the
of
Such
period
actually covering the
from
Act,
Compensation
includ-
the Workmen’s
was not filed
July
1963 to
July
insurance,
be,
provisions for
shall
ing the
plaintiff
The
filed a
until
October
be,
and construed to
a surrender
25, 1965.
law tort
on June
of
their
employee
and
This Court
that
method,
form or
rights
аny
other
accident, but
date of the
before
after the
compensation
amount of
or determination
action has been
negligence
any common
law,
thereof,
of action at
or to
cause
filed,
constituted
equity
or common-law
suit in
negligence
and
bar the
with the Aсt
would
proceeding
whatever
right
action.
inju-
personal
account of
for or on
such
a similar
reviewed
Appeals
The
of
employee
than
ries or death
Bros., Inc.,
Quintana
Nolan
situation
provided in the Workmen’s
(Ct.App.1969). In
added.)
(Emphasis
.
Act
.
.
.
plaintiff
was
on Octo-
Quintana, the
that Smith
stipulated facts indicate
The
covering
that
ber
or a
compensation policy,
file his
failed to
15, 1968.
January
filed on
After
day was
weeks
six
proof,
certificate of
until almost
filed,
plaintiff filed both
policy was
over
the first tort action was filed
after
and a
compensatiоn claim
a workmen’s
Plain-
accident.
eleven months
Ap-
action. The Court
wrongful death
substantially
argue that Smith has not
tiffs
Mirabal,
following
affirmed
dis-
peals,
therefore,
is,
52-1—4 and
complied
wrongful death
of the
trict court’s dismissal
liability.
agree.
subject to tort
action.
1978'
[for
Section
the most recеnt
v. Williams is
Montano
1970)],
(Repl.
merly
question. The
case which addresses this
statutory construction.
rules of
damages
sets forth
result-
plaintiff
sued Williams
provides:
I
Subsection
of decedent.
ing
wrongful
death
from
dismiss,
man-
are
motion to
“will”
The defendants filed a
“shall” and
words
[T]he
or direc-
covered
contending
thеy
that
were
“may”
permissive
datory and
compensation insurance
tory.
.
.
.
time
injuries.
ignored.
decedent received his
visions
the Act cannot be
If the
Cer-
mandatory provisions
disregarded
tain
are
payments
the Act
alto-
under
had been
made,
gether it
intention
is clear that
of the
but
never filed. The
Legislature
totally
would
frustrated. As
trial
court
the wrongful
dismissed
death
Appeals
Court of
noted in Montano v.
grounds
on the
the defendants
Legislature
say
did not
complied
had substantially
with the Act.
simply
complied
procuring
a
with the
reversed,
Court of
holding that
provisions
of the Workmen’s
the еmployer’s
to comply
failure
52-1-4
language
clearly
provisions
relating
of the Act
to insurance
more;
requires
it
requires something
gives an
right
bring
policy,
coverage,
of the
common law action
the employer.
with the district court.
The Court of
Appeals,
distinguishing
Montano v.
from the
Quin-
Williams
earlier
The Workmen’s
Act is
*4
decisions,
tana
perceived
and Mirabal
liberally interpreted
remedial and should be
filing
purposes.
tort
accomplish
common law
action to
so as to
Lucero v.
be the
its
Co.,
11,
dividing
R.
Contracting
line:
C. Davis
71 N.M.
375
(1962),
grounds,
P.2d 327
on other
overruled
When the employer actually files an
Kennedy,
665,
Mascarenas v.
74 N.M.
397
insurance policy before a workman seeks
(1964).
time,
P.2d 312
At the same
how
relief,
common law
the workman is not
ever,
in
the statute
not be construed
should
prejudiced. Compliance with the statute
nullify
provi
certain of
way
as to
its
is effected.
.
Bоggs
sions.
LD & Construction Com
hand,
On the other
when an employer
502,
pany,
(1963),
P.2d 788
N.M.
does
policy,
not file an
may
insurance
it
overruled on
Am. Tank &
grounds,
other
waiver, express
constitute a
implied,
513,
Corp. v.
Thompson,
Steel
his right
protection
of the statute.
(1977). Allowing
Compensa
P.2d 1030
gives
. The statute
the workman
tiоn Act to
a bar to a tort
as
.stand
a right to
which
choose
road to take for
employer
anything,
when the
failed to file
added.)
(Emphasis
relief.
comply
or otherwise to
with
until
§
Id. at
573.
P.2d at
action,
after
of the tort
commencement
Certiorari
granted
in Williams v.
abrogate
employеr
An
would
this section.
Montano because it was not clear whether
policies,
to file
would have no reason
since
Court of
was requiring strict
penalty
no real
be inflicted for his
would
compliance or
compliance
substantial
with
failure to do so.
52-1-4.
set
§
This Court
forth the stan-
give
In order
its full effect as
52-1^4
dard to
applied:
be
contemplated by
Legislature,
it is our
The standard in New Mexico for foreclo-
opinion
by
that the
certified to us
sure of an employee’s common law reme-
the U. District Court must be answered
S.
dies
employer
is whether the
has substan-
Filing proof
nеgative.
coverage
in the
tially complied
with Workmen’s Com-
a tort action
commencement of
does
pensation
compliance
is not
Strict
not
with
constitute substantial
necessary.
Therefore,
requirements
52-1^4.
of §
1-6(D),
and
by
indicated
52-1—8
Id. at
In v. Nolan determining these cases In is sufficient. (Ct.App.1969), the court compliance, all what prior constitutes substantial obtained that a afterwards, provisions of the accident, of the Com- and filed but before filed, pensation into compli- suits was substantial be taken consider- had been Act should pro- ance court again with the Act. The reiter- ation. In had this case the weekly pro- insurance, paid ated that since the insurance had been com- vided the had pensation, treatment, had furnished medical 596 P.2d negotiated had plaintiff his Anderson, Cliff ANDERSON and Jill lawyer, and had done everything the Act Hill d/b/a Nob Restaurant and St. Paul except called for Company, Petitioners, Insurance certificate in the district court clerk’s office. prejudice There was no preclu- unless the MACKEY, Respondent. Connie sion of the cоmmon law negligence action can, alone, taken categorized. be so No. 12370. When policy filing requirement Supreme Court of New Mexico. along read provisions the other of the May 16, 1979. Act, Workmen’s Compensation the Act indi Rehearing Denied June
cates that it was not the legislative intent penalize by denying him access to all the defenses available under
the law for his mere failure to file the
policy or certificate. Meyer See v. Noble
Drilling,
Incorporated,
Co., Inc., 495 541 (Ct.App.Tenn. S.W.2d 1972).
I would certify the following answer to the United States District Court for the
District of New upon Mexico: Based specific facts in this case and the failure of
plaintiff prejudice, to show of insurance a certificate of
thereof with the Clerk of the District Court after the injuries date of a claimant’s
after claimant filed suit in federal court
seeking common law reme- dies other than provided by those the Work-
men’s Compensation Act constitutes sub- stantial with § 1978 (formerly § (Supp.1975)). majority my
Since a colleagues do not agree, I respectfully dissent.
EASLEY, J., concurs.
Durrett, Jordon, Conway, O’Reilly John E. Alamogordo, petitioners. Conway,