Matkins v. Zero Refrigerated Lines, Inc.

• Decision Date: 26 July 1979
• Docket Number: No. 3449,3449
• Citation: 1979 NMCA 95,602 P.2d 195,93 N.M. 511
• Parties: Jerome D. MATKINS, Administrator of the Estate of Johnny Lee Smith, Deceased, Plaintiff-Appellant, v. ZERO REFRIGERATED LINES, INC., a foreign corporation, and Jack D. Browning, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 195

602 P.2d 195

93 N.M. 511

Jerome D. MATKINS, Administrator of the Estate of Johnny Lee

Smith, Deceased, Plaintiff-Appellant, v. ZERO REFRIGERATED LINES, INC., a foreign corporation, and Jack D. Browning, Defendants-Appellees.

No. 3449.

Court of Appeals of New Mexico.

July 26, 1979.

Rehearing Denied Aug. 10, 1979.

W. T. Martin, Jr., Matkins & Martin, Carlsbad, for plaintiff-appellant

Lawrence H. Hill, Civerolo, Hansen & Wolf, Albuquerque, for defendants-appellees.

OPINION

WALTERS, Judge.

Plaintiff-appellant, as administrator of the estate of Johnny Lee Smith, appeals from the order of the trial court granting summary judgment in favor of defendants Browning and Zero Refrigerated Lines, Inc. (Zero) in this wrongful death action. We reverse the summary judgment entered in favor of Zero and affirm the summary judgment granted to Browning.

Appellant's deceased and Browning were employed as truck drivers by R & M Truck Company (R & M). R & M entered into a lease agreement with Zero, a licensed interstate common carrier, by which R & M agreed to furnish a truck and two drivers and Zero agreed to furnish the trailers for transporting commodities. Zero, as the holder of an ICC license, was the authorized entity to engage in transportation in interstate commerce. Under the negotiated leasing contract, R & M had sole responsibility for hiring, firing, directing and training the drivers, paying their wages, and providing for unemployment and workmen's compensation benefits. R & M was to be paid by the mile upon submitting documentation to Zero of its performance of the contract. R & M paid all expenses, including maintenance, operation costs and fees. It is not clear from the record to whom the drivers reported on a regular basis for instructions concerning the kind and destination of the commodities they delivered. The record does indicate, however, that R & M maintained all records on deliveries.

On November 12, 1973 Smith was killed while riding as a passenger in the leased truck, driven by Browning, when the truck failed to negotiate a curve and overturned. It is not disputed that Smith was killed during the course of his employment.

Appellant filed this wrongful death action charging Zero with liability for the negligence of Browning, as its agent, and Browning for his own negligence. Appellees denied liability and moved for summary judgment, resting on the pleadings. Summary judgment is proper when there is no genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law. N.M.R.Civ. 56(c), N.M.S.A.1978. Where, as here, the motion is made solely on the pleadings without supporting affidavits, it serves the same function as a motion for judgment on the pleadings. N.M.R.Civ. 12(c), N.M.S.A. 1978. See Valdez v. City of Las Vegas, 68 N.M. 304, 361 P.2d 613 (1961). The appellees actually admit, for purposes of the summary judgment motion, the veracity of the allegations in the complaint and argue that even under the facts as alleged appellant is not entitled to relief. See Worley v. United States Borax and Chemical Corp., 78 N.M. 112, 428 P.2d 651 (1967). In deciding this case, we therefore consider the facts pleaded as undisputed and determine if a basis is present to decide the issues as a matter of law.

Assuming the facts recited above are true, the trial court must have based its decision on the determination that (1) Smith (deceased) and Browning were employees of Zero; thus, appellant's exclusive remedy was under the Workmen's Compensation Act; or (2) if Smith and Browning were employees of R & M, the negligence of Browning, as an employee of R & M, could not be imputed to Zero.

As a preliminary matter, it must be pointed out that the exclusivity provision of the Workmen's Compensation Act does not preclude an employee or his estate from seeking damages against a third party who is not an employer, coemployee, or insurer or guarantor of his employer, § 52-1-6, N.M.S.A.1978. Thus, although the estate of deceased had received workmen's compensation benefits from R & M by means of a settlement agreement, appellant is not denied the right to bring suit against a third-party tortfeasor. Moreover, R & M's compensation carrier may gain the right of reimbursement from Zero depending on the success or failure of plaintiff at trial. § 52-1-56 N.M.S.A.1978; Reed v. Styron, 69 N.M. 262, 365 P.2d 912 (1961).

Employer-Employee Relationship

Appellees assert that the ICC regulations regarding leasing of vehicles for use in interstate transportation of goods, 49 C.F.R. §§ 1057.1 through 1057.6, are controlling in this situation and create an employer-employee relationship as a matter of law. Section 1057.4(a)(4), promulgated under 49 U.S.C. § 304(e), requires as a condition for licensed lessee-carriers to "perform authorized transportation in or with equipment which they do not own," that the contract with the lessor of the equipment

(s)hall provide for the exclusive possession, control and use of the equipment, and for the complete assumption of responsibility thereto, by the lessee for the duration of said contract The cases cited by appellees relating to the ICC regulation were not concerned with the liability of the lessee to the worker as that liability might be affected by a claim for workmen's compensation benefits. In Weeks v. Kelley, 377 A.2d 444 (Me.1977), the court held that the common carrier-lessee was liable, as a matter of law, for any negligence attributable to the driver while operating leased equipment. Although the court determined that the ICC regulation "create(d) a relationship between the lessee carrier and the operator of the leased equipment comparable to that of employer-employee," Id. at 447, it emphasized that the liability was for Negligence. Nothing was said in Weeks about a conflicting employer-employee status resulting from application of a workmen's compensation law and, therefore, it is not helpful in analyzing the issue before us.

Appellees also refer us to a United States Supreme Court case, Transamerican Freight Lines, Inc. v. Brada-Miller Freight Systems, Inc., 423 U.S. 28, 96 S.Ct. 229, 46 L.Ed.2d 169 (1975), which indicates that the carrier-lessee has the obligation of control and responsibility for operation of the equipment imposed by the ICC regulation; and they urge us that, by implication, Zero must be considered Smith's employer and thus subject only to a workmen's compensation claim. The Court's decision, however, focused on the development of the ICC regulation to satisfy the need for making and keeping the carrier-lessee "responsible to the public, the shipper, and the Commission." 423 U.S. at 39, 96 S.Ct. at 235. It was held in Transamerican, supra, that an indemnity clause directed toward the lessor's negligence did not conflict with the safety concerns of the ICC regulations. The question we are faced with, i. e., a third-party tort action, in addition to a workman's compensation claim, never arose.

Zero and R & M complied with the ICC regulation, as evidenced by P 3 of their contract:

The CARRIER shall have such exclusive possession, control and use of the CONTRACTOR'S equipment and shall assume responsibility in respect thereto to the extent required by the rules and regulations of the Interstate Commerce Commission and the Federal Highway Administration.

However, Zero passed on to R & M any responsibility it might have had to the deceased for workmen's compensation benefits, in P 6:

The CARRIER shall not be responsible for Workmen's Compensation Insurance covering the CONTRACTOR, its drivers, helpers and laborers. Such matters are the sole and exclusive responsibility and liability of the CONTRACTOR.

Appellees reason that since New Mexico case law emphasizes the right of control in determining if a worker is an employee, Yerbich v. Heald, 89 N.M. 67, 547 P.2d 72 (Ct.App.1976), we should be persuaded by those cases which hold that the ICC regulation creates a right of control in the lessee and thus an employer-employee relationship, and conclude such an employer-employee relationship as a matter of law for all purposes, even for the purpose of workmen's compensation law.

We must acknowledge first, however, that the New Mexico courts have repeatedly held that the employment status of a worker must be determined on a case-by-case basis. Shipman v. Macco, 74 N.M. 174, 392 P.2d 9 (1964); Burruss v. B. M. C. Logging Co., 38 N.M. 254, 31 P.2d 263 (1934).

Secondly, although the major test which has emerged in New Mexico for determining status of employment is right of control of the details of the work, Shipman v. Macco, supra, that test is considerably modified when the work involved is "hauling." Hauling of material to or from a work site is more analogous to the lessee-carrier situation presented here than are those cases in which a worker employed by one person goes to work on the premises of another person. We must draw on the former type of cases for our resolution of this appeal. In Abbott v. Donathon, 86 N.M. 477, 525 P.2d 404 (Ct.App.1974), where the alleged employee was killed while hauling material in his own truck for the defendant, this court observed:

We feel that the power of termination is of great importance in this case because the facts are so similar to those in Burruss. That case also involved an alleged employee who was killed while hauling material in his own truck. In that case there was the same lack of "superintendence" or of "authoritative control," which defendants rely upon here. In cases involving hauling there is likely to be little actual direction other than as to time and place. Since the factor of actual control of details, often relied upon by courts in resolving this same issue, is not likely to be helpful here, the importance of other tests, such as power of termination and method of payment, is magnified.

86 N.M. at 478-479, 525 P.2d at 405-406.

Whether the test...