Armenta v. A.S. Horner, Inc.

• Citation: 356 P.3d 17
• Decision Date: 10 June 2015
• Docket Number: No. 35,398.,33,813.,35,398.
• Parties: Isabel ARMENTA, Personal Representative for Estate of Manuel Armenta, Deceased, Plaintiff–Appellant, v. A.S. HORNER, INC., a New Mexico corporation, John Doe I and John Doe II, Defendants–Appellees.
• Court: Court of Appeals of New Mexico

356 P.3d 17

Isabel ARMENTA, Personal Representative for Estate of Manuel Armenta, Deceased, Plaintiff–Appellant

v.A.S. HORNER, INC., a New Mexico corporation, John Doe I and John Doe II, Defendants–Appellees.

33,813.

No. 35,398.

Court of Appeals of New Mexico.

June 10, 2015.

Certiorari Granted, Aug. 26, 2015,

Mel B. O'Reilly, Law Office of Mel B. O'Reilly, LLC, Albuquerque, NM, for Appellant.

Thomas L. Johnson, Andrew L. Johnson, Johnson Law Firm, L.C., Albuquerque, NM, for Appellee.

OPINION

BUSTAMANTE, Judge.

{1} In this appeal from the grant of summary judgment to A.S. Horner, Inc. (Defendant), we address whether there exist disputed material facts as to (1) whether the Workers' Compensation Act provides the exclusive remedy for Isabel Armenta's claim, and (2) whether Defendant negligently entrusted one of its vehicles to Manuel Armenta (Manuel), Plaintiff's husband and decedent. We reverse.

BACKGROUND

{2} Isabel Armenta, (Plaintiff), personal representative of the estate of her husband, Manuel, brought suit against Manuel's employer, Defendant, for negligent entrustment after Manuel was killed in a single-car accident while driving Defendant's vehicle. The undisputed facts leading to Manuel's death are as follows. Manuel and a number of other workers were sent to Springer, New Mexico, to work on road maintenance on I–25. Defendant arranged for motel rooms for some of its workers, including Manuel, while they were in Springer. During the last week of work in Springer, Defendant provided a Chevy Suburban vehicle to transport some of the workers from Albuquerque to Springer.

{3} Because Manuel had been convicted for driving while intoxicated in 2001, Defendant's safety director had determined that Manuel would not be permitted to drive Defendant's vehicles, and he was listed on Defendant's “do not drive” list. Nevertheless, although the parties dispute whether Manuel was issued the Suburban in Albuquerque, they agree that at some point Manuel drove the vehicle after it was picked up from Defendant's facility. They also agree that after work on the day of the accident, Manuel drove the Suburban from the motel to the grocery and liquor stores and returned with supplies for a barbecue with the other employees. The employees at the motel, including Manuel's supervisor, had pitched in money to purchase these supplies. Both Manuel's supervisor and a superintendent employed by Defendant knew that Manuel had driven the Suburban to or while in Springer. The superintendent had advised Manuel in the week before the accident that Defendant's vehicles were supposed to be parked after work hours, except that they could be used to pick up supplies needed for the night. In addition, on the evening of the accident, after eating dinner with the employees and as he was leaving for his room, Manuel's supervisor told the employees, including Manuel, “to drink moderately and to not leave [the motel].”

{4} In spite of this warning, Manuel and another employee left the motel in the Suburban headed toward Raton. Manuel was killed in an accident about five miles north of Springer on I–25. Manuel's blood alcohol concentration (BAC) was .23 at the time of his death.

DISCUSSION

{5} Defendant argued in the motion for summary judgment that Plaintiff's claims “are barred by the exclusivity provisions of the Workers' Compensation Act” or, alternatively, “Plaintiff cannot meet the requisite evidentiary standard of gross negligence and reckless disregard set forth in Sanchez v. San Juan Concrete Co., 1997–NMCA–068, 123 N.M. 537, 943 P.2d 571.” It is not clear from the district court's order on which basis summary judgment was granted. Defendant points to the district court's oral rulings as evidence that summary judgment was granted on the ground that the Workers' Compensation Act was Plaintiff's exclusive remedy. But “[a district] court's oral statements as to the basis for its ruling, made before judgment is entered, and not embodied therein, cannot be considered part of the judgment.” In re Adoption of John Doe, 1982–NMCA–094, ¶ 49, 98 N.M. 340, 648 P.2d 798. We therefore consider whether summary judgment is appropriate under either theory advanced by Defendant.

A. Workers' Compensation

{6} Defendant argues that the Workers' Compensation Act (the Act) provides the exclusive remedy for Plaintiff's claim because Manuel was a traveling employee covered by the Act at the time of the accident.See NMSA 1978, §§ 52–1–1 to –70 (1929, as amended through 2013). Generally, “the Act makes workers' compensation benefits the worker's exclusive remedy for all accidental injuries.” Salazar v. Torres, 2007–NMSC–019, ¶ 11, 141 N.M. 559, 158 P.3d 449 ; see § 52–1–9 ; see also § 52–1–6(E) (“The Workers' Compensation Act provides exclusive remedies.”). Section 52–1–19 precludes compensation under the Act for injuries suffered while going to work or returning home from work. This provision is known as the “going-and-coming rule.” Ramirez v. Dawson Prod. Partners, Inc., 2000–NMCA–011, ¶ 7, 128 N.M. 601, 995 P.2d 1043. The exception to the going-and-coming rule invoked by Defendant is known as the “traveling-employee exception.” Id. (internal quotation marks omitted).

{7} Under the “traveling-employee exception,” “[t]he general rule is that an employee whose work entails travel away from the employer's premises is, in most circumstances, under continuous workers' compensation coverage from the time he leaves home until he returns.” Id. ¶ 11 (internal quotation marks and citation omitted). “The rationale behind the traveling[-]employee rule is that an employee who is required to travel away from home is furthering the business of his employer as he eats, sleeps, and performs other acts necessary to his health and comfort during his travels.” Id. ¶ 12 (internal quotation marks and citation omitted). A traveling employee is one who travels to various locations as an integral part of his or her work. Id. ¶ 11.

{8} Since the exception applies during the entire time the employee is traveling, it necessarily encompasses injuries incurred while the employee is not actually working, such as when the employee is engaged in leisure or recreational activities. Id. ¶ 13. However, “one seeking compensation for an injury must still demonstrate that the injury arose out of and in the course of employment.” Id. ¶ 14 (internal quotation marks and citation omitted); see § 52–1–9(B). As it pertains to leisure and recreational activities by traveling employees, this requirement is “met if the traveling employee was injured while engaging in an activity that was both reasonable and foreseeable [,]” id. ¶ 15, and if that activity is not “conducted in an unreasonable or unforeseeable manner.” Id. ¶ 16. Finally, the activity “must confer some benefit on the employer; ... it must be reasonably related or incidental to employment.” Id. “The benefit to the employer need not be pecuniary, and may be as intangible as a well-fed and well-rested employee.” Id. ¶ 17.

{9} A number of factors define whether a traveling employee's activity falls within the reach of the Act. These include “whether the injury takes place within the period of employment, at a place where the employee may reasonably be, and while the employee is reasonably fulfilling the duties of employment or doing something incidental to it.” Chavez v. ABF Freight Sys., Inc., 2001–NMCA–039, ¶ 11, 130 N.M. 524, 27 P.3d 1011 (internal quotation marks and citation omitted). The Chavez Court stated the factors as “whether the activity was reasonable and foreseeable; whether the injury occurred during a distinct departure from employment for a personal errand; whether the activity was conducted in an unreasonable or unforeseeable manner; and whether the activity giving rise to the injury conferred some benefit on the employer.” Id.;see also Rodriguez v. Permian Drilling Corp., 2011–NMSC–032, ¶ 14, 150 N.M. 164, 258 P.3d 443 (listing additional factors). These factors “represent an attempt to draw the line between conduct reasonably related to employment and conduct that is so foreign to and removed from the employee's usual employment as to constitute an abandonment thereof.” Chavez, 2001–NMCA–039, ¶ 12, 130 N.M. 524, 27 P.3d 1011 (alteration, internal quotation marks, and citation omitted).

{10} Instead of disputing the basic facts related to the traveling-employee exception, Defendant simply argues that the exception applies and, therefore, the Act is Plaintiff's exclusive remedy. For the most part, Plaintiff does not contest that Manuel was a traveling employee. Rather, Plaintiff argues that Manuel was not in the scope and course of employment when the accident occurred. Plaintiff also argues that Manuel's conduct was unreasonable and therefore did not fall within the type of leisure activities encompassed by the Act. Although whether an employee is acting within the course of employment for purposes of the traveling-employee exception is generally a question of fact, when the relevant facts are undisputed an appellate court may resolve the issue as a matter of law. See City of Santa Fe v. Hernandez, 1982–NMSC–036, ¶ 6, 97 N.M. 765, 643 P.2d 851 (stating that an appellate court may determine whether an employee was in the scope of employment as a matter of law based on undisputed facts); Flavorland Indus., Inc. v. Schumacker, 32 Wash.App. 428, 647 P.2d 1062, 1066 (1982) (stating that “[w]hether [the decedent's] intoxication constituted an abandonment of his employment was for the jury to decide”). We agree with Plaintiff that given the undisputed facts here, Manuel was not within the course of employment when he left the motel in the Suburban in an intoxicated state.

{11} First, the parties agree that Manuel was headed to Raton, that Defendant had no business interests in Raton, and that Manuel was not instructed to go to Raton and was, in fact, instructed not to leave the motel. Indeed, Defendant agrees that Manuel “took the vehicle to party in...