Beckham v. Brown's Estate
| Decision Date | 21 April 1983 |
| Docket Number | Nos. 7003,7037,s. 7003 |
| Citation | 100 N.M. 1,664 P.2d 1014,1983 NMCA 51 |
| Parties | Diana May BECKHAM, Individually and as Personal Representative of the Estate of Harry Clifton Beckham, Deceased, Plaintiff-Appellant, v. ESTATE OF John C. BROWN, Deceased, Basin Motor Company, and Travelers Insurance Companies, Defendants-Appellees, BASIN MOTOR COMPANY and The Travelers Insurance Companies, Plaintiffs- Appellees, v. Diana BECKHAM and Sylvia Roberts, Individually and as next friend of Richard Beckham, Alan Robert Beckham and Carla Jolene Beckham, minors, Defendants- Appellants. SECURITY TRUST COMPANY, Personal Representative of the Estate of Jerel Reed, Deceased, Plaintiff-Appellee, v. ESTATE OF John C. BROWN, Deceased, and Basin Motor Company, Defendants- Appellants. |
| Court | Court of Appeals of New Mexico |
These interlocutory appeals present the question of whether, on undisputed facts, a salesman's death on a social trip comes within our Workmen's Compensation Act. Cause No. 7003 involves two cases consolidated in the trial court for purposes of appeal. Cause No. 7037 was consolidated with Cause No. 7003 in this Court for the purpose of deciding the substantive issues. We first decide Cause No. 7003, and then apply that decision to Cause No. 7037.
We (1) dispose of preliminary matters; (2) state the undisputed facts; (3) discuss arising out of and in the course of employment; and (4) discuss the applicability of the "going and coming" rule. We hold that the wrongful death claim is not barred by the exclusivity provisions of the Workmen's Compensation Act.
Harry Clifton Beckham, a car salesman for Basin Motor Company, died in a plane crash. Beckham and other salesmen were being flown from Farmington to Albuquerque to have dinner and attend a University of New Mexico basketball game. The trip was a prize for being a winner in a sales contest. Suit was filed seeking damages for wrongful death or in the alternative for worker's compensation benefits. After extensive discovery both sides moved for summary judgment. The trial court granted summary judgment, ruling that the wrongful death claim was barred by the exclusivity provisions of the Workmen's Compensation Act.
If the death comes within the provisions of the Workmen's Compensation Act, that Act provides the exclusive remedy and the claim for damages under the Wrongful Death Act was properly dismissed. Section 52-1-8, N.M.S.A.1978; Dickson v. Mountain States Mut. Cas. Co., 98 N.M. 479, 650 P.2d 1 (1982); Mountain States Tel. & Tel. Co. v. Montoya, 91 N.M. 788, 581 P.2d 1283 (1978). The issue is whether the Workmen's Compensation Act applies. The issue is presented on the basis of undisputed facts; the applicability of the Workmen's Compensation Act to those facts is a legal matter. Edens v. New Mexico Health & Social Services Dept., 89 N.M. 60, 547 P.2d 65 (1976).
Because the appeal involves consolidated cases, identification of a party as plaintiff or defendant would not be appropriate. See R.Civ.App. 9(p), N.M.S.A., 1978 (1982 Cum.Supp.). We identify the parties on the basis of contentions in this appeal. We recognize that the question of proper parties in the trial court proceedings and the related issue of possible conflicts of interest on the part of attorneys will be affected by our decision. Neither our decision nor the mandate will foreclose the trial court, upon remand, from resolving the question of proper parties and alleged conflicts of interest. See Genuine Parts Co. v. Garcia, 92 N.M. 57, 582 P.2d 1270 (1978).
In this appeal (a) Beckham's personal representative, (b) Beckham's widow, and (c) the mother of Beckham's minor children (collectively referred to hereinafter as "Beckham") contend that the Workmen's Compensation Act is not applicable. This position is taken even though there is a hazard as to the amount of any wrongful death recovery. See Strickland v. Roosevelt Cty. Rural Elec., 99 N.M. 335, 657 P.2d 1184 (Ct.App.1982). Basin Motor Company, which is the employer, and its worker's compensation insurer (collectively referred to hereinafter as "Basin") contend the Workmen's Compensation Act applies. Thus, the employer and the compensation insurer seek to expand the Workmen's Compensation Act to a situation characterized in 1A Larson, Workmen's Compensation Law Sec. 22.00 (1982), as a "comparatively recent development" even though such expansion has some affect on actuarial soundness of compensation coverage, and on premiums for the coverage. See Martinson v. W-M Ins. Agcy., Inc., 606 P.2d 256 (Utah 1980). Basin describes its position as "responsible employee protection" consistent with "a humanitarian and economical system for compensating injured workmen and their families * * *." We are not concerned with the reasons for the positions taken by Beckham and Basin; our concern is limited to the legal correctness of their contentions.
The following numbered paragraphs set forth undisputed facts that are material.
1) Basin sells cars. Basin conducts contests for its salesmen because the contests stimulate achievement by the competition among salesmen and this results in more sales by Basin. The more cars sold by a salesman, the more the salesman earns in commissions and bonuses. Contests provide an incentive for something in addition to commissions and bonuses; a prize goes to the contest winners. The prize varies; it may be a meal at Basin's expense; it may be a trip at Basin's expense. Sales contests are so frequent that the contests may be characterized as a regular, common aspect of a salesman's employment by Basin.
2. Basin had a sales contest for the month of February, 1981. The prize was a trip from Farmington to Albuquerque to have dinner and attend a University of New Mexico basketball game. All expense was to be paid by Basin; transportation was to be provided by Basin.
3. Five men were flying from Farmington to Albuquerque on February 28, 1981 in a plane owned by Basin, and piloted by a Basin employee, when the plane crashed and the occupants were killed. All the men were not prize winners. Beckham, however, was aboard the plane as a prize winner.
4. The plane crash did not occur on Basin's premises.
5. Beckham was not being paid any money for his participation in the trip to Albuquerque.
6. No business was to be conducted on the trip. Beckham had no work-related activities to perform on the trip. The only work-related activity of Basin was in providing the trip it had promised.
7. The plane may have departed Farmington prior to the expiration of Basin's usual working hours for salesmen on the day of the trip, a Saturday. However, all occupants of the plane had left the business premises and left their work as salesmen prior to the trip. They met at Beckham's home before going to the airport to board the plane.
8. Prize winners were not required to accept the prize. Two winners declined to go on the trip. Beckham was under no compulsion from Basin to go on the trip.
9. The February 1981 sales contest benefited Basin in that there was an increase in sales. However the prize trip itself benefited Basin only through anticipated improved relations among the salesmen taking the trip.
The briefs present additional undisputed facts, but they are not material. The additional facts are: (a) that a non-employee of Basin was jokingly invited, but did not go on the trip; (b) that a non-winner was substituted when a winner declined the trip; (c) that Basin tendered compensation benefits to Beckham and the other salesmen; (d) that a lump-sum compensation settlement was agreed to in connection with one of the deaths. These facts are not material, that is, not important to or not influential in resolving the legal question of whether Beckham's participation in the trip subjects his death to the exclusivity provisions of the Workmen's Compensation Act. See State v. Sierra, 90 N.M. 680, 568 P.2d 206 (Ct.App.1977); compare Lent v. Employment Sec. Com'n of State of N.M., 99 N.M. 407, 658 P.2d 1134 (Ct.App.1982). Items (a) and (b) have nothing to do with Beckham's participation in the prize trip; Items (c) and (d) would be of importance and would be admissible evidence against Basin if Beckham were claiming compensation and Basin were denying compensation. See Gonzales v. Stanke-Brown & Associates, Inc., 98 N.M. 379, 648 P.2d 1192 (Ct.App.1982); Southern Union, Etc. v. Wynn Exploration, 95 N.M. 594, 624 P.2d 536 (Ct.App.1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1276, 71 L.Ed.2d 461 (1982). However, Basin's voluntary tender of compensation after the crash occurred does not aid in resolving the question of whether the trip, while in progress, came within the Workmen's Compensation Act.
Section 52-1-9, N.M.S.A.1978, states the requirements which, if met, make the Workmen's Compensation Act exclusive. The only requirement in dispute states: "at the time of the accident, the employee is performing service arising out of and in the course of his employment[.]" See Sec. 52-1-28, N.M.S.A.1978.
Beckham suggests that the "arising out of" requirement is not met by the undisputed facts. "Arising out of" is not dispositive of this issue. "For an injury to arise out of employment, the injury must have been caused by a risk to which the injured person was subjected in his employment." Velkovitz v. Penasco Independent Sch. Dist., 96 N.M. 577, 633 P.2d 685 (1981); Losinski v....
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