Clemmer v. Carpenter
| Decision Date | 08 June 1982 |
| Docket Number | No. 5354,5354 |
| Citation | 648 P.2d 341,98 N.M. 302,1982 NMCA 98 |
| Parties | Mary Ann CLEMMER, Individually and as wife and Personal Representative of Rex G. Clemmer, Deceased, Plaintiff-Appellee, v. William H. CARPENTER and Employers Insurance of Wausu, Defendants-Appellants. |
| Court | Court of Appeals of New Mexico |
Leland S. Sedberry, Jr., Thomas L. Johnson, Modrall, Sperling, Roehl, Harris & Sisk, P. A., Albuquerque, for defendants-appellants.
Willard F. Kitts, Elizabeth E. Whitefield, Kitts & Whitefield, Albuquerque, for plaintiff-appellee.
The defendants appeal a judgment awarding death benefits to plaintiff in a workmen's compensation case. We affirm.
Rex Clemmer was employed by attorney William Carpenter as a legal assistant. He was also a member of the Coast Guard Reserve. Both Clemmer and Carpenter lived in Estancia and worked in Albuquerque.
On the morning of February 19, 1979, a Saturday, Clemmer was killed in an automobile accident while driving from Estancia to Albuquerque. It had snowed 10 inches the previous night. Clemmer was going to Albuquerque to attend a Coast Guard Reserve meeting at 7:45 a.m., and also to do some work for Carpenter after the meeting. He was supposed to contact and subpoena a witness for an upcoming trial the following Tuesday and pick up some transcripts that Carpenter had forgotten to take home. Carpenter needed the transcripts at home over the week-end, and Clemmer was to pick them up at the office and take them back to Carpenter in Estancia.
Clemmer's widow and stepdaughter receive dependency and indemnity compensation from the Veterans Administration as a result of Clemmer's death on the way to the Coast Guard meeting.
The defendants set out six points in their brief-in-chief but we consolidate the issues under three topics for discussion: 1. whether Rex Clemmer was engaged in a special mission for Carpenter at the time of his death; 2. whether the plaintiff is barred from receiving workmen's compensation benefits under the New Mexico Workmen's Compensation Act, because she is also receiving federal dependency and indemnity compensation; and 3. whether the dual purpose or employment doctrine is applicable to Clemmer's trip.
In addition to the points raised in their brief, at oral argument the defendants also raised the issue of this court's denial of their motion to remand to the trial court with instructions to dismiss the workmen's compensation claim. The basis for the defendants' motion was their contention that the plaintiff was estopped from claiming these benefits, because she settled a suit for damages against two tortfeasors who either caused or contributed to the fatal accident. The record indicates that the plaintiff, as personal representative of the estate of the decedent, settled damages against third party tortfeasors on behalf of the decedent's three daughters. She did not proceed in that case on her own behalf. The plaintiff filed a document that she had elected to seek entitlement under the Workmen's Compensation Act. She has not received and will not receive any monetary benefits from the settlement in question. The settlement occurred after the workmen's compensation suit was tried and after the brief-in-chief was filed, but before the answer brief was filed. Chief Judge Mary C. Walters denied defendants' motion to dismiss prior to submission of this case to this panel.
The portion of the Workmen's Compensation Act applicable to this issue is § 52-1-56(C), N.M.S.A. 1978:
The right of any workman, or, in case of his death, of those entitled to receive payments or damages for injuries occasioned to him by the negligence or wrong of any person other than the employer or any other employee of the employer, including a management or supervisory employee, shall not be affected by the Workmen's Compensation Act, but he or they, as the case may be, shall not be allowed to receive payment or recover damages therefor and also claim compensation from the employer, and in such case the receipt of compensation from the employer shall operate as an assignment to the employer, his or its insurer, guarantor or surety, as the case may be of any cause of action, to the extent of payment by the employer to the workman for compensation, surgical, medical, osteopathic, chiropractic, and hospital services and medicine occasioned by the injury which the workman or his legal representative or others may have against any other party for the injuries or death. In White v. New Mexico Highway Commission, 42 N.M. 626, 83 P.2d 457 (1938), the New Mexico Supreme Court held that a release to a third party tortfeasor barred the claim of the claimant on a compensation case. See also Kandelin v. Lee Moor Contracting Co., 37 N.M. 479, 24 P.2d 731 (1933) which dealt with a suit against a third party after compensation was paid. In Brown v. Arapahoe Drilling Company, 70 N.M. 99, 370 P.2d 816 (1962) the decedent's administrator and widow filed suit against a third party tortfeasor. After losing that action, she filed suit for workmen's compensation. The prior unsuccessful court action did not bar the second workmen's compensation action. Our Supreme Court said:
Admittedly, if Brown's administrator had recovered in the third-party action, White v. New Mexico Highway Commission, supra, would be controlling; but here there was a judgment for the defendant, entered after a jury trial, and therefore no one has "received payment or recovered damages" and also claimed compensation. The statute plainly intends to prevent dual recovery, and we do not believe that an erroneous selection or election of remedy should be construed as forever terminating the right to receive the benefits of the Workmen's Compensation Act.
The purpose of § 52-1-56(C) is to prevent dual recovery but that purpose does not extend to limiting accessibility to workmen's compensation benefits outside of a dual recovery situation. The policy set out in Brown favors the availability of an action under the Workmen's Compensation Act when dual recovery is not at issue. The plaintiff in this case elected to seek compensation only under the Workmen's Compensation Act. Therefore, the plaintiff's action for workmen's compensation benefits is not barred, and the denial of the defendants' motion was proper. We do not intend to set a precedent of reviewing every motion filed with this court. However, in this particular instance, we chose to clarify the action taken by this court on the defendants' motion.
The defendants formally challenged only findings of fact Nos. 8 and 9, but they clearly also took issue with finding No. 7 in their arguments. Those findings state:
No. 7. That at the time of the accident the decedent was also on a special mission to Albuquerque in connection with the business of his employer, William H. Carpenter; that this business mission was such that the decedent's employer would have had to send someone else to Albuquerque to perform this mission had this business trip not coincided with the decedent's personal mission; and that this business trip would have been made in spite of the failure or absence of the decedent's personal mission.
No. 8. That at the time of the accident the decedent was acting in the scope of his employment with William H. Carpenter and at that time was at a place where his employer's business required him to be.
No. 9. That the death of Rex G. Clemmer was proximately caused by an accident arising out of and in the course of his employment with William H. Carpenter and was not intentionally self-inflicted.
The defendants have challenged conclusions Nos. 2, 3 and 4 which state:
No. 2. That at the time of the accident the decedent was acting in the scope of his employment with William H. Carpenter and at that time was at a place where his employer's business required him to be.
No. 3. That the death of Rex G. Clemmer was proximately caused by an accident arising out of and in the course of his employment with William H. Carpenter and was not intentionally self-inflicted.
No. 4. That although the decedent was also on a personal mission at the time of the accident, his dependents are entitled to workmen's compensation benefits under the "Dual Purpose Doctrine".
The defendants argue that the decedent was not on a special mission or special errand at the time of his death. Section 52-1-19, N.M.S.A.1978, sets out the "going and coming rule" in New Mexico:
As used in the Workmen's Compensation Act (52-1-1 to 52-1-69 NMSA 1978), unless the context otherwise requires, "injury by accident arising out of and in the course of employment" shall include accidental injuries to workmen, and death resulting from accidental injury, as a result of their employment and while at work in any place where their employer's business requires their presence, but shall not include injuries to any workman occurring while on his way to assume the duties of his employment or after leaving such duties, the proximate cause of which is not the employer's negligence.
In Ross v. Marberry, 66 N.M. 404, 349 P.2d 123 (1960), the New Mexico Supreme Court sets out the special mission, or special errand, exception to the going and coming rule:
This rule is subject to an exception, however. This is stated in 1 Campbell on Workmen's Compensation 173, as follows:
Also, in Avila v. Pleasuretime Soda, Inc., 90 N.M. 707, 568 P.2d 233 (Ct.App.1977), this court quoted the following...
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Flor v. Holguin, No. 22641.
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...or in the present case, the personal representative, sues for the entire amount of damages. Further, in Clemmer v. Carpenter, 98 N.M. 302, 304-05, 648 P.2d 341, 343-44 (Ct.App.), cert. denied, 98 N.M. 336, 648 P.2d 794 (1982), this Court recognized a mother's right to settle a suit for dama......
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