Dupper v. Liberty Mut. Ins. Co.

• Decision Date: 03 February 1987
• Docket Number: No. 16330,16330
• Citation: 105 N.M. 503,734 P.2d 743,1987 NMSC 7
• Parties: Alberta DUPPER, Petitioner, v. LIBERTY MUTUAL INSURANCE COMPANY and J.C. Penney Company, Inc., Respondents.
• Court: New Mexico Supreme Court

Page 743

734 P.2d 743

105 N.M. 503

Alberta DUPPER, Petitioner, v. LIBERTY MUTUAL INSURANCE COMPANY and J.C. Penney Company Inc., Respondents.

No. 16330.

Supreme Court of New Mexico.

Feb. 3, 1987.

Rehearing Denied March 12, 1987.

Robinson & Wainwright, Paul S. Wainwright, Sherrie L. Tepper, Albuquerque, for petitioner.

Rodey, Dickason, Sloan, Akin & Robb, Tracy E. McGee, Albuquerque, for respondents.

OPINION

WALTERS, Justice.

This appeal concerns a claim for worker's compensation by plaintiff Dupper against defendants J.C. Penney Company, Inc., Dupper's employer, and its insurer, Liberty Mutual Insurance Co. Dupper had completed her shift, signed out for the day, and was on her way to the employee parking lot when she tripped over a "pop-up" sprinkler head that had failed to retract after use. Liberty denied compensation for her injury on the ground that the accident occurred after she had left her duties of employment, thereby precluding her from recovery under New Mexico's "going-and-coming" rule which provides:

[an injury by accident] 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.

NMSA 1978, Sec. 52-1-19. The trial court ruled that Dupper had failed to establish that her injury was caused by J.C. Penney's negligence, but awarded compensation by purporting to adopt the "premises" rule which allows compensation for "injuries occurring on the premises while [employees having fixed hours and place of work] are going to and from work before or after working hours or at lunchtime." 1 A. Larson, The Law of Workmen's Compensation Sec. 15.00 (1985).

Jurisdictions which recognize the premises rule characterize injuries occurring on an employer's premises as "injur[ies] by accident arising out of and in the course of employment." Injuries occurring off the employer's premises, however, are not compensable unless they are covered by one of several exceptions to the "going-and-coming" rule. 1 Larson Sec. 15.00. Deferring to New Mexico case law, the Court of Appeals reversed the trial court. Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973); see also Gonzales v. New Mexico State Highway Department, 97 N.M. 98, 637 P.2d 48 (Ct.App.), cert. quashed, 97 N.M. 621, 642 P.2d 607 (1981); Hayes v. Ampex Corporation, 85 N.M. 444, 512 P.2d 1280 (Ct.App.1973). We granted certiorari in this case because we believe that it is time for New Mexico to join every other state in the country in its view of compensability for injuries suffered on an employer's premises.

Of necessity, we must reassess Section 52-1-19, as that statute has been construed in earlier New Mexico decisions, see, e.g., Trembath v. Riggs, 100 N.M. 615, 673 P.2d 1348 (Ct.App.1983), cert. denied, 101 N.M. 11, 677 P.2d 624 (1984); Gonzales v. New Mexico State Highway Department; Romero v. S.S. Kresge Co., 95 N.M. 484, 623 P.2d 998 (Ct.App.), cert. denied, 95 N.M. 593, 624 P.2d 535 (1981); Hayes v. Ampex Corp.; McDonald v. Artesia General Hospital, 73 N.M. 188, 386 P.2d 708 (1963); Caviness v. Driscoll Const. Co., 39 N.M. 441, 49 P.2d 251 (1935); Cuellar v. American Employer's Ins. Co., 36 N.M. 141, 9 P.2d 685 (1932), which cases denied compensation for on-premises injuries occurring while the employee is "on his way to assume the duties of his employment or after leaving such duties," not proximately caused by the employer's negligence. NMSA 1978, Sec. 52-1-19.

When worker's compensation was first enacted, New Mexico joined Kansas in statutorily limiting liability under its "going-and-coming" rule to cases based upon employer negligence. 1917 N.M.Laws, ch. 83, Sec. 12(L); 1913 Kan.Laws, ch. 216, Sec. 4. Cuellar v. American Employer's Ins. Co. gave this Court its first opportunity to interpret the original statute's identical language in a later codification. NMSA 1929, Sec. 156-112(L). The Court, considering a case where a worker had been injured on his employer's premises, held that unless an employer's negligence was the proximate cause of a worker's injury, a worker "injured while going to or from work is within the rule that he is not in the course of his employment." Id. at 145, 9 P.2d at 687. Subsequent decisions have read this case as rejecting the premises rule. See, e.g., Mountain States Telephone & Telegraph Co. v. Montoya, 91 N.M. 788, 581 P.2d 1283 (1978); McDonald v. Artesia General Hospital; but see Gonzales v New Mexico State Highway Department (Wood, J., specially concurring).

In Cuellar, Judge Watson recognized the problem inherent in interpretation and concurred only in the result, explaining:

Under the theory of my brethren, the beneficiaries of the act and the courts are left to struggle with the question, so long and often troublesome, whether, under given circumstances, a workman, on his way to assume the duties of his employment, or after leaving such duties, is in the course of employment, and whether the injury then occurring arose out of it. It merely adds a new complication and imposes a new burden upon the workman.

Cuellar v. American Employer's Ins. Co., 36 N.M. at 148, 9 P.2d at 689 (Watson, J., concurring in result); see also 1 Larson Sec. 15.44 at 4-116.2. To reach its conclusion, the majority had rejected an alternative reading interpreting the subsection to mean that "if the employer's negligence is the proximate cause of the injury, it shall be deemed to have arisen out of and in the course of the employment, though the workman had left his duties," id. at 142, 9 P.2d at 686, even though the Court acknowledged that the clause "seem[ed] to mean that very thing." Id. The strained construction was particularly surprising because the Court began its analysis by explicitly noting that "[t]he idea of negligence as an essential to recovery is generally foreign to the theory of workmen's compensation." Id. at 143, 9 P.2d at 686, citing Merrill v. Penasco Lumber Co., 27 N.M. 632, 204 P.2d 72 (1922). As Judge Wood noted in his Gonzales special concurrence, the Cuellar opinion can be read as a decision "approaching a premises rule in New Mexico." Gonzales, 97 N.M. at 99, 637 P.2d at 49. We are committed to the view that, as remedial legislation, the Workmen's Compensation Act must be liberally construed, with all doubts resolved in favor of the worker. See, e.g., Avila v. Pleasuretime Soda, Inc., 90 N.M. 707, 568 P.2d 233 (Ct.App.1977); McKinney v. Dorlac, 48 N.M. 149, 146 P.2d 867 (1944); Cuellar v. American Employer's Ins. Co.

In Wilson v. Rowan Drilling Co., 55 N.M. 81, 227 P.2d 365 (1950), this Court recognized that subdivision (L) of NMSA 1941, Section 57-912 (now, NMSA 1978, Section 52-1-19) was "never intended to deprive a workman of compensation, who at the time of his injury was acting within his contract of employment, if his injury, 'arose out of and was suffered in the course of his employment.' " Id. at 108, 227 P.2d 382. More than forty years ago we held that an accident arises in the course of the employment when it occurs within the period of the employment at a place where the employee reasonably may be in the performance of his duties and while he is fulfilling those duties or engaged in doing something incidental thereto. McKinney v. Dorlac, 48 N.M. at 153, 146 P.2d at 870.

To give effect to this early holding, a number of specific exceptions to the "going-and-coming" rule have been carved out. For instance, a worker injured as he was crossing the highway while on a coffee break was entitled to recover under the "personal comfort" exception. Whitehurst v. Rainbo Baking Co., 70 N.M. 468, 374 P.2d 849 (1962); see also Sullivan v. Rainbo Baking Co., 71 N.M. 9, 375 P.2d 326 (1962), where an employee crossed the street for a meal during his shift, and fell at the door of the cafe. His injury was held to be compensable "as arising out of and in the course of his employment." Id. at 10, 375 P.2d at 326. Similarly, a worker may be compensated for injuries suffered while on a "special mission" for her employer outside her normal working hours, i.e., returning home from an agency meeting in another city, Edens v. New Mexico Health and Social Services Department, 89 N.M. 60, 547 P.2d 65 (1976); see also, Clemmer v. Carpenter, 98 N.M. 302, 648 P.2d 341 (Ct.App.), cert. denied, 98 N.M. 336, 648 P.2d 794 (1982) (injured while traveling on personal as well as work-related business); Avila v. Pleasuretime Soda, Inc. (employee making bank deposit on way home after work was on "special errand"). Similarly, an employee required to drive a city vehicle to and from work and to remain on call at all times was within his "course of employment" while driving home, even though he had spent two and one-half hours after work socializing and drinking in a bar before beginning his homeward trip. Salazar v. City of Santa Fe, 102 N.M. 172, 692 P.2d 1321 (Ct.App.), cert. quashed, 102 N.M. 225, 693 P.2d 591 (1985). Thus, except for those cases alleging accidental injuries on an employer's premises, there has been a consistent pattern of rejecting a narrow reading of NMSA 1978, Section 52-1-19 (and its forerunners), in order to allow workers to recover.

As was said in Gonzales at 97 N.M. at 99, 637 P.2d at 49, "[o]ne who has arrived upon or is leaving his employer's premises certainly is where his employment requires him to be, and he necessarily is [as] engaged in doing something incidental thereto" as any of the above-excepted cases. The obvious incongruity led the Court of Appeals there to urge the adoption of the premises exception. See also Hayes v. Ampex Corporation, (Sutin, J., specially concurring). Despite such urgings, New Mexico has remained the only jurisdiction that heretofore has refused to recognize that an injury occurring on the premises is one occurring within the employee's course of employment. 1 Larson Sec. 15.11.

Today the issue is once more squarely...