Gambrel v. Marriott Hotel

• Decision Date: 15 August 1991
• Docket Number: No. 12619,12619
• Citation: 1991 NMCA 100,818 P.2d 869,112 N.M. 668
• Parties: Robert L. GAMBREL, Deceased, and Maxine Gambrel, his Widow, Claimant-Appellee, v. MARRIOTT HOTEL and Argonaut Insurance Company, Respondents-Third-Party Claimants/Appellants-Cross-Appellees, v. Fabian CHAVEZ, Superintendent of Insurance of the State of New Mexico, and the New Mexico Subsequent Injury Fund, Third-Party Respondents/Cross-Appellants.
• Court: Court of Appeals of New Mexico

Page 869

818 P.2d 869

112 N.M. 668

Robert L. GAMBREL, Deceased, and Maxine Gambrel, his Widow, Claimant-Appellee, v. MARRIOTT HOTEL and Argonaut Insurance Company, Respondents-Third-Party Claimants/Appellants-Cross-Appellees, v. Fabian CHAVEZ, Superintendent of Insurance of the State of

New Mexico, and the New Mexico Subsequent Injury

Fund, Third-Party

Respondents/Cross-Appellants.

No. 12619.

Court of Appeals of New Mexico.

Aug. 15, 1991.

[112 NM 669] James R. Beam, Albuquerque, for claimant-appellee.

Kelly A. Genova, Sager, Curran, Sturges and Tepper, P.C., Albuquerque, for respondents-third party claimants/appellants-cross appellees.

Barry Paisner, Hinkle, Cox, Eaton, Coffield, and Hensley, Santa Fe, for third party respondents/cross appellants.

OPINION

CHAVEZ, Judge.

Marriott Hotel and its insurance company (hereinafter collectively referred to as "employer") appeals from that portion of the workers' compensation judge's (WCJ) compensation order awarding death benefits to worker's widow. Employer raises a single issue on appeal: whether the two-year time limit for bringing claims for death benefits under NMSA 1978, Section 52-1-46 (Cum.Supp.1986) (Interim Act), begins to accrue from the date of the accident or from the date the worker knew or should have known of a compensable injury. State of New Mexico Superintendent of Insurance and the Subsequent Injury Fund (Fund) also appeals, arguing (1) employer failed to substantially comply with the Subsequent Injury Act (SIA); (2) the apportioned liability between the employer and the Fund is not supported by substantial evidence; and (3) the purpose and policy of SIA is violated by assessing liability against the Fund in this case. We deny employer's motion to strike worker's answer brief as nonresponsive. For reasons stated below, we affirm the award of death benefits but reverse the compensation order insofar as it holds the Fund liable. We also grant widow's request for attorney's fees for this appeal.

FACTS

On March 5, 1987, while working as a carpenter, worker was assigned the task of stripping chairs in a small, unventilated room. At this time, employer was aware that worker suffered from a preexisting physical impairment to his lungs due to chronic obstructive pulmonary disease. Worker subsequently filed a workers' compensation claim against employer, and was awarded permanent total disability benefits in a March 23, 1988, compensation order. This compensation order also found (1) that exposure to the stripping chemicals was the direct and proximate cause of his disability and (2) that worker knew or should have known that he suffered a compensable injury on August 17, 1987. We affirmed the order by memorandum opinion. (Ct.App. No. 10, 599, filed April 18, 1989). Worker died on April 30, 1989, of acute pulmonary embolus with pulmonary infarction.

Widow filed a claim for death benefits on December 1, 1989. Employer had previously filed a third-party complaint against the Fund and had filed a certificate of preexisting physical impairment on October 10, 1989. The certificate was not signed, however, by either worker or widow. A compensation order was entered on August 13, 1990, awarding death benefits to worker's widow and apportioning liability equally between employer and the Fund.

DISCUSSION

I. Employer's Appeal

Employer claims that, as a matter of law, widow is not entitled to the award of death benefits and funeral expenses under Section 52-1-46 because of the time bar contained therein. The question presented for review is whether the two-year period within which the claim must be brought begins to run from the date of the accidental injury rather than the date worker knew or should have known he had a compensable injury.

Section 52-1-46 states, in relevant part:

Subject to the limitation of compensation payable under Subsection G of this section, if an accidental injury sustained by a workman proximately results in his death within the period of two years following his accidental injury, compensation shall be paid in the amount and to the persons entitled thereto, as follows * * *.

We begin by noting that the proper construction of this statutory provision requires that we determine legislative intent. See Security Escrow Corp. v. State Taxation and Revenue Dep't, 107 N.M. 540, 760 P.2d 1306 (Ct.App.1988) (central concern of reviewing court is to determine legislative intent). Legislative intent is primarily ascertained by reference to the plain language set forth in the statute. See General Motors v. Anaya, 103 N.M. 72, 703 P.2d 169 (1985) (plain language of statute is primary means of ascertaining legislative intent). The common referent is the "plain meaning" rule of statutory construction. However, it should be noted that the "plain meaning" rule is but a guideline to assist the court in correctly ascertaining the intent of the legislature. See Quintana v. New Mexico Dep't of Corrections, 100 N.M. 224, 668 P.2d 1101 (1983) (purpose of rules of statutory construction is to derive legislative intent); see also Martinez v. Research Park, Inc., 75 N.M. 672, 410 P.2d 200 (1965) (intention of legislature prevails over mechanistic reading of literal language).

What then is the intent of the legislature? We have repeatedly said that the purpose of the Act is to provide a form of recovery for a worker and his dependent heirs, and to ensure prompt compensation to worker and his dependents. See Livingston v. Loffland Bros., 86 N.M. 375, 378, 524 P.2d 991, 994 (Ct.App.1974); see also Aranda v. Mississippi Chemical Corp., 93 N.M. 412, 416, 600 P.2d 1202, 1204 (Ct.App.1979) (public policy demands, and primary purpose of statute confirms, at minimum, that worker and family have threshold amount of financial security); see also Larson, Workmen's Compensation (Desk Ed.) Sec. 1.1 (in death cases, benefits to dependents provided), Sec. 2.40 (injuries affecting earning power compensated), Sec. 2.50 (purpose of benefits to avoid dependence on others), Sec. 2.60 (if worker dies without dependents no award made because no threat of destitution on behalf of dependents). While additional policy may be adduced in order to guide the court in particular cases, we believe the broad policy contours underlying the Act are identical whether worker is disabled or dies as a result of the accidental injury. But see Desselle v. Liberty Mutual Ins. Comp, 482 So.2d 1009 (La.App. 3 Cir.1986) (in workers' compensation cases, "Conflicting claims of morality and intelligence are raised by opponents and proponents of almost every measure * * *.").

We are mindful that death benefits constitute a separate cause of action, not derivative of the action worker could have maintained for compensation had he survived. See A. Larson, 2A The Law of Workmens' Compensation, Sec. 64.10-11. However, as the above cases demonstrate, it is the strong public policy underlying the Act that the protection of dependents is equal in measure to the protection of worker's interests. Employer contends that "accidental injury", as appearing is Section 52-1-46 refers solely to the date of the accident which caused the injury. Employer's position is that the use of the term, "accidental injury", in the controlling section requires this court find a fixed date, upon which "the accident" from which the injury arose, occurred. This date then sets the two year period running and a simple time line controls. We disagree.

We first approach this matter by analyzing the cases wherein the component words of the term in issue have been construed. Our cases consistently hold that an "injury" need not arise immediately, momentarily, or obviously at the time of the "accident" to be compensable under our Act. See Candelaria v. Gen. Elec. Co., 105 N.M. 167, 172, 730 P.2d 470 (Ct.App.1985) (injury may be produced gradually and progressively); Cisneros v. Molycorp. Inc., 107 N.M. 788, 765 P.2d 761 (Ct.App.1988). This is not to say that time, place and cause of injury need not be established by the claimant. See Herndon v. Albuquerque Pub. Schools, 92 N.M. 635, 593 P.2d 470 (Ct.App.1978).

We conclude that neither an "accident" taking months or years to happen, nor an "injury" taking months or years to manifest itself, is an impermissible predicate for a valid compensation claim under our legislature's use of the term "accidental injury." See Larson, Secs. 37.20, 78.42. The guidance of these authorities and cases is that the terms appearing in the statutes shall be construed so as to reach fair and consistent conclusions.

Such fairness and consistency is particularly significant where a statute of limitations is raised as a defense. See Gaston v. Hartzell, 89 N.M. 217, 549 P.2d 632 (1976) (statute of limitations is procedural not substantive; law favors action over limitation); see also Larson, Sec. 78.42(b) (logic generally underlying statutes of limitations, that seasonable assertion of right is required, is often misplaced in a beneficent piece of social legislation where no amount of vigilance is of any help, such as with latent injuries); Larson, Sec. 2.50 (compensation permits recipient to avoid becoming burden on others and evidence establishes workers' compensation does not usually go beyond that which is necessary to keep worker from destitution).

Thus the purposes for which statutes of limitations were enacted generally, to preclude stale litigation and bar remedy to those having been "sleeping on their rights," should be carefully invoked where the prescription is one contained in remedial social legislation. This is so because the result of cutting off compensation merely brings about the harm the beneficent piece of legislation was designed to prevent, namely to prevent the injured worker or his dependents from becoming dependent on state welfare.

We turn now to caselaw more directly on point. As to the proper construction of "accidental injury," and whether a time bar precludes compensation...