Garcia v. Smith Pipe and Steel Co.

Decision Date13 September 1988
Docket NumberNo. 10758,10758
Citation107 N.M. 808,765 P.2d 1176,1988 NMCA 78
PartiesApolinar M. GARCIA, Plaintiff-Appellant, v. SMITH PIPE AND STEEL COMPANY, An Arizona Corporation, Defendant-Appellee.
CourtCourt of Appeals of New Mexico

ALARID, Judge.

Plaintiff appeals the trial court's order granting defendant summary judgment in this personal injury action. Our first and second calendar notices proposed summary affirmance. Plaintiff has responded to each calendar notice with timely memoranda in opposition. Not persuaded by the memoranda, we affirm the trial court.


Plaintiff was employed by Personnel Pool of Albuquerque (Personnel Pool), a business supplying temporary laborers to other businesses. Plaintiff was sent to work for defendant by Personnel Pool. While working for defendant, plaintiff was under the control and supervision of defendant's employees. Defendant paid Personnel Pool $6.00 per hour for plaintiff's services. Personnel Pool paid plaintiff $3.85 per hour for his work for defendant. The difference of $2.15 per hour was utilized by Personnel Pool to pay overhead costs and expenses, including the payment of workmen's compensation insurance premiums for plaintiff. Defendant, while providing insurance coverage for its other employees, apparently did not specifically secure coverage for plaintiff. Plaintiff was injured while working for defendant. Thereafter, Personnel Pool, through its insurer, paid plaintiff workmen's compensation and medical benefits. Plaintiff subsequently sued defendant for personal injuries. Defendant moved for summary judgment, alleging that plaintiff's claims were barred by the exclusive remedy provision of the Workmen's Compensation Act. See NMSA 1978, Secs. 52-1-8 and -9. The trial court granted summary judgment to defendant.


Summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. SCRA 1986, 1-056(C); Koenig v. Perez, 104 N.M. 664, 726 P.2d 341 (1986); Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972).

The parties agree that plaintiff was defendant's employee for purposes of the Workmen's Compensation Act. See Shipman v. Macco Corp., 74 N.M. 174, 392 P.2d 9 (1964). Plaintiff argues that defendant did not meet its statutory obligation to secure coverage for him; therefore, defendant may not claim the protection afforded by the exclusive remedy provision. See Montano v. Williams, 89 N.M. 86, 547 P.2d 569 (Ct.App.1976) (failure of employer to comply with Act subjects him to claim for negligence by worker).

Our second calendar notice pointed out that defendant, in fact, indirectly secured coverage for plaintiff by reimbursing Personnel Pool for its insurance costs. These indirect payments were sufficient to invoke the protections of the exclusive remedy provisions. See Foran v. Fisher Foods, Inc., 17 Ohio St.3d 193, 478 N.E.2d 998 (1985).

Plaintiff attempts to distinguish Foran, arguing that the parties in that case expressly contracted that the temporary service would furnish insurance for the workers it provided and the employer would pay the cost. In this case, plaintiff maintains, the affidavit before the trial court established "nothing more than the fortuitious [sic] purchase of insurance by Personnel Pool; there is nothing to demonstrate any solicitude on the part of Smith to secure such insurance, nor any consciousness on Smith's part that insurance was provided." This is a distinction without a difference. The fact that there may not have been any written agreement setting forth the parties' respective obligations regarding insurance coverage is of no consequence. The...

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8 cases
  • Romero v. Shumate Constructors, Inc.
    • United States
    • Court of Appeals of New Mexico
    • 21 October 1994
    ...of the way," nor are we obliged under Quintana to place undue emphasis on a mere contingent liability. In Garcia v. Smith Pipe & Steel Co., 107 N.M. 808, 765 P.2d 1176 (Ct.App.), cert. denied, 107 N.M. 673, 763 P.2d 689 (1988), a borrowed employee-employment agency case, the employer expres......
  • Hamberg v. Sandia Corp.
    • United States
    • Court of Appeals of New Mexico
    • 18 April 2007
    ...1996-NMCA-100, ¶ 15, 122 N.M. 417, 925 P.2d 883; Rivera, 118 N.M. at 678-80, 884 P.2d at 834-36; Garcia v. Smith Pipe & Steel Co., 107 N.M. 808, 809-10, 765 P.2d 1176, 1177-78 (Ct.App.1988). {36} The district court's grant of summary judgment in favor of Defendant and dismissal of Plaintiff......
  • Kendall v. Wells, No. 21622-5-III (Wash. App. 4/27/2004)
    • United States
    • Washington Court of Appeals
    • 27 April 2004
    ...Habco, Inc., 419 S.W.2d 34 (Mo. 1967); Chickachop v. Manpower, Inc., 84 N.J. Super. 129, 201 A.2d 90 (1964); Garcia v. Smith Pipe & Steel Co., 107 N.M. 808, 765 P.2d 1176 (1988); Daniels v. MacGregor Co., 2 Ohio St. 2d 89, 206 N.E.2d 554 ...
  • Rivera v. Sagebrush Sales, Inc.
    • United States
    • Court of Appeals of New Mexico
    • 26 August 1994
    ...for the purposes of the Act and whether Sagebrush is entitled to judgment as a matter of law. See Garcia v. Smith Pipe & Steel Co., 107 N.M. 808, 809, 765 P.2d 1176, 1177 (Ct.App.), cert. denied, 107 N.M. 673, 763 P.2d 689 Initially, we address Rivera's argument that Sagebrush waived its ri......
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