Garrison v. Safeway Stores

• Decision Date: 08 November 1984
• Docket Number: No. 8076,8076
• Citation: 1984 NMCA 116,102 N.M. 179,692 P.2d 1328
• Parties: Helen GARRISON, as Personal Representative of the Estate of James Edward Garrison, Plaintiff-Appellant, v. SAFEWAY STORES, as Employer and Self-Insurer, and Beth Ann Garrison, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 1328

692 P.2d 1328

102 N.M. 179

Helen GARRISON, as Personal Representative of the Estate of James Edward Garrison, Plaintiff-Appellant, v. SAFEWAY STORES, as Employer and Self-Insurer, and Beth Ann

Garrison, Defendants-Appellees.

No. 8076.

Court of Appeals of New Mexico.

Nov. 8, 1984.

Certiorari Denied Dec. 31, 1984.

David H. Pearlman, David H. Pearlman, P.A., Albuquerque, for plaintiff-appellant.

Tracy E. McGee, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, for defendants-appellees.

OPINION

ALARID, Judge.

James Garrison died in an accidental injury arising out of and in the course of his employment. He was survived by a widow, the plaintiff herein, and two minor children, all three of whom were living with and dependent upon the decedent at the time of his death. He was also survived by Beth Ann Garrison, a daughter, who at the time of decedent's death was under twenty-three years of age and was enrolled as a full-time student in an accredited educational institution. The foregoing facts are undisputed, as is the fact that Beth Ann was not dependent upon the decedent at the time of his death.

Since the time of the decedent's death, the defendant has been paying maximum compensation benefits. It paid a portion of these benefits to plaintiff and a portion to Beth Ann. Plaintiff sued, claiming that Beth Ann was not entitled to benefits. The trial court ruled in favor of Beth Ann, and plaintiff appealed. This court proposed summary affirmance because NMSA 1978, Section 52-1-17(A) (Orig.Pamp.) deemed Beth Ann dependent regardless of any factor of actual dependency. Plaintiff has filed a timely memorandum in opposition. Finding it unpersuasive, we affirm.

Plaintiff first contends that this case is inappropriate for resolution on a summary calendar. Conceding that the facts are undisputed, plaintiff claims that disposition may not be made on a summary calendar unless the application of legal principles to those facts is clear. See State v. Anaya, 98 N.M. 211, 647 P.2d 413 (1982). Plaintiff's claim is that this case presents a question of first impression and that, under these circumstances, the application of legal principles is unclear. Plaintiff claims that this case should be assigned to a limited calendar. We disagree.

First, because all of the relevant facts are undisputed, there would be no purpose served by assigning this case to a limited calendar. A limited calendar contemplates a transcript of proceedings to be filed. NMSA 1978, Crim., Child.Ct., Dom.Rel. & W/C App.R 207(b) (Repl.Pamp.1983). There is no reason for a transcript of proceedings in this case where all of the facts are undisputed. A legal calendar may be warranted if the issues truly require extensive briefing. See App.R. 207(c). However, in this case, both parties have moved for summary disposition and have filed memoranda in support. In addition, plaintiff has had the opportunity to file a memorandum in opposition to our proposed calendaring notice. Further briefing in this case would only cause undue delay. The memoranda already filed have fully apprised this court of the parties' respective positions.

Second, it is not true that a matter of first impression or a matter requiring a formal opinion under NMSA 1978, Crim., Child.Ct., Dom.Rel. & W/C App.Rule 601 (Repl.Pamp.1983) is always inappropriate for disposition on a summary calendar. Both this court and the supreme court have decided numerous cases on a summary calendar by formal opinion. See, e.g., State v. Lucero, 98 N.M. 311, 648 P.2d 350 (Ct.App.1982); State v. Russell, 94 N.M. 544, 612 P.2d 1355 (Ct.App.1980); State v. Baird, 90 N.M. 678, 568 P.2d 204 (Ct.App.), aff'd., 90 N.M. 667, 568 P.2d 193 (1977); Hudson v. State, 89 N.M. 759, 557 P.2d 1108 (1976). Most recently, this court overruled a prior case in a case decided on a summary calendar. Varos v. Union Oil Company of California, 101 N.M. 713, 688 P.2d 31 (Ct.App.1984).

Finally, for the reasons which follow, we believe the application of legal principles to the facts of this case to be clear.

At issue in this case is whether Section 52-1-17(A) requires a showing of actual dependency in the case of children under the age of twenty-three and enrolled as full-time students. In contending that it does, plaintiff's docketing statement relied on, inter alia, Kosmicki v. Aspen Drilling Co., 76 N.M. 234, 414 P.2d 214 (1966); Snarr v. Carroll, 63 N.M. 380, 320 P.2d 736 (1958); and Gallegos v. Homestake Mining Co., 97 N.M. 717, 643 P.2d 281 (Ct.App.1982). Our calendaring notice pointed out that the cases upon which plaintiff relied were distinguishable because the statutes under which they were decided required actual dependency. Plaintiff's memorandum in opposition contends that we overlooked her reliance on Cunnan v. Blakley & Sons, Inc., 93 N.M. 217, 598 P.2d 1177 (Ct.App.1979).

We did not overlook Cunnan. We simply do not believe that it supports the proposition that actual dependency is a requirement of Section 52-1-17(A). In Cunnan, Patrick was not actually dependent; yet Patrick was awarded a percentage of the benefits. The issue in Cunnan was the percentage of benefits to which Patrick was entitled. In this case, plaintiff raises no issue as to the appropriate distribution of benefits as between herself and Beth Ann. Cunnan actually supports the result we reach here to the extent that it approved the award of some benefits to Patrick when Patrick was not actually dependent upon the decedent.

In reaching our proposed conclusion, our calendaring notice relied on the history of Section 52-1-17. We pointed out that the version of the statute appearing in the original 1953 compilation of the New Mexico statutes required actual dependency for all categories of dependents. NMSA 1953, Sec. 59-10-12(j). That section was repealed in 1965, N.M.Laws, ch. 295, and NMSA 1953, Section 59-10-12.10 (2d Repl.Vol. 9, 1974) was enacted. Section 59-10-12.10 entirely removed the requirement of actual dependency for certain children, replaced the requirement of actual dependency for widows and widowers with a requirement of residence or entitlement to support, and left standing the requirement of actual dependency for other categories of dependents. See Kosmicki. The current law continues to "deem" certain children dependent. Included among those certain children are those under twenty-three years of age if enrolled as full-time students in any accredited educational institution. Section 52-1-17(A). The legislature having removed the requirement of actual dependency for certain children, we pointed out that this court must abide by the intention of the legislature to change the law. Martinez v. Research Park, Inc., 75 N.M. 672, 410 P.2d 200 (1965).

Plain...