Jelso v. World Balloon Corp.

• Decision Date: 24 November 1981
• Docket Number: No. 5152,5152
• Citation: 97 N.M. 164,1981 NMCA 138,637 P.2d 846
• Parties: Linda JELSO, Plaintiff-Appellant, v. WORLD BALLOON CORPORATION, Employer, and Travelers Insurance Company, Insurer, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 846

637 P.2d 846

97 N.M. 164

Linda JELSO, Plaintiff-Appellant, v. WORLD BALLOON CORPORATION, Employer, and Travelers Insurance

Company, Insurer, Defendants-Appellees.

No. 5152.

Court of Appeals of New Mexico.

Nov. 24, 1981.

Harold H. Parker, Angela J. Jewell, Albuquerque, for plaintiff-appellant

Alice Tomlinson-Lorenz, Gregory W. Chase, Miller, Stratvert, Torgerson & Brandt, Albuquerque, for defendants-appellees.

OPINION

DONNELLY, Judge.

Plaintiff seeks reversal of a trial court order granting summary judgment for defendants and dismissing with prejudice plaintiff's complaint for workmen's compensation benefits. We affirm.

World Balloon Corporation (W.B.C.), was in the business of constructing and selling hot air balloons and related equipment. The plaintiff had been employed by W.B.C., sewing and repairing hot air balloons, running errands, working as a crew member and assisting with public relations and commercial advertising for defendant's products.

The facts as set forth in plaintiff's affidavit filed in opposition to the motion for summary judgment and as set out in the plaintiff's brief in chief are essentially undisputed. The only question raised is whether plaintiff was an employee of W.B.C. at the time she sustained her injury. The facts as set forth by plaintiff, reveal that on November 19, 1979, plaintiff's employment was terminated by W.B.C. The following day plaintiff was given her paycheck. At the time of her termination, plaintiff was informed that possibly, depending upon business conditions, she would be reemployed in the spring. On the same day, she asked Paul Woessner, vice president of W.B.C., if the company would need any assistance on November 21, 1979, with the test flight of a hot air balloon the company had constructed for Anheuser-Busch Corporation. Mr. Woessner answered yes. In its brief, W.B.C. disputes that this conversation took place.

Shortly before the launch of the new balloon on November 21, the plaintiff went to the launch-site and reported to the crew chief for W.B.C. She was instructed initially to handle a rope at the nose of the balloon. Later she was told to stand ready with a fire extinguisher in case of fire. At the site, W.B.C. furnished refreshments for assisting personnel and plaintiff partook of the coffee, hot chocolate and juice provided. Plaintiff was standing near the car, or gondola, of the balloon when it suddenly tipped over, causing another individual inside the gondola to fall on top of, and strike, plaintiff. As a result of this accident, plaintiff suffered a serious injury to her right knee.

Plaintiff reported the injury to Mr. Woessner at the launch-site. He told her to go to a doctor and to send the bill to W.B.C. The parties dispute whether Mr. Woessner told plaintiff that W.B.C.'s insurance would actually cover the injury. Plaintiff went to a doctor selected by her and received medical treatment for the injury. An accountant employed by W.B.C. filed an Employer's First Report of Injury form with its insurance carrier, defendant Traveler's Insurance Company. The report stated that plaintiff was an employee of W.B.C. and that she was injured on the job.

Depositions filed by defendant W.B.C. state that it later withdrew the accident report, indicating that the report had been filed by mistake.

Subsequently, W.B.C. refused to pay workmen's compensation benefits to plaintiff and plaintiff filed suit against W.B.C. and its insurance carrier seeking alternatively under Count I, workmen's compensation benefits, or under Count II, damages for alleged negligence of defendant W.B.C.

Defendants filed separate motions for summary judgment directed at the claim of damages for negligence and the claim for workmen's compensation benefits. On October 16, 1980, the trial court dismissed Count II, the negligence claim, without prejudice. The court's order dismissing the negligence claim is not involved in this appeal.

Thereafter, following a hearing, the trial court granted summary judgment on Count I in favor of defendants. It dismissed with prejudice plaintiff's claim for workmen's compensation benefits.

Defendants' motion for summary judgment was predicated on the contention that (1) plaintiff was not an employee of defendant at the time of her injury, and (2) the injury was not incurred in the course and scope of her employment.

On appeal, plaintiff contends that genuine issues of material fact exist as to whether plaintiff was an employee at the time of her injury, because (1) W.B.C. filed the employer's first report of injury, (2) defendant had control over the details of plaintiff's duties and performance, had power to terminate her work and compensated her for her services, (3) defendant created an emergency employment situation and (4) plaintiff was at the time of the accident, performing services which constituted a regular part of defendant's business.

Each of the points raised by plaintiff on appeal are sub-issues of the dispositive question of whether an employer-employee relationship existed when plaintiff was injured. We discuss such issues jointly.

Supportive of defendant's motion for summary judgment were two affidavits: one of Paul Woessner, vice president of W.B.C.; and one of Jerry Burkholder, accountant and bookkeeper for W.B.C. Both stated that plaintiff had been terminated from employment and had received her final paycheck on November 20, 1979. Attached to the second affidavit was a copy of the plaintiff's final paycheck.

The plaintiff acknowledged these facts in her affidavit in opposition on the motion for summary judgment. Plaintiff's affidavit stated that on November 20, 1979 as she was leaving the office, she spoke to Paul Woessner. She inquired if W.B.C. needed help with the test flight of the new balloon. Mr. Woessner responded, "Yes, we need all the help we can get, come out and help us." Plaintiff's affidavit further set forth her activities at the launch site and the assignments she was given in assisting with the launch. Plaintiff also stated in her affidavit that the test flight of the balloon was an emergency situation and that she had been "hurt on the job."

The rules for determining whether to grant summary judgment are succinctly enumerated by Judge Sutin in First Nat. Bank in Albuquerque v. Nor-Am Agr. Products Inc., 88 N.M. 74, 537 P.2d 682 (Ct.App.), cert. denied, 88 N.M. 28, 536 P.2d 1084 (1975). As therein stated:

(1) A summary judgment proceeding is not to decide an issue of fact, but, rather, to determine whether one exists.

(2) Summary judgment can be granted only where the record shows there is no genuine issue as to any material fact.

(3) The party opposing the motion for summary judgment must be given the benefit of all reasonable doubts in determining whether an issue of fact exists.

(4) Summary judgment can be granted only where the moving party is entitled to the judgment as a matter of law, upon clear and undisputed facts.

(5) Summary judgment proceedings must not be used as a substitute for trial.

Summary judgment, being an extreme remedy, is to be employed with great caution and cannot be substituted for a trial on the merits as long as one issue of material fact is still present in the case. Fischer v. Mascarenas, 93 N.M. 199, 598 P.2d 1159 (1979); Fidelity Nat. Bank v. Tommy L. Goff, Inc., 92 N.M. 106, 583 P.2d 470 (1978).

Summary judgment, however, is proper when the moving party is entitled to a judgment as a matter of law. N.M.Civ.P. Rule 56(C), N.M.S.A. 1978; Worley v. United States Borax & Chemical Corp., 78 N.M. 112, 428 P.2d 651 (1967); Institute for Essential Housing, Inc. v. Keith, 76 N.M. 492, 416 P.2d 157 (1966). The purpose of summary judgment is to eliminate a trial in cases where there is no genuine issue of fact, even though factual issues are raised in the formal pleadings. Aktiengesellschaft, etc. v. Lawrence Walker Cotton Co., 60 N.M. 154, 288 P.2d 691 (1955); see, Fidelity Nat. Bank v. Tommy L. Goff, Inc., supra. Where the facts before the court are not in dispute but only the legal effect of the facts is presented for determination, summary judgment may be properly granted. Meeker v. Walker, 80 N.M. 280, 454 P.2d 762 (1969); Worley v. United States Borax & Chemical Corp., supra; Sanders v. Smith, 83 N.M. 706, 496 P.2d 1102 (Ct.App.), cert. denied, 83 N.M. 698, 496 P.2d 1094 (1972).

Viewing all of the evidence in a light most favorable to plaintiff, the trial court's granting of summary judgment was proper. At the summary judgment hearing, the trial court had before it the affidavits of the parties and the depositions on file with the court. The material facts before the court were not in dispute, only the determination of the legal conclusions to be drawn therefrom. Whether plaintiff was an employee of W.B.C. at the time of her injury was a legal conclusion, and it would have been improper to have found the existence of such relationship as a fact. Latta v. Harvey, 67 N.M. 72, 352 P.2d 649 (1960); see also, Creley v. Western Constructors, Inc., 79 N.M. 727, 449 P.2d 329 (1969); Candelaria v. Board of County Commissioners, 77 N.M. 458, 423 P.2d 982 (1967); Roybal v. Bates Lumber Co., 76 N.M. 127, 412 P.2d 555 (1966).

Where the material facts are undisputed and susceptible of but one logical inference, it becomes a conclusion of law as to whether the status of an employer-employee relationship exists. See Candelaria v. Board of County Commissioners, supra; Kress Packing Co., Inc., v. Kottwitz, 61 Wis.2d 175, 212 N.W.2d 97 (1973).

The courts in New Mexico have clarified these rules in determining whether an individual was an employee within the meaning of our Workmen's Compensation Act. In Creley v. Western Constructors, Inc., supra, it was held:

The question of whether the claimant worked for one or the other of these corporations is one of fact, as distinguished from the question of whether the relationship of master and servant or that of independent...