Junge v. John D. Morgan Const. Co., 15135

Citation118 N.M. 457,882 P.2d 48,1994 NMCA 106
Decision Date03 August 1994
Docket NumberNo. 15135,15135
PartiesSusan JUNGE, Individually and as Personal Representative of the Estate of John D. Morgan, and as Parent and Natural Guardian of Katherine Rachel Junge Morgan, Claimant-Appellant, v. JOHN D. MORGAN CONSTRUCTION COMPANY and Mountain States Mutual Casualty Company, Respondents-Appellees.
CourtCourt of Appeals of New Mexico
OPINION

APODACA, Judge.

Susan Junge (Claimant), as personal representative of the estate of John D. Morgan (Decedent), appeals the workers' compensation judge's order (judge) denying her motion for summary judgment and granting the motion for summary judgment of John D. Morgan Construction Company (Company) and Mountain States Mutual Casualty Company (Insuror). The judge held that Claimant was not entitled to workers' compensation benefits because Decedent, the owner of the Company, had not elected to be covered as a worker under the workers' compensation policy issued by Insuror to the Company. Claimant raises the following issues on appeal: whether (1) the Company and Insuror were entitled to summary judgment, even though they failed to comply with SCRA 1986, 1-056 (Repl.1992); (2) Decedent had elected to be covered as a worker by filing a certificate of insurance with the Workers' Compensation Administration (Administration); (3) the terms of the insurance policy covered Decedent; and (4) in construing the terms of the insurance policy, the judge relied on hearsay evidence concerning Decedent's intent. We hold that the judge did not err in granting summary judgment to the Company and Insuror, because Decedent had not elected to be covered as a worker in the manner required by the Workers' Compensation Act and because the policy did not cover Decedent as a worker but only as an employer. We also hold that Insuror and the Company sufficiently complied with the requirements of SCRA 1-056 and that the evidence of Decedent's intent was admissible. We thus affirm the judge's order.

BACKGROUND

Decedent was a general contractor and the sole owner of the Company, a construction business. In August 1991, the Company had two employees, but Decedent also performed work for the Company. On August 14, 1991, Decedent was killed in a work-related accident while operating a backhoe for the Company at a construction site.

At the time of Decedent's death, a workers' compensation insurance policy issued by Insuror to the Company was in effect. The policy stated that the insured in Item 1 on the declarations page was John D. Morgan d/b/a John D. Morgan Construction Company, an individual. It also provided that "[y]ou are insured if you are an employer named in item 1 of the Information Page." The policy expressly limited coverage for partners by stating that, "[i]f that employer is a partnership, and if you are one of its partners, you are insured, but only in your capacity as an employer of the partnership's employees." No similar language concerning sole proprietors was included in the policy.

The policy did not cover individual workers, but rather covered categories of work. Among the categories of work covered by the policy were contractor-executive supervisor/superintendent; excavation and drivers; and concrete/cement work-floors/driveways. There was evidence that, at the time of his death, Decedent was performing work that would have likely fallen within the contractor-executive supervisor/superintendent category if he was deemed covered under the policy as an employee/worker. Pursuant to certain statutory provisions noted below, certificates of insurance reflecting Decedent's purchase of workers' compensation insurance were filed with the Administration, but Decedent did not file an "Election to Accept" form with the Administration.

Claimant filed a claim to receive benefits under the policy. Before filing the summary judgment motion, Claimant moved to exclude testimony concerning Decedent's expressed intent regarding his purchase of workers' compensation insurance. The judge denied the motion. Relying on the statutory language and the terms of the policy, Claimant then moved for partial summary judgment on the issue of whether the policy covered Decedent as a worker. The Company and Insuror responded to the motion and filed a cross-motion for summary judgment. In their motion, the Company and Insuror relied on the deposition testimony of several insurance agents and personnel regarding Decedent's purchase of the policy and his decision not to purchase the sole proprietorship protection. Claimant objected to this testimony as inadmissible.

At the summary judgment hearing, the judge overruled Claimant's objection to the admission of the deposition testimony. The judge concluded that Decedent was not covered under the policy, relying in part on the agents' testimony. Additional facts will be discussed as necessary.

DISCUSSION
I. Compliance with Applicable Rules.

Claimant initially contends that the Company and Insuror were not entitled to summary judgment because they failed to comply with SCRA 1-056 in responding to Claimant's motion for summary judgment and in filing their own motion for summary judgment. The Company and Insuror argue on appeal that Claimant failed to preserve this issue because she did not obtain a ruling on the issue by the judge. We conclude that Claimant preserved the issue of whether SCRA 1-056 was incorporated into the Administration's rules and regulations by objecting in her reply to the form of the Company's and Insuror's response to Claimant's motion and their cross-motion for summary judgment. See SCRA 1986, 12-216(A) (Repl.1992); Rules Governing Formal Hearings, 92.3.13 (WCA 92.3, October 1992).

The Company and Insuror argue that they were not required to comply with SCRA 1-056 because their combined response to Claimant's motion and motion for summary judgment complied with the applicable rule promulgated by the Workers' Compensation Administration. That rule states:

A. Requirement of Written Motions

All motions unless made during a hearing or permitted by the Workers' Compensation Judge, shall be in writing and shall state with particularity the grounds therefore [sic] and the relief or order sought.

Rules Governing Formal Hearings, 92.3.8: Motions (WCA 92.3, October 1992). Claimant contends that, because neither Rule 92.3.8 nor any other Administration rule specifically mentions motions for summary judgment, SCRA 1-056 is incorporated into the Administration's rules. See Rules Governing Formal Hearings, 92.3.1 (WCA 92.3, October 1992) (unless otherwise provided in the Administration's rules or the Workers' Compensation Act, the rules of civil procedure for the district courts of New Mexico apply); see also NMSA 1978, § 52-5-4 (Repl.Pamp.1991) (director authorized to adopt rules and regulations including provisions governing resolution of claims).

We agree with Claimant's contention. The Administration's rules provide that "[e]xcept where explicitly provided or necessarily implied in these Rules, the Workers' Compensation Act or the Occupational Disease Disablement Act, the Rules of Civil Procedure for the District Courts of New Mexico shall apply." Rule 92.3.1. Although Rule 92.3.8 sets out basic requirements for motions, it does not explicitly or necessarily set forth all the requirements for particular types of motions. In such a situation, we believe that, under Rule 92.3.1, the requirements of the applicable rule of civil procedure for the district courts would apply. Because the Administration's rules do not specifically address the requirements for a summary judgment motion, we conclude the requirements of SCRA 1-056 are therefore applicable to motions for summary judgment made in proceedings before the Administration. The Company and Insuror were thus required to comply with SCRA 1-056.

In light of this determination, we must consider whether the Company's and Insuror's combined response to Claimant's motion for partial summary judgment and cross-motion for summary judgment complied with SCRA 1-056. Claimant contends the Company's and Insuror's combined response and motion were deficient because the pleading did not: (1) contain a concise statement of disputed material facts; (2) number each disputed fact; and (3) state the number of Claimant's facts that the Company and Insuror sought to dispute. Thus, she contends, the pleading failed to comply with SCRA 1-056(D)(2), which states in part:

A memorandum in opposition to the motion shall contain a concise statement of the material facts as to which the party contends a genuine issue does exist. Each fact in dispute shall be numbered, shall refer with particularity to those portions of the record upon which the opposing party relies, and shall state the number of the moving party's fact that is disputed. All material facts set forth in the statement of the moving party shall be deemed admitted unless specifically controverted.

Relying on Richardson v. Glass, 114 N.M. 119, 835 P.2d 835 (1992), Claimant argues that these procedural defects required the judge to grant her motion for partial summary judgment. See id. at 121-22, 835 P.2d at 837-38. We disagree. In Richardson, the plaintiff failed to properly dispute the defendants' facts. The facts were therefore deemed admitted. Id. at 122, 835 P.2d at 838; SCRA 1-056(D)(2). However, even if the movant's facts are deemed admitted, this admission does not require the granting of the movant's motion for summary judgment. The defendants in Richardson were granted summary judgment because, based on the admitted facts, they were entitled to summary judgment as a matter of law. Id.

In contrast, here, the Company and Insuror did not dispute Claimant's...

To continue reading

Request your trial
13 cases
  • State v. Brown
    • United States
    • Court of Appeals of New Mexico
    • January 15, 2004
    ... ...         John Bigelow, Chief Public Defender, Sue A. Herrmann, Appellate Defender, Santa ... have the Assistance of Counsel for his defen[s]e." U.S. Const. amend. VI. This right to assistance of counsel requires states to provide ... Junge v. John D. Morgan Constr. Co., 118 N.M. 457, 463, 882 P.2d 48, 54 ... ...
  • State v. Johnson
    • United States
    • New Mexico Supreme Court
    • December 20, 2000
    ... ... Junge v. John D. Morgan Constr. Co., 118 N.M. 457, 463, 882 P.2d 48, 54 ... ...
  • State v. Brown, 2004 NMCA 037 (N.M. App. 1/15/2004)
    • United States
    • Court of Appeals of New Mexico
    • January 15, 2004
    ... ...         John Bigelow, Chief Public Defender, Sue A. Herrmann, Appellate Defender, Santa ... have the Assistance of Counsel for his defen[s]e." U.S. Const. amend. VI. This right to assistance of counsel requires states to provide ... Junge v. John D. Morgan Constr. Co. , 118 N.M. 457, 463, 882 P.2d 48, 54 (Ct ... ...
  • Garth Findlay's Case.
    • United States
    • Appeals Court of Massachusetts
    • June 24, 2010
    ... ... Co., 143 Md.App. 637, 640-645, 795 A.2d 771 (2002); ... Junge v. John D. Morgan Constr. Co., 118 N.M. 457, 462-464, 882 P.2d 48 ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT