Quintana v. University of California, 11822

• Citation: 111 N.M. 679,808 P.2d 964,1991 NMCA 16
• Decision Date: 07 February 1991
• Docket Number: No. 11822,11822
• Parties: , 67 Ed. Law Rep. 284 Manuel N. QUINTANA, Jr., Plaintiff-Appellant, v. UNIVERSITY OF CALIFORNIA, d/b/a Los Alamos National Laboratory, and Eric Payne, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 964

808 P.2d 964

111 N.M. 679, 67 Ed. Law Rep. 284

Manuel N. QUINTANA, Jr., Plaintiff-Appellant, v. UNIVERSITY OF CALIFORNIA, d/b/a Los Alamos National

Laboratory, and Eric Payne, Defendants-Appellees.

No. 11822.

Court of Appeals of New Mexico.

Feb. 7, 1991.

Certiorari Denied March 18, 1991.

[111 NM 680] Gordon Reiselt, Singer, Smith & Williams, P.A., Albuquerque, N.M., for plaintiff-appellant.

Alice E. Herter, Sutin, Thayer & Browne, P.C., Santa Fe, for defendants-appellees.

OPINION

APODACA, Judge.

Plaintiff appeals from the trial court's order dismissing his claim for personal injuries and damages against the Regents of the University of California (defendants), doing business as Los Alamos National Laboratory, and Eric Payne, an employee or agent of defendants. Plaintiff asserts that, absent a showing of the existence of an employee-employer relationship, defendants cannot avail themselves of the exclusivity provisions of NMSA 1978, Sections 52-1-6(D) and -9 (Orig. Pamp.) of the Workers' Compensation Act (the Act). Defendants contend on appeal, as they did in the trial court, that they were entitled to immunity under the exclusivity protection of the Act. They claim this entitlement as a statutory employer under NMSA 1978, Section 52-1-22 (Orig. Pamp.) and also rely on this court's decision in Garcia v. Smith Pipe & Steel Co., 107 N.M. 808, 765 P.2d 1176 (Ct.App.1988). Garcia held that the defendant's payment of workers' compensation insurance premiums in that case entitled the defendant to the exclusivity protection under Sections 52-1-6(D) and -9 of the Act.

We affirm, concluding that (1) defendants made a prima facie showing of entitlement to summary judgment under the exclusivity protection as a statutory employer under Section 52-1-22; (2) plaintiff failed to rebut defendants' prima facie showing; and (3) a prerequisite to application of our holding in Garcia is the existence of an employer-employee relationship in any form, either actual or statutory. Because an employer-employee relationship existed statutorily in this appeal, we hold that the trial court did not err in dismissing plaintiff's claim.

FACTS

At the time of his injuries, on August 11, 1986, plaintiff was an employee of Pan Am World Services (Pan Am). This fact is not disputed by defendants. Neither have defendants claimed plaintiff was their actual employee. Instead, they claim exclusivity solely on their argument that they were a statutory employer. Plaintiff's complaint was based on the alleged negligent operation of a vehicle by one of defendants' employees. Plaintiff initially filed a claim for workers' compensation benefits under insurance coverage with Pan Am, his employer. It is not disputed that he received these benefits from Pan Am's insurer. He then filed the personal injury action giving rise to this appeal.

Before occurrence of the accident resulting in plaintiff's injuries, Pan Am had entered into a contract with defendants. Under the contract's terms, Pan Am provided certain support functions, including management, administration, equipment installation, building construction, maintenance, custodial, and other essential services. The contract also required Pan Am to provide workers' compensation coverage for its employees, for which defendants then were responsible to reimburse Pan Am as part of various costs reimbursable under the contract.

DISCUSSION

1. Procedural Matter--Nature of Trial Court's Order.

Initially, we address a procedural matter before discussing the merits of the appeal. We note that the trial court characterized the order appealed from as an order dismissing the complaint with prejudice, not one granting summary judgment, which had been requested alternatively by defendants. Neither have the parties' briefs addressed whether the order was actually one granting summary judgment. Yet, it is undisputed that the trial court considered matters outside the pleadings, namely, two exhibits attached to defendants' memorandum in support of their motion--a copy of the contract between defendants and Pan Am and an affidavit verifying workers' compensation benefits had been paid to plaintiff. For this reason, we believe the order is more appropriately characterized as an order granting defendants' motion for summary judgment, since matters outside the pleadings were considered. See Knippel v. Northern Communications, Inc., 97 N.M. 401, 640 P.2d 507 (Ct.App.1982). We therefore apply the review standards applicable to summary judgment proceedings in addressing the parties' arguments on appeal.

2. Statutory Employer Requirements.

We believe that an implicit requirement of existing case law is the existence of some form of an employer-employee relationship, either statutory or actual, before a defendant will be permitted to take refuge under the Act's exclusivity provision. See Garcia v. Smith Pipe & Steel Co.; see also 2A A. Larson, The Law of Workmen's Compensation Sec. 72.31(d) (1990). In the absence of such a relationship, defendants' arguments must fail.

Defendants rely on Section 52-1-22, arguing that they are constructive or statutory employers and are thus entitled to immunity as such under the Act. Section 52-1-22 provides as follows:

As used in the * * * Act * * *, unless the context otherwise requires, where any employer procures any work to be done wholly or in part for him, by a contractor other than an independent contractor, and the work so procured to be done is a part or process in the trade or business or undertaking of such employer, then such employer shall be liable to pay all compensation under the * * * Act to the same extent as if the work were done without the intervention of such contractor. And the work so procured to be done shall not be construed to be "casual employment."

This statute imposes liability on an employer or prime contractor for workers' compensation benefits to an employee of a subcontractor doing work that is part of the business, trade, or occupation of the prime contractor. Defendants contend this statute essentially places a prime contractor in the "role of an employer" for purposes of providing workers' compensation benefits.

Under the statute, it is the relationship between the general contractor and the employer of the claimant that is dispositive and not the relationship between the general contractor and the claimant. To qualify as a statutory employer under Section 52-1-22, however, a contractor must meet two express conditions. First, the general contractor must procure work, wholly or in part, to be done by a contractor other than an independent contractor. See Sec. 52-1-22. That is, the statute, by its own terms, provides that it is not applicable to work performed by independent contractors. Second, the work to be done must be a part or process in the trade, business, or undertaking of the general contractor. Id.; see also Abbott v. Donathon, 86 N.M. 477, 525 P.2d 404 (Ct.App.1974).

We consider it significant that the two conditions required by Section 52-1-22, independent of any reference to the language of that statute, were thoroughly discussed by this court in Tafoya v. Casa Vieja, Inc., 104 N.M. 775, 727 P.2d 83 (Ct.App.1986). Although Tafoya did not expressly refer to Section 52-1-22 in determining the question of whether a plaintiff was an independent contractor or an employee of the defendant, it relied on a two-part test enunciated in Yerbich v. Heald, 89 N.M. 67, 547 P.2d 72 (Ct.App.1976). Yerbich, relying on Burruss v. B.M.C. Logging Co., 38 N.M. 254, 31 P.2d 263 (1934), considered two factors--the "power to control" test and the "relative nature of the work" test. It also denoted the first test as the "primary factor." But see Burton v. Crawford & Co., 89 N.M. 436, 553 P.2d 716 (Ct.App.1976) (the "relative nature of the work" test is the better method of determining a plaintiff's status--that of employee or independent contractor). Consideration of these two tests is consistent with the two conditions we conclude are required under Section 52-1-22.

According to Larson, the modern trend is toward granting prime contractors relief from liability if they contractually assure insurance coverage to an employee. See 2A A. Larson, supra, Sec. 72.31(b). We believe that New Mexico subscribes to this trend. To be sure, in enacting Section 52-1-22, the legislature expressed its intent to afford immunity under the Act to statutory employers. Meeting the statute's requirements, however, is a prerequisite to being considered a statutory employer.

Larson based its statement of the modern trend on the following premise:

[The] discussion presupposes that the various conditions for establishing the status of a statutory employer have been met; if they have not, the general contractor is of course in no different position from any third party liable to suit. The immunity does not attach, for example, if the facts present a lent-employee relationship rather than a subcontractor-employee relationship, or if the actual employer was not a true subcontractor but an independent contractor over whom the general contractor had no control.

Id., Sec. 72.31(d), at 14-191 to -193 (footnotes omitted) (emphasis added). Our holding in this appeal is consistent with Larson's premise.

Having determined the requirements defendants must meet to qualify as a statutory employer, we now turn to the trial court's ruling in this appeal. This court has held that, where the material facts are undisputed and susceptible of but one logical inference, it is a conclusion of law whether the status of an employer-employee relationship exists. See Jelso v. World Balloon Corp., 97 N.M. 164, 637 P.2d 846 (Ct.App.1981). It follows that the trial court could have decided, as a matter of law, the status of Pan Am, with respect to that company's relationship to defendants. To do so, however, there must not have existed a disputed material fact.

We stated previously that,...