{ "id": 4187399, "name": "JACKSON CONSTRUCTION, INC., A New Mexico Corporation, and PAUL JACKSON, Qualifying Party for Jackson Construction Inc., Petitioners-Appellees, v. GLENN R. SMITH, in his capacity of Director, STATE OF NEW MEXICO WORKERS' COMPENSATION ADMINISTRATION, Respondent-Appellant", "name_abbreviation": "Jackson Construction, Inc. v. Smith", "decision_date": "2012-02-15", "docket_number": "Docket No. 30,454", "first_page": "466", "last_page": "471", "citations": [ { "type": "official", "cite": "2012-NMCA-033" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "932 So.2d 1230", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 8425782 ], "year": 2006, "pin_cites": [ { "page": "1233" } ], "opinion_index": 0, "case_paths": [ "/so2d/932/1230-01" ] }, { "cite": "121 N.M 657", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566483 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "660-61", "parenthetical": "recognizing the creation of \"constructive employees]\" under NMSA 1978, Section 52-1-22 (1989)" }, { "page": "1327-28", "parenthetical": "recognizing the creation of \"constructive employees]\" under NMSA 1978, Section 52-1-22 (1989)" } ], "opinion_index": 0, "case_paths": [ "/nm/121/0657-01" ] }, { "cite": "1997-NMCA-076", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 142189 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0482-01" ] }, { "cite": "2011-NMSC-028", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4251297 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/150/0001-01" ] }, { "cite": "108 N.M. 361", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592883 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "364", "parenthetical": "\"Unpublished case law from state district or federal courts is instructive, but not binding on this court.\"" }, { "page": "894", "parenthetical": "\"Unpublished case law from state district or federal courts is instructive, but not binding on this court.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/108/0361-01" ] }, { "cite": "102 N.M. 300", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580055 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "302", "parenthetical": "recognizing that an illegally employed minor would presumably be counted to determine application of the Act to the employer but has the right to circumvent the Act's coverage and pursue remedies in tort" }, { "page": "1367", "parenthetical": "recognizing that an illegally employed minor would presumably be counted to determine application of the Act to the employer but has the right to circumvent the Act's coverage and pursue remedies in tort" } ], "opinion_index": 0, "case_paths": [ "/nm/102/0300-01" ] }, { "cite": "111 N.M. 209", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715075 ], "weight": 10, "year": 1990, "pin_cites": [ { "page": "210-11" }, { "page": "1115-1116" }, { "page": "210" }, { "page": "1115" }, { "page": "210-11" }, { "page": "1115-16", "parenthetical": "\"We note that subsection E of Section 52-1-7 specifically provides that those who elect not to be covered are nonetheless to be counted in determining whether the employer comes within the Act.\"" }, { "page": "211" }, { "page": "1116", "parenthetical": "holding that past employees who were regularly employed are still to be counted to determine worker minimums even though those workers are now no longer employees and thus ineligible for coverage" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0209-01" ] }, { "cite": "1998-NMSC-012", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 834182 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0170-01" ] }, { "cite": "2001-NMSC-032", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 183114 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0204-01" ] }, { "cite": "117 N.M. 346", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552772 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "352" }, { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0346-01" ] }, { "cite": "242 P.3d 1289", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "148 N.M. 943", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "2010-NMCERT-008", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "2010-NMCA-080", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4246694 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0877-01" ] } ], "analysis": { "cardinality": 868, "char_count": 18445, "ocr_confidence": 0.83, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13759199860686858 }, "sha256": "dde597bb10b6dd04aaaee507dd2f3afa55daafc52ae182633dfa4a570b14226f", "simhash": "1:a66f946f9dafa5e2", "word_count": 2909 }, "last_updated": "2023-07-14T17:47:49.050081+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "J. MILES HANISEE, Judge", "LINDA M. VANZI, Judge", "TIMOTHY L. GARCIA, Judge" ], "parties": [ "JACKSON CONSTRUCTION, INC., A New Mexico Corporation, and PAUL JACKSON, Qualifying Party for Jackson Construction Inc., Petitioners-Appellees, v. GLENN R. SMITH, in his capacity of Director, STATE OF NEW MEXICO WORKERS\u2019 COMPENSATION ADMINISTRATION, Respondent-Appellant." ], "opinions": [ { "text": "OPINION\nHANISEE, Judge.\n{1} Paul Jackson is the sole owner of Jackson Construction, Inc. (JCI), a New Mexico-licensed general contractor. JCI does not employ any workers or executives other than Mr. Jackson, who serves as JCI\u2019s president and sole board member. In 2008, Mr. Jackson affirmatively elected to exempt himself from coverage by the Workers\u2019 Compensation Act (the Act). We are asked to decide in light of Mr. Jackson\u2019s election, whether JCI remains subject to the Act and must nevertheless procure workers\u2019 compensation insurance. We hold that JCI is required to do so under a plain-meaning reading of NMSA 1978, Section 52-l-6(A) (1990), which states that the Act \u201cshall apply to all employers engaged in activities requiring a construction license] . . . regardless of the number of employees.\u201d (Emphasis added.) We thus reverse the district court\u2019s decision and affirm the order of the Workers\u2019 Compensation Administration (the WCA).\nI. STANDARD OF REVIEW\n{2} The issue on appeal concerns the scope of Section 52-l-6(A), which defines the classes of employers that are subject to the Act. We must ascertain whether the Legislature intended those classes defined in Section 52-1-6(A) to encompass construction corporations such as JCI, whose only employees are executives that have opted out of the Act\u2019s coverage. The issue is one of statutory construction, which we review de novo. Republican Party of New Mexico v. New Mexico Tax. & Rev. Dep\u2019t, 2010-NMCA-080, \u00b6 8, 148 N.M. 877, 242 P.3d 444, cert. granted, 2010-NMCERT-008, 148 N.M. 943, 242 P.3d 1289. Our approach to statutory construction is to first examine the plain meaning of the statute at issue. If the plain meaning is clear \u2014 \u201cnot vague, uncertain, ambiguous, or otherwise doubtful\u201d \u2014 we apply the statute as written, without second guessing the Legislature\u2019s selection from among competing policies or differing ways of effectuating a particular legislative objective. State ex rel. Helman v. Gallegos, 117 N.M. 346, 352, 871 P.2d 1352, 358 (1994).\nII. DISCUSSION\nA. The Plain Meaning of Section 52-1-6(A) Subjects JCI to the Act\n{3} Section 52-l-6(A), reads as follows: \u201cThe provisions of the Workers\u2019 Compensation Act . . . shall apply to employers of three or more workers; provided that act shall apply to all employers engaged in activities required to be licensed under the provisions of the Construction Industries Licensing Act. . . regardless of the number of employees.\u201d (Emphasis added.) There are two prongs to the portion of this section relevant to determining which construction entities are subject to the Act: (1) the entity must be an employer under the Act, and (2) the entity must engage in activities requiring a construction license. There appears to be no dispute that JCI meets the criteria under the second prong, in that JCI engages in activities requiring a properly maintained construction license. Accordingly, we focus our analysis on the first prong, whether or not JCI is an employer under the terms of the Act.\n{4} The Actprovides a definition of employer that states \u201c\u2018employer\u2019 includes any person or body of persons, corporate or incorporate . . . employing workers under the terms of the Workers\u2019 Compensation Act.\u201d NMSA 1978, \u00a7 52-1-15 (1989) (emphasis added). The Act then defines worker as:\nAs used in the Workers\u2019 Compensation Act . . . , unless the context otherwise requires, \u201cworker\u201d means any person who has entered into the employment of or works under contract of service or apprenticeship with an employer, except a person whose employment is purely casual and not for the purpose of the employer\u2019s trade or business. The term \u201cworker\u201d shall include \u201cemployee\u201d and shall include the singular and plural of both sexes.\nSection 52-l-16(A). Reading Section 52-1-6(A) within the context of the provided definitions, it is apparent that for a construction employer to be subject to the Act, it must employ at least one \u201cworker.\u201d Applying the definition to the traditional form of third-party construction labor is straightforward enough. But applying the definitions to owners, shareholders, and executives of corporations proves more difficult. Given Section 52-l-6(A) and its one-worker requirement for construction companies, the question whether JCI is subject to the Act turns on whether Mr. Jackson can be counted as a worker. Because the Act does not itself resolve this question, we consider it to be ambiguous in this respect and must now ourselves determine when an officer, shareholder, or executive is considered a \u201cworker\u201d under the Act. See N.M. Dep\u2019t of Health v. Compton, 2001-NMSC-032, \u00b6 18, 131 N.M. 204, 34 P.3d 593 (noting thatwhen the court is confronted with legislative silence on a particular issue, we resort to other statutory construction aids, keeping in mind that our goal is to facilitate the operation of the act in question and any specified goals of the Legislature); see also Sunwest Bank v. Nelson, 1998-NMSC-012, \u00b6 14, 125 N.M. 170, 958 P.2d 740.\n{5} For guidance, we turn to Garcia v. Watson Tile Works, Inc., 111 N.M. 209, 803 P.2d 1114 (Ct. App. 1990). Garcia provides an instructive framework for analyzing whether officers, shareholders or executives are counted as \u201cworkers\u201d in determining if an employer is subject to the Act. Garcia recognized three distinct classes of personnel associated with entities potentially subject to the Act: (1) non-worker executives, (2) executive employees, and (3) workers. Id. at 210-11, 803 P.2d at 1115-1116. With respect to the first category, this Court held that non-worker executives are not to be counted in determining which employers are subject to theActunderSection52-1-6(A). Garcia, 111 N.M. at 210, 803 P.2d at 1115. But executive employees and workers are to be counted \u2014 even when those executive employees use the opt-out provision as contained in NMSA 1978, Section 52-1-7 (2003). Garcia, 111 N.M. at 210-11, 803 P.2d at 1115-16 (\u201cWe note that subsection E of Section 52-1-7 specifically provides that those who elect not to be covered are nonetheless to be counted in determining whether the employer comes within the Act.\u201d).\n{6} With respect to the case at bar, the record below supports the finding that Mr. Jackson is an executive employee. While the WCA\u2019s findings could be mistakenly construed to conclude that JCI had no workers \u2014 including Mr. Jackson, such an interpretation is contradicted by (1) the recitation of facts in both parties\u2019 briefs, (2) Mr. Jackson\u2019s own affirmative election form, and (3) his testimony during the administrative hearing. The WCA\u2019s brief states, \u201c[JCI] is comprised solely of one employee, Paul Jackson[.]\u201d JCI\u2019s brief is also in accord, stating, \u201cPaul Jackson considers himself as the \u2018executive employee\u2019 of [JCI.]\u201d Additionally, Mr. Jackson signed and filed an affirmative election form with the WCA establishing that \u201cI, PAUL DOUGLAS JACKSON, am a \u2018worker\u2019 as defined in [the Act, and] I am employed by JACKSON CONSTRUCTION, INC[.]\u201d And finally, Mr. Jackson\u2019s own testimony before the WCA maintained his position that he is the \u201cexecutive employee\u201d of JCI. Given the substantial evidence in the record and the absence of any to the contrary, we think the more accurate construction of the WCA\u2019s findings is that JCI did not employ any workers apart from Mr. Jackson. As an actual employee, Mr. Jackson would therefore not fall under the class of executives recognized in Garcia as non-worlcers.\n{7} JCI largely agrees that Mr. Jackson is an executive employee and that a reading of the plain language of Section 52-1-6(A) in concert with Section 52-1-7 would result in Mr. Jackson being counted to determine JCI\u2019s one-worker status. JCI instead focuses its argument on two related points: (1) Mr. Jackson\u2019s affirmative election form should exempt him from being considered as JCI\u2019s worker, as a matter of policy, and (2) a reading of the plain language of the statute would contravene legislative intent and result in an absurdity (i.e. requiring entities to maintain insurance, even when their only qualifying employee has elected to forego coverage). We are not persuaded by either argument.\nB. An Executive Employee Affirmative Election Does Not Exempt the Employer From Being Subject to the Act\n{8} JCFs argument that Mr. Jackson\u2019s affirmative election form should exempt him from being considered as JCFs worker is based on the following two rationales: (1) the definition of employer includes an inherent requirement that qualifying workers \u201cbe covered by workers\u2019 compensation insurance,\u201d and (2) Mr. Jackson is the sole shareholder of JCI and should be treated as a sole proprietor, rather than an employee. While we agree that the definition of employer requires that the entity \u201cemployf] workers under the terms of the W orkers\u2019 Compensation Act,\u201d we disagree that the language requires that all counted workers actually be eligible for workers\u2019 compensation insurance coverage. Section 52-1-15.\n{9} There are several instances in which a worker is counted to determine whether an employer is subject to the Act but is not ultimately covered under the Act\u2019s provisions. See, e.g., Howie v. Stevens, 102 N.M. 300, 302, 694 P.2d 1365, 1367 (Ct. App. 1984) (recognizing that an illegally employed minor would presumably be counted to determine application of the Act to the employer but has the right to circumvent the Act\u2019s coverage and pursue remedies in tort), Garcia, 111 N.M. at 211, 803 P.2d at 1116 (holding that past employees who were regularly employed are still to be counted to determine worker minimums even though those workers are now no longer employees and thus ineligible for coverage). But the most important example is contained in Section 52-l-7(E) itself, which mandates that executive employees are to be counted, even if they have \u201cfiled an affirmative election not to be subject to [the Act].\u201d\n{10} JCI argues for a construction of Section 52-l-7(E) thatwould limit its reach to only those non-construction employers with three or more workers. We disagree that Section 52-1-7(E) is meant to apply so narrowly. As discussed above, construction employers must also employ a specific number of workers to be considered employers \u2014 at least one. Furthermore, the two clauses of Section 52-l-6(A) are contained in the same sentence, and the Legislature has provided no structural evidence that they are to be read separately. Finally, Section 52-l-7(E) contains no express language indicating that its reach only applies to one clause of the sentence contained in Section 52-l-6(A), but not the other. Rather than re-structuring the Legislature\u2019s language in such a result-oriented manner, we give it its plain import: Executive employees may exempt themselves from coverage but are still counted in determining whether their employer is subject to the Act.\n{11} As for JCFs second point in support of its contention that Mr. Jackson\u2019s affirmative election form should exempt it from coverage, we are similarly unpersuaded. JCI goes to great lengths, as did the district court below, to analogize Mr. Jackson\u2019s corporate position as sole shareholder and lone employee to that of a sole proprietor. While we have no precedent suggesting why such an analogy should matter, both JCI and the district court rely for support on a past decision of the Second Judicial District Court, Jogi v. New Mexico Workers\u2019 Comp. Admin., No. CV 2007-08948, slip op. (N.M. Dist. Ct. Feb. 29, 2008). We remind counsel that decisions of the district court, even in their appellate capacity, have no precedential effect in this Court. Inc. Cnty. of Los Alamos v. Montoya, 108 N.M. 361, 364, 772 P.2d 891, 894 (Ct. App. 1989) (\u201cUnpublished case law from state district or federal courts is instructive, but not binding on this court.\u201d). This is true even where, as in Jogi, this Court subsequently denied a petition for writ of certiorari. State v. Myers, 2011-NMSC-028, \u00b6 25, 150 N.M. 1, 256 P.3d 13 (stating that a denial of a writ for certiorari does not \u201cindicate any affirmation or adoption of law\u201d and has no precedential value).\n{12} Without suggesting any approval for the decision rendered in Jogi, we note that its facts are distinguishable from those in the case before us. In Jogi, a sole proprietor named Bjorn Jogi operated the construction company Bjorn Construction. The company never employed any workers other than Mr. Jogi, who affirmatively elected to exempt his company from the Workers\u2019 Compensation Act. After an administrative hearing, the WCA found Bjorn Construction subject to the Act. Mr. Jogi appealed to the Second Judicial District Court, which reversed and held that Bjorn Construction was not an employer under the Act.\n{13} While there are similarities between Mr. Jogi\u2019s sole-proprietor-run construction company and Mr. Jackson\u2019s solely owned and operated construction corporation, the affirmative election forms filed in each case are distinct and appear to seek entirely different legal ends. Mr. Bjorn\u2019s affirmative election form was entitled, \u201cExemption for Construction Industry Licensees Who Are Not Employers (Sole Proprietors or Partners),\u201d which appears to affirm that Bjorn Construction is not to be considered an employer. Mr. Jackson\u2019s form on the other hand, was entitled \u201cNew Mexico Executive Employee Affirmative Election Form,\u201d which appears to exempt only Mr. Jackson from coverage, not JCI as a whole.\n{14} The difference is likely rooted in the legal distinction between sole proprietorships and corporations. A \u201ccorporation is a legal entity, separate from its shareholders, directors, and officers}, who] are not personally liable for the acts and obligations of the corporation.\u201d Stinson v. Berry, 1997-NMCA-076, \u00b6 17, 123 N.M. 482, 943 P.2d 129. While a sole proprietor is simply \u201ca single individual who owns all the assets of a business, is solely liable for its debts and employs in the business no person other than himself.\u201d Section 52-l-7(F)(2). We thus remain unconvinced that the reasoning used in Jogi should be imported to the case at bar.\nC. The Interpretation of the Statute Is Neither Absurd nor Contrary to Legislative Intent\n{15} JCI\u2019s final argument is that the provision of the act that requires companies to provide coverage for injured workers \u2014 whose only employees are exempt from coverage \u2014 to nonetheless procure insurance, is absurd and does not serve the Legislature\u2019s purpose. The argument fails for at least two reasons: (1) the coverage is not superfluous as JCI asserts, and (2) rational policy arguments exist for the Legislature\u2019s adoption of a bright-line rule that subjects all construction employers to the Act.\n{16} Contrary to JCI\u2019s assertion that requiring construction corporations like itself to obtain coverage would contravene legislative intent, we point to several instances in which such coverage would be useful and protective of workers. As Mr. Jackson acknowledged during his administrative hearing before the WCA, if a construction-related accident occurred and his subcontractor was not in compliance with the Act, JCI as general contractor could be held liable to the injured worker under certain circumstances. Related to this point, Mr. Jackson also acknowledged that he did not routinely execute formal contracts with his subcontractors, nor did he ensure definitively that his subcontractors carried the required workers\u2019 compensation coverage. Second, situations can develop between a general contractor and a subcontractor, such that the general contractor inadvertently becomes a \u201cconstructive employer\u201d of the subcontractor\u2019s employees. See Harger v. Structural Servs., Inc., 121 N.M 657, 660-61, 916 P.2d 1324, 1327-28 (1996) (recognizing the creation of \u201cconstructive employees]\u201d under NMSA 1978, Section 52-1-22 (1989)).\n{17} With respect to JCI\u2019s assertion that our construction of Section 52-l-6(A) results in an absurdity, we point to rational policy arguments in support of such a rule. The Legislature\u2019s decision to adopt a rule that requires a heightened standard ofparticipation by small construction employers can be attributed to the inherent dangerousness of construction activity. While we cannot know for certain that our Legislature\u2019s focus was to address dangerousness due to the lack of subject-specific legislative history in New Mexico, other States have cited that rationale as supporting similar changes to their own workers\u2019 compensation acts. See, e.g., Ficocelli v. Just Overlay, Inc., 932 So.2d 1230, 1233 (Fla. Dist. Ct. App. 2006) (\u201c[I]n 1989, the legislature extended coverage to employees of construction industry employers who employ one or more employees ... to ensure that workers performing inherently dangerous work in the construction industry would be covered, even when they are working for small employers[.]\u201d). Interestingly, the changes in our own Act requiring increased participation hy small construction companies occurred shortly after the change by the Florida legislature. See \u00a7 52-1-6 (\u201c[E]nacted by Laws 1990 (2nd S.S.), ch. 2, \u00a7 4.\u201d). Finally, such a rationale certainly supports the election by our Legislature to focus on the nature of a business\u2019s activity \u2014 construction\u2014rather than its size, and can be seen as neither absurd nor contrary to the Act\u2019s purposes.\nVI. CONCLUSION\n{18} We construe Section 52-l-6(A) to require all incorporated construction employers to abide by the strictures of the Act, even those who employ only executive employees that have elected to individually opt out of coverage under Section 52-1-7. We thus reverse the district court and affirm the WCA\u2019s determination that JCI as a construction employer is subject to the Act and must procure the required workers\u2019 compensation insurance.\n{19} IT IS SO ORDERED.\nJ. MILES HANISEE, Judge\nWE CONCUR:\nLINDA M. VANZI, Judge\nTIMOTHY L. GARCIA, Judge", "type": "majority", "author": "HANISEE, Judge." } ], "attorneys": [ "Robert M. Doughty II, P.C. Robert M. Doughty II Alamogordo, NM for Appellees", "Workers\u2019 Compensation Administration Roberta Y. Baca, Assistant General Counsel Albuquerque, NM for Appellant" ], "corrections": "", "head_matter": "IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2012-NMCA-033\nFiling Date: February 15, 2012\nDocket No. 30,454\nJACKSON CONSTRUCTION, INC., A New Mexico Corporation, and PAUL JACKSON, Qualifying Party for Jackson Construction Inc., Petitioners-Appellees, v. GLENN R. SMITH, in his capacity of Director, STATE OF NEW MEXICO WORKERS\u2019 COMPENSATION ADMINISTRATION, Respondent-Appellant.\nRobert M. Doughty II, P.C. Robert M. Doughty II Alamogordo, NM for Appellees\nWorkers\u2019 Compensation Administration Roberta Y. Baca, Assistant General Counsel Albuquerque, NM for Appellant" }, "file_name": "0466-01", "first_page_order": 482, "last_page_order": 487 }