{ "id": 708070, "name": "AMERICAN GENERAL FIRE AND CASUALTY COMPANY, Plaintiff-Appellee, and Arturo Escobar, Jr., Involuntary Plaintiff, v. J.T. CONSTRUCTION COMPANY, INC. and Polson & Grady, Ltd., Defendants-Appellants", "name_abbreviation": "American General Fire & Casualty Co. v. J.T. Construction Co.", "decision_date": "1987-07-07", "docket_number": "Nos. 9822, 9830", "first_page": "195", "last_page": "198", "citations": [ { "type": "official", "cite": "106 N.M. 195" }, { "type": "parallel", "cite": "740 P.2d 1179" } ], "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": "98 N.M. 119", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582580 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/nm/98/0119-01" ] }, { "cite": "85 N.M. 201", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2773182 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/85/0201-01" ] }, { "cite": "85 N.M. 6", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2772750 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/85/0006-01" ] }, { "cite": "91 A.L.R.3d 844", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "pin_cites": [ { "page": "847" } ], "opinion_index": 0 }, { "cite": "486 S.W.2d 932", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10136240 ], "opinion_index": 0, "case_paths": [ "/sw2d/486/0932-01" ] }, { "cite": "362 N.E.2d 624", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "393 N.Y.S.2d 994", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1977, "opinion_index": 0 }, { "cite": "41 N.Y.2d 884", "category": "reporters:state", "reporter": "N.Y.2d", "year": 1977, "opinion_index": 0 }, { "cite": "378 N.Y.S.2d 95", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1976, "opinion_index": 0 }, { "cite": "50 A.D.2d 356", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 2954532 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ad2d/50/0356-01" ] }, { "cite": "445 N.E.2d 1057", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "388 Mass. 1001", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 911083 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/mass/388/1001-01" ] }, { "cite": "91 A.L. R.3d 844", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1979, "opinion_index": 0 }, { "cite": "95 N.M. 733", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575463 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/95/0733-01" ] }, { "cite": "100 N.M. 138", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588543 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/nm/100/0138-01" ] }, { "cite": "568 P.2d 363", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1977, "pin_cites": [ { "parenthetical": "In Bank" } ], "opinion_index": 0 }, { "cite": "140 Cal.Rptr. 638", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1977, "pin_cites": [ { "parenthetical": "In Bank" } ], "opinion_index": 0 }, { "cite": "19 Cal.3d 862", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 2291135 ], "year": 1977, "pin_cites": [ { "parenthetical": "In Bank" } ], "opinion_index": 0, "case_paths": [ "/cal-3d/19/0862-01" ] }, { "cite": "425 So.2d 315", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9527565 ], "opinion_index": 0, "case_paths": [ "/so2d/425/0315-01" ] }, { "cite": "699 P.2d 355", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10410192 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/p2d/699/0355-01" ] }, { "cite": "96 N.M. 631", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577425 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/96/0631-01" ] }, { "cite": "89 N.M. 342", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2865706 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0342-01" ] }, { "cite": "67 N.M. 137", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2715751 ], "weight": 2, "year": 1960, "opinion_index": 0, "case_paths": [ "/nm/67/0137-01" ] }, { "cite": "88 N.M. 292", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2841135 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/88/0292-01" ] }, { "cite": "69 N.M. 262", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2787509 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/69/0262-01" ] }, { "cite": "99 N.M. 802", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584641 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/99/0802-01" ] }, { "cite": "103 N.M. 63", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711357 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/103/0063-01" ] } ], "analysis": { "cardinality": 645, "char_count": 9787, "ocr_confidence": 0.783, "pagerank": { "raw": 1.2343288713119154e-07, "percentile": 0.6063890211359813 }, "sha256": "194d03426b118d6770642c8d294aaf1e15a99d8f13c1871f479587e191086238", "simhash": "1:1d42f6eeb8b02a78", "word_count": 1559 }, "last_updated": "2023-07-14T15:27:22.270695+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "DONNELLY, C.J., and FRUM\u00c1N, J., concur." ], "parties": [ "AMERICAN GENERAL FIRE AND CASUALTY COMPANY, Plaintiff-Appellee, and Arturo Escobar, Jr., Involuntary Plaintiff, v. J.T. CONSTRUCTION COMPANY, INC. and Polson & Grady, Ltd., Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nMINZNER, Judge.\nPlaintiff American General Fire and Casualty Company brought suit against defendants J.T. Construction Company, Inc. and Poison & Grady, Ltd., seeking contribution for compensation paid Arturo Escobar, Jr. See NMSA 1978, \u00a7 52-1-56(0 (amended effective December 1,1986; 1986 N.M.Laws ch. 22, \u00a7 103). Plaintiff\u2019s suit was brought more than three years after the date Escobar was injured but less than three years after plaintiff settled Escobar\u2019s right to worker\u2019s compensation benefits. Defendants appeal the trial court\u2019s decision that plaintiff\u2019s suit was timely filed. We reverse.\nBACKGROUND\nEscobar was injured on February 16, 1983, while employed by All Temp Insulation on a construction contract at Holloman Air Force Base. At the time of his injury, his employer was providing his services through a contract with defendant Poison & Grady for the general contractor, defendant J.T. Construction Company.\nPlaintiff was the compensation carrier for All Temp Insulation. As a result of the accident, plaintiff entered into a lump sum settlement with Escobar on March 9, 1984, and was paid compensation benefits, medical benefits, and attorney fees. Escobar assigned his claim against defendants to plaintiff \u201cto the extent of their payment,\u201d and he authorized plaintiff to pursue \u201cthe above-mentioned claim\u201d as he \u201cmight or could do.\u201d\nPlaintiff filed its complaint for reimbursement on September 2, 1986, claiming that both defendants negligently failed to inspect the scaffolding from which Escobar fell. Plaintiff also alleged that defendant J.T. Construction Company negligently constructed the scaffolding. Defendants answered, raising the issue that the claim was untimely, and subsequently moved to dismiss.\nThe trial court ruled that the relevant statute was NMSA 1978, Section 37-1-4-(four-year period), which governs unspecified actions, rather than NMSA 1978, Section 37-1-8 (three-year period), which governs actions for personal injury. The court also ruled that plaintiffs cause of action did not accrue until it had satisfied its obligations to Escobar. Consequently, the court concluded that the complaint was timely under either of the statutes of limitations and denied defendants\u2019 motion, but the court certified its decision for review as an interlocutory appeal. See NMSA 1978, \u00a7 39-3-4(A).\nBoth defendants applied for an order granting an interlocutory appeal. We consolidated the cases and granted the application; the case was assigned to the legal calendar. See SCRA 1986, 12-210(D). The issues certified are (1) whether Section 37-1-8 controls the timeliness of plaintiff\u2019s complaint, and (2) whether plaintiff\u2019s cause of action accrued on the date Escobar was injured or the date plaintiff satisfied its obligations to him. We discuss these issues together because, on these facts, they are related.\nDISCUSSION\nWhen a third party\u2019s tortious conduct injures a worker and the injury is covered by worker\u2019s compensation, almost all states preserve a right of action by the employer and its insurer for reimbursement against the third party. See generally 2A A. Larson, The Law of Workmen\u2019s Compensation, \u00a7 71.00 (1986). In New Mexico, Escobar\u2019s right of action against the third-party tortfeasors was preserved by Section 52-1-56(C), as it read prior to amendment in 1986. The statute not only preserves the_ right of action against a third party, but it also is intended to prevent double recovery by the worker and to provide reimbursement for employers. Strickland v. Roosevelt County Rural Elec. Coop., 103 N.M. 63, 702 P.2d 1008 (Ct.App.1984); Garcia v. Middle Rio Grande Conservancy Disk, 99 N.M. 802, 664 P.2d 1000 (Ct.App.1983). Our statute appears to follow the typical pattern, 2A A. Larson, supra, at Section 71.21, although the methods of providing for reimbursement to the employer or insurance carrier vary among the states. See id. at \u00a7 74.00.\nUnder our cases, Section 52-l-56(C) has been construed to provide only a single cause of action. See Reed v. Styron, 69 N.M. 262, 365 P.2d 912 (1961). The worker may sue a third party wrongdoer for the entire amount of damages, and the employer or insurer is entitled to reimbursement from the proceeds. Security Ins. Co. v. Chapman, 88 N.M. 292, 540 P.2d 222 (1975). The supreme court has observed that the statute provides a right of reimbursement which is distinct from the equitable doctrine of subrogation. See Royal Indem. Co. v. Southern Cal. Petroleum Corp., 67 N.M. 137, 353 P.2d 358 (1960). The claim for reimbursement has been analyzed as a cause of action against the claimant who has recovered from the third party. See Transport Indem. Co. v. Gar cia, 89 N.M. 342, 552 P.2d 473 (Ct.App.1976). Nevertheless, in the case before us, plaintiff received an assignment of, and its complaint relies on, the worker\u2019s cause of action for negligence. See Seaboard Fire & Marine Ins. Co. v. Kurth, 96 N.M. 631, 633 P.2d 1229 (Ct.App.1980).\nThe dispositive appellate issue is whether defendants were entitled to rely on the limitations period provided by Section 37-1-8 for personal injuries. We conclude that they were. See, e.g., Providence Wash. Ins. Co. v. DeHavilland Aircraft Co., 699 P.2d 355 (Alaska 1985); Deculus v. Augenstein Constr. Co., 425 So.2d 315 (La.App.1982). See generally 2A A. Larson, supra, at \u00a7 75.00.\nWe recognize, as plaintiff contends, that the cases employing this analysis have not addressed the particular issue before us in this case, and that the issue is one of first impression. However, our cases interpreting the statute appear to have had as an objective the goal of reducing the likelihood that a third party will be forced to defend more than one action. See Seaboard Fire & Marine Ins. Co. v. Kurth. The result we reach advances this objective. See County of San Diego v. Sanfax Corp., 19 Cal.3d 862, 140 Cal.Rptr. 638, 568 P.2d 363 (1977) (In Bank). That result is consistent with the most recent supreme court precedent, see Taylor v. Delgarno Transp., Inc., 100 N.M. 138, 667 P.2d 445 (1983), as well as the older tradition. See Royal Indem. Co. v. Southern Cal. Petroleum Corp. It is also consistent with the terms of Section 52-l-56(C), which refers to the worker\u2019s cause of action for injuries or death upon receipt of compensation. See Continental Casualty Co. v. Wueschinski, 95 N.M. 733, 625 P.2d 1250 (Ct.App.1981).\nIn some states, statutes have been enacted specifying that the employer or insurer may seek recovery from the third-party tortfeasor within a specified time after payment of, or assumption of the obligation to pay, compensation, rather than from the date of the injury. See Annotation, When Does Statute of Limitations Begin to Run Upon an Action by Subrogated Insurer Against Third-Party Tortfeasor, 91 A.L. R.3d 844 (1979). In others, courts have reached the same result by statutory construction. See Pina v. Liberty Mut. Ins. Co., 388 Mass. 1001, 445 N.E.2d 1057 (1983); Atlantic Mut. Ins. Co. v. State, 50 A.D.2d 356, 378 N.Y.S.2d 95 (1976), aff'd, 41 N.Y.2d 884, 393 N.Y.S.2d 994, 362 N.E.2d 624 (1977); Campbell v. Sonford Chem. Co., 486 S.W.2d 932 (Tex.1972). Even so, the weight of authority supports a decision that the personal injury statute bars plaintiff\u2019s complaint. See generally 2A A. Larson, supra, at \u00a7 75.31. There being no relevant statute in New Mexico other than Section 52-l-56(C), on these facts we are persuaded that the majority rule should be applied.\nAs noted in 91 A.L.R.3d 844, at 847, the rationale underlying the majority rule is as follows:\n[Cjourts generally have adhered to the view that the statute of limitations begins to run on a subrogated insurer\u2019s action against a third-party tortfeasor at the same time that the statute of limitations would begin to run on an action by the insured, or his personal representative in the event of the death of the insured____ A rationale ... [is] that a subrogated insurer stands in the shoes of its insured, taking no rights other than those that the insured had, and at the same time being subject to all defenses which the third-party tortfeasor might assert against the insured.\nBecause there is only a single cause of action in the employee for personal injuries caused by the third party, Reed v. Styron, the trial court\u2019s decision to apply Section 37-1-4 must be reversed. In effect, the trial court\u2019s decision separates the worker\u2019s cause of action into two elements, contrary to the case law. See Herrera v. Springer Corp., 85 N.M. 6, 508 P.2d 1303 (Ct.App.), rev\u2019d on other grounds, 85 N.M. 201, 510 P.2d 1072 (1973).\nPlaintiff contends that the statute should be construed to avoid a harsh result. See Terry v. New Mexico State Highway Comm\u2019n, 98 N.M. 119, 645 P.2d 1375 (1982). Because the facts of this case are distinguishable from those presented by Terry v. New Mexico State Highway Comm\u2019n, we need not address this contention.\nCONCLUSION\nFor the foregoing reasons, we conclude that plaintiffs complaint was not timely. Consequently, we reverse and remand with instructions to dismiss the complaint. Appellee shall bear the appellate costs.\nIT IS SO ORDERED.\nDONNELLY, C.J., and FRUM\u00c1N, J., concur.", "type": "majority", "author": "MINZNER, Judge." } ], "attorneys": [ "Janet M. Velazquez, Matthew P. Holt, Sager, Curran, Sturges & Tepper, P.C., Albuquerque, for plaintiff-appellee.", "John S. Stiff, Butt, Thornton & Baehr, P.C., Albuquerque, for defendant-appellant J.T. Const. Co., Inc.", "Lisa K. Durrett, Charles W. Durrett, Durrett, Jordon & Durrett, P.C., Alamogordo, for defendant-appellant Poison & Grady, Ltd." ], "corrections": "", "head_matter": "740 P.2d 1179\nAMERICAN GENERAL FIRE AND CASUALTY COMPANY, Plaintiff-Appellee, and Arturo Escobar, Jr., Involuntary Plaintiff, v. J.T. CONSTRUCTION COMPANY, INC. and Polson & Grady, Ltd., Defendants-Appellants.\nNos. 9822, 9830.\nCourt of Appeals of New Mexico.\nJuly 7, 1987.\nJanet M. Velazquez, Matthew P. Holt, Sager, Curran, Sturges & Tepper, P.C., Albuquerque, for plaintiff-appellee.\nJohn S. Stiff, Butt, Thornton & Baehr, P.C., Albuquerque, for defendant-appellant J.T. Const. Co., Inc.\nLisa K. Durrett, Charles W. Durrett, Durrett, Jordon & Durrett, P.C., Alamogordo, for defendant-appellant Poison & Grady, Ltd." }, "file_name": "0195-01", "first_page_order": 235, "last_page_order": 238 }