{ "id": 707967, "name": "Kathleen SHORES, Plaintiff-Appellee, v. CHARTER SERVICES, INC., Defendant-Appellant, and Rebecca R. Weh and Allen Weh, Defendants", "name_abbreviation": "Shores v. Charter Services, Inc.", "decision_date": "1987-11-16", "docket_number": "No. 16746", "first_page": "569", "last_page": "571", "citations": [ { "type": "official", "cite": "106 N.M. 569" }, { "type": "parallel", "cite": "746 P.2d 1101" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "683 P.2d 44", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1984, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "101 N.M. 362", "category": "reporters:state", "reporter": "N.M.", "year": 1984, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "101 N.M. 408", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586481 ], "weight": 2, "pin_cites": [ { "page": "415" }, { "page": "970" } ], "opinion_index": 0, "case_paths": [ "/nm/101/0408-01" ] }, { "cite": "104 N.M. 293", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594900 ], "weight": 6, "year": 1986, "pin_cites": [ { "page": "294", "parenthetical": "citations omitted" }, { "page": "1235", "parenthetical": "citations omitted" }, { "page": "294" }, { "page": "1235" } ], "opinion_index": 0, "case_paths": [ "/nm/104/0293-01" ] }, { "cite": "98 N.M. 658", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582453 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/98/0658-01" ] }, { "cite": "92 N.M. 618", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557207 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "620" }, { "page": "61" } ], "opinion_index": 0, "case_paths": [ "/nm/92/0618-01" ] }, { "cite": "92 N.M. 89", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557073 ], "weight": 2, "pin_cites": [ { "page": "92" }, { "page": "1305" } ], "opinion_index": 0, "case_paths": [ "/nm/92/0089-01" ] }, { "cite": "80 N.M. 589", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5353859 ], "weight": 2, "pin_cites": [ { "page": "590" }, { "page": "842" } ], "opinion_index": 0, "case_paths": [ "/nm/80/0589-01" ] }, { "cite": "95 N.M. 398", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575487 ], "weight": 2, "pin_cites": [ { "page": "400" }, { "page": "708" } ], "opinion_index": 0, "case_paths": [ "/nm/95/0398-01" ] }, { "cite": "89 N.M. 252", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2862550 ], "weight": 3, "year": 1976, "pin_cites": [ { "page": "253" }, { "page": "265" } ], "opinion_index": 0, "case_paths": [ "/nm/89/0252-01" ] } ], "analysis": { "cardinality": 434, "char_count": 7262, "ocr_confidence": 0.763, "pagerank": { "raw": 6.747333773816631e-08, "percentile": 0.4088607096398284 }, "sha256": "8a5a0c4b201ab1b05e7783380e11af5c17ca7efa275a194e7583e92934477f00", "simhash": "1:17356dc7ecfe0647", "word_count": 1143 }, "last_updated": "2023-07-14T15:27:22.270695+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SCARBOROUGH, C.J., and WALTERS, J., concur." ], "parties": [ "Kathleen SHORES, Plaintiff-Appellee, v. CHARTER SERVICES, INC., Defendant-Appellant, and Rebecca R. Weh and Allen Weh, Defendants." ], "opinions": [ { "text": "OPINION\nSTOWERS, Justice.\nPlaintiff-appellee Kathleen Shores (Shores) filed suit in Bernalillo County District Court seeking recovery under the Workmen\u2019s Compensation Act, NMSA 1978, \u00a7\u00a7 52-1-1 to -69 (Orig.Pamp. and Cum.Supp.1986) (the Act), for an alleged employment-related injury and for wrongful discharge. Defendant-appellant Charter Services, Inc. (Charter) moved to dismiss on the ground that the theories were inconsistent. Following a hearing, the district court denied the motion and certified the question for interlocutory review. The Supreme Court granted the parties\u2019 request for interlocutory appeal on January 7, 1987. We reverse the district court.\nShores\u2019s complaint alleged that she suffered a compensable, work-related injury and alleged that Charter was neither covered by workmen\u2019s compensation insurance nor self-insured under the terms of the Act. The complaint also alleged that Shores entered into an oral contract of employment with Charter and that she was terminated in retaliation for her injury.\nAt the hearing on the motion to dismiss, Charter argued that the retaliatory discharge claim could not be brought in the same action as the workmen\u2019s compensation claim. Shores contended that because Charter allegedly did not bring itself under coverage of the Act, the actions could be combined because the exclusivity principle of the Act was not invoked. The question of law presented on interlocutory appeal is whether the Workmen\u2019s Compensation Act provided the exclusive remedy when a retaliatory discharge was alleged as a result of Shores filing a workmen\u2019s compensation claim and whether a jury action for retaliatory discharge could be combined with a workmen\u2019s compensation claim, for which no jury is provided.\nA review of the pertinent workmen\u2019s compensation law in New Mexico reflects the following. The New Mexico Workmen\u2019s Compensation Act in effect when the present case was filed provided that \u201c[ejvery employer subject to the Workmen\u2019s Compensation Act [Chapter 52, Article 1 NMSA 1978] shall file in the office of the superintendent of insurance * * * good and sufficient undertaking in the nature of insurance or, evidence thereof in the form of a certificate.\u201d NMSA 1978, \u00a7 52-1-4 (Cum.Supp.1986). It is well established that only substantial compliance with the Act is necessary in order to foreclose common law remedies. R.L. Williams v. Montano, 89 N.M. 252, 253, 550 P.2d 264, 265 (1976). While strict compliance is not necessary, failing to comply in any way, such as failing to obtain insurance or properly file a certificate of insurance, does not constitute substantial compliance. Id. However, if the employee has actual notice of the existence and availability of the workmen\u2019s compensation insurance, the substantial compliance requirement of the Act is met. In such a case, even if the employer fails to file its certificate of insurance, the employee is not allowed to file a common law action; the employer can successfully seek the exclusive protection of the Workmen\u2019s Compensation Act. Baldwin v. Worley Mills, Inc., 95 N.M. 398, 400, 622 P.2d 706, 708 (Ct.App.1980). A mere delay in filing does not necessarily remove the limitations on the employer\u2019s liability; the statute\u2019s purpose is met when the employer obtains compensation insurance for its employees. Quintana v. Nolan Bros., 80 N.M. 589, 590, 458 P.2d 841, 842 (Ct.App.1969).\nIf the employer utterly fails to comply with the provisions of the Workmen\u2019s Compensation Act, the employee has two options. First the employee may maintain a civil action pursuing common law remedies against the employer. Or, in the alternative, the employee may bring suit under the Workmen\u2019s Compensation Act. Arvas v. Feather\u2019s Jewelers, 92 N.M. 89, 92, 582 P.2d 1302, 1305 (Ct.App.1978).\nIf the employer complies with the Workmen\u2019s Compensation Act, it is undisputed in New Mexico that the Act provides the exclusive remedy. Galles Chevrolet Co. v. Chaney, 92 N.M. 618, 620, 593 P.2d 59, 61 (1979); Romero v. J.W. Jones Construction Co., 98 N.M. 658, 651 P.2d 1302 (Ct.App.1982). \u201cIf an employer and employee are covered by the Act, all their rights and remedies are defined exclusively by the Act. \u2018As between the employer and the employee, all other common law and statutory actions are barred by the Act.\u2019 \u201d Williams v. Amax Chemical Corp., 104 N.M. 293, 294, 720 P.2d 1234, 1235 (1986) (citations omitted).\nIn Williams v. Amax Chemical Corp., 104 N.M. 293, 720 P.2d 1234 (1986), the plaintiff alleged retaliatory discharge for filing a workmen\u2019s compensation claim pursuant to the Workmen\u2019s Compensation Act. Justice Federici, writing for the Court, made it very clear that since the Act did not provide for a compensable retaliatory discharge claim, the Court would not indulge in legislation and expand the parameters of the Act. Id. at 294, 720 P.2d at 1235. With respect to the Workmen\u2019s Compensation Act, we see no difference between a tort of retaliatory discharge and a contract claim for wrongful discharge; neither action is recognized in the Act.\nA motion to dismiss tests the legal sufficiency of the complaint. SCRA 1986, 1-012. \u201cIn considering whether a complaint states a claim upon which relief can be granted, the courts accept as true all facts well pleaded. The purpose of [SCRA 1986, 1-012] is to test the formal sufficiency by which the claim is alleged, not the facts upon which the claim is supported.\u201d Trujillo v. Puro, 101 N.M. 408, 415, 683 P.2d 963, 970 (Ct.App.), cert. denied, 101 N.M. 362, 683 P.2d 44 (1984) (citations omitted).\nAccording to the above stated standard of review, we will assume that Charter failed to substantially comply with the Workmen\u2019s Compensation Act. As discussed above, Shores then has two options available to her: she may either file a workmen\u2019s compensation action or file an action for common law remedies, to which she may attach her contract claim for wrongful discharge. Charter\u2019s failure to comply with the Act does not allow Shores to file both a workmen\u2019s compensation action and a wrongful discharge action. As the cases cited above clearly indicate, the employee is limited to one remedy, regardless of whether the employer complied with the Workmen\u2019s Compensation Act.\nSince it is unclear from the record before us whether Charter substantially complied with the Workmen\u2019s Compensation Act, and since it is further unclear from the record whether Shores elected to solely pursue her claim under the Workmen\u2019s Compensation Act, we remand the case to the district court for a hearing to determine which option Shores chooses to pursue. Based upon the findings of this hearing, we further instruct the district court to enter a judgment consistent with this opinion.\nThe parties shall each bear their own costs and attorneys\u2019 fees on appeal.\nIT IS SO ORDERED.\nSCARBOROUGH, C.J., and WALTERS, J., concur.", "type": "majority", "author": "STOWERS, Justice." } ], "attorneys": [ "Turner W. Branch, Dan Swiss, Albuquerque, for defendant-appellant.", "Messersmith, Eaton & Keenan, Roger V. Eaton, Albuquerque, for plaintiff-appellee." ], "corrections": "", "head_matter": "746 P.2d 1101\nKathleen SHORES, Plaintiff-Appellee, v. CHARTER SERVICES, INC., Defendant-Appellant, and Rebecca R. Weh and Allen Weh, Defendants.\nNo. 16746.\nSupreme Court of New Mexico.\nNov. 16, 1987.\nRehearing Denied Dec. 28, 1987.\nTurner W. Branch, Dan Swiss, Albuquerque, for defendant-appellant.\nMessersmith, Eaton & Keenan, Roger V. Eaton, Albuquerque, for plaintiff-appellee." }, "file_name": "0569-01", "first_page_order": 609, "last_page_order": 611 }