{ "id": 1561315, "name": "Eloy R. ROMERO, Worker-Appellant, v. SHUMATE CONSTRUCTORS, INC. and Transamerica Insurance Group, and Fay's Painting Company, and United States Fidelity & Guaranty Company, Respondents-Insurers-Appellees", "name_abbreviation": "Romero v. Shumate Constructors, Inc.", "decision_date": "1994-10-21", "docket_number": "Nos. 15325, 15426", "first_page": "58", "last_page": "76", "citations": [ { "type": "official", "cite": "119 N.M. 58" }, { "type": "parallel", "cite": "888 P.2d 940" } ], "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": "95 N.M. 551", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575458 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/95/0551-01" ] }, { "cite": "69 N.M. 324", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2786926 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/69/0324-01" ] }, { "cite": "70 N.M. 19", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2852320 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/70/0019-01" ] }, { "cite": "86 N.M. 477", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2825420 ], "weight": 5, "pin_cites": [ { "page": "479" }, { "page": "406" } ], "opinion_index": 0, "case_paths": [ "/nm/86/0477-01" ] }, { "cite": "93 N.M. 511", "category": "reporters:state", "reporter": "N.M.", 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Dec.", "year": 1976, "opinion_index": 1 }, { "cite": "65 Ill.2d 437", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5435082 ], "year": 1976, "opinion_index": 1, "case_paths": [ "/ill-2d/65/0437-01" ] }, { "cite": "629 P.2d 1389", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10441906 ], "year": 1981, "opinion_index": 1, "case_paths": [ "/p2d/629/1389-01" ] }, { "cite": "558 P.2d 620", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1976, "opinion_index": 1 }, { "cite": "90 N.M. 8", "category": "reporters:state", "reporter": "N.M.", "year": 1976, "opinion_index": 1 }, { "cite": "89 N.M. 525", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2866573 ], "weight": 4, "pin_cites": [ { "page": "525" }, { "page": "986" } ], "opinion_index": 1, "case_paths": [ "/nm/89/0525-01" ] }, { "cite": "89 N.M. 278", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2861654 ], "weight": 2, "year": 1976, "opinion_index": 1, "case_paths": [ "/nm/89/0278-01" ] }, { "cite": "105 N.M. 575", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1598979 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "575" }, { "page": "1258" } ], "opinion_index": 1, "case_paths": [ "/nm/105/0575-01" ] }, { "cite": "103 N.M. 689", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711392 ], "weight": 2, "year": 1985, "opinion_index": 1, "case_paths": [ "/nm/103/0689-01" ] }, { "cite": "111 N.M. 51", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715051 ], "weight": 4, "pin_cites": [ { "page": "51" }, { "page": "121" } ], "opinion_index": 1, "case_paths": [ "/nm/111/0051-01" ] }, { "cite": "75 N.M. 39", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5371242 ], "weight": 4, "year": 1965, "pin_cites": [ { "page": "48-49" }, { "page": "221" } ], "opinion_index": 1, "case_paths": [ "/nm/75/0039-01" ] }, { "cite": "93 N.M. 511", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568790 ], "weight": 4, "pin_cites": [ { "page": "513" }, { "page": "197" }, { "page": "513" }, { "page": "197", "parenthetical": "when someone else pays actual benefits to the injured employee, employer surrenders exclusivity of workers' compensation statute" } ], "opinion_index": 1, "case_paths": [ "/nm/93/0511-01" ] }, { "cite": "104 N.M. 775", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1595010 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/104/0775-01" ] }, { "cite": "644 P.2d 1039", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1982, "opinion_index": 1 }, { "cite": "98 N.M. 50", "category": "reporters:state", "reporter": "N.M.", "year": 1982, "opinion_index": 1 }, { "cite": "98 N.M. 21", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582438 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/98/0021-01" ] }, { "cite": "558 P.2d 619", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1976, "opinion_index": 1 }, { "cite": "90 N.M. 7", "category": "reporters:state", "reporter": "N.M.", "year": 1976, "opinion_index": 1 }, { "cite": "89 N.M. 436", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2866789 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/89/0436-01" ] }, { "cite": "89 N.M. 67", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2865253 ], "weight": 4, "pin_cites": [ { "page": "68-69" }, { "page": "73-74" } ], "opinion_index": 1, "case_paths": [ "/nm/89/0067-01" ] }, { "cite": "118 N.M. 676", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563464 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/118/0676-01" ] }, { "cite": "808 P.2d 963", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1991, "opinion_index": 1 }, { "cite": "111 N.M. 678", "category": "reporters:state", "reporter": "N.M.", "year": 1991, "opinion_index": 1 }, { "cite": "111 N.M. 679", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715107 ], "weight": 7, "pin_cites": [ { "page": "682" }, { "page": "967" }, { "page": "682-88" }, { "page": "967" }, { "page": "683" } ], "opinion_index": 1, "case_paths": [ "/nm/111/0679-01" ] } ], "analysis": { "cardinality": 1920, "char_count": 62933, "ocr_confidence": 0.723, "pagerank": { "raw": 1.517044270814253e-07, "percentile": 0.6686042313663847 }, "sha256": "97b1b0e1108b6314f5e07fe1183ccc2347eb23861cee455479cd2ff9b2685cfd", "simhash": "1:88e115429608d4d9", "word_count": 10090 }, "last_updated": "2023-07-14T22:42:52.429175+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "PICKARD, J., concurs.", "BOSSON, J., (dissenting)." ], "parties": [ "Eloy R. ROMERO, Worker-Appellant, v. SHUMATE CONSTRUCTORS, INC. and Transamerica Insurance Group, and Fay\u2019s Painting Company, and United States Fidelity & Guaranty Company, Respondents-Insurers-Appellees." ], "opinions": [ { "text": "OPINION\nBIVINS, Judge.\nWe consolidated these appeals to consider NMSA 1978, Section 52-1-22 (Repl. Pamp.1991), sometimes referred to as the \u201cstatutory-employer\u201d or \u201ccontractor-under\u201d provision of the Workers\u2019 Compensation Act, NMSA 1978, Section 52-1-1 to -70 (Repl. Pamp.1991). In the first case on appeal, Romero v. Shumate Constructors, Inc., a workers\u2019 compensation case, the Administrative Law Judge (ALJ) granted summary judgment in favor of the general contractor, Shumate Constructors, Inc. (Shumate), and its carrier. The ALJ determined that Romero\u2019s immediate employer, Fay\u2019s Painting Company (Fay\u2019s), was an independent contractor, and therefore Shumate was not liable to pay compensation benefits to Romero. Romero appeals that ruling. In the second case on appeal, Harger v. Structural Services, Inc., a common law tort action, Harger sued Jaynes Corporation (Jaynes), the primary contractor, and Structural Services, Inc. (SSI), a subcontractor, for personal injuries suffered while Harger was working for another subcontractor, Superior Mechanical Contractors, Inc. (Superior). The district court of Bernalillo County granted summary judgment in favor of Jaynes and SSI. The court determined Jaynes to be a statutory employer and thus immune from suit. SSI was determined to be a co-employee of Harger and also immune. Because different results occurred under similar facts in these two cases and because of the confusion emanating from the statutory-employer provision, we consolidated these appeals in order to revisit this enigmatic section of the Workers\u2019 Compensation Act.\nFACTS\nIn Romero, Shumate was the general contractor in the construction and renovation of several primary clarifier units at the City of Albuquerque\u2019s wastewater treatment plant. Shumate hired and entered into a written contract with Fay\u2019s to sandblast and apply protective coatings to those clarifier units. Shumate never engages in sandblasting or coating on wastewater treatment projects, but rather uses subcontractors to do such work when necessary.\nRomero was an employee of Fay\u2019s. He alleges that he was injured in the course and scope of his employment. Shumate required Fay\u2019s to carry workers\u2019 compensation insurance and other insurance for its workers. Fay\u2019s provided Shumate with a certificate of insurance, but Romero alleges that Fay\u2019s did not actually carry workers\u2019 compensation insurance. The question of whether Fay\u2019s carried workers\u2019 compensation insurance was unresolved at the time Shumate was granted summary judgment, and we have not been informed of any subsequent resolution of this issue.\nWhile Shumate made a lump-sum payment of $84,708 to Fay\u2019s and did not specify how many workers there would be or how much each worker would be paid, the contract required Fay\u2019s to pay a certain scale of wages and to use any payment by Shumate to pay for labor and materials before spending it elsewhere. In addition, the contract required Fay\u2019s to use only its own equipment unless it received permission from Shumate. The contract also required Fay\u2019s to follow Shumate\u2019s safety policy, which included the requirement to leave safety equipment in place. Shumate also reserved the right to clean up the project site if Fay\u2019s failed to do so, and it could charge Fay\u2019s if it had to do the cleanup.\nIn Harger, Jaynes was the general contractor on the construction of a school in Zuni, New Mexico. Superior subcontracted with Jaynes to perform mechanical work on the school, and SSI was Jaynes\u2019s structural steel subcontractor on the project. Harger was employed by Superior and was injured in the course of his employment by a steel beam that SSI was moving at the time. Jaynes required Superior to carry workers\u2019 compensation insurance, and Superior did so. At the time Jaynes and Superior entered their contract, Superior already had workers\u2019 compensation insurance.\nThe contract between Jaynes and Superior specifically referred to Superior as an independent contractor. It also required Superi- or to furnish its own labor, materials, and equipment for its work on the project. The contract price was a lump sum of $227,262. Furthermore, Harger alleges that Superior had control over its own employees, had the power to hire and fire Harger, and paid Harger an hourly salary. On the other hand, the contract required Superior to clean up the site. If Superior failed to do so, Jaynes was permitted to do the cleanup and charge Superior for the work. The contract also required Superior to complete its work according to a schedule set and modifiable by Jaynes and to coordinate its activities with Jaynes and all other employees and subcontractors of Jaynes. As was the case with Shumate in Romero, Superior was contractually required to follow safety measures established by Jaynes and those mandated by state and federal law. Finally, if Superior \u201cfailfed] to supply enough properly skilled workers, proper materials, or maintain the Schedule of Work, or it fail[ed] to make prompt payment for its workers, ... disregarded] laws, ordinances, rules, regulations or orders of any public authority having jurisdiction,\u201d Jaynes could supply workers or other subcontractors to perform a portion of Superior\u2019s work or terminate the contract after expiration of a period of time within which Superior could cure its default. If Jaynes chose to terminate the contract, it could use Superior\u2019s equipment and materials to complete the project.\nDISCUSSION\nThe questions we consider here are: (1) whether the concept of \u201ccasual employment\u201d as referred to in Section 52-1-22 is relevant to the disposition of these cases; (2) whether summary judgment as to the existence or non-existence of a statutory-employment relationship was proper in either Romero or Harger; and (3) whether summary judgment that SSI was Harger\u2019s co-employee was proper.\nI. Casual Employment\nSection 52-1-22, captioned \u201cWork not casual employment,\u201d provides:\nAs used in the Workers\u2019 Compensation Act [this article], 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 Workers\u2019 Compensation Act to the same extent as if the work were done without the intervention of such contractor. The work so procured to be done shall not be construed to be \u201ccasual employment.\u201d (Emphasis added.)\nShumate argues that the work done by Romero was casual employment as to Shumate, and that Romero was therefore not a statutory employee of Shumate. Part of the confusion in applying this section arises, we believe, because of the caption and the last sentence of Section 52-1-22. Ignoring that caption and sentence for the moment, the remaining language of the section (one sentence) deals with circumstances in which an employer of a subcontractor shall become liable to pay workers\u2019 compensation benefits under the Workers\u2019 Compensation Act. As we stated in Quintana v. University of California, 111 N.M. 679, 681, 808 P.2d 964, 966 (Ct.App.), cert. denied, 111 N.M. 678, 808 P.2d 963 (1991), \u201cit is the relationship between the general contractor and the employer of the claimant [worker] that is dis-positive [of whether the general contractor is a statutory employer] and not the relationship between the general contractor and the claimant.\u201d See also Rivera v. Sagebrush Sales, Inc., 118 N.M. 676, 680, 884 P.2d 832, 836 (Ct.App.1994). \u201cCasual employment,\u201d in contrast, ordinarily deals with the relationship between the claimant\u2019s alleged immediate employer and the claimant. See generally \u00a7 52-l-16(A) and -23; 1C Arthur Larson, The Law of Workmen\u2019s Compensation \u00a7 51.00-51.23 (1993).\nAs we see it, the purpose of the sentence on casual employment is to make clear that, once the two key requirements of statutory employment under Section 52-1-22 are met, i.e., that (1) the subcontractor in question is not an independent contractor and (2) the subcontractor\u2019s work is \u201cpart or process in the trade or business or undertaking\u201d of the general contractor, see Quintana, 111 N.M. at 681, 808 P.2d at 966, such work will not be deemed casual employment as to the general contractor for purposes of Sections 52-l-16(A) and -23. In ease the reader had any doubt about the consistency of the statutory-employer provision and the rest of the Act, that doubt should be laid to rest by the sentence on casual employment. In the two appeals before us, therefore, we need not be concerned with casual employment, but rather with the above-mentioned two requirements of the statutory-employer provision.\nII. Statutory-Employer Provision\nThe parties in the respective cases seem to agree that Romero was an employee of Fay\u2019s and that Harger was an employee of Superi- or. In Romero, Worker seeks compensation benefits from Shumate, the general contractor and employer of Fay\u2019s. Romero sued Shumate because Fay\u2019s may not have carried workers\u2019 compensation insurance. In Harger, Worker obtained compensation benefits from his principal employer, Superior, and now seeks damages through a tort action against Jaynes, the general contractor and employer of Superior, and another subcontractor, SSI. The issues that surround these two actions reflect the dual purpose of the statutory-employer provision.\nA Dual Purpose of Section 52-1-22\nThe primary purpose of the statutory-employer provision is to make the general or prime contractor liable for compensation benefits to employees of its subcontractor. This provision is usually invoked when the subcontractor is uninsured. See 2A Larson, supra, \u00a7 72.31(a). Romero sought to benefit from this provision in the event his principal employer is determined to be uninsured. The second function of the statute is to allow a general or prime contractor who qualifies as a statutory employer to take refuge under the Workers\u2019 Compensation Act\u2019s exclusivity provision, which makes it immune from a tort action. See \u00a7 52-1-8; Quintana, 111 N.M. at 681, 808 P.2d at 966; 2A Larson, supra, \u00a7\u00a7 72.31(a), (b). In Harger, the general contractor, Jaynes, sought to take advantage of that benefit. Similarly, SSI, a subcontractor, also sought refuge from the suit as a co-employee under the exclusivity provision of the Act.\nAlthough such exclusivity provisions have traditionally been applied only to situations in which the subcontractor is uninsured, there is a significant trend toward granting immunity in cases where the subcontractor is insured and even where the worker has received benefits under the subcontractor\u2019s policy. Id. \u00a7 72.31(b), at 14-209 to -224. The rationale behind this trend is that the general contractor retains a back-up liability for workers\u2019 compensation benefits as a means of encouraging it to ensure that its subcontractors maintain their insurance coverage. See id. at 14-231 to -238. Quintana went part of the way toward adopting this trend by holding that general contractors who qualify as statutory employers are immune if they contractually assure insurance coverage to employees of the subcontractor. Quintana, 111 N.M. at 682, 808 P.2d at 967. See also Rivera, 118 N.M. at 680-681, 884 P.2d at 836-37.\nJaynes did contractually assure such coverage. Therefore, if Jaynes was a statutory employer, it was also immune from suit in tort by Harger. Harger asks that we narrow the statutory-employer doctrine to provide immunity only to employers who actually pay workers\u2019 compensation benefits. In light of the Larson rationale and the holding in Quintana, we decline to do this. We point out that, in deciding these cases, we need not go as far as Larson seems to suggest, although Rivera appeared to do that in dicta. Rivera, 118 N.M. at 680-681, 884 P.2d at 836-37. We leave for another day the question of whether a statutory employer who does not contractually assure coverage to employees of its subcontractor is nonetheless immune under the exclusivity provision of the Act.\nB. Requirement that Subcontractor not be Independent\nThis Court has struggled with the distinction between an employee and an independent contractor, but cases that have addressed this distinction have generally not involved the relationship between a general contractor and a subcontractor for purposes of determining whether the employee of the subcontractor was a statutory employee of the general contractor. Yerbich v. Heald, 89 N.M. 67, 547 P.2d 72 (Ct.App.1976), was one such case, and it established a two-prong test for determining the existence of an independent-contractor status: (1) whether the employer has the right to control the purported employee; and (2) whether the work being done is \u201can integral part of the employer\u2019s business.\u201d Id. at 69, 547 P.2d at 74. Less than five months after Yerbich was decided, Burton v. Crawford & Co., 89 N.M. 436, 553 P.2d 716 (Ct.App.), cert. denied, 90 N.M. 7, 558 P.2d 619 (1976), without mentioning Yerbich at all, adopted a more complex test to determine independent-contractor status. Because the Burton court believed that the right-to-control test had lost its precision as applied to the distinction between employee and independent contractor and because the test had been criticized by Larson, the court adopted Larson\u2019s \u201crelative nature of the work\u201d test to use in its place. Id. at 439-40, 553 P.2d at 719-20; see also IB Larson, supra, \u00a7\u00a7 43.42-43.54. This test was explained as follows:\nThe \u201crelative nature of the work\u201d test has two parts: first, the character of the claimant\u2019s work or business; and second, the relationship of the claimant\u2019s work or business to the purported employer\u2019s business ____ With reference to the character of claimant\u2019s work or business the factors are: (a) the degree of skill involved; (b) the degree to which it is a separate calling or business; and (c) the extent to which it can be expected to carry its own accident burden. The relationship of the claimant\u2019s work or business to the purported employer\u2019s business requires consideration of[:] (a) the extent to which claimant\u2019s work is a regular part of the employer\u2019s regular work; (b) whether claimant\u2019s work is continuous or intermittent; and (c) whether the duration is sufficient to amount to the hiring of continuing services as distinguished from contracting for the completion of the particular job.\nBurton, 89 N.M. at 440, 553 P.2d at 720 (quoting Ostrem v. Alaska Workmen\u2019s Compensation Board, 511 P.2d 1061, 1063 (Alaska 1973)); see also 1B Larson, supra, \u00a7 43.52, at 8-27 to -28.\nUnlike Yerbich, Burton did weave into its opinion the predecessor provision to Section 52-1-22, but it referred to that provision only as a prelude to setting forth the several \u201cavenues\u201d for distinguishing employees from independent contractors. Burton, 89 N.M. at 438, 553 P.2d at 718. Like Yerbich, the purported employee in Burton was not a subcontractor.\nDibble v. Garcia, 98 N.M. 21, 644 P.2d 535 (Ct.App.), cert. denied, 98 N.M. 50, 644 P.2d 1039 (1982), was yet another case that grappled with the distinction between employee and independent contractor for purposes of workers\u2019 compensation. There the court used four tests: (1) the conventional-relationship test; (2) the right-to-control test; (3) the \u201cright to employ and discharge at will\u201d test; and (4) the \u201crelative nature of the work\u201d test. Id. 98 N.M. at 24-25, 644 P.2d at 538-39. The court determined that under each test there was substantial evidence that the plaintiff was an independent contractor. Id. However, it is not clear whether the court was suggesting that it was sufficient to use any one of the four tests in making the determination or if more than one would be necessary. The plaintiff in Tafoya v. Casa Vieja, Inc., 104 N.M. 775, 727 P.2d 83 (Ct.App.1986), was also determined to be an independent contractor, but under the Yerbich test. Tafoya, 104 N.M. at 776-78, 727 P.2d at 84-86. It is not clear if it was necessary for both prongs of Yerbich to be satisfied for the plaintiff to be deemed an independent contractor.\nThe Tafoya court referred to the second prong of the Yerbich test as the \u201crelative nature of the work test\u201d, Tafoya, 104 N.M. at 777, 727 P.2d at 85, but this language unfortunately blurs the distinction between Yerbich and the relative-nature test as set forth in Burton and Larson. Neither Dibble nor Tafoya involved employees of a subcontractor in relation to the general contractor or consideration of the statutory-employer provision, nor does any other case cited by Shumate and Harger in support of their interpretation of independent-contractor status, with the sole exception of Quintana.\nQuintana sought to apply the Yerbich test to a situation where the existence of statutory employment was in question, and the court concluded that the two prongs of this test were functionally equivalent to the two requirements of Section 52-1-22. Quintana, 111 N.M. at 681-82, 808 P.2d at 966-67. However, in doing so, Quintana relied on the Tafoya court\u2019s mislabelling of the second prong of the Yerbich test as \u201cthe relative nature of the work\u201d test. Quintana, 111 N.M. at 681-82, 808 P.2d at 966-67. Perhaps because the outcome of Quintana turned in large part on a procedural question relating to the dismissal of the complaint (which was deemed to be the equivalent of a grant of summary judgment), see id. at 681-83, 808 P.2d at 966-68, the court did not find it necessary to show clearly how it applied Yerbich to the facts of the case, and it is not clear if the court used the \u201crelative nature\u201d test as set forth in Burton and Larson rather than the second prong of Yerbich. It is our task, therefore, to clarify the test of independent-contractor status as applied to Section 52-1-22.\nIf the Quintana court truly meant to use the Yerbich test not as a test of independent-contractor status alone, but rather as a substitute for the two requirements of Section 52-1-22, then it would seem that the right-to-control prong of the test would be the test of independent-contractor status, while the \u201cintegral part of the business\u201d prong would be a substitute wording for the \u201cpart or process\u201d requirement of Section 52-1-22. This would leave out the \u201crelative nature\u201d test entirely. On the other hand, if Quintana did mean to use the \u201crelative nature\u201d test, it either used that test as part of the determination of independeni>eontractor status, in which case it bypassed the \u201cpart or process\u201d requirement, or it used the \u201crelative nature\u201d test instead of the \u201cpart or process\u201d requirement. Neither possibility squares with what we believe to be the intent of Section 52-1-22. Regarding the latter possibility, we point out that Larson\u2019s discussion of the relative nature test refers, as in Burton, Dibble, and Tafoya, to the determination of actual rather than statutory employment, and is considerably more complex in its calculus than the \u201cpart or process\u201d test, which is commonly found in statutory-employer provisions. See IB Larson, supra, \u00a7\u00a7 43.50-43.54 (distinguishing employee from independent contractor); 1C Larson, supra, \u00a7\u00a7 49.16(a)-(j) (what constitutes a statutory employer \u2014 part of the category of \u201cInclusions and Exemptions\u201d). That brings us back to the question of whether to apply the right-to-control test or the relative-nature test or both in determining independent-contractor status in the context of statutory employment.\nPart of the difficulty in deciding which test to choose or what test to fashion is that the common-law test of independence is aimed at an interest that is different from that addressed by the Workers\u2019 Compensation Act. In the common-law situation, we apply the right-to-control test to determine if an employer should be held vicariously liable for the negligent acts of its employees. See SCRA 1986, 13-404 (Repl.Pamp.1991); Savinsky v. Bromley Group, Ltd., 106 N.M. 175, 740 P.2d 1159 (Ct.App.), cert. denied, 106 N.M. 174, 740 P.2d 1158 (1987). If the employee is found to be an independent contractor, then the employer is not liable. On the other hand, the question under the Workers\u2019 Compensation Act is entitlement to benefits. Specifically, under Section 52-1-22, we seek to determine if the employer of a subcontractor is responsible for workers\u2019 compensation benefits to employees of the subcontractor. As already noted, the statutory-employer provision is usually invoked by a worker when the subcontractor is uninsured. See 2A Larson, supra, \u00a7 72.31(a), at 14-197 to -198. Under that provision, if the subcontractor is found not to be an independent contractor and the work so procured to be done was part or process in the trade or business or undertaking of the general contractor, then the general contractor is liable to pay compensation benefits to the subcontractor\u2019s employee as if that employee were an employee of the general contractor. This comparison raises the question of whether \u201cindependent contractor\u201d as used in Section 52-1-22 means something different from \u201cindependent contractor\u201d as used at common law. Romero argues that the term has different meanings in the two contexts. We agree.\nIn keeping with the basic purpose of the Workers\u2019 Compensation Act, which is to ensure that the industry carry the burden of compensating injuries suffered by workers in the course of employment, Yerbich, 89 N.M. at 68-69, 547 P.2d at 73-74, we believe that the legislature intended a narrower class of employers to escape workers\u2019 compensation liability than can escape vicarious tort liability under the common law. See IB Larson, supra, \u00a7 43.42. Professor Larson observes that\na recognition of the difference between compensation law and vicarious liability in the purpose and function of the employment concept has been reflected both in statutory extensions of the term \u201cemployee\u201d beyond the common-law concept and in a gradual broadening of the interpretation of the term to bring within compensation coverage borderline classes for whom compensation protection is appropriate and practical.\nId. \u00a7 43.00, at 8-1. He goes on to say that the common-law right-to-control test of independent contractorship would leave uncompensated those people who are not controlled by those for whom they are performing the work, even though their work is a regular and continuous part of their purported employers\u2019 work and even though they cannot afford to insure themselves. Id. \u00a7 43.42. It is for this reason that Larson suggested the use of the \u201crelative nature of the work\u201d test. Id.\nIn suggesting the relative-nature test, we believe that Larson meant to broaden the category of workers that should be covered by workers\u2019 compensation insurance. This would militate against simply replacing the right-to-control test with the relative-nature test, because there may be workers who would be independent under the latter test but not under the former test. Although there appears to be a trend towards such a replacement, in almost all the cases cited by Larson to demonstrate the existence of this trend, the court found the worker to be an employee rather than an independent contractor. Id. \u00a7 43.54, at 8-32 to -40. In this spirit of broadening workers\u2019 compensation coverage, one commentator, cited by Larson, suggests that \u201c[w]hen control is suspiciously absent or the results of applying the control test are inconclusive, the \u2018relative nature of the work\u2019 test should be used.\u201d Id. \u00a7 43.54, at 8-39 n. 20 (citing Dean Stern, Comment, The Employment Relation in Workmen\u2019s Compensation and Employer\u2019s Liability Legislation, 10 U.C.L.A.L.Rev. 161, 173-74 (1962)). This suggestion seems sound to us. It leads to the conclusion that, in the context of the Workers\u2019 Compensation Act, either test of independence can be used to demonstrate that a worker or a subcontractor is not an independent contractor, from which it follows that both tests must be met for a worker or subcontractor to be considered independent.\nIf a broad interpretation of \u201cemployment\u201d is appropriate in the context of workers\u2019 compensation, we believe that a broad interpretation of \u201cstatutory employment\u201d is at least as appropriate. Larson observes that in the process of statutory and judicial broadening of the classes of workers covered by workers\u2019 compensation, \u201c[t]he largest single category so brought within coverage is that of the employees of uninsured subcontractors.\u201d Id. \u00a7 43.41, at 8-21. He points out that the purpose of statutory employment provisions is to prevent evasion of the Workers\u2019 Compensation Act \u201cby those who might be tempted to subdivide their regular operations among subcontractors, thus escaping direct employment relations with the workers and relegating them for compensation protection to small contractors who fail to carry ... compensation insurance.\u201d 1C Larson, supra, \u00a7 49.15, at 9-29 to -31 (footnote omitted).\nIn keeping with the purpose of the Workers\u2019 Compensation Act and the particular purpose of the statutory-employer provision, we hold that both the right-to-control test and the relative-nature test must point to independence before a contractor will be deemed an independent contractor for purposes of Section 52-1-22. We suggest that trial courts and Workers\u2019 Compensation Administration ALJs first determine whether a subcontractor meets the right-to-control test. If that test fails to point to independence, then the subcontractor is definitively not independent, and there is no need to apply the relative-nature test. If the test does point to independence, then the court should apply the relative-nature test. If that second test fails to demonstrate independence, then the subcontractor is once again not independent. Only if both tests point to independence is the subcontractor deemed independent for purposes of Section 52-1-22.\nIf it is determined by this method that a subcontractor is not independent, then the first requirement of Section 52-1-22 is satisfied. To show that the general contractor is . a statutory employer, the second requirement of Section 52-1-22, the \u201cpart or process\u201d requirement, must still be satisfied.\nIn discussing the factors evidencing right of control, Professor Larson identifies four: (1) direct evidence of the right or exercise of control; (2) the method of payment; (3) furnishing of equipment; and (4) the right to fire. IB Larson, supra, \u00a7 44.31, at 8-89. See also Yerbich, 89 N.M. at 69, 547 P.2d at 74. Larson also notes that \u201c[i]t is commonly assumed that these tests work with equal force in both directions.\u201d IB Larson, supra, \u00a7 44.31, at 8-89. In practice, however, if any single factor evidences the right to control, that factor will be dispositive; \u201cwhile, in the opposite direction, contrary evidence is as to any one factor at best only mildly persuasive evidence of contractorship, and sometimes is of almost no such force at all.\u201d Id. \u00a7 44.31, at 8-90. Larson sums it up:\nIndependent contractorship, then, is established usually only by a convincing accumulation of these and other tests, while employment, although a similar accumulation is often attempted, can if necessary often be solidly proved on the strength of one of the four [factors.]\nId. This means that if one is attempting to prove the existence of an independent-contractor relationship, the proponent bears a heavier burden than one who attempts to prove its non-existence. This principle is also part of the broadening of the classes of workers covered by workers\u2019 compensation, and we hereby adopt it.\nThus, in the cases before us, Romero will succeed in attaching liability to Shumate for compensation benefits if he can prove any one of the factors evidencing right of control and then go on to prove that the \u201cpart or process\u201d requirement of Section 52-1-22 is met. If Jaynes proves any of these factors and then proves the \u201cpart or process\u201d requirement, it will be a statutory employer of the employees of Superior and thus immune from suit in tort by Harger. In both cases, the method-of-payment and fumishing-of-equipment factors point toward independence, because the payments to the subcontractors were by lump sum and the subcontractors had to furnish their own equipment. However, a number of provisions in the two contracts furnish evidence of the general contractor\u2019s right to control. For example, the contract between Shumate and Fay\u2019s required Fay\u2019s to pay a certain scale of wages and to use monies from Shumate to pay for labor and materials before spending it elsewhere; it required Fay\u2019s to carry workers\u2019 compensation insurance; it required Fay\u2019s to follow Shumate\u2019s safety policy; and it allowed Shumate to clean up Fay\u2019s project site if Fay\u2019s failed to do so and to charge Fay\u2019s in such event. Similarly, the contract between Jaynes and Superior required Superior to carry workers\u2019 compensation insurance; it required Superior to follow a set schedule, which Jaynes could modify, and to coordinate its activities with Jaynes and other employees and subcontractors; it required Superior to follow safety measures established by Jaynes; it allowed Jaynes to hold Superior in default for not having enough properly skilled workers and proper materials; and it required Superior to clean up the site and permitted Jaynes to charge Superior for any cleanup Superior failed to do.\nMany of these contractual requirements demonstrate the extent to which the general contractor needed the power to exercise control in order to coordinate a myriad of interdependent details. Professor Larson cites similar cases in which it was necessary to coordinate such details. IB Larson, supra, \u00a7 44.23. He observes that in such cases, \u201cthe modem tendency is to infer that the employer must necessarily have reserved the right to control as many details as are necessary to keep all the gears in his production machine smoothly meshed together.\u201d Id. \u00a7 44.23, at 8-88 (footnote omitted). Therefore, we hold, as a matter of law, that the first factor of the right-to-control test evidences an employment relationship in both Romero and Harger.\nLarson also points out that the right to fire is generally the most important of the four right-to-control factors. Id. \u00a7 44.35(b). Jaynes had the power to terminate the contract with Superior and hold it in default, not just for failure to properly complete the finished product, but also for failing to follow Jaynes\u2019s safety codes or \u201cfail[ing] to supply enough properly skilled workers, proper materials, or ... to make prompt payment for its workers.\u201d A similar provision exists in the contract between Fay\u2019s and Shumate. As Larson asserts, \u201c[t]he absolute right to terminate the relationship without liability is not consistent with the concept of independent contract, under which the [independent] contractor should have the legal right to complete the project contracted for and to treat any attempt to prevent completion as a breach of contract.\u201d Id. \u00a7 44.35(a), at 8-167, -177 (footnotes omitted). We hold as a matter of law, therefore, that this factor also evidences an employment relationship in each of the two cases. The fact that the first and fourth factors both point to an employment relationship leads us to hold, as a matter of law, that neither Fay\u2019s nor Superior were independent contractors for purposes of Section 52-1-22. Because we base this conclusion on the right-to-control test, we need not analyze these cases in terms of the relative-nature test.\nBefore moving to the second requirement of Section 52-1-22, the \u201cpart or process\u201d requirement, we wish to address briefly several arguments that Harger makes. First, Harger argues that because the contract between Jaynes and Superior specifically refers to Superior as an independent contractor, we must conclude that Superior was in fact independent. Yerbich pointedly refutes this argument. Yerbich, 89 N.M. at 68-69, 547 P.2d at 73-74. Second, Harger argues that by referring to Superior as independent, Jaynes waived the exclusivity provisions of the Workers\u2019 Compensation Act. He relies in part on Matkins v. Zero Refrigerated Lines, Inc., 93 N.M. 511, 602 P.2d 195 (Ct.App.1979), in support of his argument. However, Matkins did not involve a subcontractor; rather it involved one employer who lent its employees to another: Although the Matkins court did not describe the relationship as one of master to borrowed servant, the facts of the case strongly suggest that. The decedent in that case was working for a trucking company that leased its trucks to Zero and provided drivers, including the decedent, to Zero as well. Id. at 512-13, 602 P.2d at 196-97. Professor Larson says that the statutory-employer provisions do not apply to lent-employee relationships. 2A Larson, supra, \u00a7 72.31(d), at 14-246 to -248. See also Rivera, 118 N.M. at 676-677, 884 P.2d at 835-36. Thus, Matkins is sufficiently distinguishable from the present case. Finally, Harger argues that Jaynes did not \u201cprocure\u201d the work done by Superior, because it was the Zuni Public Schools that solicited the bids of all the subcontractors on the project. Therefore, Harger claims that Section 52-1-22 does not apply to Jaynes. We hold that any contractual arrangement satisfies the meaning of \u201cprocure\u201d in the context of Section 52-1-22, no matter who solicited the work. To hold otherwise would be to decide workers\u2019 compensation liability on the basis of who originally solicited the work in question, and this we think the legislature did not intend.\nC. Part or Process in the Trade or Business or Undertaking\nThis brings us to the second requirement vof Section 52-1-22. Professor Larson observes that cases applying statutory-employer provisions that include variants of the \u25a0requirement that the work in question be \u201cpart or process in the trade or business ... of such employer\u201d, see \u00a7 52-1-22, generally hold that the provision \u201ccovers all situations in which work is accomplished which [the] employer, or employers in a similar business, would ordinarily do through employees.\u201d 1C Larson, supra, \u00a7 49.16(a), at 9-38 to -43 (emphasis added) (footnote omitted). Shumate alleges that its employees- do not normally engage in sandblasting and refinishing and that the company is not equipped to do so. However, whether or not employers in similar businesses ordinarily perform that work through employees is a question of fact. It is also a fact question whether contractors in construction projects such as schools ordinarily perform their own mechanical work.\nIt is not necessary, however, for us to limit our discussion to what kind of work these contractors, or contractors like them, do. Although a number of states incorporate the concept of \u201cundertaking\u201d into their definitions of statutory employer, see, e.g., Md. Ann.Code \u00a7 9-508(a)(l) (1991) (\u201cundertake\u201d refers to work that the general contractor does by contract for another party, but the work done must be part of the contractor\u2019s trade, business or occupation); Va.Code Ann. \u00a7 65.2-302 (Michie 1991) (same); Kan.Stat. Ann. \u00a7 44-503(a) (1993) (virtually the same), according to our research, New Mexico is unique in having added the words \u201cor undertaking\u201d to the commonly used phrase \u201cpart of the trade or business.\u201d Section 52-1-22.\nEven if a given kind of work is not \u201cpart or process of the trade or business\u201d of the contractor, it meets the second requirement of Section 52-1-22 if it is part of the contractor\u2019s \u201cundertaking\u201d. See Abbott v. Donathon, 86 N.M. 477, 479, 525 P.2d 404, 406 (Ct.App.1974). Jaynes argues that the added phrase should be read expansively. We agree. In Abbott, the claimant\u2019s decedent was hauling dirt for the contractor defendant, who was undertaking the project of deepening an irrigation pond for a customer. Id. Even though the contractor contended that he was engaged in a project that was not part of his normal business and therefore the work by the decedent was not part of his trade or business, the court held that it was an undertaking within the meaning of the predecessor statute to Section 52-1-22. Id. The meaning of \u201cundertaking\u201d to be used in this context is the ordinary dictionary meaning. Id.\nIn the cases before us, the undisputed facts about the nature of Fay\u2019s and Superior\u2019s work convince us that the work is part or process of the undertaking of their respective general contractors. Both contractors undertook large or substantial construction projects, and they subcontracted out parts of those projects \u2014 sandblasting and refinishing in one case and mechanical installation in the other. The subcontracted work was an integral part of the projects in the sense that they would not have been complete without that work. Neither case is about a contractor or subcontractor who performs occasional work for an owner of a business, such as in Tafoya. Nor do the cases involve repairs to completed structures. Rather, they involve projects that have definite time frames and include a number of necessary components, and those components were parcelled out to subcontractors such as Fay\u2019s and Superior. We hold that the undertaking of such projects by general contractors falls within the meaning of the second requirement of Section 52-1-22. Therefore, Jaynes was properly granted summary judgment against Harger, who was seeking common law damages, and Shumate was not properly granted summary judgment against Romero, who was seeking workers\u2019 compensation benefits.\nIII. SSI was not a Co-employee of Superior\nSSI argues that it and Superior were co-statutory employees of Jaynes, and therefore SSI is covered under the exclusivity provision of the Workers\u2019 Compensation Act by virtue of its status in relation to Jaynes. If SSI were correct, then it would follow that the company would be immune to suit in tort by Harger, thus justifying the trial court\u2019s grant of summary judgment in SSI\u2019s favor. Section 52-l-6(E) (effective January 1, 1992). However, in none of the cases cited by SSI in support of its argument are the employees in question corporations or subcontractors. See, e.g., Roseberry v. Phillips Petroleum Co., 70 N.M. 19, 369 P.2d 403 (1962); Hockett v. Chapman, 69 N.M. 324, 366 P.2d 850 (1961); Gallegos v. Chastain, 95 N.M. 551, 624 P.2d 60 (Ct.App.1981); Matkins v. Zero Refrigerated Lines, 93 N.M. 511, 602 P.2d 195 (Ct.App.1979).\nThere is no New Mexico precedent creating a concept of co-statutory employee or using the co-employee concept in a context where an employee of one subcontractor of a general contractor sues another subcontractor in tort. There is also very little support for this idea in other jurisdictions. 2A Larson, supra, \u00a7 72.32. The reason as given by Professor Larson is that \u201cthe general contractor has a statutory liability to the subcontractor\u2019s employee, actual or potential, while the subcontractor has no comparable statutory liability to the general contractor\u2019s employee.\u201d Id. \u00a7 72.32, at 14-269 to -274. In other words, the quid pro quo for the protection afforded to the workers, whether that protection is used or not, provides the basis for the immunity granted by the Worker\u2019s Compensation Act. SSI, as a subcontractor who neither provided nor was required to provide insurance protection for the employees of other subcontractors, should not enjoy the same immunity.\nCONCLUSION\nWe therefore reverse summary judgment in favor of SSI. For reasons given above, we also reverse summary judgment in favor of Shumate, and we affirm summary' judgment in favor of Jaynes. Harger shall recover one-half his cost of appeal against SSI.\nIT IS SO ORDERED.\nPICKARD, J., concurs.\nBOSSON, J., (dissenting).", "type": "majority", "author": "BIVINS, Judge." }, { "text": "BOSSON, Judge\n(dissenting).\nOver thirty years ago George DeArman, an oil field roughneck working for an independent contractor, was seriously injured when heavy equipment supplied by the well owner collapsed unexpectedly, falling thirty feet to the rig floor below and striking DeArman. DeArman v. Popps, 75 N.M. 39, 400 P.2d 215 (1965). DeArman received workers\u2019 compensation from his employer. He then filed suit against the well owner, Sunset International Petroleum Corporation, alleging negligent supervision of the various contractors working on the site. Our Supreme Court rejected Sunset\u2019s argument that its control over the project and the work of the various contractors made DeArman an implicit employee of Sunset which would have limited his remedies to the benefits available under the Workers\u2019 Compensation Act. Instead the Court permitted DeArman to sue in tort under a theory of retained control, as set forth in Restatement (Second) of Torts \u00a7 414 (1965). The Court held that Sunset: owed a duty of reasonable care to employees of independent contractors to the extent it retained control over the project. Therefore, DeArman was not limited to statutory remedies under workers\u2019 compensation, and Sun- \u2022 set was not immune from suit.\nThe opinion in DeArman has evolved over the past thirty years into a substantial body of law in New Mexico. Founded on principles articulated in the Restatement, an em- \u25a0 ployer of a contractor, whether called an owner, operator, general contractor, or the like, has a duty to provide a reasonably safe \u2022 work place, not only for its own employees, but for the workers of its subcontractors as well, at least to the extent it retains some contractual control over the project and the work product of the subcontractor. See, e.g., Requarth v. Brophy, 111 N.M. 51, 801 P.2d 121 (Ct.App.1990); Tipton v. Texaco, Inc., 103 N.M. 689, 712 P.2d 1351 (1985); Valdez v. Cillessen & Son, Inc., 105 N.M. 575, 734 P.2d 1258 (1987); New Mexico Elec. Serv. Co. v. Montanez, 89 N.M. 278, 551 P.2d 634 (1976); Fresquez v. Southwestern Indus. Contractors & Riggers, Inc., 89 N.M. 525, 554 P.2d 986 (Ct.App.), cert. denied, 90 N.M. 8, 558 P.2d 620 (1976). The principle has been applied to the oil field, where the owner/operator customarily hires specialty contractors with their own employees instead of performing the work in-house. See Tipton; DeArman. The same principle has been applied to construction projects, both large and small, where the project is led by a general contractor and implemented by a host of specialty subcontractors each with their own employees. See Requarth, 111 N.M. at 51, 801 P.2d at 121; Valdez, 105 N.M. at 575, 734 P.2d at 1258; Fresquez, 89 N.M. at 525, 554 P.2d at 986. Our courts continue to apply these principles.\nIn one of the two cases before us, plaintiff Harger, an employee of a subcontractor, seeks to apply this same proven theory against the general contractor, Jaynes Corporation. Harger sues on a theory of unsafe work place. According to clearly established precedent, if Harger can prove that Jaynes retained certain control over the project, then under the Restatement, Harger is entitled to an opportunity to prove his case at trial.\nThe majority opinion denies Harger this opportunity because he supposedly has become a \u201cstatutory employee\u201d of the general contractor as well as an actual employee of his own subcontractor. Ironically, the holding is premised in part upon Jaynes\u2019 retained control over the subcontractor, which, of course, is the very element under the Restatement \u00a7 414 which creates liability in tort. Harger is thereby placed in an impossible position: he must disclaim control by Jaynes over its contractors to avoid the statutory employee statute, while he must prove the very opposite to prevail at trial. We are left, then, to wonder, and to shudder, at the prospects of future workers and the degree to which their claims in tort have now been foreclosed.\nI believe the George DeArmans of New Mexico are now seriously at risk. How did we get into such a paradox? What could possibly justify such a result? I suppose the majority would first postulate that its holding makes no change in the law; it merely interprets a statute which has been in existence for some time, and theoretically has always meant the same thing. George DeArman would be the first one surprised by such an argument. Make no mistake about it \u2014 whatever the boundary lines \u2014 the majority opinion, if left standing, is a substantial change in the law. The fact of the matter is that the majority has taken an obscure section of the workers\u2019 compensation law and breathed an aggressiveness into it never before known in its 65 years of viability. See 1929 N.M.Laws, ch. 113, \u00a7 12(0). It requires no great imagination to realize that the present opinion grants general contractors a dimension of tort immunity which exceeds their wildest dreams \u2014 one which, I wager, they could never reasonably expect to enact into law by the democratic process of legislation. This watershed event substantially alters the delicate balance between statutory, no-fault workers\u2019 compensation insurance and the assignation of fault and financial responsibility by way of common law suit in tort.\nAn event of such proportion is usually accompanied by resounding principles of law and equity, and I discern in the majority\u2019s reasoning no less noble an effort. Candidly, the majority does not try to base this result on the force of New Mexico precedent; it recognizes that its opinion is premised largely upon considerations of policy, with which one can honestly disagree. Citing to Professor Larson, the majority heralds the public good from encouraging workers\u2019 compensation coverage and even backup coverage. The majority relies upon the factual premise of: (1) a contractual requirement imposed upon subcontractors to provide workers\u2019 compensation insurance, and (2) some kind of fiscal scheme whereby the general contractor \u201cpays for\u201d or \u201creimburses\u201d for the subcontractor\u2019s cost of providing insurance. See Quintana v. University of California, 111 N.M. 679, 682, 808 P.2d 964, 967 (Ct.App.), cert. denied, 111 N.M. 678, 808 P.2d 963 (1991). But see Matkins v. Zero Refrigerated Lines, Inc., 93 N.M. 511, 513, 602 P.2d 195, 197 (Ct.App.1979). These two factual elements arguably inject the general contractor into the workers\u2019 compensation equation, and thereby, it is argued, the general contractor becomes as much a provider of insurance as the subcontractor. Because this is a good thing, we are told, the general contractor deserves the reward of tort immunity. This is certainly one acceptable view of public policy which favors no-fault workers\u2019 compensation over the rising cost involved in attributing fault through the laborious process of litigation. Professor Larson undoubtedly subscribes to this policy, and there is authority in other states as well.\nIt may also be supposed that these factors distinguish prior tort cases, such as DeAr-man, because no such contractual provision is noted in them. However, no one knows if George DeArman\u2019s contractor had such a provision in its contract with the oil field owner/operator. We may assume not, since the point was not discussed. But it is speculative at best to try to read too much into old cases, where the issue is not even raised. It is, at best, a debatable point.\nI question the significance of a contractor including such a requirement in its contracts. To be sure, from now on there will be one in every contract between an employer and a contractor. It costs the employer little to assure contractually a provision which the law already requires, and which many times, as in the case of Harger, may already be in place and paid for! In exchange for such \u201cassurance\u201d the employer is given absolute tort immunity. This is some bargain!\nThe majority opinion\u2019s omission of any reference to DeArman, its progeny, and the important principles for which they stand is also troublesome. This omission is all the more glaring since the Supreme Court in DeArman discussed the leading workers\u2019 compensation employee/independent contractor cases of the time, distinguished them, and concluded, unlike the majority in this opinion, that there was nothing in the Act inconsistent with imposing tort liability and a duty of reasonable care to contractor\u2019s employees by proof of retained control over the work site. See DeArman, 75 N.M. at 48-49, 400 P.2d at 221.\nFurther, there is substantial authority which does not subscribe to Larson\u2019s view, including cases holding the general contractor liable in tort even if it actually paid workers\u2019 compensation benefits, see, e.g., Miller v. Northside Danzi Constr. Co., 629 P.2d 1389 (Alaska 1981); Laffoon v. Bell & Zoller Coal Co., 65 Ill.2d 437, 3 Ill.Dec. 715, 359 N.E.2d 125 (1976), and other cases granting tort immunity only where the general contractor actually paid compensation benefits as opposed to a mere contingent liability in a contract, see Webb v. Montana Masonry Constr. Co., 233 Mont. 198, 761 P.2d 343 (1988); Prive v. M.W. Goodell Constr. Co., 119 N.H. 914, 409 A.2d 1149 (1979); Lewis v. Lockard, 498 N.E.2d 1024 (Ind.Ct.App.1986); Baldwin Co. v. Maner, 224 Ark. 348, 273 S.W.2d 28 (1954); Fonseca v. Pacific Constr. Co., 54 Haw. 578, 513 P.2d 156 (1973); Nash v. Damson Oil Corp., 480 So.2d 1095 (Miss. 1985); Pate v. Marathon Steel Co., 777 P.2d 428 (Utah 1989); see generally Benjamin Marcus, Advocating the Rights of the Injured, 61 Mich.L.Rev. 921 (1963); Allan H. McCoid, The Third Person in the Compensation Picture: A Study of the Liabilities and Rights of Now-Employers, 37 Tex.L.Rev. 389 (1959).\nBut the weight of out-of-state authority is not the point, at least not in my view. What is \u201cenough\u201d or \u201ctoo much\u201d workers\u2019 compensation coverage, and at what cost to the worker and to society as a whole in terms of tort immunity, are truly imponderable issues. There is no right or wrong side; there is only point and counterpoint. That is why these issues belong in the legislative arena. The majority opinion wrongly usurps the legislative prerogative.\nAnyone alive and breathing over the past decade knows of the battles that have raged in New Mexico legislative halls over workers\u2019 compensation. Love it or hate it, the Act is the essence of the legislative process. The present statute, amended time and again, is a classic example of legislative compromise. In the course of easting and recasting this statute, the legislature has left alone the statutory employee section; it has remained the same, existing in silence and. relative obscurity through all- the legislative wars, exactly as it was created back in 1929. See Laws, supra. Surely the most that can be attributed to legislative intent in keeping this statute intact is an effort to maintain the \u25a0equilibrium of the status quo, whatever that has been. This statute has been almost totally ignored by New Mexico\u2019s litigants and \u2022by our courts, and as we have seen, tort litigation in comparable circumstances has flourished. Clearly, this statute is scant authority for the position advanced by the majority.\nWe are reminded by our Supreme Court that workers\u2019 compensation is no nirvana; it is merely a \u201clegislative scheme ... to keep the claimant off the welfare rolls, not to provide a complete tort recovery for compensation of all damages suffered.\u201d See Continental Ins. Co. v. Fahey, 106 N.M. 603, 606, 747 P.2d 249, 252 (1987). Therefore, the very goal of the majority \u2014 expanding and insuring back-up workers\u2019 compensation coverage \u2014 is a questionable bargain at best considering the terrible cost to the victim. It will be little solace to these workers that this has been accomplished supposedly in the name of helping them. And one wonders what of the clear, express legislative intent that third parties, \u201cany person other than his employer,\u201d who are at fault shall be held accountable, and indeed shall reimburse the workers\u2019 compensation carrier for negligence proximately causing employee injury. See NMSA 1978, \u00a7 52-1-6(E) (Repl.Pamp.1991):\nNothing in the Workers\u2019 Compensation Act, however, shall affect or be construed to affect, in any way, the existence of or the mode of trial of any claim or cause of action that the worker has against any person other than his employer\u2014\nOil field roughneck George DeArman was joined by his employer\u2019s workers\u2019 compensation carrier in the lawsuit seeking contribution from the owner whose negligence may have contributed to the worker\u2019s injury. How indeed is Mr. Harger\u2019s situation any different with respect to Jaynes Corporation?. In other words, , if Mr. Harger had brought this ease in 1965, he would have prevailed under the law established by our Supreme Court in DeArman, just as he. should now.\nThe majority acknowledges that most of the existing New Mexico cases on employee/independent contractor are framed in the context of trying to obtain workers\u2019 compensation coverage in the first instance, as opposed to no coverage at all, by a presumption in favor of the status of employee over independent contractor. See Shipman v. Macco Corp., 74 N.M. 174, 392 P.2d 9 (1964) (distinguished in DeArman); Bailey v. Farr, 66 N.M. 162, 344 P.2d 173 (1959); Burruss v. B.M.C. Logging Co., 38 N.M. 254, 31 P.2d 263 (1934); see, e.g., Tafoya v. Casa Vieja, Inc., 104 N.M. 775, 727 P.2d 83 (Ct.App.1986); Dibble v. Garcia, 98 N.M. 21, 644 P.2d 535 (Ct.App.), cert. denied, 98 N.M. 50, 644 P.2d 1039 (1982); Yerbich v. Heald, 89 N.M. 67, 547 P.2d 72 (Ct.App.1976); Burton v. Crawford & Co., 89 N.M. 436, 553 P.2d 716 (Ct.App.), cert. denied, 90 N.M. 7, 558 P.2d 619 (1976). These are not so-called \u201cstatutory employee\u201d cases, and by and large, they completely ignore that section of the Act. With the policy bias of trying to secure coverage for injured workers, it is no surprise that most opinions lean discemibly in their analysis towards finding a worker to be an employee and not an independent contractor. See Yerbich, 89 N.M. at 68-69, 547 P.2d at 73-74.\nIt follows that if these same cases are applied literally to the statutory employee context, where the worker already has coverage, then the result will be similarly skewed by a presumption that a contractor is \u201ca contractor other than an independent contractor.\u201d See NMSA 1978, \u00a7 52-1-22 (Repl. Pamp.1991). The majority has chosen to make this extension, resulting in presumptions and a burden of persuasion in favor of finding non-independence of the contractor. The majority states: \u201cIf a broad interpretation of \u2018employment\u2019 is appropriate in the context of workers\u2019 compensation, we believe that a broad interpretation of \u2018statutory employment\u2019 is at least as appropriate.\u201d\nIt is here that I part company, not with the underlying case law, but with its application to the statutory employee context, which, I maintain, is unprecedented and unauthorized in New Mexico law. I read the statute to apply only where subcontractor insurance proves unavailing or deficient. Then the general contractor is truly \u201cliable to pay all compensation under the ... Act to the same extent as if the work were done without the intervention of such contractor.\u201d Section 52-1-22. Unless the general contractor truly \u201cpays all compensation\u201d \u2014 more than just backup assurances \u2014 then its liability is merely contingent. Unless liability to that worker is actually \u201cto pay all compensation,\u201d then I fail to see the quid pro quo for the worker\u2019s loss of tort action. See Matkins, 93 N.M. at 513, 602 P.2d at 197 (when someone else pays actual benefits to the injured employee, employer surrenders exclusivity of workers\u2019 compensation statute).\nOther jurisdictions have a similar view. See Fonseca; Nash; Pate. In Nash the Supreme Court of Mississippi said the following about tort immunity in exchange for contingent liability: \u201cWhere the \u2018contractor\u2019 invoking the protections of the exclusiveness of liability statute is not itself liable for compensation to the injured worker, illogic, if not absurdity, would attend our sustaining that contractor\u2019s exclusivity defense.\u201d Nash, 480 So.2d at 1099. Whether this position falters from \u201cillogic\u201d or \u201cabsurdity,\u201d I fail to see where we get the authority to make such a judgment, in light of the clear choice of the legislature to leave things as they have been for well over half a century.\nTwo recent New Mexico cases touch on this subject but, in my opinion, do not compel the result reached today. The first is Quintana, 111 N.M. 679, 808 P.2d 964, the only New Mexico case in 65 years to deal substantively with the statutory employee statute. In that case the defendant, Los Alamos National Laboratory (\u201cLANL\u201d), entered into a contract with Pan Am Services, Inc. to provide essential administrative services such as management, administration, equipment installation, building construction, and custodial maintenance. These were services which normally would be provided by the defendant\u2019s own employees and services over which the defendant exercised detailed control. By contract, Pan Am was required to provide workers\u2019 compensation coverage for its employees, for which LANL was then responsible to reimburse Pan Am as part of its costs. Plaintiff, a Pan Am employee, filed suit against LANL for negligent operation of a vehicle by a LANL employee. Plaintiff also received workers\u2019 compensation benefits from Pan Am. The trial court dismissed plaintiff\u2019s negligence claim on the grounds that LANL was a statutory employer under Section 52-1-22 and therefore, entitled to immunity under the exclusivity provisions of the Act.\nOn appeal, this Court affirmed and held, based upon the facts of the case, that defendant satisfied the classic tests under New Mexico law of \u201cpower of control\u201d and \u201crelative nature of the work\u201d to prove that Pan Am was a \u201ccontractor other than an independent contractor\u201d under Section 52-1-22. Quintana, 111 N.M. at 682-88, 808 P.2d at 967-68. The opinion applied the usual precedents establishing these tests. LANL then became a \u201cstatutory employer\u201d under the Act and entitled to immunity from tort litigation.\nTaken this far, the opinion breaks little new ground. It is premised upon the special relationship between the parties which demonstrated detailed control in LANL and a status in Pan Am which can be interpreted as almost an alter ego of LANL with respect to providing LANL\u2019s essential services. However, in dictum the opinion also pays deference to the so-called \u201cmodern trend\u201d of Professor Larson which would secure tort immunity merely by contractually assuring insurance coverage and providing some mechanism for financial reimbursement. It is this portion of the opinion which is seized upon by the majority in our case and with which I disagree. I have already emphasized my reservations at joining a so-called \u201cmodem trend\u201d based upon a statute which is anything but modem and which prior to Quinta.na had never in its history been interpreted in this fashion. Second, Quintana\u2019s reference to Larson was made without much analysis of the important policy considerations behind such a sweeping concept, probably because it was not essential to the holding of the case. Third, even the Quintana opinion refers to the insurance coverage and reimbursement evidence as \u201ca matter not germane to our discussion,\u201d because the opinion was grounded upon other principles. Id. at 682, 808 P.2d at 967. Even the majority opinion candidly acknowledges that Quintana went only \u201cpart of the way.\u201d In my judgment the majority opinion should be confined to this special set of facts, and we should not journey \u201cthe rest of the way,\u201d nor are we obliged under Quintana to place undue emphasis on a mere contingent liability.\nIn Garcia v. Smith Pipe & Steel Co., 107 N.M. 808, 765 P.2d 1176 (Ct.App.), cert. denied, 107 N.M. 673, 763 P.2d 689 (1988), a borrowed employee-employment agency case, the employer expressly paid for the workers\u2019 compensation coverage, but the actual insurance was procured by the employment agency. This Court followed the money so to speak and held that within the context of that case, the employer had done enough to fall within the protection of the exclusive remedy section of the Act. In the case before us the parties make much of this fact. However, this Court, in Quintana, went to great pains to limit the holding in Garcia. We emphasized that the parties in Garcia had stipulated to the existence of an actual employer/employee relationship, which, of course, leads directly to workers\u2019 compensation coverage and tort immunity. Quintana, 111 N.M. at 683, 808 P.2d at 968. We expressly disagreed that Garcia could be construed to mean that merely the purchase of workers\u2019 compensation coverage, subject to reimbursement by the employer, would bar plaintiff\u2019s personal injury suit under the exclusivity provision. Id. In fact, Garcia says nothing about the statutory employee statute. Accordingly, in my view, Garcia does not stand for any far-reaching interpretation that would afford statutory employee status to anyone who reimburses or otherwise pays for compensation insurance. The employer merely used the indirect means of agency to satisfy the duty it owed under law of providing workers\u2019 compensation coverage to its own employees, including Mr. Garcia. As we made clear, it was intended to be confined to the special circumstances of that case and to those class of cases knowh as borrowed or special employees. See Rivera v. Sagebrush Sales, Inc., 118 N.M. 676, 884 P.2d 832 (Ct.App.1994).\nThe final question pertains to the companion case, Romero v. Shumate Constructors, Inc. In one sense this case might be viewed as the very situation Section 52-1-22 was designed to prevent, where a subcontractor has no insurance and abandons its worker. It would appear that there is a certain fairness in enabling the worker to look to the general \u2022 contractor. Similarly, the general contractor would have earned tort immunity by becoming \u201cliable to pay all compensation.\u201d To my eye, however, this is not how the statute reads. Under Quintana, Section 52-1-22 should be limited to the exceptional circumstance. The facts in the Romero case do not indicate that the subcontractor, Fay\u2019s Painting Co., was anything other than an independent contractor. The worker must look to Fay\u2019s for his workers\u2019 compensation coverage. He must look to tort for anything else. Therefore, I would affirm the Romero case and reverse the entire Harger case. Having stated my opinion and being in the minority, I respectfully dissent.", "type": "dissent", "author": "BOSSON, Judge" } ], "attorneys": [ "Donald M. Pinnock, Will Ferguson & Associates, Abuquerque, for worker-appellant.", "Gary J. Cade, Civerolo, Wolf, Gralow & Hill, P.A, Abuquerque, for Shumate Constructors, Inc. and Transamerica Ins. Group.", "Manuel Garcia, Jr., Abuquerque, for Fay\u2019s Painting Co.", "Thomas R. Mack, Miller, Stratvert, Torgerson & Schlenker, P.A, Abuquerque, for U.S. Fidelity Guar. & Co." ], "corrections": "", "head_matter": "888 P.2d 940\nEloy R. ROMERO, Worker-Appellant, v. SHUMATE CONSTRUCTORS, INC. and Transamerica Insurance Group, and Fay\u2019s Painting Company, and United States Fidelity & Guaranty Company, Respondents-Insurers-Appellees.\nNos. 15325, 15426.\nCourt of Appeals of New Mexico.\nOct. 21, 1994.\nCertiorari Granted Jan. 9, 1995.\nDonald M. Pinnock, Will Ferguson & Associates, Abuquerque, for worker-appellant.\nGary J. Cade, Civerolo, Wolf, Gralow & Hill, P.A, Abuquerque, for Shumate Constructors, Inc. and Transamerica Ins. Group.\nManuel Garcia, Jr., Abuquerque, for Fay\u2019s Painting Co.\nThomas R. Mack, Miller, Stratvert, Torgerson & Schlenker, P.A, Abuquerque, for U.S. Fidelity Guar. & Co." }, "file_name": "0058-01", "first_page_order": 150, "last_page_order": 168 }