{ "id": 5332708, "name": "Walter Lee WILLIAMS, Plaintiff-Appellant, v. Delfin R. HERRERA et al., Defendants-Appellees", "name_abbreviation": "Williams v. Herrera", "decision_date": "1972-04-14", "docket_number": "No. 803", "first_page": "680", "last_page": "686", "citations": [ { "type": "official", "cite": "83 N.M. 680" }, { "type": "parallel", "cite": "496 P.2d 740" } ], "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": "230 N.E.2d 513", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "87 Ill.App.2d 15", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2548634 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ill-app-2d/87/0015-01" ] }, { "cite": "246 F.2d 830", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 400356 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/f2d/246/0830-01" ] }, { "cite": "183 Neb. 12", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 5226113 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/neb/183/0012-01" ] }, { "cite": "168 So.2d 365", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9843922, 9843837 ], "opinion_index": 0, "case_paths": [ "/so2d/168/0365-02", "/so2d/168/0365-01" ] }, { "cite": "257 N.Y.S.2d 980", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1965, "opinion_index": 0 }, { "cite": "45 Misc.2d 875", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 1151928 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/misc2d/45/0875-01" ] }, { "cite": "485 P.2d 1129", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1971, "opinion_index": 0 }, { "cite": "95 Cal.Rptr. 513", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1971, "opinion_index": 0 }, { "cite": "5 Cal.3d 112", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 2324338 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/cal-3d/5/0112-01" ] }, { "cite": "75 N.M. 81", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5376828 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/nm/75/0081-01" ] }, { "cite": "71 N.M. 364", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5347111 ], "weight": 3, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/71/0364-01" ] }, { "cite": "80 N.M. 224", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358560 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0224-01" ] }, { "cite": "82 N.M. 689", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326888 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0689-01" ] }, { "cite": "82 N.M. 369", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5332984 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0369-01" ] }, { "cite": "77 N.M. 174", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2803842 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0174-01" ] }, { "cite": "68 N.M. 367", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2718769 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/68/0367-01" ] }, { "cite": "60 N.M. 453", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590403 ], "weight": 2, "year": 1955, "opinion_index": 0, "case_paths": [ "/nm/60/0453-01" ] }, { "cite": "91 Idaho 160", "category": "reporters:state", "reporter": "Idaho", "case_ids": [ 8584303 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/idaho/91/0160-01" ] }, { "cite": "81 N.M. 657", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5370290 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/81/0657-01" ] }, { "cite": "83 N.M. 319", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5340673 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0319-01" ] }, { "cite": "81 N.M. 42", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5369513 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0042-01" ] }, { "cite": "83 N.M. 580", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5337387 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0580-01" ] } ], "analysis": { "cardinality": 772, "char_count": 14416, "ocr_confidence": 0.652, "pagerank": { "raw": 2.620345969297715e-07, "percentile": 0.8212870711767366 }, "sha256": "548ae91f34218590a0e70c4bf122a35b6da715106755213d3b4bb581a5751d18", "simhash": "1:d3c27b142444e4a0", "word_count": 2455 }, "last_updated": "2023-07-14T17:09:20.437308+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WOOD, C. J., and HENDLEY, J., concur." ], "parties": [ "Walter Lee WILLIAMS, Plaintiff-Appellant, v. Delfin R. HERRERA et al., Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nWilliams appeals from a summary judgment granted Herrera and Farmers Insurance Group, arising out of a fall from a ladder with a latent defective rung.\nWe affirm as to Herrera and reverse as to Farmers Insurance Group.\nThe trial court found, (1) that there are insufficient facts to establish negligence of Herrera; and (2) that the policy of insurance does not afford medical coverage, and concluded that no genuine issue of material fact was present.\n1. No Issue of Fact Exists on Negligence of Herrera.\nWilliams, 38 years of age, was a brick mason and self-employed. In the latter part of September or first part of October, 1969, he did all of the brick masonry work on the outside of the home of Herrera and built the fireplace inside. Herrera furnished all of the materials. After the home was completed, Herrera advised Williams the fireplace was smoking, and asked Williams to extend the chimney and put a flue liner on the chimney. Williams agreed to do this work. There was no charge for this work. On the morning of January 19, 1970, Williams went to the Herrera home and Herrera furnished him with a ladder to use in the performance of the work. Williams was a business invitee. Williams did not want to bring his own ladder because he was on his way to Santa Fe. Herrera then advised Williams he could use Herrera\u2019s ladder.\nWilliams asked Herrera if his ladder was a good ladder because Williams was quite heavy, 196 pounds, and the flue liner was extra weight of 45 pounds, for a total of 241 pounds. Flerrera said, \u201cit was a good ladder, and Williams could use it.\u201d\nHerrera furnished Williams a 12-foot wooden ladder, factory made, with round wooden rungs from top to bottom. Williams carried it around by the fireplace on the outside of the home and leaned it up against the roof. He got the flue liner out of his pickup and was working it up the ladder to take it up to the roof. The flue liner was eight inches by thirteen inches in diameter, 24 inches long, and weighed 45 pounds. To work it up the ladder, he would set the flue liner on a rung ahead of him, then step up and raise it to the next rung. Each rung looked all right. At the time of the accident, Williams put the flue liner on the roof, balanced it with one hand and started to step on the roof. The rung under his left foot broke in two places and Williams with the flue liner, fell to the ground and suffered injuries to his left leg and foot. He did not know what caused the rung to break.\nIn order to establish a prima f\u00e1cie case in support of summary judgment, Herrera, by affidavit, stated that the ladder was about 10 feet long and was, as far as he could tell, in good condition. He used the ladder whenever necessary, and did not see any defects in the ladder. He used the ladder when working on his house during the construction period and always felt the ladder was safe. He was still using the ladder.\nHerrera also relied on the testimony of Williams that Williams did not know what caused the rung to break.\nWilliams relies upon two points for reversal of the Herrera summary judgment. (1) The trial court based the' summary judgment upon erroneous standards; (2) Herrera did not show an absence of material issues of fact.\n(a) Erroneous Standards\nThe trial court found \u201cthat there are insufficient facts to establish that the accident complained of and resulting injuries were proximately caused by any act of negligence on the part of any of the defendants.\u201d This finding by the trial court does not support a summary judgment. It appears to say that the trial court weighed all of the facts and plaintiff failed to present sufficient facts to establish an act of negligence of Herrera.\nWhen the trial court made findings of fact, it had a duty to find that Flerrera had met the burden of showing that, as a matter of law, no act of negligence existed, and that Williams did not come forward with any evidence to create an issue of fact. Brock v. Goodman, 83 N.M. 580, 494 P.2d 1397 (Ct.App.), decided February 11, 1972.\nIt is not proper for the trial court or this court to weigh evidence. A summary judgment may be granted only when the basic facts are clear and undisputed, Johnson v. J. S. & H. Construction Co., 81 N.M. 42, 462 P.2d 627 (Ct.App.1969), but even where the basic facts are undisputed, summary judgment should be denied if equally logical but conflicting inferences can be drawn from the facts, in favor of the party opposing a motion for summary judgment. Yeary v. Aztec Discounts, Inc., 83 N.M. 319, 491 P.2d 536 (Ct.App.1971).\nHowever, findings of fact and conclusions of law are not required by our rules except in involved cases where the reason for the summary judgment is not otherwise clearly apparent from the record. Wilson v. Albuquerque Board of Realtors, 81 N.M. 657, 472 P.2d 371 (1970). Since this is not an involved case, we may disregard the above findings of the trial court and determine whether the finding or statement of the trial court is correct that \u201cthere being no genuine, issue of material fact present, [Herrera-is] entitled to judgment as a matter of law.\u201d\n(b) Herrera Showed an Absence of Material Issues of Fact\nWilliams claims that ITerrera negligently supplied and permitted Williams to use the ladder. He- argues that Herrera had a duty to make the ladder safe for the use \u2019fbr which it was supplied, a duty to exercise rte\u00e1sonable care to discover any dangerous cdriditions and inform Williams of them, and a'duty to inspect it for defects prior 'to'''supplying it for \u00fase.\nHerrera\u2019s affidavit as to his own use of the ladder and his failure to see any defects in the ladder is a prima facie showing that he did not know and could not have discovered the latent defect'; that he did \u00bf\u00bfercise reasonable care to discover any ct\u00e1rigerous conditions and could not have disddVered any.\nWilliams relies on Restatement of Torts 2d, \u00a7 392 to support his claim. This section applies only where one supplies to another, a chatt\u00e9l like a ladder to be used fpr the supplier\u2019s business purposes or hi which the supplier has' a business interest. Herrera \u2019did not supply the ladder to be used for his- business purposes or in which he had a business interest. Section 392, s\u00fapra, is, therefore, not applicable.'\nHerrera merely loaned the ladder to Williams for his personal use. This does not of itself impose upon Herrera a duty to inspect the ladder in order to discover whether it is fit for the use.for which it is supplied. Restatement of the Law, Torts 2d, \u00a7 388, Comment (M) (1965). No New Mexico cases on inspection can be found. Compare Metz v. Haskell, 91 Idaho 160, 417 P.2d 898 (1966).\nRestatement of the Law, Torts 2d, \u00a7 405, states:\nOne who directly or through a [hird person gives or lends a chattel for another to use, knowing or having reason to know that it is or is likely to be dangerous for the use for which it is given or lent, is subject to the same liability as a supplier of the chattel.\nSection 388, Comment (M), supra, is applicable here. Herrera\u2019s affidavit establishes that he did not know or have reason to know the ladder was dangerous or likely to be dangerous for the use for which it was lent to Williams. He had no duty to inspect the ladder for defects.\n; New. Mexico decisions indicate no liability on Herrera\u2019s part in .this \u201cloan\u201d situation unless Herrera \u201cknew - or by the exercise of due care should have known\u201d of the defect in the ladder. See Bradley v. Johnson, 60 N.M. 453, 292 P.2d 325 (1955); Ferran v. Jacquez, 68 N.M. 367, 362 P.2d 519 (1961); compare Villanueva v. Nowlin, 77 N.M. 174, 420 P.2d 764 (1966).\nAfter Herrera established a prima facie showing that no genuine issue of material fact existed, it became the. duty o'f Williams to show there was a factual issue present. Sanchez v. Shop Rite Foods, 82 N.M. 369, 482 P.2d 72 (Ct.App.1971). This he failed to do.\nSummary judgment in favor of Herrera is affirmed.\n2. \u2019 The Policy of Insurance Does Afford Medical Coverage.\nThe trial- court found \u201cthat the policy of insurance \u2019* * * does not afford medical coverage.\u201d A question of law is involved, not a question of fact. Does the insurance policy afford medical coverage?\nFarmers Insurance Group issued Herrera a policy of insurance with coverage for medical payments to others. Farmers concedes that Williams\u2019 claim falls within this provision of the policy, but contends that Williams is denied medical coverage by reason of several exclusions set forth in the policy.\nFirst, under Exclusions, Section 1(c), states:\nThis policy does not apply:\n* * * * * *\nc. to bodily injury or property damage arising out of the rendering of or failing to render professional services ;\nDid Williams\u2019 bodily injuries arise out of the rendering of professional services? If the provision is unambiguous, we can determine the issue as a matter of law by an application of the policy language to the facts of the case. Baca v. New Mexico State Highway Department, 82 N.M. 689, 486 P.2d 625 (Ct.App.1971). If it is ambiguous, we must construe the policy to determine its coverage. In doing so, any ambiguity must be resolved against the insurer. Ivy Nelson Grain Co. v. Commercial Union Insurance Company, 80 N.M. 224, 453 P.2d 587 (1969).\nThe policy does not define the words \u201cprofessional services.\u201d Neither has it been defined in New Mexico. A review of the meaning of the word \u201cprofession\u201d shows that \u201cit is difficult, if not impossible, to lay down any strict legal definition. * * * \u201d 72 C.J.S. Profession, pp. 1215\u2014 1220. The citation of cases would not be helpful. But it is our opinion that the term \u201cprofessional services\u201d is ambiguous and uncertain.\nIn Fowler v. First National Life Insurance Co. of. America, 71 N.M. 364, 378 P.2d 605 (1963), the court'said:\nIt is a cardinal principle of insurance law that a policy or contract of insurance is to be construed liberally in favor of insured or his beneficiary and strictly as against insurer. Also, words, phrases or terms will be given their ordinary meaning unless by definitions in'-the policy or context in which the word is used requires some other meaning be given.\nSince, in construing the policy coverage, we must resolve the ambiguity against the insurer, we hold that Williams, a stone mason, was not engaged in \u201cprofessional services\u201d while climbing a ladder at the time of the accident. Section 1(c), supra, is not applicable.\nSecond, under Exclusions, Section 1(d) states:\nThis policy does not apply:\n% s{i *!< sfc sfs\nd. to bodily injury or property damage arising out of business pursuits; of any insured except activities-, therein which are ordinarily incident-to \u00a1notibusiness pursuits; * * \u2021? '\u2022\u00a1\u00a1\u00a1-\u00a1.I\nTwo questions are involved. (1) Dijl Williams\u2019 bodily injury arise out of business pursuits of Herrera?. The policy does npt define the term \u201cbusiness pursuits.\u201d What is a \u201cbusiness pursuit\u201d? (2) After completion of the home, was Herrera-.engaged in a non-business pursuit? --. \u00a1\u00a1 .\u00a1to\nUnder General Condition '8(d) \u2018 'bfCth-e insurance policy, \u201c\u2018business\u2019- irieahs'' (1) trade, profession''or dccupatioilp in'clhdiiig farming, and the use of any prefnisd&'b'r portion of residence premises for \u25a0 ariy\"such purposes; * *\nFowler v. First National Life Insurance Co. of America, supra, was followed ip Scott v. New Empire Insurance Company, 75 N.M. 81, 400 P.2d 953 (1965), where the court said:\nWe decline to adopt a strict technical or legalistic interpretation of the terms of the policy, when it was fully -within the power of the insurance company to affirmatively specify some meaning other than that understood by the average individual.\nThe rule is now clear that \u201cwhere there is ambiguity, the test is not what the insurer intended its words to\u2019 mean, but what a reasonable person in the ''\u00bfosition of the insured would .understand therp to mean * * * \u201d and \u201cthe ambiguity . is resolved against the insurer.\u201d Ivy Nelson Grain Co. v. Commercial Union Insurance Company, supra.\n(1) Before the accident occurred, Herrera was building his own home. Whether this should be considered a \u201cbusiness pursuit,\u201d it is difficult to say. We believe it is ambiguous terminology because the average layman could disagree that in its ordinary meaning, building a home is a business pursuit. We resolve the ambiguity against the insurer and hold it was not a business pursuit.\n(2) At the time of the accident, the home was completed. Williams was then doing a repair job on the Herrera home. When the home was completed, it became a non-business pursuit, and Wib liams\u2019 activity thereafter was ordinarily incident to a non-business pursuit and falls within the exception to Section 1(d), supra.\nSection 1(d), supra, is not applicable.\nThe analysis stated above and the conclusions reached as to Exclusions 1(c) and 1(d) are supported by Crane v. State Farm Fire & Casualty Company, 5 Cal.3d 112, 95 Cal.Rptr. 513, 485 P.2d 1129 (1971); Home Insurance Company v. Aurigemma, 45 Misc.2d 875, 257 N.Y.S.2d 980 (1965); Edwards v. Trahan, 168 So.2d 365 (La.App.1964); Marx v. Hartford Accident & Indemnity Company, 183 Neb. 12, 157 N.W.2d 870 (1968); Security National Insurance Company v. Sequoyah Marina, Inc., 246 F.2d 830 (10th Cir. 1957); State Farm Fire & Casualty Company v. National Union Fire Insurance Company, 87 Ill.App.2d 15, 230 N.E.2d 513 (1967).\nThird, under Exclusions, Section 3(b) (3) states:\nThis policy does not apply:\n******\nb. to bodily injury to:\n(3) any person while on the insured premises because a business is conducted or professional services are rendered thereon.\nFrom the definitions of \u201cbusiness,\u201d supra, ho trade, profession or occupation was conducted on the premises while Williams went there to work on the chimney. As heretofore stated, no professional services were rendered. This section is inapplicable.\nSince the Exclusions are inapplicable, we hold that the policy of insurance did afford medical coverage to Williams.\nThe summary judgment granted Herrera is affirmed. The summary judgment granted Farmers Insurance Group is reversed.\nIt is so ordered.\nWOOD, C. J., and HENDLEY, J., concur.", "type": "majority", "author": "SUTIN, Judge." } ], "attorneys": [ "John J. Duhigg, Bruce P. Moore, Albuquerque, for plaintiff-appellant.", "J. T. Paulantis, Iden & Johnson, Albuquerque, N. M., for defendants-appellees." ], "corrections": "", "head_matter": "496 P.2d 740\nWalter Lee WILLIAMS, Plaintiff-Appellant, v. Delfin R. HERRERA et al., Defendants-Appellees.\nNo. 803.\nCourt of Appeals of New Mexico.\nApril 14, 1972.\nJohn J. Duhigg, Bruce P. Moore, Albuquerque, for plaintiff-appellant.\nJ. T. Paulantis, Iden & Johnson, Albuquerque, N. M., for defendants-appellees." }, "file_name": "0680-01", "first_page_order": 806, "last_page_order": 812 }