{ "id": 2838050, "name": "Rebecca May ARTHER, Dependent widow of Johnny Wayne Arther, Deceased, Plaintiff-Appellee, v. The WESTERN COMPANY OF NORTH AMERICA, Employer, and American Home Assurance Company, its Insurer, Defendants-Appellants", "name_abbreviation": "Arther v. Western Co. of North America", "decision_date": "1975-07-02", "docket_number": "No. 1882", "first_page": "157", "last_page": "160", "citations": [ { "type": "official", "cite": "88 N.M. 157" }, { "type": "parallel", "cite": "538 P.2d 799" } ], "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": "34 N.M. 29", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1556079 ], "weight": 2, "year": 1929, "opinion_index": 0, "case_paths": [ "/nm/34/0029-01" ] }, { "cite": "121 So.2d 424", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9873288 ], "opinion_index": 0, "case_paths": [ "/so2d/121/0424-01" ] }, { "cite": "135 Mont. 469", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 5193847 ], "weight": 2, "year": 1959, "opinion_index": 0, "case_paths": [ "/mont/135/0469-01" ] }, { "cite": "84 N.M. 229", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2767731 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0229-01" ] }, { "cite": "83 N.M. 766", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5331130 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0766-01" ] }, { "cite": "86 N.M. 375", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2827525 ], "weight": 10, "opinion_index": 0, "case_paths": [ "/nm/86/0375-01" ] }, { "cite": "66 N.M. 369", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2848670 ], "weight": 2, "year": 1960, "opinion_index": 0, "case_paths": [ "/nm/66/0369-01" ] }, { "cite": "58 N.M. 553", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587641 ], "weight": 2, "year": 1954, "opinion_index": 0, "case_paths": [ "/nm/58/0553-01" ] }, { "cite": "72 N.M. 132", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2856106 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/72/0132-01" ] } ], "analysis": { "cardinality": 541, "char_count": 9861, "ocr_confidence": 0.803, "pagerank": { "raw": 3.8161976529450604e-07, "percentile": 0.8981037118380261 }, "sha256": "da7d0806652b30e2a01b2de4f2a4d34aaab7a6d1d397ab1ba2bb49dd25c295b0", "simhash": "1:7bec93cac1f6ed1b", "word_count": 1584 }, "last_updated": "2023-07-14T21:34:46.516747+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and LOPEZ, JJ., concur." ], "parties": [ "Rebecca May ARTHER, Dependent widow of Johnny Wayne Arther, Deceased, Plaintiff-Appellee, v. The WESTERN COMPANY OF NORTH AMERICA, Employer, and American Home Assurance Company, its Insurer, Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nThe trial court ordered a lump-sum award in a workmen\u2019s compensation case. Defendants appeal. The two issues are: (1) the authority to direct, and (2) the propriety of directing a lump-sum award under the facts of this case.\nAuthority to Direct Lump-Sum Award\nDefendants\u2019 answer admits that plaintiff's husband received injuries arising out of and in the course of his employment which resulted in his death. Weekly compensation benefits had been paid since the date of death. Within three months after the accident, plaintiff petitioned the trial court \u201cfor a lump sum settlement of the widow\u2019s death benefits . . . .\u201d\nSection 59-10-13.5 (A), N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1) provides for the payment of compensation in installments. This was being done. Section 59-10-13.6, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1) provides that a workman entitled to compensation, or his eligible dependents, may sue for compensation only when the employer or insurer fails or refuses to pay an installment of compensation to which the workman or dependent is entitled. Moody v. Hastings, 72 N.M. 132, 381 P.2d 207 (1963); State v. Swope, 58 N.M. 553, 273 P.2d 750 (1954); compare Selgado v. New Mexico State Highway Department, 66 N.M. 369, 348 P.2d 487 (1960). There is no finding, and none was requested, that defendants had failed or refused to pay an installment of compensation which was due. Section 59-10-36, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1) provides that no claim shall be filed by a workman who is receiving maximum compensation benefits. There is no contention that maximum compensation benefits were not being paid.\nBy what authority did the trial court direct a lump-sum award ? Livingston v. Loffland Brothers Co., 86 N.M. 375, 524 P.2d 991 (Ct.App.1974) holds that \u00a7 59-10-25, N.M.S.A. 1953 (2d Repl.Vol. 9, pt. 1) authorizes the trial court to direct a lump-sum award and that where compensation is being paid, \u00a7 59-10-36, supra, does not bar a lump-sum proceeding. Neither Livingston, supra, nor \u00a7 59-10-25, supra, authorizes a lump-sum award in this case.\nIn Livingston, supra, the parties had stipulated to a settlement and the trial court had approved the settlement. Thus there had been a prior award of compensation. See \u00a7 59-10-25(A), supra. There having been a prior award, there was a right to compensation enforceable by the district court. See \u00a7 59-10-25(B), supra. Section 59-10-36, supra, was not applicable in Livingston, supra, because the right to compensation had been established before a lump-sum award was sought. Section 59-10-25, supra, does not authorize a lump-sum award when the right to compensation has not been established. Livingston, supra, is correct on its facts but is not applicable in this case because of different facts. In this case there has been no settlement.\nSection 59-10-13.5(B), N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1) authorizes a party in interest to petition for a lump-sum award in cases of total permanent disability or death. The petitioning party must, however, be \u201centitled to compensation\u201d because the lump-sum award discharges the employer\u2019s liability. Until the right to compensation has been established, \u00a7 59-10-13.5(B), supra, does not authorize a lump-sum award. Compare Sanchez v. Kerr McGee Company, 83 N.M. 766, 497 P.2d 977 (Ct.App.1972).\nSummarizing, where maximum compensation benefits are being paid, \u00a7 59-10-36, supra, bars a suit to establish liability for compensation. Sections 59-10-25 and 59-10-13.5(B), authorize lump-sum awards only where the right to compensation has been previously established. A lump-sum award was authorized in Livingston, supra, because the parties had agreed upon a settlement and the court had approved the settlement. The right to compensation having been established, the court could then direct a lump-sum award under \u00a7 59-10-25, supra.\nIn this case defendants admitted death from injuries arising out of and in the course of employment. Their answer did not contest liability for the death'; it contested only the propriety of a lump-sum award. The admission in the answer established liability for the death. See Lujan v. Gonzales, 84 N.M. 229, 501 P.2d 673 (Ct.App.1972). This admission of liability sufficiently established plaintiff\u2019s right to compensation and authorized a lump-sum award under \u00a7 59\u201410\u201425(B), supra. Compare Livingston, supra. Specifically, defendants\u2019 admission provided the factual basis for a lump-sum award in this case.\nPropriety of the Lump-Sum Award\nPlaintiff was twenty-one years old when she sought the lump-sum award. She had been married to her deceased husband about one month. There were no children of the marriage and she was not pregnant. She had been living with her in-laws since her husband\u2019s death and planned to stay there indefinitely. At the time of the lump-sum hearing she was employed at a floral shop earning $1.65 per hour. The parties stipulated that \u201cthe only purpose for which she is seeking this lump sum settlement is for investment purposes.\u201d\nThe basis for a lump-sum award is \u201cthe best interests of the parties entitled to compensation.\u201d Section 59-10-13.5 (B), supra; Livingston, supra. The trial court found:\n\u201c10. That Plaintiff\u2019s financial interest will be best served by a lump sum settlement in as much as Plaintiff can receive the rate of return upon investments and certificates of deposit at local banks in excess of 5%, as well as other investments in the present money markets.\n\u201c11. It would be for Plaintiff's best interest that she obtain a lump sum settlement because she could remarry the day after a lump sum settlement, or die the day after a lump sum settlement, without losing any future payments which, under the law, would ordinarily stop on her death or remarriage.\u201d\nAlthough the \u201cbest interest\u201d of the plaintiff is the guide in determining whether a lump-sum should be awarded, periodic compensation payments are the rule, and lump-sum awards are the exception. Laukaitis v. Sisters of Charity of Leavenworth, 135 Mont. 469, 342 P.2d 752 (1959); Sullivan v. Mayo, 121 So.2d 424 (Fla.1960). Compare \u00a7\u00a7 59-10-13.5 and 13.6, supra, and \u00a7\u00a7 59-10-18.2 and 18.4, N.M.S.A.1953 (2d Repl. Vol. 9, p. 1). In applying this exception the purpose of workmen\u2019s compensation must be kept in mind.\n\u201cIt is the public policy of this state that . . . compensation shall be made in a certain amount, to secure the injured employee against want, and to avoid his becoming a public charge.\u201d Hughey v. Ware et al., 34 N.M. 29, 276 P. 27 (1929). See 1 Larson, Workmen\u2019s Compensation Law, \u00a7 2.20 (1972). Consistent with this policy, compensation paid to a dependent widow terminates upon her death or remarriage. Section 59-10-18.7(F), N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1). In holding that a lump-sum award was in plaintiff\u2019s best interests \u201cbecause she could remarry the day after a lump sum settlement\u201d the trial court, in effect, ruled that plaintiff\u2019s interest was to be given effect regardless of the legislative intent that compensation was only to be paid while plaintiff was a widow.\n\u201cOf all the excuses put forward to justify lump-summing, the worst is that in a particular instance the claimant can, so to speak, beat the actuarial tables by taking a lump sum.\u201d 3 Larson, Workmen\u2019s Compensation Law, \u00a7 82.72 (1973). One reason this excuse is \u201cworst\u201d is because the policy of our statute is to assure periodic payments to help secure the recipient of the payments against want.\nBoth grounds found by the trial court are inconsistent with the public policy expressed in our statute. A lump-sum award is an exception to the rule of periodic payment; the exception should be applied only in circumstances that accord with the purpose of the compensation statute; the exception should not \u201ceat up\u201d the rule. As stated in 3 Larson, Workmen\u2019s Compensation Law, \u00a7 82.71 (1973):\n\u201cSince compensation is a segment of a total income-insurance system, it ordinarily does its share of the job only if it can be depended on to supply periodic income benefits replacing a portion of lost earnings. If a partially or totally disabled worker gives up these reliable periodic payments in exchange for a large sum of cash immediately in hand, experience has shown that in many cases the lump sum is soon dissipated and the workman is right back where he would have been if workmen\u2019s compensation had never existed. One reason for the persistence of this problem is that practically everyone associated with the system has an incentive \u2014 at least a highly visible short-term incentive \u2014 to resort to lump-summing. . . .\n\u201cThe only solution lies in conscientious administration, with unrelenting insistence that lump-summing be restricted to those exceptional cases in which it can be demonstrated that the purposes of the act will best be served by a lump-sum award.\u201d\nPlaintiff has shown that it is in her short term financial interest to receive a lump-sum award. This is insufficient. She has not shown that the purposes of our compensation statute will be best served by a lump-sum award. Compare Livingston supra, where the evidence showed special circumstances which supported the lump-sum award.\nUnder the rule announced herein, the trial court\u2019s findings are insufficient to support a lump-sum award. Oral argument is unnecessary. The judgment of the trial court is reversed.\nIt is so ordered.\nHENDLEY and LOPEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Neal & Neal, Hobbs, for defendants-appellants.", "John T. Porter, Williams, Johnson, Houston, Reagan & Porter, Hobbs for plaintiff-appellee." ], "corrections": "", "head_matter": "538 P.2d 799\nRebecca May ARTHER, Dependent widow of Johnny Wayne Arther, Deceased, Plaintiff-Appellee, v. The WESTERN COMPANY OF NORTH AMERICA, Employer, and American Home Assurance Company, its Insurer, Defendants-Appellants.\nNo. 1882.\nCourt of Appeals of New Mexico.\nJuly 2, 1975.\nCertiorari Denied Aug. 5, 1975.\nNeal & Neal, Hobbs, for defendants-appellants.\nJohn T. Porter, Williams, Johnson, Houston, Reagan & Porter, Hobbs for plaintiff-appellee." }, "file_name": "0157-01", "first_page_order": 187, "last_page_order": 190 }