{ "id": 2861840, "name": "Jose DE LA TORRE, Plaintiff-Appellant, v. KENNECOTT COPPER CORPORATION, Defendant-Appellee", "name_abbreviation": "De La Torre v. Kennecott Copper Corp.", "decision_date": "1976-11-09", "docket_number": "No. 2529", "first_page": "683", "last_page": "688", "citations": [ { "type": "official", "cite": "89 N.M. 683" }, { "type": "parallel", "cite": "556 P.2d 839" } ], "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": "42 N.M. 107", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1569656 ], "weight": 2, "year": 1938, "opinion_index": 0, "case_paths": [ "/nm/42/0107-01" ] }, { "cite": "222 P. 903", "category": "reporters:state_regional", "reporter": "P.", "year": 1924, "opinion_index": 0 }, { "cite": "29 N.M. 228", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841595 ], "year": 1924, "opinion_index": 0, "case_paths": [ "/nm/29/0228-01" ] }, { "cite": "83 N.M. 400", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5333759 ], "weight": 2, "pin_cites": [ { "page": "401" }, { "page": "1264" } ], "opinion_index": 0, "case_paths": [ "/nm/83/0400-01" ] }, { "cite": "76 N.M. 760", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8504922 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0760-01" ] }, { "cite": "83 N.M. 567", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5341601 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0567-01" ] }, { "cite": "87 N.M. 476", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2835488 ], "weight": 2, "year": 1975, "opinion_index": 1, "case_paths": [ "/nm/87/0476-01" ] }, { "cite": "85 N.M. 802", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2774410 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/85/0802-01" ] }, { "cite": "77 N. M. 671", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2804135 ], "weight": 2, "year": 1967, "opinion_index": 1, "case_paths": [ "/nm/77/0671-01" ] }, { "cite": "88 N. M. 74", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2842052 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/88/0074-01" ] }, { "cite": "83 N.M. 789", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5334147 ], "weight": 2, "year": 1972, "opinion_index": 1, "case_paths": [ "/nm/83/0789-01" ] }, { "cite": "47 N.M. 329", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1562223 ], "weight": 2, "year": 1943, "opinion_index": 1, "case_paths": [ "/nm/47/0329-01" ] }, { "cite": "82 N.M. 666", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5335731 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/82/0666-01" ] }, { "cite": "65 N.M. 21", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2846209 ], "weight": 2, "year": 1958, "opinion_index": 1, "case_paths": [ "/nm/65/0021-01" ] }, { "cite": "72 N.M. 9", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2854223 ], "weight": 2, "year": 1963, "opinion_index": 1, "case_paths": [ "/nm/72/0009-01" ] }, { "cite": "79 N.M. 99", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2749557 ], "weight": 3, "year": 1968, "opinion_index": 1, "case_paths": [ "/nm/79/0099-01" ] }, { "cite": "71 N.M. 491", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5348970 ], "weight": 2, "year": 1962, "opinion_index": 1, "case_paths": [ "/nm/71/0491-01" ] }, { "cite": "83 N.M. 567", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5341601 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/83/0567-01" ] } ], "analysis": { "cardinality": 720, "char_count": 16935, "ocr_confidence": 0.823, "pagerank": { "raw": 1.669340966169483e-07, "percentile": 0.695677045264029 }, "sha256": "681c0ef24e4edb3fe57a57f54502cb1fd336bba1ce80d42f27a282dcc72649ab", "simhash": "1:93056ac3098dcc5a", "word_count": 2805 }, "last_updated": "2023-07-14T20:56:52.908635+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ, J., concurs.", "LOPEZ, J., dissenting in part and concurring in part." ], "parties": [ "Jose DE LA TORRE, Plaintiff-Appellant, v. KENNECOTT COPPER CORPORATION, Defendant-Appellee." ], "opinions": [ { "text": "PER CURIAM.\nUpon motion of defendant for rehearing, the opinion is withdrawn and the following opinion substituted therefor:\nOPINION\nSUTIN, Judge\nPlaintiff appeals from an order that dismissed plaintiff\u2019s complaint which sought recovery of workmen\u2019s compensation. We reverse.\nA. Plaintiff is entitled to workmen\u2019s compensation.\nPlaintiff\u2019s complaint stated a claim for relief under the Workmen\u2019s Compensation Act. It alleged that plaintiff was seriously injured on March 24, 1967; that he was disabled until March 23, 1968, when he resumed his full-time employment with defendant; that on May 16, 1974, six years later, plaintiff was again rendered totally disabled and as a result thereof, plaintiff was entitled to compensation benefits. Plaintiff\u2019s complaint was filed on January 23,1976.\nAs an affirmative defense, the defendant claimed that plaintiff\u2019s claim was barred by the limitation provisions of \u00a7 59-10-13.6(A) of the Workmen\u2019s Compensation Act [N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1)]. To raise this issue before trial, defendant filed a motion to dismiss on the basis of the limitation provison. The motion stated that the complaint, filed January 23, 1976, was more than one year after the alleged job accident of May 16, 1974.\nAt the hearing on the motion, the defendant stated:\nAs of May 16, 1974, the date referred to in paragraph 5 of plaintiff\u2019s complaint, the plaintiff ceased actual work with the employer and went on sick leave lay-off status. He remained an employee to the extent that when his illness was terminated and he was well enough to return to work, he would be returned to his regular employment. During the time of this illness, plaintiff received weekly benefits under the weekly indemnity plan which were not in any way related to any workmen\u2019s compensation payments.\nUp to the date of the retirement [April 1, 1975], he was technically carried in the company records as an employee, but was not at any time subsequent to May 16, 1974, actually performing his duties as an employee or receiving wages as such.\nIn view of this, it is our opinion that he was \u2014 did not remain employed as contemplated by the second sentence in paragraph (a) of Section 13.6. ******\nMR. SHANTZ: Am I correct also that the termination of employee status to the retirement status is that date in April, \u201975 . . . ?\nTHE.COURT: Yes. That is the understanding the Court received from the agreement of counsel and the explanation given. [Emphasis added].\nPlaintiff offered in evidence a letter from defendant to plaintiff which fixed the date of retirement as of April 1, 1975.\nBased on defendant\u2019s statements and plaintiff\u2019s letter, the trial court concluded that the limitation provision in \u00a7 59-10-13.-6(A) barred the recovery of workmen\u2019s compensation. The foregoing constitutes the record in the court below.\nSection 59-10-13.6, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1) provides a one year limitation period for filing a claim for workmen\u2019s compensation \u201cafter the failure or refusal of the employer or insurer to pay compensation. This one [1] year period of limitations shall be tolled during the time a workman remains employed by the employer by whom he was employed at the time of such accidental injury, not to exceed a period of one [1] year.\u201d\nThe issue to decide is whether plaintiff remained \u201cemployed\u201d by defendant from May 16, 1974 to April 1, 1975, the date of plaintiff\u2019s retirement. If he did remain \u201cemployed\u201d, then the complaint filed January 23, 1976 was not barred by the limitation statute. This is a matter of first impression in New Mexico.\nFirst, plaintiff claims he was totally disabled on May 16, 1974. Defendant claims \u201cplaintiff ceased actual work with the employer and went on sick leave lay-off status.\u201d The answer to these claims is a question of fact for the trial court.\nSecond, plaintiff \u201cremained an employee to the extent that when his illness was terminated and he was well enough to return to work, he would be returned to his regular employment. . . . Up to the date of retirement, he was technically carried in the company records as an employee .... [T]he termination of employee status ... is that date in April, \u201975\u201d. During this interim period, May 16, 1974 \u2014 April 1, 1975, plaintiff received weekly benefits under the weekly benefit plan. These benefits are payable, to one who is employed, for disabilities resulting from sickness or off-the-job injuries.\nIn its letter to plaintiff dated April 22, 1975, the defendant stated:\nEnclosed is your certificate of retirement which recognizes your 28 years of continuous service at Chino Mines Division.\nOn behalf of the company, I wish to express my appreciation for the many years you worked in various positions at the mine. You are especially to be commended for your performance as a heavy duty truck mechanic in the maintenance department for more than 20 years prior to your retirement on April 1, 1975. [Emphasis added].\nThe facts stated established that plaintiff remained in employment until April 1, 1975 as a matter of law. If the defendant led plaintiff to believe that he was considered in \u201cemployment\u201d for workmen\u2019s compensation, or if it became reasonably apparent to plaintiff that he was considered in \u201cemployment\u201d and was entitled to compensation, the statute was tolled. See \u00a7 59-10-14, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1); Lasater v. Home Oil Company, 83 N.M. 567, 494 P.2d 980 (Ct.App.1972); Reed v. Fish Engineering Corporation, 76 N.M. 760, 418 P.2d 537 (1966).\nPlaintiff remained \u201cemployed by the employer\u201d in the spirit of the Workmen\u2019s Compensation Act. To deny plaintiff his day in court because he was not, in fact, doing actual work after May 16, 1974, and he did not receive wages, violates that spirit. We should not blanch plaintiff\u2019s employment status after \u201c28 years of continuous service at Chino Mines Division.\u201d\nWe hold that the one year period of limitation was tolled, and the complaint was filed in time.\nB. The 1963 statute was not in effect.\nWhether the 1963 statute, which did not toll the limitation period, was in effect, was not an issue raised in the trial court or on appeal to this Court. Both parties agreed that the 1967 statute, supra, was in effect. We commend the defendant for stating in its brief:\nSurely the very purpose of the 1967 amendment was . . . to do away with the harsh provisions of the 1963 amendment. Under the 1963 amendment unscrupulous employers could possibly avoid payment of a total permanent disability award by keeping a badly injured workman on the payroll at some make-work job and pay his normal wages for a year, and then discharge the man when the statute had run and he could no longer bring his action.\nAlthough this issue was waived by defendant, we find it necessary to answer the dissenting opinion.\nAn accident occurred on March 24, 1967, when the 1963 amendment statute was in effect. A year later, on March 3, 1968, plaintiff returned to full employment for six years. During this interim period, workmen\u2019s compensation was paid. On May 16, 1974, plaintiff again suffered an alleged job accident and was totally disabled or went \u201con sick leave lay-off status.\u201d We do know that the accident of March 24, 1967 terminated on March 3, 1968 when workmen\u2019s compensation payments ended and plaintiff returned to full employment for six years. On May 16, 1974, the 1967 statute was in effect. The 1967 statute applies because the date of disability is critical and the law effective at that time controls. In Gomez v. Hausman Corporation, 83 N.M. 400, 401, 492 P.2d 1263, 1264 (Ct.App.1972), we said:\nThe period of limitation does not commence to run until it becomes reasonably apparent, or should become reasonably apparent, to the workman that he has an injury for which he is entitled to compensation.\nTime does not begin to run until the disability is discovered rather than from the accidental occurrence. The 1974 claim for compensation does not relate back seven years to 1967, the date of the first accident. This we should not do. The whole philosophy upon which workmen\u2019s compensation is based, as the public policy of this State, militates against such a contention. Gonzales v. Chino Copper Co., 29 N.M. 228, 222 P. 903 (1924); Christensen v. Dysart, 42 N.M. 107, 76 P. 2d 1 (1938).\nWe hold that the 1963 statute was not in effect.\nReversed.\nIT IS SO ORDERED.\nHERNANDEZ, J., concurs.\nLOPEZ, J., dissenting in part and concurring in part.", "type": "majority", "author": "PER CURIAM. SUTIN, Judge" }, { "text": "LOPEZ, Judge\n(dissenting in part and concurring in part).\nThe plaintiff appeals an order dismissing his complaint which sought workmen\u2019s compensation benefits. Sections 59-10-1 through 59-10-37, N.M.S.A.1953 (2d Repl. Vol. 9, pt. 1, 1974). I would reverse in part and remand in part.\nPlaintiff\u2019s complaint alleges the following facts: he sustained accidental on-the-job injuries on March 24, 1967; the injuries disabled him until March 23, 1968, when he resumed full-time employment with the defendant. In his brief, plaintiff states that the defendant paid him total disability benefits during this time, from March 24, 1967, until March 23, 1968. After March of 1968, the plaintiff resumed full-time employment with defendant until May 16, 1974, when he became totally disabled as a result of the 1967 accident. From May 16, 1974, until retirement on April 1, 1975, the plaintiff was on \u201csick leave by lay off status.\u201d The complaint was filed on January 23, 1976.\nThe defendant filed a motion to dismiss pursuant to \u00a7 21-1-1 (12) (b)(6) and (d), N.M.S.A.1953 (Repl.Vol. 4, 1970). The defendant asserted the affirmative defense that plaintiff\u2019s cause of action was barred by the statute of limitations. Section 59-10-13.6, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1, 1974).\nA hearing was held but no outside testimony was presented. Only the arguments and stipulations of counsel were considered. The Order of Dismissal reads as follows:\n\u201cTHIS MATTER came on this day to be heard upon Defendant\u2019s Motion to Dismiss, the stipulations of counsel, and the Court having heard argument of counsel and being fully advised, FINDS:\nThat the motion is well taken and should be granted;\nIT IS, THEREFORE, by the Court, ORDERED that Defendant\u2019s Motion to Dismiss be and the same is hereby granted.\nDONE in Open Court at Las Cruces, New Mexico, this 17th day of March, 1976.\ns/Geo. L. Zimmerman District Judge by Designation\u201d\nThe plaintiff asserts that the question is whether he \u201cremained employed\u201d until his retirement in April of 1975, after he went on \u201csick leave lay off status.\u201d The plaintiff argues that he remained employed commencing May 16, 1974 until April 1, 1975 and that under \u00a7 59-10-13.6, supra, the statute of limitations was tolled for one year. Consequently, the plaintiff contends the action filed on January 23, 1976 was timely.\nDefendant argues that no workmen\u2019s compensation benefits were paid to plaintiff after May 16, 1974 and that plaintiff was not employed after this date. Defendant contends the statute of limitations was not tolled and the cause of action is barred.\nThe parties and the district court based their respective arguments and holding on the 1967 version of \u00a7 59-10-13.6, supra, of the New Mexico Workmen\u2019s Compensation Act. In pertinent part, the 1967 version reads as follows:\n\u201c. . . This one year period of limitations shall be tolled during the time a workman remains employed by the employer by whom he was employed at the time of such accidental injury, not to exceed a period of one year. . . .\u201d Laws 1967, ch. 151, \u00a7 1. [Emphasis added].\nThe 1967 amendment was enacted after the accident; therefore, we do not believe the 1967 version is applicable. The 1963 version, which is applicable, reads as follows :\n\u201c. . . This one-year period of limitations shall not be tolled during the time a workman is employed by the employed [sic] by whom he was employed at the time of such accidental injury . . . .\u201d Laws 1963, ch. 269, \u00a7 6. [Emphasis added].\nOriginally, \u00a7 59-10-13.6, supra, did not mention tolling the statute of limitations. Laws 1959, ch. 67, \u00a7 10.\nIn 1963, the statute was amended, probably as a reaction to Cordova v. City of Albuquerque, 71 N.M. 491, 379 P.2d 781 (1962). Cordova read into the statute a tolling if the employer was relieved of the duty to pay compensation. The 1963 version reversed Cordova and clearly stated that the statute of limitations shall not be tolled. Cf. Roybal v. County of Santa Fe, 79 N.M. 99,440 P.2d 291 (1968).\nIn 1967, the legislature apparently had a change of heart. Section 59-10-13.6, supra, was amended to permit the statute of limitations to toll for up to one year. See Roybal v. County of Santa Fe, supra. Plaintiff\u2019s injury was sustained on March 24, 1967. The 1967 amendment was approved by the legislature March 28, 1967. Since it was not specifically stated otherwise, the 1967 amendment went into effect ninety days after the adjournment of the legislature. N.M.Const. art. 4, \u00a7 23. The 1967 amendment should not be given retroactive effect. Clark v. Ruidoso-Hondo Valley Hospital, 72 N.M. 9, 380 P.2d 168 (1963); Davis v. Meadors-Cherry Co., 65 N.M. 21, 331 P.2d 523 (1958).\nThe statute of limitations was not tolled for one year because the applicable law specifically states that the statute shall not toll. Plaintiff\u2019s complaint does not allege latent injuries, aggravation thereof, or misconduct on the part of the employer or the insured; therefore, I would not consider what effect these theories might have had on plaintiff\u2019s right of recovery. See Chaffins v. Jelco Inc., 82 N.M. 666, 486 P.2d 75 (Ct.App.1971); \u00a7 59-10-13.3A(3) and \u00a7 59-10-14, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1,1974).\nIt appears from the record and also from the Order of Dismissal that the district court went beyond the pleadings in order to arrive at a decision. Because it considered matters outside of the pleadings, the defendant\u2019s motion was treated by the lower court not as a motion to dismiss, but as a motion for summary judgment. Section 21-1-1 (12) (b), supra.\nThe criteria for disposing of a motion to dismiss for failure to state a cause of action is based on the premise that under no theory of law could the plaintiff recover. The motion to dismiss is proper where it appears that under no provable state of facts could the plaintiff be entitled to relief. Ritter v. Albuquerque Gas & Electric Co., 47 N.M. 329, 142 P.2d 919 (1943). Taking the pleadings as they are and assuming for purposes of this decision that the plaintiff remained employed for one year, if the 1963 amendment is applicable, I cannot see a theory of law under which the statute of limitations could have tolled.\nIf the motion is for summary judgment, the test is that there exists no genuine issue of material fact. A summary judgment proceeding is not to decide the issue of fact, but rather to determine whether one exists. Summary judgment is proper only where the moving party is entitled to the judgment as a matter of law upon clear and undisputed facts. Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972); First National Bank in Albuquerque v. Nor-Am Agricultural Products, Inc., 88 N. M. 74, 537 P.2d 682 (Ct.App.1975). Assuming the facts to be undisputed, that the plaintiff remained employed for one year, the 1963 version nevertheless would not toll the statute of limitations and the action would have to be dismissed as untimely.\nI conclude that whether the court treated this as a motion for dismassal for failure to state a cause of action or for summary judgment, under both categories the district court was correct. See Tsosie v. Foundation Reserve Insurance Co., Inc., 77 N. M. 671, 427 P.2d 29 (1967); H. T. Coker Construction Co. v. Whitfield Transportation, Inc., 85 N.M. 802, 518 P.2d 782 (Ct.App.1974).\nLate filing, however, does not bar plaintiff\u2019s medical expenses because the limitation of \u00a7 59-10-13.6, supra, does not apply. Lasater v. Home Oil Co., Inc., 83 N.M. 567, 494 P.2d 980 (Ct.App.1972) rev\u2019d in part as to attorney\u2019s fees, Schiller v. Southwest Air Rangers, Inc., 87 N.M. 476, 535 P.2d 1327 (1975). Plaintiff\u2019s complaint seeks \u201cmedical care and attention, payment of accrued expenses for such services, attorney\u2019s fees and any other benefits to which he may be entitled.\u201d I would remand to the district court to determine whether the plaintiff is entitled to medical expenses and attorney\u2019s fees. Schiller v. Southwest Air Rangers, Inc., supra; Lasater v. Home Oil Co., Inc., supra.\nThe judgment of the district court with respect to payment of workmen\u2019s compensation should be affirmed. The judgment with respect to medical expenses and attorney\u2019s fees should be reversed and remanded to the district court.", "type": "concurring-in-part-and-dissenting-in-part", "author": "LOPEZ, Judge" } ], "attorneys": [ "Anthony F. Avallone, Las Cruces, for plaintiff-appellant.", "Ben Shantz, Shantz, Dickson & Young, Silver City, for defendant-appellee." ], "corrections": "", "head_matter": "556 P.2d 839\nJose DE LA TORRE, Plaintiff-Appellant, v. KENNECOTT COPPER CORPORATION, Defendant-Appellee.\nNo. 2529.\nCourt of Appeals of New Mexico.\nNov. 9, 1976.\nAnthony F. Avallone, Las Cruces, for plaintiff-appellant.\nBen Shantz, Shantz, Dickson & Young, Silver City, for defendant-appellee." }, "file_name": "0683-01", "first_page_order": 719, "last_page_order": 724 }