{ "id": 1557064, "name": "Jane Jessie SHOPE, Personal Representative of the Estate of George Dewey Shope, Deceased, Plaintiff-Appellant, v. DON COE CONSTRUCTION COMPANY, a corporation, Defendant-Appellee", "name_abbreviation": "Shope v. Don Coe Construction Co.", "decision_date": "1979-01-25", "docket_number": "No. 3457", "first_page": "508", "last_page": "512", "citations": [ { "type": "official", "cite": "92 N.M. 508" }, { "type": "parallel", "cite": "590 P.2d 656" } ], "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": "74 N.M. 775", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2796869 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/nm/74/0775-01" ] }, { "cite": "47 N.M. 182", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1562200 ], "weight": 2, "year": 1943, "opinion_index": 0, "case_paths": [ "/nm/47/0182-01" ] }, { "cite": "62 N.M. 120", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2713761 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/nm/62/0120-01" ] }, { "cite": "77 N.M. 576", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2808258 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/77/0576-01" ] }, { "cite": "80 N.M. 589", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5353859 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0589-01" ] }, { "cite": "89 N.M. 252", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2862550 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/nm/89/0252-01" ] }, { "cite": "89 N.M. 86", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2864294 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0086-01" ] } ], "analysis": { "cardinality": 573, "char_count": 11815, "ocr_confidence": 0.815, "pagerank": { "raw": 1.2168793257263974e-07, "percentile": 0.5972906142404442 }, "sha256": "05731b304c97a95e0cf885c63eeb615587e30d90b60cb13ca5e5cf0d8f7d0759", "simhash": "1:1d2fbc5664ac0413", "word_count": 1871 }, "last_updated": "2023-07-14T17:06:13.817562+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LOPEZ and WALTERS, JJ., concur." ], "parties": [ "Jane Jessie SHOPE, Personal Representative of the Estate of George Dewey Shope, Deceased, Plaintiff-Appellant, v. DON COE CONSTRUCTION COMPANY, a corporation, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nPlaintiff sued defendant for damages for wrongful death of decedent. His death occurred while decedent was employed by defendant and acting within the scope of his employment. Defendant filed a motion to dismiss plaintiff\u2019s complaint because plaintiff\u2019s common-law action was barred by reason of the Workmen\u2019s Compensation Act. The motion was granted. Plaintiff\u2019s complaint was dismissed with prejudice and plaintiff appeals. We affirm.\nDecedent was employed by defendant on Sunday, August' 14, 1977 and died as a result of an electrocution by accident that occurred on August 25, 1977. Defendant\u2019s compensation insurer sent plaintiff checks for workmen\u2019s compensation benefits but the checks were not cashed, and on September 12, 1977, plaintiff filed a claim for lump-sum payment of workmen\u2019s compensation. We assume that plaintiff filed the workmen\u2019s compensation claim because she believed that defendant had insurance coverage and had filed a certificate of insurance previous to or within 30 days after decedent\u2019s employment began as provided in \u00a7 52-1-4, N.M.S.A.1978. Evidently, a certificate of insurance had been issued to defendant on or prior to August 25, 1977, the date of decedent\u2019s death. Otherwise, the compensation insurer would not have sent plaintiff the compensation checks.\nDecedent\u2019s employment began August 14, 1977. The time for filing the certificate of insurance was September 13, 1977. Defendant filed the certificate of insurance on September 28, 1977, 15 days later. On October 17, 1977, plaintiff\u2019s claim was dismissed because it was prematurely filed.\nDefendant\u2019s compensation insurer continued to send plaintiff checks for compensation benefits to date, but none of them have been cashed.\nWhen plaintiff learned that the certificate of insurance was late in filing, she waited 30 days after her workmen\u2019s compensation claim was dismissed and on November 16, 1977 she filed this common-law action. She claims now that since defendant did not comply with the mandatory filing requirements of \u00a7 52-1-4, decedent was not conclusively presumed to have accepted the provisions of the Workmen\u2019s Compensation Act as provided in \u00a7 52-1-6(C); that plaintiff has the right to a common-law action for damages.\nWe must keep in mind that defendant actually had compensation insurance within the mandatory 30 day period, but was late in filing the certificate by 15 days.\nSection 52-1-4 provides that the employer \u201cshall file\u201d a certificate of insurance previous to or within 30 days after a workman\u2019s employment begins. This is mandatory language. Why and for what purpose?\nSection 52-1-4 is a long and complicated section. It concludes with the statement that the certificate of insurance filed, as provided for in this section, shall state that the insurer shall be directly and primarily liable to the workman. The purpose, then, of the mandatory filing requirement is to notify a workman that the employer has complied with the insurance requirements of the Act; that the employer is subject to the provisions thereof and that the workman is conclusively presumed to have accepted its provisions.\nIf this purpose is effected before a workman files a common-law action, we hold that the mandatory filing requirement is met because late filing accomplishes the same purpose as mandatory filing requirements. When the same purpose is accomplished we call it \u201csubstantial compliance.\u201d Therefore, substantial compliance is actual compliance.\nWe stated this rule in Montano v. Williams, 89 N.M. 86, 547 P.2d 569 (Ct.App.), aff\u2019d, 89 N.M. 252, 550 P.2d 264 (1976). Plaintiff was allowed to file a common-law action for damages. The employer had paid funeral benefits to the mortuary on behalf of a decedent employee and the employer testified that he had workmen\u2019s compensation insurance. But the employer failed to produce evidence of insurance coverage. In the course of the opinion, we held that a technical delay in filing a workmen\u2019s compensation policy after an employee suffered an injury, but prior to the time the employee filed his common-law action, was substantial compliance with the insurance requirements of the Workmen\u2019s Compensation Act. When substantial compliance exists, the very purpose of the Act has been accomplished. Quintana v. Nolan Bros., Inc., 80 N.M. 589, 458 P.2d 841 (Ct.App.1969); Mirabal v. International Minerals & Chemical Corp., 77 N.M. 576, 425 P.2d 740 (1967).\nPlaintiff relies on Addison v. Tessier, 62 N.M. 120, 305 P.2d 1067 (1957) in which case an employee was allowed to pursue a common-law action against his employer. Naturally so, because the employer failed to obtain workmen\u2019s compensation insurance and did not relieve himself of this requirement.\nPlaintiff argues strongly that a defendant \u201cshould not be allowed to take advantage of the provisions of the Act where it failed to comply with the mandatory requirement of the Act to file a policy of insurance.\u201d Common sense concludes, however, that where an employer actually had insurance coverage and complied with insurance requirements on a continuing basis annually, but simply overlooked filing a certificate of insurance in time, plaintiff should not be allowed to switch horses in the middle of the stream and take advantage of defendant by putting it to the expense of defending a common-law action and paying retribution. Workmen\u2019s compensation benefits extend for a period of 600 weeks, approximately eleven and one-half years, to provide decedent\u2019s family with financial security. This benefit satisfies the socio-economic standards of the day. Defendant did not take advantage of the provisions of the Act.\nA line has been drawn between the right of a workman to a common-law action against an employer, and the right of the employer to subject the workman to the Workmen\u2019s Compensation Act. Where the employer has actually failed to obtain insurance coverage and no insurance coverage exists at the time the common-law action is filed, the workman\u2019s right to the common-law action is conclusive. Where insurance coverage exists in fact, but notice thereof is not given the workman due to delay in filing the evidence of insurance coverage, the workman is subject to the Workmen\u2019s Compensation Act. If a common-law action was not filed prior to filing of insurance coverage, the workman does not escape the provisions of the Act. If the legislature had intended late filing by the employer to remove the workman from the Act, it would have stated this fact in \u00a7 52-1-4. Inasmuch as compensation insurance was actually obtained, an employer is protected by the Workmen\u2019s Compensation Act. Mere technicalities of this nature play no part in destroying the purpose and the fair administration of the Act.\nWe hold that plaintiff is governed by the provisions of the Workmen\u2019s Compensation Act.\nDefendant also claims that \u00a7 52-l-6(C) is unconstitutional in that plaintiff was denied the equal protection of the law in the light of \u00a7 52-1-7.\nSection 52-l-6(C) reads:\nEvery employee shall be conclusively presumed to have accepted the provisions of the Workmen\u2019s Compensation Act, if his employer is subject to the provisions thereof and has complied with its requirements, including insurance.\nSection 52-1-7 provides in pertinent part: A. Notwithstanding any provisions to the contrary in the Workmen\u2019s Compensation Act, an employee as defined in Subsection P [of this section] of a professional or business corporation may affirmatively elect not to accept the provisions of the Workmen\u2019s Compensation Act.\n******\nF. For purposes of this section:\n(1) executive officer shall mean the chairman of the board, president, vice president, secretary or treasurer.\n(2) employee means executive officer owning ten per cent or more of the outstanding stock of a professional or business corporation. [Emphasis added.]\nPlaintiff claims she was denied the equal protection of the law because decedent could not elect not to be bound by the Act, whereas the executive class of workmen can; that to permit the executive class of workmen election of coverage and to deny the rest of the workmen such election is discriminatory and invalid.\nWe note that in 1957, the \u201cconclusively presumed\u201d section granted a workman the right to elect not to become subject to the provisions of the Act by giving notice in writing to his employer and to the clerk of the district court. Section 59-10-4(E), N.M.S.A.1953. This portion of the section was deleted in 1973. N.M.Laws 1973, Ch. 240, \u00a7 2.\nPlaintiff is not in a position to challenge the constitutionality of \u00a7 52-l-6{C). Decedent did not affirmatively elect not to accept the provisions of the Act, nor was such election denied. Decedent accepted the provisions of the Workmen\u2019s Compensation Act and plaintiff is bound thereby.\nHowever \u00a7\u00a7 52-l-6(C) and 52-1-7 were adopted in the \u201cNew Mexico Occupational Disease Disablement Law.\u201d See \u00a7\u00a7 52-3-5 and 52-3-6, N.M.S.A.1978. This constitutional question is a matter of public interest and should be decided now rather than put workmen and employers to the test by way of harassment, expense and delay of litigation.\nExecutive employers of a business or professional corporation are classified differently than ordinary workmen. Of course, no definite rule can be laid down as to when a classification for purposes of legislation is justified. The special circumstances in each case govern the decision of this Court.\nIn arriving at this decision, we do not inquire into the wisdom, the policy or the justness of the legislative act that ereates different classifications. The legislature is accorded a wide field of choice. The fact that the legislature has adopted the classification is entitled to great weight. If the basis adopted for the classification seems plausibly reasonable to the legislature, we will not disturb the groupings merely because the basis therefore may appear to us unreasonable and unjust.\nThe only pertinent question regarding classification is this:\nIs it so wholly devoid of any semblance of reason to support it, as to amount to mere caprice, depending on legislative fiat alone for support?\nIf any doubt exists, it is our duty to resolve all doubts as to its constitutionality in favor of the validity of the law. We look to see whether there is a substantial distinction between those to whom it does apply and those to whom it does not apply. If the difference in classification is based upon a substantial distinction, the statute is constitutional. Equal protection does not prohibit different classifications for legislative purposes. Each classification is so framed as to embrace equally all who may be in like circumstances and situations. Otherwise the difference in classification is discriminatory and invalid.\nAll of the foregoing are the rules established in State v. Pate, 47 N.M. 182, 138 P.2d 1006 (1943) and Gruschus v. Bureau of Revenue, 74 N.M. 775, 399 P.2d 105 (1965).\nWe say without hesitation that a substantial distinction exists between an executive officer of a business or professional corporation and an ordinary workman. Each of these classifications are not \u201cwholly devoid of any semblance of reason to support it, as to amount to mere caprice.\u201d\nWe hold that the denial of decedent the right to election coverage is a constitutional classification and \u00a7 52-l-6(C) is valid.\nAffirmed.\nIT IS SO ORDERED.\nLOPEZ and WALTERS, JJ., concur.", "type": "majority", "author": "SUTIN, Judge." } ], "attorneys": [ "Morris Stagner, Keith R. Oas, Stagner, Higginbotham & Oas, P. A., Roswell, for plaintiff-appellant.", "Wm. F. Brainerd, Roswell, for defendantappellee." ], "corrections": "", "head_matter": "590 P.2d 656\nJane Jessie SHOPE, Personal Representative of the Estate of George Dewey Shope, Deceased, Plaintiff-Appellant, v. DON COE CONSTRUCTION COMPANY, a corporation, Defendant-Appellee.\nNo. 3457.\nCourt of Appeals of New Mexico.\nJan. 25, 1979.\nMorris Stagner, Keith R. Oas, Stagner, Higginbotham & Oas, P. A., Roswell, for plaintiff-appellant.\nWm. F. Brainerd, Roswell, for defendantappellee." }, "file_name": "0508-01", "first_page_order": 544, "last_page_order": 548 }