{ "id": 1575591, "name": "Linda OWENS, Plaintiff-Appellant, v. EDDIE LU'S FINE APPAREL, Insured, and United States Fidelity and Guaranty Co., Defendants-Appellees", "name_abbreviation": "Owens v. Eddie Lu's Fine Apparel", "decision_date": "1980-10-16", "docket_number": "No. 4547", "first_page": "176", "last_page": "178", "citations": [ { "type": "official", "cite": "95 N.M. 176" }, { "type": "parallel", "cite": "619 P.2d 852" } ], "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": "296 P.2d 759", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 5316894 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nm/61/0156-01" ] }, { "cite": "61 N.M. 56", "category": "reporters:state", "reporter": "N.M.", "year": 1956, "opinion_index": 0 }, { "cite": "83 N.M. 789", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5334147 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/83/0789-01" ] }, { "cite": "60 N.M. 266", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590363 ], "weight": 2, "year": 1955, "opinion_index": 0, "case_paths": [ "/nm/60/0266-01" ] }, { "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": "423 P.2d 869", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2804584, 2809305 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/77/0436-01", "/nm/77/0435-02" ] }, { "cite": "77 N.M. 436", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2804584 ], "year": 1967, "pin_cites": [ { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/nm/77/0436-01" ] }, { "cite": "79 N.M. 444", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2749848 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/79/0444-01" ] }, { "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" ] }, { "cite": "92 N.M. 487", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557048 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/nm/92/0487-01" ] } ], "analysis": { "cardinality": 503, "char_count": 8987, "ocr_confidence": 0.818, "pagerank": { "raw": 1.9893368627335108e-07, "percentile": 0.7415561679464711 }, "sha256": "ad2d25bbbee2223f65f06289c1e9431ce1c80d9e7b91074971f515ca2a9de6a7", "simhash": "1:963cfee280664047", "word_count": 1505 }, "last_updated": "2023-07-14T19:05:15.389388+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WOOD, C. J., and HERNANDEZ, J., concur." ], "parties": [ "Linda OWENS, Plaintiff-Appellant, v. EDDIE LU\u2019S FINE APPAREL, Insured, and United States Fidelity and Guaranty Co., Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nANDREWS, Judge.\nLinda Owens is a claimant under the Workmen\u2019s Compensation Act for injuries suffered September 1, 1976, when she fell and crashed through a glass window at the base of some steps at the place of her employment, Eddie Lu\u2019s Fine Apparel. Ms. Owens remained at her job, even though she worked at a diminished capacity, from the date of the accident until she discontinued her employment January 31,1977. Her final paycheck was for a period ending February 1, 1977.\nThrough February, 1977, and into March of that year, Ms. Owens repeatedly sought medical benefits from her employer and its insurer, United States Fidelity and Guaranty Company (USF&G). In April, according to claimant\u2019s uncontested testimony, she telephoned an employee of USF&G and was told to \u201cstart going to the doctor and tell him it\u2019s a state comp case and have him send us the bills.\u201d\nAfter seeking the assistance of the State Labor and Industrial Commission and receiving no satisfaction, the claimant sought the advice of Albuquerque counsel in May, 1977. The present action was filed on March 2,1978 by a second attorney who has ably represented her throughout this case.\nThe trial court, pursuant \u00a7 52-l-31(A), N.M.S.A. 1978, which provides that the workman must \u201cfile a claim ... not later than one year after the failure or refusal of the employer or insurer to pay compensation,\u201d dismissed the action on a motion for summary judgment. The court found that there was no material issue of fact as to the failure of plaintiff to file her claim within the statutory period, \u201cand no action on the part of the defendants caused her not to file the claim within the time permitted.... \u201d\nPlaintiff raises two issues on appeal. First, she contends that \u00a7 52-l-30(A), N.M. S.A. 1978, includes language which should be read in conjunction with all other sections of the Workmen\u2019s Compensation Act, and in particular with \u00a7 52-l-31(A). According to her argument, the thirty-one day period established in \u00a7 52-l-30(A), should be tacked onto the one year limitation of \u00a7 52-l-31(A).\nSecond, the trial court assumed that the plaintiff had been led to believe that compensation would be paid. It noted \u201cif nothing more factually was presented than what she stated in the affidavit, it wouldn\u2019t be sufficient to prove that she could reasonably rely on it.\u201d According to plaintiff, this comment reflects an erroneous shift in the burden of proof under the summary judgment rule. Plaintiff also contends that the record demonstrates a factual issue as to the reasonableness of her belief; and therefore, she is entitled to a hearing on the merits under \u00a7 52-1-36, N.M.S.A. 1978 Comp.\nUnder \u00a7 52-l-30(A), when compensation is paid in installments, the first installment is due not later than thirty-one days after disability occurs. It is urged in this appeal that this thirty-one day period should not be counted until plaintiff terminated her work on February 1, 1977. Or, stated another way, plaintiff claims she had one year and thirty-one days in which to file her compensation claim after February 1,1977; and, therefore, a filing on March 2, 1978, was timely. First we note that findings of fact are not required in a summary judgment proceeding, Akre v. Washburn, 92 N.M. 487, 590 P.2d 635 (1979). Nevertheless, plaintiff in this appeal argues that there is no \u201cfinding\u201d of plaintiff\u2019s knowledge of a compensable injury prior to January 31, 1977. Since at the summary judgment hearing, plaintiff conceded that, but for the tolling provision of \u00a7 52-l-31(A), the limitation period of one year and thirty-one days began to run on September 1, 1976, the date of the injury, this assertion is frivolous. A workmen\u2019s compensation claim filed prior to October 3, 1976, would have been premature, Moody v. Hastings, 72 N.M. 132, 381 P.2d 207 (1963). After October 3, 1976, plaintiff could have filed for workmen\u2019s compensation, see Noland v. Young Drilling Company, 79 N.M. 444, 444 P.2d 771 (Ct.App.1968), because plaintiff\u2019s deposition is uncontradicted that she knew she had a partial disability from September 1, 1976.\nSection 52-l-31(A) states the one year period is tolled during the time the workman remains employed by the employer for whom he was employed at the time of the accidental injury, up to a maximum of one year. The one year period for filing a workmen\u2019s compensation claim, which would have begun on October 2, 1976, was tolled by plaintiff\u2019s continued employment, until February 1, 1977, the day she discontinued employment. One year later, February 1, 1978, the limitation period had run. A March 2, 1978, filing was late. Section 52-l-31(A) makes no reference to the time at which installments of compensation become due; rather, the section establishes a procedure and remedy to be effected when the employer or insurer \u201cfail or refuse to pay . .. any installment of compensation .... \u201d Section 52-l-31(A) is explicit. It provides a one year period of limitations. If the workman fails to file a claim within the time required by the section, his claim is \u201cforever barred.\u201d The thirty-one day period for paying the first installment of compensation provided in \u00a7 52-1-30 has no applicability to the one year limitation period of \u00a7 52-l-31(A).\nAs stated in Stasey v. Stasey, 77 N.M. 436, 440, 423 P.2d 869 (1967):\n..., in view of the express language of our statute as to the effect of a failure to timely file suit, which language we cannot ignore; the uniform position taken by this court over so many years in the construction and application of this language; the fact that the legislature has never taken any action to change this statutory language so as to accomplish a result different from that expressly stated, or to in any way alter or detract from this court\u2019s construction of the language of this limitation statute ... we are not inclined to reverse our position adhered to over so many years.\nPlaintiff\u2019s second issue on appeal involves \u00a7 52-1-36, which is a tolling provision:\nThe failure of any person entitled to compensation under the Workmen\u2019s Compensation Act to give notice, file any claim or bring suit within the time fixed by the Workmen\u2019s Compensation Act shall not deprive such person of the right to compensation where the failure was caused in whole or in part by the conduct of the employer or insurer which reasonably led the person entitled to compensation to belieye the compensation would be paid.\nThe trial court expressed its view that unless the conduct of the defendants caused the plaintiff not to file her claim until the limitation period had run, \u00a7 52-1-36 was not applicable. While language from Lasater v. Home Oil Company, 83 N.M. 567, 494 P.2d 980 (Ct.App.1972), seems to support this view, that case is inapplicable here as it did not involve the effect to be given to \u00a7 52-1-36. In Lasater, although the court did discuss this issue, it held that there was no evidence that Lasater was led to believe compensation benefits would be paid. We believe the correct statement of the law to be that during the time the defendants reasonably led the plaintiff to believe that compensation would be paid, the limitation period for filing a claim was tolled. Stasey v. Stasey, supra; Lucero v. White Auto Stores, 60 N.M. 266, 291 P.2d 308 (1955).\nThe defendants filed this motion for summary judgment. Unquestionably the burden was on them to show an absence of a genuine issue of fact as to the reason plaintiff failed to file her claim within the limitation period. Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972). Since the conduct of the insurer may have reasonably led plaintiff to believe compensation benefits would be paid, \u00a7 52-1-36, defendants have failed to show that no genuine issue of fact exists as to this issue. The case is remanded for a factual determination whether there was a tolling, and if so of the period, of time during which the tolling occurred. Once this issue is decided, the trial court can determine whether or not the limitation period barred the claim.\nFinally, plaintiff contends that her claim should not be barred by the statute of limitations, having been filed within one year of the defendant\u2019s last payment of medical payments under the Workmen\u2019s Compensation Act. This issue is without merit. In Garcia v. New Mexico Highway Department, 61 N.M. 56, 296 P.2d 759 (1956), the Supreme Court held that the statute of limitations is tied directly to weekly benefits only.\nThe summary judgment is reversed and the case is remanded for the trial court\u2019s factual determination pursuant to \u00a7 52-1-36.\nIT IS SO ORDERED.\nWOOD, C. J., and HERNANDEZ, J., concur.", "type": "majority", "author": "ANDREWS, Judge." } ], "attorneys": [ "Benjamin S. Eastburn, Hynes, Eastburn & Hale, Farmington, for defendants-appellees.", "R. Thomas Dailey, Farmington, for plaintiff-appellant." ], "corrections": "", "head_matter": "619 P.2d 852\nLinda OWENS, Plaintiff-Appellant, v. EDDIE LU\u2019S FINE APPAREL, Insured, and United States Fidelity and Guaranty Co., Defendants-Appellees.\nNo. 4547.\nCourt of Appeals of New Mexico.\nOct. 16, 1980.\nBenjamin S. Eastburn, Hynes, Eastburn & Hale, Farmington, for defendants-appellees.\nR. Thomas Dailey, Farmington, for plaintiff-appellant." }, "file_name": "0176-01", "first_page_order": 208, "last_page_order": 210 }