{ "id": 1582444, "name": "Guadalupe Garcia HERNANDEZ, Plaintiff-Appellant, v. HOME EDUCATION LIVELIHOOD PROGRAM, INC., a New Mexico corporation, hereinafter referred to as HELP; Jose A. Rivera, Individually and as Executive Director; Rayo Perez, Individually and as an employee; Raul Castro; Tony Bachicha; Pedro Aguilar, Individually and as Officers and Directors of HELP, Defendants-Appellees", "name_abbreviation": "Hernandez v. Home Education Livelihood Program, Inc.", "decision_date": "1982-04-20", "docket_number": "No. 5329", "first_page": "125", "last_page": "130", "citations": [ { "type": "official", "cite": "98 N.M. 125" }, { "type": "parallel", "cite": "645 P.2d 1381" } ], "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": "95 N.M. 281", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575510 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/95/0281-01" ] }, { "cite": "97 N.M. 194", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555071 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/97/0194-01" ] }, { "cite": "93 N.M. 782", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568669 ], "opinion_index": 0, "case_paths": [ "/nm/93/0782-01" ] }, { "cite": "72 N.M. 322", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2856445 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/72/0322-01" ] }, { "cite": "93 N.M. 781", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568709 ], "weight": 8, "year": 1980, "pin_cites": [ { "page": "782" } ], "opinion_index": 0, "case_paths": [ "/nm/93/0781-01" ] }, { "cite": "94 N.M. 665", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573171 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/nm/94/0665-01" ] }, { "cite": "96 N.M. 789", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577368 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/96/0789-01" ] }, { "cite": "95 N.M. 551", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575458 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/95/0551-01" ] }, { "cite": "96 N.M. 24", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577266 ], "weight": 3, "year": 1981, "opinion_index": 0, "case_paths": [ "/nm/96/0024-01" ] }, { "cite": "73 N.M. 188", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5321671 ], "weight": 5, "year": 1963, "pin_cites": [ { "page": "190" } ], "opinion_index": 0, "case_paths": [ "/nm/73/0188-01" ] }, { "cite": "85 N.M. 444", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2773475 ], "weight": 5, "pin_cites": [ { "page": "445" } ], "opinion_index": 0, "case_paths": [ "/nm/85/0444-01" ] }, { "cite": "95 N.M. 484", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575477 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/95/0484-01" ] }, { "cite": "92 N.M. 112", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557049 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/92/0112-01" ] }, { "cite": "89 N.M. 60", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2865581 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/nm/89/0060-01" ] }, { "cite": "79 N.M. 377", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2745839 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0377-01" ] }, { "cite": "81 N.M. 120", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5363696 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/81/0120-01" ] }, { "cite": "95 N.M. 281", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575510 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/95/0281-01" ] } ], "analysis": { "cardinality": 832, "char_count": 18177, "ocr_confidence": 0.801, "pagerank": { "raw": 2.5766282888260604e-07, "percentile": 0.8167456867176426 }, "sha256": "6ac12024acd7c7e7f94b635f5ec5d54e2cc2fe17f5f29bf16c23526edcb23d00", "simhash": "1:079939c7082a7f7c", "word_count": 2914 }, "last_updated": "2023-07-14T19:13:49.367595+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "DONNELLY, J., concurs.", "SUTIN, J., specially concurs." ], "parties": [ "Guadalupe Garcia HERNANDEZ, Plaintiff-Appellant, v. HOME EDUCATION LIVELIHOOD PROGRAM, INC., a New Mexico corporation, hereinafter referred to as HELP; Jose A. Rivera, Individually and as Executive Director; Rayo Perez, Individually and as an employee; Raul Castro; Tony Bachicha; Pedro Aguilar, Individually and as Officers and Directors of HELP, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nWALTERS, Chief Judge.\nThis is the second appeal by plaintiff Guadalupe Hernandez (Hernandez) from the granting of a summary judgment in favor of defendants Home Education Livelihood Program, Inc., its executive director, an employee, and three officers and directors of the corporation (HELP). We hold that plaintiff\u2019s appeal was timely filed and we reverse the summary judgment.\nOn the evening of June 6, 1978, the executive director of HELP telephoned Hernandez at her home and discharged her from her job. As a result, she alleged that she suffered a mental breakdown and was hospitalized as a result of it. Hernandez\u2019s suit claimed that she had been an employee of HELP for thirteen years; she had been promoted from part-time clerk-typist to area supervisor; she had never received a negative evaluation, and her only demotion had been at her request. She admitted that during her employment she had suffered from a mental condition known to defendants which at times had required hospitalization and treatment. In Count I Hernandez alleged that she was discharged in violation of HELP policies and sought damages for loss of employment and employment capability; and for physical, mental and emotional distress, discomfort, embarassment, and humiliation. In Count II, Hernandez requested punitive damages, alleging that defendants intentionally inflicted emotional distress in their manner of firing her.\nThe trial court dismissed both counts of the complaint, ruling that plaintiff\u2019s remedies were limited to those provided by the New Mexico Workmen\u2019s Compensation Act.\n1. Timeliness of the Appeal.\nOn June 16, 1981, the trial judge filed an order entitled \u201cOrder Granting Summary Judgment,\u201d which he sent to counsel for both parties with a letter stating the following:\nEnclosed you will find the Court\u2019s Findings of Fact and Conclusions of Law and in accordance therewith, I would appreciate Defense Counsel preparing Order Granting Summary Judgment and/or Dismissal * * * and submit same to the Court for execution and filing.\nDefendants prepared a \u201cSummary Judgment Order\u201d which was filed on July 27, 1981. Hernandez\u2019s notice of appeal was filed on August 13, 1981.\nHELP characterizes the order filed on June 16, 1981, as a final order and argues that plaintiff\u2019s appeal was not timely under \u00a7 39-3-2, N.M.S.A.1978, and N.M.R.Civ. App. 3, N.M.S.A.1978. Since the order of July 27,1981, does no more than restate the contents of the June order, HELP urges this court to hold that the time of review began to run from the date of the original order. They cite Rice v. Gonzales, 79 N.M. 377, 444 P.2d 288 (1968), to support their argument.\nThe record plainly shows that all parties and the court considered the court\u2019s June \u201cOrder\u201d a non-final order. The judge specifically referred to it as \u201cFindings of Fact and Conclusions of Law,\u201d and defendants prepared a \u201cSummary Judgment Order,\u201d pursuant to the judge\u2019s instructions. The Notice of Appeal was filed less than thirty days after the entry of the July 27, 1981 judgment. The appeal was timely filed.\n2. Plaintiff\u2019s remedies.\nThe trial court in its Summary Judgment Order held that plaintiff\u2019s exclusive remedy was that provided under the Workmen\u2019s Compensation Act and that it, therefore, lacked subject matter jurisdiction. Her complaint was dismissed with prejudice.\nThe exclusivity provision of the Workmen\u2019s Compensation Act is found at \u00a7 52-1-9, N.M.S.A.1978, which reads as follows:\n52-1-9. Right to compensation; exclusive.\nThe right to the compensation provided for in this act [52-1-1 to 52-1-69 NMSA, 1978], in lieu of any other liability whatsoever, to any and all persons whomsoever, for any personal injury accidentally sustained or death resulting therefrom, shall obtain in all cases where the following conditions occur:\nA. at the time of the accident, the employer had complied with the provisions thereof regarding insurance;\nB. at the time of the accident, the employee is performing service arising out of and in the course of his employment; and\nC. the injury or death is proximately caused by accident arising out of and in. the course of his employment and is not intentionally self-inflicted.\nNo one argues that HELP had not complied with Subsection A. The issues raised are whether Hernandez sustained a personal injury that was (1) accidental; (2) personal; and that (3) arose out of, and (4) in the course of her employment, in order to bring her cause of action exclusively within the Workmen\u2019s Compensation Act. The absence of just one of these elements will destroy recovery under the Workmen\u2019s Compensation Act, and remove it from its exclusivity provisions. We focus, therefore, on what the parties agree is the sole issue: Did Hernandez\u2019s injury arise in the course of her employment?\nWhere the historical facts are undisputed, whether the accident arose out of and in the course of the employment is a question of law. Edens v. New Mexico Health & Social Services Dept., 89 N.M. 60, 547 P.2d 65 (1976). \u201cArise out of\u201d and \u201cin the course of\u201d employment are two distinct requirements and, in workmen\u2019s compensation cases, they must co-exist; one without the other is not enough to bring a complaint within the compass of the Act. Gutierrez v. Artesia Public Schools, 92 N.M. 112, 583 P.2d 476 (Ct.App.1978). \u201cArise out of\u201d relates to cause; \u201cin the course of\u201d refers to the time, place and circumstances under which the injury occurred. Id. At oral argument, counsel for HELP conceded that the incident did not occur at work or during plaintiff\u2019s duty hours; he urged, however, that the act of reaching the employee at home by telephone was a \u201ccircumstance\u201d of plaintiff\u2019s employment because it was the easiest way to contact her, and her employers did not want her to show up at work the following day.\nWe are impressed with Hernandez\u2019s response that if \u201cinjthe course of employment\u201d is interpreted to include such \u201ccircumstances\u201d as argued by HELP, without regard to \u201ctime\u201d and \u201cplace,\u201d then \u201cin the course of\u201d is rendered meaningless and indistinguishable from the \u201carise out of\u201d requirement. That such an interpretation may not be attributed to the words \u201cin the course of\u201d is clear from the decisions in Romero v. S.S. Kresge Co., 95 N.M. 484, 623 P.2d 998 (Ct.App.1981); Hayes v. Ampex Corp., 85 N.M. 444, 512 P.2d 1280 (Ct.App.1973); McDonald v. Artesia Gen. Hosp., 73 N.M. 188, 386 P.2d 708 (1963).\nIn Romero, plaintiff fell between the inner and outer doors of the store on her way out of work; the appellate court reversed and held insupportable the trial court\u2019s finding that plaintiff sustained a compensable injury arising out of and in the course of her employment. It was the same in Hayes, supra: plaintiff fell three to six feet from the door through which she had just left work at the employer\u2019s plant; her hours of work had ended and she was going home. This court said: \u201cShe was not at work when the accident occurred.\u201d Hayes also said that \u201c \u2018[w]hile at work\u2019 is synonymous with \u2018in the course of the employment.\u2019 \u201d (85 N.M. at 445, 512 P.2d 1280.)\nCounsel\u2019s argument in McDonald, supra, that an injury suffered by a nurse on the front steps of the hospital as she was leaving work \u201cshould be deemed to have arisen out of and in course of her employment,\u201d was rejected by both the trial court and the Supreme Court. (73 N.M. at 190, 386 P.2d 708.)\nIf none of those employees, on their employers\u2019 premises when they were hurt, were \u201cin the course of employment\u201d at the time of their accidents, how could plaintiff here be in the course of her employment while at home several hours after the workday had ended?\nNor is this a case, as defendants argue, that will fall within the rule expressed in Adamchek v. Gemm Enterprises, 96 N.M. 24, 627 P.2d 866 (1981), as \u201ca risk incident to the work itself,\u201d insofar as the risk of termination of employment is concerned. The \u201crisk\u201d discussed in Adamchek, supra, refers to whether or not the accident (or risk of it) \u201carises out of\u201d the employment. We do not reach that question if the accident does not occur \u201cin the course of\u201d one\u2019s employment.\nLikewise, with regard to defendant\u2019s reliance on Gallegos v. Chastain and United Nuclear Corp., 95 N.M. 551, 624 P.2d 60 (Ct.App.1981), for the contention that neither negligence nor intentional infliction of a tort will take the suit out from under the exclusivity of the Workmen\u2019s Compensation Act, we make the same response: that rule applies only if the negligent or intentional tort against the workman arises out of and in the course of his employment. That posture of plaintiff\u2019s injury was never in question in Gallegos, supra.\nFinally, if we were to adopt HELP\u2019s unique argument that the kind of damages asked determines whether the case must be brought under the Workmen\u2019s Compensation Act, we would be required to abolish any tort claim for an employee\u2019s injury, even if it resulted from an automobile accident in which the employer, while returning from church, runs into the employee who is on his way to a baseball game. This is a result never contemplated nor considered by the workmen\u2019s compensation enactment.\nHaving decided that plaintiff was not in the \u201ccourse of her employment,\u201d we need not consider whether the injury was accidental or intentional.\nIt is apparent from the trial court\u2019s findings of fact and conclusion of law that the fact of plaintiff\u2019s employment was equated with the exclusivity provisions of the Workmen\u2019s Compensation Act. In our view, Hernandez\u2019s allegation that she was terminated \u201cin violation of its [HELP\u2019s] policies\u201d is an allegation of breach of an employment contract. The Workmen\u2019s Compensation Act provides the mechanism for recovery for personal injury; it does not establish a remedy for breach of contract. See Bottijliso v. Hutchison Fruit Co., 96 N.M. 789, 635 P.2d 992 (Ct.App.1981); Jacobs v. Stratton, 94 N.M. 665, 615 P.2d 982 (1980); Forrester v. Parker, 93 N.M. 781, 606 P.2d 191 (1980); Jones v. International Union of Operating Engineers, 72 N.M. 322, 383 P.2d 571 (1963). The Act does not apply in this case.\nWe have recently determined that an employee is terminable by an employer \u201cat will\u201d in the absence of a contract of employment for a definite term, Bottijliso v. Hutchison Fruit Co., supra. Nevertheless, the Supreme Court has held that a personal policy guide may constitute an implied employment contract. Forrester v. Parker, supra. HELP\u2019s Personnel Rules and Regulations require supervisory personnel to implement, adhere to, and enforce its rules and regulations. One section of the guide is devoted to termination procedures, and Hernandez alleges that her termination was not in accordance with the procedures spelled out in the employer\u2019s Personnel Rules and Regulations.\nAs in Forrester, supra, Hernandez could reasonably expect her employer to conform to the procedures outlined in the personnel guide. As stated in Forrester, the words and conduct of the parties gave rise to an implied contract, and that implied contract, as contained in the provisions of the personnel guide, controls the employer-employee relationship of Hernandez and HELP. (93 N.M. at 782, 606 P.2d 191.)\nWe do not decide whether the procedures of the personnel manual were complied with; \u201conly on the basis of a full evidential ry hearing or trial can that determination be made.\u201d Forrester, supra, at 93 N.M. 782, 606 P.2d 191. The issue of punitive damages remains for determination at trial. Ruiz v. Southern Pac. Transp. Co., 97 N.M. 194, 638 P.2d 406 (Ct.App.1981), discusses some of the criteria for award of punitive damages.\nThe summary judgment is reversed and remanded for reinstatement on the trial court docket.\nIt is so ordered.\nDONNELLY, J., concurs.\nSUTIN, J., specially concurs.\n. In Hernandez v. Home Ed. Livelihood Program Inc., 95 N.M. 281, 620 P.2d 1306 (Ct.App.1980), this court reversed the trial judge\u2019s order granting a summary judgment based on plaintiffs failure to exhaust her administrative remedies.", "type": "majority", "author": "WALTERS, Chief Judge." }, { "text": "SUTIN, Judge\n(specially concurring).\nI concur only in the result that summary judgment be reversed.\nPlaintiff sued defendants for damages as a result of her wrongful discharge from employment. Defendants were granted summary judgment because plaintiff did not avail herself of the grievance or appeal procedures under HELP\u2019s Personnel and Policies Manual. Plaintiff appealed. We reversed. Hernandez v. Home Ed. Livelihood Program, 95 N.M. 281, 620 P.2d 1306 (Ct.App.1980).\nAfter remand, defendants filed a second motion for summary judgment. It was based upon the fact that the injuries alleged by plaintiff arose out of an in the course of. employment as contemplated in \u00a7 52-1-19, N.M.S.A.1978 of the Workmen\u2019s Compensation Act; that pursuant to \u00a7 52-1 \u2014 9 and 52-1-6, the exclusive remedy available to plaintiff was the right to compensation. This summary judgment became the cart before the horse. On reversal of Hernandez # 1, the primary issue before the court was whether plaintiff\u2019s discharge complied with HELP\u2019s manual. By reversal of this second appeal, the case is remanded for a hearing to determine whether the procedures of the personnel manual were complied with. This result was reached by exploring the doctrine of employment \u201cat will,\u201d an issue not raised or argued in this appeal.\nThe only issue is whether the district court had jurisdiction to hear plaintiff\u2019s claim.\nThe trial court granted summary judgment. The order preceding the judgment contained findings of fact and conclusions of law. The trial court failed to find or conclude that plaintiff suffered an accidental injury. Section 52-l-28(A)(l) reads:\nClaims for workmen\u2019s compensation shall be allowed only:\n(1) when the workman has sustained an accidental injury arising out of. and in the course of, his employment. [Emphasis added.]\n\u201cAccidental injury\u201d or \u201caccident\u201d is an unlooked for mishap, or untoward event which is not expected or designed. Lyon v. Catron County Comm\u2019rs, 81 N.M. 120, 464 P.2d 410 (Ct.App.1969). Plaintiff did not suffer an \u201caccidental injury.\u201d As the court found, \u201call injuries complained of were the result of the manner in which defendants terminated her employment.\u201d Defendants caused plaintiff\u2019s injuries by a telephone message of discharge. Plaintiff did not herself undertake any activity or conduct that accidentally caused her injuries. Plaintiff did not suffer an accidental injury. Plaintiff was not entitled to workmen\u2019s compensation.\nSections 52-1-19 and 52-1-9 relied on by defendants relate to accidental injuries. My disagreement with the majority opinion arises out of the application of \u00a7 52-1-9, an exclusive remedy provision set forth in the majority opinion. It relates to:\nThe right to compensation * * * in lieu of any other liability whatsoever * * * for any personal injury accidentally sustained * * * and the injury * * * is proximately caused by accident arising out of and in the course of his employment * *.\nThis section means that if a workman suffers an accidental injury and other essential factors, he is compelled to seek workmen\u2019s compensation benefits \u201cin place of any liability whatsoever.\u201d His claim is governed by the Workmen\u2019s Compensation Act. He can seek no other relief. Plaintiff did not suffer an accidental injury.\nNevertheless, the majority opinion focuses on whether plaintiff\u2019s injuries arose out of and within the scope of plaintiff\u2019s employment. This was the issue raised by defendants. It was irrelevant. It is unnecessary to answer irrelevant issues raised in an appeal.\nPlaintiff\u2019s claim was outside the Workmen\u2019s Compensation Act. Therefore, the district court had jurisdiction to hear plaintiff\u2019s claim.\nUpon reversal, defendants may file a third motion for summary judgment based upon the exclusive provisions of the last paragraph of \u00a7 52-1-8. It reads in pertinent part:\nAny employer who has complied with the provisions of the Workmen\u2019s Compensation Act * * * shall not be subject to any other liability whatsoever for the * * personal injury to any employee, except as provided in the * * * Act, and all causes of action * * * and all * * * common-law rights and remedies for and on account of such * * * personal injury to, any such employee and accruing to any and all persons whomsoever, are hereby abolished except as provided in the * * * Act. [Emphasis added.]\nThe employer is not liable for \u201cpersonal injury to any employee\u201d unless the Workmen\u2019s Compensation Act provides a remedy for \u201cpersonal injury.\u201d No remedy is available if the Act does not provide for one. All common law rights and remedies are abolished.\nThe question is: Does the Workmen\u2019s Compensation Act provide a remedy for \u201cpersonal injury\u201d?\nThe majority opinion refused to answer this question because it was not an issue in this case. Neither was the issue of employment \u201cat will\u201d which became the basis of reversal.\nIn Count II, plaintiff requested punitive damages. The trial court found \u201cthere being absolutely no evidence whatsoever that the resulting injury was intentional * * * Count II of Plaintiff\u2019s complaint should also be dismissed * * [Emphasis by court.]\nThe majority opinion refused to decide the issue of summary judgment as to punitive damages. It reversed the summary judgment \u201cand remanded for reinstatement on the trial court docket.\u201d There being no restrictions, the delay in this case is indeterminable. This delay should be avoided.", "type": "concurrence", "author": "SUTIN, Judge" } ], "attorneys": [ "Sarah M. Singleton, Singleton & RobertsHohl, Santa Fe, George Graham, Jr., Graham & Siegenthaler, Artesia, Richard A. Blenden, Blenden & Diamond, Carlsbad, for plaintiff-appellant.", "Briggs P. Cheney, Alfred L. Green, Jr., Shaffer, Butt, Thornton & Baehr, P. C., Albuquerque, for defendants-appellees." ], "corrections": "", "head_matter": "645 P.2d 1381\nGuadalupe Garcia HERNANDEZ, Plaintiff-Appellant, v. HOME EDUCATION LIVELIHOOD PROGRAM, INC., a New Mexico corporation, hereinafter referred to as HELP; Jose A. Rivera, Individually and as Executive Director; Rayo Perez, Individually and as an employee; Raul Castro; Tony Bachicha; Pedro Aguilar, Individually and as Officers and Directors of HELP, Defendants-Appellees.\nNo. 5329.\nCourt of Appeals of New Mexico.\nApril 20, 1982.\nCertiorari Denied June 7, 1982.\nSarah M. Singleton, Singleton & RobertsHohl, Santa Fe, George Graham, Jr., Graham & Siegenthaler, Artesia, Richard A. Blenden, Blenden & Diamond, Carlsbad, for plaintiff-appellant.\nBriggs P. Cheney, Alfred L. Green, Jr., Shaffer, Butt, Thornton & Baehr, P. C., Albuquerque, for defendants-appellees." }, "file_name": "0125-01", "first_page_order": 163, "last_page_order": 168 }