Todacheene v. G & S MASONRY

863 P.2d 1099, 116 N.M. 478
CourtNew Mexico Court of Appeals
DecidedSeptember 23, 1993
Docket13781
StatusPublished
Cited by6 cases

This text of 863 P.2d 1099 (Todacheene v. G & S MASONRY) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Todacheene v. G & S MASONRY, 863 P.2d 1099, 116 N.M. 478 (N.M. Ct. App. 1993).

Opinion

OPINION

HARTZ, Judge.

Kilroy Todacheene (Claimant) appeals the denial by the Workers’ Compensation Administration of his claim for benefits under the New Mexico Workers' Compensation Act. The Workers’ Compensation Judge ruled that the extraterritorial-coverage provisions of the Act did not extend to Claimant’s injury at a job site in Arizona. We reverse.

I. FACTS

Claimant, a resident of New Mexico at all times relevant to the claim, was injured on June 6, 1988, in Kayenta, Arizona, while employed by G & S Masonry (G & S). G & S is a Colorado corporation with its corporate office in Durango, Colorado. During the relevant period G & S contracted to do masonry construction in Colorado, New Mexico, and Arizona.

Prior to the date of his accident Claimant was employed on an as-needed basis by G & S. The field foreman of G & S was the person who hired Claimant. Upon the completion of work for any individual foreman, Claimant was terminated. At that time Claimant could be referred to another job site, where it was the responsibility and prerogative of the foreman to hire or not hire Claimant. During the periods between employment at different job sites, Claimant was not paid a salary, nor was Claimant paid travel expenses as he moved from one job site to another.

In early May of 1988 Claimant was hired by foreman Les Rowley in Tuba City, Arizona, where he worked for approximately two weeks. Then Claimant and the rest of the crew moved with Rowley to the job site in Kayenta, where Claimant was injured on June 6. The judge made no findings regarding the location of Claimant’s employment with G & S prior to his employment in Tuba City. G & S records, however, established that Claimant worked for G & S in Farmington, Socorro, and Santa Fe, New Mexico, during all but three weeks from December 1, 1987, through May 7, 1988. In addition, Claimant testified without contradiction that he worked for G & S and no other employer from April 1987 through the end of that year, earning $17,160. The work in 1987 was in Kirtland and Farming-ton, New Mexico.

II. DISCUSSION

The sole issue in this appeal is the extraterritorial coverage of the Workers’ Compensation Act. The governing provision is NMSA 1978, Section 52-1-64 (Repl.Pamp.1987), which states:

If an employee, while working outside the territorial limits of this state, suffers an injury on account of which he, or in the event of his death, his dependents, would have been entitled to the benefits provided by the Workmen’s Compensation Act, had such injury occurred within this state, such employee, or in the event of his death resulting from such injury, his dependents, shall be entitled to the benefits provided by this act, provided that at the time of such injury:
A. his employment is principally localized in this state;
B. he is working under a contract of hire made in this state in employment not principally localized in any state;
C. he is working under a contract of hire made in this state in employment principally localized in another state whose workmen’s compensation law is not applicable to his employer; or
D. he is working under a contract of hire made in this state for employment outside the United States and Canada.

A. Place of Contract of Hire

Subsections B, C, and D provide for jurisdiction under the Act only if Claimant was working under a contract of hire made in New Mexico. One of the judge’s conclusions of law was that Claimant was working under a contract of employment made with a G & S foreman in Arizona. In a prior decision interpreting Section 52-1-64 we held that “the geographical place where the acceptance is given will control the location of the formation of the contract.” Orcutt v. S & L Paint Contractors, 109 N.M. 796, 798, 791 P.2d 71, 73 (Ct.App.1990). The evidence at the hearing was sufficient to sustain the judge’s findings that each foreman hired his own workers and that the foreman for whom Claimant was working at the time of his injury had originally hired Claimant in Tuba City, Arizona. Although there was contrary evidence, it is for the trial judge, not this Court, to determine the credibility of witnesses and weigh the evidence. See Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 767 P.2d 363 (Ct.App.), cert. denied, 109 N.M. 33, 781 P.2d 305 (1988). The judge could properly rule that at the time of Claimant’s accident he was working under a contract of hire made in Arizona.

B. Place of Principal Localization of Employment

Consequently, Claimant can recover under New Mexico’s statute only under Subsection A of Section 52-1-64 — that is, he can recover only if his employment was “principally localized” in New Mexico. NMSA 1978, Section 52-l-67(A) (Repl.Pamp.1991) states:

A person’s employment is principally localized in this or another state when:
(1) his employer has a place of business in this or such other state and he regularly works at or from such place of business; or
(2) if Paragraph (1) of this subsection is not applicable, he is domiciled and spends a substantial part of his working time in the service of his employer in this or such other state.

The judge entered conclusions of law that Claimant’s employment was principally localized in Arizona and was not principally localized in New Mexico. The judge did not, however, address the predicates for these legal conclusions. In particular, the judge did not enter any finding or conclusion regarding whether G & S had a “place of business” in New Mexico or Arizona, as required by Paragraph (A)(1), nor did he enter a finding or conclusion regarding whether Claimant spent a “substantial part of his working time in the service of” G & S in New Mexico or Arizona, as required by Paragraph (A)(2). Nevertheless, on the basis of the judge’s unchallenged findings and the uncontested evidence at the hearing, we determine as a matter of law that Claimant’s employment was principally localized in New Mexico.

1. Place of Business

We begin with Paragraph (A)(1). Under that paragraph Claimant’s employment was principally localized in Arizona only if G & S had a place of business there. The critical question facing us is: When, if ever, is a construction site a place of business for a contractor?

Although a number of statutes and judicial opinions define or construe the term “place of business,” those authorities do not establish a sufficiently fixed meaning to resolve whether, regardless of legal context, a construction site is a contractor’s place of business.

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Cite This Page — Counsel Stack

Bluebook (online)
863 P.2d 1099, 116 N.M. 478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/todacheene-v-g-s-masonry-nmctapp-1993.