A. Every employer subject to the Workers’ Compensation Act [52-1-1 NMSA 1978] shall direct his insurance carrier to file, and the insurance carrier shall file, in the office of the director evidence of workers’ compensation insurance coverage in the form of a certificate containing that information required by regulation of the director. The required certificate must be provided by an authorized insurer as defined in Section 59A-1-8 NMSA 1978. In case any employer is able to show to the satisfaction of the director that he is financially solvent and that providing insurance coverage is unnecessary, the director shall issue him a certificate to that effect, which shall be filed in lieu of the certificate of insurance. The director shall provide by regulations the procedures for reviewing, renewing and revoking any certificate excusing an employer from filing a certificate of insurance, including provisions permitting the director to condition the issuance of the certificate upon the employer’s proving adequate security.
B. Any certificate of the director filed under the provisions of this section shall show the post office address of such employer.
C. Every contract or policy insuring against liability for workers’ compensation benefits or certificate filed under the provisions of this section shall provide that the insurance carrier or the employer shall be directly and primarily liable to the worker and, in event of his death, his dependents, to pay the compensation and other workers’ compensation benefits for which the employer is liable.
D. In the event of an insurance policy cancellation, the workers’ compensation insurance carrier shall file notice to the director within ten days of such cancellation on a form approved by the director.
HISTORY:
1978 52-1-4, enacted by Laws 1987, ch. 235, § 5; 1989, ch. 263, § 4; 1990 (2nd S.S.), ch. 2, § 2.
Notes to Decisions
Generally.
Where an employer actually has workmen’s compensation insurance coverage and complies with insurance requirements on a continuing basis annually but simply overlooks filing a certificate of insurance in time, an employee should not be allowed to take advantage of the employer by putting it to the expense of defending a common-law action and paying retribution. Shope v. Don Coe Constr. Co., 1979-NMCA-013, 92 N.M. 508, 590 P.2d 656, 1979 N.M. App. LEXIS 796 (N.M. Ct. App. 1979).
Applicability.
Mere fact that under 52-1-66A NMSA 1978, an employer with fewer than three employees within the state was exempt from the administrative provisions of 52-1-4A NMSA 1978 did not mean that it was not subject to the New Mexico Workers’ Compensation act for injury to a worker in New Mexico. Hammonds v. Freymiller Trucking, 1993-NMCA-030, 115 N.M. 364, 851 P.2d 486, 1993 N.M. App. LEXIS 21 (N.M. Ct. App. 1993).
Employer and its compensation insurer were improperly held liable to an injured worker in the workmen’s compensation action he brought against them; the court explained that an employer not engaged in an extra-hazardous occupation could not bring itself within the terms of the Workmen’s Compensation Act by the mere filing of a workmen’s compensation policy of insurance with the office of the district court clerk, because the governing statute, former § 57-904, 1941 Comp., required the employer to file with the clerk a written statement accepting the provisions of the Act and, in the instant action, the election in writing was never filed. Eaves v. Contract Trucking Co., 1951-NMSC-066, 55 N.M. 463, 235 P.2d 530, 1951 N.M. LEXIS 767 (N.M. 1951), overruled, Garrison v. Bonfield, 1953-NMSC-073, 57 N.M. 533, 260 P.2d 718, 1953 N.M. LEXIS 1012 (N.M. 1953).
Compliance.
Where a self-employed contractor filed a certificate that his company was insured under the Workers’ Compensation Act, absent an express declaration that he himself was covered as an employee, he did not have workers’ compensation coverage under 52-1-4C NMSA 1978, because he did not elect coverage as an employee. Junge v. John D. Morgan Constr. Co., 1994-NMCA-106, 118 N.M. 457, 882 P.2d 48, 1994 N.M. App. LEXIS 98 (N.M. Ct. App. 1994).
Certificate of insurance filed with the New Mexico workers’ compensation administration must state expressly that the self-employed person elects to be considered a worker under 52-1-4C NMSA 1978 of the Workers’ Compensation Act. Junge v. John D. Morgan Constr. Co., 1994-NMCA-106, 118 N.M. 457, 882 P.2d 48, 1994 N.M. App. LEXIS 98 (N.M. Ct. App. 1994).
In an employee’s action against his employer in which he sought recovery under the New Mexico Workmen’s Compensation Act for an alleged work-related injury and for wrongful discharge, the employee was permitted to elect whether to file his action under the Act or under common law if the employer failed to comply with 52-1-4 NMSA 1978. Shores v. Charter Servs., 1987-NMSC-109, 106 N.M. 569, 746 P.2d 1101, 1987 N.M. LEXIS 3813 (N.M. 1987).
Although an employer initially failed to comply with the mandatory filing requirements of 52-1-4 NMSA 1978 by failing to file proof of workmen’s compensation insurance coverage, the employer substantially complied with the statutory requirements when it filed a copy of its insurance policy shortly after the filing of the executor’s amended complaint alleging wrongful death, because the executor had received actual notice of the policy’s existence before the amended filing and was not prejudiced by the late filing. The employer’s substantial compliance limited the executor to the exclusive remedies of the Workmen’s Compensation Act. Baldwin v. Worley Mills, Inc., 1980-NMCA-128, 95 N.M. 398, 622 P.2d 706, 1980 N.M. App. LEXIS 956 (N.M. Ct. App. 1980).
Employer who waited until after two tort actions had been field against him to file his proof of workers’ compensation insurance did not substantially comply with the filing requirement of 52-1-4 NMSA 1978 and, therefore, could not invoke the Act’s exclusive remedy provisions, 52-1-8 NMSA 1978 and 52-1-6D NMSA 1978, to bar the actions. Security Trust v. Smith, 1979-NMSC-024, 93 N.M. 35, 596 P.2d 248, 1979 N.M. LEXIS 1299 (N.M. 1979).
Wrongful death action brought against an employer by the administrator of a deceased employee’s estate was not foreclosed by the exclusivity provisions of the workmen’s compensation act, because the employer failed to substantially comply with former 59-10-3, 1953 Comp. Williams v. Montano, 1976-NMSC-022, 89 N.M. 252, 550 P.2d 264, 1976 N.M. LEXIS 805 (N.M. 1976).
Employer’s delay in filing its insurance policy following an employee’s workplace accident as required by former 59-10-3, 1953 Comp. (now 52-1-4 NMSA 1978) did not result in prejudice to a claim for workers’ compensation benefits and did not permit a suit against the employer for wrongful death. Quintana v. Nolan Bros., 1969-NMCA-083, 80 N.M. 589, 458 P.2d 841, 1969 N.M. App. LEXIS 605 (N.M. Ct. App. 1969).
Although an employer had not complied with former § 57-904, 1941 Comp. by filing a written statement of his election to bring himself and his employees under the terms of the Workmen’s Compensation Act and a policy of insurance covering claims arising under the act, an employee sufficiently raised a question of estoppel where he showed that the employer promised him that he would buy a workmen’s compensation policy and that the employer purchased the policy and informed the employee of that fact. Garrison v. Bonfield, 1953-NMSC-073, 57 N.M. 533, 260 P.2d 718, 1953 N.M. LEXIS 1012 (N.M. 1953).
Coverage notice.
Where workmen’s compensation insurance coverage exists in fact, but notice of it is not given to the workman due to a delay in filing the evidence of insurance coverage, the workman is still subject to the Workmen’s Compensation Act. If a common-law action is not filed prior to the filing of insurance coverage, the workman does not escape the provisions of the Act, and thus mere technicalities of this nature play no part in destroying the purpose and the fair administration of the Act. Shope v. Don Coe Constr. Co., 1979-NMCA-013, 92 N.M. 508, 590 P.2d 656, 1979 N.M. App. LEXIS 796 (N.M. Ct. App. 1979).
Filing delay.
In a wrongful death action against a decedent’s employer, plaintiff was held to be subject to the Workmen’s Compensation Act, although the employer had filed the certificate of insurance 15 days after the statutory deadline, where the employer had actually obtained workmen’s compensation coverage for the decedent and filed the certificate of insurance before plaintiff filed her wrongful death action. Shope v. Don Coe Constr. Co., 1979-NMCA-013, 92 N.M. 508, 590 P.2d 656, 1979 N.M. App. LEXIS 796 (N.M. Ct. App. 1979).
Purpose of mandatory filing.
Purpose of the mandatory filing requirement in 52-1-4 NMSA 1978 is to notify a workman that the employer has complied with the insurance requirements of the Workmen’s Compensation Act, that the employer is subject to the provisions of the Act, and that the workman is conclusively presumed to have accepted its provisions. If this purpose is effected before a workman files a common-law action, the mandatory filing requirement is met because late filing accomplishes the same purpose as mandatory filing requirements, and when the same purpose is accomplished there is “substantial compliance,” which is actual compliance, with the Act. Shope v. Don Coe Constr. Co., 1979-NMCA-013, 92 N.M. 508, 590 P.2d 656, 1979 N.M. App. LEXIS 796 (N.M. Ct. App. 1979).
Remedies.
Where an employer did not exempt himself from the operation of the Workmen’s Compensation Act, the employer was conclusively presumed to have accepted its provisions and thus, an employee could sustain a personal injury action against the employer. Addison v. Tessier, 1957-NMSC-002, 62 N.M. 120, 305 P.2d 1067, 1957 N.M. LEXIS 878 (N.M. 1957).
Requirements.
Employer failed to minimally comply with former 59-10-3, 1953 Comp. (now 52-1-4 NMSA 1978) because the employer failed to file a policy of insurance, a certificate of proof thereof, a security bond, or a certificate of self-insurance with the clerk of the district court; thus, the administrator’s wrongful death action was improperly dismissed. Williams v. Montano, 1976-NMSC-022, 89 N.M. 252, 550 P.2d 264, 1976 N.M. LEXIS 805 (N.M. 1976).
Research References and Practice Aids
Cross references.
Destruction of policies, bonds and undertakings, 52-1-5 NMSA 1978.
Application of provisions of act, 52-1-6 NMSA 1978.
Judgment; provisions; execution; subrogation; contempts, 52-1-38 NMSA 1978.
Director to enforce Workers’ Compensation Act, 52-1-62 NMSA 1978.
Nonresident employers employing workers in state; requirement for insurance; enforcement, 52-1-66 NMSA 1978.
Regulations remain in effect; initial commission general members, 52-8-12 NMSA 1978.
Compliance with and applicability of workers’ compensation laws, 60-13A-5 NMSA 1978.
Agreement required, 60-13A-9 NMSA 1978.
New Mexico Law Review.
Bankruptcy Law—Tenth Circuit Bankruptcy Appellate Panel Holds Worker’s Compensation Premiums Are Not Entitled To Fringe Benefits Priority Status — In Re Southern Star Foods, Inc., Deborah Gille, 28 N.M. L. Rev. 487 (1998).