New Mexico Court Discusses State’s “Peculiar” Going and Coming Rule

In an unusual case that turned on the “peculiar” wording of New Mexico’s statutory going and coming rule, the Court of Appeals of New Mexico affirmed a decision by a state trial court that held a plaintiff’s tort action against her employer and a co-employee were barred by the exclusive remedy provision of the state’s Workers’ Compensation Act, despite the fact that at the time of her injury, the plaintiff was commuting to the employer’s facility and was performing no activity related to her employment [Finn v. Tullock, 2022 N.M. App. LEXIS 46 (Aug. 29, 2022)]. Under the New Mexico statute, it seems that a commuting employee is not within the course and scope of the employment unless her person or car is struck by a co-employee.

Background

Finn was involved in a motor vehicle accident while on her way to work for the employer. The driver of the other vehicle, Tullock, was employed by the employer as well and he was driving a vehicle owned by the employer. Finn filed a civil action against her employer and Tullock, alleging that she had been injured through the negligence of both defendants. Ultimately, the defendants defended on grounds that Finn’s civil action was barred by the exclusive remedy provision of the New Mexico Workers’ Compensation Act. After extensive discovery, the trial court granted summary judgment in favor of the defendants and Finn appealed.

New Mexico’s Exclusivity Statute

Central to the case was New Mexico’s exclusive remedy statute, N.M. Stat. Ann. § 52-1-9. In order for a claim to be barred by exclusivity, the following relevant condition must occur:

[A]t the time of the accident, the employee is performing service arising out of and in the course of his employment [N.M. Stat. Ann. § 52-1-9(B)].

Author’s Note

At least at first blush, it would appear that Finn could maintain her civil action. At the time of the accident, she was not performing any sort of service for her employer. She was merely driving to work. For a fixed-situs employer such as Finn, the drive to and from work is not considered to fall within the course and scope of the employment.

The Espinosa Decision

The defendants pointed to an earlier decision of the Court, Espinosa v. Albuquerque Publishing Co., 1997-NMCA-072, 123 N.M. 605, 943 P.2d 1058. There, the plaintiff, who was a pedestrian, was struck by a vehicle as he cross a street while in a designated crosswalk. The vehicle that struck him was owned by his employer and was driven by a co-worker who was out on a “mail run.” The accident occurred some two miles from the employer’s facilities and the plaintiff’s shift at the employer was not due to begin for 30 minutes.

Notwithstanding those facts, the Espinosa court turned to N.M. Stat. Ann. § 52-1-19, the statutory formulation of New Mexico’s going and coming rule. Under that statutory rule, “injury by accident arising out of and in the course of employment” does not include:

injuries to any worker occurring while on his way to assume the duties of his employment or after leaving such duties, the proximate cause of which is not the employer’s negligence [emphasis added].

The Espinosa court acknowledged that New Mexico had a “peculiar statutory version” of the going and coming rule [Opinion, ¶10]. Utilizing it and quoting Larson’s Workers’ Compensation Law § 15.11, the Espinosa court reasoned that since the plaintiff’s injuries were caused by “the employer’s negligence,” the tort action against the employer was barred.

Back to the Instant Case

Moving back to the case at hand, the appellate court said that the facts were quite similar to those in Espinosa. The appellate court was bound by the decision of the New Mexico Supreme Court in Espinosa. Under N.M. Stat. Ann. § 52-1-19, Finn’s injuries “arose out of and in the course of employment” in spite of the fact that she was driving to work [Author’s note: One should recognize that, technically, the appellate court did not hold that Finn’s injuries arose out of and in the course of her employment].

The Court added that the trial court had not abused its discretion by rejecting Finn’s waiver arguments. Finn’s sole remedy was within the workers’ compensation system.