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Peterson v. Wells Fargo Armored Services Corp.3/20/2000
Jean Peterson (Plaintiff), personal representative of the estate of Jeffrey Oelcher, appeals from the trial court's order granting summary judgment in favor of Defendant Wells Fargo Armored Service Corporation (Wells Fargo). In essence, the order determines that Wells Fargo complied with the insurance provisions of the Workers' Compensation Act and therefore workers' compensation is the exclusive remedy for the death of Jeffrey Oelcher, Plaintiff's son. See NMSA 1978, §§ 52-1-6(C) & (D) (1990) (effective January 1, 1992), 52-1-8 (1989), 52-1-9 (1973); Harger v. Structural Servs., Inc., 121 N.M. 657, 666, 916 P.2d 1324, 1333 (1996). We conclude that Wells Fargo did not substantially comply with the filing provisions of the Act and that summary judgment is inappropriate and therefore reverse and remand.
Facts and Procedural Posture
The following facts are assumed for purposes of summary judgment; they may still be subject to some dispute in the trial court. On August 25, 1994, Wells Fargo employed Jeffrey Oelcher as a driver-guard. On that day, Oelcher and a partner had been assigned a Budget Rentals van to use in their route from Albuquerque to Socorro, Gallup, and Grants and back to Albuquerque. Two men in a pickup truck ambushed the van on a back road. One of the men, who was lying in the bed of the pickup, fired a gun at the van. The bullet went through the windshield, which was not armored or in any other way reinforced, and struck Oelcher in the head. Oelcher died either immediately or a very short time after being shot.
Oelcher was survived by his mother, Plaintiff; his stepfather, Ken Peterson; his fiancé, April Dunton; and his two minor children born to April Dunton. On August 30, 1994, Ken Peterson called the Workers' Compensation Administration (the Administration) and asked whether Wells Fargo or Borg-Warner, its parent company, had workers' compensation insurance. He was told that the Administration's records did not show that either company had workers' compensation insurance. The next day, Sandy Offerdahl of Travelers Insurance (Travelers), wrote Dunton. The letter told Dunton that Travelers was the workers' compensation carrier for Wells Fargo and asked Dunton to contact Offerdahl. During September 1994, Offerdahl and Dunton spoke by telephone several times. Offerdahl indicated that she wanted copies of the birth certificates of the children so that she could begin processing workers' compensation benefits. Ultimately, on September 15, 1994, Dunton told Offerdahl that she wanted to appeal the amount of the benefits, that she was represented by an attorney, and that Plaintiff had advised her not to send Offerdahl copies of the birth certificates. On September 20, 1994, Offerdahl sent the attorney a letter identifying Travelers as the workers' compensation carrier and asking for birth certificates. The attorney never responded.
In February 1995, Plaintiff, as personal representative of her son's estate, filed a complaint and then an amended complaint in district court seeking damages for wrongful death. As to Wells Fargo, the complaint alleged that the "Big Red" armored cars used by Wells Fargo had frequent mechanical difficulties and, as a result, Wells Fargo had used ordinary rental vans from Budget on some of its routes, including the route Oelcher was on at the time of his death.
On August 1, 1995, the trial court ordered Wells Fargo to produce evidence, before September 13, 1995, of its compliance with the insurance provisions of the Act. Thereafter, Wells Fargo's attorney allowed Plaintiff's attorneys to inspect the copy of the policy that he had. Two years later, at the hearing on the motion for summary judgm
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