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Espinosa v. Albuquerque Publishing Co.6/20/1997
Second, in (quoting )), this Court offered another example of what Professor Larson would deem a "dual transaction": an employee is injured in "'an automobile accident in which the employer, while returning from church, runs into the employee who is on his way to a baseball game . . . .'" Id. The Salswedel Court categorized its example of a dual transaction under the dual-persona doctrine, and not under the dual-capacity doctrine, which the Court rejected. Id.
{21} We conclude that neither the traditional dual-persona doctrine nor the dual-transaction concept apply to the facts of this case. The traditional dual-persona doctrine does not apply because there is no evidence of differences in corporate form or ownership which might have transformed the Company into a separate persona as argued in Garrity or Salswedel. The dual-transaction concept does not apply because Espinosa's October 22, 1991, accident was not a separate transaction that was entirely unrelated to Espinosa's duties at work. Unlike the examples discussed in Cuellar or Salswedel, the Company employee who caused Espinosa's injuries was on-duty performing a "mail run" for the Company in the Company's van at the time of the accident, and Espinosa was on his way to work at that time.
III. CONCLUSION
{22} We recognize Espinosa's contention that the circumstances of the accident--occurring some two miles away from the premises, on a cross-walk located on a public roadway, and approximately 30 minutes prior to the beginning of his shift --are too remote in time and place so as to invoke the exclusive jurisdiction of the WCA. However, our Supreme Court precedent compels us to affirm the rulings of the district court and the WCJ which conclude that the WCA provides the exclusive remedy for the injuries sustained in Espinosa's accident of October 22, 1991.
{23} IT IS SO ORDERED.
M. CHRISTINA ARMIJO, Judge
I CONCUR:
RICHARD C. BOSSON, Judge
THOMAS A. DONNELLY, Judge (specially Concurring)
DONNELLY, Judge (Specially Concurring).
{24} I concur in the result. I write separately, however, because I believe the majority's expressed disagreement with our Supreme Court's statutory interpretation in , is misdirected.
{25} The majority opinion states that it disagrees with Dupper and that it does not believe the legislature intended the language of the "going and coming" set forth in NMSA 1978, Section 52-1-19 (Repl. Pamp. 1991) to apply to injuries such as those sustained by Worker here. My disagreement with this Conclusion lies in its suggestion that the appropriate remedy is for the Supreme Court to revisit and modify the holding in Dupper, rather than suggest legislative amendment. Courts should avoid efforts to modify legislative policy and enactments by judicial decisions. See ) (courts cannot change statutory language or construe statute to mean something other than what the statute provides), cert. granted, 120 N.M. 828, 907 P.2d 1009 (1995).
{26} This Court has recently noted in Gutierrez that "in the workers' compensation context . . . certain situations call for legislative therapy, not judicial surgery." ; see also ) (modification or departure from language of exclusivity statute rests with the legislature and not the courts).
THOMAS A. DONNELLY, Judge
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