Constantineau v. First National Bank

OPINION STEVE HERRERA, District Judge. Claimant Constance J. Constantineau (claimant) appeals from a determination of the workers’ compensation judge denying her claim for workers’ compensation benefits. The date of the injury was June 23, 1988, and is therefore a claim under the “New Act,” NMSA 1978, Section 52-1-70 (Repl.Pamp.1987). The workers’ compensation judge determined that claimant did not suffer an accidental injury arising out of and in the course of her employment pursuant to the “going-and-coming rule” limitations contained in NMSA 1978, Section 52-1-19 (Repl.Pamp.1987). The material facts are not in dispute. We affirm. Claimant was employed by First National Bank in Albuquerque (employer). On June 23, 1988, claimant parked her personal vehicle in her parking space in the Civic Center parking facility. She walked through the underground tunnel into the First Plaza building. She walked into the Galería and tripped over a protruding portion of the wood floor, injuring her left shoulder. She worked on the fourth floor of the First Plaza building. On appeal claimant argues that since she was injured on a necessary route between two portions of her employer’s premises, the claim falls within the exception to the “going-and-coming rule” enunciated by the supreme court in Dupper v. Liberty Mutual Insurance Co., 105 N.M. 503, 734 P.2d 743 (1987), and as extended by this court in Lovato v. Maxim’s Beauty Salon, Inc., 109 N.M. 138, 782 P.2d 391 (Ct.App.1989). Section 52-1-19 provides: As used in the Workers’ Compensation Act [Chapter 52, Article 1 NMSA 1978], unless the context otherwise requires, “injury by accident arising out of and in the course of employment” shall include accidental injuries to workers and death resulting from accidental injury as a result of their employment and while at work in any place where their employer’s business requires their presence but shall 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.] In Dupper the worker had completed her shift, signed out for the day, and was on her way to the employee parking lot when she tripped over a “pop-up” sprinkler head that had failed to retract after use. The court stated: “We hold that a workman, while on the employer’s premises coming to or going from the actual workplace is in a place where the employee is reasonably expected to be, and that he is engaged in a necessary incident of employment.” Id., 105 N.M. at 506, 734 P.2d at 746. This court found that a logical extension of the Dupper analysis would include injuries sustained by an employee walking through a store from her assigned parking lot to her work station. Lovato v. Maxim’s Beauty Salon, Inc. On appeal claimant argues that under Lovato an injury sustained while traveling from a parking lot to the employer’s place of work is compensable without regard to whether the parking lot is intended for the employee’s use. Claimant’s argument ignores the plain language of Dupper, which requires some showing that the parking lot was intended for the use of the employees. In this case, claimant parked her vehicle in a parking lot in the Civic Center parking facility. The parking facility was owned by the City of Albuquerque. Claimant’s employer had an option to designate up to one hundred parking spaces of the total of three hundred for its use. Employer had exercised its option to use only sixty-three of those spaces and the remaining thirty-seven were therefore returned to the First Plaza’s owners’ management company for distribution to others. The sublease for the parking space was between claimant and the building manager. The Civic Center parking lot was the choice of claimant and not assigned to her by employer. Employer did not require its employees to use the Civic Center parking lot and some employees in fact did use other parking facilities. The facts of this case differ substantially from those in Dupper and Lovato. Employer raises four reasons why the appeal should be denied: (1) claimant waived the issue raised on appeal; (2) when “neutrally interpreting” the New Act, the Dupper exception is no longer good law; (3) mere employee use of a parking lot does not make it part of employer’s premises under Dupper; and (4) claimant’s failure to request findings of fact and conclusions of law concerning her disability and medical benefits renders remand inappropriate even if this court reverses. Because we affirm the workers’ compensation judge’s decision on the third ground, a discussion of the other issues is not necessary. Assuming that Dupper is still good law under the New Act, the facts in this case, however, are distinguishable from the facts in Dupper and we hold, therefore, that mere employee “use” of a parking lot is insufficient to consider the lot part of the employer’s “premises.” In Dupper the employee was on the employer’s premises at the time of the accident. In this case, the parking lot was not owned by employer, exclusively used by claimant, or assigned by employer to claimant. Finally, claimant, in her docketing statement and at trial below, argued that the Galería was part of employer’s “premises” and therefore the accident occurred within the course and scope of her employment. However, in her brief-in-chief, claimant argued only that the injury occurred on a necessary route between two portions of her employer’s premises. We agree with employer that claimant has waived the issue of whether the place she fell in the Galería level is on employer’s premises, because she has not briefed the issue on appeal. The determination of the workers’ compensation judge is affirmed. IT IS SO ORDERED. HARTZ, J., concurs. CHAVEZ, J., dissents.