A. Every employer subject to the Workers' Compensation Act 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 Comp., § 52-1-4, enacted by Laws 1987, ch. 235, § 5; 1989, ch. 263, § 4; 1990 (2nd S.S.), ch. 2, § 2.

Repeals and reenactments. — Laws 1987, ch. 235, § 5 repealed former 52-1-4 NMSA 1978 as amended by Laws 1986, ch. 22, § 2, and enacted a new 52-1-4 NMSA 1978.

Cross references. — For employers of private domestic servants or of farm and ranch laborers exempt from act, see 52-1-6 NMSA 1978.

The 1990 (2nd S.S.) amendment, effective January 1, 1991, substituted "administration" for "division" in the catchline; added the present second sentence in Subsection A; in Subsection C, deleted "for which is" following "certificate" near the beginning and substituted "workers'" for "worker's" near the end; deleted former Subsection D relating to exemptions for certain governmental entities; and redesignated former Subsection E as Subsection D.

Workmen's [Workers'] Compensation Act is compulsory, not elective, and compliance may be accomplished by filing an undertaking in the nature of insurance, by filing a certificate in evidence thereof, or by qualifying as a self-insurer; the failure of an employer to comply in any way constitutes a violation of the act and subjects him to a claim in tort for negligence by an employee. Montano v. Williams, 1976-NMCA-017, 89 N.M. 86, 547 P.2d 569, aff'd, 1976-NMSC-022, 89 N.M. 252, 550 P.2d 264.

Purpose under elective act such as this is to cause the employer to obtain compensation protection. It is contrary to legislative intent that any technical delay which in no way prejudices a claimant would give rise to a common-law suit. Quintana v. Nolan Bros., 1969-NMCA-083, 80 N.M. 589, 458 P.2d 841.

Purpose of mandatory filing requirement is to notify a workman [worker] that the employer has complied with the insurance requirements of the act; that the employer is subject to the provisions thereof and that the workman [worker] is conclusively presumed to have accepted its provisions. Shope v. Don Coe Constr. Co., 1979-NMCA-013, 92 N.M. 508, 590 P.2d 656.

Frustration of legislative intent. — There is a point beyond which the mandatory provisions of the Workmen's [Workers'] Compensation Act cannot be ignored. If the mandatory provisions are disregarded altogether it is clear that the intention of the legislature would be totally frustrated. Security Trust v. Smith, 1979-NMSC-024, 93 N.M. 35, 596 P.2d 248.

Employee's remedies where employer fails to file. — If the employer utterly fails to comply with the provisions of the Workers' Compensation Act (this article), such as by failing to obtain insurance or to properly file a certificate of insurance, the employee has two options: she may either file a workers' compensation action or file an action for common law remedies, to which she may attach a contract claim for wrongful discharge. Failure to comply with the act does not allow the employee to file both a workers' compensation action and a wrongful discharge action. Shores v. Charter Servs., Inc., 1987-NMSC-109, 106 N.M. 569, 746 P.2d 1101.

Workman [Worker's] right to common-law action conclusive. — Where the employer has actually failed to obtain insurance coverage and no insurance coverage exists at the time the common-law action is filed, the workman's [worker's] right to the common-law action is conclusive. Shope v. Don Coe Constr. Co., 1979-NMCA-013, 92 N.M. 508, 590 P.2d 656.

Purpose of depriving noncomplying employer of common-law defenses under an elective act such as this is to cause the employer to obtain compensation protection. It would seem contrary to legislative intent that any technical delay which in no way prejudices a claimant would give rise to a common-law suit. Mirabal v. Internatioal Minerals & Chem. Corp., 1967-NMSC-043, 77 N.M. 576, 425 P.2d 740.

Standard in state for foreclosure of employee's common-law remedies is whether the employer has substantially complied with the Workmen's [Workers'] Compensation Act; strict compliance is not necessary. Security Trust v. Smith, 1979-NMSC-024, 93 N.M. 35, 596 P.2d 248.

Substantial compliance. — The substantial compliance doctrine requires not only that the employer file proof of insurance coverage before the worker files a suit, but also that the employer actually had maintained workers' compensation for its employees as of the date of the injury in question. Peterson v. Wells Fargo Armored Services Corp., 2000-NMCA-043, 129 N.M. 158, 3 P.3d 135, cert. denied, 129 N.M. 207, 4 P.3d 35.

Employer's late filing of insurance policy not substantial compliance. — Employer's late filing of a policy of insurance or a certificate of proof thereof with the clerk of the district court, (now superintendent of insurance), as required by this section, does not constitute substantial compliance with the Workmen's [Workers'] Compensation Act, where such filing occurred after the date of plaintiffs' injuries and also after the date of the commencement in the federal court of plaintiffs' actions seeking common-law and statutory remedies other than those provided for by the Workmen's [Workers'] Compensation Act. Security Trust v. Smith, 1979-NMSC-024, 93 N.M. 35, 596 P.2d 248.

Late filing after plaintiff has commenced suit may constitute substantial compliance with the mandatory filing requirements of this section, so as to force plaintiff to seek the exclusive remedies of the act, when plaintiff received actual notice of the policy's existence before his filing. Baldwin v. Worley Mills, Inc., 1980-NMCA-128, 95 N.M. 398, 622 P.2d 706, cert. denied, 95 N.M. 426, 622 P.2d 1046 (1981).

The "shall file" provision in this section is mandatory. Montano v. Williams, 1976-NMCA-017, 89 N.M. 86, 547 P.2d 569, aff'd, 1976-NMSC-022, 89 N.M. 252, 550 P.2d 264; Quintana v. Nolan Bros., 1969-NMCA-083, 80 N.M. 589, 458 P.2d 841 (decided prior to the 1989 amendment).

This section places duty of filing upon employer, not the insurer and if the employer pursued a course indicating there was no compensation insurance, it might be estopped to show there was coverage in fact, and might therefore subject itself to the liability resulting from the failure to provide insurance. Quintana v. Nolan Bros., 1969-NMCA-083, 80 N.M. 589, 458 P.2d 841 (decided prior to the 1989 amendment).

Failure to file would not deprive court of jurisdiction. — If an insurer, named as a defendant in a workmen's [workers'] compensation suit, was served pursuant to former 59-10-13.7, 1953 Comp., a failure to file the policy pursuant to this section would not deprive the court of jurisdiction over that insurer. Quintana v. Nolan Bros., 1969-NMCA-083, 80 N.M. 589, 458 P.2d 841 (decided prior to the 1989 amendment).

Delay in filing does not remove limitation on employer's liability. — A delay in filing pursuant to this section does not remove the limitation on the employer's liability because the statutory purpose is met when the employer obtains compensation protection for his workmen. Quintana v. Nolan Bros., 1969-NMCA-083, 80 N.M. 589, 458 P.2d 841 (decided prior to the 1989 amendment).

A delay in filing, pursuant to this section does not necessarily remove the limitations on the employer's liability found in Sections 52-1-6, 52-1-8 and 52-1-9 NMSA 1978. Quintana v. Nolan Bros., 1969-NMCA-083, 80 N.M. 589, 458 P.2d 841 (decided prior to the 1989 amendment).

Judicial approval is not necessary where employer files insurance policy or a certificate in evidence thereof. Montano v. Williams, 1976-NMCA-017, 89 N.M. 86, 547 P.2d 569, aff'd, 1976-NMSC-022, 89 N.M. 252, 550 P.2d 264.

No presumption that employee bound until employer complies with requirements. — The employee could not be conclusively presumed to have accepted the provisions of the Workmen's [Workers'] Compensation Act since the employer had not complied with its requirements, including insurance. Until there is a compliance with the requirements of the act relating to insurance by the employer, then, no presumption arises that the employee is bound by the act. Addison v. Tessier, 1957-NMSC-002, 62 N.M. 120, 305 P.2d 1067.

Action at law lies in favor of employee against employer. — Where an employer did not carry workmen's [workers'] compensation insurance, nor had he relieved himself of such requirement as required by this section, the employer was not operating under the provisions of the act, and his employee, under such circumstances, could not have been conclusively presumed to have accepted the provisions thereof. Consequently, action at law lies in favor of the employee and against the employer, and the defenses enumerated in 52-1-8 NMSA 1978 were not available to employer. Addison v. Tessier, 1957-NMSC-002, 62 N.M. 120, 305 P.2d 1067.

When employer does not file insurance policy, the workman [worker] has a right to rely upon this conduct of the employer, and to choose which road to take for relief, that is, to follow either common law or the statute. Montano v. Williams, 1976-NMCA-017, 89 N.M. 86, 547 P.2d 569, aff'd, 1976-NMSC-022, 89 N.M. 252, 550 P.2d 264 (decided prior to the 1989 amendment).

Insurance coverage created though policy not filed until after accident. — Where the actual policy purporting to provide the required coverage under this section for the period during which workmen's [workers'] accident took place was not filed with the district court until 40 days after the accident, but where the employer had continuous coverage under an identical policy and also had a letter of intent to renew the policy which was dated before the accident, a binding contract of insurance coverage had been created for the period during which the accident took place, and the workmen was precluded from bringing a suit for common-law negligence against employer. Mirabal v. International Minerals & Chem. Corp., 1967-NMSC-043, 77 N.M. 576, 425 P.2d 740.

If common-law action is not filed prior to filing of insurance coverage, even if filed late, the workman [worker] does not escape the provisions of the act. Shope v. Don Coe Constr. Co., 1979-NMCA-013, 92 N.M. 508, 590 P.2d 656.

Filing of insurance policy after injury as substantial compliance. — A technical delay in the filing of an insurance policy after an employee suffers an injury, but prior to a common-law action by the employee, does not prejudice the plaintiff because it is substantial compliance with the insurance requirements of the Workmen's [Workers'] Compensation Act, and the workman [worker] has not been harmed or injured or placed in a disadvantaged position. Montano v. Williams, 1976-NMCA-017, 89 N.M. 86, 547 P.2d 569, aff'd, 1976-NMSC-022, 89 N.M. 252, 550 P.2d 264.

A technical delay in filing a workmen's [workers'] compensation policy after an employee suffered an injury, but prior to the time the employee filed his common law action, was substantial compliance with the insurance requirements of the Workmen's [Workers'] Compensation Act. Shope v. Don Coe Constr. Co., 1979-NMCA-013, 92 N.M. 508, 590 P.2d 656.

Election of coverage by sole proprietor. — A self-employed person must file either a sworn statement that he has elected to be covered under the Workers' Compensation Act as an employee/worker or file an insurance or security undertaking expressly stating that he is covered as an employee/worker under the act. Consequently, an insurance certificate demonstrating a self-employed person or sole proprietor has purchased insurance for his workers is insufficient to demonstrate that the sole proprietor had elected to be considered a worker under the act for purposes of coverage. Junge v. John D. Morgan Constr. Co., 1994-NMCA-106, 118 N.M. 457, 882 P.2d 48.

When act no bar to tort action. — Allowing the Workmen's [Workers'] Compensation Act to stand as a bar to a tort action when the employer failed to file anything, or otherwise to comply with this section until after commencement of the tort action would abrogate this section. Security Trust v. Smith, 1979-NMSC-024, 93 N.M. 35, 596 P.2d 248.

Employer may not invoke estoppel to bar employee where knowingly carried no insurance. — Employer at all times knew that he did not carry workmen's [workers'] compensation insurance and had not relieved himself of so doing as provided by the act; therefore, he is not in a position to invoke the doctrine of estoppel as a bar to employee's cause of action. Addison v. Tessier, 1957-NMSC-002, 62 N.M. 120, 305 P.2d 1067.

Workman [Worker] is statutory beneficiary of workmen's [workers'] compensation insurance rather than insured. Herrera v. Springer Corp., 1973-NMCA-041, 85 N.M. 6, 508 P.2d 1303, modified on other grounds, 1973-NMSC-057, 85 N.M. 201, 510 P.2d 1072.

Excess workers' compensation policies. — Excess workers' compensation insurance policies are not reinsurance policies or indemnity policies excluded from the Property and Casualty Insurance Guaranty Law (Chapter 59A, Article 43 NMSA 1978). In re Mission Ins. Co., 1991-NMSC-080, 112 N.M. 433, 816 P.2d 502.

Excess workers' compensation policies are not excepted from coverage under Subsection C of Section 59A-43-4 NMSA 1978. In re Mission Ins. Co., 1991-NMSC-080, 112 N.M. 433, 816 P.2d 502.

Claims against insolvent insurers. — A self-insured employer who has a claim against an insolvent insurer may qualify such claim as a "covered claim" within the scope of the New Mexico Property and Casualty Insurance Guaranty Law (Chapter 59A, Article 43 NMSA 1978). In re Mission Ins. Co., 1991-NMSC-080, 112 N.M. 433, 816 P.2d 502.

Operating under a certificate of solvency pursuant to this section cannot be equated with an insurance contract or policy. The certificate is simply a way of proving to the state that an employer can satisfy its obligation under the workers' compensation laws. In re Mission Ins. Co., 1991-NMSC-080, 112 N.M. 433, 816 P.2d 502.

It is not necessary that injury should result momentarily to be accidental. It may be the result of hours, even a day or longer, of breathing or inhaling gases, depending upon the facts of the case. Hathaway v. N.M. State Police, 1953-NMSC-108, 57 N.M. 747, 263 P.2d 690; Stevenson v. Lee Moor Contracting Co., 1941-NMSC-033, 45 N.M. 354, 115 P.2d 342.

Strain caused by unusual exertion as accident. — Death in the ordinary course of employment, resulting from strain upon the heart caused by unusual exertion, is an accident within the meaning of the workmen's [workers'] compensation statutes. On the other hand, death occurring while in the discharge of usual duties, in a normal manner without exceptional effort, is insufficient to establish a "mishap" or "fortuitous happening." Hathaway v. N.M. State Police, 1953-NMSC-108, 57 N.M. 747, 263 P.2d 690.

Complete coverage under same general policy for contractor and subcontractor. — Where both a public works contractor and a subcontractor elect to come within the provisions of the act, an arrangement may be worked out as a matter of contract wherein complete coverage may be had under the same general policy, provided that both the principal contractor and the independent contractor are parties to the insurance contract and are parties insured therein. Employees of the subcontractor would not be fully protected in a contract of insurance entered into merely between the insurer and the original contractor as the insured, notwithstanding the attachment of a rider to the original policy purporting to cover the employees of the subcontractor, unless the subcontractor is actually made a party to the insurance contract. 1939 Op. Att'y Gen. No. 39-3280.

Filing requirement applies to public works. — A reading of the fact would seem to disclose an unequivocal legislative intent requiring those employers who elect to come under its provisions to file with the proper clerk of the district court "good and sufficient undertaking in the nature of insurance or security" for the payment of claims that might arise against the employer under the act, unless this requirement is dispensed with by certificate of the proper district judge. This requirement would apply to public works. Construction of the work involved is such as to be classified as extrahazardous within the meaning of 59-10-10 and 59-10-12, 1953 Comp. (now repealed). 1939 Op. Att'y Gen. No. 39-3280 (rendered under former law).

School districts need not carry insurance on all their employees but may also carry multiple insurance on such employees as it chooses. 1943 Op. Att'y Gen. No. 43-4429.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers' Compensation §§ 29, 177 to 182, 675.

Insolvency of insurer or employer as affecting liability for compensation, 8 A.L.R. 1346.

Power of commission to make award against self-insurer, 13 A.L.R. 1385.

Subrogation of insurance carrier to rights of injured employee against third person causing injury, 19 A.L.R. 782, 27 A.L.R. 493, 37 A.L.R. 838, 67 A.L.R. 249, 88 A.L.R. 665, 106 A.L.R. 1040.

Civil and criminal consequences of failure to insure or otherwise secure compensation, 21 A.L.R. 1428.

Right of insurer under Workmen's Compensation Act to recover from employer, who has breached warranty, the amount it has been obliged to pay employee, 22 A.L.R. 1481.

Findings upon claim for compensation as binding upon insurance carrier, 28 A.L.R. 882.

Insurance under Workmen's Compensation Act as coextensive with insured's liability under act, 45 A.L.R. 1329, 108 A.L.R. 812.

Provisions in relation to insurance in Workmen's Compensation Act, 58 A.L.R. 890, 105 A.L.R. 580, 151 A.L.R 1358, 180 A.L.R. 1214.

Independent contractors or subcontractors, specific provisions of compensation acts in relation to insurance to protect employees, 105 A.L.R. 593.

Third person's negligence causing injury, right of insurance carrier as against employee or his dependents, 106 A.L.R. 1059.

Right of insurance company as to rejection of application for insurance in view of its public interest, 107 A.L.R. 1421, 123 A.L.R. 139.

Cancellation or attempt at cancellation of insurance, 107 A.L.R. 1514.

Policy of compensation insurance issued to individual as covering employees of partnership of which he is a member, 114 A.L.R. 724.

Right as between insurer of employer primarily responsible under compensation act and insurer of employer secondarily liable under that act where injury was due to latter's negligence, 117 A.L.R. 571.

Provision of workmen's compensation insurance policy with respect to notice of accident or claim, 123 A.L.R. 950, 18 A.L.R.2d 443.

Reinsurance of self-insurer, 153 A.L.R. 967.

Insurance carrier's liability for part of employer's liability attributable to violation of law or other misconduct on his part, 1 A.L.R.2d 407.

Insurer's denial of renewal of policy, waiver and estoppel, 85 A.L.R.2d 1410.

99 C.J.S. Workmen's Compensation §§ 25, 37, 115 to 119; 100 C.J.S. Workmen's Compensation §§ 353 to 377.