concurring in part and dissenting in part.
{31} I concur in the opinion insofar as we affirm the WCA’s ruling that Chavez returned to work at a wage equal to or greater than his pre-injury wage. I respectfully dissent from the majority’s reversal of the WCA’s reimbursement award. I would affirm the award.
{32} Section 52-5-17 was amended in 1990, effective January 1, 1991. Before that amendment, our Supreme Court held invalid an uninsured motorist (UIM) policy clause that allowed the insurer to deduct from amounts payable under that policy the amount of the benefits paid to the worker under the insurer’s separate workers’ compensation policy. See Continental Ins. Co. v. Fahey, 106 N.M. 603, 604-05, 747 P.2d 249, 250-51 (1987); see also § 52-5-17 History. This holding apparently raised concern because it appeared to give employees a windfall, or double recovery, when the employer’s insurer issued both policies, causing the Legislature to pass the 1990 amendment to Section 52-5-17. See Mountain States Mutual Cas. Co. v. Vigil, 121 N.M. 812, 814-15, 918 P.2d 728, 730-31 (Ct.App.1996). Cf. Dunn v. State ex rel. Taxation & Revenue Dep’t, State of New Mexico, 116 N.M. 1, 5-6, 859 P.2d 469, 473-74 (Ct.App.1993) (“Adoption of statutory amendments is presumptive evidence of a legislative intention to change existing law, including existing judicial interpretations of the original statute.”).
{33} Under the new Section 52-5-17(A), an employee cannot “receive payment or damages for injuries or disablement occasioned to him by the negligence or wrong of any person ... and also claim compensation from the employer, except as provided in Subsection C of this section.” (Emphasis added.) The pertinent language of Section 52-5-17(0) is:
The worker or his legal representative may retain any compensation due under the uninsured motorist coverage provided in Section 66-5-301 NMSA 1978 if the worker paid the premium for that coverage. If the employer paid the premium, the worker or his legal representative may not retain any compensation due under Section 66-5-301 NMSA 1978, and that amount shall be due to the employer....
Section 52-5-17(C). This language seems plain.
{34} Our Supreme Court then Section 52-5-17(C) in Draper v. Mountain States Mutual Cas. Co., 116 N.M. 775, 867 P.2d 1157 (1994). The Court interpreted the words “[i]f the employer paid the premium, the worker ... may not retain any compensation due ... and that amount shall be due to the employer,” to mean that if an employee receives more from an employer’s uninsured motorist policy than the employee receives from the employer’s workers’ compensation insurer, the employee may retain the excess. See id. at 777, 867 P.2d at 1159. In doing so, the Supreme Court stated that it could not “ignore the clear purposes of Section 52-5-17: reimbursement and equitable distribution of the risk of loss.” Id. at 778, 867 P.2d at 1160. The way of thinking about reimbursement is that “the employer’s liability for workers’ compensation is reduced by the net amount an employee receives in uninsured motorist benefits under coverage provided by the employer.” Id.
{35} The Court of Appeals, then, interpreted Section 52-5-17(0) in Vigil. We stated that “[t]he Draper case makes it clear that the purpose of Section 52-5-17(0) is to ensure the employer a share of the recovery from UIM proceeds when the employer has provided the UIM coverage.” Id. at 815, 918 P.2d at 731. In Vigil, the UIM insurer sought an offset against UIM benefits (to be paid to Draper) from the amount of unreimbursed workers’ compensation payments left on the table after a settlement of the workers’ compensation issues between the parties. Vigil held that the UIM insurer had no right of reimbursement or offset or liability reduction under Section 52-5-17(0). Vigil read the amendment to end the possibility, left by wording in Continental, that a worker could obtain workers’ compensation benefits without any offset to the employer from proceeds of the employer’s UIM policy. See Vigil at 816, 918 P.2d at 732.
{36} Were it not for the decision in Gutierrez v. City of Albuquerque, 1998-NMSC-027, 125 N.M. 643, 964 P.2d 807, the comfort of the foregoing case and legislative history and the plain wording in Section 52-5-17(0) should fairly easily lead this Court to hold that, in instances in which the employer provides both UIM coverage and workers’ compensation, the employer is entitled to use the proceeds of the employer’s UIM coverage to fully reduce its workers’ compensation liability, that is, to reimburse what the employer has paid and is required to pay in the future.
{37} In Gutierrez, the employee recovered from a third-party tortfeasor, not from the employer’s UIM insurer. Gutierrez interpreted the employer’s reimbursement right under Section 52-5-17(A) from the employee’s third-party tort recovery to be limited based on an apportionment that takes into consideration the employee’s non-workers’ compensation type damages and that correspondingly reduces the employer’s reimbursement. See id. The majority in the present case feels compelled to apply Gutierrez to circumstances in which proceeds from the employer’s UIM coverage, rather than proceeds from a third-party tort recovery, are payable to the employee. Gutierrez was decided in August 1998. No legislative action has yet occurred in response to that decision.
{38} Our Supreme Court’s decisions and legislative acquiescence or agreement to this point in time have resulted in the following current state of the law: An injured employee is entitled under Section 52-5-17(A) to reduce his or her workers’ compensation reimbursement obligation according to Gutierrez methodology, except that, if UIM proceeds are received by the employee from an employer-purchased UIM policy, the employee may retain only that amount of the UIM proceeds which is in excess of the workers’ compensation benefits received and to be received from the employer. The majority now expands this current state of the law to allow further reduction of the employer’s reimbursement by holding that the Gutierrez methodology is to be applied when the employee receives UIM proceeds from the employer’s UIM policy.
{39} Gutierrez did not involve or implicate either UIM coverage or Section 52-5-17(C) in any way; however, Gutierrez is an invitation to determine, as does the majority, that no reasonable distinction should exist between’ tort recovery and UIM recovery and to accordingly apply the Gutierrez methodology. Indeed, it is also enticing to select the broad language of Montoya v. AKAL Security, Inc., 114 N.M. 354, 357, 838 P.2d 971, 974 (1992) regarding the “broader objective ... to achieve an equitable distribution of the risk of loss,” as have Draper and Gutierrez, and as the majority does in the present case, to support a reading of the statute that is not found in its plain language. One cannot disagree with the general philosophy and goal of providing avenues for an injured worker to approach full recovery for his or her injuries. However, the Legislature did purposely amend Section 52-5-17, did enact Section 52-5-17(C), did single out UIM as an exception, and did, plainly, say that: “If the employer paid the premium, the worker ... may not retain any compensation due ... and that amount shall be due to the employer.” (Emphasis added.) And even though Draper nevertheless read this language to mean that the employee is entitled to the excess of the UIM benefit over the workers’ compensation to be reimbursed, I think it more appropriate to leave to our Supreme Court the policy decision to interpret this plain language, contained in a statutory exception that purposely singles out UIM insurance, to say that the employer’s liability will be increased based on the Gutierrez methodology. While I understand the Supreme Court’s goal in Gutieirez, I do not see that decision or its rationale as a mandate that we interpret Section 52-5-17(0) to require that recovery under a UIM policy be analyzed the same as recovery against a third-party tortfeasor. I think that we should leave that up to our Supreme Court to reckon with.
{40} If the employer receives full workers’ compensation reimbursement from UIM proceeds, and the employee receives the remainder, it appears to me that we follow what Subsection (C) says and what Draper holds, and we remain within the “two discrete policies animating Section 52-5-17” noted by the majority: one, prohibition against the employee’s double recovery from the employer and, two, protection of the employer’s right to reimbursement. The result is that the employee does not retain any compensation under the UIM coverage except that which Draper permits. By this result, the Montoya policies recognized by the majority are met. See Montoya, 114 N.M. at 355, 838 P.2d at 972.
{41} The policy behind uninsured motorist coverage is to compensate those persons who have the foresight to protect themselves against a financially irresponsible motorist. See Farmers Alliance Mutual Ins. Co. v. Bakke, 619 F.2d 885, 891 (10th Cir.1980) (quoting Palisbo v. Hawaiian Ins. and Guaranty Co., 57 Haw. 10, 547 P.2d 1350, 1354 (1976)). An employer can reject UIM coverage in liability policies that the employer purchases. See Vigil v. Rio Grande Ins. of Santa Fe, 1997-NMCA-124, ¶ 7, 124 N.M. 324, 950 P.2d 297 (holding that husband who was named insured was bound by wife’s rejection of UIM coverage). Cf. Archunde v. Int’l Surplus Lines Ins. Co., 120 N.M. 724, 727, 905 P.2d 1128, 1131 (Ct.App.1995) (an employee has no claim for UIM coverage against his or her employer’s insurer where the employer does not obtain liability insuranee covering the vehicle that the employee is driving and the employee is not otherwise an insured under the employer’s liability policy). If an employee wants to be protected beyond the amount of UIM coverage purchased by his or her employer, the employee should purchase a greater amount. Cf Mountain States Mutual Cas. Co. v. Martinez, 115 N.M. 141, 143-44, 848 P.2d 527, 529-30 (1993) (“[If] a passenger wishes to be protected beyond the legal liability limit minimum, he or she should purchase a greater amount____”).
{42} In Gutierrez, the Court was concerned that the employer’s construction of the statute “frustrates the legislature’s intent to encourage tort suits where third-party wrongdoers are held responsible.” Id. ¶ 23. Under Section 52-5-17(C), that concern does not exist; in fact, to allow the employer more complete reimbursement from UIM proceeds under a policy the employer purchases can have the effect of encouraging the employer to purchase such coverage.
{43} We cannot assume that an employer’s decision to provide UIM coverage for employees is to make the employee whole. Nor can we divine that the Legislature intended for an employer’s reimbursement to be reduced (i.e., the employer’s workers’ liability obligation to be increased because its reimbursement right is diminished) when the employer chooses not to reject UIM coverage. Rather, it is more reasonable to conclude that one purpose of Subsection (C) is to encourage employers to keep UIM coverage, and perhaps even to obtain coverage above the minimum level, in order (1) to obtain full workers’ compensation reimbursement, and (2) have an excess available for the employee in order to assist the employee’s medical recovery and to get the employee back to work as a productive employee as soon as possible — all in the best interests of the employer.
{44} That Subsection (C) makes a very clear distinction between UIM coverage that the employee pays for and UIM coverage that the employer pays for simply highlights the fact that a reasonable distinction can and should be made between the intended apportionment of proceeds from UIM coverage purchased by the employer, and the intended apportionment of proceeds that the employee recovers from his or her own UIM policy or from a third-party tortfeasor. Thus, employee and employer may well have different incentives in regard to the purchase of UIM coverage. “Public policy does not mandate that we interfere with the balance of these incentives.” Mountain States, 115 N.M. at 144, 848 P.2d at 530.
{45} After Draper and the majority’s decision in the present case, Subsection (C) must now be read as follows:
If the employer paid the [UIM policy] premium, the worker or his legal representative may not only retain the excess of compensation due under Section 66-5-301 NMSA 1978 over workers’ compensation benefits paid or to be paid, but also may retain, in addition, further amounts of such compensation based on the methodology set out in Gutierrez v. City of Albuquerque, 1998-NMSC-027, 125 N.M. 643, 964 P.2d 807.
I submit that this is a far cry from how Subsection (C), an exception to Subsection (A), still looks when one opens the statute book.
{46} I would affirm the WCA’s reimbursement award. I, therefore, respectfully dissent from that part of the opinion that reverses that award.