(dissenting).
I dissent.
It is a sad commentary to write that a workman ofttimes suffers the pangs of outrageous misfortune because his attorney fails to perform that duty required of competent counsel. As a result, an appellate court becomes an advocate on behalf of the workman to see that justice is done. Plaintiff’s brief on this appeal shows that plaintiff was not adequately represented in the trial court as well as on this appeal.
Plaintiff’s complaint alleged that on August 11, 1973, plaintiff sustained an on-the-job accident during the course of his employment. Hartford Insurance Company was then an insurer. Plaintiff continued in his employment until October, 1976, at which time he became disabled by virtue of the accident on August 11, 1973. At the time of disability, Liberty Mutual was the insurer. The complaint was filed on December 7, 1976.
Liberty Mutual filed a motion to dismiss with prejudice because “The Complaint shows on its face that this defendant had no coverage on the date of the accident and that all disability which the plaintiff sustained was caused by the accident.” The district court dismissed plaintiff’s complaint with prejudice because plaintiff’s complaint failed to state a claim for relief. I disagree.
Section 59-10-3, N.M.S.A. 1953 (2d Repl. Vol. 9, pt. 1, 1975 Supp.) provides in pertinent part:
Every . . . policy insuring against liability for compensation . . . shall provide that the insurance carrier . shall be directly and primarily liable to the workman ... to pay the compensation for which the employer is liable; ....
The purpose of workmen’s compensation insurance is to protect the employee from the hazards incident to his occupation, and to protect the employer by having the insurer assume his obligation to pay. An employer’s liability does not arise at the time of an employee’s accident, but at the time that injury results from the accident. When the employer’s liability arises, the insurance carrier agrees to defend the claim for relief and to pay compensation benefits on behalf of the employer according to law.
In order to have the right to compensation, the plaintiff must sustain an injury proximately caused by accident arising out of and in the course of his employment. Section 50-10-6(C), N.M.S.A. 1953 (2d Repl. Vol. 9, pt. 1). “The words ‘accident’ and ‘injury’ are not synonymous.” Pittman v. City Stores, Inc., 204 Tenn. 650, 325 S.W.2d 249, 252 (1959). “Accident is the cause and injury is the effect. It does not follow in every instance that the two occur simultaneously.” [Emphasis by Court]. City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194, 196 (1967). “Accident” is a word that denotes an unlooked for mishap or an untoward event which is not expected or designed, Webb v. New Mexico Pub. Co., 47 N.M. 279, 141 P.2d 333 (1943), and it refers to the cause of the injury and not to the injury itself, Stevenson v. Lee Moor Contracting Co., 45 N.M. 354, 115 P.2d 342 (1941). It has been held that a nonphysical event may constitute an “accident” and the result an “injury.” State Compensation Fund v. Industrial Commission, 24 Ariz. App. 31, 535 P.2d 623 (1975). We have even gone so far as to hold that an “accident” can be a malfunction of the body itself. Ortiz v. Ortiz & Torres Dri-Wall Company, 83 N.M. 452, 493 P.2d 418 (Ct.App.1972).
A compensable “accident” does not arise until a workman suffers an “injury.” The cause of action arises when the injury develops or becomes apparent, and not at the time of the accident. Donaldson v. Calvert McBridge Printing Co., 217 Ark. 625, 232 S.W.2d 651 (1950). In Swallows v. City of Albuquerque, 59 N.M. 328, 330-31, 284 P.2d 216, 218 (1955), the Supreme Court said:
In latent injury cases the workman is not entitled to compensation, nor can there be a failure or refusal to pay until the injury becomes apparent. . . .
******
“ ‘ “* * * It is mere horse sense that the employee can’t be entitled to compensation until the injury resulting from the accident becomes compensable . . ’ ” [Emphasis added]
In the instant case, we are concerned only with the allegations in plaintiff’s complaint. The complaint alleged that on August 11, 1973, plaintiff suffered an accident. There was no allegation of any injury. The complaint did not allege when the injury developed and became apparent, but it did allege that plaintiff became disabled in October, 1976. Disablement follows an injury. At least, until such time as discovery or trial establishes when the injury developed and became apparent, Liberty Mutual has a duty to defend the employer.
Plaintiff’s complaint stated a claim upon which relief can be granted.