(dissenting).
I cannot agree with the result reached by the majority of the Court in this case.
The New Mexico Workmen’s Compensation Act provides the exclusive remedy against the employer and insurance carrier for the injury suffered by the employee under the facts in this case.
In Williams v. Montano, 89 N.M. 252, 550 P.2d 264 (1976), the Court held that failure to file the policy at any time, even after injury or filing of suit was not substantial compliance with the Workmen’s Compensation Act and therefore the common law action could be brought. We note that in Williams, although the policy was in effect, it was never filed and no other proof was offered that the policy was in fact in existence at any time.
In Mirabal v. International Minerals & Chemical Corp., 77 N.M. 576, 425 P.2d 740 (1967), this Court held that the filing of a workmen’s compensation policy after injury and before actions were commenced was substantial compliance with the Act and therefore no common law negligence action could be brought. The Court said:
The purpose of depriving a non-complying employer of the common-law defenses under an elective act such as ours 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.
Id. at 578, 425 P.2d at 742. The Court said this purpose is met when the policy is acquired and that the late filing did not proscribe the employer’s rights under the Workmen’s Compensation Act. Further the Court said that under these circumstances the employee could show no prejudice to his rights under the Act.
In Quintana v. Nolan Bros., Inc., 80 N.M. 589, 458 P.2d 841 (Ct.App.1969), the court held that a policy obtained prior to the accident, and filed afterwards, but before suits had been filed, was substantial compliance with the Act. The court again reiterated that since the insurance had been provided there could be no contention that the workmen’s compensation claim for death benefits was prejudiced by the delay in filing the policy. The prohibition in the Act against common law negligence actions prevailed since there was substantial compliance.
In the present case, the accident happened on August 8, 1977. The employer had taken out workmen’s compensation insurance but the insurance policy was not filed with the clerk’s office until July 18, 1978. The suits were filed in the United States District Court on June 9 and June 17, 1978.
The purposes of the requirement that a policy be obtained and filed were met: providing insurance coverage for a workman; securing payment of benefits to the injured workman; and providing the employee with the name of the insurance company so that it could be named in the workmen’s claim under the Workmen’s Compensation Act. Furthermore, the injured workman is protected by the policy whether or not the policy is on file. Since these purposes were fulfilled, no prejudice resulted to plaintiff because of the employer’s failure to file the policy.
The only penalty prescribed in the Workmen’s Compensation Act for the failure to file a policy or certificate of insurance is possible criminal prosecution for a misdemeanor punishable by $1,000.00 fine. Section 52-l-56(D), N.M.S.A. 1978 (formerly § 59-10-25, N.M.S.A. 1953). The Act does not grant to an injured workman the right to file a common law negligence action against an employer for failure of the employer to file a policy or certificate of insurance. If the Legislature had intended such a result, it could have easily provided appropriate language in the Act.
Substantial compliance with the law in these cases is sufficient. In determining what constitutes substantial compliance, all of the provisions of the Workmen’s Compensation Act should be taken into consideration. In this case the employer had provided the insurance, had paid weekly compensation, had furnished medical treatment, had negotiated with the plaintiff and his lawyer, and had done everything the Act called for except for filing the policy or certificate in the district court clerk’s office. There was no prejudice unless the preclusion of the common law negligence action can, taken alone, be so categorized.
When the policy filing requirement is read along with the other provisions of the Workmen’s Compensation Act, the Act indicates that it was not the legislative intent to penalize the employer by denying him access to all the defenses available under the law for his mere failure to file the policy or certificate. See Meyer v. Noble Drilling, Incorporated, 259 F.Supp. 110 (1966), and House v. John Bouchard & Sons Co., Inc., 495 S.W.2d 541 (Ct.App.Tenn.1972).
I would certify the following answer to the United States District Court for the District of New Mexico: Based upon the specific facts in this case and the failure of plaintiff to show prejudice, the filing of a policy of insurance or a certificate of proof thereof with the Clerk of the District Court after the date of a claimant’s injuries and after claimant filed suit in federal court seeking common law and statutory remedies other than those provided by the Workmen’s Compensation Act constitutes substantial compliance with § 52-1-4, N.M.S.A. 1978 (formerly § 59-10-3, N.M.S.A. 1953 (Supp.1975)).
Since a majority of my colleagues do not agree, I respectfully dissent.
EASLEY, J., concurs.