Romero v. Shumate Constructors Inc‪.‬

Opinion BIVINS, Judge. We consolidated these appeals to consider NMSA 1978, Section 52-1-22 (Repl. Pamp. 1991), sometimes referred to as the "statutory-employer"
or "contractor-under" provision of the Workers' Compensation Act, NMSA 1978, Section 52-1-1 to -70 (Repl. Pamp. 1991). In
the first case on appeal, Romero v. Shumate Constructors, Inc. , a workers' compensation case, the Administrative Law Judge
(ALJ) granted summary judgment in favor of the general contractor, Shumate Constructors, Inc. (Shumate), and its carrier.
The ALJ determined that Romero's immediate employer, Fay's Painting Company (Fay's), was an independent contractor, and therefore
Shumate was not liable to pay compensation benefits to Romero. Romero appeals that ruling. In the second case on appeal,
Harger v. Structural Services, Inc. , a common law tort action, Harger sued Jaynes Corporation (Jaynes), the primary contractor,
and Structural Services, Inc. (SSI), a subcontractor, for personal injuries suffered while Harger was working for another
subcontractor, Superior Mechanical Contractors, Inc. (Superior). The district court of Bernalillo County granted summary judgment
in favor of Jaynes and SSI. The court determined Jaynes to be a statutory employer and thus immune from suit. SSI was determined
to be a co-employee of Harger and also immune. Because different results occurred under similar facts in these two cases and
because of the confusion emanating from the statutory-employer provision, we consolidated these appeals in order to revisit
this enigmatic section of the Workers' Compensation Act.