This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 DAVID GETER, 7 Plaintiff-Appellant, 8

v. NO. 29,315 9 ST. JOSEPH HEALTHCARE 10 SYSTEMS, INC., a New Mexico 11 Non-Profit Corporation, and 12 CATHOLIC HEALTH INITIATIVES, 13 a Colorado Corporation, 14 Defendants-Appellees. 15 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 16 Clay Campbell, District Judge 17 Jones, Snead, Wertheim & Wentworth, P.A. 18 John V. Wertheim 19 Santa Fe, NM 20 James C. Ellis 21 Albuquerque, NM 22 for Appellant 23 Modrall, Sperling, Roehl, Harris & Sisk, P.A. 24 Lisa Mann 25 Jennifer A. Noya 26 Emil J. Kiehne 27 Albuquerque, NM 282 for Appellees 1

MEMORANDUM OPINION 2 VIGIL, Judge. 3 The issue on appeal is whether it was error for the district court to grant 4 summary judgment in favor of Defendant on Plaintiff’s breach of contract claim based 5 on a provision contained in an employ ee benefits handbook. Assuming without 6 deciding that the handbook created a contract, we conclude that the unambiguous 7 terms of the handbook do not support Plaintiff’s claim. We therefore affirm the 8 district court. 9 BACKGROUND 10 Plaintiff was an employee of Defendant for over ten years. Plaintiff was 11 entitled to receive long-term disability (LTD ) benefits if he became disabled during 12 the course of his employment with Defendant. Plaintiff was diagnosed with Emery13 Dreyfus Muscular Dystrophy during the course of his employment, and applied for 14 LTD benefits with Defendant’s human re sources department. Upon applying for LTD 15 benefits, Plaintiff was provided with the employee benefits handbook at issue in this 16 case. The handbook states that LTD benefits are provided to employees at no cost and 173 that LTD benefits are “equal to 60 percent of [the eligible employ ee’s] base salary to 1 a maximum of $5,000 per month.” The handbook also contains a disclaimer, 24 which states: 1 The information in this handbook is intended as a brief review of the 2 various plan benefits. For more information, see the policies and/or 3 plan documents for the appropriate benefit. In all cases where the 4 policy and/or plan document differ from the information contained 5 in this handbook, the provisions of the policy and/or plan document 6 will govern. Employees are encouraged to pick up and review 7 additional documents beforesigning up for benefits. 8 The LTD insurance policy between Defendant and its insurance provider states that 9 the benefits based on the sixty percent base salary amount are offset by any deductible 10 sources of income. Federal social security disability compensation is included as one 11 of the deductible sources of income. 12 Plaintiff only read the term of the employee handbook which states that LTD 13 benefits are “equal to 60 percent of [the eligible employee’s] base salary to a 14 maximum of $5,000 per month.” He subjectively understood this term to mean that 15 he would receive sixty percent of his base salary in LTD benefits from his insurance 16 without an offset. Relying on his understanding of the LTD provision in the 17 handbook, Plaintiff began the application process to receive benefits through his 18 employee benefits plan. During the appli cation process, Plaintiff was told by an 19 employee of Defendant’s human resources department that he had to apply for federal 20 social security disability before applyi ng for LTD under his employee benefits plan. 215 Plaintiff applied for federal social security disability and was determined to be eligible 1 for such benefits. Plaintiff then stopped working and applied for, and received, LTD 2 benefits through the employee benefits plan. Plaintiff later learned that the sixty 3 percent base salary amount was offset by disability benefits he was receiving from 4 social security. 5 Plaintiff filed a complaint for breach of c ontract or in the alternative promissory 6 estoppel alleging that Defendant breached its enforceable promise that he would 7 receive LTD benefits equal to sixty percent of his base salary without an offset, which 8 he asserted was provided for in the empl oyee handbook. Plaintiff filed a motion for 9 partial summary judgment, and Defendant filed a cross-motion for summary 10 judgment. The district court granted De fendant’s motion for summary judgment and 11 denied Plaintiff’s motion. Plaintiff appeals arguing that summary judgment was 12 improper on the breach of contract claims. Plaintiff does not challenge the summary 13 judgment on his promissory estoppel claims. 14 DISCUSSION 15 Standard of Review 16 “Summary judgment is proper if there are no genuine issues of material fact and 17 the movant is entitled to judgment as a matter of law.” Roth v. Thompson , 113 N.M. 186 331, 334, 825 P.2d 1241, 1244 (1992); see Rule 1-056 NMRA. “We review these 1 legal questions de novo.” Self v. United Parcel Serv., Inc. , 1998-NMSC-046, ¶ 6, 126 2 N.M. 396, 970 P.2d 582. “Interpretation of an unambiguous contract is a question of 3 law which we review de novo.” Nearburg v. Yates Petroleum Corp. , 1997-NMCA4 069, ¶ 7, 123 N.M. 526, 943 P.2d 560. 5 Defendant Did Not Breach the Contract Because the Handbook Was a Summary 6 of the Agreement Which Expressly Inco rporated the More Specific Terms of the 7 Insurance Policy 8 Plaintiff argues that the description of the LTD benefits found in the employee 9 handbook created an unambiguous written promise that Defendant would provide 10 LTD benefits to Plaintiff equal to sixty percent of his base salary without an offset of 11 the amount he received from social security . Plaintiff bases his argument solely on 12 one sentence in the handbook which states th at Defendant will provide LTD benefits 13 equal to sixty percent of base salary while ignoring the disclaimer in the handbook 14 which references the insurance policy. 15 Contrary to Plaintiff’s assertion, princi ples of contract construction require us 16 to consider all the provisions of th e employee handbook together as a harmonious 17 whole. See Crow v. Capitol B ankers Life Ins. Co. , 119 N.M. 452, 457, 891 P.2d 1206, 18 1211 (1995) (stating that “[a]nother basic princi ple of contract construction is that ‘[a] 197 writing is interpreted as a whole’”) (quo ting Restatement (Second) of Contracts § 1 202(2) (1979)); Brown v. Am. Bank of Commerce , 79 N.M. 222, 226, 441 P.2d 751, 2 755 (1968) (stating that “a contract should be interpreted as a harmonious whole to 3 effectuate the intentions of the parties, and every word, phrase or part of a contract 4 should be given meaning and significance according to its importance in context of 5 the contract”); Newberry v. Allied Stores, Inc. , 108 N.M. 424, 428, 773 P.2d 1231, 6 1235 (1989) (considering the complete language used in a personnel manual as well 7 as the employer’s course of conduct and oral representations regarding the manual to 8 determine whether an implied contract wa s created). We acknow ledge that Defendant 9 strongly argues that the handbook did not create a contract in any manner. However, 10 we assume, without deciding, that the handbook created a written contract. In making 11 this assumption, we also review the handbook as a whole to determine the terms of the 12

contract. 13 To the degree that the handbook is a c ontract, the disclaimer specifically 14 includes the insurance policy. The express language of the disclaimer states that 15 “[t]he information in this handbook is intende d as a brief review of the various plan 16 benefits. For more information, see the [po licy] for the appropriate benefit. In all 17 cases where the policy . . . differ[s] from the information contained in this handbook, 188 the provisions of the policy . . . will gov ern.” Thus, under the plain, unambiguous 1 language of the handbook, the insurance policy provides the specific information 2 regarding the coverage, and the policy controls if any language of the handbook 3 conflicts with the policy. See Espinosa v. United of Omaha Life Ins. Co. , 2006- 4 NMCA-075, ¶ 26, 139 N.M. 691, 137 P.3d 631 (“ When a contract or agreement is 5 unambiguous, we interpret the meaning of th e document and the intent of the parties 6 according to the clear language of the doc ument, and we enforce the contract or 7 agreement as written.”). Therefore, the more specific terms of the insurance policy 8 are expressly incorporated into the handbook’s terms, and the social security disability 9 offset provision provided in the insurance policy is included in the complete 10 agreement created by both the handbook and the insurance policy. See Master 11 Builders, Inc. v. Cabbell , 95 N.M. 371, 374, 622 P.2d 276, 279 (Ct. App. 1980) 12 (recognizing the general rule of contract construction that allows two documents to 13 be properly construed together when one doc ument refers to the other). As such, 14 Defendant did not breach the contract by applying the offset to Plaintiff’s LTD 15 benefit. 16 Plaintiff further points out that no evidence exists in the recordthat he read the 17 disclaimer in the handbook. Plaintiff theref ore argues that the disclaimer has no effect 189 on his rights. He relies on DeArmond v. Halliburton Energy Servs., Inc. , 2003- 1 NMCA-148, 134 N.M. 630, 81 P. 3d 573, for the proposition that an at-will employee 2 must have “read or understood” a contractual provision before it can form a part of his 3 “conscious assent” to the terms of employment. Id. ¶¶ 14, 17. However, DeArmond 4 does not apply here. 5 In DeArmond , we relied on general contract law to conclude that by merely 6 continuing to work for his employer, the worker did not agree to a change in the terms 7 of his employment, which required arbitr ation of all work-related problems. We 8 agreed with the worker’s argument that “without a showing thathe knew about the 9 proposed new contract terms, there can beno proof that he accepted the offer.” Id. ¶ 10 14. In this case, there was no modification of an existing contract . Instead, there was 11 an existing benefit. Further, Plaintiff not only knew of the LTD benefits, he actually 12 read at least part of the employee benef its handbook which describe d the benefits, and 13 informed him of the disclaimer. Plaintiff’s statement that he di d not read the entire 14 employee benefits handbook does not estab lish a material issue of fact under 15 DeArmond

. See Smith v. Price’s Creameries , 98 N.M. 541, 545, 650 P.2d 825, 829 16 (1982) (stating that a party to a contract ha s a duty to read and familiarize himself with 17 its contents and that one who enters into a contract is presumed to know the terms of 1810 the agreement and is bound to each of its provisions in the absence of fraud, 1 misrepresentation, or other wrongful act of the other party); Crow , 119 N.M. at 457, 2 891 P.2d at 1211 (concluding that isolating oneprovision from the rest of the contract 3 would “violate the principle that no part of the contract can be isolated and interpreted 4 distinctly from the rest of the contract”). 5 CONCLUSION 6 For the foregoing reasons, we affirm su mmary judgment in favor of Defendant. 7 IT IS SO ORDERED. 8

_____________________________ 9 MICHAEL E. VIGIL, Judge 10 WE CONCUR: 11

_________________________________ 12 MICHAEL D. BUSTAMANTE, Judge 13

_________________________________ 14 RODERICK T. KENNEDY, Judge 15