STATUTE OF LIMITATIONS
- Personal Property4 YearsN.M.S.A. § 37-1-4
- Personal Injury/Death3 YearsN.M.S.A. § 37-1-8
- Breach of Contract/Written6 YearsN.M.S.A. § 37-1-3(A)
- Breach of Contract/Oral4 YearsN.M.S.A. § 37-1-4
- Breachof Contract/Sale of Goods4 YearsN.M.S.A. § 55-2-725
- Statute of Repose/ProductsN/AN/A
- Statute of Repose/Real Property10 YearsN.M.S.A. § 37-1-27*
- Breach of Warranty/U.C.C.4 YearsN.M.S.A. § 55-2-725(1); Fernandez v. Char-Li-Jon, Inc., 888 P.2d 471, 474 (N.M. Ct. App. 1994)
- Workers’ Compensation3 YearsN.M.S.A. § 52-5-17
- Strict Product Liability/Personal Injury3 YearsN.M.S.A. § 37-1-8
- Strict Product Liability/Property Damage4 YearsN.M.S.A. § 37-1-4
Statute of Limitations Exceptions
*10 Years from substantial completion of improvement to real property. N.M.S.A. § 37-1-27.
Contributory Negligence/Comparative Fault
Pure Comparative Fault: Damaged parties can recover even if 99% at fault. Plaintiff’s negligence will reduce right to recovery, but it will not bar that right. Scott v. Rizzo, 634 P.2d 1234 (N.M. 1981).
Med Pay/PIP Subrogation
Med Pay: Yes. Carrier is entitled to subrogation and reimbursement rights against insured. Jimenez v. Foundation Reserve Ins. Co., 757 P.2d 792 (N.M. 1988).
The statute of limitations for subrogation is three (3) years and for reimbursement it is six (6) years. Health Plus of N.M., Inc. v. Harrell, 958 P.2d 1235 (N.M. 1998).
PIP: Coverage not applicable.
Automobile and Property: No applicable statute, Administrative Code provision or case law exists.
Made Whole Doctrine
New Mexico, while not adopting the traditional Made Whole Doctrine as most other states, has come up with a hybrid version of the Made Whole Doctrine. Noting that one persistent criticism of subrogation is that subrogated insurers will seek reimbursement even when the insured tort victim has not been fully compensated for all damages, including pain and suffering. New Mexico recognizes that many states have applied the Made Whole Doctrine, which allows reimbursement only when the insured has been fully compensated. Amica Mut. Ins. Co. v. Maloney, 903 P.2d 834 (N.M. 1995). However, New Mexico has enacted something referred to as the “Doctrine of Equitable Apportionment.” Id. The Doctrine of Equitable Apportionment reduces the amount reimbursed to the subrogated insurer when the insurer’s recovery represents only a portion of the actual damages. Instead of the “all or nothing” effect of the Made Whole Doctrine, a Doctrine of Equitable Apportionment results in a fairer result where the subrogation interest is reduced proportionately to the reduction of the insured’s total claim. Id.
Economic Loss Doctrine
Majority Rule. As between commercial parties where there is no great disparity of bargaining power, the ELD prevents a plaintiff from recovering purely economic damages in tort actions. Utah Int’l, Inc. v. Caterpillar Tractor Co., 775 P.2d 741 (N.M. App. 1989). New Mexico feels such losses are better allocated to warranties and/or insurance. New Mexico has not yet decided whether the ELD applies to non-commercial consumers. The New Mexico Supreme Court has declined to overrule Utah Int’l, Inc. v. Caterpillar Tractor Co., stating that, if it did, “contract law would be subsumed by strict liability and negligence.” In re Consol. Vista Hills Retaining Wall Litig., 119 N.M. at 550, 893 P.2d at 446. The Supreme Court stated it would retain the rule to preserve the bedrock principle that contract damages be limited to those within the contemplation and control of the parties in framing their agreement. The law of contract allows parties to bargain and allocate the risk that the product will self-destruct. As a matter of policy, the parties should not be allowed to use tort law to alter or avoid the bargain struck in the contract. The law of contract provides an adequate remedy. If we overrule Utah Int’l, Inc. v. Caterpillar Tractor Co., contract law would be subsumed by strict liability and negligence. In order to preserve the line between contract law and tort law, the Supreme Court has declined to overrule Utah Int’l Bhandari v. VHA Sw. Cmty. Health Corp., 2011 WL 1336515 (D. N.M. 2011).
The contours of the ELD are uncertain at this point. The ELD “extends beyond the limited context of products liability law and applies to service contracts,” reasoning that the “legal and policy considerations that motivated New Mexico courts to adopt the Economic Loss Rule in the products liability context apply equally to service contracts.” Farmers Alliance Mut. Ins. Co. v. Naylor, 452 F.Supp.2d 1167 (D. N.M. 2006). A case note interpreting the existing law in New Mexico, has stated that it appears that New Mexico’s ELD “precludes recovery of economic loss”: (i) “when there is no great disparity in bargaining power between commercial parties to a contract for the sale of goods and the damages arise from injury of a product to itself”; and (ii) “when the parties to a service contract are sophisticated commercial entities and the tort claim is not based on an independent duty of care.” Daniel M. Alsup, Note, New Mexico’s Economic Loss Rule, Unconscionability Doctrine, and the Gap Between Them: Concepts, Realities, and How to Mend the Gap, 38 N.M. L.Rev. 483 (2008).
Where the lease indicated that the parties failed to agree that one, or both, of them would carry fire insurance, and where there was no specific exculpatory language relieving the tenant from liability for negligence, the tenant was liable for negligently having caused a fire in the leased premises. Acquisto v. Joe R. Hahn Enterprises, Inc., 619 P.2d 1237 (N.M. 1980).
Tort of Intentional Spoliation: The New Mexico Supreme Court has recognized the tort of intentional spoliation of evidence. Coleman v. Eddy Potash, Inc., 120 N.M. 645, 649, 905 P.2d 185, 189 (N.M. 1995) overruled on other grounds, Delgado v. Phelps Dodge Chino, Inc., 34 P.3d 1148 (N.M. 2001). Coleman established the following elements for the tort of intentional spoliation of evidence: (1) the existence of a potential lawsuit; (2) the defendant’s knowledge of the potential lawsuit; (3) the destruction, mutilation, or significant alteration of potential evidence; (4) intent on the part of the defendant to disrupt or defeat the lawsuit; (5) a causal relationship between the act of spoliation and the inability to prove the lawsuit; and (6) damages.
Tort of Negligent Spoliation: The Court in Coleman rejected a separate cause of action for negligent spoliation of evidence. Coleman, 120 N.M. at 650, 905 P.2d at 190 (stating that “adequate remedies exist” under “traditional negligence principles” and relying on “the general expectation that an owner has a free hand in the manner in which he or she disposes of his or her property”).
Adverse Inference: Where the actions of the spoliator fail to rise to the level of malicious conduct or otherwise meet the elements of the tort of intentional spoliation of evidence, New Mexico believes a more appropriate remedy would be a permissible adverse evidentiary inference by the jury in the underlying claim. This evidentiary inference could be accomplished through an instruction to the jury that it is permissible to infer that evidence intentionally destroyed, concealed, mutilated, or altered by a party without reasonable explanation would have been unfavorable to that party. Trial courts, in determining whether to give this instruction, should consider whether the spoliation was intentional, whether the spoliator knew of the reasonable possibility of a lawsuit involving the spoliated object, whether the party requesting the instruction “acted with due diligence with respect to the spoliated evidence,” and whether the evidence would have been relevant to a material issue in the case. Torres v. El Paso Elec. Co., 987 P.2d 386, 401-407 (N.M. 1999).
Sanctions: New Mexico recognizes that spoliation of evidence may result in sanctions. These sanctions include dismissal or adverse inference. Segura v. K-Mart Corp., 62 P.3d 283, 286-87 (N.M. 2002).
Property Damage / Personal Injury. Liability imposed on parents when a child willfully or maliciously injures person, or willfully or maliciously destroys property. N.M.S.A. 1978, § 32A-2-27.
The limit of liability is $4,000.00 plus costs and reasonable attorney’s fees. Child must be under 18-years-old.
Auto Liability. Liability imposed on parents when a child commits willful or negligent acts in operation of motor vehicle and parent signed child’s application for license or permit. N.M.S.A. 1978, § 66-5-11.
There is no limit to liability. Child must be under 18-years-old.
Modified Joint and Several Liability. Pure comparative fault adopted in 1981. This abolished joint and several liability between concurrent tortfeasors. There is only several liability, except intentional torts, vicariously liable defendants, matters involving inherently dangerous activities, and products liability cases. N.M.S.A. § 41-3A-1; Lewis v. Samson, 35 P.3d 972 (N.M. 2001).
Contribution is eliminated between concurrent tortfeasors. Several liability only. No contribution allowed by severally liable defendant. N.M.S.A. § 41-3A-1. If concurrent tortfeasor liable only for his respective share of fault, no need for contribution. Wilson v. Galt, 668 P.2d 1104 (N.M. App. 1983). When successive tortfeasor liability (exception to several liability) or one of the exceptions when joint and several applies (e.g., inherently dangerous activity), joint and several liability applies. The original injury and the subsequent enhancement of the injury must be “separate and causally-distinct injuries.” There must be negligence, causation, and a distinct original injury. Gulf Ins. Co. v. Cottone, 148 P.3d 814 (N.M. 2006). Example: injury followed by negligent medical care. There must be a second, distinct injury or enhancement.
Three (3) years from date contribution plaintiff has either discharged the common liability of the joint tortfeasors by payment, or has paid more than his pro-rata share. N.M.S.A. § 55-3-118; Mora-San Miguel Elec. Co-Op., Inc. v. Hicks & Ragland, 598 P.2d 218 (N.M. App. 1979).
Suspension of Drivers' Licenses
Administrative Suspension: No provisions regarding suspension of driver’s license; however, Department has authority to suspend motor vehicle registration if no valid insurance. N.M.S.A. § 66-5-206. Term of suspension of driver’s license is discretionary. Johnson v. Sanchez, 67 N.M. 41, 45 (1960).
Judgment: Upon default of such agreement, notice is given to the Division who thereafter takes action to suspend the driver’s license of the person in default. N.M.S.A. § 66-5-210. Suspension remains in effect until the driver has paid the balance, or one (1) year has passed and no action at law as to settlement agreement has been filed. N.M.S.A. § 66-5-210.
Contact Information: State of New Mexico, Motor Vehicle Division, Joseph Montoya Building, P.O. Box 1028, 1100 South St. Francis Drive, Santa Fe, NM 87504-1028, (888) 683-4636, http://www.mvd.newmexico.gov/Default.aspx.
Prohibits Additional Insureds. Applies to Construction Contracts. N.M. Stat. § 56-7-1.
Contract can require that party to contract purchase project-specific insurance policy.
Diminution of Value
First Party: The New Mexico Court of Appeals has followed the majority trend toward disallowing recovery for the diminished market value under the terms of plaintiff’s policy of insurance. Davis v. Farmers Ins. Co. of Ariz., 142 P.3d 17 (N.M. App. 2006).
Third Party: New Mexico has held that “damage awards should provide full and just compensation for the injured party”, and that such compensation is tantamount to the concept of making the injured person whole. It has also been stated that the proper measure of damages for personal property damage will be whichever is less – repair costs plus depreciation or reduction in market value. Hubbard v. Albuquerque Truck Ctr. Ltd., 125 N.M. 153 (1998).
One-Party Consent: The reading, interrupting, taking or copying of any message, communication or report is unlawful without the consent of one of the parties to said communication. N.M. Stat. Ann. § 30-12-1(C).
New Mexico statute states that restitution will be made by criminal defendants to the “victims” of the criminal activities, defined as a person who “suffered actual damages as a result” of the above-mentioned criminal activities—and actual damages include all damages a victim might recover in a civil action against the defendant. N.M.S.A. § 31‐17‐1. Due to the fact that an insurer has subrogation rights after payments made to insured, they qualify as a victim in New Mexico case law. State v. Brooks, 862 P.2d 57 (N.M. Ct. App. 1993).
Health and Disability Insurance
Statute of Limitations: 3 Years. N.M.S.A. § 37-1-8.
Subrogation of Medical and Disability Benefits are allowed. Amica Mut. Ins. Co. v. Maloney, 903 P.2d 834 (N.M. 1995). Made Whole and Common Fund apply. Amica Mut. Ins. Co. v. Maloney, 903 P.2d 834 (N.M. 1995).
Funeral Procession Traffic Laws
There are no state laws governing funeral processions.
Statute of Limitations: 3 Years. N.M.S.A. § 52-5-17.
Can Carrier Sue Third Party Directly: No, reimbursement only.
Recovery from UM/UIM Benefits: Employer’s Policy Only.
Subrogation Against Medical Malpractice: Yes?
Subrogation Against Legal Malpractice: Undecided.
Recovery Allocation/Equitable Limitations: Hybrid Made Whole Doctrine: Subrogable. Elements Allocation Required. Employee has burden of proof. Court looks at percentage of each damage element recovered.
Employer Contribution/Negligence: Yes, reimbursement reduced by the percentage of fault.
Attorney’s Fees/Costs: Pro-rata, up to the discretion of the court.
Future Credit: Yes.
Auto No-Fault: No.
Dog Bite Laws
Dog owner will only be found strictly liable if they had prior knowledge of the dog’s vicious propensities, or liable if they were negligent. Smith v. Village of Ruidoso, 128 N.M. 470, 994 P.2d 50 (N.M. 1999).
Employee Leasing Laws
If certain conditions are met, the employee leasing company and the client company are both considered to be employers and immune from third-party actions under the Exclusive Remedy Rule. N.M.S.A. § 60-13A-5 (1978).
Condominium Waiver of Subrogation Laws
Associations must maintain property insurance and liability insurance as to the common elements. Each unit owner must be an insured person under the policy and the insurance company must waive subrogation rights against any unit owner or member of their household. N.M.S.A. § 47-7C-13 (1978).
Automobile Total Loss Thresholds
Total Loss Formula (See HERE for definition).
Insurer determines if it is uneconomical to repair vehicle. N.M.S.A. § 66-1-4.16(C).
Sudden Medical Emergencies While Driving
Sudden Emergency Doctrine not recognized. New Mexico Supreme Court described the instruction as unnecessary, potentially confusing to the jury, and conducive to overemphasizing one party’s theory of the case. Dunleavy v. Miller, 862 P.2d 1212 (N.M. 1993).
No cases using the sudden emergency defense for a medical emergency.
State Sovereign Immunity And Tort Liability
Tort Claims Act: Tort Claims Act. N.M.R.A. §§ 41-4-1 through 41-4-30 (1976).
Notice Deadlines: Written notice must be provided within 90 days after the occurrence. N.M.R.A. § 41-4-16. Action against the State must be brought within two years after the occurrence. N.M.R.A. § 41-4-15.
Claims/Actions Allowed: Tort Claims Act shields the State and public employees from liability for torts except when immunity is specifically waived. N.M.R.A. §§ 41-4-1 and 41-4-4.
Comments/Exceptions: Exclusions to the Tort Claims Act include:
(1) negligence of public employees within the scope of their duties in the operation or maintenance of any motor vehicle, aircraft or watercraft. N.M.R.A. § 41-4-5; and
(2) negligence of public employees within the scope of their duties in the operation or maintenance of any building, public park, machinery, equipment or furnishings. N.M.R.A. § 41-4-6.
See N.M.R.A. §§ 41-4-4 through 41-4-12 for other exceptions.
Damage Caps: Liability of State for a single occurrence shall not exceed:
(1) $200,000 for damage to or destruction of real property;
(2) $300,000 for past and future medical expenses;
(3) $400,000 for all damages other than real property damage and medical expenses; and
(4) total liability for a single occurrence shall not exceed $750,000.
State will not pay punitive damages. N.M.R.A. § 41-4-19.
Recovery of Sales Tax After Vehicle Total Loss
First-Party Claims: No applicable statute, case law, or regulation governing recovery of sales tax. However, New Mexico Public Regulation Commission states that after a cash settlement, the insurer must reimburse the state’s excise tax, any title fees, and any registration charges. http://www.nmprc.state.nm.us/consumer-relations/docs/settlement-total-loss.pdf.
Third-Party Claims: No applicable statute, case law, or regulation governing recovery of sales tax.
Damage to Property Without Market Value
Service Value: “Jasso is entitled to an offset for depreciation on the pole he damaged, to be determined by computing the depreciation recovered by PNM over the 27 years since the pole was originally installed.” Public Service Co. of New Mexico v. Jasso, 635 P.2d 1003 (N.M. Ct. App. 1981).
Intrinsic Value: Where the article lost has no market value, the rule of damages seems then to be its value to the plaintiff; and in ascertaining this value inquiry may be made into constituent elements of the cost to the plaintiff in producing it.” Wilcox v. Butt’s Drug Stores, 35 P.2d 978 (N.M. 1934).
Sentimental Value: “Where the article lost has no market value, the rule of damages seems then to be its value to the plaintiff; and in ascertaining this value inquiry may be made into constituent elements of the cost to the plaintiff in producing it.” Wilcox v. Butt’s Drug Stores, 35 P.2d 978 (N.M. 1934).
Municipal/County/Local Governmental Immunity and Tort Liability
New Mexico Tort Claims Act: N.M.R.A. §§ 41-4-1 through 41-4-30 (1976). The NMTCA applies to all governmental entities and their employees, including “local public bodies” (city, county, etc.). N.M.R.A. § 41-4-2A.
Notice Deadlines: Written notice must be provided to local public body within ninety (90) days after the occurrence. N.M.R.A. § 41-4-16. Action against local public body must be brought within two (2) years after occurrence. N.M.R.A. § 41-4-15.
Claims/Actions Allowed: Immunity is not waived. Tort Claims Act shields local public bodies and their employees from liability for torts except when immunity is specifically waived. N.M.R.A. §§ 41-4-1 & 41-4-4.
Comments/Exceptions: Exceptions to immunity: (1) Operation or maintenance of any motor vehicle, aircraft or watercraft. N.M.R.A. § 41-4-5. (2) Operation or maintenance of any building, public park, machinery, equipment or furnishings. N.M.R.A. § 41-4-6. (3) Operating certain public utilities and services such as gas, electric, water, waste collection or disposal, heating, and ground transportation. N.M.R.A. § 41-4-8. (4) Constructing and maintaining any bridge, culvert, highway, roadway, street, alley, sidewalk, or parking area. N.M.R.A. § 41-4-8. See N.M.R.A. §§ 41-4-4 through 41-4-12 for other exceptions.
Damage Caps: Liability shall not exceed: (1) $200,000 for damage to or destruction of real property; (2) $300,000 for past and future medical expenses; (3) $400,000 for all damages other than real property damage and medical expenses; and (4) total liability for a single occurrence shall not exceed $750,000. Local public body will not pay punitive damages. N.M.R.A. § 41-4-19.
Laws Regarding using Cell Phones/Headphones/Texting While Driving
Cell Phone/Texting: No driver shall read, write, or view a text message on a hand-held device, unless it is an emergency situation. N.M.S.A. § 66-7-374
No state laws on telephone calls.
Other Prohibitions: No Applicable Laws.
Comments: Albuquerque, Santa Fe, Las Cruces, Silver City, Gallup, Taos, Espanola, and Rio Rancho have local ordinances against texting and/or cell phone use while driving.
Workers’ Compensation Claims by Undocumented Employees
Statute: The statute expressly includes “aliens” and their legal status “legal” and “illegal”. N.M. Stat. Ann. § 52-3-3.
Case Law: Gonzalez v. Performance Painting, Inc., 259 P.3d 1098 (N.M. Ct. App. 2011).
Comments/Explanation/Other: Gonzalez held that undocumented workers are not entitled to modifier benefits, even though illegal aliens are not precluded from getting temporary or permanent disability benefits and medical expenses.
Admissibility of Expert Testimony
Admissibility Standards: Daubert
Case/Statutory Law: State v. Alberico, 861 P.2d 192 (N.M. 1993).
Comments: The differences between federal and New Mexico law in applying the Daubert requirements. See Rule 11-702 comm. cmt. 8. New Mexico has not adopted the changes made to the federal rule in 2000 to incorporate the requirements of Daubert.
Imputing Contributory Negligence of Driver to Vehicle Owner
Imputed Contributory Negligence Law: Driver’s contributory negligence is not imputed to owner in action against third party for property damage to vehicle, even if driver/owner is husband/wife. Pavlos v. Albuquerque Nat. Bank, 487 P.2d 558 (N.M. App. 1971).
Vicarious Liability/Family Purpose Doctrine: No Vicarious Liability Statute.
The Family Purpose is recognized in New Mexico based on agency. Madrid v. Shryock, 1987-NMSC-106, 106 N.M. 467, 468, 745 P.2d 375, 376.
Sponsor Liability for Minor’s Driving: N.M.S.A § 66-5-11: Liability imposed on parents when a child commits willful or negligent acts in operation of motor vehicle and parent signed child’s application for driver’s license or permit.
Product Liability Law
Statute of Limitations/Repose: 3 years from injury. N.M.S.A. § 37-1-8 (1978).
Liability Standards: Negligence, Strict Liability, Warranty.
Fault Allocations: Pure Comparative.
Non-Economic Caps/Limits On Actual Damages: No.
Punitive Y/N and Limits: Yes.
Heeding Presumption?: No.
Innocent Seller Statute: No.
Joint and Several Liability: Yes, in Chain of Distribution. N.M.S.A. § 41-3A-1.
Available Defenses: Assumption of Risk; Misuse; Alteration; Learned Intermediary; State of the Art; Sophisticated User; Presumption.
Restatement 2nd or 3rd?: Restatement 3rd
Owner Liability For Stolen Vehicles
Key In The Ignition Statutes: N.M.S.A. § 66-7-353.
Common Law Rule: Liability may be imposed on an owner of a stolen vehicle for negligence and consequent injury or damage to a third party if theft was foreseeable. The court ruled that purpose of N.M.S.A. § 66-7-353 was to prevent inadvertent movement of vehicle and that deterring theft was another purpose and, therefore, an owner who left keys in vehicle could be found negligent under statute. Herrera v. Quality Pontiac, 73 P.3d 181 (N.M. 2003).
An insurer may not subrogate against its own insured. State ex rel. Regents of New Mexico State University v. Siplast, Inc., 877 P.2d 38 (N.M. 1994). An insurer may not be subrogated against a contractor who is insured against damage to his own property under a builder’s risk policy, even though the subcontractor’s negligence may have resulted in a loss to another co-insured. Id. Where a builder’s risk insurance policy was issued to a general contractor to protect against losses to a structure under construction, and the insurer, pursuant to such policy, compensated the general contractor for a loss allegedly caused by the negligence of a subcontractor, the insurer could bring a subrogation action against the subcontractor if the subcontractor is not an insured on the policy. Great American Ins. Co. of New York v. Western States Fire Protection Co., 730 F.Supp.2d 1308 (D. N.M. 2009). Subcontractor was not co-insured under commercial insurance policy issued to general contractor on a project at a public university, and thus insurer was not barred, as subrogee of general contractor, from seeking subrogation from subcontractor for damages the insurer paid and which allegedly flowed from subcontractor’s negligence; the policy at issue contained no provision for coverage of subcontractors and listed only the general contractor as an insured. Id.
Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Authority: N.M. ADC § 12.2.6(12).
Summary: Failure to disclose the use of non-OEM parts by an insurer or repair facility shall be treated as an unfair or deceptive trade practice. If the use of non-OEM parts is not disclosed, the parts shall be assumed to be new, and be warranted as such.