Ortega v. Johnson

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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 PHILLIP ORTEGA, 3 Plaintiff-Appellant, 4 v. NO. 35,437 5 GERALDINE C. JOHNSON, FIELD 6 CLAIMS REPRESENTATIVE, FARMERS 7 INSURANCE COMPANY OF ARIZONA, 8 Defendants-Appellees. 9 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 10 David K. Thomson, District Judge 11 Phillip Ortega 12 Santa Fe, NM 13 Pro Se Appellant 14 O’Brien & Ulibarri, PC 15 Daniel O’Brien 16 Albuquerque, NM 17 for Appellees 18 19 WECHSLER, Judge. MEMORANDUM OPINION 1 {1} Appellant, Phillip Ortega, appeals the dismissal of his complaint with prejudice. 2 We issued a notice of proposed summary disposition proposing to affirm. Appellant 3 has responded with a timely memorandum in opposition, which we have duly 4 considered. We remain unpersuaded that our initial proposed disposition was 5 incorrect, and we therefore affirm. 6 DISCUSSION 7 {2} Appellant continues to argue that the district court erred in dismissing his 8 complaint for failing to include the alleged tortfeasor as a party in the lawsuit. [MIO 9 2-3] See Rule 1-019(A) NMRA (discussing joinder of indispensable parties). We 10 review the district court’s decision under Rule 1-019(A) for abuse of discretion. See 11 Little v. Gill, 2003-NMCA-103, ¶ 4, 134 N.M. 321, 76 P.3d 639 (stating that review 12 of a Rule 1-019 dismissal is for abuse of discretion). “An abuse of discretion occurs 13 when a ruling is clearly contrary to the logical conclusions demanded by the facts and 14 circumstances of the case.” Sims v. Sims, 1996-NMSC-078, ¶ 65, 122 N.M. 618, 930 15 P.2d 153. 16 {3} We briefly reiterate the relevant facts. Appellant filed a civil complaint on 17 August 29, 2014, in which he alleged that he was injured as a result of an automobile 18 accident caused by Farmers’ insured and that Farmers was liable for various damages. 19 [RP 1-3] In the complaint, Appellant named only Farmers and Geraldine Johnson, the 2 1 field claims representative, as defendants. Appellant did not include the alleged 2 tortfeasor, Carla Kountoupes, as a party. [RP 1-2] On March 18, 2015, the district 3 court entered an order granting a defense motion to dismiss without prejudice, stating 4 that, pursuant to Little, Appellant did not have a direct cause of action against Farmers 5 and that the case could not proceed without including the alleged tortfeasor as a 6 defendant. [RP 37, 39] The district court ordered that Appellant had thirty days in 7 which to file an amended complaint naming the alleged tortfeasor. [RP 40] Thereafter, 8 Appellant did not file an amended complaint in district court, and, on February 23, 9 2016, the district court entered an order dismissing the case with prejudice. [RP 97] 10 {4} We agree with the district court that dismissal was proper under these 11 circumstances. In Little, this Court held that, in the absence of a direct right to sue the 12 insurance company, an injured third-party cannot maintain an action against a 13 tortfeasor’s insurer without the presence of the tortfeasor or the tortfeasor’s successor 14 or representative in the litigation. See Little, 2003-NMCA-103, ¶ 21; see also Raskob 15 v. Sanchez, 1998-NMSC-045, ¶ 3, 126 N.M. 394, 970 P.2d 580 (stating the general 16 rule that an injured third party ordinarily has no claim directly against the liability 17 insurer of a negligent defendant in the absence of a contractual provision or statute to 18 the contrary). 3 1 {5} In his memorandum in opposition, Appellant attempts to distinguish this case 2 from Little on the basis that, in Little, there was no dispute that the insurance contract 3 did not provide a direct cause of action against insurance company. [MIO 2] Appellant 4 argues that unlike Little, in this case, the insurance contract was not in evidence, and 5 Farmers had the burden to prove that Appellant did not have a direct cause of action 6 against it by introducing the insurance contract into evidence to settle the issue. [MIO 7 2-3] However, as we stated in our notice of proposed summary disposition, a party 8 asserting a claim, in this case Appellant, has the burden to allege facts to establish that 9 a claim exists upon which relief can be granted. See Rule 1-008 (A)(2) NMRA 10 (requiring a pleading which sets forth a claim for relief to contain a short and plain 11 statement of the claim showing that the pleader is entitled to relief); Rule1-012(B)(6) 12 NMRA (allowing motion for dismissal of a complaint for a plaintiff’s failure to state 13 a claim upon which relief can be granted). Little does not stand for the proposition that 14 the insurer has the burden to prove that a third-party has no direct cause of action by 15 introducing its contract with its insured into evidence. To the extent that Appellant 16 sought to assert a direct claim against Farmers, it was his burden to allege the facts 17 that established a direct claim. It was not Farmers’ burden to prove that a direct claim 18 did not exist. See It’s Burger Time v. N.M. Dep’t of Labor, 1989-NMSC-008, ¶ 11, 19 108 N.M. 175, 769 P.2d 88 (“[I]t is well established in New Mexico that the party 4 1 seeking to establish the existence of a fact bears the burden of proof.”); Wallace v. 2 Wanek, 1970-NMCA-049, ¶ 9, 81 N.M. 478, 468 P.2d 879 (stating that the burden of 3 proof is on the party seeking to establish a fact). 4 {6} Appellant also argues that he could not sue the alleged tortfeasor because “the 5 person who caused the crash is not the policyholder and she was allowed to plead no 6 contest and a person who gets to plead no contest can’t be sued.” [MIO 2] However, 7 Appellant’s complaint alleges that the person who caused the crash was Farmers’ 8 insured. [RP 2] We therefore reject this assertion. See Udall v. Townsend, 9 1998-NMCA-162, ¶ 3, 126 N.M. 251, 968 P.2d 341(stating that we will reject an 10 appellant’s statement of the facts where the record shows otherwise). Additionally, 11 Appellant cites no authority for this proposition. See ITT Educ. Servs., Inc. v. N.M. 12 Taxation & Revenue Dep’t, 1998-NMCA-078, ¶ 10, 125 N.M. 244, 959 P.2d 969 13 (stating that this Court will not consider propositions that are unsupported by citation 14 to authority); In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 15 1329 (stating that where a party cites no authority to support an argument, we may 16 assume no such authority exists). 17 {7} Appellant also continues to argue that he had a direct cause of action because 18 Farmers paid for the repairs to his motorcycle. [DS 3] Appellant states that by paying 19 for the repairs to his motorcycle, Farmers was “admitting and accepting liability if 5 1 they were not liable then why pay.” [DS 3; RP 2; MIO 2 ] Again, Appellant has cited 2 no authority either for the proposition that Farmers admitted and accepted liability for 3 the crash by paying for repairs or that its paying for the repairs created a direct cause 4 of action against it. Appellant also states in his memorandum in opposition that he was 5 unable to find any authority to support this position after searching. [MIO 2] We 6 therefore reject this argument. See ITT Educ. Servs., Inc., 1998-NMCA-078, ¶ 10 7 (stating that this Court will not consider propositions that are unsupported by citation 8 to authority); In re Adoption of Doe, 1984-NMSC-024, ¶ 2 (stating that where a party 9 cites no authority to support an argument, we may assume no such authority exists). 10 {8} In his docketing statement, Appellant also raised an issue arguing that he made 11 direct claims against Farmers pursuant to the Trade Practices Fraud Article (TPFA) 12 of the Insurance Code, NMSA 1978, § 59A-16-1 to -30 (1984, as amended through 13 2016). See Hovet v. Allstate Ins. Co., 2004-NMSC-010, ¶ 23, 135 N.M. 397, 89 P.3d 14 69 (holding that the TPFA provides a direct cause of action against an insurer for 15 third-party claimants who are injured by an insurance company’s violation of Section 16 59A-16-20(E)). In our notice of proposed summary disposition, we proposed to hold 17 that Appellant could not bring a claim against Farmers for violation of the TPFA 18 because there has been no judicial determination of negligence in favor of Appellant 19 against the insured, as Appellant did not sue the insured for negligence. See Hovet, 6 1 2004-NMSC-010, ¶ 26 (holding that a third-party claimant’s statutory cause of action 2 against the insurer for unfair settlement practices must await the conclusion of the 3 underlying negligence action between the claimant and the insured, and the third-party 4 claimant will not even have an action under Section 59A-16-20(E), unless and until 5 there has been a judicial determination of the insured’s fault and the amount of 6 damages awarded in the underlying negligence action). In his memorandum in 7 opposition, Appellant states that he does not oppose our proposed disposition of this 8 issue, and we therefore affirm the district court’s dismissal of Appellant’s claims 9 under the TPFA. 10 {8} For these reasons, we affirm the district court. 11 {9} IT IS SO ORDERED. 12 13 ________________________________ JAMES J. WECHSLER, Judge 14 WE CONCUR: 15 ________________________________ 16 JONATHAN B. SUTIN, Judge 17 ________________________________ 18 LINDA M. VANZI, Judge 7

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