Brawley v. Bd. of Regents
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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: ___________ 3 Filing Date: December 16, 2015 4 NO. 33,593 5 HEALTHSOUTH REHABILITATION HOSPITAL 6 OF NEW MEXICO, LTD., d/b/a HEALTHSOUTH 7 REHABILITATION HOSPITAL, 8 Plaintiff, 9 v. 10 TERRY A. BRAWLEY, individually, and TERRY A. 11 BRAWLEY as personal representative of the Estate 12 of JOYE BRAWLEY, deceased, 13 Defendants/Third-Party Plaintiffs/Appellants, 14 and 15 THE BOARD OF REGENTS OF NEW MEXICO 16 INSTITUTE OF MINING AND TECHNOLOGY, 17 Third-Party Defendant/Appellee. 18 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 19 Alan M. Malott, District Judge 20 Steven J. Vogel 21 Corrales, NM 1 Janice K. Woods 2 Socorro, NM 3 for Defendants/Third-Party Plaintiffs/Appellants 4 5 6 7 Rodey, Dickason, Sloan, Akin & Robb, P.A. Jocelyn Drennan Edward Ricco Albuquerque, NM 8 for Third-Party Defendant/Appellee 1 OPINION 2 BUSTAMANTE, Judge. 3 {1} Third-Party Plaintiff Terry A. Brawley was severely injured in an accident 4 while riding his all-terrain vehicle. He sought coverage under a health plan provided 5 by his wife’s employer, New Mexico Institute of Mining and Technology (NM Tech). 6 NM Tech denied Brawley’s claims on the ground that Brawley’s injuries were 7 sustained while Brawley was under the influence of alcohol and hence his injuries 8 were excluded from coverage under the terms of the health plan. After a bench trial, 9 the district court found that NM Tech had breached its statutory duty to properly 10 investigate the claims, but also found that Brawley’s injuries were not covered by the 11 health plan because Brawley was under the influence of alcohol at the time of the 12 accident and that the influence of alcohol was “a cause” of the accident. Brawley 13 appeals, arguing that the district court and NM Tech erred in relying on a certain 14 blood alcohol content report and that his claims should be covered under the 15 “concurrent cause” or “independent intervening cause” doctrines. We conclude that 16 Brawley’s evidentiary arguments do not present reversible error and that Brawley 17 failed to preserve his arguments as to causation. We therefore affirm. 1 BACKGROUND 2 {2} On the evening of August 1, 2009, Brawley was drinking in the Mountain View 3 Bar in Lemitar, New Mexico. One of the last to leave, Brawley told the bartender, 4 “my ride is here” as he left the bar. This statement was consistent with Brawley’s 5 testimony, corroborated by other witnesses, that he customarily had friends or 6 colleagues drive him home after he had been drinking. Later that night, Brawley was 7 found unconscious near his all-terrain vehicle (ATV) on an unlighted road between 8 the bar and his home. Brawley apparently had been thrown off the ATV when he 9 encountered a “wash[]out” in the road measuring fifteen feet wide and five feet deep. 10 He suffered extensive injuries, and after being treated for several hours at Socorro 11 General Hospital, was airlifted to the University of New Mexico Hospital in 12 Albuquerque, New Mexico. In total, Brawley was treated at four different hospitals 13 over a period of approximately fourteen weeks. He incurred over $500,000 in charges 14 for this care. 15 {3} Brawley was provided medical benefits through his wife’s employer, 16 Defendant NM Tech. The self-funded Health Benefit Plan (the Plan) was 17 administered for NM Tech by a third-party, HCH Administration (HCH), although 18 NM Tech retained the right of final determination as to any claim made under the 19 Plan and had the power to accept or reject HCH’s recommendations. The Plan was 2 1 subject to the provisions of the New Mexico Insurance Code, NMSA 1978, §§ 59A-12 1 to -61-6 (1978, as amended through 2014). The Plan provides that 3 4 5 6 7 no benefits are payable under [the] Plan for expenses incurred or in connection with . . . injury or sickness sustained . . . while under the influence of alcohol . . . [provided that] there is a direct relationship between [being under the influence of alcohol] and the sickness or injuries sustained. 8 This provision also states that “[f]or purposes of this section, a person shall be 9 presumed to be under the influence of alcohol if his blood alcohol level equals or 10 exceeds the limit for driving under the influence of alcohol as determined by the law 11 of the state in which the [i]njury occurred.” 12 {4} Based on this exclusion, called the “alcohol exclusion” by the parties, HCH 13 denied the Brawleys’ claims related to the accident. In its decision to deny the claims, 14 HCH relied on “the police report and preliminary medical records only.” Neither 15 HCH nor NM Tech contacted Brawley or his wife (collectively, the Brawleys) or the 16 investigating police officer or emergency medical personnel at the accident scene 17 prior to denying the claims. No one from HCH or NM Tech went to the accident 18 scene to investigate the accident. Finally, HCH and NM Tech did not interview the 19 Mountain View Bar bartender or patrons of the bar, analyze the circumstances of the 20 blood test upon which they relied to assure its reliability, talk with Brawley’s medical 21 care providers, or follow up on the issuance and later dismissal of the DWI citation 3 1 issued to Brawley after the accident. The district court found that these steps would 2 have constituted a reasonable inquiry under the circumstances. 3 {5} The present matter was initiated when HealthSouth Rehabilitation Hospital of 4 New Mexico, Ltd., d/b/a HealthSouth Rehabilitation Hospital (HealthSouth), sued the 5 Brawleys to recover the amount of their bills unpaid by NM Tech. The Brawleys filed 6 an answer and third-party complaint naming HealthSouth and NM Tech as third-party 7 defendants. The complaint alleged breach of contract, bad faith, violation of the 8 Insurance Code, and violation of the Unfair Practices Act, NMSA 1978, §§ 57-12-1 9 to -26 (1967, as amended through 2009). The Brawleys also sought a declaratory 10 judgment establishing that their claims are covered under the Plan. 11 {6} HealthSouth was dismissed from suit based on a settlement agreement and the 12 matter proceeded to a bench trial against NM Tech. At trial, the Brawleys tendered 13 testimony by an accident reconstructionist who opined that the washout was the sole 14 cause of the accident and an insurance expert who testified that NM Tech failed to 15 properly investigate the accident and, more specifically, whether Brawley’s alleged 16 intoxication had a “direct relationship” to the accident. NM Tech presented testimony 17 by its own insurance expert who testified that HCH and NM Tech properly denied the 18 claims based on a medical report showing Brawleys’ blood alcohol level and that no 4 1 further investigation was required. The parties stipulated that the amount remaining 2 unpaid was $308,391.89. 3 {7} The district court entered a number of findings of fact. First, it found that “[a] 4 blood test performed some time after the crash, and after . . . Brawley had been 5 hospitalized, indicated that he had a blood alcohol level nearly double the New 6 Mexico threshold for a presumption of intoxication” and that “[t]his was confirmed 7 by the testimony of [NM Tech’s witness].” As to the alcohol exclusion, the district 8 court found that, although the phrase “direct relationship” is not defined in the Plan, 9 “[t]he parties have uniformly and consistently represented to the [c]ourt, and to each 10 other, that the ‘direct relationship’ [required by the provision] is functionally the same 11 as causation.” The district court rejected the expert testimony to the effect that the 12 washout was the sole cause of the accident and found that “Brawley’s alcohol use on 13 the night of [the accident] was a cause of the ATV crash in which he was injured, and 14 which generated the medical bills at [the] root of this litigation.” As discussed above, 15 the district court found that neither HCH nor NM Tech undertook a reasonable 16 investigation into the Brawleys’ claims. It also found that the Brawleys “did not 17 suffer any actual damages as a result of NM Tech’s . . . lack of an appropriate 18 thorough and complete investigation into the [accident] . . . prior to the denial of 19 medical benefits at issue.” See § 59A-16-30 (stating that a person “who has suffered 5 1 damages as a result of a violation of [the Insurance Code] by an insurer or agent is 2 granted a right to bring an action in district court to recover actual damages”). The 3 district court did not enter findings of fact specifically addressing the Brawleys’ 4 common law bad faith claim or request for punitive damages. The Brawleys make no 5 argument on appeal as to the district court’s failure to address their common law bad 6 faith claim or their request for punitive damages under that claim.1 7 {8} Based on its findings, the district court concluded that NM Tech “violated [t]he 8 Insurance Code by failing to have a licensed adjustor[,] and by failing to adopt and 9 implement a reasonable plan for the appropriate investigation of claims in general and 10 as to the Brawley claims in specific.” Second, the court concluded that 11 “[n]otwithstanding [NM Tech’s] violation of the Insurance Code,” the denial of 12 benefits to the Brawleys was appropriate because there was sufficient evidence that 13 the accident bore a “direct relationship” to Brawley’s “ingestion of alcohol” and was 14 otherwise supported by sufficient evidence. The court entered judgment in favor of 15 NM Tech. 16 17 18 19 20 21 1 The Brawleys did not argue below nor do they argue on appeal that the exclusion at issue here is contrary to public policy. The district court noted that “[w]hile [it had]concerns about the enforceability of such broad exclusionary language, neither party has put the validity or enforceability of [the alcohol] exclusion before the [c]ourt in this matter and it is not, then, considered.” Likewise, we do not consider the public policy implications of the alcohol exclusion. 6 1 DISCUSSION 2 {9} On appeal, the Brawleys argue that the judgment must be reversed for two 3 reasons. First, they argue that it was error for NM Tech and/or the district court to 4 rely on an inadmissible document as evidence that Brawley was under the influence 5 of alcohol and that, without this document, there was insufficient evidence that 6 Brawley was under the influence of alcohol at the time of the accident. Second, they 7 argue that, even if alcohol use and resultant impairment was a cause of the accident 8 as the district court found, the district court erred in its application of the law of 9 causation in insurance cases. We address each of the Brawleys’ arguments in turn. 10 A. The District Court’s Admission of Exhibit B is Not Reversible Error 11 “We review the admission or exclusion of evidence for abuse of discretion.” {10} 12 Progressive Cas. Ins. Co. v. Vigil, 2015-NMCA-031, ¶ 13, 345 P.3d 1096 (internal 13 quotation marks and citation omitted), cert. granted, Progressive v. Vigil, 201514 NMCERT-003, 346 P.3d 1163. “[W]hen there is no evidence that necessary 15 foundational requirements are met [for admission of evidence], an abuse of discretion 16 occurs.” State v. Gardner, 1998-NMCA-160, ¶ 5, 126 N.M. 125, 967 P.2d 465. The 17 focus of the Brawleys’ argument is a document showing Brawley’s blood alcohol 18 level (Exhibit B). Exhibit B was apparently generated by a medical care provider, not 19 the state laboratory division. The Brawleys argue that Exhibit B should not have been 7 1 admitted at trial because NM Tech failed to provide a foundation for it and to show 2 that the blood draw and test were consistent with the Implied Consent Act. See 3 NMSA 1978, §§ 66-8-105 to -112 (1978, as amended through 2015). 4 {11} NM Tech argues that the Brawleys’ argument was not preserved either because 5 they failed to timely object to testimony about Exhibit B or because the objections 6 made at trial differ from the issue raised on appeal. We disagree. The Brawleys 7 objected to admission of Exhibit B, first stating that Exhibit B was hearsay, then 8 arguing that “there is no basis that can be established” and “[t]here is no medical 9 doctor here that withdrew the blood [and t]here’s no nurse that withdrew the blood.” 10 Furthermore, the Brawleys went on to argue that “under the Implied Consent Act, 11 there are numerous provisions that must be followed in the extraction of blood. And 12 so we cannot authenticate this document as to whether or not the blood was 13 withdrawn pursuant to the Implied Consent Act.” In addition to these statements at 14 trial, the Brawleys requested a finding of fact invoking (although not naming) the 15 Implied Consent Act and associated regulations. See, e.g., § 66-8-109(A) (stating that 16 blood samples may be taken only by authorized personnel); NMAC 7.33.2.15(A) 17 (4/30/2010) (setting out the requirements for blood sample collection). They also 18 requested a conclusion of law stating that “[t]he blood draw evidence is excluded for 19 failure to meet statutory, foundational[,] and authenticity requirements.” We conclude 8 1 that the Brawleys’ arguments as to the foundational requirements for Exhibit B were 2 adequately presented to the district court and were preserved for appeal. 3 {12} However, the applicability of the alcohol exclusion does not depend on a 4 certain blood alcohol level. Rather, the provision states that benefits are not payable 5 for injuries sustained while “under the influence of alcohol.” The provision’s 6 reference to state law as to the “legal limit” for driving under the influence merely 7 describes a condition under which the insured may be presumed to be under the 8 influence of alcohol. The next sentence of the provision further states that “a person 9 may be considered to be under the influence of alcohol . . . if objective evidence 10 suggests such condition[.]” Here, even if the district court’s finding that Brawley’s 11 blood alcohol content was “nearly double the New Mexico threshold for a 12 presumption of intoxication” was based on improperly admitted evidence, we 13 conclude that other evidence supports the district court’s implicit finding that 14 Brawley was under the influence of alcohol at the time of the accident. See 15 Stephenson v. Dale Bellamah Land Co., 1969-NMSC-147, ¶ 7, 80 N.M. 732, 460 16 P.2d 807 (“We have held, and here reiterate, that error [in the admission of evidence], 17 if it was error, will not be considered to require reversal unless no other admissible 18 evidence substantially supporting the court’s findings is present.”) 9 1 {13} The district court found that Brawley was drinking in the Mountain View Bar 2 the evening before the accident and “was one of the last persons to leave the bar.” 3 This finding is supported by testimony to the effect that Brawley arrived at the bar 4 around 9 p.m. on August 1, 2009, and consumed “maybe four shots of Crown 5 Royal[,]” and testimony that Brawley left the bar at about 10:15 p.m. One of the 6 emergency medical personnel who attended Brawley at the accident scene stated that 7 he suspected alcohol was involved because he smelled alcohol on Brawley’s person. 8 The Brawleys’ accident reconstructionist testified that Brawley was not “in any shape 9 to drive the [ATV]” and that Brawley was “above the .08 limit.” Dr. Alois Treybal, 10 who was admitted as an expert “in the context of family practice as applied to 11 traumatic brain injury[,]” reviewed a medical record dated August 2, 2009, at 5 a.m. 12 indicating that Brawley had a blood alcohol level of .26 and testified that this level 13 “would be an intoxicating [level].” This medical record was admitted into evidence 14 as well. 15 {14} Taken together, this evidence supports a reasonable inference that Brawley was 16 under the influence of alcohol when he left the bar on his ATV and that consequently 17 his driving ability was impaired. See State v. Baldwin, 2001-NMCA-063, ¶ 16, 130 18 N.M. 705, 30 P.3d 394 (stating that “human experience guides us in deciding whether 19 . . . an accused likely had the ability to drive an automobile in a prudent manner 10 1 within a reasonable time before or after [he] is observed in a state of intoxication”); 2 Toynbee v. Mimbres Mem’l Nursing Home, 1992-NMCA-057, ¶ 16, 114 N.M. 23, 3 833 P.2d 1204 (“On appeal, a reviewing court liberally construes findings of fact 4 adopted by the fact finder in support of a judgment, and such findings are sufficient 5 if a fair consideration of all of them taken together supports the judgment entered 6 below.”). 7 {15} The district court also found that “Brawley’s alcohol use2 . . . was a cause of 8 the ATV crash in which he was injured[.]” This finding is a reasonable inference from 9 the evidence as well. The accident reconstructionist agreed with NM Tech that 10 alcohol use could “affect reaction and reflex time” and that “[p]ersons who are 11 intoxicated have longer perception and reaction times.” The accident reconstructionist 12 also testified that any person, sober or not, would have had the accident. But the 13 investigating officer testified that a neighbor, who knew Brawley had been drinking 14 in the bar and who heard Brawley passing his house on the ATV, followed Brawley 15 “to make sure that he will do all right . . . because he thought Mr. Brawley [was] 16 17 18 19 20 2 The Brawleys argued at oral argument before this Court that the district court found only that Brawley had used alcohol and failed to find that he was “under the influence” of alcohol as the alcohol exclusion requires. Considering the findings together and in context, we conclude that the district court’s findings indicate that it found that Brawley was “under the influence” of alcohol at the time of the accident. 11 1 intoxicated.” This individual apparently did not have an accident at the washout. 2 Finally, counsel for NM Tech and Brawleys’ insurance expert had the following 3 exchange on cross-examination: 4 5 6 Q: [Y]ou concluded [on direct examination] with the statement . . . that, based on the washout alone, alcohol was not a cause of the accident. 7 8 A: Well, if that’s what I said, I didn’t mean to. It’s not the only cause of the accident. 9 {16} Considering this evidence in the light most favorable to the district court’s 10 decision, we conclude that it supports the district court’s conclusion that “Brawley’s 11 injuries . . . bore a ‘direct relationship’ to his ingestion of alcohol at the Mountain 12 View Bar prior to the ATV crash.” See Tartaglia v. Hodges, 2000-NMCA-080, ¶ 27, 13 129 N.M. 497, 10 P.3d 176 (stating that, in reviewing the district court’s findings 14 after a bench trial, “we view the evidence in a light most favorable to the decision 15 below, we resolve all conflicts in the evidence in favor of that decision and . . . 16 disregard evidence to the contrary, we defer to the trial court in regard to the 17 weighing of conflicting evidence, and we indulge every presumption to sustain the 18 judgment of the trial court”). “There being substantial admissible evidence to support 19 the court’s findings, whether or not inadmissible evidence [e.g., Exhibit B] was 20 admitted is not material[] and did not constitute reversible error.” Stephenson, 196921 NMSC-147, ¶ 7. 12 1 B. The Brawleys’ Causation Theories Were Not Preserved for Appeal 2 “Every litigated case is tried at least three times: there is the trial the attorneys {17} 3 intended to conduct; there is the trial the attorneys actually conducted; and there is 4 the trial that, after the verdict, the attorneys wished they had conducted.” Gracia v. 5 Bittner, 1995-NMCA-064, ¶ 1, 120 N.M. 191, 900 P.2d 351. On appeal, our review 6 is limited to the case actually litigated below. See In re T.B., 1996-NMCA-035, ¶ 13, 7 121 N.M. 465, 913 P.2d 272 (“[W]e review the case litigated below, not the case that 8 is fleshed out for the first time on appeal.”). This principle governs our analysis of the 9 Brawleys’ causation arguments. 10 {18} The district court found that the term “direct relationship” was not defined in 11 the Plan and that the parties “represented to the [c]ourt, and to each other,” that the 12 meaning of “direct relationship” in the alcohol exclusion “is functionally the same as 13 causation.” It appears that the district court was referring to the definitions of 14 causation in Uniform Jury Instructions 13-305 or 13-1709. UJI 13-305 NMRA states: 15 16 17 18 19 20 21 22 23 24 An [act] [or] [omission] [or] [ __________ (condition)] is a “cause” of [injury] [harm] [__________ (other)] if[, unbroken by an independent intervening cause,] it contributes to bringing about the [injury] [harm] [__________ (other)] [, and if injury would not have occurred without it]. It need not be the only explanation for the [injury] [harm] [__________ (other)], nor the reason that is nearest in time or place. It is sufficient if it occurs in combination with some other cause to produce the result. To be a “cause”, the [act] [or] [omission] [or] [__________ (condition)], nonetheless, must be reasonably connected as a significant link to the [injury] [harm]. 13 1 (Fourth emphasis added.) UJI 13-1709 NMRA, being one part of the instructions 2 addressing both common-law and statute-based unfair practices claims in insurance 3 cases, states that “[a] cause of a loss is a factor [that] contributes to the loss and 4 without which the loss would not have occurred. It need not be the only cause.” 5 (Emphasis added.) The district court’s holding that coverage was precluded because 6 alcohol was “a cause” of the accident is consistent with these two tort-based 7 definitions. No objections to this finding were filed in the district court. In addition, 8 the parties did not dispute this finding in the appellate briefs or during oral argument 9 before this Court. 10 {19} There are two problems with this approach. To begin with, causation principles 11 in tort law are different from causation principles in insurance law because “the two 12 systems examine the causation question for fundamentally different purposes. In tort, 13 it is to assess fault for wrongdoing. In insurance, it is to determine when the operative 14 terms of a contractual bargain come into play.” Erik S. Knutsen, Confusion About 15 Causation in Insurance: Solutions for Catastrophic Losses, 61 Ala. L. Rev. 957, 968 16 (2010); Knutsen, supra, at 969-70 (stating that “[i]nsurance causation therefore bears 17 little resemblance to the policy-laden proximate cause analysis of tort law”); see also 18 Standard Oil Co. of N.J. v. United States, 340 U.S. 54, 66 (1950) (Frankfurter, J., 19 dissenting) (“[T]he subtleties and sophistries of tort liability for negligence are not 14 1 to be applied in construing the covenants of [an insurance] policy.”); Allstate Ins. Co. 2 v. Smiley, 659 N.E.2d 1345, 1354 (Ill. App. Ct. 1995) (declining to follow a case 3 because its holding “introduc[ed] . . . tort principles into the interpretation of an 4 insurance policy”); Robert H. Jerry II, Understanding Insurance Law, 502 (2d ed. 5 1996) (stating that “many courts have explicitly stated that the proximate cause test 6 is not the same in tort law and insurance law”). 7 {20} Moreover, by relying on tort-based definitions of causation, the parties and the 8 district court essentially construed the phrase “direct relationship” in the way most 9 favorable to the insurer, not the insured, contrary to the general rule that “an 10 insurance policy which may reasonably be construed in more than one way should be 11 construed liberally in favor of the insured.” Battishill v. Farmers All. Ins. Co., 200612 NMSC-004, ¶ 17, 139 N.M. 24, 127 P.3d 1111 (internal quotation marks and citation 13 omitted). Indeed, it is not clear to us what the phrase “direct relationship” actually 14 means in the context of the alcohol exclusion. Assuming that the “relationship” 15 required is a causal one, does the phrase encompass any contributing cause of the 16 injuries as the parties appear to have agreed and the district court found? Or does the 17 word “direct” mean that the excluded cause must be the dominant cause or the 18 immediate cause of the injuries? There are a myriad of cases defining the word 19 “direct” in the context of insurance policy provisions—some equating it with 15 1 “proximate cause” and others stating that a “direct loss” is “more than proximate 2 cause . . . [and] that the loss must flow immediately, either in time or space.” 3 Allan 3 D. Windt, Insurance Claims and Disputes § 11:22C n.3 (6th ed. 2015) (collecting 4 cases). 5 {21} In spite of these problems with the district court’s approach to causation in this 6 context, our review does not depend on resolution of them because neither party 7 identifies the district court’s finding as error. See State v. Joanna V., 2003-NMCA8 100, ¶ 7, 134 N.M. 232, 75 P.3d 832 (stating that this Court’s primary role is to 9 correct trial court error, “not to arrive at a conclusion we believe would be just by 10 deciding issues that were not raised below”). Instead, the Brawleys have accepted the 11 district court’s finding and argue only that the district court misconstrued its legal 12 effect. Hence, we turn to that argument next. 13 {22} The Brawleys argue that, even if Brawley’s alcohol use was “a cause” of the 14 accident, the district court nonetheless erred in concluding that the alcohol exclusion 15 precluded coverage. They posit two bases for this argument. First, they rely on the 16 principle of “concurrent causation” to maintain that the claims should be covered. 17 Generally, under the concurrent cause rule, “coverage should be permitted whenever 18 two or more causes do appreciably contribute to the loss and at least one of the causes 19 is a risk [that] is covered under the terms of the policy.” Steven Plitt, et al., 7 Couch 16 1 on Insurance 3d, § 101:55, at 101-104 to 101-105 (Rev. ed. 2013). Second, they 2 argue that the washout was an independent intervening cause of the accident, i.e., “the 3 washout was an unforeseeable force of nature that intercepted and interrupted the 4 normal progression of causation.” See UJI 13-306 NMRA (“An independent 5 intervening cause interrupts and turns aside a course of events and produces that 6 which was not foreseeable as a result of an earlier act or omission.”). They maintain 7 that since the washout was an independent intervening cause of the accident, the 8 claims should be covered. 9 {23} But these arguments were not preserved for appeal. The only mention of the 10 concurrent cause doctrine during the trial occurred in the testimony of the Brawleys’ 11 insurance expert, Professor Allen. On appeal, the Brawleys point to that testimony as 12 evidence that the theory was raised. Assuming arguendo that an argument can be 13 preserved solely through witness testimony, we conclude that Professor Allen’s 14 testimony was insufficient to “alert[] the district court as to which theories [the 15 Brawleys were] relying on in support of [their] argument in order to allow the district 16 court to make a ruling thereon.” State v. Janzen, 2007-NMCA-134, ¶ 11, 142 N.M. 17 638, 168 P.3d 768; State v. Miller, 1997-NMCA-060, ¶ 8, 123 N.M. 507, 943 P.2d 18 541 (holding that an issue was not preserved where the state “ ‘elicited facts’ 19 supporting its theories” but did not “present[] any of [the related] legal principles or 17 1 arguments to the trial court”). Indeed, Professor Allen used the phrase “concurrent 2 causation” only twice in his entire testimony. He stated, “This case involves what we 3 call in the insurance industry concurrent causation; that is, there’s a ditch, a washout. 4 That’s a potential cause of this injury or accident. And intoxication is a potential 5 cause.” Professor Allen went on, “So you got to figure out which one was it, or is it 6 both, concurrent causation, and it’s hard.” Although Professor Allen elsewhere stated 7 that the “direct relationship” clause in the alcohol exclusion “connotes causation” and 8 that the alcohol use “has to make a contribution [to the accident,]” he never stated the 9 concurrent causation rule in full. Indeed, he seemed to invoke several different 10 causation theories when he stated, “So if you have two contributing causes, it just gets 11 real complicated. One thing you could try to do is allocate between the two. That 12 would be awfully hard. The other possibility is, if there are two, you could allocate 13 it to either one, and you have to allocate it to the one that most favors the insured, 14 because it’s an exclusion, and you have to do that narrowly.” Cf. Mark M. Bell, A 15 Concurrent Mess and A Call for Clarity in First-Party Property Insurance Coverage 16 Analysis, 18 Conn. Ins. L.J. 73, 75-76 (2012) (stating that courts have employed four 17 different approaches to analyzing concurrent causes but “routinely refer to each 18 approach as the ‘concurrent cause doctrine’ ”). In addition, there were no opening or 19 closing arguments, and the Brawleys never argued this theory to the district court. 18 1 Neither did the Brawleys request a finding or conclusion based on the concurrent 2 causation doctrine. The district court thus was never apprised of the concurrent 3 causation doctrine nor asked to rule on it. The Brawleys’ concurrent causation 4 argument was not preserved for appeal. See Spectron Dev. Lab. v. Am. Hollow Boring 5 Co., 1997-NMCA-025, ¶ 32, 123 N.M. 170, 936 P.2d 852 (noting that general 6 principles of preservation prohibit the raising of new theories on appeal). 7 {24} Finally, the Brawleys argue that their independent intervening cause argument 8 was preserved through testimony of their two experts, who testified that the washout 9 was the cause of the accident. We do not agree because, like their concurrent 10 causation argument, the Brawleys never elicited a ruling from the district court on this 11 particular theory. They did not request a finding of fact or conclusion of law citing 12 the independent intervening cause doctrine or the UJI defining it, and the phrase 13 “independent intervening cause” was never mentioned at trial. See UJI 13-306. “To 14 preserve an issue for review on appeal, it must appear that appellant fairly invoked 15 a ruling of the trial court on the same grounds argued in the appellate court.” Benz v. 16 Town Ctr. Land, LLC, 2013-NMCA-111, ¶ 24, 314 P.3d 688 (internal quotation 17 marks and citation omitted). The Brawleys having failed to do so, we conclude that 18 this argument also was not preserved for appeal. 19 1 CONCLUSION 2 {25} We conclude that even if Exhibit B was improperly admitted at trial, the district 3 court’s findings were supported by sufficient other evidence. We also conclude that 4 the Brawleys’ arguments as to concurrent causation and independent intervening 5 cause were not preserved and decline to address them. We affirm. 6 {26} IT IS SO ORDERED. 7 8 __________________________________ MICHAEL D. BUSTAMANTE, Judge 9 WE CONCUR: 10 ___________________________________ 11 JONATHAN B. SUTIN, Judge 12 13 TIMOTHY L. GARCIA, Judge 20
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