2018 New Mexico Statutes
Chapter 41 - Torts
Article 4 - Tort Claims
Section 41-4-17 - Exclusiveness of remedy.

A. The Tort Claims Act shall be the exclusive remedy against a governmental entity or public employee for any tort for which immunity has been waived under the Tort Claims Act and no other claim, civil action or proceeding for damages, by reason of the same occurrence, may be brought against a governmental entity or against the public employee or his estate whose act or omission gave rise to the suit or claim. No rights of a governmental entity to contribution, indemnity or subrogation shall be impaired by this section, except a governmental entity or any insurer of a governmental entity shall have no right to contribution, indemnity or subrogation against a public employee unless the public employee has been found to have acted fraudulently or with actual intentional malice causing the bodily injury, wrongful death, property damage or violation of rights, privileges or immunities secured by the constitution and laws of the United States or laws of New Mexico resulting in the settlement or final judgment. Nothing in this section shall be construed to prohibit any proceedings for mandamus, prohibition, habeas corpus, certiorari, injunction or quo warranto.

B. The settlement or judgment in an action under the Tort Claims Act shall constitute a complete bar to any action by the claimant, by reason of the same occurrence against a governmental entity or the public employee whose negligence gave rise to the claim.

C. No action brought pursuant to the provisions of the Tort Claims Act shall name as a party any insurance company insuring any risk for which immunity has been waived by that act.

History: 1953 Comp., § 5-14-15, enacted by Laws 1976, ch. 58, § 15; 1977, ch. 386, § 13; 1982, ch. 8, § 2.

Application of 1977 amendment. — Where an act giving rise to a claim under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] occurred prior to the effective date of the 1977 amendment which added "settlement" to Subsection B, but the injury and settlement occurred after the effective date, the settlement is governed by the amended subsection. Sugarman v. City of Las Cruces, 1980-NMCA-093, 95 N.M. 706, 625 P.2d 1223.

When settlement does not bar suit. — A suit authorized by the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] and brought against the potentially liable governmental entity is not barred by a settlement with one who has no statutory liability to the claimant, nor by a settlement reached with anyone outside the framework of a Tort Claims Act suit. Sugarman v. City of Las Cruces, 1980-NMCA-093, 95 N.M. 706, 625 P.2d 1223.

Two-year statute of limitations applicable to negligence suit involving public utility's employee. — Section 41-4-15 NMSA 1978 of the Tort Claims Act, allowing two years to bring suit, and not the one-year limitation of 37-1-24 NMSA 1978, which refers to the time for bringing suits in negligence against any city, town or village, or any officers thereof, applies to a suit for negligence of a public employee in the operation of a public utility. Cozart v. Town of Bernalillo, 1983-NMCA-053, 99 N.M. 737, 663 P.2d 713.

Simultaneous pursual of § 1983 action not barred. — The New Mexico Tort Claims Act does not prohibit a plaintiff from bringing an action for damages under that act against a governmental entity or public employee where the plaintiff also pursues, by reason of the same occurrence or chain of events, an action against the same entity or employee pursuant to the Federal Civil Rights Act, 42 U.S.C. § 1983. Wells v. County of Valencia, 1982-NMSC-048, 98 N.M. 3, 644 P.2d 517.

Double recovery prohibited. — In those cases where tort damages will constitute a portion of the damages for a deprivation of a constitutional right, general principles against double recovery will prevail. Wells v. Cnty. of Valencia, 1982-NMSC-048, 98 N.M. 3, 644 P.2d 517.

City entitled to "exclusive remedy" provisions. — The operation of a natural gas system, even though beyond the statutory limitations imposed by 3-25-3A(2) NMSA 1978, does not deprive a city of the exclusive right, remedy and obligation provision of the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978]. Cole v. City of Las Cruces, 1983-NMSC-007, 99 N.M. 302, 657 P.2d 629.

Parties. — The exclusive remedy provision in Subsection B did not bar recovery from the state transportation division of the state board of education because plaintiffs settled their claims against defendants connected with a county and school district. Gallegos v. State Bd. of Educ., 1997-NMCA-040, 123 N.M. 362, 940 P.2d 468, cert. denied, 123 N.M. 215, 937 P.2d 76.

Joinder. — Prior to the enactment of Subsection C, there was nothing in the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] which indicated the legislature's intention to disallow a plaintiff bringing an action under the act from joining an insurance company as a party defendant. By drawing a logical inference from the legislature's subsequent enactment of Subsection C, it appears that the legislature realized that without this subsection a plaintiff could join the insurance company and therefore this prompted the 1977 amendment which specifically negated the idea of joinder. England v. N.M. State Hwy. Comm'n, 1978-NMSC-005, 91 N.M. 406, 575 P.2d 96.

In any action which falls within the purview of the Tort Claims Act where the injury occurred between July 1, 1976, and February of 1977, when the 1977 amendments became immediately effective, joinder of an insurance company as a party defendant is allowed. England v. N.M. State Hwy. Comm'n, 1978-NMSC-005, 91 N.M. 406, 575 P.2d 96. (This section was amended by Laws 1977, which contained an emergency clause, Laws 1977, ch. 386, § 23, and was approved April 8, 1977.)

Wrongful decision to perform autopsy. — In an action for damages on the basis of an alleged wrongful decision to perform an autopsy, even if 24-12-4 NMSA 1978, which provides for consent for post-mortem examinations, created a private cause of action, it did not override the state medical investigator's grant of immunity under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978]. Begay v. State, 1985-NMCA-117, 104 N.M. 483, 723 P.2d 252, rev'd on other grounds, Smialek v. Begay, 1986-NMSC-049, 104 N.M. 375, 721 P.2d 1306, cert. denied, 479 U.S. 1020, 93 L. Ed. 2d 727, 107 S. Ct. 677.

Governmental entity not entitled to reimbursement from employee. — A school district was not entitled to reimbursement from an employee of federal funds it lost due to the employee's negligence in failing to comply with federal regulations. Daddow v. Carlsbad Mun. Sch. Dist., 1995-NMSC-032, 120 N.M. 97, 898 P.2d 1235.

Mandamus proceedings not prohibited. — The Tort Claims Act does not interfere with the traditional right to bring a mandamus action against a government official for failure to perform a required duty. Board of Cnty. Comm'rs v. Risk Mgmt. Div., 1995-NMSC-046, 120 N.M. 178, 899 P.2d 1132.

Injunction. — Although the Tort Claims Act would not bar a claim for injunctive relief, an injunction will generally not lie if there is an adequate remedy at law. El Dorado Utils., Inc. v. Eldorado Area Water & Sanitation Dist., 2005-NMCA-036, 137 N.M. 217, 109 P.3d 305.

Law reviews. — For article, "Constitutional Torts and the New Mexico Torts Claims Act," see 13 N.M.L. Rev. 1 (1983).