2018 New Mexico Statutes
Chapter 59A - Insurance Code
Article 30 - Title Insurance
Section 59A-30-11 - Underwriting standards and record retention.
A. No title insurance policy may be written unless the title insurer or its title insurance agent has caused to be conducted a reasonable search and examination of the title using an abstract plant meeting the requirements of Section 59A-12-13 NMSA 1978 and has caused to be made a determination of insurability of title in accordance with sound underwriting practices. The duty to search and examine imposed by this section is solely for the purpose of enhancing the financial stability of title insurers for the benefit of insureds under title insurance policies. The New Mexico Title Insurance Law is not intended and should not be construed to create any duty to search and examine that runs to the benefit of, or to create any right or cause of action in favor of, any person other than a title insurer.
B. Evidence of the examination of title and determination of insurability shall be preserved and retained in the files of the title insurer or its title insurance agent for a period of not less than fifteen years after the title insurance policy has been issued. Instead of retaining the original evidence, the title insurer or title insurance agent may in the regular course of business establish a system whereby all or part of the evidence is recorded, copied or reproduced by any process that accurately and legibly reproduces or forms a durable medium for reproducing the contents of the original. This subsection shall not apply to:
(1) a title insurer assuming liability through a contract of reinsurance; or
(2) a title insurer acting as coinsurer if one of the other coinsuring title insurers has complied with this section.
History: 1978 Comp., § 59A-30-11, enacted by Laws 1985, ch. 28, § 11; 1999, ch. 60, § 20.
The 1999 amendment, effective June 18, 1999, added the last two sentences of Subsection A.
This section does not bar a claim against a title insurer or its agent that is based on a duty other than the duty of reasonable care in conducting a title search. Barrington Reinsurance Ltd. v. Fidelity Nat'l Title Ins. Co., 2007-NMCA-147, 143 N.M. 31, 172 P.3d 168.
Sufficiency of complaint. — Complaint stating that, as a proximate result of the negligently performed services of a title insurer's agent, a purchaser was compelled to take title to a single parcel subject to a recorded condominium plan and a recorded easement, rather than two parcels as originally represented, alleged sufficient facts to state a tort claim of negligence against the agent. Cottonwood Enters. v. McAlpin, 1991-NMSC-044, 111 N.M. 793, 810 P.2d 812.
Standard of care. — A duty of reasonable care is imposed upon title insurance agents that is independent of any duties or obligations arising out of the contract of insurance. Cottonwood Enters. v. McAlpin, 1991-NMSC-044, 111 N.M. 793, 810 P.2d 812.
The title insurance agent owed a duty of reasonable care to the seller in conducting a title search arising out of the provision of title insurance as prescribed by this section. Even though the title insurance agent had no express contractual duty to perform a title search for the seller and did not undertake to act in any capacity for the seller other than as a closing agent in a real estate transaction, it nevertheless had a statutory duty to the seller independent of any contract. Ruiz v. Garcia, 1993-NMSC-009, 115 N.M. 269, 850 P.2d 972, superseded by statute, Barrington Reinsurance Ltd., LLC v. Fidelity Nat'l Title Ins. Co., 2007-NMCA-147, 143 N.M. 31, 172 P.3d 168.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Title insurer's negligent failure to discover and disclose defect as basis for liability in tort, 19 A.L.R.5th 786.