2019 New Mexico Statutes
Chapter 37 - Limitation of Actions; Abatement and Revivor
Article 1 - Limitations of Actions
Section 37-1-8 - Actions against sureties on fiduciary bonds; injuries to person or reputation.
Actions must be brought against sureties on official bonds and on bonds of guardians, conservators, personal representatives and persons acting in a fiduciary capacity, within two years after the liability of the principal or the person for whom they are sureties is finally established or determined by a judgment or decree of the court, and for an injury to the person or reputation of any person, within three years.
History: Laws 1880, ch. 5, § 5; C.L. 1884, § 1864; C.L. 1897, § 2917; Laws 1909, ch. 60, § 1; Code 1915, § 3350; C.S. 1929, § 83-105; 1941 Comp., § 27-107; 1953 Comp., § 23-1-8; Laws 1975, ch. 257, § 8-115; 1976, ch. 58, § 25.ANNOTATIONS
Compiler's notes. — Laws 1978, ch. 28, § 2, and Laws 1978, ch. 166, § 17, repealed Laws 1976, ch. 58, § 31, which provided that Laws 1976, ch. 58, § 25, which amended this section, would terminate on July 1, 1978.
Cross references. — For limitation applicable to wrongful death actions, see 41-2-2 NMSA 1978.
Severability. — Laws 1976, ch. 58, § 28, provided for the severability of the act if any part or application thereof is held invalid.
Individuals with Disabilities Education Act. — New Mexico's three-year personal-injury statute of limitations, Section 37-1-8 NMSA 1978, applies to the initial request for an impartial due process hearing under §20 U.S.C. 1415(f) of the IDEA. Sanders v. Santa Fe Pub. Schs., 383 F.Supp.2d 1305 (D.N.M. 2004).
Discovery rule applies to claims involving exposure to toxic mold. — The discovery rule, which provides that a cause of action accrues when the claimant knows, or with reasonable diligence should have known, of the injury and its cause, applies to claims of exposure to toxic mold and when a claimant in a toxic mold case experiences physical symptoms that would cause an ordinary person to make an inquiry about the discovery of the cause of the symptoms, that is the point at which the statute of limitations begins to accrue. Gerke v. Romero, 2010-NMCA-060, 148 N.M. 367, 237 P.3d 111, cert. denied, 2010-NMCERT-006, 148 N.M. 582, 241 P.3d 180.
Claim involving exposure to toxic mold. — Where plaintiff rented a home from defendant in May 2003; shortly after moving into the home, plaintiff's health began to deteriorate; the municipal environmental protection agency inspected the home and discovered mold growing on some of the walls; plaintiff vacated the home in October 2004; in 2007, a doctor confirmed that plaintiff's illness was caused by mold; and in November 2007, plaintiff filed a complaint against defendant for damages due to exposure to mold, plaintiff's action was barred by the three year statute of limitations because, as of October 2007, plaintiff was aware of the fact that plaintiff was suffering from an injury, plaintiff suspected that the injury was caused by mold, and, with reasonable diligence, plaintiff could have discovered that the injury was caused by exposure to mold. Gerke v. Romero, 2010-NMCA-060, 148 N.M. 367, 237 P.3d 111, cert. denied, 2010-NMCERT-006, 148 N.M. 582, 241 P.3d 180.
Dismissal without prejudice and reinstatement of complaint. — In a medical malpractice action, where defendant performed eye surgery on plaintiff on April 28, 2003; plaintiff filed a complaint for personal injuries and medical malpractice on April 27, 2006; at the time plaintiff filed the complaint, defendant's insurance carrier had improperly cancelled defendant's insurance; after defendant's insurance company reinstated defendant's insurance, plaintiff and defendant stipulated to an order of dismissal of plaintiff's complaint; on March 20, 2008, the district court interpreted the order of dismissal as a dismissal of plaintiff's complaint, without prejudice, solely for the purpose of permitting plaintiff to obtain a review of the case by the medical malpractice commission; and reinstated plaintiff's complaint, the district court's interpretation of the order of dismissal was not an abuse of discretion and plaintiff's complaint was not barred by the three-year limitation period provided in Section 41-5-13 NMSA 1978, and the three-year limitation period provided in Section 37-1-8 NMSA 1978 stopped running at the time plaintiff filed the complaint on April 27, 2006. Pacheco v. Cohen, 2009-NMCA-070, 146 N.M. 643, 213 P.3d 793, cert. denied, 2009-NMCERT-006, 146 N.M. 733, 215 P.3d 42.
Termination of limitation period after a minor reaches the age of majority. — A minor's lawsuit for personal injuries is not barred until one year after the minor reaches the age of majority or until three years after the accident, whichever computation of time gives the injured minor the most time to act. Gomez v. Chavarria, 2009-NMCA-035, 146 N.M. 46, 206 P.3d 157, cert. quashed, 2009-NMCERT-012, 147 N.M. 601, 227 P.3d 91.
Statutes of limitations apply to both complaints and counterclaims, whether they be compulsory or permissive. Hartford v. Gibbons & Reed Co., 617 F.2d 567 (10th Cir. 1980).
Tort Claims Act statute of limitations applies to states sued in New Mexico courts. — In the interests of comity, New Mexico will extend the tort claims statute of limitations to states with similar tort claims acts when they are sued in New Mexico courts. Sam v. Estate of Sam, 2006-NMSC-022, 139 N.M. 474, 134 P.3d 761.
Meaning of "official bond". — An "official bond" is one made payable to the state for its indemnification in case of wrongdoing on the part of the bonded person, and not one made payable to a private individual. Keeter v. Board of Cnty. Comm'rs, 1960-NMSC-070, 67 N.M. 201, 354 P.2d 135.
Actions by state. — An action by the state against a county collector of taxes, and his surety, to recover back a commission erroneously paid to the collector, is not barred by the statute of limitations unless expressly included in the statute. State v. Roy, 1937-NMSC-026, 41 N.M. 308, 68 P.2d 162.
Three-year statute of limitation does not apply to causes of action lying in contract. — The three-year limitation period under this section does not apply to actions lying in contract. The four-year limitation period under the Uniform Commercial Code, 55-2-725 NMSA 1978, applies to actions for breach of warranty where a party seeks to recover damages for personal injuries. Badilla v. Wal-Mart Stores East, Inc., 2015-NMSC-029, rev'g 2013-NMCA-058, 302 P.3d 747.
The nature of the claim, not the essence of injury, governs which statute of limitation applies. — Where plaintiff, who worked as a tree trimmer, purchased work boots from defendant that purported to meet acceptable occupational safety and health administration standards, and after wearing the boots for several months, a piece of rubber on the sole of the boots became unglued, and while at work cutting down dead tree limbs, the unglued piece of the sole of the boots got caught on debris, causing plaintiff to fall, drop a log on himself, and injure his back, plaintiff claimed that defendant made express and implied warranties about the work boots, that the work boots were not as warranted, that defendant breached a contract for sale of goods, and that plaintiff has the right to recover any damages resulting from defendant's breach of that warranty. The nature of the right plaintiff's claims asserted was the right to receive consequential damages as compensation for defendant's alleged failure to provide plaintiff with boots that conformed with the warranties defendant allegedly made; the nature of plaintiff's claims lie in contract rather than in tort, and therefore plaintiff's cause of action is governed by the four-year statute of limitations under 55-2-725 NMSA 1978 of the Uniform Commercial Code, not the three-year statute of limitation set forth in 37-1-8 NMSA 1978. Badilla v. Wal-Mart Stores East, Inc., 2015-NMSC-029, rev'g 2013-NMCA-058, 302 P.3d 747.
The three-year personal injury statute of limitation of Section 37-1-8 NMSA 1978 applies when the essence of a claim is in tort for personal injury, even though the claim is presented as a breach of warranty under the Uniform Commercial Code. Badilla v. Wal-Mart Stores East, Inc., 2013-NMCA-058, 302 P.3d 747, cert. granted, 2013-NMCERT-005.
Essence of action is controlling. — Where plaintiff, who worked as a tree trimmer, purchased a pair of work boots from defendant, plaintiff wore the boots at work for several months; as the boots wore down, a piece of rubber became unglued and rolled up as plaintiff walked, making it dangerous when working; plaintiff tripped while lifting a large log and was injured; plaintiff was unaware of any defects that made the boots unsafe; and plaintiff sued defendant for breach of warranties seeking to recover damages for plaintiff's injuries, not to recover the cost of boots, the three-year statute of limitation of Section 37-1-8 NMSA 1978, not the four-year statute of limitation of Section 55-2-72 NMSA 1978, applied because plaintiff's personal injury was the basis for the breach of warranty suit. Badilla v. Wal-Mart Stores East, Inc., 2013-NMCA-058, 302 P.3d 747, cert. granted, 2013-NMCERT-005.
Form of action not controlling. — Where action in its effect is one for recovery of damages for personal injury, statute of limitations for injuries to the person applies, even though the cause of action is ex contractu in its nature. Mantz v. Follingstad, 1972-NMCA-164, 84 N.M. 473, 505 P.2d 68; Chavez v. Kitsch, 1962-NMSC-122, 70 N.M. 439, 374 P.2d 497. See also Kilkenny v. Kenney, 1961-NMSC-019, 68 N.M. 266, 361 P.2d 149.
Actions in strict liability in tort. — An action seeking recovery for personal injury under strict liability is governed by the three-year statute of limitations. Fernandez v. Char-Li-Jon, Inc., 1994-NMCA-130, 119 N.M. 25, 888 P.2d 471, cert. denied, 119 N.M. 20, 888 P.2d 466, overruled on other grounds by Romero v. Bachicha, 2001-NMCA-048, 130 N.M. 610, 28 P.3d 1151.
Asbestos exposure under strict liability theory. — An action in strict liability is a tort action and if it concerns personal injuries, it would be controlled by the three-year statute, which begins to run at the time of the wrongdoing and not at the time of the discovery; accordingly, any exposure to asbestos which occurred more than three years before the filing of plaintiff's action would be barred by the statute of limitations. Bassham v. Owens-Corning Fiber Glass Corp., 327 F. Supp. 1007 (D.N.M. 1971).
Breach of warranty of habitability. — Suit against vendor of house for breach of express or implied warranty that the house was fit for habitation, after a dangerous accumulation of carbon monoxide caused plaintiff's wife to become violently sick, was basically a cause of action for injuries to her person, to which this section applied. Chavez v. Kitsch, 1962-NMSC-122, 70 N.M. 439, 374 P.2d 497.
Personal injury limitation not applicable for UCC breach of warranty. — Since the warranty of merchantable goods provisions in 55-2-314 NMSA 1978 specifically apply to the sale of beverages to be consumed on the premises, 55-2-714 NMSA 1978 governs claims arising from such sales; the limitation period for those sales is four years, and this section does not apply. Fernandez v. Char-Li-Jon, Inc., 1994-NMCA-130, 119 N.M. 25, 888 P.2d 471, cert. denied, 119 N.M. 20, 888 P.2d 466, overruled on other grounds by Romero v. Bachicha, 2001-NMCA-048, 130 N.M. 610, 28 P.3d 1151.
Loss of consortium. — This section is the applicable statute for an action brought by husband for medical expenses of deceased wife and loss of consortium. Kilkenny v. Kenney, 1961-NMSC-019, 68 N.M. 266, 361 P.2d 149.
Negligent misrepresentation. — Where claim of negligent misrepresentation arises from the common-law obligations among the parties, not from a contract, the claim cannot be viewed as being founded on a written contract, and it is governed either by the four-year statute of limitations in 38-1-4 NMSA 1978 or by the three-year statute of limitations applicable to negligence actions in this section. Nance v. L.J. Dolloff Assocs., Inc., 2006-NMCA-012, 138 N.M. 851, 126 P.3d 1215.
Accrual from time of injury. — This statute begins to run from the accrual of the cause of action, which in personal injury cases is the time of the injury not the time of the negligent act. New Mexico Elec. Serv. Co. v. Montanez, 1976-NMSC-028, 89 N.M. 278, 551 P.2d 634.
Product liability cases. — Where an individual has been injured by an unsafe or defective product and the resulting injury does not immediately manifest itself, the three-year statute of limitations prescribed in this section commences when a plaintiff knows, or reasonably should know through diligent inquiry, that he or she has been injured. Martinez v. Showa Denko, K.K., 1998-NMCA-111, 125 N.M. 615, 964 P.2d 176.
Application of discovery rule. — Where plaintiff took dietary supplement in 1989 and 1990, began suffering symptoms and received medical opinions and other pharmacological information on the supplement as early as 1990, but did not file her products liability action until 1996, the filing exceeded the three-year period of limitations prescribed by this section, and her cause of action was barred, even though the supplement had not been definitively linked by researchers to a specific disease until 1996. Martinez v. Showa Denko, K.K., 1998-NMCA-111, 125 N.M. 615, 964 P.2d 176.
Section applicable to malpractice. — An action by a patient or the spouse of a patient against a physician and surgeon for injuries sustained by reason of the unskillful or negligent treatment by the physician or surgeon is an action sounding in tort for injuries to the person, and is barred within three years of the date of accrual of the cause of action for the personal injury. Roybal v. White, 1963-NMSC-111, 72 N.M. 285, 383 P.2d 250, overruled on other grounds by Roberts v. Southwest Cmty. Health Servs., 1992-NMSC-042, 114 N.M. 248, 837 P.2d 442.
Legal malpractice. — Where plaintiff knew all the facts underlying his claim for legal malpractice more than four years before filing suit, the claim was time barred under both this section and 37-1-4 NMSA 1978. Delta Automatic Sys., Inc. v. Bingham, 1999-NMCA-029, 126 N.M. 717, 974 P.2d 1174, cert. denied, 126 N.M. 532, 972 P.2d 351.
When § 41-5-22 does not toll this section. — Section 41-5-22 NMSA 1978 of the Medical Malpractice Act (telling of limitation period upon submission of claim to medical panel) does not apply to toll the running of the general limitation period for a personal injury claim (this section), where the act of malpractice has occurred prior to the effective date of the Medical Malpractice Act, February 27, 1976. Loesch v. Henderson, 1985-NMCA-104, 103 N.M. 554, 710 P.2d 748.
Statute not tolled during treatment. — Cause of action for medical malpractice accrued at the time of the wrongful act causing the injury, and the statute of limitations was not tolled during the period of medical treatment. Mantz v. Follingstad, 1972-NMCA-164, 84 N.M. 473, 505 P.2d 68, overruled by Peralta v. Martinez, 1977-NMCA-040, 90 N.M. 391, 564 P.2d 194..
Tolled by doctor's failure to speak. — Defendant-doctor's failure to inform plaintiff that her tubal ligation was incomplete after having had knowledge of that fact tolled the three-year statute of limitations and plaintiff's malpractice suit brought 10 months after the birth of a child was not barred thereby. Hardin v. Farris, 1974-NMCA-146, 87 N.M. 143, 530 P.2d 407.
Silence constituting fraudulent concealment. — In a confidential relationship where there exists a duty to speak, such as in a doctor-patient relationship, mere silence constitutes fraudulent concealment. Hardin v. Farris, 1974-NMCA-146, 87 N.M. 143, 530 P.2d 407.
Tolling for minors and incapacitated persons. — Section 37-1-10 NMSA 1978, regarding minors and incapacitated persons, effectively tolls the provisions of this section. Romero v. N.M. Health & Env't Dep't, 1988-NMSC-073, 107 N.M. 516, 760 P.2d 1282.
Filing of mandatory administrative grievances equitably tolls the statute of limitations. Roberts v. Barreras, 109 Fed. Appx. 224 (10th Cir. 2004).
Section applicable to civil rights action. — An action under 42 U.S.C. § 1983 for excessive use of force during an arrest is not governed by the limitations on actions contained in the Tort Claims Act but by the general statutory limitations on actions for personal injury, this section, or for miscellaneous claims, 37-1-4 NMSA 1978. Gunther v. Miller, 498 F. Supp. 882 (D.N.M. 1980), but see Newcomb v. Ingle, 827 F.2d 675 (10th Cir. 1987).
A civil rights action under 42 U.S.C. § 1983 against a social service agency and an agency of the state for failure to investigate or prevent abuse of mentally incompetent children was subject to the personal injury limitation of this section. Desert State Life Mgt. Servs. v. Association of Retarded Citizens, 939 F. Supp. 835 (D.N.M. 1996), but see Newcomb v. Ingle, 827 F.2d 675 (10th Cir. 1987).
Section provides appropriate limitations period for § 1983 actions. Garcia v. Wilson, 731 F.2d 640 (10th Cir. 1984), aff'd, 471 U.S. 261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985); Walker v. Maruffi, 1987-NMCA-048, 105 N.M. 763, 737 P.2d 544; Jackson v. City of Bloomfield, 731 F.2d 652 (10th Cir. 1984).
Garcia v. Wilson, 731 F.2d 640 (10th Cir. 1984), which applies the statutory period in this section to actions arising under 42 U.S.C. § 1983, is to be applied prospectively only. Jackson v. City of Bloomfield, 731 F.2d 652 (10th Cir. 1984), but see Newcomb v. Ingle, 827 F.2d 675 (10th Cir. 1987).
Section 41-4-15 is applicable to civil rights action. - The two-year period under 41-4-15 NMSA 1978 is the applicable limitation period to claims under the Federal Civil Rights Act, 42 U.S.C. § 1983. DeVargas v. State ex rel. New Mexico Dep't of Cors., 1981-NMCA-109, 97 N.M. 447, 640 P.2d 1327, but see Newcomb v. Ingle, 827 F.2d 675 (10th Cir. 1987).
Federal civil rights case based on conspiracy for malicious prosecution was not time-barred when it was commenced within the three-year limitation period, and the trial judge properly disregarded defendants' characterization of the case as discrete claims and acts and accepted plaintiff's characterization that it was one conspiracy, or a single continuing violation of plaintiff's constitutional rights. Robinson v. Maruffi, 895 F.2d 649 (10th Cir. 1990).
Statutes of repose serve two well-defined purposes: first, by requiring litigation to be commenced within a prescribed period of time the reliability and availability of evidence is assured; second, both defendants and the courts, are protected from the burdens necessarily entailed in protracted controversies of unknown potential liability. Hartford v. Gibbons & Reed Co., 617 F.2d 567 (10th Cir. 1980).
Statute runs from manifestation of injury. — In personal injury action involving medical malpractice, the limitation period stated in this section began to run against plaintiff, not from the time of the malpractice, but from the time the injury manifested itself in a physically objective manner and was ascertainable; therefore, where operating physician failed to remove a cottonoid during surgery, statutory limitation period did not begin until the cottonoid was discovered by later surgery. Peralta v. Martinez, 1977-NMCA-040, 90 N.M. 391, 564 P.2d 194, cert. denied, 90 N.M. 636, 567 P.2d 485.
The limitation period begins to run from the time the injury manifests itself in a physically objective manner and is ascertainable. Crumpton v. Humana, Inc., 1983-NMSC-034, 99 N.M. 562, 661 P.2d 54.
Since the plaintiff began experiencing pain apparently related to the prosthesis in 1984, had the prosthesis replaced in December of that year, consulted with a clinic in June 1987 for continuing pain, and finally had the prosthesis removed in September 1987, she had reason to know the specific cause of her injuries before September 1987, and thus a products liability action filed in September 1990 was barred by the three-year statute of limitations. Sawtell v. E.I. Du Pont De Nemours & Co., 22 F.3d 248 (10th Cir. 1994), cert. denied, 513 U.S. 917, 115 S. Ct. 295, 130 L. Ed. 2d 209 (1994).
Physical and psychological injury. — Acquisition of a venereal disease and pregnancy leading to an abortion are sufficiently substantial physical injuries that once the plaintiff knew her former parish priest had caused the injuries, the limitations period would begin, regardless of whether the plaintiff knew or should have known of the severe psychological damage caused by the priest's misconduct. Martinez-Sandoval v. Kirsch, 1994-NMCA-115, 118 N.M. 616, 884 P.2d 507, cert. denied, 118 N.M. 731, 885 P.2d 1325, cert. denied, 515 U.S. 1124, 115 S. Ct. 2282, 132 L. Ed. 2d 285 (1995).
When running of limitation period delayed until injury discovered or discoverable. — Where a party against whom a cause of action accrues prevents the one entitled to bring the cause from obtaining knowledge thereof by fraudulent concealment or where the cause is known to the injuring party but is of such character as to conceal itself from the injured party, the statutory limitation on the time for bringing the action will not begin to run until the right of action is discovered or, by the exercise of ordinary diligence, could have been discovered. Garcia v. Presbyterian Hosp. Center, 1979-NMCA-034, 92 N.M. 652, 593 P.2d 487.
Amended complaint deemed filed when motion for leave to amend complaint is filed. — Where plaintiff filed a complaint for personal injury after suffering serious injuries while working as an operator at the Navajo refinery, plaintiff, following discovery, sought to amend his complaint to add certain defendants to the lawsuit; pursuant to Rule 1-015(A) NMRA, plaintiff filed a motion for leave to amend his complaint on the final day before the period allowed under the statute of limitations would expire and attached the proposed amended complaint as an exhibit to the motion; the New Mexico supreme court held that the amended complaint should be deemed filed on the day the motion for leave to amend was filed, because the provisions under Rule 1-015(A) NMRA, requiring leave of court to amend a complaint, leaves a plaintiff with little or no control over when the amended complaint may be filed. Snow v. Warren Power & Mach., Inc., 2015-NMSC-026, rev'g 2014-NMCA-054, 326 P.3d 33.
Amendment adding defendants after statute of limitations expires. — Where plaintiff was injured when a hose assembly came loose from a water pump and struck plaintiff in the leg; the hose was manufactured by defendant Midwest and sold to defendant Warren who rented the hose to defendant Brininstool who supplied the hose to the refinery where plaintiff worked; plaintiff's initial compliant did not name Midwest and Brininstool; on January 20, 2011, the final day before the statute of limitations expired, plaintiff filed a motion to file a second amended complaint to add Warren and Brininstool as defendants; the district court granted the motion on January 27, 2012; plaintiff filed the second amended complaint on January 30, 2012; Warren and Brininstool were informed of the accident and plaintiff's injuries immediately after it occurred; it was not until service of the second amended complaint that Brininstool received notice of the suit; Warren was served with a subpoena one month before the statute of limitations expired requesting documents relevant to the accident; and plaintiff did not assert that a mistake had been made concerning the identity of Warren and its relation to the hose assembly and plaintiff failed to show that plaintiff exercised due diligence to investigate and identify Warren as a defendant, the complaint against Brininstool did not relate back to the initial complaint under Rule 1-015(C)(1) NMRA and the complaint against Warren did not relate back to the initial complaint under Rule 1-015(C)(2) NMRA. Snow v. Warren Power & Machinery, Inc., 2014-NMCA-054, cert. granted, 2014-NMCERT-005.
Summary judgment in favor of defendant proper when defendant added to lawsuit after statute of limitation had expired. — Where plaintiff injured himself at a rental property when he fell off of a deck that was constructed for the property owner by defendant, an unlicensed contractor, and where plaintiff added defendant to a personal injury lawsuit against the property owner four years after the injury occurred, the district court did not err in granting defendant's motion for summary judgment, because the three-year statute of limitation had expired prior to plaintiff amending his complaint to join defendant in the lawsuit. Little v. Baigas, 2017-NMCA-027, cert. denied,.
Defamation. — The statute of limitations runs in a defamation case from the point of publication of the defamatory statement. Fikes v. Furst, 2003-NMCA-006, 133 N.M. 146, 61 P.3d 855, rev'd in part on other grounds, 2003-NMSC-033, 134 N.M. 602, 81 P.3d 545.
Amended complaint. — Where an amended complaint cited facts, conduct and injuries not found in the original complaint, the complaint does not relate back to the date of the original complaint; thus, to be actionable, defamatory statements had to be made within three years of the filing of the amended complaint. Fikes v. Furst, 2003-NMCA-006, 133 N.M. 146, 61 P.3d 855, rev'd in part on other grounds, 2003-NMSC-033, 134 N.M. 602, 81 P.3d 545.
Exclusionary provision in liability policy which limits insured's time for bringing action. — As 66-5-301 NMSA 1978 contains no time limit in which the insured can exercise his rights, an exclusionary provision in the liability policy which limits the insured's time for bringing an action to one year violates the three-year statute of limitation of this section for bringing a personal injury suit, deprives the insureds of their uninsured motorist coverage and is void as against public policy. Sandoval v. Valdez, 1978-NMCA-016, 91 N.M. 705, 580 P.2d 131, cert. denied, 91 N.M. 610, 577 P2d 1256.
Subrogated insurer's action against third-party tortfeasor. — When a workers' compensation insurer settles with an injured worker, receives an assignment of his negligence cause of action to the extent of the payment, and seeks reimbursement from a third party, the relevant statute of limitations is not 37-1-4 NMSA 1978 (four-year period), which governs unspecified actions, but this section (three-year period), which governs actions for personal injury, which begins to run on a subrogated insurer's action against a third-party tortfeasor at the same time that the statute of limitations would begin to run on an action by the insured, or his personal representative in the event of the death of the insured. Am. Gen. Fire & Cas. Co. v. J.T. Constr. Co., 1987-NMCA-094, 106 N.M. 195, 740 P.2d 1179.
Since an insured has a six year limitation period for suit against the insurance carrier under an uninsured motorist claim, the subrogated insurance carrier is bound by the same limitation period as the insured would be if the insured were bringing suit against the uninsured motorist. Liberty Mut. Ins. Co. v. Warren, 1995-NMCA-009, 119 N.M. 429, 891 P.2d 570.
Dismissal of plaintiff's suit for failure to prosecute with due diligence. — The statute of limitations is tolled by the timely filing of the complaint but the trial court, in the exercise of its inherent power and in its discretion, independent of statute, may dismiss a case for failure to prosecute when it is satisfied that plaintiff has not applied due diligence in the prosecution of his suit. Prieto v. Home Educ. Livelihood Program, 1980-NMCA-114, 94 N.M. 738, 616 P.2d 1123.
Issue of reasonable diligence. — The question of reasonable diligence of the plaintiffs to discover a claim because of publicity is a jury question and except for exceptional cases, cannot be decided as a matter of law. Williams v. Stewart, 2005-NMCA-061, 137 N.M. 420, 112 P.3d 281, cert. denied, 2005-NMCERT-005, 137 N.M. 522, 113 P.3d 345.
Equitable tolling does not apply when plaintiff fails to exercise due diligence. — Where plaintiff was injured when a hose assembly came loose from a water pump and struck plaintiff in the leg; the hose was manufactured by defendant Midwest and sold to defendant Warren who rented the hose to defendant Brininstool who the supplied the hose to the refinery where plaintiff worked; plaintiff's initial compliant did not name Midwest and Brininstool; on January 20, 2011, the final day before the statute of limitations expired, plaintiff filed a motion to file a second amended complaint to add Warren and Brininstool as defendants; the district court granted the motion on January 27, 2012; plaintiff filed the second amended complaint on January 30, 2012; Brininstool and Warren were served with the amended complaint on February 2 and 6, 2011; and plaintiff failed to present evidence that plaintiff diligently pursued plaintiff's rights or that extraordinary circumstances prevented the diligent pursuit of plaintiff's rights, the doctrine of equitable tolling did not apply to plaintiff. Snow v. Warren Power & Machinery, Inc., 2014-NMCA-054, cert. granted, 2014-NMCERT-005.
Being an unlicensed contractor does not preclude asserting a statute of limitations defense. — Although New Mexico has a strong public policy against unlicensed contractors, the statute of limitations is an affirmative defense available to all defendants, and equitable tolling or equitable estoppel is not triggered as a matter of law when a defendant is an unlicensed contractor. Little v. Baigas, 2017-NMCA-027, cert. denied.
Equitable tolling does not apply when plaintiff fails to affirmatively seek the necessary information to support a known cause of action. — Where plaintiff injured himself at a rental property when he fell off of a deck that was constructed for the property owner by defendant, an unlicensed contractor, and where plaintiff, once he discovered the name of the deck's builder, added defendant to a personal injury lawsuit against the property owner four years after the injury occurred, equitable tolling did not apply because plaintiff knew he had a cause of action against the deck builder, but failed to show that he diligently investigated and pursued the identity of all parties responsible for his injury and there were no extraordinary circumstances justifying tolling. Little v. Baigas, 2017-NMCA-027, cert. denied.
Equitable estoppel did not apply when plaintiff failed to demonstrate detrimental reliance. — Where plaintiff injured himself at a rental property when he fell off of a deck that was constructed for the property owner by defendant, an unlicensed contractor, and where plaintiff, once he discovered the name of the deck's builder, added defendant to a personal injury lawsuit against the property owner four years after the injury occurred, the district court did not err in determining that equitable estoppel did not apply, because there was no evidence that defendant concealed his identity or intended to thwart plaintiff's claim, and plaintiff failed to demonstrate that he relied to his detriment on anything defendant did. Little v. Baigas, 2017-NMCA-027, cert. denied.
Respondeat superior claim barred where parties not notified within three years. — Respondeat superior claim asserted under an amended complaint which represents the addition of a party and of a claim against that party was barred by the three-year statute of limitations because, by adding a previously unnotified party beyond the applicable limitation period, the amended complaint did not relate back to the timely filing of the original complaint. Romero v. Ole Tires, Inc., 1984-NMCA-092, 101 N.M. 759, 688 P.2d 1263.
Actions against a deceased personal representative on his surety bond are exempted from the time limitations imposed by 45-3-803 NMSA 1978. Such a claim is governed by this section. Bowman v. Butler, 1982-NMCA-108, 98 N.M. 357, 648 P.2d 815.
Accrual of tort of unlawful public disclosure of private fact. — In the tort of unlawful public disclosure of a private fact, the gravamen of the claimed injury is the publication of the information; thus, the statute of limitations runs from the date that the information is published. Benally v. Hundred Arrows Press, Inc., 614 F. Supp. 969 (D.N.M. 1985), rev'd on other grounds sub nom. Benally v. Amon Carter Museum of W. Art, 858 F.2d 618 (10th Cir. 1988).
When running of limitation period delayed until injury discovered or discoverable. — Where on the face of the complaint plaintiff was incapable of understanding or perceiving the nature of what plaintiff was doing or its consequences and was also in no mental condition to perceive the extent and effects of defendants' mind and body control techniques, the running of the limitation period is delayed. Roney v. Siri Singh Sahib Harbhajan Singh Yogi, 1985-NMCA-052, 103 N.M. 89, 703 P.2d 186, cert denied, 103 N.M. 62, 702 P.2d 1007.
This statute does not preclude the state or any of its subdivisions or agencies from maintaining actions against the principal and sureties on official bonds. 1926 Op. Att'y Gen. No. 26-3899.
Statute of limitations does not run against the state in action to recover on official bond. 1947 Op. Att'y Gen. No. 47-5019.
Law reviews. — For article, "Medical Malpractice Legislation in New Mexico," see 7 N.M.L. Rev. 5 (1976-77).
For survey, "The Statute of Limitations in Medical Malpractice Actions," see 6 N.M.L. Rev. 271 (1976).
For comment, "A Survey of the Law of Strict Tort Products Liability in New Mexico," see 11 N.M.L. Rev. 359 (1981).
For article, "Constitutional Torts and the New Mexico Torts Claims Act," see 13 N.M.L. Rev. 1 (1983).
For annual survey of New Mexico law relating to torts, see 13 N.M.L. Rev. 473 (1983).
For note, "Federal Civil Rights Act - The New Mexico Appellate Courts' Choice of the Proper Limitations Period for Civil Rights Actions Filed Under 42 U.S.C. § 1983: DeVargas v. State ex rel. New Mexico Department of Corrections," see 13 N.M.L. Rev. 555 (1983).
For article, "Defamation in New Mexico," see 14 N.M.L. Rev. 321 (1984).
For article, "Selecting an Analogous State Limitations Statute in Reconstruction Civil Rights Claims: The Tenth Circuit's Resolution," see 15 N.M.L. Rev. 11 (1985).
For survey of medical malpractice law in New Mexico, see 18 N.M.L. Rev. 469 (1988).
For annual survey of New Mexico law of civil procedure, 19 N.M.L. Rev. 627 (1990).
For annual survey of New Mexico law of products liability, 19 N.M.L. Rev. 743 (1990).
For article, "Bartlett Revisited: The Impact of Several Liability on Pretrial Procedure in New Mexico Part Two," see 35 N.M.L. Rev. 37 (2005).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 12 Am. Jur. 2d Bonds § 37; 51 Am. Jur. 2d Limitations of Actions §§ 102, 135.
Waiver or tolling of statute of limitations by executor or administrator, 8 A.L.R.2d 660.
What period of limitation governs in an action against public officer and a surety on his official bond, 18 A.L.R.2d 1176.
Action by passenger against carrier for personal injuries as based on contract or on tort, with respect to application of statutes of limitations, 20 A.L.R.2d 331.
Inclusion or exclusion of first and last day for purposes of statute of limitations, 20 A.L.R.2d 1249.
What constitutes "publication" of libel in order to start running of period of limitations, 42 A.L.R.3d 807.
When statute of limitations begins to run as to cause of action for nuisance based on air pollution, 19 A.L.R.4th 456.
Limitation of actions: invasion of right of privacy, 33 A.L.R.4th 479.
Limitation of actions: time of discovery of defamation as determining accrual of action, 35 A.L.R.4th 1002.
When statute of limitations commences to run on automobile no-fault insurance personal injury claim, 36 A.L.R.4th 357.
Validity, construction, and application, in nonstatutory personal injury actions, of state statute providing for borrowing of statute of limitations of another state, 41 A.L.R.4th 1025.
Statute of limitations applicable to third person's action against psychiatrist, psychologist, or other mental health practitioner, based on failure to warn persons against whom patient expressed threats, 41 A.L.R.4th 1078.
Parent's right to recover for loss of consortium in connection with injury to child, 54 A.L.R.4th 112.
Medical malpractice: when limitations period begins to run on claim for optometrist's malpractice, 70 A.L.R.4th 600.
Application of "discovery rule" to postpone running of limitations against action for damages from assault, 88 A.L.R.4th 1063.
Computation of net "loss" for which fidelity insurer is liable, 5 A.L.R.5th 132.
Application of statute of limitations in private tort actions based on injury to persons or property caused by undergound flow of contaminants, 11 A.L.R.5th 438.
Preemption, by Railway Labor Act (45 USCS §§ 151 et seq.), of employee's state-law action for infliction of emotional distress, 104 A.L.R. Fed. 548.
54 C.J.S. Limitations of Actions §§ 69, 152, 164, 165, 168, 176, 183.