Any and all of the following practices with respect to claims, by an insurer or other person, knowingly committed or performed with such frequency as to indicate a general business practice, are defined as unfair and deceptive practices and are prohibited:
A. misrepresenting to insureds pertinent facts or policy provisions relating to coverages at issue;
B. failing to acknowledge and act reasonably promptly upon communications with respect to claims from insureds arising under policies;
C. failing to adopt and implement reasonable standards for the prompt investigation and processing of insureds' claims arising under policies;
D. failing to affirm or deny coverage of claims of insureds within a reasonable time after proof of loss requirements under the policy have been completed and submitted by the insured;
E. not attempting in good faith to effectuate prompt, fair and equitable settlements of an insured's claims in which liability has become reasonably clear;
F. failing to settle all catastrophic claims within a ninety-day period after the assignment of a catastrophic claim number when a catastrophic loss has been declared;
G. compelling insureds to institute litigation to recover amounts due under policy by offering substantially less than the amounts ultimately recovered in actions brought by such insureds when such insureds have made claims for amounts reasonably similar to amounts ultimately recovered;
H. attempting to settle a claim by an insured for less than the amount to which a reasonable person would have believed he was entitled by reference to written or printed advertising material accompanying or made part of an application;
I. attempting to settle claims on the basis of an application that was altered without notice to, or knowledge or consent of, the insured, his representative, agent or broker;
J. failing, after payment of a claim, to inform insureds or beneficiaries, upon request by them, of the coverage under which payment has been made;
K. making known to insureds or claimants a practice of insurer of appealing from arbitration awards in favor of insureds or claimants for the purpose of compelling them to accept settlements or compromises less than the amount awarded in arbitration;
L. delaying the investigation or payment of claims by requiring an insured, claimant or the physician of either to submit a preliminary claim report and then requiring the subsequent submission of formal proof of loss forms, both of which submissions contain substantially the same information;
M. failing to settle an insured's claims promptly where liability has become apparent under one portion of the policy coverage in order to influence settlement under other portions of the policy coverage;
N. failing to promptly provide an insured a reasonable explanation of the basis relied on in the policy in relation to the facts or applicable law for denial of a claim or for the offer of a compromise settlement; or
O. violating a provision of the Domestic Abuse Insurance Protection Act [59A-16B-1 to 59A-16B-10 NMSA 1978].
History: Laws 1984, ch. 127, § 286; 1993, ch. 82, § 1; 1997, ch. 141, § 11.
ANNOTATIONSThe 1997 amendment, effective July 1, 1997, added Subsection O and made related stylistic changes.
The 1993 amendment, effective June 18, 1993, substituted "insureds' " for "insureds" in Subsection C, added Subsection F, and redesignated former Subsections F to M as present Subsections G to N.
Duty of insurer to disclose policy provisions to all insureds. — The duty of an insurer of disclosure is not limited to class-one insureds, but extends to all insureds who have sustained compensable injuries under the terms and conditions of the insurer's insurance policy and of whom the insurer has actual knowledge. Because the duty of disclosure owed to class-two insureds is triggered only when the insurer receives actual knowledge of the identity of a class-two insured with an allegedly compensable claim, the duty of disclosure does not require the insurer to seek out the identity of class-two insureds. Salas v. Mountain States Mut. Cas. Co., 2009-NMSC-005, 145 N.M. 542, 202 P.3d 801, modifying, 2007-NMCA161, 143 N.M. 113, 173 P.3d 35.
Where the insurer had actual knowledge of the plaintiff's status as a class-two insured who suffered an injury that was compensable under the insurer's insurance policy while the plaintiff was a passenger in the insured motor vehicle, the insurer had an affirmative duty to disclose to the plaintiff the availability of insurance coverage and the terms and conditions governing that coverage and where the insurer failed to inform the plaintiff of the plaintiff's rights and responsibilities under the insurance policy, including the existence of a consent-to-settle exclusionary provision in the insurance policy, the insurer breached its duty of disclosure and is equitably estopped from enforcing the consent-to-settle exclusionary provision to deny or limit the plaintiffs' entitlement to benefits under the insurance policy. Salas v. Mountain States Mut. Cas. Co., 2009-NMSC-005, 145 N.M. 542, 202 P.3d 801, modifying 2007-NMCA161, 143 N.M. 113, 173 P.3d 35.
Duty to defend. — Actual notice of a claim against its insured from any source that is sufficient to permit the insurer to locate and defend its insured is sufficient to trigger the duty to defend unless the insured affirmatively declines a defense. Garcia v. Underwriters at Lloyd's, 2008-NMSC-018, 143 N.M. 732, 182 P.3d 113.
Duty to defend triggered. — In New Mexico, an insurer's duty to defend is triggered when it has received actual notice of a claim against the insured, unless the insured affirmatively declines a defense. The duty to defend arises and is determined from the allegations on the face of the complaint or from the known but unpleaded factual basis of the claim that brings it arguably within the scope of coverage. Pulte Homes of N.M., Inc. v. Indiana Lumbermens Ins. Co., 2016-NMCA-028.
In a construction defects case, where plaintiff contractor tendered two demands for a defense to the insurance company that had issued a commercial general liability policy to subcontractor, naming contractor as an additional insured, and where the liability policy excluded from coverage property damage to subcontractor's own work ("your work" exclusion), the "your work" exclusion precluded coverage with regard to the first defense tender to insurer, because the only property damage alleged was to subcontractor's work itself, the windows and the sliding glass door, and not to other property. The second defense tender, however, alleged that subcontractor's defective installation of windows and sliding glass doors caused damage to some of the homeowners' other property, namely the stucco around the windows and doors. The facts presented with regard to the first defense tender did not trigger insurer's duty to defend because the "your work" exclusion precluded coverage under those facts. The facts presented in contractor's second defense tender to insurer triggered the insurer's duty to defend because the "your work" exclusion did not preclude coverage. Pulte Homes of N.M., Inc. v. Indiana Lumbermens Ins. Co., 2016-NMCA-028.
Insurer's unilateral refusal to defend constituted a breach of that duty. — Where plaintiff, the tenant of a rental dwelling, was sued by a public utility employee when the employee was injured by plaintiff's dog, and where defendant insurance company refused to tender a defense for plaintiff because plaintiff was not the named insured and did not qualify as an insured by definition under the rental dwelling policy, and where plaintiff sought a declaratory judgment that defendant breached its duty to defend plaintiff in the primary action, the district court erred in granting defendant's motion for summary judgment, because defendant did not seek a judicial ruling relieving itself of its duty to defend, the insurer bears the burden of proving as a matter of law that all claims arose out of an uncovered act and thus had a duty to defend until it met that burden, and where there is a legitimate question regarding whether the claim is covered, an insurer who refused to defend has breached its duty. Dove v. State Farm Fire & Cas. Co., 2017-NMCA-051, cert. denied.
This section was patterned after the National Association of Insurance Commissioners' Model Act. Hovet v. Allstate Ins. Co., 2004-NMSC-010, 135 N.M. 397, 89 P.3d 69.
Private right of action is recognized against insurers who engage in unfair claim practices under the Insurance Code. Southern Farm Bureau Cas. Co. v. Hiner, 2005-NMCA-104, 138 N.M. 154, 117 P.3d 960, cert. denied, 2005-NMCERT-008, 138 N.M. 328, 119 P.3d 1265.
Application to adjusters.— Pursuant to 59A-16-1 NMSA 1978, this section applies to adjusters as well as insurers. Dellaria & Carnes v. Farmers Ins. Exch., 2004-NMCA-132, 136 N.M. 552, 102 P.3d 111.
Statutory duty under Subsection E of this section, to attempt reasonable settlement efforts of an "insured's claims", includes, in the context of automobile liability insurance, attempting in good faith to settle the claim of a third party. Hovet v. Allstate Ins. Co., 2004-NMSC-010, 135 N.M. 397, 89 P.3d 69.
Substantial prejudice required. — An insurer must demonstrate substantial prejudice as a result of a material beach of the insurance policy by the insured before it will be relieved of its obligations under a policy. Foundation Reserve Ins. Co. v. Esquibel, 1980-NMSC-019, 94 N.M. 132, 607 P.2d 1150.
An insurance company must demonstrate substantial prejudice from the breach of a consent-to-settle provision before it can be relieved from paying uninsured motorist benefits. State Farm Mut. Auto. Ins. Co. v. Fennema, 2005-NMSC-010, 137 N.M. 275, 110 P.3d 491.
Although the insurer shall have the ultimate burden of persuasion to demonstrate substantial prejudice, a presumption of substantial prejudice arises from proof that an insured has breached a consent-to-settle provision. State Farm Mut. Auto. Ins. Co. v. Fennema, 2005-NMSC-010, 137 N.M. 275, 110 P.3d 491.
Complaint stated claim. — Where under the facts alleged in the complaint, plaintiffs may be able to show that company hired by insurance company to settle claims offered lower than fair settlements with such frequency as to "indicate a general business practice", they have stated a claim. Dellaria & Carnes v. Farmers Ins. Exch., 2004-NMCA-132, 136 N.M. 552, 102 P.3d 111.
Failure to state claim. — Insured's allegation generally that the insurer's conduct violated "one or more of the provisions of [this section]" failed to state claim for relief because the insured did not specify which of the fifteen provisions of the section he felt the insurer violated, and it could not be perceived which subsection could have been violated under the facts alleged. Yumukoglu v. Provident Life & Accident Ins. Co., 131 F. Supp. 2d 1215 (D.N.M. 2001).
Sufficient evidence of bad faith. — Where the injured spouse was severely injured when the driving spouse attempted to pass on a blind curve and collided head-on with another vehicle; the driving spouse's insurer knew within four days after the accident that the injured spouse's claim would exceed the $100,000 policy limits of the driving spouse's liability insurance policy and that the driving spouse was solely at fault for the accident; the insurer applied a policy provision that the insurer knew to be invalid to reduce the amount it would pay for family members; the insurer paid the policy limit for medical expenses and refused to pay the remainder of the injured spouse's medical expenses; the insurer made no attempt to settle the matter; on September 22, 2003, the injured spouse demanded payment of the full value of the policy; the insurer ignored the offer and allowed it to expire; the insurer had the information it needed to settle by August 10, 2003; from September 24, 2003 until October 22, 2003, the insurer asked the injured spouse for more information and medical authorization releases even though the information was readily available without medical authorization releases; on October 22, 2003, the insurer sent a letter to the injured spouse claiming that the injured spouse and the insurer had agreed to settle for an amount less than the injured spouse's medical bills; the injured spouse did not accept the offer; the injured spouse was awarded personal injury damages of $2.8 million dollars against the driving spouse; and in 2005, with the goal of thwarting the injured spouse's bad faith claim against the insurer, the insurer sued the driving spouse in federal court in Texas to establish that the driving spouse was liable for the excess judgment in the personal injury action, the evidence was sufficient to support the district court's finding that the insurer acted in bad faith, Dydek v. Dydek, 2012-NMCA-088, 288 P.3d 872.
Applicability of Subsection C. — The word "claims" in Subsection C means first-party claims, not demands for defense against third-party claims. Valley Improvement Ass'n v. U.S. Fid. & Guar. Corp., 129 F.3d 1108 (10th Cir. 1997).
Insurer's duty to investigate demands by insured to provide defense. — An insurance company is required to conduct a reasonable investigation into the facts and circumstances underlying the complaint against its insured in order to determine whether it has a duty to defend. Reasonableness is determined in light of the information provided by the insured and the circumstances surrounding the claim. G & G Servs., Inc. v. Agora Syndicate, Inc., 2000-NMCA-003, 128 N.M. 434, 993 P.2d 751, cert. quashed, 129 N.M. 520, 10 P.3d 843.
Duty to fairly investigate and evaluate claims. — Where a police officer saw two vehicles heading toward the officer; the vehicle driven by the insured collided with the officer's vehicle; the officer charged the insured with drag racing and reckless driving; the insured's insurer received a statement from the insured denying that the insured had engaged in racing and a statement from the officer that the insured had initially denied racing, then later admitted it; because the insured's insurance policy excluded coverage for accidents resulting from racing, the insurer denied the insured's claim; several months after the accident, the racing charge against the insured was dismissed; the insurer continued to deny coverage based on the racing exclusion and the officer's statement that the insured had admitted to racing; and the insured's expert testified that the insurer favored its own interests over the interests of the insured and paid little attention to what the insured told the insurer, failed to ask the insured if the insured was racing, failed to review the claim when the charges against the insured were dismissed and instead reaffirmed its original position, failed to demonstrate how it evaluated and decided the claim, and looked at one-sided evidence and information, there was sufficient evidence for the jury to find bad faith based on the manner in which the insurer's investigation of the insured's claim was conducted. Am. Nat'l. Prop. & Cas. Co. v. Cleveland, 2013-NMCA-013, 293 P.3d 954.
Clear mandate of public policy sufficient to support a claim of retaliatory discharge. — A retaliatory discharge cause of action is recognized in New Mexico as a narrow exception to the general rule that employment at will can be terminated by either the employer or the employee for any reason, or for no reason at all. Under this cause of action, an employee must identify a specific expression of public policy which the discharge violated, demonstrate that he or she acted in furtherance of the clearly mandated public policy, and show that he or she was terminated as a result of those acts. Sherrill v. Farmers Ins. Exch., 2016-NMCA-056.
In a retaliatory discharge claim, where plaintiff alleged that insurance company's practices promoted premature settlements for vulnerable injured claimants, and where the district court determined that plaintiff failed to identify a clearly mandated public policy sufficient to support a claim of retaliatory discharge, summary judgment was improper because 59A-16-20 NMSA 1978 embodies a clear mandate of the public policy in favor of protecting the public from unfair and deceptive insurance claims practices, a policy whose parameters are not too vague or ambiguous to provide guidance on prohibited conduct, sufficient to support a claim of retaliatory discharge. Sherrill v. Farmers Ins. Exch., 2016-NMCA-056.
Refusal to defend insured upheld. — Insurer did not violate Subsection E by refusing to defend the insured in a case charging the insured with negligent touching, battery, intentional infliction of emotional distress, and negligent infliction of emotional distress, since the liability policy provided coverage for damages due to bodily injury or property damages caused by an "occurrence," which was defined as an accident, and since the plaintiff did not allege facts even tending to show an occurrence under the policy. Sena v. Travelers Ins. Co., 801 F. Supp. 471 (D.N.M. 1992).
Insurer did not have a duty to defend. — Where a third party leased property from plaintiffs to develop into a drug store that the third party intended to lease to a national drug store operator; the third party sued plaintiffs for claims based on the third party's allegation that plaintiffs used their superior bargaining power to coerce the third party to provide additional improvements and concessions not covered by the original lease agreement; plaintiffs sued defendant for failure to defend plaintiffs in the third party lawsuit pursuant to plaintiffs' liability insurance policy, which required defendant to defend plaintiffs against injury arising out of abuse of process or malicious prosecution; plaintiffs alleged, and the district court assumed, that the motivation for the third party complaint was that plaintiffs had threatened the third party with litigation in order to coerce the third party to agree to favorable business terms; and the third party's complaint did not make an express claim for malicious abuse of process, and the facts underlying the third party's complaint did not state a claim for malicious abuse of process, defendant did not have a duty to defend under the policy. Hinkle v. State Farm Fire & Cas. Co., 2013-NMCA-084, cert. granted, 2013-NMCERT-007.
Duty of insurer to settle with a third-party claimant. — Article 16 confers upon a victim of an automobile accident a direct right of action against the insured's automobile liability insurance company, when the liability insurer fails to make good-faith efforts, as defined by Subsection E of this section, to settle a liability claim. Hovet v. Allstate Ins. Co., 2004-NMSC-010, 135 N.M. 397, 89 P.3d 69.
Private right of action for third parties who are victims of automobile accidents is consistent with a statutory scheme that was intended to benefit both insureds and third-party claimants. Hovet v. Allstate Ins. Co., 2004-NMSC-010, 135 N.M. 397, 89 P.3d 69, aff'g Hovet v. Lujan, 2003-NMCA-061, 133 N.M. 611, 66 P.3d 980.
Third-party claimant may not sue both insured and insurer in the same lawsuit. Hovet v. Allstate Ins. Co., 2004-NMSC-010, 135 N.M. 397, 89 P.3d 69.
Claimant will not even have an action under Subsection E of this section, unless and until there has been a judicial determination of the insured's fault and the amount of damages awarded in the underlying negligence action. Hovet v. Allstate Ins. Co., 2004-NMSC-010, 135 N.M. 397, 89 P.3d 69.
Qui tam action by federal government. — Claims under the New Mexico Unfair Insurance Practices Act were necessarily dismissed given the fact that defendant insurance companies had no duty to defend nor indemnify plaintiff against a qui tam action brought by the federal government. New Mem'l Assocs. v. Credit Gen. Ins. Corp., 973 F. Supp. 1027 (D.N.M. 1997).
Law reviews. — For annual survey of New Mexico insurance law, 19 N.M.L. Rev. 717 (1990).
For note, "Workers' Compensation Law - Bad Faith Refusal of an Insurer to Pay Workers' Compensation Benefits: Russell v. Protective Insurance Company," see 20 N.M.L. Rev. 757 (1990).
For note and comment, "A Third-Party Claimant Becomes an Insured: Hovet v. Allstate and the Expanding Right to Sue Under New Mexico's Insurance Code," see 35 N.M. L. Rev. 651 (2005).
Am. Jur. 2d, A.L.R. and C.J.S. references. — What constitutes bad faith on part of insurer rendering it liable for statutory penalty imposed for bad faith in failure to pay, or delay in paying, insured's claim, 33 A.L.R.4th 579.
Value of insured's assets as limitation, in action by insured or insured's assignee for liability insurer's wrongful failure to defend, on recovery of amount of judgment against insured in excess of policy amount, 36 A.L.R.4th 922.
Liability insurance: excess carrier's right of action against primary carrier for improper or inadequate defense of claim, 49 A.L.R.4th 304.
Liability of independent or public insurance adjuster to insured for conduct in adjusting claim, 50 A.L.R.4th 900.
Duty of insurer to pay for independent counsel when conflict of interest exists between insured and insurer, 50 A.L.R.4th 932.
Emotional or mental distress as element of damages for liability insurer's wrongful refusal to settle, 57 A.L.R.4th 801.
Liability insurance: third party's right of action for insurer's bad-faith tactics designed to delay payment of claim, 62 A.L.R.4th 1113.
Policy provision limiting time within which action may be brought on the policy as applicable to tort action by insured against insurer, 66 A.L.R.4th 859.
Liability insurer's postloss conduct as waiver of, or estoppel to assert, "no-action" clause, 68 A.L.R.4th 389.
Admissibility of polygraph or similar lie detector test results, or willingness to submit to test, on issues of coverage under insurance policy, or insurer's good-faith belief that claim was not covered, 7 A.L.R.5th 143.
Liability of insurer to insured for settling third-party claim within policy limits resulting in detriment to insured, 18 A.L.R.5th 474.