I have entered the land of enchantment and now have a license to practice law in New Mexico! I have been handling cases there for a few years through local counsel, so I decided to obtain my license. New Mexico has some good laws for policyholders, including the ability to sue both the insurance company and the adjusters that worked on the claim.
The Unfair Practices Act1 provides for an award of treble damages plus attorney fees and costs:
B. Any person who suffers any loss of money or property, real or personal, as a result of any employment by another person of a method, act or practice declared unlawful by the Unfair Practices Act [ 57-12-1 NMSA 1978] may bring an action to recover actual damages or the sum of one hundred dollars ($100), whichever is greater. Where the trier of fact finds that the party charged with an unfair or deceptive trade practice or an unconscionable trade practice has willfully engaged in the trade practice, the court may award up to three times actual damages or three hundred dollars ($300), whichever is greater, to the party complaining of the practice.
C. The court shall award attorney fees and costs to the party complaining of an unfair or deceptive trade practice or unconscionable trade practice if the party prevails. The court shall award attorney fees and costs to the party charged with an unfair or deceptive trade practice or an unconscionable trade practice if it finds that the party complaining of such trade practice brought an action that was groundless.
D. The relief provided in this section is in addition to remedies otherwise available against the same conduct under the common law or other statutes of this state.
In sum, the New Mexico Unfair Trade Practices Act prohibits “[u]nfair or deceptive trade practices and unconscionable trade practices.”2 To prove a violation of the Act, a policyholder must prove, among other things, that the insurance company “knowingly” made a false, misleading, or deceptive representation. A policyholder may bring claims under both the Unfair Insurance Practices Act and the Unfair Trade Practices Act.3
This Act provides for some fun deposition questions. The adjusters usually are very unaware of the fact that they are being sued, believe that they are being fully and equally defended by the insurance company’s attorney and have no clue that they can be on the hook to pay for damages. New Mexico has joint and several liability, meaning a policyholder can collect all of the damages from any defendant. I’ve not deposed an adjuster yet that had any idea about this prior to me telling him/her at deposition. Can you imagine being on the hook for thousands of dollars because your employer failed to pay a claim, or failed to properly hire and train adjusters? Talk about your bad day at work… but a good day for policyholders!
I had to travel to Santa Fe to be sworn in at the Supreme Court building. Here is a photo of me when I took my oath:
1 Unfair Practices Act [ 57-12-1 NMSA 1978].
2 N.M. Stat. Ann. § -18- 57-12-3; see generally id. §§ 57-12-1 to 57-12-16.
3 New Mexico Life Ins. Guar. Ass’n v. Quinn & Co., Inc., 809 P.2d 1278, 1290 (N.M. 1991).