Merton v. Farmer's Ins. Co.

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 NICK MERTON, 3 Plaintiff-Appellant, 4 v. No. 35,571 5 FARMERS INSURANCE COMPANY, 6 Defendant-Appellee. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Nancy J. Franchini, District Judge 9 Cravens Law, LLC 10 Richard H. Cravens, IV 11 Albuquerque, NM 12 for Appellant 13 O’Brien & Padilla, P.C. 14 Daniel O’Brien 15 Albuquerque, NM 16 for Appellee 17 MEMORANDUM OPINION 18 VIGIL, Chief Judge. 1 {1} Plaintiff has appealed the dismissal of his third-party insurance bad faith 2 complaint. We previously issued a notice of proposed summary disposition in which 3 we proposed to uphold the district court’s decision. Plaintiff has filed a memorandum 4 in opposition. After due consideration, we remain unpersuaded. We therefore affirm. 5 {2} The pertinent background information was set forth in the notice of proposed 6 summary disposition. We will avoid undue repetition here, and focus instead on the 7 content of the memorandum in opposition. 8 {3} Plaintiff appears to argue that there is no requirement of finality under Hovet 9 v. Allstate Ins. Co., 2004-NMSC-010 , 135 N.M. 397 , 89 P.3d 69 . [MIO 4, 9] 10 However, Hovet unambiguously holds that “[a] third-party claimant’s statutory cause 11 of action against the insurer for unfair settlement practices must await the conclusion 12 of the underlying negligence action between the claimant and the insured.” Id. ¶ 26 13 (emphasis added). Given that under LR2-603 NMRA Plaintiff has obtained only “a 14 nonenforceable order” at this stage, Aragon v. Westside Jeep/Eagle, 1994-NMSC-060 , 15 ¶ 10, 117 N.M. 720 , 876 P.2d 235 , we hold that the underlying negligence action 16 against the insured has not yet concluded. 17 {4} Plaintiff further asserts that, as applied to Hovet plaintiffs, LR2-603 violates 18 principles of due process and equal protection under the law. [MIO 11] These 19 arguments were not preserved in the district court and are undeveloped in the [2] 1 memorandum in opposition. [RP 18-20; MIO 11] Therefore, we refuse to address 2 them on appeal. See Corona v. Corona, 2014-NMCA-071, ¶ 28 , 329 P.3d 701 (“This 3 Court has no duty to review an argument that is not adequately developed.”); ITT 4 Educ. Serv., Inc. v. Taxation & Revenue Dep’t, 1998-NMCA-078, ¶ 10 , 125 N.M. 5 244, 959 P.2d 969 (stating that this Court will not consider propositions that are 6 unsupported by citation to authority); State v. Leon, 2013-NMCA-011, ¶ 33 , 292 P.3d 7 493 (“We generally do not consider issues on appeal that are not preserved below.”) 8 (internal quotation marks and citation omitted). 9 {5} Lastly, as an alternative remedy, Plaintiff asks this Court to “direct the local 10 court to modify its rules[.]” [MIO 12] While we acknowledge Plaintiff’s arguments 11 that LR2-603 presents a potential for abuse, this Court has no such authority. As our 12 Supreme Court held in Spingola v. Spingola: 13 The power to make rules regarding practice and procedure in all the 14 courts of this State is vested by the Constitution solely in this Supreme 15 Court. By means of Rule [1-083 NMRA] we have delegated to the 16 district courts the power to promulgate rules, not inconsistent with ours, 17 regarding practice in the local courts. A valid rule of a district court has 18 the force and effect of law, the same as one published by this Court. [19] 1978-NMSC-045 , ¶¶ 28-29, 91 N.M. 737 , 580 P.2d 958 (citations omitted). Further, 20 “the Court of Appeals remains bound by Supreme Court precedent.” State ex rel. 21 Martinez v. City of Las Vegas, 2004-NMSC-009, ¶ 20 , 135 N.M. 375 , 89 P.3d 47 [3] 1 (alterations, internal quotation marks, and citations omitted). Therefore, this Court 2 may not order a lower court to amend its rules, and Plaintiff’s arguments are better 3 directed at our Supreme Court. See Duran v. Eichwald, 2009-NMSC-030, ¶ 5 , 146 4 N.M. 341 , 210 P.3d 238 (discussing the Supreme Court’s decision to suspend Rule 5- 5 604 NMRA on policy grounds). 6 {6} Accordingly, for the reasons stated above and in the notice of proposed 7 summary disposition, we affirm. 8 {7} IT IS SO ORDERED. 9 __________________________________ 10 MICHAEL E. VIGIL, Chief Judge 11 WE CONCUR: 12 _________________________________ 13 MICHAEL D. BUSTAMANTE, Judge 14 _________________________________ 15 J. MILES HANISEE, Judge