497 P.3d 654
N.M. Ct. App.2021Background
- In 2012 the Improved Benevolent Protective Order of the Elks Albuquerque Navajo Lodge #863 (the Lodge) retained Berger Briggs to procure general liability insurance; Berger Briggs provided quotes and procured a policy with assault/battery/firearm exclusions that became effective in 2014.
- On February 14, 2015 Edwin Wilson was shot at an event at the Lodge and later obtained a judgment against the Lodge for his injuries.
- The Lodge stipulated to liability and assigned to Wilson all claims it had against Berger Briggs (including commercial tort, breach of contract, statutory and UPA claims) related to Berger Briggs’ procurement of the Lodge’s insurance.
- Wilson sued Berger Briggs alleging negligent failure to procure coverage, negligent misrepresentation, breach of contract, breach of fiduciary duty, and UPA violations.
- Berger Briggs moved for summary judgment arguing the assigned claims were personal (personal injury) and thus unassignable; the district court denied the motion and certified the assignability issue for interlocutory appeal.
- The Court of Appeals affirmed, holding the assigned claims were commercial/contract-based and assignable, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are the Lodge’s assigned claims assignable or are they unassignable personal torts? | Wilson: claims are commercial torts and contract-based, therefore assignable. | Berger Briggs: claims are personal in nature (personal injury/personal service) and unassignable. | Held: Claims are commercial (arising from the broker–client relationship) not personal torts; assignment valid. |
| Was there an enforceable contract between Berger Briggs and the Lodge to support assignment of contract-based claims? | Wilson: an implied-in-fact contract existed for procurement of insurance quotes and services. | Berger Briggs: no contract exists merely from procuring insurance; Porter applies to insurer–insured context. | Held: An implied-in-fact contract existed between Berger Briggs and the Lodge to procure insurance. |
| Can an assignee (Wilson) assert Unfair Practices Act (UPA) claims assigned from the Lodge? | Wilson: as assignee he stands in the Lodge’s shoes and has UPA standing; UPA is broad and remedial. | Berger Briggs: UPA standing is limited to consumers/buyers; Wilson never purchased services. | Held: Wilson, as assignee of the Lodge’s UPA claims, has standing to bring them. |
| Are other issues raised (fiduciary duty, reasonable expectations of coverage/damages) before the appellate court? | Wilson: those issues were not certified for interlocutory appeal and thus are outside scope. | Berger Briggs: sought summary judgment on all claims including those issues. | Held: Court limited review to certified questions of assignability; fiduciary-duty and reasonable-expectation issues were not decided. |
Key Cases Cited
- Quality Chiropractic, PC v. Farmers Ins. Co. of Ariz., 51 P.3d 1172 (N.M. Ct. App. 2002) (discusses common-law bar on assignment of personal injury claims and the commercial exception)
- Topmiller v. Cain, 657 P.2d 638 (N.M. Ct. App. 1983) (insurance-agent liability for failure to procure requested coverage)
- Sanchez v. Martinez, 653 P.2d 897 (N.M. Ct. App. 1982) (agent’s duty to procure or notify when unable to procure insurance)
- Porter v. Butte Farmers Mut. Ins. Co., 360 P.2d 372 (N.M. 1961) (distinguishes offer/application to insurer from an insurance contract)
- Dove v. State Farm Fire & Cas. Co., 399 P.3d 400 (N.M. Ct. App. 2017) (recognizes assignment of insured’s claims relating to insurer’s obligations)
- Truck Ins. Exchange v. Gagnon, 33 P.3d 901 (N.M. Ct. App. 2001) (handling coverage issues after assignment in commercial context)
- Brown v. Gray, 227 F.3d 1278 (10th Cir. 2000) (upholding assignment of defense-cost claim under commercial-law principles)
- Williams v. Foremost Ins. Co., 102 F. Supp. 3d 1230 (D.N.M. 2015) (discusses UPA standing limits for non-consumer third parties)