OPINION
Thе appeal involves the 1976 Tort Claims Act (Laws 1976, ch. 58) prior to the 1977 amendments to that Act (Laws 1977, ch. 386). Sandoval County did not have insurance coverage for the negligence alleged in plaintiffs’ complaint. The trial court granted Sandoval County’s motion to dismiss on thе basis that plaintiffs were without a remedy. The issues are: (1) whether the County may be liable in the absence of insurance coverage; and (2) the propriety of dismissal for failure to state a claim upon which relief can be granted.
Plaintiffs assert they were the driver of, and a passenger in, a car which struck a protruding manhole cover in a road allegedly negligently maintained by the Cоunty. Plaintiffs sought damages for the alleged negligence. Laws 1976, ch. 58, § 4 grants “immunity from liability for any tort except as provided in the Tort Claims Act.” Under § 11(A) of the 1976 law, the immunity granted in § 4 does not apply to negligence in the maintenance of a roadway except as provided in § 11(B). Section 11(B) is not involved in this appeal. The waiver of immunity in § 11(A) is limited; under § 17(E), immunity is waived “to the extent there exists any valid insurance coverage.” It being undisputed that the County did not have insurance covering plaintiffs’ claims, the trial court granted the County’s motion to dismiss.
Liability in the Absence of Insurance
Plaintiffs contend that public policy and legislative intent prohibit the County from escaping liability by failing to acquire insurance coverage. They rely on language in Hicks v. State,
While plaintiffs’ contentiоns are attractive, they overlook other provisions of the 1976 Act which overrode the policy statements in Hicks v. State, suрra, and stated a legislative intent to limit liability in the absence of insurance. See Chavez v. Mountainair School Board,
Sectiоn 2 of the 1976 Act states: “[I]t is declared to be the public policy of New Mexico that governmental entities and public emplоyees shall only be liable within the limitations of the Tort Claims Act”. Section 18 of the 1976 Act states: “Notwithstanding any other provision of the Tort Clаims Act, the liability assumed under that act shall be limited to insured risks and the amount of insurance coverage.” These provisions negatе plaintiffs’ theory of self-insurance, limit the County’s liability to the amount of insurance coverage, and permit the County to escape liability on the basis there was no insurance coverage.
Dismissal for Failure to State a Claim
The trial court’s dismissal of the complaint for failure to state а claim upon which relief could be granted was a dismissal under Rule of Civ.Proc. 12(b)(6). Dismissal under this rule is proper only if it appears that plaintiffs cannot recover under any state of facts provable under the claims made. Delgado v. Costello,
Since the Lеgislature “mandated” insurance coverage for the negligence alleged in the complaint, England v. New Mexico State Highwаy Com’n, supra, plaintiffs contend that the County was required to make a good faith effort to obtain insurance. Absent a showing by the County that it made such a good faith effort, plaintiffs contend that dismissal was premature. “[I]f it were established . . . that the County of Sandoval simply ignored the legislative mandate to purchase insurance, then there would be no question that Sandoval County would have to pаy any damages assessed by a Court or Jury.”
We do not answer this contention on procedural grounds; that is, on the basis that dismissal was improper because there was a required “showing” that was missing which, if made, would have converted the motion to dismiss to a motion for summаry judgment. See Rule of Civ.Proc. 12(b). We answer plaintiffs’ claim on the merits.
Plaintiffs’ claim is based on that part of Laws 1976, ch. 58, § 18 which reads:
It shall be thе duty of governmental entities to make a good faith effort at the earliest practical time to purchase and maintain insurance coverage for the liabilities assumed under the Tort Claims Act to the extent such coverage may be reasonably available in a competitive market. If such insurance is available, it shall be the duty of the governmental entity to purchase and maintain such insurance.
Plaintiffs contend that if the County failed to make a good faith effort to obtain insurance coverage, the County would be liable even in the absence of insurance. Under this contention, dismissal would have been improper beсause plaintiffs could recover if the good faith effort was not made. We disagree.
We have previously quoted anothеr provision in § 18 of the 1976 Act which limits liability to the amount of insurance coverage “[njotwithstanding any other provision of the Tort Claims Act”. The legislative intent expressed in the “notwithstanding” provision is clear—if there is no insurance, there is no liability.
If, as plaintiffs contend, the Cоunty failed to make a good faith effort to obtain insurance, plaintiffs obtain no benefit from this failure because liability is limited to thе amount of the insurance coverage. Laws 1976, ch. 58, § 18. If the failure to make a good faith effort to obtain insurance should be сonsidered as a separate tort, see Brennen v. City of Eugene,
Since the County is not liable to plаintiffs even if the County failed to make a good faith effort to obtain insurance, the motion to dismiss was properly granted. With this result, we do not reach the related question of whether, under the 1976 Act, plaintiffs had standing to sue to compel the County to obtain insurance. We note the standing question has been resolved by the 1977 amendments. Compare Laws 1976, ch. 58, § 15 and 6 N.M.L.Rev., supra, Note 86 at 266 with Laws 1977, ch. 386, § 19(C).
The order dismissing plaintiffs’ complaint is affirmed.
IT IS SO ORDERED.