{1} Defendant Allstate Insurance Company (Allstate) appeals, challenging the jury award of compensatory damages and punitive damages to Plaintiffs Suzanne Guest and the Guest Law Firm, P.C. (Guest). Guest cross-appeals, challenging the trial court action in reducing the punitive damages award and refusing to award attorney fees. We affirm in part, reverse in part, and remand for a new trial on the issue of damages.
FACTUAL BACKGROUND
{2} This case arises from Guest’s representation of Allstate in an uninsured motorist (UM) claim. In March 1997, Jamie Deveney and Travis Durham (the Durhams), were involved in an automobile accident with an uninsured driver and made a UM claim against Allstate under Deveney’s automobile insurance policy. Allstate referred the case to a law firm, and the case was assigned to Ms. Guest. In 1998, Ms. Guest formed her own firm, the Guest Law Firm, P.C., where she continued to work on the Durham matter.
{3} In 2001, following the conclusion of their UM claim, the Durhams filed suit, (Durham I), alleging a number of claims in connection with the handling of their UM claim. Guest was named as a defendant, along with Allstate. Guest contacted Allstate and demanded that Allstate defend and indemnify her. According to Guest’s testimony at trial, she informed Allstate representatives that if Allstate did not defend and indemnify her she would no longer be in a position to represent Allstate due to a conflict of interest. Allstate agreed to provide Guest with a defense and engaged an attorney to represent her. The Durham I litigation was soon thereafter dismissed without prejudice.
{4} A few months later, the Durhams filed a new complaint, (Durham II) in which they expanded on the allegations in the Durham I litigation. The Durhams asserted claims against Guest in her role as arbitration counsel for Allstate alleging violations of the New Mexico Insurance Code, aiding and abetting a violation of a fiduciary duty, unjust enrichment, malicious abuse of process, malicious defense, and prima facie tort. The claims were based on the underlying premise that deceptive claims handling practices were conducted pursuant to Allstate’s aggressive national CCPR (claims core process redesign), DOLF (defense of litigated files), and SFXOL (settle for X or less) policies and procedures.
{5} Allstate, however, refused to defend Guest against the Durham II claims. As a result, Guest contacted her malpractice carrier and it retained an attorney to represent her. Guest and her attorney met with Allstate’s counsel and demanded that Allstate continue to defend Guest. Allstate refused. Following Allstate’s refusal to defend, Guest returned all of Allstate’s cases (making up eighty-five percent of Guest’s practice), with the exception of two cases that were at a stage at which their return would be too prejudicial, and declined to accept any more cases from Allstate. Ten days later, Guest’s attorney wrote Allstate demanding that Allstate reconsider its position and resume Guest’s defense. Allstate did not respond. Guest closed her law practice in November 2002, and moved to Phoenix.
{6} In early 2003, Guest’s malpractice carrier went into receivership and stopped paying for her attorney’s services. Guest again contacted Allstate and demanded that Allstate resume its obligation to defend and indemnify her. Although Allstate denied it had a continuing obligation, it agreed to provide Guest a defense, and engaged an attorney to represent her.
{7} In January 2004, Allstate began to pursue a global settlement with the Durhams, and on March 19, 2004, Allstate told Guest to settle on terms it had negotiated, or it would withdraw her defense. Guest refused to enter into the settlement agreement, which included a release of all claims she might have against the Durhams and their counsel. Allstate eventually stopped paying for Guest’s defense and Guest again obtained her own counsel.
{8} In June 2005, Guest filed suit against the Durhams’ counsel and Allstate. The trial court granted summary judgment in favor of
DISCUSSION
{9} On appeal, Allstate challenges both the jury determination of its liability and its award of damages. Specifically, Allstate raises five issues on appeal: (1) whether there was an enforceable contract; (2) whether, if an enforceable contract existed, Allstate violated its terms by withdrawing Guest’s defense; (3) whether it was error to submit the issue of prima facie tort to the jury; (4) whether the trial court abused its discretion in admitting certain testimony and documentation; and (5) whether the compensatory and punitive damage awards are supported by substantial evidence. In her cross-appeal, Guest argues that: (1) the trial court erred by reducing the jury award of punitive damages, and (2) the trial court erred by not permitting Guest to recover attorney fees. We address each of these issues below.
I. THE EXISTENCE OF A LEGAL, ENFORCEABLE CONTRACT
A. The trial court did not err by submitting the existence of a contract to the jury and the jury determination is supported by substantial evidence.
{10} Allstate challenges the trial court denial of its motion for a directed verdict and submission of whether there was a contract to the jury. Allstate argues that there was no evidence that could, as a matter of law, establish that Guest provided consideration for the alleged contract to defend and indemnify her and, as a result, the trial court erred by submitting the contract claim to the jury. We review the trial court ruling on Allstate’s directed verdict motion de novo. See Hedicke v. Gunville,
{11} Our Supreme Court held in C.E. Alexander & Sons, Inc. v. DEC Int’l, Inc.:
It is the province of the trial court to determine all questions of law, including the legal sufficiency of any asserted claim or defense. If the evidence fails to present or support an issue essential to the legal sufficiency of an asserted claim, the right to jury trial disappears. It is fundamental that the evidence adduced must support all issues of fact essential to the maintenance of a legally recognized and enforceable claim. Otherwise, there can be no basis in fact for the claim, and it must be dismissed as a matter of law.
{12} “Ordinarily, to be legally enforceable, a contract must be factually supported by an offer, an acceptance, consideration, and mutual assent.” Hartbarger v. Frank Paxton Co.,
{13} Where a contract leaves it entirely optional for one of the parties to perform, the contract is not founded on mutual promises and is, generally, not binding or enforceable. Acme Cigarette Servs., Inc. v. Gallegos,
{14} Guest presented evidence to the jury that would have permitted more than one inference regarding the existence of consideration. Specifically, Guest testified that she informed Allstate that if Allstate did not defend and indemnify her she would no longer “be in a position to handle their cases” due to a conflict of interest. When she attempted to return a case at that time, she was persuaded by Allstate to keep the case and continued her work on it, and she was assured by Allstate that it would take care of the matter. Guest further testified that she was later contacted by Allstate and was informed that Allstate would defend her and that she could choose her own counsel. Guest said that she continued to work on cases she had already accepted from Allstate, and continued to accept new cases until March 2002. Guest asserted that her agreement with Allstate was that Allstate would defend her until the Durham claims were resolved, and that she would have control over her own defense. Allstate, however, presented testimony that Guest had never promised Allstate anything in return for a defense and indemnification, that Allstate offered to pay for Guest’s defense as a gratuitous gesture, and that no contract was ever formed. We conclude that this evidence permits more than one inference about whether Allstate bargained with Guest to provide a defense in return for Guest’s continued handling of its cases. Accordingly, we conclude that, in light of this conflicting evidence as to whether a contract existed, the trial court did not err in submitting the issue to the jury.
{15} Allstate further argues that Guest’s continued work on Allstate’s cases and her acceptance of additional cases cannot constitute consideration because Guest had already closed her law practice at the time Allstate agreed to represent her. However, Allstate’s argument presupposes that the contract was entered into in early 2003, after Guest’s malpractice carrier went into receivership. Evidence contrary to this conclusion was presented at trial. Specifically, Guest testified that the contract between herself and Allstate was entered into when Durham I was filed, and the agreement was that Allstate would represent her until the Durham claims were resolved. Once again, there is conflicting evidence about when the contract was entered into and its terms. We are therefore unpersuaded by Allstate’s arguments.
B. Rule 16-108 NMRA Does Not Void the Contract
{17} Allstate contends that, even if a contract was formed, the contract to defend Guest is not enforceable because it violates Rule 16-108 of the New Mexico Rules of Professional Conduct. Allstate raised the issue with the trial court in its motion for summary judgment and motion for directed verdict at the close of Guest’s case-in-chief. At both junctures, the trial court ruled that there were issues of fact regarding the applicability of the rule to the type of transaction at issue in this ease, and if the rule was applicable, there were issues of fact regarding Guest’s compliance with its provisions.
{18} The trial court refused to resolve the issue as a matter of law. Allstate therefore requested that the trial court instruct the jury, based on Van Orman v. Nelson,
{19} Allstate contends that it was error not to find the contract void as a matter of law, and that the refusal to submit its Van Orman instruction was error. Allstate contends that, although the trial court submitted an instruction stating that attorneys and clients may not enter into business transactions, the trial court erred when it failed to further instruct the jury, as requested, that when they do, a client may void the contract.
{20} We refer to Rule 16-108(A) as the business transaction rule. It provides that an attorney may not enter into a business transaction with his or her client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client;
(2) the client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and
(3) the client consents in writing thereto.
The commentary to Rule 16-108(A) states that it does not apply “to standard commercial transactions between the lawyer and the client for products or services that the client generally markets to others.” Id. At trial, testimony provided by Guest’s legal ethics expert addressed whether or not the contract between Guest and Allstate was subject to the “standard commercial transaction” exception. However, regardless of whether the contractual relationship qualifies as a standard commercial transaction, we hold that a contract between a client and an attorney is not, as a matter of law, rendered unenforceable by Rule 16-108.
{21} The Rules of Professional Conduct have limited application outside the disciplinary process. Our Supreme Court has previously held that the former Code of Professional Responsibility was “established to discipline attorneys [and] not intended to provide a foundation for civil liability.” Garcia v. Rodey, Dickason, Sloan, Akin & Robb, P.A.,
Violation of a rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the rule. Accordingly, nothing in the rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.
{22} Further support for our holding can be found in decisions of other states concluding that a violation of the business transaction rule does not render a contract unenforceable. See Ankerman v. Mancuso,
{23} Our holding does not mean, however, that clients are without a remedy when they enter into a contract with their attorney. As indicated by the commentary to Rule 16-108, the rule against attorneys entering into business transactions with clients was promulgated to ensure that transactions between clients and attorneys remain fair and reasonable and to ensure that attorneys do not exercise an unfair advantage over their clients. To that end, “[i]f there has been ‘an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party,’ a contract may be held to be unconscionable.” Guthmann v. La Vida Llena,
{24} In Van Orman, our Supreme Court upheld the trial court judgment rescinding all conveyances between an attorney and his client.
Contracts between client and attorney will be closely scrutinized by the courts and when a client challenges the fairness of such contract the attorney has the burden of showing not only that he used no undue influence but that in every particular he acted honestly and in good faith.
Id. at 23,
{25} Finally, while we conclude that the trial court should not have submitted the issue to the jury, we hold that there was no prejudice to Allstate where the jury found either that Rule 16-108 was inapplicable, or that Guest complied with its requirements. See In re Estate of Heeter,
II. ALLSTATE DID NOT FULFILL ITS OBLIGATION UNDER THE CONTRACT
{26} Allstate contends that, even if there was a valid contract, it did not breach the contract, but satisfied all of its material terms. We understand Allstate to argue that, as a matter of law, it “satisfied any possible contractual obligation to defend and indemnify Guest” by “negotiating a settlement where Guest would be released without paying a penny.” However, Allstate has not pointed to any authorities in support of this argument. Instead, Allstate suggests that this Court should extend the rationale of cases involving the good-faith obligations of insurers to their insureds in negotiating settlements, and hold that, once Allstate negotiated a potential settlement to which Guest refused to agree, Allstate satisfied its obligation under the contract. Even if we were to apply principles from insurer-insured relationships to the present case, Allstate has not provided any authority to suggest a conclusion that it discharged its obligation by negotiating a settlement which Guest would not agree to. To the extent Allstate relies on Dairyland Insurance Co. v. Herman,
{27} In Dairyland, our Supreme Court held that an insurer has a duty to avoid exposing an insured to greater liability and settle when appropriate in order to protect the interests of the insured.
{28} Moreover, Allstate’s reliance on National Old Line Insurance Co. v. Brown,
{29} Finally, there was substantial evidence to support the jury determination that Allstate breached its contract with Guest and that it violated the implied covenant of good faith and fair dealing. See Landavazo v. Sanchez,
{30} Guest testified that when Durham I was filed she contacted Allstate and asked to be defended and indemnified, and Allstate agreed; that the terms of the agreement were that Allstate would defend her until a final conclusion was reached and that Guest would control the litigation; that when Durham II was filed, based on the same allegations, Allstate refused to defend and indemnify Guest; that Guest made multiple demands that Allstate defend her; and that once Allstate agreed to Guest’s continued defense and indemnification after Guest’s malpractice carrier became insolvent, Allstate threatened to take away Guest’s defense if she did not agree to the settlement Allstate had negotiated to fully release the Durhams and their counsel from any liability stemming from the prosecution of Durham I and II. Based on this testimony, we hold that a reasonable jury could have concluded that Allstate breached a material term of the contract by refusing to defend and indemnify Guest or failed to act in good faith by threatening to discontinue Guest’s defense if she refused to consent to the settlement agreement negotiated by Allstate. See Famiglietta v. Ivie-Miller Enters., Inc.,
{31} We therefore conclude that Allstate has failed to demonstrate that (1) it discharged
III. SUBMITTING THE CLAIM OF PRI-MA FACIE TORT TO THE JURY WAS NOT ERROR
{32} Allstate contends that the trial court erred by submitting the claim of prima facie tort to the jury and that its submission was duplicative, confused the jury, and resulted in an inconsistent verdict from which there is “no way to discern what proportion, if any, of the verdict was a result of [jury] error.” Allstate contends that the error arises because Guest’s prima facie tort claim and her breach of contract claim were both predicated on the same facts. After reviewing Allstate’s argument, we conclude that the trial court did not err by submitting the claim of prima facie tort to the jury.
{33} “Prima facie tort is intended to provide a remedy for persons harmed by acts that are intentional and malicious, but otherwise lawful, which fall outside of the rigid traditional intentional tort categories.” Bogle v. Summit Inv. Co.,
{34} In Aetna Finance Co. v. Gaither,
123, 24] {35} Allstate argues that the factual predicate for Guest’s breach of contract and prima facie tort claim are the same, and therefore the trial court erred by submitting both claims to the jury. We disagree. As this Court noted in Healthsource, Inc.: “[T]he value and validity of prima facie tort as a separate cause of action depends upon its ability to offer relief for the intentional infliction of harm where the actor’s otherwise lawful conduct cannot be brought within other more traditional categories of liability.”
{36} To the extent that Allstate argues that inherent inconsistencies in the jury verdict require reversal or, at the very least, a new trial, we conclude that, after having the verdict read aloud by the judge and the jury polled at Allstate’s request, Allstate waived its right to challenge the inconsistency in the verdict by failing to bring the matter to the trial court’s attention before the jury was discharged. See Ramos v. Rodriguez,
{37} Finally, because we hold substantial evidence supports Guest’s breach of contract claim, we do not address whether substantial evidence supports a jury determination that a prima facie tort was also committed.
IY. EVIDENTIARY ERRORS
A. Allstate Acquiesced in Admission of an E-mail as a Business Record
{38} Allstate argues that the trial court committed prejudicial error by admitting an e-mail written by the attorney retained by Allstate to represent Guest, opining that Allstate’s attorney “would fit right in at Arthur Anderson (‘start shredding’) or Enron,” as a business record. Guest argues that Allstate cannot challenge the admission of the e-mail as a business record on appeal because Allstate failed to object to its admission at trial on that basis. The trial transcript discloses that when Guest raised the issue of admission of the e-mail as a business record at trial, Allstate did not object that it was inadmissible as a business record. The only objection Allstate made was that it would be more prejudicial than probative pursuant to Rule 11-403 NMRA.
{39} In order “[t]o preserve error, [a] party must raise the same objection on appeal that was raised at trial.” Hinger v. Parker & Parsley Petroleum Co.,
{40} We therefore decline to address Allstate’s argument that the trial court erred in admitting the e-mail as a business record. We further decline to review the trial court determination that the e-mail was more probative than prejudicial. Although Allstate’s objection at trial was premised on Rule 11-403, Allstate has provided no argument or authority on appeal, indicating how the trial court abused its discretion in balancing the probative value of the e-mail against its prejudicial effect. See Allen v. Amoco Prod. Co.,
B. Admission of the McKinsey Documents Was Not Error
{41} Allstate also contends that the trial court erred by admitting documents relating to Allstate’s claims practices, referred to as the “McKinsey documents.” Allstate objected to the admission of the McKinsey documents at trial on the basis of relevance, foundation, and Rule 11-403. On appeal, this Court reviews a trial court decision to admit or exclude evidence for an abuse of discretion. See Coates v. Wal-Mart Stores, Inc.,
{42} Relevant evidence is evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 11-401 NMRA. Relevant evidence is generally admissible pursuant to Rule 11-402 NMRA, and any doubt as to whether the evidence is relevant should be resolved in favor of admissibility. See Coates,
{43} Allstate contends that the McKinsey documents were not relevant evidence because they contained recommendations regarding how Allstate handled claims by its insureds, Guest was not an insured, and not all of the recommendations were adopted by Allstate. Allstate’s argument is unpersuasive. It is not Allstate’s adoption of these recommendations or their applicability to Guest which makes them relevant. Instead, it is the impact that these documents had on Allstate’s dealings with Guest — Allstate’s desire not to make the documents public and its alleged pressure on Guest to settle in order to avoid the documents being made public — that makes the documents relevant in this case. See McNeill v. Burlington Res. Oil & Gas Co.,
{44} Allstate also argues that the trial court abused its discretion by admitting the McKinsey documents as admissions by a party-opponent, because a proper foundation for their admission was not established. Referring to Rule 11-602 NMRA, Allstate contends that Guest was unable to lay the proper foundation because she had not been involved in the drafting or compiling of the McKinsey documents and therefore had no personal knowledge regarding the documents. Rule 11-602 provides that “[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” The personal knowledge requirement of Rule 11-602 is intended to ensure that the evidence presented is reliable. See Fed.R.Evid. 602 advisory committee’s notes (stating that the personal knowledge requirement is intended to ensure the most reliable source of information); see also Albuquerque Redi-Mix, Inc. v. Scottsdale Ins. Co.,
{45} Admissions of a party opponent, however, are admissible not because the circumstances surrounding the statements make them reliable, but because they are statements made by a party opponent. See 4 Jack B. Weinstein et al., Weinstein’s Evidence ¶ 801(d)(2)[01], at 801-232 to 801-233 (1996) (stating that “[u]nlike the majority of hearsay exceptions, which are grounded upon a probability of trustworthiness, the admissibility of an admission made by the party himself does not rest upon a notion that the circumstances in which it was made furnish the trier of fact with adequate means of evaluating the statement^]” and noting that the “admissions are received because a party cannot complain about the lack of an opportunity to cross-examine himself’); see also Grace United Methodist Church v. City of Cheyenne,
{46} Our Supreme Court has recognized that “[a]n opposing party may introduce out-of-court statements made by its opponent under the theory that the declarant party is in court and has the opportunity to deny or explain such statements[.]” See State v. McClaugherty,
{47} While we hold that personal knowledge is not required for an admission by a party-opponent to be received into evidence, a foundation must still be laid. See 4 Weinstein, supra, at ¶ 801(d)(2)[01], at 801-251
{48} We hold that Guest established the requisite foundation for admission of the documents into evidence as an admission by a party-opponent. Specifically, Guest testified that the documents were Allstate’s documents that were provided to her by Allstate’s counsel. Moreover, any doubt that these documents were prepared by Allstate or at Allstate’s instruction was resolved by the subsequent testimony of the assistant vice-president of claims for Allstate, that the McKinsey documents contained both documents prepared by Allstate and documents prepared by the McKinsey Corporation at Allstate’s request.
{49} Allstate also contends that the trial court erred in balancing the probative value against the prejudicial effect of the McKinsey documents. To the extent Allstate cites Ohlson v. Kent Nowlin Construction Co.,
{50} Finally, to the extent that Allstate raises other evidentiary issues, but fails to provide legal argument or citation to authority, we do not review those issues. See Wilburn,
Y. DAMAGES
{51} Allstate raises several challenges to the jury award of damages, and Guest challenges the trial court reduction of the punitive damages in her cross-appeal. Because we conclude that Guest was not entitled to recover damages based on future earnings and we remand for a new trial on those damages to which Guest is entitled, we do not address Allstate’s other arguments or Guest’s challenge to the trial court reduction of the punitive damages.
{52} Allstate argues that Guest’s lost income as a result of Guest closing her law practice was not within the contemplation of the parties as a measure of damages arising from the breach of the contract to defend and indemnify and that the damage award was speculative. Specifically, Allstate contends that because of the nature of their relationship — an at-will, attorney-client relationship — the parties did not contemplate loss of future earnings because Allstate had the right to terminate Guest’s representation at any time and proof of future earnings was purely speculative because there was no obligation that the attorney-client relationship continue.
{53} The contract that was breached was the contract by Allstate to defend and indemnify Guest. On the other
{54} Allstate argues, based on Santa Fe Custom Shutters & Doors, Inc. v. Home Depot U.S.A., Inc.,
{55} Guest attempts to distinguish Santa Fe Custom Shutters & Doors, Inc. on the basis that there was no breach of contract in that case, while here, Allstate breached its contract with Guest to provide a defense and indemnification. While we accept this distinction, it does not undermine the applicability of the general principle noted above. A number of other jurisdictions have likewise held that future profits are not available where a business relationship is terminable at will. See, e.g., All Line, Inc. v. Rabar Corp.,
{56} We hold that, based on the specific circumstances presented by this ease, future wages or earnings that might have arisen from the relationship that was terminable at will are not recoverable. Moreover, such damages are too speculative to permit recovery. See Bakotich v. Swanson,
{57} To the extent that Guest asserts that the inducement for the defense and indemnification contract was to avoid a conflict of interest so she could continue working for Allstate, there is nothing about Guest’s ability to continue working for Allstate, which established Guest was entitled to continue representing Allstate, thus altering the nature of the at-will relationship. There was, therefore, insufficient evidence for a reasonable jury to conclude that lost profits were within the contemplation of both parties at the time the contract to defend and indemnify was formed. See Landavazo,
{58} Finally, Guest argues that, although her relationship with Allstate was terminable at will, “[i]t does not follow ... that she has no recoverable damages as a result of its breach of its contract to defend and indemnify her.” We agree. While we hold that Guest is not entitled to lost profits due to her inability to continue representing Allstate, Guest presented substantial evidence that recovery for the cost of defense and any judgment against her was within the contemplation of the parties at the time of contracting. However, it is unclear from the record what portion of the jury’s award was based on Guest’s testimony regarding her lost profits and what portion was based on Guest’s attorney fees and costs in defending against the Durhams’ claims. For this reason, we remand this matter to the trial court for a new trial on those damages to which Guest is entitled. Furthermore, since punitive damages “must be reasonably related to the injury and to any damages given as compensation,” UJI 13-1827 NMRA, we also remand the punitive damage award to be retried.
VII. ATTORNEY FEES
{59} Finally, we turn to the issue of attorney fees. Guest claims that the trial court erred by: (1) refusing to allow her to present evidence to the jury of her attorney fees and expenses incurred in the present case as an item of damages, and (2) refusing to grant her attorney fees pursuant to her post-trial motion. Guest’s argument in support of attorney fees is premised on her assertion that her contract with Allstate was a contract of insurance. We conclude that Guest’s contract with Allstate is not a contract of insurance and that the trial court did not abuse its discretion in denying Guest’s requests for attorney fees. See G & G Sens., Inc.,
{60} Guest asks this Court to view her contract with Allstate as a contract of insurance and to extend to her the rights and protections that are afforded to insureds. See Dellaira v. Farmers Ins. Exch.,
{61} The primary difference between an ordinary contract and an insurance contract is risk distribution. See 1 Eric Mills Holmes & Mark S. Rhodes, Appleman on Insurance § 1.3, at 10-11 (2d ed. 1996) (“An insurance contract differs from the ordinary contract because of risk distribution.”); 1 Holmes & Rhodes, supra, § 1.3, at 10 (“Risk sharing is the linchpin of insurance and its accompanying body of law.”); see also Group Life & Health Ins. Co. v. Royal Drug Co.,
{62} To the extent Guest argues her contract falls within the purview of the Insuranee Code, see NMSA 1978, §§ 59A-1-1 to 59A-59-4 (1993, as amended through 2007), we disagree. Mthough Guest’s indemnification contract with Místate may fit within the broad definition of “insurance” provided in Section 59A-1-5, Guest’s contract with Místate is not the type of transaction we believe the Legislature intended to address in enacting the Insurance Code. New Mexico appellate courts have acknowledged that the reasons a special and unique relationship between an insurer and an insured is recognized is due to “the inherent lack of balance in and adhesive nature of the relationship, as well as the quasi-public nature of insurance and the potential for the insurer to unscrupulously exert its unequal bargaining power at a time when the insured is particularly vulnerable.” See Dellaira,
{63} Here, there was no inherent imbalance in the bargaining power of the parties. Instead, Guest, an attorney, testified that she spoke with Místate representatives and Místate attorneys in an effort to negotiate the contract. Of equal importance, as is clear from the testimony presented at trial, Guest was not compelled to enter into a contract of adhesion. To the contrary, both parties freely negotiated the terms of the contract as they saw fit. See Albuquerque Tire Co. v. Mountain States Tel. & Tel. Co.,
{64} Guest argues based on Lieber v. ITT Hartford Insurance Center, Inc.,
{65} Finally, Guest has not identified any statutory or contractual provision, not premised on the existence of an insurance contract, that permits her to recover attorney fees. See N.M. Right to Choose/NARAL v. Johnson,
CONCLUSION
{66} We affirm the jury verdict with respect to liability, reverse the award of compensatory and punitive damages, and remand for a new trial on compensatory and punitive damages consistent with this Court’s opinion. We further affirm the trial court refusal to award Guest attorney fees.
{67} IT IS SO ORDERED.