{1} This case requires us to consider the circumstances under which a tortfeasor’s insurer may “step into the shoes” of a tort victim to later assert claims of contribution, indemnification, or subrogation against other parties who assertedly bear some responsibility for the victim’s injuries.
{2} Brenda Rapp was severely injured in a chain reaction motor vehicle accident. Rapp brought suit against only one of the parties involved in the accident. Gulf Insurance Company (Gulf) settled the suit on behalf of its insured and is now pursuing reimbursement from certain others involved in the accident. Gulf argues that it is entitled to reimbursement as a matter of pure equitable subrogation, or because its insured is jointly and severally liable with the others involved in the accident, or because Rapp assigned her causes of action against the others in the release she signed as part of the settlement. Finding that there is no basis for Gulfs claims, we affirm the district court’s grant of summary judgment dismissing Gulfs action.
BACKGROUND AND PROCEDURAL HISTORY
{3} The facts are straightforward. A tanker truck owned by Gulfs insured, Richard Lobrado, d/b/a El Rio Trucking, Inc., and driven by Rogelio Sarinana collided with a vehicle driven by Jaylene Armstrong at the intersection of State Road 202 and U.S. 70 in Roosevelt County, New Mexico. The truck was carrying liquid carbon dioxide and the collision caused the carbon dioxide to leak from the truck, forming a fog or cloud around the collision site, further obstructing visibility on an already foggy day.
{4} The resulting collisions involved seven vehicles. Shortly after the collision between the truck and Armstrong, Defendant Cottone came upon the accident scene, hit something, and thereafter stopped in the roadway. The second car, driven by Rapp, then collided with Cottone, whose vehicle was obstructing the roadway. Approaching the scene, a third vehicle, driven by Atkins, was struck by a fourth car, driven by Defendant Sandoval.
{5} All of the individuals involved in the various collisions were generally exposed to the liquid carbon dioxide. After the rear window of her car was broken, Rapp got out of the ear and was directly exposed to the liquid carbon dioxide. She sustained severe burn injuries. Rapp filed a lawsuit against Gulfs insured seeking damages for her injuries. Rapp did not join any of the other drivers in her original suit, and Gulf did not seek — at least initially — to have any of the other drivers joined in Rapp’s suit. Gulf settled Rapp’s lawsuit for $1,700,000. Rapp entered into a release of all claims with Gulf, releasing Gulfs insured of any further liability in exchange for the settlement amount. The specifics of the release are discussed in more detail later in this opinion. After settling with Rapp, Gulf filed suit against the other drivers-with the exception of Armstrong — for negligence, asserting that it was “subrogated by operation of law to Rapp’s claims against the Defendants.” 1 Defendants responded by filing motions to dismiss and motions for summary judgment. The district court treated the motions as motions for summary judgment, and granted all the motions filed by Defendants, dismissing this case with prejudice. Gulf appeals.
{6} Gulf raises three issues on appeal, arguing that the district court erred in granting summary judgment in favor of Defendants because: (1) Gulf paid the claims of the “original creditor” Rapp, and thus is classically subrogated to her rights; (2) Gulf can seek indemnifieation/eontribution from Defendants for the “enhanced damages” they caused under New Mexico’s successive tortfeasor doctrine; and (3) El Rio Trucking was engaged in an inherently dangerous activity and thus joint and several liability applies permitting Gulf to seek subrogation/contribution from Defendants. As a subargument of its successive tortfeasor theory, Gulf asserts that the release signed by Rapp acted to release all Defendants and thus effected an assignment to it, or created a right of subrogation in it, as to all of Rapp’s claims against Defendants.
STANDARD OF REVIEW
{7} Although some Defendants filed motions to dismiss and others filed motions for summary judgment, we treat the district court’s order as a grant of summary judgment. Knippel v. N. Commc’ns, Inc.,
SUBROGATION
{8} Gulf asserts that the settlement agreement between it and Rapp settled all the claims Rapp had against all Defendants. Gulf contends that, having settled the claims on behalf of all Defendants, it may now step into the shoes of Rapp and pursue claims against Defendants for their portion of liability for Rapp’s injuries. Gulf bases its argument on an expansive version of the doctrine of equitable subrogation. In Gulfs view, subrogation involves the substitution of one person in place of another with the purpose of allowing responsibility to be spread equitably among all responsible parties. Gulf specifically challenges the notion that “subrogation is limited to permitting an insurer to step into the shoes of its insured.” For the reasons set forth later in this opinion, we
{9} The most common instance of subrogation recognized by New Mexico law is that between an insurer and its insured, allowing the insurer to recover payments against the person who caused the loss. See Safeco Ins. Co. of Am. v. U.S. Fid. & Guar. Co.,
{10} Gulf offers a wholly new variant to New Mexico law: subrogation between the insurer of a tortfeasor and the tortfeasor’s victim. Gulf fails to explain how it bridges the gap between itself and the third party to whom it has paid compensation on behalf of its insured. Subrogation between an insurance company and its own insured allows the insurer to recoup what it has paid to its insured from the tortfeasor who harmed its insured. See Quality Chiropractic,
{11} We recognize that New Mexico has applied subrogation principles in disputes involving insurers only. Gulf relies heavily on one such case, State Farm Mutual Automobile Ins. Co. v. Foundation Reserve Ins. Co.,
{12} One other facet of New Mexico personal injury law argues strongly against Gulfs position. Adoption by our courts of pure comparative negligence resulted in the abolition of the doctrine of joint and several liability between defendants. Scott v. Rizzo,
{13} Viewed from this perspective, Gulfs argument appears to be little more than an attempt to circumvent the policy underpinnings of our pure comparative negligence system. Firmly entrenched as comparative negligence is, we would do well to require a compelling showing of equitable need-perhaps a demonstration of a structural fault in the system — to allow deviation from it. Gulf does not assert that there is anything wrong with the system, and its only equitable argument is that it in fact paid for all of its cotortfeasors’ liability. Even assuming that were true, we see no reason to change the basic assumption of several liability in order to accommodate what would have to be considered — by definition — a voluntary act on Gulfs part.
{14} We now turn to the out-of-state eases relied on by Gulf. We find them unpersuasive because they do not involve concurrent tortfeasors. For example, Greene v. Waters,
JOINT AND SEVERAL LIABILITY
{15} Gulf asserts that joint and several liability applies under: (1) the successive tortfeasor doctrine; and (2) the inherently dangerous activity exception to several liability. Where joint and several liability applies, each tortfeasor is liable for the entire injury, regardless of proportionate fault, leaving the defendants to sort out among themselves individual responsibilities based on proportional indemnification or contribution. Payne v. Hall,
{16} Before turning to Gulfs arguments, we briefly address Defendant Mingle’s argument on appeal that Gulf did not preserve the issue of joint and several liability. Defendant Mingle argues that Gulf did not preserve the issue because Gulf did not plead joint and several liability in either its original or amended complaint, and because Gulf in fact denied, in a letter to defense counsel, that it was relying on a theory of joint and several liability. Relying on Citizens Bank v. C & H Construction & Paving Co.,
{17} Gulf did not allege any facts in its original or amended complaint that can support the imposition of joint and several liability. Furthermore, Rapp did not allege in her complaint against Gulfs insured that any Defendants here were jointly or severally liable for her damages. In response to Gulfs amended complaint, Defendants moved for dismissal or summary judgment arguing that under New Mexico’s pure comparative fault system, Gulf was only responsible for its share of negligence in causing Rapp’s injuries. Defendants pointed out that the only
{18} Gulf asserted in response that joint and several liability does apply under the successive tortfeasor doctrine and the public policy exception to several liability. Section 41-3A-1(C)(4) (“The doctrine imposing joint and several liability shall apply ... to situations not covered [in this subsection] and having a sound basis in public policy.”). The district court’s ruling on the issue of joint and several liability reflected the parties’ arguments. See Woolwine v. Furr’s, Inc.,
SUCCESSIVE TORTFEASOR LIABILITY
{19} Gulfs first argument in its effort to establish joint and several liability is that Defendants are successive tortfeasors. Gulf relies on Lujan v. Healthsouth Rehabilitation Corp.,
{20} As we have noted, New Mexico is a pure comparative fault state. “[W]hen concurrent tortfeasors negligently cause a single, indivisible injury, the general rule is that each tortfeasor is severally responsible for its own percentage of comparative fault for that injury.” Id. ¶ 11; see also § 41-3A-1(A) (“[T]he doctrine imposing joint and several liability upon two or more wrongdoers ... is abolished ... [and t]he liability of any such defendants shall be several.”). Several liability is the general rule in New Mexico and there are only narrow exceptions to the rule of several liability. Payne,
{21} Gulf argues that joint and several liability applies here because there were two separate collisions in this case, resulting in two separate injuries. Gulf asserts that
{22} Gulf fails to establish that Rapp suffered a distinct original injury caused by the' negligence of Gulfs insured, followed by a second, distinct injury or enhancement caused by Defendants. See Payne,
THE INHERENTLY DANGEROUS ACTIVITY EXCEPTION
{23} Gulf next argues that joint and several liability applies pursuant to Section 41-3A-1(C)(4), the public policy exception to several liability. As a matter of public policy, our courts have applied the inherently dangerous activity exception to several liability in a narrow class of eases involving parties who have a nondelegable duty to control the manner in which peculiarly or inherently dangerous work is performed. See, e.g., Saiz,
{24} Gulf reasons that its insured was engaged in an inherently dangerous activity and, because the insured could not delegate its heightened duty of care, the insured was “responsible for the entirety of Rapp’s injuries and damages.” Gulf contends that “[a]t the very least,” summary judgment was improper because development of additional facts is necessary before a determination can be made as to whether “Saiz type joint and several liability applies to the facts of this case.” We do not agree.
{25} We need not reach the question of whether Gulfs insured was conducting an
THE EFFECT OF THE RELEASE
{26} Gulf argues that the release Rapp signed in favor of its insured constitutes an “assignment” of all of her rights to Gulf. Gulf contends that the assignment of all of her rights necessarily included an assignment of all her claims against Defendants. This argument runs counter to New Mexico law and the language of the release itself. We conclude that the release did not assign claims against Defendants and did not assign any rights whatsoever, including rights, if any, of subrogation or contribution.
{27} First, the language of the release contains no hint that Rapp was releasing anyone other than Gulfs insured. All of the operative paragraphs of the release refer only to Richard Lobrado, d/b/a El Rio Trucking, Rogelio Sarinana, Gulf, and Atlantic Insurance Company as the defined “Releasees.” Gulfs assertion that the release on its face includes others relies on an out-of-context misquote and misreading of the document. The plain language of the release, consistent with the law in New Mexico, releases only Gulf and its insured from any further claims by Rapp. See Hansen v. Ford Motor Co.,
{28} Second, in the context of this case, reading the release as Gulf does would run counter to Quality Chiropractic,
{29} Third, Gulf argues that the release entitles Gulf to contribution from Defendants because it satisfies Section 41-3-2(C). This argument fails because Gulfs insured and Defendants are concurrent, not successive, tortfeasors and therefore contribution among tortfeasors is inapplicable. See Wilson,
{30} Gulf relies on Kahrs v. Sanchez,
CONCLUSION
{31} Summary judgment was correctly granted in favor of all Defendants. For the reasons set forth above, we affirm.
{32} IT IS SO ORDERED.
Notes
. We refer to Defendants collectively as "Defendants” but when necessary for discussion purposes, we identify a specific defendant by name.