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Romero v. Pueblo of Sandia/Sandia Casino9/29/2003
This case requires us to clarify the circumstances under which a plaintiff is entitled to join a defendant's liability insurer as a party to a lawsuit. Plaintiffs Evangeline Trujillo Romero and Jeff Romero appeal the dismissal of Defendant Cigna Property and Casualty (Cigna) from their personal injury action against the Pueblo of Sandia and Sandia Casino (the Casino). Plaintiffs argue that under the three-part test reiterated in Raskob v. Sanchez, 1998-NMSC-045, 3, 126 N.M. 394, 970 P.2d 580, they are entitled to join Cigna, the liability insurer for the Casino. For the reasons that follow, we agree with Plaintiffs. Accordingly, we reverse the trial court's dismissal of Cigna and remand for further proceedings consistent with this opinion.
BACKGROUND
Plaintiff Evangeline Trujillo Romero alleges that she suffered personal injuries on the Casino premises as a result of a gap in a stairway hand rail. Plaintiff Jeff Romero, her husband, alleges a claim for loss of consortium. In their negligence action against the Casino, Plaintiffs named Cigna as a party to the lawsuit, stating that Cigna provides liability insurance for the Casino. Cigna filed a motion to dismiss arguing that Plaintiffs stated no cause of action against it as the insurer. The trial court granted the motion on the basis that Cigna was not properly joined under Raskob, which contains a three-part test carving out an exception to the general rule that a plaintiff has no cause of action against the insurer of a negligent defendant. Id. Plaintiffs appeal.
DISCUSSION
We agree with Plaintiffs that joinder under the Raskob factors extends beyond cases invoking the Mandatory Financial Responsibility Act (MFRA), see NMSA 1978, §§ 66-5-201 to -239 (1978, as amended through 2003), and that the Raskob analysis applies where the Indian Gaming Compact (Compact) is the source of the statutory provision mandating liability insurance. See NMSA 1978, §§ 11-13-1 to -2 (1997). Cigna advances three arguments against reversal. Assailing the procedural foundation for Plaintiffs' appeal, Cigna contends that this Court lacks jurisdiction because Plaintiffs did not file a notice of appeal as required by Rule 12-202 NMRA 2003. Cigna further argues that, in the event that this Court has jurisdiction, the Raskob analysis does not apply to this case. Finally, Cigna maintains that the trial court's dismissal was proper under Rule 1-012(B)(6) NMRA 2003, because even if the Raskob factors apply, Plaintiffs were required to allege the three factors in their complaint and they failed to do so. We address each argument in turn.
Jurisdiction of this Court in the Absence of a Rule 12-202 Notice of Appeal
Cigna argues that this Court lacks jurisdiction because Plaintiffs did not file a notice of appeal in the trial court within thirty days of the order dismissing Cigna as a party. To address this contention, we briefly recount the relevant procedural history.
At the hearing on Cigna's motion to dismiss, the trial court indicated that it would grant Cigna's motion and also invited Plaintiffs to file an interlocutory appeal from the order of dismissal. The subsequent written order, prepared by Cigna at the trial court's request, included the requisite language permitting an interlocutory appeal. See NMSA 1978, § 39-3-4(A) (1999). Plaintiffs responded to the order of dismissal by filing an application for interlocutory appeal with this Court. However, as Cigna points out and as we stated in our calendar assignment notice to the parties, the order of dismissal constituted a final, appealable order with respect to Cigna. See Rule 1-054(B)(2) NMRA 2003 ("Whe
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