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Romero v. Pueblo of Sandia/Sandia Casino9/29/2003
45, 6 (citing NMSA 1978, ยง 66-5-221(E)(1) (1983) (repealed effective July 1, 1998)). According to Cigna, the absence of similar language in the Compact signals that it was not designed to permit joinder. We agree with Cigna that the repealed MFRA provision contributed to the conclusion that the MFRA "manifests an intent that the liability carrier be joined as a defendant." Id. Subsequently, however, Martinez clarified that even without the absolute liability provision, the MFRA satisfies the third factor required for joinder simply because it contains no express language negating joinder. 2002-NMSC-015, 11. In short, repeal of the absolute liability provision did not change the outcome of the Raskob analysis. Consequently, we are unpersuaded by Cigna's attempt to distinguish the Compact based on the absence of a similar provision in the Compact.
Whether Plaintiffs Must Allege the Three Factors for Joinder in Their Complaint
Cigna argues for the first time on appeal that Plaintiffs were required to plead the Raskob factors in order to survive Cigna's motion to dismiss for failure to state a claim. See Rule 1-012(B)(6). Cigna did not make this argument in its motion to dismiss or at the hearing on its motion. Because Cigna did not preserve this issue below, we do not address it. We will not affirm on grounds not presented to the trial court when to do so would be unfair to the appellant. Pinnell v. Bd. of County Comm'rs, 1999-NMCA-074, 14, 127 N.M. 452, 982 P.2d 503. In this case, Cigna did not answer the complaint, instead filing a motion to dismiss. Under these circumstances, Plaintiffs could have amended their complaint to plead the allegations Cigna contends should have been pleaded. See Rule 1-015(A) NMRA 2003. Therefore, it would be unfair to Plaintiffs to rely on this ground for affirmance.
Whether Error was Harmless
Cigna argues that even if the trial court erred in refusing to permit joinder, such error was harmless. We disagree. Martinez upheld the Raskob rule permitting joinder of an insurer. Martinez, 2002-NMSC-015, 11. Reading Raskob and Martinez together reflects that the Supreme Court did not contemplate the application of harmless error analysis in this context.
CONCLUSION
For the foregoing reasons, we reverse and remand for further proceedings consistent with this opinion.
IT IS SO ORDERED.
CYNTHIA A. FRY, Judge
WE CONCUR:
LYNN PICKARD, Judge
JONATHAN B. SUTIN, Judge
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