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Little v. Gill6/16/2003
We address in this appeal an issue arising from our Supreme Court's opinion in Raskob v. Sanchez, 1998-NMSC-045, 126 N.M. 394, 970 P.2d 580. Can an injured party maintain a direct action against a tortfeasor's insurer without the presence of the tortfeasor or the tortfeasor's successor or representative in the litigation? The district court held not, and we agree. We also address additional arguments concerning the district court's dismissal under Rule 1-019 NMRA 2003. We affirm.
Background
Plaintiff Elizabeth Little filed a complaint against Defendants Willard Gill and National General Insurance Co., Inc. (National General). Little alleged that she suffered personal injury in an automobile accident caused by Gill and that National General was liable to her as Gill's liability insurance carrier. Gill died during the pendency of the litigation, and National General properly served Little with a suggestion of death under Rule 1-025 NMRA 2003. Little did not act upon the suggestion of death by moving to substitute another defendant for Gill within the ninety-day period required by Rule 1-025. The district court dismissed all claims against Gill without Little's opposition. After briefing, the court also dismissed the claims against National General under Rule 1-019, concluding that Gill was a necessary party who could not be part of the litigation. Little does not dispute that Gill's insurance contract does not expressly provide for National General to defend or pay a claim of a third party unless Gill has been found liable in tort.
Requirements of Rule 1-019
Rule 1-019(A) and (B) provide:
Persons to be joined if feasible. A person who is subject to service of process shall be joined as a party in the action if:
(1) in his absence complete relief cannot be accorded among those already parties; or
(2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may:
(a) as a practical matter impair or impede his ability to protect that interest; or
(b) leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff.
Determination by court whenever joinder not feasible. If a person as described in Subparagraph (1) or (2) of Paragraph A of this rule cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for non-joinder.
Rule 1-019 has been synthesized into a three-part analysis: (1) whether a party is necessary to the litigation; (2) whether a necessary party can be joined; and (3) whether the litigation can proceed if a necessary party cannot be joined. Gallegos v. Pueblo of Tesuque, 2002-NMSC-012, 39, 132 N.M. 207, 46 P.3d 668
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