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New Mexico - Automobile Insurance Subrogation: In All 50 States

Author: Gary Wickert
Page Count: 16
Published: January 2012
Media Desc: PDF from "Automobile Insurance Subrogation: In All 50 States"
File Size: 172 KB

Originally from:

Automobile Insurance Subrogation: In All 50 States - Hardcover

Automobile Insurance Subrogation: In All 50 States - Electronic


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§ 4.32[1] Subrogation Rights

New Mexico recognizes both equitable and contractual rights of
subrogation.1 In addition to a right of subrogation, an insurer is also
entitled to enforce its contractual right of reimbursement.

A subrogated insurer is entitled to intervene into an action filed by
its insured.3 However, when an insurance company chooses not to
participate in the suit or settlement, it is assumed that it is relying on
the actions of the insured.4 Therefore, when a subrogated insurer has
given notice of its subrogation rights, it does not have a duty to
intervene into the suit or the settlement agreement in order for the
insured to protect the insurer's subrogation interest.5 This is because
there is one single and indivisible cause of action and the insured
becomes a trustee and holds the subrogation interest for the use and
benefit of the insurer.6 Such a duty on the part of the insured arises
from the language of the policy requiring reimbursement.7 An
insurer's right of subrogation can either be equitable or contractual.8
New Mexico has long recognized an insurer's subrogation rights, and
that they are entitled to protection.9

In New Mexico, a subrogated insurer is a necessary and
indispensable party to an action by the insured against a tortfeasor.10
If the subrogated carrier is not made a party to the suit and does not
take part in a settlement, the carrier's subrogation rights are not
barred under the "single cause of action" rule by virtue of the insured
having entered into a settlement with the tortfeasor.11 If the
subrogated carrier is made a party, the fact of the insurance
company's joinder to the third-party action is not to be disclosed to
the jury.12 If that is the case, the insured must assert his claim for all
damages recoverable from the tortfeasor, including any subrogated
amounts, and if the insured recovers damages, the insurance
company will then be permitted to prove its subrogation claim to the
trial court and out of the proceeds of any recovery, the court will
apportion the recovery between the insured and his insurer according
to their respective entitlements.13

Whenever an insurer proceeds with a subrogation third-party
action, the cause of action is to proceed in the name of the insured.14
When an insured pursues a claim against a tortfeasor, the insured
becomes a trustee and holds the amount of the recovery, equal to the
subrogated interest, for the use and benefit of the subrogated
carrier.15 This rule was founded on the principle that the wrongful act
is single and indivisible, and gives rise to but one liability. Therefore,
the splitting of causes of action is avoided and the tortfeasor is not
subject to the multiplicity of suits.16


Table of Contents


§ 4.32[1] Subrogation Rights
§ 4.32[2] Automobile Insurance Coverage
§ 4.32[3] No-Fault Insurance Laws
§ 4.32[4] Medical Payments Subrogation
§ 4.32[5] Personal Injury Protection (PIP) Subrogation
§ 4.32[6] Collision/Property Subrogation
§ 4.32[7] Uninsured/Underinsured Motorist Subrogation
§ 4.32[8] Release of Tortfeasor by Insured
§ 4.32[9] Accepting Partial Payments--Accord and Satisfaction
§ 4.32[10] Made Whole Doctrine
§ 4.32[11] Common Fund Doctrine
§ 4.32[12] Economic Loss Doctrine
§ 4.32[13] Reimbursement of Insured's Deductible
§ 4.32[14] Collateral Source Rule
§ 4.32[15] Contributory Negligence/Comparative Fault
§ 4.32[16] Sudden Emergency Doctrine
§ 4.32[17] Seat Belt Defense
§ 4.32[18] Rental Cars, Loaner Vehicles and Test Drivers
§ 4.32[19] Bailment
§ 4.32[20] Negligent Entrustment
§ 4.32[21] Guest Statute/Family Purpose Doctrine
§ 4.32[22] Dram Shop Liability
§ 4.32[23] Multiple Claims in Excess of Liability Policy Limits
§ 4.32[24] Conflict of Laws
§ 4.32[25] Statutes of Limitations
§ 4.32[26] Recovery of Costs/Attorney's Fees


Author Detail

Gary Wickert is an insurance trial lawyer and is regarded as one of the world's leading experts on insurance subrogation. He is also the author of several subrogation books and legal treatises and is a national and international speaker and lecturer on subrogation and motivational topics. After 15 years as the youngest managing partner in the history of the 30-lawyer Houston law firm of Hughes, Watters & Askanase, L.L.P., Mr. Wickert returned to his native Wisconsin in 1998 and co-founded the subrogation firm of Matthiesen, Wickert & Lehrer, S.C. He oversees a National Recovery Program which includes a network of nearly 285 contracted subrogation law firms in all 50 states, Mexico, Canada and the United Kingdom and boasts recoveries of more than $500 million in recoveries and credits for more than 200 insurance companies. Licensed in both Texas and Wisconsin, Mr. Wickert is double board-certified in both personal injury law and civil trial law by the Texas Board of Legal Specialization. He is also certified as a Civil Trial Advocate by the National Board of Trial Advocacy, for whom he has both written and graded the product liability questions contained on the NBTA national certification exam taken by trial lawyers around the country. For 25 years, Mr. Wickert has served as an expert witness and insurance consultant on subrogation and insurance related issues and has been consulted by insurance carriers, lawyers, and legislative bodies from several states. He is a licensed arbitrator and has attended more than 750 mediations in more than 30 different states. He has represented subrogated insurance carriers in every state, and has been admitted pro hac vice in 17 states. Gary Wickert has worked with the Texas Legislative Oversight Committee in rewriting their workers' compensation subrogation statutes, has served on the Board of the National Association of Subrogation Professionals, and has been cited as an authority on workers' compensation subrogation by several appellate courts, including the Texas Court of Appeals. He is one of only a few lawyers to have ever represented a subrogated carrier before the United States Supreme Court, and was named as one of Law & Politics magazine's "Super Lawyers" for 2005, 2006, and 2007.


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