Current through Register Vol. 35, No. 18, September 24, 2024
The following guidelines govern all certificates of coverage
that may be issued under cover of a letter of administration.
A. By statute, NMSA 1978, Section 59A-1-16
(C), the general services department, risk management division is expressly
exempt for the provisions of the insurance code of the state of New Mexico,
NMSA 1978, Section 59A-1-1 et seq. Certificates of coverage do not provide
insurance, but instead provide an understanding among the govnermental
entitites of the state of New Mexico about the intent of the use of funds from
the public liability fund. The public liability fund is a self-insurance
mechanism established to handle losses to or claims against covered
governmental entities. Although coverage through the fund may be in formats
like or similar to insurance policies, the relationship between the fund and
covered entities is not that of insurer and insured. No special duties, rules
of construction, or other legal doctrines recognized by the courts or created
by statute with respect to the relationship of an insurer to its insured shall
apply to the fund or entities covered by it.
C. Duty
to Defend.
(1) Pursuant to NMSA 1978, Section
41-4-23(B) (3), the general services department, risk management division may
expend money from the public liability fund to defend, save harmless, and
indemnify a governmental entity or employee of a governmental entity. This
defense extends only as far as a governmental entity's duty to provide a
defense pursuant to NMSA 1978, Section 41-4-20(A) for causes of action that may
be properly brought under the Tort Claims Act, and any defense provided by the
general services department, risk management division for any legal claim or
liability exposure is controlled by the terms of the valid and current
certificate of coverage in force at the time the claim arose, to the limits of
such certificate of coverage. The director may contract with one or more
attorneys or law firms, or with the attorney general, to defend tort liability
claims against governmental entities and their employees acting within the
scope of their duties.
(2) Pursuant
to NMSA 1978, Section 41-4-4(G) of the Tort Claims Act, the general services
department, risk management division's duty to defend continues after public
employment with the governmental entity has been terminated if the occurrence
for which damages are sought happened while the public employee was acting
within the scope of duty while the public employee was in the employ of the
governmental entity.
(3) Pursuant
to NMSA 1978, Section 41-4-17(B), any settlement or judgment in any action
brought under the act constitutes a complete bar to any further legal action on
the same occurrence against a governmental entity or public employee whose
negligence gave rise to the action. As a result of any settlement or judgment
in any action brought under the act, the duty to defend is deemed to have been
satisfied by the general services department, risk management division, and no
further duty to defend continues to exist.
D. Other than the following specified causes
of action that have been waived under the Tort Claims Act, no other causes of
action can be defended by the general services department, risk management
division. Pursuant to the Tort Claims Act, a defense shall be provided for
claims brought on the following grounds:
(1)
pursuant to NMSA 1978, Section
41-4-5
of the Tort Claims Act, liability for damages resulting from bodily injury,
wrongful death, or property damage caused by the negligence of public employees
while acting within the scope of their duties in the operation or maintenance
of any motor vehicle, aircraft or watercraft;
(2) pursuant to NMSA 1978, Section
41-4-6
of the act, liability for damages resulting from bodily injury, wrongful death,
or property damage caused by the negligence of public employees while acting
within the scope of their duties in the operation or maintenance of any
building, public park, machinery, equipment, or furnishings; provided, however,
that nothing in this subparagraph shall be construed as granting waiver of
immunity for any damages arising out of the operation or maintenance of works
used for diversion or storage of water;
(3) pursuant to NMSA 1978, Section
41-4-7 of the
act, liability for damages resulting from bodily injury, wrongful death, or
property damage caused by the negligence of public employees while acting
within the scope of their duties in the operation of airports; provided,
however, that nothing in this subparagraph shall include liability for damages
due to the existence of any condition arising out of compliance with any
federal or state law or regulation governing the use and operation of
airports;
(4) pursuant to NMSA
1978, Section
41-4-8
of the act, liability for damages resulting from bodily injury, wrongful death,
or property damage caused by the negligence of public employees while acting
within the scope of their duties in the operation of the following public
utilities and services: gas, electricity, water, solid or liquid waste
collection or disposal, heating, and ground transportation; provided, however,
that nothing in this subparagraph shall include liability for damages resulting
from bodily injury, wrongful death, or property damage caused by a failure to
provide an adequate supply of gas, water, electricity, or services or arising
out of the discharge, dispersal, release or escape of smoke, vapors, soot,
fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or
other irritants, contaminants or pollutants into or upon land, the atmosphere
or any watercourse or body of water;
(5) pursuant to NMSA 1978, Section
41-4-9
of the act, liability for damages resulting from bodily injury, wrongful death,
or property damage caused by the negligence of public employees while acting
within the scope of their duties in the operation of any hospital, infirmary,
mental institution, clinic, dispensary, medical care home, or like
facilities;
(6) pursuant to NMSA
1978, Section
41-4-10
of the act, liability for damages resulting from bodily injury, wrongful death,
or property damage caused by the negligence of public employees licensed by the
state or permitted by law to provide health care services while acting within
the scope of their duties of providing health care services;
(7) pursuant to NMSA 1978, Section
41-4-11
of the act, liability for damages resulting from bodily injury, wrongful death,
or property damage caused by the negligence of public employees while acting
within the scope of their duties during the construction, and in subsequent
maintenance of any bridge, culvert, highway, roadway, street, alley, sidewalk,
or parking area; provided, however, that nothing in this subparagraph shall
include liability for damages caused by a defect in plan or design of any
bridge, culvert, highway, roadway, street, alley, sidewalk, or parking area;
the failure to construct or reconstruct any bridge, culvert, highway, roadway,
street, alley, sidewalk, or parking area; or a deviation from standard
geometric design practices for any bridge, culvert, highway, roadway, street,
alley, sidewalk, or parking area allowed on a case-by-case basis for
appropriate cultural, ecological, economic, environmental, right-of-way through
Indian lands, historical, or technical reasons, provided the deviation is
required by extraordinary circumstances, has been approved by the governing
authority; and is reasonable and necessary as determined by the application of
sound engineering principles taking into consideration the appropriate
cultural, ecological, economic, environmental, right-of-way through Indian
lands, historical, or technical circumstances;
(8) pursuant to NMSA 1978, Section
41-4-12
of the act, liability for personal injury, bodily injury, wrongful death, or
property damage resulting from assault, battery, false imprisonment, false
arrest, malicious prosecution, abuse of process, libel, slander, defamation of
character, violation of property rights or deprivation of any rights,
privileges, or immunities secured by the constitution and laws of the United
States or New Mexico when caused by law enforcement officers while acting
within the scope of their duties;
(9) pursuant to NMSA 1978, Section 41-4-4(B)
(2) of the act, when alleged to have been committed by a public employee while
acting within the scope of their duties, liability for any violation of
property rights or any rights, privileges or immunities secured by the
constitution and laws of the United States or the constitution and laws of New
Mexico.
H. Pursuant to NMSA 1978, Section
41-4-28,
coverage which may be provided for liability arising under and subject to the
substantive law of a jurisdiction other than New Mexico, including but not
limited to other states, territories, and possessions and the United States, is
not limited by the maximum liability limits contained in NMSA 1978, Section
41-4-19, and
such coverage may be provided pursuant to the provisions of NMSA 1978, Section
41-4-28(B).
