Frappier v. Mergler

752 P.2d 253, 107 N.M. 61
CourtNew Mexico Court of Appeals
DecidedMarch 15, 1988
Docket9198
StatusPublished
Cited by15 cases

This text of 752 P.2d 253 (Frappier v. Mergler) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frappier v. Mergler, 752 P.2d 253, 107 N.M. 61 (N.M. Ct. App. 1988).

Opinion

OPINION

GARCIA, Judge.

This appeal comes before the court for decision following its submission to an advisory committee pursuant to an experimental plan. See Patterson v. Environmental Improvement Div., 105 N.M. 320, 731 P.2d 1364 (Ct.App.1986); Stoll v. Dow, 105 N.M. 316, 731 P.2d 1360 (Ct.App.1986); Boucher v. Foxworth-Galbraith Lumber Co., 105 N.M. 442, 733 P.2d 1325. (Ct.App. 1986). The committee rendered a unanimous decision and the parties were so notified. We acknowledge the aid of attorneys Daniel R. Cron, William R. Federici and Joel V. Burstein, who devoted both time and effort. We express our gratitude for their voluntary service. This court has considered the transcript and briefs in this case, together with the opinion of the advisory committee. We adopt the opinion of the advisory committee in modified form. We affirm in part and reverse in part.

ISSUES

Initially, Frappier raised three issues on appeal. Frappier, however, failed to cite authority in support of her first issue and, thus, we will not address it. See In re Adoption of Doe, 100 N.M. 764, 676 P.2d 1329 (1984). Accordingly, the following issues are properly before us: (1) whether there exist genuine issues of material fact concerning whether defendants had actual notice provided by the New Mexico Tort Claims Act; and (2) whether summary judgment should be reversed as it relates to individual defendants named by plaintiff.

FACTS

Plaintiff Emiline Frappier (Frappier) filed a complaint for personal injury and monetary damages against John Mergler (Mergler); the Village of Corrales (Village); Thomas Gentry, individually and in his capacity as Mayor of the Village of Corrales (Mayor); Benjie Torres, individually and in his capacity as Chief of Police for the Village of Corrales Police Department (Chief); and the Village of Corrales Police Department (Department).

The lawsuit arose out of an intersection accident occurring on December 29, 1982. Frappier was traveling north on Corrales Road within the Village while Mergler, an on-duty police officer, was responding to an emergency call. At the time of impact, Mergler was proceeding with his emergency equipment, including flashing lights, siren and headlights fully engaged. He was passing in northbound traffic by driving in the southbound lane. Frappier was at the intersection, and while making a left-hand turn from her northbound lane, the vehicles collided.

The Bernalillo County Sheriffs Department responded to the accident, conducted an investigation and issued a police report. The narrative section of the report recited:

Vehicle # 1 [police car] was responding to call, emergency lights, siren operating, overtook vehicle # 2 [Frappier vehicle] on left side, vehicle # 2 driver did not hear siren, or see lights behind her, turned left into path of vehicle # 1[.] Vehicles collided. Vehicle # 1 also struck telephone pole and fence posts.

The police report indicated that neither Frappier nor Mergler complained of any injuries at the scene. The report did indicate, however, that each of the vehicles had sustained damage in excess of $100. Within minutes of the accident, the Chief arrived at the scene and observed that each vehicle had sustained heavy damage. The Mayor, who is a member of the fire department’s rescue unit, also appeared at the accident scene.

Within ten days of the accident, the Village filed a claim with its own insurer to recover for damages sustained by the police vehicle. The Mayor personally handled the details of the claim and made personal contact with the claims adjustor from the Village’s insurance company. The Village’s insurer received two claims as a result of the accident. One was from its own insured, the Village, and a second was submitted by a utility company for damage to a utility pole. That claim was not paid. Rather, the adjustor testified that “we had referred them [utility] to the responsible party, Mr. Frappier, Mr. or Mrs. Frappier.” The insurance company covered the damages sustained by the Village and ultimately closed its file on this matter.

Approximately two years after the accident, Frappier filed a lawsuit seeking monetary damages for personal injuries she sustained as a result of the accident. Prior to the filing of the suit, Frappier gave no written notice to the Village indicating that the governmental entity was at fault or that it would be subject to a claim or lawsuit. Moreover, Frappier had not verbally communicated with any official or employee of the Village indicating that she might pursue a claim against the Village as a consequence of the accident in question, or that she considered the accident to be the fault of any person or governmental entity that she joined as a defendant in the action.

Defendants filed a motion for summary judgment on the grounds that plaintiff had failed to demonstrate compliance with mandatory notice provisions pursuant to NMSA 1978, Section 41-4-16 (Repl.1986). The trial court granted the motion for summary judgment with respect to all defendants and Frappier appealed.

Issue I

This issue presents the question of whether the Village, through its appropriate officials, was given timely and sufficient “actual notice” of plaintiff’s claim for damages under the Tort Claims Act (TCA), NMSA 1978, Sections 41-4-1 through -27 (Repl.1986). In its motion for summary judgment, the Village contended that plaintiff failed to comply with the notice requirements of the TCA under Section 41-4-16. In summary proceedings under the TCA, the moving party has the burden of showing that notice requirements have not been met. Ferguson v. New Mexico State Highway Comm’n, 98 N.M. 718, 652 P.2d 740 (Ct.App.1981), rev’d on other grounds, New Mexico State Highway Comm’n v. Ferguson, 98 N.M. 680, 652 P.2d 230 (1982). Once the party moving for summary judgment has made a prima facie showing of its entitlement to judgment, however, it is incumbent on the party opposing the motion to demonstrate the existence of a triable issue. See Tapia v. McKenzie, 83 N.M. 116, 489 P.2d 181 (Ct.App.1971). Here, defendants’ motion for summary judgment was supported by an affidavit from the Mayor indicating that prior to receipt of the complaint, neither he nor the Village had received any notice, in writing or otherwise, of a claim by Frappier against the Village as a result of the automobile accident.

Section 41-4-16(A) places a requirement upon a claimant under the TCA to cause “written notice stating the time, place and circumstances of the loss or injury” to be presented to the appropriate administrative head of the public entity from which compensation for a claim is sought within ninety days after an occurrence. It is undisputed that Frappier did not provide written notice as required by Section 41-4-16(A).

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Bluebook (online)
752 P.2d 253, 107 N.M. 61, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frappier-v-mergler-nmctapp-1988.