Saiz Ex Rel. Waite v. City of Albuquerque

487 P.2d 174, 82 N.M. 746

• Court: New Mexico Court of Appeals
• Decided: June 25, 1971
• Docket: 603
• Status: Published

Opinions

OPINION

PIENDLEY, Judge.

Theresa Saiz, a minor, was injured when an automobile, driven by an Albuquerque policeman, collided with the automobile in which she was riding. The Mother, as next friend, brought suit against the city and the policeman. On a motion for summary judgment the trial court dismissed the suit as to the City of Albuquerque on the ground that § 64-25-9, N.M.S.A. 1953 (Repl. Vol. 1960, pt. 2) precludes suits against a municipality for alleged vehicular negligence.

We affirm.

At oral argument the constitutionality of § 64-25-9, supra, was raised for the first time. We are of the opinion that the constitutionality of § 64-25-9, supra, may not be properly considered by us since it was neither raised in the court below nor does it come within one of the three recognized exceptions to the rule for preservation of issues . for review. DesGeorges v. Grainger, 76 N.M. 52, 412 P.2d 6 (1966); Candelaria v. Gutierrez, 30 N.M. 195, 230 P. 436 (1924). The existence of a constitutional question does not automatically constitute an exception. Reger v. Preston, 77 N.M. 196, 420 P.2d 779 (1966); In re Reilly’s Estate, 63 N.M. 352, 319 P.2d 1069 (1957); State v. Austin, 80 N.M. 748, 461 P.2d 230 (Ct.App.1969); see Head v. New Mexico Board of Examiners in Optometry, 374 U.S. 424, 83 S.Ct. 1759, 10 L.Ed.2d 983 (1963).

Our opinion considers the relationship of § 64 — 25-9, supra, with §§ 5-6-18 through 5-6-22, N.M.S.A. 1953 (Repl.1966). Section 64-25-9, supra, states:

“Actions for injuries by state vehicles against operator — Provisions of policy— Waiver of governmental immunity — Release of claim, in excess of policy limit. —No action shall be brought or entertained in any court of this state against the state or any of its institutions, agencies or political subdivisions for injury or damage caused by the operation of such vehicles, but the action for any such injury or damage shall be brought against the person operating such vehicle at the time of the injury or damage. Every policy of insurance upon such vehicles shall contain a provision that the defense of immunity from tort liability because the insured is a governmental agency or an employee of a governmental agency, or because the accident arose out of the performance of a governmental function, shall not be raised against any claim covered by such policy. Provided the claimant, or plaintiff in the event suit is instituted, shall file with the insured and the company issuing such policy of insurance a release in writing of any amount of such claim in excess of the limit stated in the policy, and a further statement that any such release shall not be construed as an admission of liability, nor may it be offered in evidence for any purpose, and that no attempt may be made in the trial of any case to suggest the existence of any insurance which covers in whole or in part any judgment or award- in favor of the claimant.”

Because the constitutionality of § 64-25-9, supra, is not before us for determination, in our discussion we indulge in the usual presumption that legislative acts are legal and valid, and assume that that provision is constitutional. Gallegos v. Wallace, 74 N.M. 760, 398 P.2d 982 (1964); State ex rel. City of Albuquerque v. Lavender, 69 N.M. 220, 365 P.2d 652 (1961).

For purposes of our discussion we also assume the existence of liability insurance coverage for this accident. If there was no coverage there could be no suit against a political subdivision of the State. Montoya v. City of Albuquerque, 82 N.M. 90, 476 P.2d 60 (1970); Chavez v. Mountainair School Board, 80 N.M. 450, 457 P.2d 382 (Ct.App.1969). With the assumption that there was liability coverage, the issue of this case is whether the City of Albuquerque may be joined as a party with the policeman.

We think not.

It is plaintiffs’ position on appeal that in enacting §§ 5-6-18 through 5-6-22, supra, the Legislature abolished the common law defense of sovereign immunity against the action they brought. Plaintiffs recognize that City of Albuquerque v. Campbell, 68 N.M. 75, 358 P.2d 698 (1960) construed § 64-25-9, supra, to mean that the existence of insurance coverage does not automatically waive the defense of sovereign immunity. Nevertheless, they rely on the doctrine of revocation by implication. Their position is that the enactment °£ §§ 5-6-18 through 5-6-22 in 1959 destroyed the special treatment for vehicular negligence and combined all action against the state or political subdivisions in the broad and all-comprehensive language of the new sections.

We do not agree. Repeals by implication are not favored and are not resorted to unless necessary to give effect to an obvious legislative intent. Buresh v. City of Las Cruces, 81 N.M. 89, 463 P.2d 513 (1969); State v. Lujan, 76 N.M. 111, 412 P.2d 405 (1966). At issue is the effect of those provisions which deal with general liability of the State and its subdivisions, and the one provision which deals solely with vehicular liability. We are committed to the rule of statutory interpretation that a general act later enacted does not affect an earlier special act. State v. Blevins, 40 N.M. 367, 60 P.2d 208 (1936). In these situations the specific provision is considered an exception to the general act. State v. Lujan, supra.

Another approach taken by plaintiffs is that § 64-25-9, supra, was only a restatement of the Common Law at the time § 64-25-8, N.M.S.A. 1953 (Repl.Vol.1960, pt. 2) was enacted to emphasize that by permitting the purchase of insurance coverage the Legislature did not intend to abolish the common law defense of sovereign immunity. And so, according to plaintiffs, when §§ 5-6-18 through 5-6-22, supra, were enacted the common law defense of sovereign immunity, along with its restatement § 64-25-9, supra, was repealed to the extent that there is liability coverage.

Conceding arguendo that in fact § 64— 25-9, supra, is a mere restatement of the common law, this'statute specifically states that “no action is to be brought against the political subdivision of the State.” This includes municipalities. City of Albuquerque v. Campbell, supra. Since § 64-25-9, supra, has specific provisions concerning suing the municipality and since § 5-6-18 through 5-6-22, supra, are general provisions concerning such suits, the specific statute was not repealed, but applies to later enacted acts.

Plaintiffs query “why should the state and its municipalities be immune from suit in only actions involving negligence arising from the operation of motor vehicles.” Our answer is that there is nothing unreasonable per se in such classification and the Legislature is vested with wide range discretion in selecting and classifying. Romero v. Tilton, 78 N.M. 696, 437 P.2d 157 (Ct,App.1967).

Plaintiffs have cited several cases and urged other positions about the interpretations of §§ 5-6-18 through 5-6-22, supra.

We need not consider these, for, as we have discussed above, those sections are general provisions which do not cover the fact situation before us.

Affirmed.

It is so ordered.

WOOD, J., concurs.