Tort Claims

NMSA 1978 ch. 41, art. 4

in effect

NMSA 1978, § 41-4-1 Short title

41-4-1. Short title Sections 41-4-1 through 41-4-27 NMSA 1978 [and 41-4-30 NMSA 1978] may be cited as the "Tort Claims Act". 1953 Comp., § 5-14-1, enacted by Laws 1976, ch. 58, § 1; 1977, ch. 386, § 1; 1981, ch. 118, § 1.

NMSA 1978, § 41-4-2 Legislative declaration

41-4-2. Legislative declaration A. The legislature recognizes the inherently unfair and inequitable results which occur in the strict application of the doctrine of sovereign immunity. On the other hand, the legislature recognizes that while a private party may readily be held liable for his torts within the chosen ambit of his activity, the area within which the government has the power to act for the public good is almost without limit, and therefore government should not have the duty to do everything that might be done. Consequently, it is declared to be the public policy of New Mexico that governmental entities and public employees shall only be liable within the limitations of the Tort Claims Act and in accordance with the principles established in that act. B. The Tort Claims Act shall be read as abolishing all judicially-created categories such as "governmental" or "proprietary" functions and "discretionary" or "ministerial" acts previously used to determine immunity or liability. Liability for acts or omissions under the Tort Claims Act shall be based upon the traditional tort concepts of duty and the reasonably prudent person's standard of care in the performance of that duty. The Tort Claims Act in no way imposes a strict liability for injuries upon governmental entities or public employees. Determination of the standard of care required in any particular instance should be made with the knowledge that each governmental entity has financial limitations within which it must exercise authorized power and discretion in determining the extent and nature of its activities. 1953 Comp., § 5-14-2, enacted by Laws 1976, ch. 58, § 2.

NMSA 1978, § 41-4-3 Definitions

41-4-3. Definitions As used in the Tort Claims Act: A. "board" means the risk management advisory board; B. "governmental entity" means the state or any local public body as defined in Subsections C and H of this section; C. "local public body" means all political subdivisions of the state and their agencies, instrumentalities and institutions and all water and natural gas associations organized pursuant to Chapter 3, Article 28 NMSA 1978; D. "law enforcement officer" means a full-time salaried public employee of a governmental entity, or a certified part-time salaried police officer employed by a governmental entity, whose principal duties under law are to hold in custody any person accused of a criminal offense, to maintain public order or to make arrests for crimes, or members of the national guard when called to active duty by the governor; E. "maintenance" does not include: (1) conduct involved in the issuance of a permit, driver's license or other official authorization to use the roads or highways of the state in a particular manner; or (2) an activity or event relating to a public building or public housing project that was not foreseeable; F. "public employee" means an officer, employee or servant of a governmental entity, excluding independent contractors except for individuals defined in Paragraphs (7), (8), (10), (14) and (17) of this subsection, or of a corporation organized pursuant to the Educational Assistance Act [Chapter 21, Article 21A NMSA 1978], the Small Business Investment Act [Chapter 58, Article 29 NMSA 1978] or the Mortgage Finance Authority Act [Chapter 58, Article 18 NMSA 1978] or a licensed health care provider, who has no medical liability insurance, providing voluntary services as defined in Paragraph (16) of this subsection and including: (1) elected or appointed officials; (2) law enforcement officers; (3) persons acting on behalf or in service of a governmental entity in any official capacity, whether with or without compensation; (4) licensed foster parents providing care for children in the custody of the human services department [health care authority department], corrections department or department of health, but not including foster parents certified by a licensed child placement agency; (5) members of state or local selection panels established pursuant to the Adult Community Corrections Act [Chapter 33, Article 9 NMSA 1978]; (6) members of state or local selection panels established pursuant to the Juvenile Community Corrections Act [Chapter 33, Article 9A NMSA 1978]; (7) licensed medical, psychological or dental arts practitioners providing services to the corrections department pursuant to contract; (8) members of the board of directors of the New Mexico medical insurance pool; (9) individuals who are members of medical review boards, committees or panels established by the educational retirement board or the retirement board of the public employees retirement association; (10) licensed medical, psychological or dental arts practitioners providing services to the children, youth and families department pursuant to contract; (11) members of the board of directors of the New Mexico educational assistance foundation; (12) members of the board of directors of the New Mexico student loan guarantee corporation; (13) members of the New Mexico mortgage finance authority; (14) volunteers, employees and board members of court-appointed special advocate programs; (15) members of the board of directors of the small business investment corporation; (16) health care providers licensed in New Mexico who render voluntary health care services without compensation in accordance with rules promulgated by the secretary of health. The rules shall include requirements for the types of locations at which the services are rendered, the allowed scope of practice and measures to ensure quality of care; (17) an individual while participating in the state's adaptive driving program and only while using a special-use state vehicle for evaluation and training purposes in that program; (18) the staff and members of the board of directors of the New Mexico health insurance exchange established pursuant to the New Mexico Health Insurance Exchange Act [59A-23F-1 to 59A-23F-8 NMSA 1978]; and (19) members of the insurance nominating committee; G. "scope of duty" means performing any duties that a public employee is requested, required or authorized to perform by the governmental entity, regardless of the time and place of performance; and H. "state" or "state agency" means the state of New Mexico or any of its branches, agencies, departments, boards, instrumentalities or institutions. 1953 Comp., § 5-14-3, enacted by Laws 1976, ch. 58, § 3; 1977, ch. 386, § 2; 1983, ch. 123, § 2; 1983, ch. 242, § 1; 1985, ch. 76, § 1; 1988, ch. 31, § 1; 1991, ch. 29, § 1; 1991, ch. 205, § 1; 1993, ch. 195, § 1; 1993, ch. 203, § 1; 1994, ch. 123, § 1; 1995, ch. 173, § 2; 2003, ch. 399, § 3; 2007, ch. 104, § 1; 2009, ch. 8, § 2; 2009, ch. 129, § 2; 2009, ch. 249, § 2; 2013, ch. 54, § 11; 2015, ch. 11, § 2.

NMSA 1978, § 41-4-4 Granting immunity from tort liability; authorizing exceptions

41-4-4. Granting immunity from tort liability; authorizing exceptions A. A governmental entity and any public employee while acting within the scope of duty are granted immunity from liability for any tort except as waived by the New Mexico Religious Freedom Restoration Act [28-22-1 to 28-22-5 NMSA 1978] and by Sections 41-4-5 through 41-4-12 NMSA 1978. Waiver of this immunity shall be limited to and governed by the provisions of Sections 41-4-13 through 41-4-25 NMSA 1978, but the waiver of immunity provided in those sections does not waive immunity granted pursuant to the Governmental Immunity Act [41-13-1 to 41-13-3 NMSA 1978]. B. Unless an insurance carrier provides a defense, a governmental entity shall provide a defense, including costs and attorney fees, for any public employee when liability is sought for: (1) any tort alleged to have been committed by the public employee while acting within the scope of his duty; or (2) 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 when alleged to have been committed by the public employee while acting within the scope of his duty. C. A governmental entity shall pay any award for punitive or exemplary damages awarded against a public employee under the substantive law of a jurisdiction other than New Mexico, including other states, territories and possessions and the United States of America, if the public employee was acting within the scope of his duty. D. A governmental entity shall pay any settlement or any final judgment entered against a public employee for: (1) any tort that was committed by the public employee while acting within the scope of his duty; or (2) a 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 that occurred while the public employee was acting within the scope of his duty. E. A governmental entity shall have the right to recover from a public employee the amount expended by the public entity to provide a defense and pay a settlement agreed to by the public employee or to pay a final judgment if it is shown that, while acting within the scope of his duty, the public employee acted fraudulently or with actual intentional malice causing the bodily injury, wrongful death or property damage resulting in the settlement or final judgment. F. Nothing in Subsections B, C and D of this section shall be construed as a waiver of the immunity from liability granted by Subsection A of this section or as a waiver of the state's immunity from suit in federal court under the eleventh amendment to the United States constitution. G. The duty to defend as provided in Subsection B of this section shall continue after 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. H. The duty to pay any settlement or any final judgment entered against a public employee as provided in this section shall continue after employment with the governmental entity has terminated if the occurrence for which liability has been imposed happened while the public employee was acting within the scope of his duty while in the employ of the governmental entity. I. A jointly operated public school, community center or athletic facility that is used or maintained pursuant to a joint powers agreement shall be deemed to be used or maintained by a single governmental entity for the purposes of and subject to the maximum liability provisions of Section 41-4-19 NMSA 1978. J. For purposes of this section, a "jointly operated public school, community center or athletic facility" includes a school, school yard, school ground, school building, gymnasium, athletic field, building, community center or sports complex that is owned or leased by a governmental entity and operated or used jointly or in conjunction with another governmental entity for operations, events or programs that include sports or athletic events or activities, child-care or youth programs, after-school or before-school activities or summer or vacation programs at the facility. K. A fire station that is used for community activities pursuant to a joint powers agreement between the fire department or volunteer fire department and another governmental entity shall be deemed to be operated or maintained by a single governmental entity for the purposes of and subject to the maximum liability provisions of Section 41-4-19 NMSA 1978. As used in this subsection, "community activities" means operations, events or programs that include sports or athletic events or activities, child care or youth programs, after-school or before-school activities, summer or vacation programs, health or education programs and activities or community events. 1953 Comp., § 5-14-4, enacted by Laws 1976, ch. 58, § 4; 1977, ch. 386, § 3; 1978, ch. 166, § 1; 1981, ch. 267, § 1; 1982, ch. 8, § 1; 1989, ch. 369, § 1; 1996, ch. 68, § 1; 1999, ch. 268, § 1; 2000 (2nd S.S.), ch. 17, § 6; 2001, ch. 211, § 1.

NMSA 1978, § 41-4-5 Liability; operation or maintenance of motor vehicles, aircraft and watercraft

41-4-5. Liability; operation or maintenance of motor vehicles, aircraft and watercraft The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to 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. 1953 Comp., § 5-14-5, enacted by Laws 1976, ch. 58, § 5; 1977, ch. 386, § 4.

NMSA 1978, § 41-4-6 Liability; buildings, public parks, machinery, equipment and furnishings

41-4-6. Liability; buildings, public parks, machinery, equipment and furnishings A. The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to 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. B. Nothing in this section 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. C. All irrigation and conservancy districts and their public employees acting lawfully and within the scope of their duties that authorize any part of their property to be used as part of trails within a state park, the state trails system or a trail established and managed by a local public body are excluded from the waiver of immunity under Subsection A of this section for damages arising out of the operation or maintenance of such trails if the irrigation or conservancy district has entered into a written agreement with the state agency or local public body operating or maintaining the trail and that state agency or local public body has agreed to assume the operation and maintenance of that portion of the district's property used for the trail; the state agency or local public body operating or maintaining the trail shall be subject to liability as provided in the Tort Claims Act. 1953 Comp., § 5-14-6, enacted by Laws 1976, ch. 58, § 6; 1977, ch. 386, § 5; 2007, ch. 207, § 1.

NMSA 1978, § 41-4-7 Liability; airports

41-4-7. Liability; airports A. The immunity granted pursuant to Subsection A of Section 4 [41-4-4 NMSA 1978] of the Tort Claims Act does not apply to 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. B. The liability imposed pursuant to Subsection A of this section shall not 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. 1953 Comp., § 5-14-7, enacted by Laws 1976, ch. 58, § 7.

NMSA 1978, § 41-4-8 Liability; public utilities

41-4-8. Liability; public utilities A. The immunity granted pursuant to Subsection A of Section 4 [41-4-4 NMSA 1978] of the Tort Claims Act does not apply to 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. B. The liability imposed pursuant to Subsection A of this section shall not include liability for damages resulting from bodily injury, wrongful death or property damage: (1) caused by a failure to provide an adequate supply of gas, water, electricity or services as described in Subsection A of this section; or (2) 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. 1953 Comp., § 5-14-8, enacted by Laws 1976, ch. 58, § 8.

NMSA 1978, § 41-4-9 Liability; medical facilities

41-4-9. Liability; medical facilities The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to 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. 1953 Comp., § 5-14-9, enacted by Laws 1976, ch. 58, § 9; 1977, ch. 386, § 6.

NMSA 1978, § 41-4-10 Liability; health care providers

41-4-10. Liability; health care providers The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to 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. 1953 Comp., § 5-14-10, enacted by Laws 1976, ch. 58, § 10; 1977, ch. 386, § 7; 1978, ch. 166, § 2.

NMSA 1978, § 41-4-11 Liability; highways and streets

41-4-11. Liability; highways and streets A. The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to 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. B. The liability for which immunity has been waived pursuant to Subsection A of this section shall not include liability for damages caused by: (1) a defect in plan or design of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area; (2) the failure to construct or reconstruct any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area; or (3) 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 that the deviation: (a) is required by extraordinary circumstances; (b) has been approved by the governing authority; and (c) 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. C. All irrigation and conservancy districts that authorize a portion of their property to be used as a road available for use by the general public, and their employees acting lawfully and within the scope of their duties, are excluded from the waiver of immunity under Subsection A of this section in regard to that portion of property; provided that the: (1) irrigation or conservancy district has entered into a written agreement with the state agency or governmental entity operating and maintaining that road; and (2) state agency or governmental entity has agreed to assume the operation and maintenance of that portion of the district's property used for that road. D. The state agency or governmental entity operating and maintaining the road available for use by the general public pursuant to Subsection C of this section shall be subject to liability as provided in the Tort Claims Act. 1953 Comp., § 5-14-11, enacted by Laws 1976, ch. 58, § 11; 1977, ch. 386, § 8; 1991, ch. 205, § 2; 2019, ch. 104, § 1.

NMSA 1978, § 41-4-12 Liability; law enforcement officers

41-4-12. Liability; law enforcement officers The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to 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, the independent tort of negligent spoliation of evidence or the independent tort of intentional spoliation of evidence, failure to comply with duties established pursuant to statute or law or any other 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. For purposes of this section, "law enforcement officer" means a public officer or employee vested by law with the power to maintain order, to make arrests for crime or to detain persons suspected of or convicted of committing a crime, whether that duty extends to all crimes or is limited to specific crimes. 1953 Comp., § 5-14-12, enacted by Laws 1976, ch. 58, § 12; 1977, ch. 386, § 9; 2020, ch. 5, § 14; 2020 (1st S.S.), ch. 7, § 3.

NMSA 1978, § 41-4-13 Exclusions from waiver of immunity; community ditches or acequias; Sanitary Projects Act associations

41-4-13. Exclusions from waiver of immunity; community ditches or acequias; Sanitary Projects Act associations All community ditches or acequias, and their public employees acting lawfully and within the scope of their duties, and all associations created pursuant to the Sanitary Projects Act [Chapter 3, Article 29 NMSA 1978] are excluded from the waiver of immunity of liability under Sections 41-4-6 through 41-4-12 NMSA 1978. 1953 Comp., § 5-14-12.1, enacted by Laws 1977, ch. 386, § 10; 2006, ch. 54, § 1; 2006, ch. 55, § 1.

NMSA 1978, § 41-4-14 Defenses

41-4-14. Defenses A governmental entity and its public employees may assert any defense available under the law of New Mexico. 1953 Comp., § 5-14-13, enacted by Laws 1976, ch. 58, § 13.

NMSA 1978, § 41-4-15 Statute of limitations

41-4-15. Statute of limitations A. Actions against a governmental entity or a public employee for torts shall be forever barred, unless such action is commenced within two years after the date of occurrence resulting in loss, injury or death, except that a minor under the full age of seven years shall have until his ninth birthday in which to file. This subsection applies to all persons regardless of minority or other legal disability. B. The provisions of Subsection A of this section shall not apply to any occurrence giving rise to a claim which occurred before July 1, 1976. 1953 Comp., § 5-14-14, enacted by Laws 1976, ch. 58, § 14; 1977, ch. 386, § 11.

NMSA 1978, § 41-4-16 Notice of claims

41-4-16. Notice of claims A. Every person who claims damages from the state or any local public body under the Tort Claims Act shall cause to be presented to the risk management division for claims against the state, the mayor of the municipality for claims against the municipality, the superintendent of the school district for claims against the school district, the county clerk of a county for claims against the county, or to the administrative head of any other local public body for claims against such local public body, within ninety days after an occurrence giving rise to a claim for which immunity has been waived under the Tort Claims Act, a written notice stating the time, place and circumstances of the loss or injury. B. No suit or action for which immunity has been waived under the Tort Claims Act shall be maintained and no court shall have jurisdiction to consider any suit or action against the state or any local public body unless notice has been given as required by this section, or unless the governmental entity had actual notice of the occurrence. The time for giving notice does not include the time, not exceeding ninety days, during which the injured person is incapacitated from giving the notice by reason of injury. C. When a claim for which immunity has been waived under the Tort Claims Act is one for wrongful death, the required notice may be presented by, or on behalf of, the personal representative of the deceased person or any person claiming benefits of the proceeds of a wrongful death action, or the consular officer of a foreign country of which the deceased was a citizen, within six months after the date of the occurrence of the injury which resulted in the death; but if the person for whose death the claim is made has presented a notice that would have been sufficient had he lived, an action for wrongful death may be brought without any additional notice. 1953 Comp., § 5-14-14.1, enacted by Laws 1977, ch. 386, § 12.

NMSA 1978, § 41-4-16.1 Civil action; damages incurred while imprisoned; notice to victim

41-4-16.1. Civil action; damages incurred while imprisoned; notice to victim Upon the filing of a civil action by an individual or his personal representative against the state for damages incurred while imprisoned in a state corrections facility, the district court clerk shall issue notice of the filing of that action to the corrections and criminal rehabilitation department [corrections department] which shall forward a copy of the notice to the victim of the crime for which that individual was imprisoned. If the civil action is filed in a federal forum, the individual or personal representative shall issue the required notice to the department. Laws 1981, ch. 117, § 1.

NMSA 1978, § 41-4-17 Exclusiveness of remedy

41-4-17. Exclusiveness of remedy A. The Tort Claims Act shall be the exclusive remedy against a governmental entity or public employee for any tort for which immunity has been waived under the Tort Claims Act and no other claim, civil action or proceeding for damages, by reason of the same occurrence, may be brought against a governmental entity or against the public employee or his estate whose act or omission gave rise to the suit or claim. No rights of a governmental entity to contribution, indemnity or subrogation shall be impaired by this section, except a governmental entity or any insurer of a governmental entity shall have no right to contribution, indemnity or subrogation against a public employee unless the public employee has been found to have acted fraudulently or with actual intentional malice causing the bodily injury, wrongful death, property damage or violation of rights, privileges or immunities secured by the constitution and laws of the United States or laws of New Mexico resulting in the settlement or final judgment. Nothing in this section shall be construed to prohibit any proceedings for mandamus, prohibition, habeas corpus, certiorari, injunction or quo warranto. B. The settlement or judgment in an action under the Tort Claims Act shall constitute a complete bar to any action by the claimant, by reason of the same occurrence against a governmental entity or the public employee whose negligence gave rise to the claim. C. No action brought pursuant to the provisions of the Tort Claims Act shall name as a party any insurance company insuring any risk for which immunity has been waived by that act. 1953 Comp., § 5-14-15, enacted by Laws 1976, ch. 58, § 15; 1977, ch. 386, § 13; 1982, ch. 8, § 2.

NMSA 1978, § 41-4-18 Jurisdiction; appeals; venue

41-4-18. Jurisdiction; appeals; venue A. Exclusive original jurisdiction for any claim under the Tort Claims Act shall be in the district courts of New Mexico. Appeals may be taken as provided by law. B. Venue for any claim against the state or its public employees, pursuant to the Tort Claims Act, shall be in the district court for the county in which a plaintiff resides, or in which the cause of action arose, or in Santa Fe county. Venue for all other claims pursuant to the Tort Claims Act, shall be in the county in which the principal offices of the governing body of the local public body are located. 1953 Comp., § 5-14-16, enacted by Laws 1976, ch. 58, § 16.

NMSA 1978, § 41-4-19 Maximum liability

41-4-19. Maximum liability A. Unless limited by Subsection B of this section, in any action for damages against a governmental entity or a public employee while acting within the scope of the employee's duties as provided in the Tort Claims Act, the liability shall not exceed: (1) the sum of two hundred thousand dollars ($200,000) for each legally described real property for damage to or destruction of that legally described real property arising out of a single occurrence; (2) the sum of three hundred thousand dollars ($300,000) for all past and future medical and medically related expenses arising out of a single occurrence; and (3) the sum of four hundred thousand dollars ($400,000) to any person for any number of claims arising out of a single occurrence for all damages other than real property damage and medical and medically related expenses as permitted under the Tort Claims Act. B. The total liability for all claims pursuant to Paragraphs (1) and (3) of Subsection A of this section that arise out of a single occurrence shall not exceed seven hundred fifty thousand dollars ($750,000). C. Interest shall be allowed on judgments against a governmental entity or public employee for a tort for which immunity has been waived under the Tort Claims Act at a rate equal to two percentage points above the prime rate as published in the Wall Street Journal on the date of the entry of the judgment. Interest shall be computed daily from the date of the entry of the judgment until the date of payment. D. No judgment against a governmental entity or public employee for any tort for which immunity has been waived under the Tort Claims Act shall include an award for exemplary or punitive damages or for interest prior to judgment. 1953 Comp., § 5-14-3, enacted by Laws 1976, ch. 58, § 17; 1977, ch. 386, § 14; 1991, ch. 205, § 3; 2004, ch. 108, § 1; 2007, ch. 121, § 1.

NMSA 1978, § 41-4-20 Coverage of risks; insurance

41-4-20. Coverage of risks; insurance A. It shall be the duty of governmental entities to cover every risk for which immunity has been waived under the provisions of the Tort Claims Act or any liability imposed under Section 41-4-4 NMSA 1978 as follows: (1) local public bodies shall cover every such risk or liability as follows: (a) for a risk for which immunity has been waived pursuant to Sections 41-4-9, 41-4-10 and 41-4-12 NMSA 1978, the local public body shall cover the risk, and for any commercially uninsurable risk for which public liability fund coverage is made available, the local public body may insure the risk in accordance with the provisions of Section 41-4-25 NMSA 1978; (b) for excess liability for damages 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 of America, the local public body shall provide coverage in accordance with the provisions of Subsection B of Section 41-4-27 [41-4-28] NMSA 1978, if coverage is available; and (c) for a risk or liability not covered pursuant to Subparagraphs (a) and (b) of this paragraph, the local public body shall purchase insurance, establish reserves or provide a combination of insurance and reserves or provide insurance in any other manner authorized by law; and (2) for state agencies, the risk management division shall insure or otherwise cover every such risk or liability in accordance with the provisions of Section 41-4-23 NMSA 1978. Coverage shall include but is not limited to coverage for all such 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 of America. B. The department of finance and administration shall not approve the budget of any governmental entity that has not budgeted an adequate amount of money to insure or otherwise cover pursuant to this section or Section 3-62-2 NMSA 1978 every risk of the governmental entity for which immunity has been waived under the provisions of the Tort Claims Act or liability imposed under Section 41-4-4 NMSA 1978. The public school finance division of the department of finance and administration shall not approve the budget of any school district which has failed to budget sufficient revenues to insure or otherwise cover pursuant to this section every risk for which immunity has been waived pursuant to the provisions of the Tort Claims Act or liability imposed under Section 41-4-4 NMSA 1978. C. No liability insurance may be purchased by any governmental entity other than as authorized by the Tort Claims Act. Laws 1976, ch. 58, § 18; 1953 Comp., § 5-14-18; Laws 1977, ch. 247, § 52; 1977, ch. 386, § 15; 1978, ch. 166, § 3; 1979, ch. 287, § 4; 1979, ch. 392, § 2; 1981, ch. 268, § 1.

NMSA 1978, § 41-4-21 Application of act

41-4-21. Application of act The provisions of the Tort Claims Act shall not affect the provisions of any personnel act, any rules or regulations issued thereunder or any other provision of law governing the employer-employee relationship. 1953 Comp., § 5-14-19, enacted by Laws 1976, ch. 58, § 19; 1977, ch. 386, § 16.

NMSA 1978, § 41-4-22 Insurance fund

41-4-22. Insurance fund There is created the "insurance fund" to purchase insurance for the state and its public employees. Any money in the fund not needed to meet expected expenditures for the ensuing month shall be invested by the director of the risk management division with the prior approval of the state board of finance. 1953 Comp., § 5-14-20, enacted by Laws 1976, ch. 58, § 20; 1977, ch. 247, § 53.

NMSA 1978, § 41-4-23 Public liability fund created; purposes

41-4-23. Public liability fund created; purposes A. There is created the "public liability fund". The fund and any income from the fund shall be held in trust, deposited in a segregated account and invested by the general services department with the prior approval of the state board of finance. B. Money deposited in the public liability fund may be expended by the risk management division of the general services department: (1) to purchase tort liability insurance for state agencies and their employees and for any local public body participating in the public liability fund and its employees; (2) to contract with one or more consulting or claims adjusting firms pursuant to the provisions of Section 41-4-24 NMSA 1978; (3) to defend, save harmless and indemnify any state agency or employee of a state agency or a local public body or an employee of such local public body for any claim or liability covered by a valid and current certificate of coverage to the limits of such certificate of coverage; (4) to pay claims and judgments covered by a certificate of coverage; (5) to contract with one or more attorneys or law firms on a per-hour basis, or with the attorney general, to defend tort liability claims against governmental entities and public employees acting within the scope of their duties; (6) to pay costs and expenses incurred in carrying out the provisions of this section; (7) to create a retention fund for any risk covered by a certificate of coverage; (8) to insure or provide certificates of coverage to school bus contractors and their employees, notwithstanding Subsection F of Section 41-4-3 NMSA 1978, for any comparable risk for which immunity has been waived for public employees pursuant to Section 41-4-5 NMSA 1978, if the coverage is commercially unavailable; except that coverage for exposure created by Sections 41-4-9, 41-4-10 and 41-4-12 NMSA 1978 shall be provided to its member public school districts and participating other educational entities of the public school insurance authority, by the authority, and except that coverage shall be provided to a contractor and his employees only through the public school insurance authority or its successor, unless the district to which the contractor provides services has been granted a waiver by the authority or the authority is not offering the coverage for the fiscal year for which the division offers its coverage. A local school district to which the division may provide coverage may provide for marketing and servicing to be done by licensed insurance agents who shall receive reasonable compensation for their services; and (9) to insure or provide certificates of coverage for any ancillary coverage typically found in commercially available liability policies provided to governmental entities, if the coverage is commercially unavailable. C. No settlement of any claim covered by the public liability fund in excess of twenty-five thousand dollars ($25,000) shall be made unless the settlement has first been approved in writing by the director of the risk management division of the general services department. This subsection shall not be construed to limit the authority of an insurance carrier, covering any liability under the Tort Claims Act, to compromise, adjust and settle claims against governmental entities or their public employees. D. Claims against the public liability fund shall be made in accordance with rules or regulations of the director of the risk management division of the general services department. If the director of the risk management division has reason to believe that the fund would be exhausted by payment of all claims allowed during a particular state fiscal year, pursuant to regulations of the risk management division, the amounts paid to each claimant and other parties obtaining judgments shall be prorated, with each party receiving an amount equal to the percentage his own payment bears to the total of claims or judgments outstanding and payable from the fund. Any amounts due and unpaid as a result of such proration shall be paid in the following fiscal years. 1953 Comp., § 5-14-20.1, enacted by Laws 1977, ch. 386, § 17; 1978, ch. 166, § 4; 1982, ch. 8, § 3; 1983, ch. 301, § 75; 1986, ch. 102, § 8; 1989, ch. 373, § 6; 1996 (1st S.S.), ch. 3, § 5; 2000, ch. 27, § 4; 2001, ch. 177, § 1.

NMSA 1978, § 41-4-24 Consulting and claims adjusting contracts

41-4-24. Consulting and claims adjusting contracts A. Notwithstanding any other provision of law, the risk management division shall: (1) contract, as may be necessary, with a recognized insurance consulting firm to assist in the implementation of the public liability fund; and (2) contract with a recognized insurance claims adjusting firm for the handling of all claims made against the public liability fund. B. No contract shall be entered into pursuant to this section, unless proposals have been sought from two or more qualified firms. Contracts shall be awarded on the basis of cost, financial resources of the firm, service facilities in New Mexico, service reputation and experience. 1953 Comp., § 5-14-20.2, enacted by Laws 1977, ch. 386, § 18.

NMSA 1978, § 41-4-25 Public liability fund; municipal public liability fund; local public body participation; educational entity participation

41-4-25. Public liability fund; municipal public liability fund; local public body participation; educational entity participation A. Except as provided in Subsections B and C of this section, local public bodies shall obtain coverage for all risks for which immunity has been waived under the Tort Claims Act pursuant to Sections 41-4-9, 41-4-10 and 41-4-12 NMSA 1978 through the public liability fund by paying into the fund an assessment, to be determined by the director of the risk management division, which shall be based on the risks to be insured. In addition, any local public body upon application to the risk management division may obtain coverage for any risk for which immunity has been waived under the Tort Claims Act through the public liability fund if the director of the risk management division determines that: (1) the risk is, in fact, commercially uninsurable or insurable only at a cost or subject to conditions which the director deems unreasonable. To make this determination, the director may require the local public body to submit such information as he deems appropriate and may also seek information from any other source; and (2) the local public body has paid all insurance premiums and public liability fund assessments in a timely manner or has had good cause for failing to do so. The local public body shall pay for coverage of uninsurable risks by paying into the fund an assessment, to be determined by the director, which shall be based on risks to be insured. However, payment of all or part of any such assessment may be deferred or postponed without penalty until future years if the local public body certifies to the director's satisfaction that it has insufficient funds available to pay all or a part of any assessment. A municipality or county shall be deemed to have insufficient funds only if it is, in the current fiscal year, levying the full property tax millage allotted it under law and, in addition, has levied during the current fiscal year a five-mill levy above the constitutional twenty-mill limit to pay tort judgments. Any deferred or postponed assessment is payable in any succeeding fiscal year, subject to the same limitations on duty to pay, until paid in full. B. A municipality which has adopted a charter pursuant to Article 10, Section 6 of the constitution of New Mexico may, by ordinance of the governing body, elect to create a "municipal public liability fund" to insure or otherwise cover any risk for which immunity has been waived under the Tort Claims Act. A municipal public liability fund created pursuant to this subsection shall provide that: (1) the fund and any income from the fund shall be held in trust, deposited in a segregated account and invested in accordance with law; (2) any money deposited in the fund may only be expended to purchase liability insurance; to contract with one or more consulting or claims adjusting firms; to defend, save harmless and indemnify any employee of the municipality for any liability covered by the municipal public liability fund; to contract with one or more attorneys or law firms on a per-hour basis to defend tort liability claims against the municipality and its officers and employees acting within the scope of their duties; and to create a retention fund adequate to cover all uninsured risks of the municipality; (3) if the municipal public liability fund will be exhausted by the payment of all judgments and claims allowed during a particular fiscal year, amounts paid to each claimant or person obtaining a judgment shall be prorated, with each person receiving an amount equal to the percentage his own payment bears to the total of claims and judgments outstanding and payable from the fund. Any amounts due and unpaid as a result of such proration shall be paid in the following fiscal year; (4) no tort, civil rights or workers' compensation judgment shall be paid by a tax levy upon real or personal property unless the judgment exceeds one hundred thousand dollars ($100,000). The tax levy shall be made only on that portion of the judgment which is in excess of one hundred thousand dollars ($100,000). Judgments arising out of a single occurrence shall be paid by tax levies for the portions of the judgments in excess of one hundred thousand dollars ($100,000); (5) the governing body shall review all judgments set forth in Paragraph (4) of this subsection prior to transmitting them to the county assessor for inclusion in the property tax assessment. The review by the governing body shall include a finding by the governing body that the judgment properly arose under the Workers' Compensation Act [Chapter 52, Article 1 NMSA 1978] or under the Tort Claims Act. After so finding, the governing body shall by resolution direct the county assessor to provide an assessment as required; and (6) the ordinance shall not become effective until the department of finance and administration and the general services department have reviewed and approved the ordinance as complying with all of the provisions of this subsection. C. A local public body, other than one that has adopted a charter pursuant to Article 10, Section 6 of the constitution of New Mexico, may elect to obtain coverage from the public liability fund in accordance with Subsection A of this section or may: (1) purchase commercial insurance coverage for the risks for which immunity is waived under the Tort Claims Act; or (2) obtain coverage for the risks for which immunity is waived under the Tort Claims Act in accordance with the provisions of Chapter 3, Article 62 NMSA 1978. D. The risk management division may assess any local public body with a risk covered by the public liability fund: (1) a penalty in a percentage or minimum amount to be fixed by the director of the risk management division, with the advice of the board, for the failure to make timely payment of any assessment of the division; or (2) a surcharge not exceeding seventy-five percent of the rate established by the division for coverage under the public liability fund, if: (a) the local public body fails to meet any of the underwriting standards or claims procedures prescribed by regulations of the division; or (b) the local public body fails to carry out any safety program prescribed by regulations of the division. E. Any school district as defined in Section 22-1-2 NMSA 1978 or educational institution established pursuant to Chapter 21, Article 13, 16 or 17 NMSA 1978 may, upon application to and acceptance by the risk management division, purchase, if the coverage is commercially unavailable, any coverage offered by the division, through the public liability fund, including school bus coverage for school bus contractors, notwithstanding the limitation in Subsection E of Section 41-4-3 NMSA 1978; except that coverage other than for risks for which immunity has been waived pursuant to Sections 41-4-9, 41-4-10, 41-4-12 and 41-4-28 NMSA 1978 shall be provided to a school district only through the public school group insurance authority or its successor, unless the district has been granted a waiver by the authority or the authority is not offering the coverage for the fiscal year for which the division offers its coverage. A local school district to which the division may provide coverage may provide for marketing and servicing to be done by licensed insurance agents who shall receive reasonable compensation for their services. F. If any local public body fails to insure or otherwise cover any risk, the immunity for which has been waived under the provisions of the Tort Claims Act, any resident of the local public body shall have standing to bring suit to compel compliance with the provisions of the Tort Claims Act. Nothing in this section shall be construed to allow any recovery against any governmental entity for any damages resulting from the failure of the governmental entity to insure or otherwise cover any risk. G. Nothing in this section shall be construed as requiring the risk management division to provide coverage to any local public body, except coverage for those risks for which immunity has been waived under Sections 41-4-9, 41-4-10 and 41-4-12 NMSA 1978, or as requiring the division to provide coverage on terms deemed to be unreasonable by the director of the division. 1953 Comp., § 5-14-20.3, enacted by Laws 1977, ch. 386, § 19; 1978, ch. 166, § 5; 1979, ch. 10, § 1; 1979, ch. 392, § 3; 1983, ch. 301, § 76; 1986, ch. 27, § 1; 1986, ch. 102, § 9; 1988, ch. 57, § 1; 1989, ch. 372, § 1.

NMSA 1978, § 41-4-26 Home rule municipality tort claims ordinances; severability; applicability

41-4-26. Home rule municipality tort claims ordinances; severability; applicability A. Any provision of an ordinance adopted by a home rule municipality providing for the insurance or self-insurance of tort liability risks of the home rule municipality is declared to be severable if any part or application of such ordinance is held invalid. B. Any home rule municipality which has adopted an ordinance providing for the insurance or self-insurance of any or all of the tort liability risks of the municipality, shall not be eligible to participate in the public liability fund created pursuant to Section 41-4-23 NMSA 1978. C. A home rule municipality which has adopted an ordinance insuring or self-insuring its tort liability risks prior to July 1, 1978 or which has adopted an ordinance after July 1, 1978 insuring or self-insuring its tort liability risks pursuant to Subsection B of Section 41-4-25 NMSA 1978 may elect to be covered by the public liability fund created pursuant to Section 41-4-23 NMSA 1978 for the subsequent calendar years by: (1) giving notice of the repeal of its ordinance to the risk management division prior to December 1 of any calendar year; and (2) paying such assessments as may be determined by the risk management division. Occurrences giving rise to claims arising during any period of time [in] which a home rule municipality had a valid or invalid ordinance insuring or self-insuring its risks shall be governed by the ordinance in effect at the time the claims arose and not by the public liability fund created pursuant to Section 41-4-23 NMSA 1978. 1978 Comp., § 41-4-26, enacted by Laws 1978, ch. 166, § 18; 1986, ch. 27, § 2.

NMSA 1978, § 41-4-27 Home rule municipality; joint powers agreements; coverage

41-4-27. Home rule municipality; joint powers agreements; coverage A. Any county covered through the public liability fund pursuant to Subsection A of Section 41-4-25 NMSA 1978 may enter into a joint powers agreement with a home rule municipality which has elected to be covered pursuant to Subsection B of Section 41-4-25 NMSA 1978, providing for exercise of certain of the county's powers or duties under the agreement. Any such joint powers agreement may provide for public liability fund coverage of a stated percentage of risks arising from exercise of the county's powers or duties. B. Public liability fund coverage which may be provided under any such joint powers agreement shall be: (1) limited to public liability fund coverage available to the county pursuant to Subsection A of Section 41-4-25 NMSA 1978; and (2) subject to the prior approval of the risk management advisory board. C. All coverage pursuant to this section shall terminate upon the date the joint powers agreement terminates. D. For covering a risk pursuant to this section, the risk management division shall assess the county the full amount to be assessed for covering the entire risk under current regular risk management division assessment rates and schedules, plus any applicable penalties and surcharges, without adjustment based upon the percentage of risk for which the county is liable. 1978 Comp., § 41-4-27, enacted by Laws 1981, ch. 118, § 2.

NMSA 1978, § 41-4-28 Coverage for liability subject to foreign jurisdiction's law

41-4-28. Coverage for liability subject to foreign jurisdiction's law A. 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 as provided in Section 41-4-19 NMSA 1978. B. The risk management division shall purchase liability insurance coverage for all local public bodies otherwise participating in the public liability fund 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. The risk management division shall purchase such liability insurance only if the director of the risk management division determines that the coverage offered is satisfactory and available at reasonable cost. If satisfactory coverage is unavailable at reasonable cost, the risk management division may offer a certificate through the public liability fund in limits not to exceed one million dollars ($1,000,000) per occurrence. Any liability insurance shall provide coverage only for amounts in excess of the limits set forth in Section 41-4-19 NMSA 1978. Local public bodies shall obtain excess coverage for such foreign jurisdiction liability by paying into the public liability fund an assessment, determined by the director of the risk management division, based on the cost of the insurance and the risks to be insured. If such insurance is unavailable on a satisfactory basis or at reasonable cost and the risk management division does not provide a certificate or insurance with satisfactory limits, local public bodies shall cover such liability in accordance with Subparagraph (c) of Paragraph (1) of Subsection A of Section 41-4-20 NMSA 1978. C. Nothing in this section shall be construed as a waiver of any sovereign or governmental immunity. 1978 Comp., § 41-4-27, enacted by Laws 1981, ch. 268, § 2; 1986, ch. 102, § 10.

NMSA 1978, § 41-4-29 Governmental entities; health care students liability coverage; authority to purchase

41-4-29. Governmental entities; health care students liability coverage; authority to purchase A. Governmental entities may purchase public liability fund coverage, if offered, for health care liability of health care students currently enrolled in health care instructional programs provided by or through the governmental entity. B. The risk management division of the general services department may provide public liability fund coverage for health care liability of health care students currently enrolled in health care instructional programs provided by or through a governmental entity. Such coverage shall be limited to health care liability risks arising out of assigned health care instructional activities. C. This section shall not be construed as waiving or otherwise affecting any governmetal [governmental] entity's sovereign immunity or any other limitations or protections under the Tort Claims Act or any other law. This section shall not be construed as creating any right of action against any governmental entity or any of its officers, employees or servants for any activities insured pursuant to this section. Laws 1981, ch. 269, § 1; 1983, ch. 301, § 77.

NMSA 1978, § 41-4-30 Liability coverage; certain community land grants

41-4-30. Liability coverage; certain community land grants Notwithstanding the provisions of Paragraph (1) of Subsection A of Section 41-4-25 NMSA 1978 to the contrary, a community land grant governed as a political subdivision of the state upon application to the risk management division of the general services department shall be authorized to purchase coverage for any risk for which immunity has been waived under the Tort Claims Act through the public liability fund, exclusive of coverage of an activity conducted by the community land grant that is determined by the director of the risk management division pursuant to division rules to be a business enterprise. Laws 2010, ch. 22, § 1.

Source: New Mexico Compilation Commission (nmonesource.com)URL: https://nmonesource.com/nmos/nmsa-unanno/en/item/18541/index.doFetched: 10/20/2026