This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STEWART HYMANS, 7 Plaintiff-Appellant, 8

v. NO. 29,618 9 SAFECO INSURANCE COMPANY 10 OF AMERICA, STEWART FARLEY, 11 and UNKNOWN SOLAR EQUIPMENT 12 MANUFACTURERS, 13 Defendants-Appellees. 14 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 15 James A. Hall, District Judge 16 Stewart Hymans 17 Santa Fe, NM 18 Pro Se Appellant 19 Dines & Gross, P.C. 20 Robert A. Corchine 21 Steven J. Leibel 22 Albuquerque, NM 23 for Appellees Safeco Insurance Comp any of America and Stewart Farley 24 MEMORANDUM OPINION 252 WECHSLER, Judge. 1 Plaintiff Stewart Hymans appeals the district court’s grant of summary 2 judgment to Defendants Safeco Insurance Company of America (Safeco) and Stewart 3 Farley. On July 23, 2009, this Court issu ed a notice of proposed summary disposition 4 proposing affirmance. On August 17, 2009, Plaintiff filed a memorandum opposing 5 summary affirmance, which we have duly cons idered. We affirm the district court. 6 SUMMARY JUDGMENT FOR FARLEY 7 Plaintiff argues that the trial court erre d by holding that he failed to establish 8 a genuine question of material fact as to any negligence on the part of Farley. 9 “Generally, a negligence clai m requires the existence of a duty from a defendant to a 10 plaintiff, breach of that duty, which is typically based upon a standard of reasonable 11 care, and the breach being a proximate causeand cause in fact of the plaintiff’s 12 damages.” Herrera v. Quality Pontiac , 2003-NMSC-018, ¶ 6, 134 N.M. 43, 73 P.3d 13
181. 14 In his memorandum in opposition, Plainti ff continues to assert that Farley’s 15 negligence was established by certain fact s, including that Farley built the home 16 addition himself without a building permit and without inspections and that Farley 17 was the sole resident and in control of maintenance of the property. [MIO 2] We 183 agree with Plaintiff that th ese facts are understandable by an ordinary lay person with 1 no special expertise in fire investigation. [MIO 3-4] Taking these facts as true, 2 however, we fail to find anything tending to show that they proximately caused the 3 fire. As we noted in our calendar notice, there was some evidence that the fire was 4 caused by rodents chewing through electrical wires. By way of example only, to show 5 proximate cause in these circumstances, Plaintiff would need to show that Farley had 6 not exercised reasonable care in protecti ng the wires from rodent damage. Simply 7 asserting that Farley built the structure himself without a permit does not lead to a 8 conclusion that he was negligent in protec ting the wires. The same principle would 9 apply to the numerous other possible causes of the fire. 10 Some seventeen months after filing the complaint, and after acknowledging at 11 a deposition that he had no expertise in fire investigation, [RP 323-28] Plaintiff did 12 not respond to Farley’s motion for summary judgment with any expert affidavits or 13 depositions, or any other evidence showing that the fire was negligently caused. 14 “Where the movant has made a prima faci e showing, the opponent cannot rely on the 15 allegations contained in its complaint or upon the argument or contention of counsel 16 to defeat it. Rather, the opponent must come forward and establish with admissible 17 evidence that a genuine issue of fact exists.” Ciup v. Chevron U.S.A. , Inc. , 184 1996-NMSC-062, ¶ 7, 122 N.M. 537, 928 P. 2d 263 (citation omitted). In these 1 circumstances, we conclude that summary judgment was proper. 2

RES IPSA LOQUITUR 3 Plaintiff’s argument in his memorandum in opposition that the district court 4 erred in failing to apply the doctrine of res ipsa loquitur is not well taken for reasons 5 similar to those set forth above. “The doctrine of res ipsa loquitur applies only when 6 evidence establishes that in the ordinary c ourse of events an injury would not occur 7 except through negligence of the person in ex clusive control and management of the 8 injuring instrumentality.” Trujeque v. Serv. Merch. Co. , 117 N.M. 388, 391, 872 P.2d 9 361, 364 (1994); see alsoUJI 13-1623 NMRA. The district court rejected res ipsa 10 loquitur as inapplicable to this case becau se there were “multip le possible causes for 11 the events at issue.” [RP 453] 12 Again, taking rodent damage as but oneof many possible examples, there was 13 no showing, nor is it self-evident, that rodents chewing through wires and causing a 14 fire “would not occur except through negligen ce of the person in exclusive control and 15 management of the injuring instrumentality.” Trujeque , 117 N.M. at 391, 872 P.2d 16 at 364. “[M]ore than the happening of an accident is necessary to invoke the res ipsa 175 loquitur doctrine.” Hisey v. Cashway Supermarkets, Inc ., 77 N.M. 638, 639, 426 P.2d 1 784, 785 (1967). Accordingly, we conclude that the district court did not err in 2 declining to apply res ipsa loquitur. 3

SUMMARY JUDGMENT FOR SAFECO 4 Plaintiff asserts that the district court erred in finding as a matter of law that 5 Plaintiff could not pursue a claim against Safeco under the insurance code until there 6 has been a determination of liability agai nst Farley. Plaintiff relies on NMSA 1978, 7 Section 59A-16-30 (1990), which provides in relevant part: “Any person covered by 8 [the Insurance Code] who has suffered damages as a result of a violation of that article 9 by an insurer or agent is granted a right to bring an action in district court to recover 10 actual damages.” 11 We agree in principle with Plaintiff that Section 59A-16-30 provides for a cause 12 of action by a third party against an insurance company. The third party may be a 13 person to whom the insured party is liable. Hovet v. Allstate Ins. Co. , 14 2004-NMSC-010, ¶¶ 12, 17, 135 N.M . 397, 89 P.3d 69. Although Hovet is expressly 15 limited to the context of mandatory vehicle liability insurance, we believe that the 16 following precondition stated in Hovet is of more general applicability: “A third-party 176 claimant’s statutory cause of action agains t the insurer for unfair settlement practices 1 must await the conclusion of the underlyi ng negligence action between the claimant 2 and the insured.” Id. ¶¶ 24, 26. It is self-evident that the insured party’s liability to 3 the third party must be established beforethere can be any allegation of bad-faith 4 payment practices on the part of the insurer. Safeco, without litigating the question 5 of liability, paid Plaintiff $3862.95. As di scussed above, there has been no showing 6 of negligence on Farley’s part, and we therefore agree with the district court that 7 summary judgment against Plaintiff was proper on the question of liability. With the 8 question of liability unresolved by litigation, we decline to rule that Safeco should 9 have paid $5265.00 rather than $3862.95. 10 DENIAL OF LEAVE TO FILE AMENDED COMPLAINT 11 Plaintiff asserts that the district court erred in refusing to allow Plaintiff to file 12 an amended complaint. The request for leav e to file the amended complaint, with the 13 proposed complaint attached, was filed on December 1, 2008. [DS 8-9; RP 361-62, 14 371-84] In denying leave to amend, the district court stated: 15 This matter has been pending for almost two years and Defendants have 16 filed multiple motions at considerable expense based on the prior 17 complaint. To allow amendment at this late date would unfairly 18 prejudice . . . Defendants. In addition, the proposed amended complaint 19 suffers from the same legal defici encies as the prior complaint. 207 [RP 453-54] A district court’s leave to amend a complaint “shall be freely given when 1 justice so requires.” Rule 1-015(A) NMRA. 2 Plaintiff’s memorandum in opposition does not inform us how his proposed 3 amended complaint would overcome the factor s that led the district court to grant 4 summary judgment in the same decision letter in which it denied leave to amend. Our 5 own review of the proposed complaint indicates that it contains somewhat more detail 6 than the original, but makes essentially the same allegations and relies on the same 7 legal theories. [RP 371-84] Accordingly, we agree with the district court that it 8 would be unfair to both Defendants to allow amendment. 9 For the reasons set forth above and in our notice of proposed summary 10 disposition, we affirm the district court’s judgment. 11 IT IS SO ORDERED. 12

_______________________________ 13 JAMES J. WECHSLER, Judge 14 WE CONCUR: 15

_________________________________ 16 MICHAEL D. BUSTAMANTE, Judge 178 _________________________________ 1 ROBERT E. ROBLES, Judge 2