This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 CHRIS LUTTRELL and 2 DAWN DAVIDE LUTTRELL, 3 Plaintiffs-Appellants, 4

v. NO. A-1-CA-35047 5 ROSALES LAW GROUP, P.C., 6 Defendant-Appellee, 7 and 8 AMERICAN NATIONAL PROPERTY 9 AND CASUALTY COMPANY, 10 Defendant. 11 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Alan M. Malott, District Judge 13 Mescall Law Firm, P.C. 14 Thomas J. Mescall, II 15 Phillip Patrick Baca 16 Albuquerque, NM 17 for Appellants 18 APNLAW, LLC 19 Amelia P. Nelson 202 Albuquerque, NM 1 for Appellee 2

MEMORANDUM OPINION 3 VIGIL, Judge. 4 {1} This case comes to us on appeal from the district court’s order dismissing 5 Plaintiffs Chris and Dawn Luttrell’s ac tion for damages and specific performance 6 against Defendant Rosales Law Group, P.C. For the reasons that follow, we hold that 7 the district court erred in granting Defendant’s motion, and we reverse and remand for 8 further proceedings. Because this is a memorandum opinion and the parties are 9 familiar with the facts and procedural postureof the case, we set forth only such facts 10 and law as are necessary to decide the merits. 11 BACKGROUND 12 {2} Plaintiffs’ pickup truck was stolen on March 6, 2015. At the time the pickup 13 was stolen, Plaintiffs were insured by American National Property and Casualty 14 Company (Insurer) against vehicle theft. Plai ntiffs filed an insurance claim for the 15 theft of their pickup with Insurer on March 6, 2015. 16 {3} On April 21, 2015, Plaintiffs received notification in writing that their “claim 17 file has been reassigned for further inve stigation.” Defendant was under contract to 18 conduct claims investigations for Insurer, but may have had additional duties and 193 responsibilities. On May 14, 2015, and as part of Insurer’s claims process, Defendant, 1 by and through one of its attorneys, David Ray Rosales, sent Plaintiffs a letter 2 requesting that Plaintiffs produce numerous financial, business, and tax records, as 3 well as submit to examinations under oath(EUOs). On June 26, 2014, Plaintiffs 4 requested in writing that Insurer and De fendant promptly provide them with an 5 explanation as to why their claim had not been paid. Plaintiffs submitted to EUOs 6 taken by attorney Rosales. 7 {4} At the EUO of Chris Luttrell, attorney Rosales stated that: 8 to be clear, this is not a deposition. It is not intended to be, by design, an 9 adversarial process. You are here under contract, and it is an inquiry 10 made by your carrier that ultimately should serve to benefit both parties; 11 namely, the insurance company and yourself. I’m the face of the 12 insurance company. You have an obligation under the contract to 13 substantiate [your] claim, and that’s what it is. 14 {5} As of July16, 2015, the record indicates that Insurer had not (1) recognized or 15 denied any insurance coverage for Plaintiffs ’ claim; or (2) paid or made any offer to 16 pay the claim. Neither does the record indi cate that Insurer had initiated adversarial 17 proceedings against Plaintiffs in relation totheir claim. As a result, seeking damages 18 and an order requiring Insurer to determine whether their claim would be indemnified, 19 Plaintiffs filed suit against Insurer and De fendant, alleging six c ounts pertaining to the 20 handling of their claim: (1) breach of fiduc iary duty; (2) breach of the covenant of 21 good faith and fair dealing; (3) breach of c ontract; (4) violation of the Trade Practices 224 and Fraud Article of the Insurance Code; (5) violation of the Unfair Practices Act; and 1 (6) constructive fraud. 2 {6} Defendant responded by filing a motion todismiss Plaintiffs’ action under Rule 3 1-012(B)(6) NMRA. Defendant argued that Plaintiffs’ action arose from a “calculated 4 misuse of the legal process to frustrate and interfere with the rights and obligations 5 between Plaintiffs and [Insurer under their in surance contract], as well as to obstruct 6 [Insurer]’s due process right to competent counsel.” Specifically, Defendant 7 contended that Plaintiffs’ action should bedismissed because based on the attorney8 client status of Insurer and Defendant’s relationship, Defendant owed no fiduciary 9 duties to Insurer’s adversary—Plaintiffs—and that as an attorney , David Ray Rosales 10 was not subject to liability to Plaintiffs under the Insurance Code or the Unfair 11 Practices Act, and that Pl aintiffs’ lawsuit violated public policy by interfering with 12 Insurer’s right to counsel. 13 {7} In support of its motion, Defendant attached a demand letter dated July 22, 14 2015, from counsel for Defendant to Plaintiffs, in which counsel requested that 15 Plaintiffs seek dismissal of their lawsu it against Insurer and Defendant, otherwise 16 Defendant would file a motion to dismiss and seek statutory attorney’s fees. The letter 17 further stated that Defendant could not be liable in Plaintiffs’ lawsuit since attorney 18 Rosales was functioning as In surer’s legal counsel during its work in the handling of 195 Plaintiffs’ claim. Defendant also attached th e affidavit of attorneyRosales, in which 1 attorney Rosales stated that he and De fendant had been retained by Insurer to 2 represent Insurer as counsel with regard to Plaintiffs’ insurance claim. “My role in 3 representing [Insurer,]” attorney Rosales c ontinued, “was undertaken strictly in my 4 capacity as attorney for [Insurer] and not as an investigator, adjuster, or claim 5 representative. As counsel, I reported to the adjuster assigned to” Plaintiffs’ claim. 6 Defendant also stated in its motion that In surer had retained Defendant as counsel to 7 conduct Insurer’s investigation into Plainti ffs’ insurance claim, to take the EUOs of 8 Plaintiffs, and to provide Insurer with legal advice. 9 {8} Recognizing that Defendant’s attachment of materials outside the pleadings 10 turned its motion to dismiss into a moti on for summary judgment, Plaintiffs argued 11 that a dispute as to material issues of fact in the case ex isted, including as to whether 12 Defendant was or was not acti ng as counsel for Insurer in an adversarial proceeding 13 during the course of Insurer’s handling of Plaintiffs’ claim. SeeRule 1-012(B) (“If, 14 on a motion asserting the defense [under Rule 1-012(B)(6)] to dismiss for failure of 15 the pleading to state a claim upon which relief can be granted, matters outside the 16 pleading are presented to and not excluded by the court, the motion shall be treated 17 as one for summary judgment and disposed of as provided in Rule 1-056 NMRA[.]”). 18 Specifically, Plaintiffs contended that this dispute of material fact stemmed from the 196 inconsistency between: (1) attorney Rosales’ statements to Plaintiff Chris Luttrell 1 during the taking of his EUO, that attorney Rosales served as th e “face” of Insurer in 2 its handling of Plaintiffs’ claim, and that the EUO was “not intended to be, by design, 3 an adversarial process”; (2) attorney Rosales’ May 14, 2015 letter to Plaintiffs stating 4 that “my office has been retained to assi st with gathering information for their 5 evaluation of your insurance claim”; and (3 ) attorney Rosales’ affidavit stating that 6 he and Defendant had been retained by Insurer “to represent [Insurer] with regard to 7 [Plaintiffs’] insurance claim” and that hi s representation “was undertaken strictly in 8 [his] capacity as attorney for [Insurer] and not as an investigator, adjuster, or claim 9 representative.” 10 {9} Plaintiffs also argued that under the fact s alleged in their complaint, Defendant: 11 (1) was not performing legal work assisting in the handling of Plaintiffs’ insurance 12 claim; (2) was not acting as defense counselfor Insurer in an adversarial proceeding; 13 and (3) as a result, that Defendant could be held liable for the claims alleged in 14 Plaintiffs’ complaint. 15 {10} Without a hearing and without substantive findings of fact and conclusions of 16 law, the district court granted Defendant’s motion. Plaintiffs appeal. 17 DISCUSSION 18 {11} Plaintiffs frame the critical issu e in this appeal as follows: 197 [Defendant argued below] that it was immune from suit because 1 [attorney] Rosales allegedly represented [Insurer] as an attorney, and 2 allegedly did not work as a claim investigator. 3 But these allegations were conclusively contradicted 4 by . . . Defendant[’s] previous admi ssions that [Defendant] was working 5 exclusively as a claim investigator. Infact, nowhere in the record below 6 is there any evidence that [Defendant] actually performed any legal work 7 for [Insurer]. And more significantly, [Defendant] was not sued for 8 performing legal work; instead, [Defendant] was only sued for 9 conducting an abusive claim investigation. 10 Thus, this appeal focuses on whether [Defendant] should be protected 11 from civil liability merely because it belongs to ‘a special class or 12 group[.]’ 13 (alteration omitted). In support of their position that the record demonstrated that 14 Defendant was retained merely as a third-party claim investigator or adjuster to handle 15 their insurance claim—and no t as attorneys retained by a client as counsel in an 16 adversarial proceeding entitled to protection from liability in a civil suit—Plaintiffs, 17 in pertinent part, rely upon: Hovet v. Allstate Ins. Co. , 2004-NMSC-010, 135 N.M. 18 397, 89 P.3d 69; Garcia v. Rodey, Dickason, Sloan, Akin & Robb, P.A. , 1988-NMSC19 014, 106 N.M. 757, 750 P.2d 118; Dellaira v. Farmers Ins. Exch. , 2004-NMCA-132, 20 136 N.M. 552, 102 P.3d 111; and O’Neel v. USAA Ins. Co. , 2002-NMCA-028, 131 21 N.M. 630, 41 P.3d 356. 22 {12} Defendant responds that attorney Rosales was acting as legal counsel for 23 Insurer during the investigation into Plai ntiffs’ insurance cl aim, and not as an 248 insurance adjuster. And “New Mexico legal au thority is clear that an attorney has no 1 duty to protect the interests of a non-client , adverse party for the obvious reasons that 2 the adverse party is not the intended beneficiary of the attorney’s services and that the 3 attorney’s undivided loyalty belongs to the client.” 4 {13} We agree that the arguments and authority cited by th e parties raise a potentially 5 critical question in determining whether Defendant, while investigating a pre-litigation 6 insurance claim at the requestof the Insurer, may be liable to Plaintiffs under the 7 claims alleged in their complaint. We rej ect, however, the district court’s conclusion 8 that Defendant was entitled to judgment as a matter of law in its favor, warranting 9 dismissal of Plaintiffs’ complaint. Rather, we conclude that the pleadings and record 10 below raised a genuine issue of material factas to the nature of the services Defendant 11 provided to Insurer related to the handling of Plaintiffs’ claim, foreclosing dismissal 12 of Plaintiffs’ complaint. 13 I. Standard of Review 14 {14} This court reviews motions to dismiss “f or failure to state a claim under Rule-1- 15 012(B)(6) de novo.” Tunis v. Country Club Estates Homeowners Ass’n , 2014-NMCA16 025, ¶ 16, 318 P.3d 713 (internal quotation marks and citation omitted). However, as 17 stated above, “where matters outside th e pleadings are considered on a motion to 18 dismiss for failure to state a claim, th e motion becomes one for summary judgment.” 199 Id. ¶ 17 (alterations, internal quotation marks, and citation omitted). Rule 1-056(C) 1 provides that summary judgment shall begranted “if the pleadings, depositions, 2 answers to interrogatories and admissions on f ile, together with the affidavits, if any, 3 show that there is no genuine issue as to any material fact and that the moving party 4 is entitled to a judgment as a matter of law.” Summary judgment “is not used to decide 5 an issue of fact, but, rather, to determine whether one exists.” Pharmaseal Labs., Inc. 6 v. Goffe , 1977-NMSC-071, ¶ 27, 90 N.M. 753, 568 P.2d 589. (“A motion for 7 summary judgment is not to be used as a substitute for a trial on the merits.”). Id. 8 “[W]here a conflict arises in statements made by a witness in an affidavit and 9 deposition on a material fact [to the plaintiff’s claim], summary judgment is 10 improper.” Griego v. Grieco , 1977-NMCA-018, ¶ 39, 90 N.M. 174, 561 P.2d 36. 11 II. Analysis 12 {15} In Garcia , our Supreme Court held that “in accordance with established 13 law . . . an attorney cannot be held liabl e on a cause of action in negligence to his 14 client’s adversary.” 1988-NMSC-014, ¶ 15; see id. ¶¶ 11-14 (determining that 15 attorney-defendants’ conduct in representing a client in a prior lawsuit against the 16 plaintiffs in a later case did not give rise to a duty of care owed by attorney-defendants 17 to the plaintiffs, the breach of which coul d form an action for professional negligence 18 against the attorney-defendants). This principle was reaffirmed in Hovet , where our 1910 Supreme Court held that “def ense attorneys may not be named as party-defendants in 1 claims brought under the unfair claims pr actices section. In New Mexico, defense 2 attorneys do not owe opposing parties any co mmon-law duty of care. The same is true 3 with respect to any statutory duties under the Insurance Code. The private right of 4 action under the Insurance Code is limited by statute to violations by insurance 5 companies and their agents; attorneys are not included.” 2004-NMSC-010, ¶ 27; see 6 NMSA 1978, § 59A-16-30 (1990); Durham v. Guest , 2007-NMCA-144, ¶ 36, 142 7 N.M. 817, 171 P.3d 756 (same), rev’d on other grounds, 2009-NMSC-007, 145 N.M. 8 694, 204 P.3d 19. 9 {16} Consistent with Garcia , inDellaira , this Court addressed “whether the bad faith 10 dealing rule applies betweenan insured and an entity that handles the insurance 11 function of claim determination, a function inherent in the insurance transaction.” 12 2004-NMCA-132, ¶¶ 10, 12-14. We held that it did, recognizing with approval that 13 a non-attorney third-party “entity owe[s] a duty of good faith and fair dealing to the 14 insured, even where no privity of contractexisted between the two, [where] the entity 15 ha[s] primary control over benefit determin ations, assume[s] some of the insurance 16 risk of loss, undert[akes] many of the obligations and risks of an insurer, and had the 17 power, motive, and opportunity to act unscrupulously in the investigation and 18 servicing of insurance claims.” Id. ¶ 12 (internal quotation marks and citation 1911 omitted); see also O’Neel , 2002-NMCA-028, ¶¶ 10-11 (holding that claim of bad faith 1 in failing to pay an insurance claim cause of action between insured and insurer could 2 be premised upon evidence that in its inves tigation into the insured’s claim, insurer 3 “intentionally and maliciously misrepresentedthe policy, coverage s, and duties of the 4 insured[,]” the scope of the insurer’s “examination process ignored the terms of the 5 policy[,]” the insurer “engaged in an i nquisition-style examination and documentation 6 process without justification or support[,]” and that the insurer’s claim that the insured 7 “failed to cooperate was inc onsistent with the record”). 8 {17} Under these principles, the availability of a private action under the Insurance 9 Code, unfair claims practices section, or for a breach of fiduciary duty against an 10 attorney retained by an insurer to assist inthe handling of an insured’s claim, turns on 11 whether the attorney was acting as counselin an adversary proceeding against the 12 insured or rather as a third-party claim inve stigator or adjuster. Here, attorney Rosales 13 claimed in his statements to Plaintiff Chris Luttrell during the taking of his EUO, that 14 he served as the “face” of Insurer in its inve stigation into Plaintiffs’ claim and that the 15 EUO was “not intended to be, by design, anadversarial process[.]” That Defendant 16 was merely the “face[,]” or stated another way, the agent of Insurer in an ordinary 17 claims investigation was also indicated in attorney Rosales’ May 14, 2015 letter to 18 Plaintiffs stating that “my office has been retained to assist with gathering information 1912 for their evaluation of your insurance claim. ” However, attorney Rosales contradicted 1 these statements in his affidavit attached to Defendant’s motion to dismiss, where he 2 stated that he and Defendant had been retained by Insurer “to represent it with regard 3 to [Plaintiffs’] insurance claim” and that his representation “was undertaken strictly 4 in [his] capacity as attorney for [Insurer] and not as an i nvestigator, adjuster, or claim 5 representative.” Moreover, in the July 22, 2015 demand letter sent from counsel for 6 Defendant to Plaintiffs, counsel wrote that Defendant could not be liable in Plaintiffs’ 7 lawsuit since attorney Rosales was func tioning as Insurer’s legal counsel during 8 Defendant’s work in the handling of Plaintiffs’ claim. 9 {18} Therefore, based on the pleadings and record before us, we conclude that 10 because there is a possibility that whether Defendant was retained as legal counsel to 11 represent Insurer in adversarial proceedings ag ainst Plaintiffs in regard to the handling 12 of Plaintiffs’ insurance claim or instead as a third-party cl aim investigator or adjuster 13 was relevant to the ultimate disposition of the case, a material issue of fact in the case 14 forecloses dismissal of Plaintiffs’ complaint under Rule 1-056(C). See Butler v. 15 Deutsche Morgan Grenfell, Inc. , 2006-NMCA-084, ¶ 45, 140 N.M. 111, 140 P.3d 532 16 (recognizing that “if there is any possibility that disputed facts might be relevant to 17 the ultimate disposition of a case, a court should be exceedingly cautious in dismissing 18 the case before discovery has occurred”); Rodriguez v. State , 1974-NMCA-083, ¶¶ 1, 1913 4, 86 N.M. 535, 525 P.2d 895 (holding that in the plaintiffs’ personal injury claim 1 against the State Highway Department for applying dangerously slick coating on the 2 surface of Highway 54 causing the plaintiffs ’ automobile accident , where statements 3 of a witness in his affidavit and deposition conflicted on the crucial question of where 4 the plaintiffs’ accident occurred, summary judgment was inappropriate). Accordingly, 5 we conclude that the district court erred in dismissing Plaintiffs’ complaint. 6 CONCLUSION 7 {19} For the reasons stated, we reverse the district court order and remand to the 8 district court for further proceedings. 9 {20} IT IS SO ORDERED. 10

__________________________________ 11 MICHAEL E. VIGIL, Judge 12

WE CONCUR: 13

___________________________________ 14 JULIE J. VARGAS, Judge 15

___________________________________ 16 STEPHEN G. FRENCH, Judge 17