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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

 7 STEWART HYMANS,

 8          Plaintiff-Appellant,

 9 v.                                                                           NO. 29,618

10   SAFECO INSURANCE COMPANY
11   OF AMERICA, STEWART FARLEY,
12   and UNKNOWN SOLAR EQUIPMENT
13   MANUFACTURERS,

14          Defendants-Appellees.

15 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
16 James A. Hall, District Judge

17 Stewart Hymans
18 Santa Fe, NM

19 Pro Se Appellant

20   Dines & Gross, P.C.
21   Robert A. Corchine
22   Steven J. Leibel
23   Albuquerque, NM

24 for Appellees Safeco Insurance Company of America and Stewart Farley

25                                 MEMORANDUM OPINION
 1 WECHSLER, Judge.

 2        Plaintiff Stewart Hymans appeals the district court’s grant of summary

 3 judgment to Defendants Safeco Insurance Company of America (Safeco) and Stewart

 4 Farley. On July 23, 2009, this Court issued a notice of proposed summary disposition

 5 proposing affirmance. On August 17, 2009, Plaintiff filed a memorandum opposing

 6 summary affirmance, which we have duly considered. We affirm the district court.

 7 SUMMARY JUDGMENT FOR FARLEY

 8        Plaintiff argues that the trial court erred by holding that he failed to establish

 9 a genuine question of material fact as to any negligence on the part of Farley.

10 “Generally, a negligence claim requires the existence of a duty from a defendant to a

11 plaintiff, breach of that duty, which is typically based upon a standard of reasonable

12 care, and the breach being a proximate cause and cause in fact of the plaintiff’s

13 damages.” Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 6, 134 N.M. 43, 73 P.3d

14 181.

15        In his memorandum in opposition, Plaintiff continues to assert that Farley’s

16 negligence was established by certain facts, including that Farley built the home

17 addition himself without a building permit and without inspections and that Farley

18 was the sole resident and in control of maintenance of the property. [MIO 2] We


                                               2
 1 agree with Plaintiff that these facts are understandable by an ordinary lay person with

 2 no special expertise in fire investigation. [MIO 3-4] Taking these facts as true,

 3 however, we fail to find anything tending to show that they proximately caused the

 4 fire. As we noted in our calendar notice, there was some evidence that the fire was

 5 caused by rodents chewing through electrical wires. By way of example only, to show

 6 proximate cause in these circumstances, Plaintiff would need to show that Farley had

 7 not exercised reasonable care in protecting the wires from rodent damage. Simply

 8 asserting that Farley built the structure himself without a permit does not lead to a

 9 conclusion that he was negligent in protecting the wires. The same principle would

10 apply to the numerous other possible causes of the fire.

11        Some seventeen months after filing the complaint, and after acknowledging at

12 a deposition that he had no expertise in fire investigation, [RP 323-28] Plaintiff did

13 not respond to Farley’s motion for summary judgment with any expert affidavits or

14 depositions, or any other evidence showing that the fire was negligently caused.

15 “Where the movant has made a prima facie showing, the opponent cannot rely on the

16 allegations contained in its complaint or upon the argument or contention of counsel

17 to defeat it. Rather, the opponent must come forward and establish with admissible

18 evidence that a genuine issue of fact exists.”       Ciup v. Chevron U.S.A., Inc.,


                                              3
 1 1996-NMSC-062, ¶ 7, 122 N.M. 537, 928 P.2d 263 (citation omitted). In these

 2 circumstances, we conclude that summary judgment was proper.



 3 RES IPSA LOQUITUR

 4        Plaintiff’s argument in his memorandum in opposition that the district court

 5 erred in failing to apply the doctrine of res ipsa loquitur is not well taken for reasons

 6 similar to those set forth above. “The doctrine of res ipsa loquitur applies only when

 7 evidence establishes that in the ordinary course of events an injury would not occur

 8 except through negligence of the person in exclusive control and management of the

 9 injuring instrumentality.” Trujeque v. Serv. Merch. Co., 117 N.M. 388, 391, 872 P.2d

10 361, 364 (1994); see also UJI 13-1623 NMRA. The district court rejected res ipsa

11 loquitur as inapplicable to this case because there were “multiple possible causes for

12 the events at issue.” [RP 453]

13        Again, taking rodent damage as but one of many possible examples, there was

14 no showing, nor is it self-evident, that rodents chewing through wires and causing a

15 fire “would not occur except through negligence of the person in exclusive control and

16 management of the injuring instrumentality.” Trujeque, 117 N.M. at 391, 872 P.2d

17 at 364. “[M]ore than the happening of an accident is necessary to invoke the res ipsa


                                               4
 1 loquitur doctrine.” Hisey v. Cashway Supermarkets, Inc., 77 N.M. 638, 639, 426 P.2d

 2 784, 785 (1967). Accordingly, we conclude that the district court did not err in

 3 declining to apply res ipsa loquitur.



 4 SUMMARY JUDGMENT FOR SAFECO

 5        Plaintiff asserts that the district court erred in finding as a matter of law that

 6 Plaintiff could not pursue a claim against Safeco under the insurance code until there

 7 has been a determination of liability against Farley. Plaintiff relies on NMSA 1978,

 8 Section 59A-16-30 (1990), which provides in relevant part: “Any person covered by

 9 [the Insurance Code] who has suffered damages as a result of a violation of that article

10 by an insurer or agent is granted a right to bring an action in district court to recover

11 actual damages.”

12        We agree in principle with Plaintiff that Section 59A-16-30 provides for a cause

13 of action by a third party against an insurance company. The third party may be a

14 person to whom the insured party is liable.              Hovet v. Allstate Ins. Co.,

15 2004-NMSC-010, ¶¶ 12, 17, 135 N.M. 397, 89 P.3d 69. Although Hovet is expressly

16 limited to the context of mandatory vehicle liability insurance, we believe that the

17 following precondition stated in Hovet is of more general applicability: “A third-party


                                               5
 1 claimant’s statutory cause of action against the insurer for unfair settlement practices

 2 must await the conclusion of the underlying negligence action between the claimant

 3 and the insured.” Id. ¶¶ 24, 26. It is self-evident that the insured party’s liability to

 4 the third party must be established before there can be any allegation of bad-faith

 5 payment practices on the part of the insurer. Safeco, without litigating the question

 6 of liability, paid Plaintiff $3862.95. As discussed above, there has been no showing

 7 of negligence on Farley’s part, and we therefore agree with the district court that

 8 summary judgment against Plaintiff was proper on the question of liability. With the

 9 question of liability unresolved by litigation, we decline to rule that Safeco should

10 have paid $5265.00 rather than $3862.95.

11 DENIAL OF LEAVE TO FILE AMENDED COMPLAINT

12        Plaintiff asserts that the district court erred in refusing to allow Plaintiff to file

13 an amended complaint. The request for leave to file the amended complaint, with the

14 proposed complaint attached, was filed on December 1, 2008. [DS 8-9; RP 361-62,

15 371-84] In denying leave to amend, the district court stated:

16        This matter has been pending for almost two years and Defendants have
17        filed multiple motions at considerable expense based on the prior
18        complaint. To allow amendment at this late date would unfairly
19        prejudice . . . Defendants. In addition, the proposed amended complaint
20        suffers from the same legal deficiencies as the prior complaint.


                                                6
 1 [RP 453-54] A district court’s leave to amend a complaint “shall be freely given when

 2 justice so requires.” Rule 1-015(A) NMRA.

 3        Plaintiff’s memorandum in opposition does not inform us how his proposed

 4 amended complaint would overcome the factors that led the district court to grant

 5 summary judgment in the same decision letter in which it denied leave to amend. Our

 6 own review of the proposed complaint indicates that it contains somewhat more detail

 7 than the original, but makes essentially the same allegations and relies on the same

 8 legal theories. [RP 371-84] Accordingly, we agree with the district court that it

 9 would be unfair to both Defendants to allow amendment.

10        For the reasons set forth above and in our notice of proposed summary

11 disposition, we affirm the district court’s judgment.

12        IT IS SO ORDERED.



13                                               _______________________________
14                                               JAMES J. WECHSLER, Judge

15 WE CONCUR:



16 _________________________________
17 MICHAEL D. BUSTAMANTE, Judge


                                             7
1 _________________________________
2 ROBERT E. ROBLES, Judge




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