{ "id": 12168009, "name": "HEALTHSOUTH REHABILITATION HOSPITAL OF NEW MEXICO, LTD., d/b/a HEALTHSOUTH REHABILITATION HOSPITAL, Plaintiff, v. TERRY A. BRAWLEY, individually, and TERRY A. BRAWLEY as personal representative of the Estate of JOYE BRAWLEY, deceased, Defendants/Third-Party Plaintiffs/Appellants, and THE BOARD OF REGENTS OF NEW MEXICO INSTITUTE OF MINING AND TECHNOLOGY, Third-Party Defendant/Appellee", "name_abbreviation": "Healthsouth Rehabilitation Hospital of New Mexico, Ltd. v. Brawley", "decision_date": "2015-12-16", "docket_number": "No. S-1-SC-35690; Docket No. 33,593", "first_page": "588", "last_page": "597", "citations": [ { "type": "official", "cite": "2016-NMCA-037" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "314 P.3d 688", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "1997-NMCA-025", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 142268 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 32" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0170-01" ] }, { "cite": "18 Conn. Ins. L J. 73", "category": "journals:journal", "reporter": "Conn. Ins. L.J.", "year": 2012, "pin_cites": [ { "page": "75-76", "parenthetical": "stating that courts have employed four different approaches to analyzing concurrent causes but \"routinely refer to each approach as the 'concurrent cause doctrine' \"" } ], "opinion_index": 0 }, { "cite": "1997-NMCA-060", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 142246 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0507-01" ] }, { "cite": "2007-NMCA-134", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3693032 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0638-01" ] }, { "cite": "134 N.M. 232", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 77130 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/134/0232-01" ] }, { "cite": "2006-NMSC-004", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2545208 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0024-01" ] }, { "cite": "659 N.E.2d 1345", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "1354", "parenthetical": "declining to follow a case because its holding \"introduc[ed] . . . tort principles into the interpretation of an insurance policy\"" } ], "opinion_index": 0 }, { "cite": "340 U.S. 54", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6930751 ], "year": 1950, "pin_cites": [ { "page": "66", "parenthetical": "Frankfurter, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/us/340/0054-01" ] }, { "cite": "61 Ala. L. Rev. 957", "category": "journals:journal", "reporter": "Ala. L. Rev.", "year": 2010, "pin_cites": [ { "page": "968" } ], "opinion_index": 0 }, { "cite": "121 N.M. 465", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566599 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/121/0465-01" ] }, { "cite": "1996-NMCA-035", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0 }, { "cite": "120 N.M. 191", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558827 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/120/0191-01" ] }, { "cite": "1995-NMCA-064", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 1" } ], "opinion_index": 0 }, { "cite": "2000-NMCA-080", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1217136 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 27" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0497-01" ] }, { "cite": "114 N.M. 23", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731664 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/114/0023-01" ] }, { "cite": "1992-NMCA-057", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0 }, { "cite": "2001-NMCA-063", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 352381 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0705-01" ] }, { "cite": "80 N.M. 732", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5363853 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0732-01" ] }, { "cite": "1969-NMSC-147", "category": "reporters:neutral", "reporter": "NMSC", "weight": 2, "pin_cites": [ { "page": "\u00b6 7" }, { "page": "\u00b6 7" } ], "opinion_index": 0 }, { "cite": "1998-NMCA-160", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827334 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0125-01" ] }, { "cite": "346 P.3d 1163", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2015-NMCERT-003", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "345 P.3d 1096", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2015-NMCA-031", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4241909 ], "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm-app/7/0486-01" ] } ], "analysis": { "cardinality": 1223, "char_count": 29973, "ocr_confidence": 0.768, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.2468387153073403 }, "sha256": "de66b461316401c81e939f2cf97958ff20f4083d8090bdd2cd52dae7aa8b8a83", "simhash": "1:b562eb06bcb7d341", "word_count": 4837 }, "last_updated": "2023-07-14T22:30:56.942854+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MICHAEL D. BUSTAMANTE, Judge", "JONATHAN B. SUTIN, Judge", "TIMOTHY L. GARCIA, Judge" ], "parties": [ "HEALTHSOUTH REHABILITATION HOSPITAL OF NEW MEXICO, LTD., d/b/a HEALTHSOUTH REHABILITATION HOSPITAL, Plaintiff, v. TERRY A. BRAWLEY, individually, and TERRY A. BRAWLEY as personal representative of the Estate of JOYE BRAWLEY, deceased, Defendants/Third-Party Plaintiffs/Appellants, and THE BOARD OF REGENTS OF NEW MEXICO INSTITUTE OF MINING AND TECHNOLOGY, Third-Party Defendant/Appellee." ], "opinions": [ { "text": "OPINION\nBUSTAMANTE, Judge.\n{1} Third-Party Plaintiff Terry A. Brawley was severely injured in an accident while riding his all-terrain vehicle. He sought coverage under a health plan provided by his wife\u2019s employer, New Mexico Institute of Mining and Technology (NM Tech). NM Tech denied Brawley\u2019s claims on the ground that Brawley\u2019s injuries were sustained while Brawley was under the influence of alcohol and hence his injuries were excluded from coverage under the terms of the health plan. After a bench trial, the district court found that NM Tech had breached its statutory duty to properly investigate the claims, but also found that Brawley\u2019s injuries were not covered by the health plan because Brawley was under the influence of alcohol at the time of the accident and that the influence of alcohol was \u201ca cause\u201d of the accident. Brawley appeals, arguing that the district court and NM Tech erred in relying on a certain blood alcohol content report and that his claims should be covered under the \u201cconcurrent cause\u201d or \u201cindependent intervening cause\u201d doctrines. We conclude that Brawley\u2019s evidentiary arguments do not present reversible error and that Brawley failed to preserve his arguments as to causation. We therefore affirm.\nBACKGROUND\n{2} On the evening of August 1, 2009, Brawley was drinking in the Mountain View Bar in Lemitar, New Mexico. One of the last to leave, Brawley told the bartender, \u201cmy ride is here\u201d as he left the bar. This statement was consistent with Brawley\u2019s testimony, corroborated by other witnesses, that he customarily had friends or colleagues drive him home after he had been drinking. Later that night, Brawley was found unconscious near his all-terrain vehicle (ATV) on an unlighted road between the bar and his home. Brawley apparently had been thrown off the ATV when he encountered a \u201cwash[]out\u201d in the road measuring fifteen feet wide and five feet deep. He suffered extensive injuries, and after being treated for several hours at Socorro General Hospital, was airlifted to the University of New Mexico Hospital in Albuquerque, New Mexico. In total, Brawley was treated at four different hospitals over a period of approximately fourteen weeks. He incurred over $500,000 in charges for this care.\n{3} Brawley was provided medical benefits through his wife\u2019s employer, Defendant NM Tech. The self-funded Health Benefit Plan (the Plan) was administered for NM Tech by a third-party, HCH Administration (HCH), although NM Tech retained the right of final determination as to any claim made under the Plan and had the power to accept or reject HCH\u2019s recommendations. The Plan was subject to the provisions of the New Mexico Insurance Code, NMSA 1978, \u00a7\u00a7 59A-1-1 to -61-6 (1978, as amended through 2014). The Plan provides that\nno benefits are payable under [the] Plan for expenses incurred or in connection with . . . injury or sickness sustained . . . while under the influence of alcohol . . . [provided that] there is a direct relationship between [being under the influence of alcohol] and the sickness or injuries sustained.\nThis provision also states that \u201c[f]or purposes of this section, a person shall be presumed to be under the influence of alcohol if his blood alcohol level equals or exceeds the limit for driving under the influence of alcohol as determined by the law of the state in which the [i]njury occurred.\u201d\n{4} Based on this exclusion, called the \u201calcohol exclusion\u201d by the parties, HCH denied the Brawleys\u2019 claims related to the accident. In its decision to deny the claims, HCH relied on \u201cthe police report and preliminary medical records only.\u201d Neither HCH nor NM Tech contacted Brawley or his wife (collectively, the Brawleys) or the investigating police officer or emergency medical personnel at the accident scene prior to denying the claims. No one from HCH or NM Tech went to the accident scene to investigate the accident. Finally, HCH and NM Tech did not interview the Mountain View Bar bartender or patrons of the bar, analyze the circumstances of the blood test upon which they relied to assure its reliability, talk with Brawley\u2019s medical care providers, or follow up on the issuance and later dismissal of the DWI citation issued to Brawley after the accident. The district court found that these steps would have constituted a reasonable inquiry under the circumstances.\n{5} The present matter was initiated when HealthSouth Rehabilitation Hospital of New Mexico, Ltd., d/b/a HealthSouth Rehabilitation Hospital (HealthSouth), sued the Brawleys to recover the amount of their bills unpaid by NM Tech. The Brawleys filed an answer and third-party complaint naming HealthSouth and NM Tech as third-party defendants. The complaint alleged breach of contract, bad faith, violation of the Insurance Code, and violation of the Unfair Practices Act, NMSA 1978, \u00a7\u00a7 57-12-1 to -26 (1967, as amended through 2009). The Brawleys also sought a declaratory judgment establishing that their claims are covered under the Plan.\n{6} HealthSouth was dismissed from suit based on a settlement agreement and the matter proceeded to a bench trial against NM Tech. At trial, the Brawleys tendered testimony by an accident reconstructionist who opined that the washout was the sole cause of the accident and an insurance expert who testified that NM Tech failed to properly investigate the accident and, more specifically, whether Brawley\u2019s alleged intoxication had a \u201cdirect relationship\u201d to the accident. NM Tech presented testimony by its own insurance expert who testified that HCH and NM Tech properly denied the claims based on a medical report showing Brawleys\u2019 blood alcohol level and that no further investigation was required. The parties stipulated that the amount remaining unpaid was $308,391.89.\n{7} The district court entered a number of findings of fact. First, it found that \u201c[a] blood test performed some time after the crash, and after . . . Brawley had been hospitalized, indicated that he had a blood alcohol level nearly double the New Mexico threshold for a presumption of intoxication\u201d and that \u201c[tjhis was confirmed by the testimony of [NM Tech\u2019s witness].\u201d As to the alcohol exclusion, the district court found that, although the phrase \u201cdirect relationship\u201d is not defined in the Plan, \u201c[t]he parties have uniformly and consistently represented to the [c]ourt, and to each other, that the \u2018direct relationship\u2019 [required by the provision] is functionally the same as causation.\u201d The district court rejected the expert testimony to the effect that the washout was the sole cause ofthe accident and found that \u201cBrawley\u2019s alcohol use on the night of [the accident] was a cause of the ATV crash in which he was injured, and which generated the medical bills at [the] root of this litigation.\u201d As discussed above, the district court found that neither HCH nor NM Tech undertook a reasonable investigation into the Brawleys\u2019 claims. It also found that the Brawleys \u201cdid not suffer any actual damages as a result of NM Tech\u2019s . . . lack of an appropriate thorough and complete investigation into the [accident] . . . prior to the denial of medical benefits at issue.\u201d See \u00a7 59A-16-30 (stating that a person \u201cwho has suffered damages as a result of a violation of [the Insurance Code] by an insurer or agent is granted a right to bring an action in district court to recover actual damages\u201d). The district court did not enter findings of fact specifically addressing the Brawleys\u2019 common law bad faith claim or request for punitive damages. The Brawleys make no argument on appeal as to the district court\u2019s failure to address their common law bad faith claim or their request for punitive damages under that claim.\n{8} Based on its findings, the district court concluded that NM Tech \u201cviolated [t]he Insurance Code by failing to have a licensed adjustorf,] and by failing to adopt and implement a reasonable plan for the appropriate investigation of claims in general and as to the Brawley claims in specific.\u201d Second, the court concluded that \u201c[n]otwithstanding [NM Tech\u2019s] violation of the Insurance Code,\u201d the denial of benefits to the Brawleys was appropriate because there was sufficient evidence that the accident bore a \u201cdirectrelationship\u201d to Brawley\u2019s \u201cingestion of alcohol\u201d and was otherwise supported by sufficient evidence. The court entered judgment in favor of NM Tech.\nDISCUSSION\n{9} On appeal, the Brawleys argue that the judgment must be reversed for two reasons. First, they argue that it was error for NM Tech and/or the district court to rely on an inadmissible document as evidence that Brawley was under the influence of alcohol and that, without this document, there was insufficient evidence that Brawley was under the influence of alcohol at the time of the accident. Second, they argue that, even if alcohol use and resultant impairment was a cause of the accident as the district court found, the district court erred in its application of the law of causation in insurance cases. We address each of the Brawleys\u2019 arguments in turn.\nA. The District Court\u2019s Admission of Exhibit B is Not Reversible Error\n{10} \u201cWe review the admission or exclusion of evidence for abuse of discretion.\u201d Progressive Cas. Ins. Co. v. Vigil, 2015-NMCA-031, \u00b6 13, 345 P.3d 1096 (internal quotation marks and citation omitted), cert. granted, Progressive v. Vigil, 2015-NMCERT-003, 346 P.3d 1163. \u201c[W]hen there is no evidence that necessary foundational requirements are met [for admission of evidence], an abuse of discretion occurs.\u201d State v. Gardner, 1998-NMCA-160, \u00b6 5, 126 N.M. 125, 967 P.2d 465. The focus of the Brawleys\u2019 argument is a document showing Brawley\u2019s blood alcohol level (Exhibit B). Exhibit B was apparently generated by a medical care provider, not the state laboratory division. The Brawleys argue that Exhibit B should not have been admitted at trial because NM Tech failed to provide a foundation for it and to show that the blood draw and test were consistent with the Implied Consent Act. See NMSA 1978, \u00a7\u00a7 66-8-105 to -112 (1978, as amended through 2015).\n{11} NM Tech argues that the Brawleys\u2019 argument was not preserved either because they failed to timely object to testimony about Exhibit B or because the objections made at trial differ from the issue raised on appeal. We disagree. The Brawleys objected to admission of Exhibit B, first stating that Exhibit B was hearsay, then arguing that \u201cthere is no basis that can be established\u201d and \u201c[t]here is no medical doctor here that withdrew the blood [and tjhere\u2019s no nurse that withdrew the blood.\u201d Furthermore, the Brawleys went on to argue that \u201cunder the Implied Consent Act, there are numerous provisions that must be followed in the extraction of blood. And so we cannot authenticate this document as to whether or not the blood was withdrawn pursuant to the Implied Consent Act.\u201d In addition to these statements at trial, the Brawleys requested a finding of fact invoking (although not naming) the Implied Consent Act and associated regulations. See, e.g., \u00a7 66-8-109(A) (stating that blood samples may be taken only by authorized personnel); NMAC 7.33.2.15(A) (4/30/2010) (setting out the requirements for blood sample collection). They also requested a conclusion of law stating that \u201c[t]he blood draw evidence is excluded for failure to meet statutory, foundational[,] and authenticity requirements.\u201d We conclude that the Brawleys\u2019 arguments as to the foundational requirements for Exhibit B were adequately presented to the district court and were preserved for appeal.\n{12} However, the applicability of the alcohol exclusion does not depend on a certain blood alcohol level. Rather, the provision states that benefits are not payable for injuries sustained while \u201cunder the influence of alcohol.\u201d The provision\u2019s reference to state law as to the \u201clegal limit\u201d for driving under the influence merely describes a condition under which the insured may be presumed to be under the influence of alcohol. The next sentence of the provision further states that \u201ca person may be considered to be under the influence of alcohol... if objective evidence suggests such condition}.]\u201d Here, even if the district court\u2019s finding that Brawley\u2019s blood alcohol content was \u201cnearly double the New Mexico threshold for a presumption of intoxication\u201d was based on improperly admitted evidence, we conclude that other evidence supports the district court\u2019s implicit finding that Brawley was under the influence of alcohol at the time of the accident. See Stephenson v. Dale Bellamah Land Co., 1969-NMSC-147, \u00b6 7, 80 N.M. 732, 460 P.2d 807 (\u201cWe have held, and here reiterate, that error [in the admission of evidence], if it was error, will not be considered to require reversal unless no other admissible evidence substantially supporting the court\u2019s findings is present.\u201d)\n{13} The district court found that Brawley was drinking in the Mountain View Bar the evening before the accident and \u201cwas one of the last persons to leave the bar.\u201d This finding is supported by testimony to the effect that Brawley arrived at the bar around 9 p.m. on August 1, 2009, and consumed \u201cmaybe four shots of Crown Royal[,]\u201d and testimony that Brawley left the bar at about 10:15 p.m. One of the emergency medical personnel who attended Brawley at the accident scene stated that he suspected alcohol was involved because he smelled alcohol on Brawley\u2019s person. The Brawleys\u2019 accident reconstructionist testified that Brawley was not \u201cin any shape to drive the [ATV]\u201d and that Brawley was \u201cabove the .08 limit.\u201d Dr. Alois Treybal, who was admitted as an expert \u201cin the context of family practice as applied to traumatic brain injury[,]\u201d reviewed a medical record dated August 2, 2009, at 5 a.m. indicating that Brawley had a blood alcohol level of .26 and testified that this level \u201cwould be an intoxicating [level].\u201d This medical record was admitted into evidence as well.\n{14} Taken together, this evidence supports a reasonable inference that Brawley was under the influence of alcohol when he left the bar on his ATV and that consequently his driving ability was impaired. See State v. Baldwin, 2001-NMCA-063, \u00b6 16, 130 N.M. 705, 30 P.3d 394 (stating that \u201chuman experience guides us in deciding whether . . . an accused likely had the ability to drive an automobile in a prudent manner within a reasonable time before or after [he] is observed in a state of intoxication\u201d); Toynbee v. Mimbres Mem'l Nursing Home, 1992-NMCA-057, \u00b6 16, 114 N.M. 23, 833 P.2d 1204 (\u201cOn appeal, a reviewing court liberally construes findings of fact adopted by the fact finder in support of a judgment, and such findings are sufficient if a fair consideration of all of them taken together supports the judgment entered below.\u201d).\n{15} The district court also found that \u201cBrawley\u2019s alcohol use... was a cause of the ATV crash in which he was injured[.]\u201d This finding is a reasonable inference from the evidence as well. The accident reconstructionist agreed with NM Tech that alcohol use could \u201caffect reaction and reflex time\u201d and that \u201c[p]ersons who are intoxicated have longer perception and reaction times.\u201d The accident reconstructionist also testified that any person, sober or not, would have had the accident. But the investigating officer testified that a neighbor, who knew Brawley had been drinking in the bar and who heard Brawley passing his house on the ATV, followed Brawley \u201cto make sure that he will do all right . . . because he thought Mr. Brawley [was] intoxicated.\u201d This individual apparently did not have an accident at the washout. Finally, counsel for NM Tech and Brawleys\u2019 insurance expert had the following exchange on cross-examination:\nQ: [Y]ou concluded [on direct examination] with the statement . . . that, based on the washout alone, alcohol was not a cause of the accident.\nA: Well, if that\u2019s what I said, I didn\u2019t mean to. It\u2019s not the only cause of the accident.\n{16} Considering this evidence in the light most favorable to the district court\u2019s decision, we conclude that it supports the district court\u2019s conclusion that \u201cBrawley\u2019s injuries ... bore a \u2018direct relationship\u2019 to his ingestion of alcohol at the Mountain View Bar prior to the ATV crash.\u201d See Tartaglia v. Hodges, 2000-NMCA-080, \u00b6 27, 129 N.M. 497, 10 P.3d 176 (stating that, in reviewing the district court\u2019s findings after a bench trial, \u201cwe view the evidence in a light most favorable to the decision below, we resolve all conflicts in the evidence in favor of that decision and . . . disregard evidence to the contrary, we defer to the trial court in regard to the weighing of conflicting evidence, and we indulge every presumption to sustain the judgment of the trial court\u201d). \u201cThere being substantial admissible evidence to support the court\u2019s findings, whether or not inadmissible evidence [e.g., Exhibit B] was admitted is not material}] and did not constitute reversible error.\u201d Stephenson, 1969-NMSC-147, \u00b6 7.\nB. The Brawleys\u2019 Causation Theories Were Not Preserved for Appeal\n{17} \u201cEvery litigated case is tried at least three times: there is the trial the attorneys intended to conduct; there is the trial the attorneys actually conducted; and there is the trial that, after the verdict, the attorneys wished they had conducted.\u201d Gracia v. Bittner, 1995-NMCA-064, \u00b6 1,120 N.M. 191, 900 P.2d 351. On appeal, our review is limited to the case actually litigated below. See In re T.B., 1996-NMCA-035, \u00b6 13, 121 N.M. 465, 913 P.2d 272 (\u201c[W]e review the case litigated below, not the case that is fleshed out for the first time on appeal.\u201d). This principle governs our analysis of the Brawleys\u2019 causation arguments.\n{18} The district court found that the term \u201cdirect relationship\u201d was not defined in the Plan and that the parties \u201crepresented to the [c]ourt, and to each other,\u201d that the meaning of \u201cdirect relationship\u201d in the alcohol exclusion \u201cis functionally the same as causation.\u201d It appears that the district court was referring to the definitions of causation in Uniform Jury Instructions 13-305 or 13-1709. UJI 13-305 NMRA states:\nAn [act] [or] [omission] [or] [ _ (condition)] is a \u201ccause\u201d of [injury] [harm] [_{other)} if[, unbroken by an independent intervening cause,] it contributes to bringing about the [injury] [harm] [_{other)} [, and if injury would not have occurred without it]. It need not be the only explanation for the [injury] [harm] [_(other)], nor the reason that is nearest in time or place. It is sufficient if it occurs in combination with some other cause to produce the result. To be a \u201ccause\u201d, the [act] [or] [omission] [or] [_ {condition)}, nonetheless, must be reasonably connected as a significant link to the [injury] [harm].\n(Fourth emphasis added.) UJI 13-1709 NMRA, being one part of the instructions addressing both common-law and statute-based unfair practices claims in insurance cases, states that \u201c[a] cause of a loss is a factor [that] contributes to the loss and without which the loss would not have occurred. It need not be the only cause.\u201d (Emphasis added.) The district court\u2019s holding that coverage was precluded because alcohol was \u201ca cause\u201d of the accident is consistent with these two tort-based definitions. No objections to this finding were filed in the district court. In addition, the parties did not dispute this finding in the appellate briefs or during oral argument before this Court.\n{19} There are two problems with this approach. To begin with, causation principles in tort law are different from causation principles in insurance law because \u201cthe two systems examine the causation question for fundamentally different purposes. In tort, it is to assess fault for wrongdoing. In insurance, it is to determine when the operative terms of a contractual bargain come into play.\u201d Erik S. Knutsen, Confusion About Causation in Insurance: Solutions for Catastrophic Losses, 61 Ala. L. Rev. 957, 968 (2010); Knutsen, supra, at 969-70 (stating that \u201c[insurance causation therefore bears little resemblance to the policy-laden proximate cause analysis of tort law\u201d); see also Standard Oil Co. of N.J. v. United States, 340 U.S. 54, 66 (1950) (Frankfurter, J., dissenting) (\u201c[T]he subtleties and sophistries of tort liability for negligence are not to be applied in construing the covenants of [an insurance] policy.\u201d); Allstate Ins. Co. v. Smiley, 659 N.E.2d 1345, 1354 (Ill. App. Ct. 1995) (declining to follow a case because its holding \u201cintroduc[ed] . . . tort principles into the interpretation of an insurance policy\u201d); Robert H. Jerry II, Understanding Insurance Law, 502 (2d ed. 1996) (stating that \u201cmany courts have explicitly stated that the proximate cause test is not the same in tort law and insurance law\u201d).\n{20} Moreover, by relying on tort-based definitions of causation, the parties and the district court essentially construed the phrase \u201cdirect relationship\u201d in the way most favorable to the insurer, not the insured, contrary to the general rule that \u201can insurance policy which may reasonably be construed in more than one way should be construed liberally in favor of the insured.\u201d Battishill v. Farmers All. Ins. Co., 2006-NMSC-004, \u00b6 17, 139 N.M. 24, 127 P.3d 1111 (internal quotation marks and citation omitted). Indeed, it is not clear to us what the phrase \u201cdirect relationship\u201d actually means in the context of the alcohol exclusion. Assuming that the \u201crelationship\u201d required is a causal one, does the phrase encompass any contributing cause of the injuries as the parties appear to have agreed and the district court found? Or does the word \u201cdirect\u201d mean that the excluded cause must be the dominant cause or the immediate cause of the injuries? There are a myriad of cases defining the word \u201cdirect\u201d in the context of insurance policy provisions\u2014some equating it with \u201cproximate cause\u201d and others stating that a \u201cdirect loss\u201d is \u201cmore than proximate cause . .. [and] that the loss must flow immediately, either in time or space.\u201d 3 Allan D. Windt, Insurance Claims and Disputes \u00a7 11:22C n.3 (6th ed. 2015) (collecting cases).\n{21} In spite of these problems with the district court\u2019s approach to causation in this context, our review does not depend on resolution of them because neither party identifies the district court\u2019s finding as error. See State v. Joanna V., 2003-NMCA-l 00, \u00b6 7, 134 N.M. 232, 75 P.3d 832 (stating that this Court\u2019s primary role is to correct trial court error, \u201cnot to arrive at a conclusion we believe would be just by deciding issues that were not raised below\u201d). Instead, the Brawleys have accepted the district court\u2019s finding and argue only that the district court misconstrued its legal effect. Hence, we turn to that argument next.\n{22} The Brawleys argue that, even if Brawley\u2019s alcohol use was \u201ca cause\u201d of the accident, the district court nonetheless erred in concluding that the alcohol exclusion precluded coverage. They posit two bases for this argument. First, they rely on the principle of \u201cconcurrent causation\u201d to maintain that the claims should be covered. Generally, under the concurrent cause rule, \u201ccoverage should be permitted whenever two or more causes do appreciably contribute to the loss and at least one of the causes is a risk [that] is covered under the terms of the policy.\u201d Steven Plitt, et al., 7 Couch on Insurance 3d, \u00a7 101:55, at 101-104 to 101-105 (Rev. ed. 2013). Second, they argue that the washout was an independent intervening cause of the accident, i.e., \u201cthe washout was an unforeseeable force of nature that intercepted and interrupted the normal progression of causation.\u201d See UJI13-306 NMRA (\u201cAn independent intervening cause interrupts and turns aside a course of events and produces that which was not foreseeable as a result of an earlier act or omission.\u201d). They maintain that since the washout was an independent intervening cause of the accident, the claims should be covered.\n{23} But these arguments were not preserved for appeal. The only mention of the concurrent cause doctrine during the trial occurred in the testimony of the Brawleys\u2019 insurance expert, Professor Allen. On appeal, the Brawleys point to that testimony as evidence that the theory was raised. Assuming arguendo that an argument can be preserved solely through witness testimony, we conclude that Professor Allen\u2019s testimony was insufficient to \u201calert[] the district court as to which theories [the Brawleys were] relying on in support of [their] argument in order to allow the district court to make a ruling thereon.\u201d State v. Janzen, 2007-NMCA-134, \u00b6 11, 142 N.M. 638, 168 P.3d 768; State v. Miller, 1997-NMCA-060, \u00b6 8, 123 N.M. 507, 943 P.2d 541 (holding that an issue was not preserved where the state \u201c \u2018elicited facts\u2019 supporting its theories\u201d but did not \u201cpresent[] any of [the related] legal principles or arguments to the trial court\u201d). Indeed, Professor Allen used the phrase \u201cconcurrent causation\u201d only twice in his entire testimony. He stated, \u201cThis case involves what we call in the insurance industry concurrent causation; that is, there\u2019s a ditch, a washout. That\u2019s a potential cause of this injury or accident. And intoxication is a potential cause.\u201d Professor Allen went on, \u201cSo you got to figure out which one was it, or is it both, concurrent causation, and it\u2019s hard.\u201d Although Professor Allen elsewhere stated that the \u201cdirect relationship\u201d clause in the alcohol exclusion \u201cconnotes causation\u201d and that the alcohol use \u201chas to make a contribution [to the accident,]\u201d he never stated the concurrent causation rule in full. Indeed, he seemed to invoke several different causation theories when he stated, \u201cSo if you have two contributing causes, it just gets real complicated. One thing you could try to do is allocate between the two. That would be awfully hard. The other possibility is, if there are two, you could allocate it to either one, and you have to allocate it to the one that most favors the insured, because it\u2019s an exclusion, and you have to do that narrowly.\u201d Cf. Mark M. Bell, A Concurrent Mess and A Call for Clarity in First-Party Property Insurance Coverage Analysis, 18 Conn. Ins. L J. 73, 75-76 (2012) (stating that courts have employed four different approaches to analyzing concurrent causes but \u201croutinely refer to each approach as the \u2018concurrent cause doctrine\u2019 \u201d). In addition, there were no opening or closing arguments, and the Brawleys never argued this theory to the district court. Neither did the Brawleys request a finding or conclusion based on the concurrent causation doctrine. The district court thus was never apprised of the concurrent causation doctrine nor asked to rule on it. The Brawleys\u2019 concurrent causation argument was not preserved for appeal. See Spectron Dev. Lab. v. Am. Hollow Boring Co., 1997-NMCA-025, \u00b6 32, 123 N.M. 170, 936 P.2d 852 (noting that general principles of preservation prohibit the raising of new theories on appeal).\n{24} Finally, the Brawleys argue that their independent intervening cause argument was preserved through testimony of their two experts, who testified that the washout was the cause of the accident. We do not agree because, like their concurrent causation argument, the Brawleys never elicited a ruling from the district court on this particular theory. They did not request a finding of fact or conclusion of law citing the independent intervening cause doctrine or the UJI defining it, and the phrase \u201cindependent intervening cause\u201d was never mentioned at trial. See UJI 13-306. \u201cTo preserve an issue for review on appeal, it must appear that appellant fairly invoked a ruling of the trial court on the same grounds argued in the appellate court.\u201d Benz v. Town Ctr. Land, LLC, 2013-NMCA-l 11, \u00b6 24, 314 P.3d 688 (internal quotation marks and citation omitted). The Brawleys having failed to do so, we conclude that this argument also was not preserved for appeal.\nCONCLUSION\n{25} W e conclude that even if Exhibit B was improperly admitted at trial, the district court\u2019s findings were supported by sufficient other evidence. We also conclude that the Brawleys\u2019 arguments as to concurrent causation and independent intervening cause were not preserved and decline to address them. We affirm.\n{26} IT IS SO ORDERED.\nMICHAEL D. BUSTAMANTE, Judge\nWE CONCUR:\nJONATHAN B. SUTIN, Judge\nTIMOTHY L. GARCIA, Judge\nThe Brawleys did not argue below nor do they argue on appeal that the exclusion at issue here is contrary to public policy. The district court noted that \u201c[w]hile [it hadjconcerns about the enforceability of such broad exclusionary language, neither party has put the validity or enforceability of [the alcohol] exclusion before the [c]ourt in this matter and it is not, then, considered.\u201d Likewise, we do not consider the public policy implications of the alcohol exclusion.\nThe Brawleys argued at oral argument before this Court that the district court found only that Brawley had used alcohol and failed to find that he was \u201cunder the influence\u201d of alcohol as the alcohol exclusion requires. Considering the findings together and in context, we conclude that the district court\u2019s findings indicate that it found that Brawley was \u201cunder the influence\u201d of alcohol at the time of the accident.", "type": "majority", "author": "BUSTAMANTE, Judge." } ], "attorneys": [ "Steven J. Vogel Corrales, NM Janice K. Woods Socorro, NM for Defendants/Third-Party Plaintiffs/Appellants", "Rodey, Dickason, Sloan, Akin & Robb, P.A. Jocelyn Drennan Edward Ricco Albuquerque, NM for Third-Party Defendant/Appellee" ], "corrections": "", "head_matter": "Certiorari Denied, March 30, 2016,\nNo. S-l-SC-35690\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2016-NMCA-037\nFiling Date: December 16, 2015\nDocket No. 33,593\nHEALTHSOUTH REHABILITATION HOSPITAL OF NEW MEXICO, LTD., d/b/a HEALTHSOUTH REHABILITATION HOSPITAL, Plaintiff, v. TERRY A. BRAWLEY, individually, and TERRY A. BRAWLEY as personal representative of the Estate of JOYE BRAWLEY, deceased, Defendants/Third-Party Plaintiffs/Appellants, and THE BOARD OF REGENTS OF NEW MEXICO INSTITUTE OF MINING AND TECHNOLOGY, Third-Party Defendant/Appellee.\nSteven J. Vogel Corrales, NM Janice K. Woods Socorro, NM for Defendants/Third-Party Plaintiffs/Appellants\nRodey, Dickason, Sloan, Akin & Robb, P.A. Jocelyn Drennan Edward Ricco Albuquerque, NM for Third-Party Defendant/Appellee" }, "file_name": "0588-01", "first_page_order": 604, "last_page_order": 613 }