{ "id": 5364475, "name": "Larry D. CLARK and Mary Kathryn Clark, his wife, Plaintiffs-Appellants, v. FOREMOST INSURANCE CO., Defendant-Appellee", "name_abbreviation": "Clark v. Foremost Insurance", "decision_date": "1969-09-05", "docket_number": "No. 316", "first_page": "584", "last_page": "586", "citations": [ { "type": "official", "cite": "80 N.M. 584" }, { "type": "parallel", "cite": "458 P.2d 836" } ], "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": "73 N.M. 237", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5322650 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/73/0237-01" ] }, { "cite": "73 N.M. 275", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5322022 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/73/0275-01" ] }, { "cite": "78 N.M. 796", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326131 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/78/0796-01" ] }, { "cite": "447 P.2d 384", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2119889 ], "opinion_index": 0, "case_paths": [ "/or/251/0608-01" ] }, { "cite": "199 F.Supp. 782", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 32503 ], "opinion_index": 0, "case_paths": [ "/f-supp/199/0782-01" ] }, { "cite": "228 U.S. 364", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3667185 ], "weight": 3, "year": 1913, "opinion_index": 0, "case_paths": [ "/us/228/0364-01" ] }, { "cite": "78 N.M. 503", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324553 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/78/0503-01" ] }, { "cite": "79 N.M. 540", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2736059 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0540-01" ] }, { "cite": "174 F.2d 311", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 306319 ], "weight": 2, "year": 1949, "opinion_index": 0, "case_paths": [ "/f2d/174/0311-01" ] } ], "analysis": { "cardinality": 359, "char_count": 5622, "ocr_confidence": 0.679, "pagerank": { "raw": 7.366443692706656e-08, "percentile": 0.44179660667475207 }, "sha256": "4431cd27be2e2ac21ff91c0c3b1868acdd25b747e2ec482366a22af2b5a1d479", "simhash": "1:160fd624702f1de7", "word_count": 915 }, "last_updated": "2023-07-14T15:41:23.226975+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SPIESS, C. J., and HENDLEY, J., concur." ], "parties": [ "Larry D. CLARK and Mary Kathryn Clark, his wife, Plaintiffs-Appellants, v. FOREMOST INSURANCE CO., Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nOMAN, Judge.\nThis suit was brought by plaintiffs as owners of a damaged mobile home. They recovered judgment against defendant, Morgan Drive-Away, Inc., and no appeal has been taken therefrom. Judgment was entered in favor of defendant, Foremost Insurance Co., on plaintiffs\u2019 claim against it, and plaintiffs have taken this appeal from that judgment.\nMorgan contracted with plaintiffs to haul the mobile home from Many Farms, Arizona, to Albuquerque, New Mexico. It was damaged during the hauling.\nForemost insured the mobile home against damage by collision and upset. The damage did not occur by reason of collision or upset, and was not, therefore, covered under the policy. However, at first it was apparently understood by plaintiffs and Foremost from a report they had received that the damage was caused in a collision or upset.\nPlaintiffs\u2019 attorney and an independent adjuster employed by Foremost discussed by telephone the matter of settlement of the damages plaintiffs claimed to have sustained. The attorney testified he understood a settlement had been made. The adjuster testified they discussed the value of the trailer and the damage thereto, but they did not agree as to the extent of the damage. He also testified he told the attorney he had no authority to settle, and that he could only submit proposals or demands to Foremost.\nAlthough plaintiffs rely upon four points for reversal, they all relate to the primary question of whether a settlement was entered into between plaintiffs\u2019 attorney and Foremost\u2019s adjuster. The trial court found there was no settlement agreement. The bases for the express findings in this regard, and plaintiffs\u2019 positions relative thereto, are as follows:\n(1) Lack of consideration, since there was no coverage under Foremost\u2019s policy. Plaintiffs do not disagree as to the absence of coverage, but contend their forbearance to bring suit for the enforcement of their claimed legal right constituted consideration.\n(2) Lack of actual, implied or apparent authority of the adjuster to bind Foremost to any agreement such as claimed by plaintiffs. Plaintiffs rely upon ' apparent authority of the adjuster to enter into the claimed settlement.\n(3) Mutual mistake of fact in entering into any agreement which was made. The mutual mistake as found by the trial court was that both plaintiffs\u2019 attorney and the adjuster were acting under the mistaken belief that the mobile home was totally damaged. Plaintiffs\u2019 position is that a mutual mistake of fact is of no consequence if \u201c * * * a claim is compromised and settled in good faith.\u201d\nWe need only decide whether the trial court\u2019s finding that there was no agreement is supported by substantial evidence in the record. If it is supported on any ground, we need go no further.\nWe are of the opinion that the evidence substantially supports the trial court\u2019s finding that there was no agreement because of lack of \u201cauthority, either actual, implied or apparent\u201d on the part of the adjuster to settle on the basis of the claimed agreement.\nFindings by the trial court supported by substantial evidence will not be disturbed on appeal. McNutt Oil & Refining Co. v. Mimbres Valley Bank, 174 F.2d 311 (10th Cir. 1949); Galvan v. Miller, 79 N.M. 540, 445 P.2d 961 (1968); Taylor v. McBee, 78 N.M. 503, 433 P.2d 88 (Ct.App.1967), cert. denied, N.M.S.Ct. No. 8545 (1967).\nAs above stated, the adjuster testified he told the attorney he had no authority to settle, and he could only submit proposals and demands to Foremost. Knowledge by the attorney of these limitations on the adjuster\u2019s authority precluded any reliance by the attorney upon any claimed apparent authority. Slocum v. New York L. Ins. Co., 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879 (1913); McNutt Oil & Refining Co. v. Mimbres Valley Bank, supra; Shipley v. Ohio National Life Insurance Co., 199 F.Supp. 782 (W.D.Pa.1961); Lumbermens Mutual Casualty Company v. Jamieson, 447 P.2d 384 (Or.1968).\nThe trial court refused plaintiffs\u2019 requested Findings 8 and 9, which are as follows:\n\u201c8. That the plaintiffs\u2019 attorney settled the plaintiffs\u2019 claim for $3,200.00 with Bob White of the General Adjustment Bureau in a telephone conversation \u25a0on September 20 or 21, 1967, and confirmed the settlement by letter dated September 21, 1967.\n\u201c9. That at the time of settlement Bob White was an agent of the defendant Foremost Insurance Company, acting with either actual or apparent authority to settle, compromise and adjust the claim of the plaintiffs.\u201d\nAs above shown, the trial court made an express finding contrary to plaintiffs\u2019 requested Finding No. 9. No express finding directly contrary to plaintiffs\u2019 requested Finding No. 8 was made by the trial court. However, as above stated, the trial court did make several findings, the effect of which was that there was no such agreement. In any event, the refusal of the trial court to make the requested finding amounted to a finding in this regard against plaintiffs, since the burden was on them to establish an agreement as claimed. Gallegos v. War, 78 N.M. 796, 438 P.2d 636 (1968); Hopkins v. Martinez, 73 N.M. 275, 387 P.2d 852 (1963); Herrera v. C & R Paving Company, 73 N.M. 237, 387 P.2d 339 (1963).\nThe judgment should be affirmed.\nIt is so ordered.\nSPIESS, C. J., and HENDLEY, J., concur.", "type": "majority", "author": "OMAN, Judge." } ], "attorneys": [ "Michael L. Keleher, Keleher & McLeod, Albuquerque, for appellants.", "Harold H. Parker, Menig & Sager, Albuquerque, for appellee." ], "corrections": "", "head_matter": "458 P.2d 836\nLarry D. CLARK and Mary Kathryn Clark, his wife, Plaintiffs-Appellants, v. FOREMOST INSURANCE CO., Defendant-Appellee.\nNo. 316.\nCourt of Appeals of New Mexico.\nSept. 5, 1969.\nMichael L. Keleher, Keleher & McLeod, Albuquerque, for appellants.\nHarold H. Parker, Menig & Sager, Albuquerque, for appellee." }, "file_name": "0584-01", "first_page_order": 640, "last_page_order": 642 }