Bolles v. Smith

• Court: New Mexico Supreme Court
• Writing for the Court: FEDERICI; SOSA, C. J., EASLEY and PAYNE, JJ., and McMANUS
• Citation: Bolles v. Smith, 591 P.2d 278, 92 N.M. 524, 1979 NMSC 19 (N.M. 1979)
• Decision Date: 23 February 1979
• Docket Number: No. 12098,12098
• Parties: Paul J. BOLLES, Petitioner, v. Cleo W. SMITH, Administratrix of the Estate of Ronnie D. Kelly, Deceased, and Transport Indemnity Company, Don Ward and Company, Respondents.

Page 278

591 P.2d 278

92 N.M. 524

Paul J. BOLLES, Petitioner, v. Cleo W. SMITH, Administratrix of the Estate of Ronnie D Kelly, Deceased, and Transport Indemnity Company Don Ward and Company, Respondents.

No. 12098.

Supreme Court of New Mexico.

Feb. 23, 1979.

Horton, Roybal & Crollett, Adams & Foley, Albuquerque, for petitioner.

Rodey, Dickason, Sloan, Akin & Robb, Charles B. Larrabee, Civerolo, Hansen & Wolf, Albuquerque, for respondents.

OPINION

FEDERICI, Justice.

Our original opinion is withdrawn and the following opinion substituted therefor. The result of our original opinion is not changed; however, it was deemed necessary to add language to restrict the application of the rule of law announced to cases arising under §§ 41-1-1, et seq., N.M.S.A.1978 (formerly §§ 21-11-1, et seq., N.M.S.A.1953 (Supp.1975)) and to the specific facts in this case.

Paul J. Bolles, plaintiff (petitioner), brought this action for personal injuries received in 1974 in an automobile accident arising out of his employment with Don Ward & Company (plaintiff-in-intervention). Sometime after the accident petitioner began to have seizures. The medical evidence indicated that there was a probability that the seizures were brought about by the accident.

A settlement agreement was entered into on petitioner's behalf by his original attorney. Petitioner was not happy with the settlement. At his attorney's suggestion, petitioner had another attorney evaluate the case. Subsequently, petitioner changed attorneys. Petitioner never accepted the check which had been sent to his original attorney pursuant to the settlement and never signed any settlement agreement. No judgment or dismissal had been entered by the court on the release, nor had the action been dismissed under N.M.R.Civ.P. 41(a)(1) or (2), N.M.S.A.1978.

Cleo Smith, defendant (respondent), filed a motion to enforce the alleged oral settlement agreement. The motion was granted by the trial court, and an order and judgment was entered for respondent. Petitioner appealed and the Court of Appeals affirmed, Judge Sutin dissenting. We reverse.

The issue on this appeal is whether the oral settlement agreement entered into by petitioner's attorney on petitioner's behalf can be enforced, notwithstanding the fact that it was rejected by petitioner prior to its approval by the court, or its dismissal under Rule 41(a)(1) or (2). We hold that under the facts in this case it cannot. The Release Act of New Mexico, §§ 41-1-1 and 41-1-2, prohibits settlements, releases or their solicitation while an injured person is under the care of a person licensed to practice the healing arts, or confined to a hospital or sanitarium, unless certain conditions are met. Section 41-1-1C of the Act provides that:

Any settlement agreement, any release of liability or any written statement shall be void unless it is acknowledged by the injured party before a notary public who has no interest adverse to the injured person.

Clearly the application of this Act is limited to injured persons under the care of a person licensed to practice the healing arts or confined to a hospital or sanitarium.

Respondent contends that petitioner was not under the Actual and continuous care of a person licensed to practice the healing arts. Section 41-1-1 does not state that the care must be actual And continuous, nor does it limit the time within which the care must be provided. A change in the law is a matter for the Legislature. In the meantime, the courts must construe the statute as it exists based upon the facts presented in each case. We agree with respondent that the statute is restrictive and that care must be provided in good faith and must be reasonably required. The evidence introduced in this case makes it abundantly clear that petitioner was under the "care" of a person licensed to practice the healing arts at the time the proposed oral settlement was entered into and that the Release Act of New Mexico applies to the settlement.

At the hearing on the motion by respondent to enforce the oral agreement, petitioner and his wife testified that he had been visiting and was under the care of Dr. Rudolph Maier, Dr. Leroy Miller, and Dr. Theodore Sadock at various times from the date of accident in 1974 through November 15, 1977, the date the proposed oral agreement allegedly was reached.

Dr. Maier testified that petitioner had been under his care from December 1974 to March 18, 1977, the day of the motion hearing. The testimony was as follows:

Q. Now, you mentioned this first visit in December of '74. Were there other visits later on?

A. Yes, sir. I have seen Mr. Bolles off and on over the years, the latest visit being December 29th, 1976.

Q. Now, has he been under your care all during that time?

A. Yes, sir. I have communicated with him, prescribed medicines and so on.

Q. Is he still under your care?

A. Yes.

Q. And for what condition have you been treating him all of this time?

A. He has convulsions, generalized convulsions with focal onset, which is suggestive of a localization in the temporal lobes. He still has some residual complaints, mainly lapses, in which he has a feeling of a dreamy kind of feeling as though he had been in the particular situation he finds himself in presently . . . .

Respondent urges that the seizures were not the result of head injuries received in the accident. Again, the record makes it abundantly clear, at least for purposes of the motion hearing, that as a matter of medical probability the seizures did result from the accident. In Dr. Maier's report of February 21, 1975, he stated that since petitioner had received two head injuries, one prior to and not connected with the accident and one at the time of the accident, he could not be sure which injury caused the seizures. However, he also stated that it would be difficult for him to say that petitioner's head injury from the 1974 accident did not cause the seizures.

After petitioner changed attorneys, and upon a request made by his new attorney, Dr. Maier reviewed petitioner's history, various medical reports, and other documents and facts, and consulted with several experts in the field of neurology and neurosurgery. Based upon this review, he testified at the motion hearing that a head injury probably occurred at the time of the 1974 accident and that the epilepsy was probably a result of that injury. He also concluded that it was within the realm of medical probability that the second head injury, from the 1974 accident, was...