Collins on Behalf of Collins v. Tabet, 18488

• Citation: 1991 NMSC 13,111 N.M. 391,806 P.2d 40
• Decision Date: 04 February 1991
• Docket Number: No. 18488,18488
• Parties: , 59 USLW 2542, 14 A.L.R.5th 1094 Curtis COLLINS and Annie Collins, on Behalf of their son, Curtis M. COLLINS, Jr., and Sunwest Bank of Albuquerque, Conservator for Curtis M. Collins, Jr., Plaintiffs-Appellees, v. Ray TABET, Defendant-Appellant.
• Court: Supreme Court of New Mexico

Page 40

806 P.2d 40

111 N.M. 391, 59 USLW 2542, 14

A.L.R.5th 1094

Curtis COLLINS and Annie Collins, on Behalf of their son,

Curtis M. COLLINS, Jr., and Sunwest Bank of

Albuquerque, Conservator for Curtis M.

Collins, Jr., Plaintiffs-Appellees, v. Ray TABET, Defendant-Appellant.

No. 18488.

Supreme Court of New Mexico.

Feb. 4, 1991.

Rehearing Denied Feb. 25, 1991.

[111 N.M. 393] Butt, Thornton & Baehr, Raymond A. Baehr, Alfred L. Green, Jr., Albuquerque, for defendant-appellant.

Ron Morgan, Albuquerque, for plaintiffs-appellees.

OPINION

MONTGOMERY, Justice.

The court of appeals certified this case to us as involving the following question of substantial public interest: ¹ "As guardian [ad litem], was Tabet acting as an arm of the court, cloaked with quasi-judicial immunity?" We answer: It depends. It depends on whether Tabet truly was appointed, and acted pursuant to that appointment, primarily as "an arm of the court," or whether his appointment as guardian ad litem constituted him, and he acted, primarily as an advocate representing the interests of his ward without responsibilities delegated to him by the appointing court.

In this opinion we explain this rather enigmatic answer and explore some of its implications.

I.

Mikey Collins, the two-week old son of Curtis and Annie Collins, was diagnosed with spinal meningitis on December 31, 1977. Mikey was a normal, healthy baby up to the time he fell ill on the evening before this diagnosis. That evening, Mr. and Mrs. Collins took Mikey to the emergency room at Presbyterian Hospital in Albuquerque, where he was examined by Dr. Sollins and Nurse Ironsides and sent home. On the following day, Mr. and Mrs. Collins took him to the Indian Health Services Hospital, which referred the boy to a pediatrician. The pediatrician made the correct diagnosis and began treatment. The disease, however, had progressed to the point that Mikey was left permanently disabled--incapable of speaking, walking, feeding or bathing himself, or moving any limb except his right arm.

In April 1978, Mr. and Mrs. Collins retained an attorney, John Perrine, to pursue a medical malpractice claim against Presbyterian Hospital, Dr. Sollins, and Nurse Ironsides (the Hospital defendants) for failure to timely diagnose Mikey's disease. The plaintiff in the action, according to its caption in the district court, was "Curtis M. Collins [Mikey], individually and by his parents, Curtis and Ann Collins."

Settlement negotiations ensued between Perrine and the attorneys for the Hospital defendants and culminated in a settlement agreement reached in April 1979. The agreement provided for the Hospital defendants' payment of $46,000 in exchange for a release from any liability to Mikey or either of his parents. It was agreed that the settlement proceeds would be divided among Perrine ( 1/3), Mikey's parents for use on Mikey's behalf ( 1/3), and a trust for the purchase of a house in Mikey's name ( 1/3).

The attorneys who negotiated the settlement agreed that a guardian ad litem should be appointed for Mikey. Perrine was acquainted with defendant Ray Tabet, who officed in the same building as did Perrine, and had discussed various issues in the case with him previously. Tabet was an experienced trial lawyer, with considerable expertise in the field of medical malpractice. Perrine asked Tabet to serve as guardian ad litem, and the two of them met with Mr. Collins for a little over an hour on April 17, 1979, to discuss the settlement and the trust arrangement for the funds to be set aside for Mikey.

On May 4, 1979, the district court entered an order appointing Tabet as guardian ad litem. The order provided only that Tabet was appointed "as friend of the Court and as guardian ad litem for the plaintiff, Curtis M. Collins, a minor." On May 7, the court held a hearing on the parties' motion for approval of the settlement. Before the hearing, Tabet signed an entry of appearance as an attorney for Mikey. Mr. and Mrs. Collins and Tabet testified at the hearing under questioning by defense counsel. Tabet testified that he had reviewed the claims, the nature of the injuries, and the nature of defendants' claimed liability and that the settlement was fair to the parties involved. The district court thereupon approved the settlement. On May 8, the day after the hearing, Tabet signed on Mikey's behalf a release of Mikey's claims against the Hospital defendants.

After the case against the Hospital defendants was settled, Perrine filed suit in federal court against the Indian Health Services (IHS). This suit was dismissed by the district court. However, Mr. and Mrs. Collins obtained new counsel and appealed to the Tenth Circuit Court of Appeals, which reversed the initial dismissal. ² On remand, the district court held IHS liable for 40% of Mikey's damages, determined to be $3.9 million. The remaining 60% was attributed to the Hospital defendants. However, because of the previous settlement and the fact that New Mexico had abolished the concept of joint and several liability, plaintiffs were precluded from any further recovery against these defendants.

Mr. and Mrs. Collins and Mikey then filed suit in Bernalillo County District Court against Perrine and Tabet, seeking damages for their alleged malpractice in settling the case against the Hospital defendants. The case was tried to a jury, which found Perrine and Tabet to have been negligent and assessed Mikey's resulting damages at more than $2.9 million. Fault was apportioned 54% to Perrine, 39% to Tabet ³ and 7% to Curtis Collins, Mikey's father. The trial judge who had approved the settlement was found to be 0% at fault. Judgment was entered accordingly, and Perrine and Tabet each appealed to the New Mexico Court of Appeals, which at first consolidated the appeals and then severed them, issuing an opinion in Perrine's appeal and certifying Tabet's to this Court as stated above. See Collins v. Perrine, 108 N.M. 714, 778 P.2d 912 (Ct.App.), cert. denied, 108 N.M. 681, 777 P.2d 1325 (1989). In Perrine's appeal, the court in an opinion by Judge Apodaca affirmed the trial court judgment, holding against Perrine on questions of breach of duty and proximate cause, along with certain other questions listed in the opinion. See id. at 715, 778 P.2d at 913.

In its certification, the court of appeals divided three ways on the question certified. Stating that he would apply a "function-based analysis" to the question of the guardian's immunity, Judge Apodaca opined that Tabet was not entitled to quasi-judicial immunity, principally because Tabet's role "involved a more representational function than that of an impartial decision-maker-maker and counsel to the court." Judge Apodaca, accordingly, would have affirmed.

Chief Judge Bivins, on the other hand, would have reversed; he took the position that Tabet was indeed "looking into the fairness and reasonableness of the settlement on behalf of the court, as an arm of the court, if you will, to protect the minor's interests." Thus, he would have extended to a guardian ad litem in Tabet's situation the absolute immunity with which a judge is cloaked in the performance of his duties. See Vickrey v. Dunivan, 59 N.M. 90, 94, 279 P.2d 853, 855 (1955) (dictum). See also Ryan v. Scoggin, 245 F.2d 54, 58-59 (10th Cir.1957) (applying New Mexico law to district court judge); Edwards v. Wiley, 70 N.M. 400, 374 P.2d 284 (1962) (justice of the peace); Galindo v. Western States Collection Co., 82 N.M. 149, 477 P.2d 325 (Ct.App.1970) (same).

Finally, Judge Donnelly expressed the view that limited judicial immunity should be granted to guardians ad litem in this situation. He would have reversed and remanded the case for a new trial, in which Tabet would be granted immunity unless his actions were determined to have constituted gross negligence.

In accepting the certification, we requested the parties to file briefs on the immunity question and we heard oral argument. Like all three court of appeals judges, we believe that absolute, quasi-judicial immunity should be extended to guardians ad litem under certain circumstances; but we agree with Judge Apodaca that there are other circumstances in which a guardian ad litem, like any other attorney appearing in an action, is not entitled to claim any immunity for his or her actions. We do not take the approach advocated by Judge Donnelly--providing limited or qualified immunity when the guardian acts with only ordinary negligence but not when his or her actions constitute wilful misfeasance, fraud or gross negligence--because we agree with Judge Bivins that the tenuous distinction between ordinary and gross negligence is unworkable in this setting and runs counter to other generally applicable policies, such as those holding other fiduciaries (like general guardians and conservators and including retained counsel) liable for ordinary negligence.

We hold that a guardian ad litem, appointed in connection with court approval of a settlement involving a minor, is absolutely immune from liability for his or her actions taken pursuant to the appointment, provided that the appointment contemplates investigation on behalf of the court into the fairness and reasonableness of the settlement in its effect on the minor. We also hold, however, that if the guardian's appointment does not contemplate actions on behalf of the court but instead representation of the minor as an advocate, or if the guardian departs from the scope of appointment as a functionary of the court and instead assumes the role of a private advocate for the child's position, then the guardian is not immune and may be held liable under ordinary principles of malpractice.

In this case there is a sharp factual dispute between the parties regarding the role Tabet was initially appointed to perform and how he discharged that role. Tabet contends that he functioned at all times as the agent of the court for purposes of investigating...