See UJI 13-1633; Safeco, 100 N.M. at 443, 671 P.2d at 1154; Eoff v. Forrest, 109 N.M. 695, 699, 789 P.2d 1262, 1266 (1990).Eckhardt v. Charter Hosp. of Albuquerque, Inc., 124 N.M. 549, 562, 953 P.2d 722, 735 (Ct. App. 1997). See Ledbetter v. Webb, 103 N.M. at 602-03, 711 P.2d at 879-880 ("Negligent misrepresentation is not, of course, a "lesser included" cause of action within a claim for deceit or fraud."
However, "[w]here the facts and circumstances of the relationship between the parties are at issue, [the] existence of a duty may become a mixed question of law and fact under which the fact issue must be submitted to the jury for resolution." Eckhardt v. Charter Hosp., Inc., 1998-NMCA-017, ¶ 39, 124 N.M. 549, 953 P.2d 722 (internal quotation marks and citation omitted). Therefore, we must evaluate the facts and circumstances surrounding the Hospital's dealings with MAT to determine whether the nature of their relationship should have been assessed by the jury, rather than the district court.
The cases relied on by Terminix for this contention are distinguishable. In Eckhardt v. Charter Hospital of Albuquerque, Inc., 953 P.2d 722 (N.M.Ct.App. 1997), the court only considered whether the conduct at issue was negligent, which Terminix concedes. Its reliance on Sameden Oil Corp. v. Neeld, 577 P.2d 1245, 1249 (N.M. 1978), in which the trial court misinstructed the jury as to the appropriate rule, is likewise misplaced. In Campbell, 975 F.2d at 1581-83, the court held that notations in an employee's file that "he had refused chemical tests in 1974 and 1976 and that he was the subject of a DWI arrest or conviction in 1976" were insufficient to establish that the defendant trucking company had authorized, participated in, or ratified an alcohol-related trucking accident of the employee in 1986.
Eckhardt v. Charter Hosp. of Albuquerque, Inc., 1998-NMCA-017, ¶ 55, 124 N.M. 549, 562, 953 P.2d 722, 735. Also, “while negligent misrepresentation may be proven by a preponderance of the evidence, common-law fraud must be proven by clear and convincing evidence.” Id. at ¶ 56, 124 N.M. at 562, 953 P.2d at 735; Cantrall v. Applera Corp., No. 02-cv-747, 2003 WL 27385262, at *4 (D.N.M. Apr. 10, 2003).
To prove a claim of fraud, Plaintiffs must show by clear and convincing evidence: (1), a representation of fact was made which was not true, (2) either the falsity of the representation was known to the party making it or the representation was recklessly made, (3) the representation was made with the intent to deceive and to induce [Plaintiffs] to rely on the representation, and (4) Plaintiffs did in fact rely on the representation. See NM UJI 13-1633; Eckhardt v. Charter Hosp. of Albuquerque, Inc., 124 N.M. 549, 562 (1998). To prove a claim of negligent misrepresentation, Plaintiffs must establish the following elements: (1) Defendants made a material misrepresentation of fact to Plaintiff[s], (2) Plaintiff[s] relied upon such representation, (3) Defendants knew the representation was false at the time it was made or made the representation recklessly, and (4) Defendants intended to induce Plaintiff[s] to rely on such representation.
For example, whether a hospital owes a duty to its patients is a question of law, but whether a particular plaintiff was a patient of the hospital is a question of fact. See Eckhardt v. Charter Hosp. of Albuquerque, Inc., 124 N.M. 549, 558, 953 P.2d 722, 731 (Ct.App.1997) (stating that “Plaintiff's case presents circumstances in which the question of whether Charter owed her a duty depends on the existence of particular facts[,]” so that “the existence of a duty owed by Charter to Plaintiff depended on whether Plaintiff was a Charter patient ...”). II. Whether QHR's duties are limited by the terms of the Agreement
Moreover, courts in other jurisdictions, along with legal commentators, have concluded that a fiduciary relationship exists between a mental health therapist and his patient. See, e.g., Hoopes v. Hammargren, 725 P.2d 238, 242 (Nev. 1986) (psychiatrists and all physicians have fiduciary relationship with patients); Eckhardt v. Charter Hosp. of Albuquerque, 953 P.2d 722, 727-28 (N.M.Ct.App. 1997) (non-physician mental health counselors have fiduciary relationship with their patients); MacDonald v. Clinger, 446 N.Y.S.2d 801 (N.Y.App.Div. 1982) (noting that fiduciary responsibilities were "implicit in and essential to" the relationship between patient and his psychiatrist); Watts v. Cumberland County Hosp. System, Inc., 75 N.C. App. 1, 330 S.E.2d 242, 249-50 (N.C.Ct.App. 1985) (fiduciary relationship exists between psychiatrist and patient), rev'd in part on other grounds, 343 S.E.2d 201 (N.C. 1986); see also Benjamin M. Schutz, Legal Liability in Psychotherapy 12 (1982); Charles Eger, Psychotherapists' Liability for Extrajudicial Breaches of Confidentiality, 18 Ariz. L. Rev. 1061, 1065 (1976); Restatement (Second) of Torts, § 874 cmt. a. ("A fiduciary relation exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of that relation.") (citation omitted).See, e.g., Stevens v. Cricket Club
Furthermore, as Plaintiffs' answer brief indicates, on at least one occasion, this Court has affirmed the validity of a claim based on the negligent selection of an independent contractor, thereby implicitly endorsing the policy on which Section 411 is based. See Eckhardt v. Charter Hosp. of Albuquerque, Inc., 1998-NMCA-017, ¶¶ 41-44, 124 N.M. 549, 953 P.2d 722 (affirming a judgment where the plaintiff claimed that a hospital negligently selected a contract therapist without referencing Section 411). Accordingly, our adoption of Section 411 comports with both the national trend in tort jurisprudence as well as the natural progression of our own tort jurisprudence.
(1) fraudulent misrepresentation requires an untrue statement, while negligent misrepresentation may involve a statement that is "literally true" but misleading; (2) fraudulent misrepresentation requires the defendant to make the statement recklessly or with knowledge that it is false, while negligent misrepresentation only requires a failure to exercise ordinary care in obtaining or communicating the statement; [and,] (3) fraudulent misrepresentation requires an intent to deceive, while negligent misrepresentation only requires an intent that the plaintiff receive and be influenced by the statement where it is reasonably foreseeable that the plaintiff would be harmed if the information conveyed was incorrect or misleading.Eckhardt v. Charter Hosp. of Albuquerque, Inc., 1998-NMCA-017, ¶ 55, 124 N.M. 549, 562, 953 P.2d 722, 735. Also, "while negligent misrepresentation may be proven by a preponderance of the evidence, common-law fraud must be proven by clear and convincing evidence."
"`[W]hen the existence of a contract is at issue and the evidence is conflicting or permits more than one inference, it is for the finder of fact to determine whether the contract did in fact exist.'" Eckhardt v. Charter Hosp. of Albuquerque, Inc., 124 N.M. 549, 559, 953 P.2d 722, 732 (Ct.App. 1997) (quoting Garcia v. Middle Rio Grande Conservancy Dist., 99 N.M. 802, 807, 664 P.2d 1000, 1005 (Ct.App. 1983), overruled on other grounds by Montoya v. AKAL Sec., Inc., 114 N.M. 354, 357, 838 P.2d 971, 974 (1992)). Resource Associates argues that there was a termination agreement which consisted of the Termination Letter, the Notice to Submit Return Materials, and the Confirmation Letter. There is no dispute that Maberry signed the Confirmation Letter and assented to the duties which that Confirmation Letter described. While the evidence is arguably weak regarding the other termination documents' terms, there is evidence that could support a jury finding that Maberry agreed to the requests in the Termination Letter or the Notice to Submit Return Materials. Given that evidence, the Court will not grant summary judgment in favor of either party regarding whether the termination existed and what its terms were. Rather, a jury will have to decide.