N.M. R. Evid. 11-408
N.M. R. Evid. 11-408
Committee commentary. - The language of Rule 11-408 NMRA was amended in 2012 to be consistent with the restyling of the Federal Rules of Evidence, effective December 1, 2011, to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on admissibility. New Mexico's rule, unlike its federal counterpart, does not create an exception for "conduct or statements made during compromise negotiations offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority." See Fed. R. Evid. 408(a)(2).
[As amended by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012.]
ANNOTATIONS The 2012 amendment, approved by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012, rewrote the title of the rule and the rule to make stylistic changes. Compiler's notes. - This rule is similar to Rule 408 of the Federal Rules of Evidence. Rule protects only those who are parties to a compromise. Where a defendant is not a party to the compromise, she cannot avail herself of its protection. State v. Martinez, 1979-NMCA-104, 95 N.M. 795, 626 P.2d 1292. Settlement offer is admissible to show wrongful conduct. - Rule 11-408 NMRA does not preclude admission of evidence of settlement negotiations in an insurance coverage dispute when the settlement negotiations are offered not to prove coverage or amount, but are offered to prove wrongful conduct such as bad or unfair practices during the claim investigation and upon denial of the claim. Fin. Indem. Co. v. Cordoba, 2012-NMCA-016, 271 P.3d 768. Where plaintiff was involved in an motor vehicle accident; worker's compensation paid plaintiff's lost wages and medical bills; plaintiff sought additional payment from defendant under the uninsured/underinsured motor coverage of plaintiff's policy; when settlement negotiations failed, defendant filed a declaratory judgment action as to whether the policy covered plaintiff's claim and in what amount; and plaintiff filed a counterclaim, alleging bad faith and averring that defendant had acknowledged coverage of plaintiff's claim by two settlement offers that were less than the policy limits and that the declaratory judgment action was a tactic to cause delay, the district court erroneously dismissed plaintiff's counterclaim for failure to state a claim, because the settlement negotiations were not offered to show that defendant acknowledged coverage or admitted liability for benefits, but to show that defendant acted in bad faith in an attempt to delay payment or to pay less than defendant was required by law to pay. Fin. Indem. Co. v. Cordoba, 2012-NMCA-016, 271 P.3d 768. Evidence of compromise proper to show other than liability or invalidity. - Since this rule excludes evidence only when its purpose is proving validity or invalidity of the claim or its amount, an offer for another purpose is not within this rule, and evidence of a compromise may be used to prove any other consequential material fact in issue. Jesko v. Stauffer Chem. Co., 1976 -NMCA-117, 89 N.M. 786, 558 P.2d 55. Proper to show agent's authority. - Authority of a certain agent was a consequential material fact in issue (other than validity of plaintiff's claim or its amount), and the agent's dealings with third parties accordingly were not excluded by this rule. Jesko v. Stauffer Chem. Co., 1976 -NMCA-117, 89 N.M. 786, 558 P.2d 55. In negligence action for failure of a retail store to control crowds, causing plaintiff to fall down an escalator, plaintiff could introduce evidence of the store operations manager's purported promise that the store would pay for any medical bills related to her fall, for the purpose of establishing that the manager had actual or apparent authority to bind the store to pay those expenses. Romero v. Mervyn's, 1987-NMSC-099, 106 N.M. 389, 744 P.2d 164. Lien not governed by recording act. - A tax lien is not within the class of written instruments governed by the New Mexico Recording Act, Section 14-9-3 NMSA 1978. Cano v. Lovato, 1986-NMCA-043, 105 N.M. 522, 734 P.2d 762. Cross-examination for purpose of showing witness' bias. - Defendant on trial for assaulting peace officer had the right to cross-examine prosecuting witness about an offer made through the district attorney to dismiss charges against defendant and abandon a possible civil suit for $20,000, since cross-examination was for the purpose of showing bias and lack of credibility of the witness and not for the purpose of proving the validity or invalidity of either the criminal charge of the prospective civil suit. State v. Doak, 1976-NMCA-091, 89 N.M. 532, 554 P.2d 993. Result of compromise itself in issue. - If acceptance of a compromise results in an enforceable contract which is subsequently repudiated in suit on contract, aggrieved party can obviously prove the offer of compromise, its acceptance and the surrounding circumstances. Jesko v. Stauffer Chem. Co., 1976 -NMCA-117, 89 N.M. 786, 558 P.2d 55. Impeachment testimony is admissible as offered for "another purpose". - This rule does not prohibit the introduction of all evidence derived from settlement negotiation. Impeachment testimony comes within evidence offered for "another purpose," and is admissible. El Paso Elec. Co. v. Real Estate Mart, Inc., 1982-NMCA-117, 98 N.M. 570, 651 P.2d 105. Information on settlements allowed. - In a personal injury action, the trial court did not abuse its discretion by informing the jury of the fact of settlement between the plaintiffs and other parties. Fahrbach v. Diamond Shamrock, Inc., 1996-NMSC-063, 122 N.M. 543, 928 P.2d 269. Law reviews. - For article, "The Admissibility of Scientific Evidence Under the New Mexico and Federal Rules of Evidence," see 6 N.M.L. Rev. 187 (1976). For article, "Survey of New Mexico Law, 1979-80: Evidence," see 11 N.M.L. Rev. 159 (1981). For article, "Survey of New Mexico Law, 1982-83: Evidence," see 14 N.M.L. Rev. 161 (1984). Am. Jur. 2d, A.L.R. and C.J.S. references. - 29 Am. Jur. 2d Evidence § 507 et seq. Prejudicial effect of reference on voir dire examination of jurors to settlement efforts or negotiations, 67 A.L.R.2d 560. Admissibility of admissions made in connection with offers or discussions of compromise, 15 A.L.R.3d 13. Evidence involving compromise or offer of compromise as inadmissible under Rule 408 of Federal Rules of Evidence, 72 A.L.R. Fed. 592. 15A C.J.S. Compromise and Settlement § 52 et seq.; 32 C.J.S. Evidence § 379 et seq.