(dissenting).
{32} Respectfully, I dissent from the majority opinion. As explained below, I believe that the majority opinion is a step back for New Mexico and disregards the existence of mandatory insurance in this State. “This Court has in the past taken progressive steps in recognizing the need to change and modify legal concepts. Here, in not recognizing the fact that disclosure of the insurance companies as parties is proper and appropriate, the majority has missed an opportunity to do so again.” Safeco Ins. Co. v. United States Fid. & Guar. Co., 101 N.M. 148, 153, 679 P.2d 816, 821 (1984) (Stowers, J., dissenting) (citations omitted).
{33} Under our Mandatory Financial Responsibility Act, the Legislature requires all owners and operators of motor vehicles to either purchase liability insurance or to post a surety bond or cash deposit. Rule 1-017(A) NMRA 2002 states that “[ejvery action shall be prosecuted in the name of the real party in interest.” This Court, in Breeden v. Wilson, 58 N.M. 517, 524, 273 P.2d 376, 380 (1954), held that
an insurance policy procured by force of legislative enactment inures to the benefit of any injured member of the public, and the insurance company is a proper party defendant in a suit for damages by that injured party, unless the statute ... in its terms negatives the idea of such joinder.
We reaffirmed this principle in Raskob v. Sanchez, 1998-NMSC-045, ¶ 3, 126 N.M. 394, 970 P.2d 580 (noting that “where the insurance coverage is mandated by law for the benefit of the public, generally the insurance company is a proper party”). “Compulsory liability insurance ... is intended to provide a benefit to the general public.” Raskob, 1998-NMSC-045, ¶ 6, 126 N.M. 394, 970 P.2d 580. As the majority notes, joinder is permissible if the coverage was mandated by law, the law benefits the public, and “no language of the law expresses an intent to deny joinder.” Id. ¶ 3. As in Raskob, only the third factor is at issue in the present ease. See id. The majority expresses that “State Farm points to no affirmative language that expressly negates joinder” and that we require express language to negate joinder. Majority opinion, ¶ 11. I agree. However, from this position, the majority then focuses on our rules of evidence to answer the question of whether joinder necessarily requires disclosure. See majority opinion, ¶¶ 19-26.
{34} I believe that once we conclude that our Legislature created mandatory insurance which benefits the public and does not express an intent to deny joinder, then we necessarily conclude that, as a real party in interest, the defendant insurer must be disclosed as a party.
The Legislature, by authorizing the joinder as party defendants a motor carrier and its insurance carrier, in effect determined that ... no prejudice results from such joinder. Stated in another way, the Legislature, by authorizing the joinder of the insurance carrier, has in effect, determined that knowledge of insurance liability is not prejudicial to the right of the motor carrier or to its insurance carrier.
Blanke v. Alexander, 152 F.3d 1224, 1231 (10th Cir.1998) (emphasis added). The Tenth Circuit observed in analyzing an analogous statutory scheme: “We are convinced ... that here state policy expressed in the Oklahoma statute and interpretations of it by the Oklahoma Supreme Court is involved. [The statute] has been recognized as creating a right to a joint action by an injured party ..., and in such actions the general rule against references to liability insurance does not apply.” Alexander, 152 F.3d at 1231. The Tenth Circuit determined that the Oklahoma rule of joinder was a substantive public policy of the state and that it therefore controlled over the merely procedural rule of Rule 411 of the Federal Rules of Evidence. The court noted that “although the application of [this legislative policy] will affect the admissibility of some evidence, [it] in reality serve[s] substantive state policies regulating private transactions.” Id. I agree and believe that this is consistent with New Mexico precedent. “[U]nder the view we have taken of this ease, the question involved is not procedural, but one involving the substantive rights of the parties. The rules are procedural and do not control substantive rights.” Breeden, 58 N.M. at 525, 273 P.2d at 380.
{35} The majority’s decision departs from what I believe is the natural path of our precedent. See e.g., Breeden, 58 N.M. at 525, 273 P.2d at 380; England v. New Mexico State Highway Comm’n, 91 N.M. 406, 409, 575 P.2d 96, 99 (1978) (holding that, prior to amendment of the Tort Claims Act, joinder of the insurance company as a party defendant is proper). These cases held that the Legislature’s passage of mandatory insurance for the benefit of the public created a substantive right in injured members of the public to pursue compensation for their injuries. It seems to me that bifurcation and non-disclosure demotes and diminishes the right of direct action to a mere procedural right and thus, in effect, reverses our longstanding precedent. As a matter of substantive public policy, as opposed to mere procedure, the question of disclosure is within the province of the Legislature and thus cannot be resolved by Rule 11-411 NMRA 2002.
{36} The majority acknowledges that “at least one [of our prior cases, Breeden,] assumes” that “joinder of the insurance company requires disclosure to the jury.” Majority opinion, ¶ 14.1 believe that a close reading of Breeden reveals more than an assumption of disclosure. Rather, Breeden implicitly holds that joinder, in a direct action case, requires disclosure; by endorsing bifurcation, the majority overrules Breeden. As the majority notes, although Justice Seymour did favor non-disclosure, he wrote that “as time goes on and insurance becomes almost universal, and as juries become more sophisticated, this public policy of which we have spoken will lessen in importance.” Breeden, 58 N.M. at 524, 273 P.2d at 380. The majority chooses not to reach the question of whether the concern regarding prejudice has “lessened over time,” instead basing its conclusion on Rule 11-411. Majority opinion, ¶ 22. I believe that the fact of mandatory insurance compels a conclusion that this prejudice is indeed 'lessened, and that the Legislature has recognized the lack of prejudice by not explicitly precluding joinder.
{37} I fear that bifurcation and non-disclosure are a retreat to the past. It appears that the single greatest flaw is the assumption that the passage of twenty years with mandatory insurance has had no effect whatsoever on the people of New Mexico. Bifurcation rests on1 the assumption that jurors remain as uniformed and unsophisticated as jurors of fifty years ago while ignoring the reality that for the past twenty years each of these jurors has been required by New Mexico law to prove to the Department of Motor Vehicles that he or she has purchased valid insurance in order to register his or her vehicle. I believe that the level of awareness of jurors has increased dramatically from 1954 when this Court issued Breeden.
{38} Bifurcation and non-disclosure ignores the reality that each juror who has made a car accident claim, whether against the other driver or his or her insurer, must deal with the insurance company and not with the other driver. It is a futile exercise to attempt to hide from the jury the fact of insurance when every juror is presumed to know that by law, the defendant is required to have insurance. I fear that with this ruling, this Court seeks to create the presumption that jurors do not know the law.
{39} Justice Payne expressed,
I disagree ... with the general policy barring the admission of evidence relating to the existence of a defendant’s insurance coverage. [The rationale for] this bar, [is] based on the unsubstantiated fear that juries would return verdicts against defendants on insufficient evidence or for larger amounts if they knew the insurance company and not the defendant were to pay. A review of these cases in those states with direct action statutes, like Louisiana and Wisconsin, show these fears to be unfounded. Evidence of insurance coverage should be treated as any other evidence, with its admissibility dependent upon the rules of evidence and not an artificial, absolute bar.
Maurer v. Thorpe, 95 N.M. 286, 288, 621 P.2d 503, 505 (1980) (Payne, J., specially concurring) (citation omitted), overruled by Safeco, 101 N.M. at 150, 679 P.2d at 818. I agree.
{40} The bifurcation procedure rests on the same rationale I believe this Court rejected in Raskob, that the NMFRA indicates that the Legislature intended indemnification and not direct liability.
The purpose of compulsory liability insurance is unlike that of indemnification insurance, which simply protects the owner of the vehicle or operator from loss. It generally exists solely for the benefit of the insured. Compulsory liability insurance, on the other hand, is intended to provide a benefit to the general public. Our Act cannot be read as only providing indemnification thereby precluding the joinder of [the defendant’s insurer]____ Finally, we have previously distinguished an insurance company’s liability to pay, which arises after judgment against its insured, from the right to sue the company.
Raskob, 1998-NMSC-045, ¶ 6, 126 N.M. 394, 970 P.2d 580 (citations omitted). It seems to me that bifurcation is the full equivalent of indemnification. Bifurcation carries the implication that the insurer is not directly liable to the plaintiff until after the jury has first found the insured liable, thus making the insurer only indirectly liable. In other words, if the insured is found liable, bifurcation makes the insurer’s liability one of indemnification only. By adopting bifurcation, the majority collapses the above distinction recognized by this Court in Raskob, as evidenced by the majority’s reference to the insurance company as a nominal party and the majority’s decision to equate subrogation with a direct action. Majority opinion, ¶¶ 1, 26. As the majority recognizes, subrogation and direct action principles developed in two separate lines of cases. Id. ¶¶ 12-13. I believe that this reflects the policy choice made by the Legislature in direct action cases and is not a mere “historical accident.” See id. ¶ 20.
{41} As noted above, the majority relies on Rule 11-411 as well as, implicitly, Rule 11-401 NMRA 2002, both rules of evidence, for its holding. Majority opinion, ¶ 23. I believe that the majority improperly expands Rule 11-411. Rule 11-411 simply prohibits evidence of insurance when offered “upon the issue [of] whether the person acted negligently or otherwise wrongfully.” The majority has now, I believe, too broadly articulated this rule to mean “that in an ordinary negligence case the presence or absence of insurance is not relevant to the issues that need to be decided by the jury.” Majority opinion, ¶21. While the presence or absence of insurance coverage itself is certainly irrelevant as to the issue of negligence, the name of a party is not evidence; it is simply the designation of the insurer. The text of the rule is limited to “evidence,” so this rule would only apply if a plaintiff attempted to introduce the fact of insurance in the presentation of evidence. The irrebuttable presumption of prejudice in Rule 11-411 is wholly inapplicable in the context of mandatory insurance. Because the Legislature has mandated this type of insurance, I believe that our jurors are already well aware of the existence of the defendant’s insurer and thus there is no need to artificially shroud the name of the insurance company in secrecy.
{42} Finally, I am also concerned that bifurcation is constitutionally impermissible because it treats insurance companies differently from other parties.
In other types of cases, disclosure of the joinder of the real party in interest has never been an issue. For reasons that may never have been valid, insurance has been an exception. Once properly joined, a party should not be given a special nondisclosure status. Nevertheless, the majority allows the fact of the insurer’s joinder to remain unknown to the jury. It is time we recognize that an insurance company is no different and should be treated no differently.
Safeco, 101 N.M. at 153, 679 P.2d at 821 (Stowers, J., dissenting).
{43} I would hold that a joined insurance company should be disclosed to the jury. The majority concluding otherwise, I respectfully dissent.
I CONCUR: PETRA JIMENEZ MAES, Justice.