exclusion test in New Mexico

2016The State, relying on Rule 11- 14 804(B)(1) NMRA, claims that the preliminary hearing testimony was properly 15 admitted as an exception to the hearsay rule. 16 {28} “A hearsay statement consists of an out-of-court statement offered to prove the 17 truth of the matter asserted, and is inadmissible as substantive evidence unless it falls 18 within an exclusion or exception to the hearsay rule.” Lopez, 2011-NMSC-035 , ¶ 5 19 (internal quotations marks and citation omitted).

2012In response, the State asserts that Victim's out-of-court statements qualified as dying declarations. {24} Hearsay "consists of an out-of-court statement offered to prove the truth of the matter asserted, and is inadmissible as substantive evidence unless it falls within an exclusion or exception to the hearsay rule." Lopez, 2011-NMSC-035, ¶ 5 , 150 N.M. 179 , 258 P.3d 458 (internal quotation marks and citation omitted); see Rule 11-801(C) NMRA (defining hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the trut

1973State v. Warner, 83 N.M. 642 , 495 P.2d 1089 (Ct.App.1972).

1973State v. Warner, 83 N.M. 642 , 495 P.2d 1089 (Ct.App.1972).

2019Co., 2012-NMSC-032, ¶¶ 19-21 , 285 P.3d 644 (citing a number of cases indicating that courts routinely refer to dictionaries to aid in assessing the meaning of undefined terms and considering the dictionary definition of “sudden” to construe an insurance contract’s exclusion clause). {22} “Separate” as used in Rule 11.5(a) is commonly defined as “set or kept apart,” “not shared with another,” “existing by itself,” and “dissimilar in nature or identity.” Merriam-Webster’s Collegiate Dictionary 1134 (11th ed. 2005).

2015Defendant also relies on State v. White, 1954- 12 NMSC-050, ¶ 15, 58 N.M. 324 , 270 P.2d 727 , for a similar proposition. [MIO 22] 13 In White, our Supreme Court reversed the district court’s exclusion of defense 14 witnesses—who would have testified about the prosecution’s witness’s threats and 15 attempts to keep other defense witnesses from appearing and testifying at the 16 trial—holding that the excluded witnesses’ testimony was not collateral and was not 17 properly excluded when offered to prove bias or interest of the prosecution’s witness. 18 Id. ¶¶ 13-15.

2015Defendant also relies on State v. White, 1954- 12 NMSC-050, ¶ 15, 58 N.M. 324 , 270 P.2d 727 , for a similar proposition. [MIO 22] 13 In White, our Supreme Court reversed the district court’s exclusion of defense 14 witnesses—who would have testified about the prosecution’s witness’s threats and 15 attempts to keep other defense witnesses from appearing and testifying at the 16 trial—holding that the excluded witnesses’ testimony was not collateral and was not 17 properly excluded when offered to prove bias or interest of the prosecution’s witness. 18 Id. ¶¶ 13-15.

2011State v. McClaugherty, 2003-NMSC-006, ¶ 17 , 133 N.M. 459 , 64 P.3d 486 . {5} “A hearsay statement consists of an out-of-court statement offered to prove the truth of the matter asserted,” and is inadmissible as substantive evidence unless it falls within an exclusion or exception to the hearsay rule.

2011State v. McClaugherty, 2003-NMSC-006, ¶ 17 , 133 N.M. 459 , 64 P.3d 486 . {5} “A hearsay statement consists of an out-of-court statement offered to prove the truth of the matter asserted,” and is inadmissible as substantive evidence unless it falls within an exclusion or exception to the hearsay rule.

2006In Quality Chiropractic v. Farmers Insurance Co. of Arizona, 2002-NMCA-080 , 132 N.M. 518 , 51 P.3d 1172 , this Court upheld the common law rule prohibiting the assignment of personal injury claims and also rejected “any distinction between an assignment of the proceeds of a claim and an assignment of the claim itself.” Id. ¶ 36.

2006In Quality Chiropractic v. Farmers Insurance Co. of Arizona, 2002-NMCA-080 , 132 N.M. 518 , 51 P.3d 1172 , this Court upheld the common law rule prohibiting the assignment of personal injury claims and also rejected “any distinction between an assignment of the proceeds of a claim and an assignment of the claim itself.” Id. ¶ 36.

1985State v. Gallegos, 92 N.M. 370 , 588 P.2d 1045 (Ct.App.), cert. denied, 92 N.M. 353 , 588 P.2d 554 (1978), was a case involving a polygraph examination of the victim admitted over defendant’s objection.

1985State v. Gallegos, 92 N.M. 370 , 588 P.2d 1045 (Ct.App.), cert. denied, 92 N.M. 353 , 588 P.2d 554 (1978), was a case involving a polygraph examination of the victim admitted over defendant’s objection.

1985State v. Brionez, 91 N.M. 290 , 573 P.2d 224 (Ct.App.), cert., denied, 91 N.M. 249 , 572 P.2d 1257 (1977), and State v. Fuentes, 91 N.M. 554 , 577 P.2d 452 (Ct.App.), cert. denied, 91 N.M. 610 , 577 P.2d 1256 (1978), both upheld the exclusion of test results because the operator was not qualified or the results not valid.

1985State v. Brionez, 91 N.M. 290 , 573 P.2d 224 (Ct.App.), cert., denied, 91 N.M. 249 , 572 P.2d 1257 (1977), and State v. Fuentes, 91 N.M. 554 , 577 P.2d 452 (Ct.App.), cert. denied, 91 N.M. 610 , 577 P.2d 1256 (1978), both upheld the exclusion of test results because the operator was not qualified or the results not valid.

1985State v. Brionez, 91 N.M. 290 , 573 P.2d 224 (Ct.App.), cert., denied, 91 N.M. 249 , 572 P.2d 1257 (1977), and State v. Fuentes, 91 N.M. 554 , 577 P.2d 452 (Ct.App.), cert. denied, 91 N.M. 610 , 577 P.2d 1256 (1978), both upheld the exclusion of test results because the operator was not qualified or the results not valid.

1985State v. Brionez, 91 N.M. 290 , 573 P.2d 224 (Ct.App.), cert., denied, 91 N.M. 249 , 572 P.2d 1257 (1977), and State v. Fuentes, 91 N.M. 554 , 577 P.2d 452 (Ct.App.), cert. denied, 91 N.M. 610 , 577 P.2d 1256 (1978), both upheld the exclusion of test results because the operator was not qualified or the results not valid.

1982It held that prejudice need not be shown for a time-to-sue provision because “the purpose of a time-to-sue provision is not necessarily fear of prejudice to the insurer.” [Id. 468, 632 P.2d 343 .] “[Requiring an insurer to show prejudice is appropriate because today’s insurance contract is furnished to an insured on a take-it-or-leave-it basis.” [Id. 468, 632 P.2d 343 .] Security was not relieved of its obligation under the policy because it failed to show substantial prejudice by reason of the alleged breach of the exclusion clause.

1982It held that prejudice need not be shown for a time-to-sue provision because “the purpose of a time-to-sue provision is not necessarily fear of prejudice to the insurer.” [Id. 468, 632 P.2d 343 .] “[Requiring an insurer to show prejudice is appropriate because today’s insurance contract is furnished to an insured on a take-it-or-leave-it basis.” [Id. 468, 632 P.2d 343 .] Security was not relieved of its obligation under the policy because it failed to show substantial prejudice by reason of the alleged breach of the exclusion clause.

1982In Specter v. Specter, 85 N.M. 112 , 509 P.2d 879 (1973), the Court stated that “[i]f error was in fact committed, and defendant intended to successfully rely thereon, he wras obliged to demonstrate that his rights were prejudiced thereby.” 85 N.M. at 113 , 509 P.2d 879 (Citations omitted).

1982In Specter v. Specter, 85 N.M. 112 , 509 P.2d 879 (1973), the Court stated that “[i]f error was in fact committed, and defendant intended to successfully rely thereon, he wras obliged to demonstrate that his rights were prejudiced thereby.” 85 N.M. at 113 , 509 P.2d 879 (Citations omitted).

1982They are not plain and clear and would not convey to an insured the meaning of sections and subsections applicable to the exclusion clause. “[I]t is virtually impossible to have an accident of any type without being in technical violation of some FAA Rule, usually some part of 14 CFR Part 91 .... ” 3 Aviation Tort Law § 29.27, p. 221 (1980); Culberson, supra. Security knows or should know that insurance contracts are construed liberally in favor of the insured and strictly against the insurers; that this rule applies to exclusions in the policy; that words and phrases, unless defined to requir

1982King v. Travelers Insurance Company, 84 N.M. 550 , 505 P.2d 1226 (1973).

1982King v. Travelers Insurance Company, 84 N.M. 550 , 505 P.2d 1226 (1973).

1982We hold that proof of causal connection between the cause of the accident and the policy exclusion is not required. [ 636 P.2d 424 .] In other words, Ochs holds that an Airworthiness Certificate is not valid and current if, while an aircraft is in an unairworthy condition during flight which caused the accident, an annual inspection had not been made; that proof of causal connection is not required when an unairworthy condition exists at the time of the accident, and the exclusion clause is operative.

1978State v. Shaw, 90 N.M. 540 , 565 P.2d 1057 (Ct.App.1977).

1978State v. Shaw, 90 N.M. 540 , 565 P.2d 1057 (Ct.App.1977).

1977The court disagreed that Arenson was in conflict with National Union Fire Company v. Bourn, supra, stating that in Bourn the court had correctly held that an additional insured who intentionally caused damage was precluded from recovering by the exclusion clause, stating [ 491 S.W.2d at 699 ]: The important distinction between Bourn and Arenson, is that in Bourn claim was made through an insured who committed an intentional wrong.

1977The court disagreed that Arenson was in conflict with National Union Fire Company v. Bourn, supra, stating that in Bourn the court had correctly held that an additional insured who intentionally caused damage was precluded from recovering by the exclusion clause, stating [ 491 S.W.2d at 699 ]: The important distinction between Bourn and Arenson, is that in Bourn claim was made through an insured who committed an intentional wrong.

1975There the exclusion clause excluded coverage under Part I ( 151 Mont, at 134 , 439 P.2d at 762 ): “ * * * (g) to an owned automobile while used by any person while such person is employed or otherwise engaged in the automobile business, * * * It further defined automobile business as “the business or occupation of selling, repairing, servicing, storing or parking automobiles.” The Montana Court held the exclusion did apply when the automobile was being delivered to the customer.

1975There the exclusion clause excluded coverage under Part I ( 151 Mont, at 134 , 439 P.2d at 762 ): “ * * * (g) to an owned automobile while used by any person while such person is employed or otherwise engaged in the automobile business, * * * It further defined automobile business as “the business or occupation of selling, repairing, servicing, storing or parking automobiles.” The Montana Court held the exclusion did apply when the automobile was being delivered to the customer.