February 3, 2020- Mary Escobar Jury v. Farmers Insurance Exchange, No. A-1-CA-36222

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
MARY ESCOBAR JURY,	2
Plaintiff-Appellant,	3
v. 	No. A-1-CA-36222	4
FARMERS INSURANCE EXCHANGE, a	5
foreign corporation, MID-CENTURY	6
INSURANCE COMPANY, CHRISTOPHER	7
TURPEN, and THE CHRISTOPHER S.	8
TURPEN INSURANCE AGENCY, INC.,	9
Defendants-Appellees.	10
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	11
Nancy J. Franchini, District Judge	12
Kerry Kiernan, P.C.	13
Kerry Kiernan	14
Albuquerque, NM	15
McGinn, Carpenter, Montoya & Love, P.A.	16
Randi McGinn	17
Katie Curry	18
Albuquerque, NM	19
for Appellant	20
O’Brien & Padilla, P.C.	21
Daniel J. O’Brien	22
Erica R. Neff	23
Albuquerque, NM	24
for Appellees Farmers Insurance Exchange and Mid-Century Insurance Company	25
Court of Appeals of New Mexico
Filed 2/3/2020 9:07 AM

2
Lewis, Brisbois, Bisgaard & Smith, LLP	1
Gregory L. Biehler	2
Jill M. Collins	3
Albuquerque, NM	4
for Appellees Christopher Turpen and The Christopher S. Turpen Insurance Agency,	5
Inc.	6
MEMORANDUM OPINION	7
IVES, Judge.	8
{1} 	Plaintiff Mary Escobar Jury appeals from a jury verdict and judgment entered	9
against her and in favor of Defendants Farmers Insurance Exchange and Mid-	10
Century Insurance Company (the Farmers Defendants) and Defendants Christopher	11
Turpen and the Christopher S. Turpen Insurance Agency (the Turpen Defendants)	12
(collectively, Defendants). Plaintiff argues that (1) we should reverse the judgment	13
and remand for a new trial because the district court abused its discretion by	14
bifurcating the trial and by ruling against Plaintiff on certain evidentiary issues, and	15
(2) if we do not conclude that any error warrants a new trial, we should reverse the	16
district court’s award of certain costs to the Farmers Defendants because that award	17
was based on an abuse of the district court’s discretion. Unpersuaded, we affirm.	18
BACKGROUND	19
{2} 	Plaintiff was seriously injured in an accident with an automobile while riding	20
her bicycle westward across the intersection of San Mateo Boulevard and Indian	21
School Road in Albuquerque, New Mexico in September 2010. Defendant Mid-	22

3
Century Insurance Company denied Plaintiff’s claim for underinsured motorist	1
(UIM) benefits under her business’s commercial auto insurance policy on the ground	2
that Plaintiff was not entitled to benefits under the language of the policy because	3
she had not been “ ‘occupying’ a ‘covered auto’ ” at the time of the accident. Plaintiff	4
then brought suit, asserting claims for breach of contract and insurance bad faith	5
against the Farmers Defendants, claims for negligence and violations of the Unfair	6
Practices Act, NMSA 1978, §§ 57-12-1 to -26 (1967, as amended through 2019),	7
against the Turpen Defendants, and claims for violations of the New Mexico Unfair	8
Insurance Practices Act, NMSA 1978, § 59A-16-20 (1997), against all Defendants.	9
{3} 	After the Farmers Defendants raised Plaintiff’s lack of a legal entitlement to	10
recover damages from the driver of the automobile as a defense, see generally	11
NMSA 1978, § 66-5-301(A) (1983) (providing, in relevant part, that UIM coverage	12
is “coverage . . . for the protection of persons . . . who are legally entitled to recover	13
damages” from uninsured and underinsured motorists), the Turpen and Farmers	14
Defendants separately moved to bifurcate trial on that issue—i.e. the driver’s	15
negligence—from trial on the other issues raised by Plaintiff’s claims. Defendants	16
argued that bifurcation would (1) further the expeditious and economical resolution	17
of Plaintiff’s case because a jury finding that the driver was not at fault would	18
dispose of all of Plaintiff’s claims; (2) avoid jury confusion by separating the	19
presentation of evidence relevant to the driver’s negligence from the presentation of	20

4
evidence relevant to the other issues raised by Plaintiff’s claims; and (3) avoid	1
prejudice to Defendants by preventing the introduction of evidence inadmissible	2
under Rules 11-403 and 11-411 NMRA to prove negligence during trial on that	3
issue. After full briefing and a hearing, the district court granted Defendants’	4
motions, finding that “bifurcation [would] avoid jury confusion and undue prejudice	5
to Defendants.”	6
{4} 	A jury found in Defendants’ favor in the bifurcated negligence trial, and the	7
district court entered judgment against Plaintiff on all of her claims. The district	8
court then awarded certain costs to the Farmers Defendants over Plaintiff’s	9
objection. This appeal followed.	10
DISCUSSION	11
I. 	The District Court Did Not Commit Reversible Error in Bifurcating Trial	12
on the Issue of Plaintiff’s Legal Entitlement to Recover Damages From	13
the Allegedly Underinsured Driver	14
{5} 	Plaintiff’s primary contention on appeal is that the district court erred in	15
bifurcating trial on the issue of negligence pursuant to Rule 1-042(B) NMRA. The	16
Rule provides that a district court, “in furtherance of convenience or to avoid	17
prejudice, or when . . . conducive to expedition and economy, may order a separate	18
trial . . . of any separate issue or . . . issues, always preserving the right of trial by	19
jury given to any party as a constitutional right.” Id. “[T]he decision whether to	20
bifurcate a trial ordinarily rests in the sound discretion of the trial court and will not	21

5
be overturned [on appeal] absent an abuse of that discretion.” Martinez v. Reid,	1
2002-NMSC-015, ¶ 27, 132 N.M. 237, 46 P.3d 1237. “We cannot say the trial court	2
abused its discretion by its ruling unless we can characterize it as clearly untenable	3
or not justified by reason.” State v. Otto, 2007-NMSC-012, ¶ 9, 141 N.M. 443, 157	4
P.3d 8 (internal quotation marks and citation omitted). “[An] abuse of discretion will	5
not be presumed; it must be affirmatively established.” State v. Bonilla, 2000-	6
NMSC-037, ¶ 6, 130 N.M. 1, 15 P.3d 491 (internal quotation marks and citation	7
omitted). Plaintiff has not affirmatively established that the district court abused its	8
discretion in this case.	9
{6} 	The legal basis for Plaintiff’s challenge to the bifurcation order is quite	10
narrow. Plaintiff does not squarely challenge the essence of the district court’s	11
rationale—its determination that “bifurcation will avoid jury confusion and undue	12
prejudice to Defendants.” 1 Nor does Plaintiff directly challenge the Farmers	13
Defendants’ 	argument 	that 	bifurcation 	furthered 	the 	interests 	of 	efficiency,	14
convenience, and economy.2 And Plaintiff does not challenge the manner in which	15
1 Plaintiff asserts that the district court erred “[i]nsofar as [it] relied upon . . .
Rule 11-411” as a basis for ordering bifurcation. But the bifurcation order makes no
mention of Rule 11-411, and Plaintiff fails to address any of the other arguments
raised by Defendants that the district court could have relied on in finding that
bifurcation avoided prejudice and confusion. Plaintiff’s argument on this point
consequently provides us with no basis for concluding that the district court abused
its discretion.
2 Plaintiff does make the conclusory assertion that bifurcation was improper
because the issues in the bifurcated phases of trial were “linked”—i.e. that

6
the district court exercised its discretion to weigh the Rule 1-042(B) considerations:	1
prejudice, efficiency, convenience, and economy. Instead, Plaintiff argues that	2
bifurcation produced a “charade” of a trial that violated her right under the due	3
process and jury trial guarantees of the New Mexico Constitution to inform the jury	4
of “the identity of the defendant being sued, the claims being brought against that	5
defendant, the identity of the entity that will be responsible for paying damages, the	6
contractual relationship and obligations between the defendant and the plaintiff, and	7
the inconsistent positions taken by the defendant.”3
8
{7} 	Plaintiff’s claim that she has a constitutional right to a non-bifurcated trial is	9
not tethered to the authorities on which she relies. Plaintiff does not cite a single case	10
so much as suggesting that the New Mexico Constitution protects such a right, let	11
alone that this right bars our district courts from holding a separate trial on an issue	12
bifurcation would not have served the purposes for which it is permitted under Rule
1-042 because of a significant overlap in the evidence to be presented in the
bifurcated phases of trial. Plaintiff identifies a single evidentiary link connecting the
issues to be tried: “Farmers’ . . . contradictory positions on liability,” which Plaintiff
asserts would have served as evidence of Farmers’ bad faith in the second phase of
trial and “as impeachment evidence against Farmers as to liability.” Plaintiff does
not explain how the overlap in the evidence admissible in each trial was so great as
to make the district court’s decision to bifurcate an abuse of discretion, and we
therefore 	conclude 	that 	this 	argument 	is 	inadequately 	developed. 	See 	Elane
Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53.
3 Although the point is not necessary to our analysis, and without implying that
disclosure was required, we reject Plaintiff’s assertion that the identity of the
Farmers Defendants was somehow concealed at trial. As Defendants note, the record
demonstrates that the district court repeatedly informed the jury that Farmers was a
party, including during voir dire and in multiple jury instructions.

7
whenever bifurcation prevents a plaintiff from presenting to the jury the broad array	1
of information Plaintiff asserts she had a constitutional right to present. In fact, none	2
of the cases Plaintiff cites even interpret the pertinent provisions of our state	3
constitution, comparable provisions of other states’ constitutions, or any provision	4
of the federal constitution. Because Plaintiff has not cited any authorities interpreting	5
or applying constitutional jury trial or due process provisions in a manner that	6
supports Plaintiff’s argument, we assume no such authorities exist. See In re	7
Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (“We assume	8
where arguments in briefs are unsupported by cited authority, counsel after diligent	9
search, was unable to find any supporting authority. We therefore will not do this	10
research for counsel.”).	11
{8} 	Plaintiff relies on three out-of-state cases that did not even address the	12
propriety of bifurcation. See Lamz v. Geico Gen. Ins. Co., 803 So. 2d 593, 594, 596	13
(Fla. 2001) (holding that it had been reversible error for the trial court to refuse to	14
“refer[] to [the defendant UIM carrier] as the plaintiffs’ ‘underinsured motorist	15
carrier[,]’” rather than as “the plaintiffs’ automotive insurance carrier,” when	16
identifying the parties to the jury during voir dire in a trial on the underinsured	17
driver’s negligence); Earle v. Cobb, 156 S.W.3d 257, 259 (Ky. 2004) (holding that	18
the trial court had committed reversible error by ruling “that the existence of the	19
UIM coverage provided by [the defendant insurer] could not be revealed to the jury”	20

8
where, as a result of that ruling, the insurer “was not identified [as a party] and the	1
case was presented as if the only parties were the plaintiff . . . and the [driver]” during	2
a bifurcated trial on the issue of negligence); King v. State Farm Mut. Auto. Ins. Co.,	3
850 A.2d 428, 438 (Md. Ct. Spec. App. 2004) (holding that the trial court had erred	4
in granting the defendant UIM carrier’s motion to prevent its identification as the	5
sole party defendant during trial on the issue of damages caused by an underinsured	6
motorist). Assuming for the sake of argument that these cases are pertinent to the	7
bifurcation 	question 	before 	us, 	we 	find 	in 	them 	no 	basis 	for 	reaching 	the	8
constitutional holding Plaintiff seeks. The Supreme Court of Kentucky based its	9
holding in 	Earle on the court’s interpretation, informed by public policy, of	10
Kentucky’s equivalent to Rule 1-017 NMRA. 	Earle, 	156 S.W.3d at 259-62.	11
Similarly, the Maryland Court of Special Appeals in King, analogizing to First	12
Amendment 	principles 	courts 	have 	applied 	where 	a 	party 	seeks 	to 	litigate	13
anonymously, based its holding on an interpretation of the Maryland equivalent to	14
Rule 1-010 NMRA. See King, 850 A.2d at 432-35. The holding in Lamz was based	15
on the Supreme Court of Florida’s application of a public policy requiring that juries	16
“be made aware of the precise identity of an uninsured or underinsured insurance	17
carrier if it is a party at trial.” 803 So. 2d at 595.	18
{9} 	Nowhere in Plaintiff’s briefs does she explain why we should take the	19
extraordinary step of importing the rule- and policy-based holdings applicable in	20

9
these jurisdictions into New Mexico’s due process and jury trial right jurisprudence	1
and hold, as a matter of constitutional law, that the prejudice Plaintiff claims she	2
suffered should trump the other Rule 1-042(B) considerations, which Plaintiff has	3
not challenged. The only basis Plaintiff has provided for reaching the constitutional	4
holding she seeks are bare citations to the pertinent state constitutional provisions	5
and her own assertions that those provisions protect the right invoked. Plaintiff’s	6
arguments do not persuade us that the New Mexico Constitution barred the district	7
court from exercising its discretion to bifurcate the trial in Plaintiff’s case.4
8
II. 	No Reversible Error Resulted From the District Court’s Evidentiary	9
Rulings	10
{10} 	Plaintiff argues in the alternative that the district court committed reversible	11
error through its evidentiary rulings in the bifurcated negligence trial. 5 When	12
4 Plaintiff also cursorily argues that the policy underlying the “mend the hold”
doctrine should have precluded Defendants from obtaining a bifurcated trial on an
issue that they did not raise as a basis for denying Plaintiff’s claim prior to the
commencement of litigation. Defendants counter that Plaintiff failed to preserve this
issue for review because she raised it for the first time in her motion for a new trial.
Plaintiff does not argue otherwise in her reply. Nor does she assert that any
exceptions to the preservation requirements of Rule 12-321 NMRA apply here. We
therefore agree with Defendants and decline to review this issue. See Sandoval v.
Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095, ¶ 56, 146 N.M. 853, 215
P.3d 791 (“Generally, a motion for a new trial cannot be used to preserve issues not
otherwise raised during the proceedings.”).
5 Because the district court made its evidentiary rulings in the context of the
bifurcated negligence trial, Plaintiff frames her arguments as further attacks on the
bifurcation order. All of Plaintiff’s arguments, however, are based on her contention
that the district court erroneously deprived Plaintiff of the opportunity to present
evidence—through impeachment of witnesses or otherwise—pertinent to the issue

10
preserved, “[w]e review [claimed errors in] a district court’s decision to admit or	1
exclude evidence for abuse of discretion.” Los Alamos Nat’l Bank v. Velasquez,	2
2019-NMCA-040, ¶ 12, 446 P.3d 1220 (internal quotation marks and citation	3
omitted), cert. denied, 2019-NMCERT-____ (No. S-1-SC-37688, Aug. 5, 2019).	4
“An abuse of discretion arises when the evidentiary ruling is clearly contrary to logic	5
and the facts and circumstances of the case.” State v. Branch, 2018-NMCA-031,	6
¶ 36, 417 P.3d 1141 (internal quotation marks and citation omitted).	7
{11} 	Even if an abuse of discretion is shown, “[e]very error does not warrant	8
reversal, and we will not reverse absent a showing of prejudice.” El Paso Elec. Co.	9
v. Real Estate Mart, Inc., 1982-NMCA-117, ¶ 31, 98 N.M. 570, 651 P.2d 105; see	10
also Progressive Cas. Ins. Co. v. Vigil, 2018-NMSC-014, ¶ 24, 413 P.3d 850	11
(stating, parenthetically, that “to obtain a reversal on evidentiary grounds the	12
appellant must show a high probability that the improper evidentiary ruling may	13
have influenced the factfinder” (alteration, internal quotation marks, and citation	14
omitted)), reh’g granted, (No. S-1-SC-35130, March 6, 2018). “We compel the	15
of negligence. Those arguments ultimately boil down to the claim that it was error
for the district court to hold a bifurcated trial on negligence because the district court
erroneously limited the presentation of admissible evidence on that issue—in other
words, that holding a separate trial on negligence was improper because the district
court’s evidentiary rulings differed from those it was required to make in a separate
trial on negligence. Properly understood, Plaintiff’s evidentiary arguments are not
really attacks on the bifurcation order at all, and we decline to treat them as though
they are.

11
reversal of errors for which the complaining party provides the slightest evidence of	1
prejudice and resolve all doubt in favor of the complaining party.” Valerio v. San	2
Mateo Enters., 2017-NMCA-059, ¶ 16, 400 P.3d 275 (internal quotation marks and	3
citation omitted). However, “we will not set aside a judgment based on mere	4
speculation that the error influenced the outcome of the case.” Id. (alteration, internal	5
quotation marks, and citation omitted).	6
A. 	Evidence of Mid-Century Insurance’s Subrogation Claim File	7
{12} 	Plaintiff first contends that the district court committed reversible error by	8
excluding evidence showing that Defendant Farmers had previously taken the	9
position that the driver was negligent and made a subrogation claim against the	10
driver’s liability insurer. Prior to trial, the Farmers Defendants moved to exclude	11
“any and all references, indications, testimony, evidence, and suggestions that Mid-	12
Century Insurance Company opened a subrogation claim file” after paying a portion	13
of the medical expenses Plaintiff had incurred as a result of the accident. In	14
particular, the Farmers Defendants sought to exclude a letter, sent approximately a	15
year after the accident by a medical subrogation representative for Defendant Mid-	16
Century Insurance Company to the driver’s liability insurer, which stated:	17
Our investigation shows that your insured is responsible for our	18
insured’s bodily injuries sustained as a result of this accident. Mid-	19
Century Insurance Company has paid $5,000.00 to date in [medical]	20
benefits on behalf of our insured. We are entitled to reimbursement of	21
these expenses and request that you acknowledge our subrogation	22

12
interest on any settlement negotiated with our insured or their attorney.	1
. . . Please submit payment promptly.	2
The district court granted the motion over Plaintiff’s objection. On appeal, Plaintiff	3
argues that the district court’s ruling was reversible error (1) because it barred her	4
from using the subrogation letter to cross-examine witnesses in the negligence trial	5
and (2) because it prevented her from impeaching Farmers with its previous positon	6
that the driver had been at fault for the accident. We disagree.	7
{13} 	First, Plaintiff has inadequately developed her argument that she should have	8
been able to use the subrogation evidence to “cross[-]examine Farmers’ expert or	9
another Farmers[] witness.” Although she cites three authorities relevant to witness	10
impeachment—Mac Tyres, Inc. v. Vigil, 1979-NMSC-010, 92 N.M. 446, 589 P.2d	11
1037, and Rules 11-607 and 11-613 NMRA—Plaintiff fails to explain how the	12
subrogation evidence would have discredited the expert or any other witness at trial.	13
We 	accordingly decline 	to 	address 	this 	argument 	on 	the 	merits. 	See 	Elane	14
Photography, 2013-NMSC-040, ¶ 70.	15
{14} 	Second, we find it unnecessary to address whether the district court erred in	16
prohibiting Plaintiff from using the letter and related subrogation evidence to	17
impeach the Farmers Defendants because any error was harmless. The issue at trial	18
was whether Plaintiff was legally entitled to recover damages from the driver as a	19
result of the driver’s negligence. Defendants presented substantial evidence that the	20
driver was not at fault for the accident, including testimony by the driver (who, the	21

13
jury was informed, was not a party to the case), testimony by the only nonparty	1
eyewitness to the accident to testify at trial, and 	testimony by an 	accident	2
reconstructionist qualified as an expert witness.	3
{15} 	In light of this evidence, we fail to see how Plaintiff’s inability to prove that	4
the Farmers Defendants had previously taken a different position regarding the	5
driver’s negligence would have had any influence on the outcome below. On its face,	6
the subrogation letter contains nothing more than a demand for payment based on	7
the findings of an after-the-fact investigation, conducted through an unspecified	8
methodology, into liability for the accident. We decline to engage in the speculation	9
required to conclude that the letter would have had any impact on the jury and hold	10
that Plaintiff has failed to meet her burden of demonstrating that the district court’s	11
ruling resulted in prejudice.	12
{16} 	Plaintiff contends that Selgado v. Commercial Warehouse Co., 1974-NMCA-	13
093, 86 N.M. 633, 526 P.2d 430, required the district court to permit her to impeach	14
the Farmers Defendants with their prior statements. We disagree. In Selgado, the	15
plaintiff was injured when she lost control of her automobile after running over the	16
lid of a box that had fallen off a truck. Id. ¶ 1. The plaintiff had been in another	17
accident over a year after the accident at issue, and she sought as part of her claim	18
to recover damages for medical expenses incurred after the later accident. Id. ¶ 12.	19
At trial, the defendants tendered evidence showing that the plaintiff had filed a proof	20

14
of loss and received payment for certain medical expenses incurred after the later	1
accident under an insurance policy that had not been in effect at the time of the earlier	2
accident. Id. ¶ 13. The trial court excluded this evidence, and, on appeal, this Court,	3
in an alternative holding, reversed and remanded for a new trial on damages. Id.	4
¶¶ 11, 14.	5
{17} 	The evidence excluded in this case is not comparable to the evidence	6
erroneously excluded in Selgado. The tender rejected there was singularly capable	7
of discrediting the plaintiff’s claim that the earlier accident had caused the injuries	8
and medical expenses for which she sought damages; after all, the plaintiff was in a	9
unique position when it came to knowing the timing of her own injuries. Here, in	10
contrast, the excluded subrogation evidence demonstrated only that the Farmers	11
Defendants—who were not involved in or eyewitnesses to Plaintiff’s accident—had	12
at one point in time believed, on the basis of unknown information, that the driver	13
was 	at 	fault. 	We 	conclude 	that 	Plaintiff 	has 	failed 	to 	meet 	her 	burden 	of	14
demonstrating that she was prejudiced by her inability to impeach the Farmers	15
Defendants with the subrogation evidence.	16
B. 	Evidence of Plaintiff’s Settlement with the Driver’s Insurer	17
{18} 	Plaintiff next contends the district court erred by barring her from impeaching	18
the driver with evidence that she had not objected to the policy-limit payment her	19

15
insurer had made in response to Plaintiff’s claim. We agree with Defendants that	1
Plaintiff failed to preserve this claim of error.	2
{19} 	At trial, Plaintiff’s counsel drew an objection from defense counsel by asking	3
the driver whether, even though she was unaware of the medical problems Plaintiff	4
had suffered in the years since the collision, she “would . . . like to see [Plaintiff]	5
fully paid back to fix [those] problems.” During the ensuing bench conference,	6
Plaintiff’s counsel apparently indicated that she wanted to ask the driver whether she	7
was aware that she would not be liable for paying any verdict the jury returned. The	8
district court ordered her to refrain from doing so, but, over defense counsel’s	9
objection, permitted her to ask whether the driver was a party to the case. After the	10
driver testified that she understood that she was not a party, Plaintiff’s counsel asked	11
her whether she had ever “accepted any responsibility for causing [the] collision”	12
with Plaintiff.” The driver answered “[n]o.”	13
{20} 	Plaintiff now asserts that, in light of this testimony, she should have been	14
permitted to impeach the driver with evidence that the driver’s insurance company	15
had reached a settlement with Plaintiff and that the driver had not objected to this	16
settlement. But nowhere in her argument on this issue does Plaintiff point to anything	17
in the record showing that she invoked a ruling by the district court on the	18
settlement’s admissibility as impeachment evidence. Plaintiff has not argued that	19
exclusion of the settlement evidence falls within the plain error exception to the	20

16
preservation requirement. See Living Cross Ambulance Serv., Inc. v. N.M. Pub.	1
Regulation Comm’n, 2014-NMSC-036, ¶ 11, 338 P.3d 1258 (“If an evidentiary issue	2
is not properly preserved, this Court may review for plain error.”). We therefore	3
decline to review this issue. See Rule 12-321(A).	4
C. 	Impeachment of Defendants’ Accident Reconstructionist	5
{21} 	Plaintiff’s final evidentiary contention is that reversible error occurred when	6
the district court barred Plaintiff from impeaching Defendants’ expert accident	7
reconstructionist with evidence that he had worked as an expert witness for	8
Defendant Farmers in previous litigation and had “a strong connection with the	9
insurance industry.” We disagree, finding it unnecessary to address the propriety of	10
the district court’s ruling because any error was harmless.	11
{22} 	In a bench conference during her cross-examination of the expert, Plaintiff’s	12
counsel asked the court for permission to explore the fact that Defendant Farmers	13
was an insurance company in order to impeach the expert with evidence that he had	14
worked for Defendant Farmers in other cases, had connections to the insurance	15
industry, and had received contributions from Defendant Farmers. The district court	16
allowed Plaintiff’s counsel to “question [the expert] about his bias” and ruled that	17
questions about “working . . . on the side of the defense” or “[defense counsel’s]	18
client” were acceptable. However, the court would not permit questions about	19
“specific insurance companies” and barred Plaintiff’s counsel from “mention[ing]	20

17
the word ‘insurance’ at all.” Once cross-examination resumed, Plaintiff’s counsel	1
elicited testimony indicating that “probably close” to seventy percent of the expert’s	2
work as an accident reconstructionist was for defendants, rather than plaintiffs; that	3
he had previously worked on cases for Defendants; that he had previously been hired	4
by Defendant Farmers’ attorney; that he had been paid for his work in other cases	5
and was being paid for his work on this case; and that he hoped to be hired in future	6
cases.	7
{23} 	In light of the extensive inquiry into bias that Plaintiff was able to conduct at	8
trial, we conclude that the district court’s ruling did not result in prejudice to	9
Plaintiff. We do not agree that Plaintiff’s cross-examination would have been any	10
more effective in exposing the expert’s potential bias had she been able to alert the	11
jury to the expert’s previous work for companies involved in, specifically, the	12
insurance industry. Thus, even assuming that the district court erred in prohibiting	13
Plaintiff’s counsel from using the word “insurance” or referring to specific insurance	14
companies, Plaintiff has failed to meet her burden of demonstrating that this	15
restriction resulted in prejudice.	16
III. 	Plaintiff Has Not Demonstrated That the District Court Abused Its	17
Discretion in Awarding Costs to Defendant Farmers	18
{24} 	Plaintiff’s final claim of error is that, even if we do not reverse on the merits,	19
we should nonetheless reverse certain costs awarded to the Farmers Defendants by	20
the district court. As relevant, Rule 1-054(D)(1) NMRA provides that “costs . . .	21

18
shall be allowed to the prevailing party unless the court otherwise directs[.]” We	1
review a district court’s award of costs under an abuse of discretion standard.	2
Gallegos ex rel. Gallegos v. Sw. Cmty. Health Servs., 1994-NMCA-037, ¶ 27, 117	3
N.M. 481, 872 P.2d 899 (“The assessment of costs in a civil action is a matter	4
committed 	to 	the 	sound 	discretion 	of 	the 	trial 	court, 	and 	the 	trial 	court’s	5
determination will be reversed only for an abuse of discretion.”). Plaintiff contends	6
that the district court abused its discretion, first, by awarding Defendants costs	7
relating to the untried phase of trial and, second, by awarding costs for fees charged	8
by Defendant Farmers’ expert accident reconstructionist that were not disclosed to	9
Plaintiff prior to or during trial. We are unpersuaded.	10
{25} 	Plaintiff’s 	first 	argument 	is 	that 	the 	district 	court’s 	cost 	award 	was	11
“fundamentally unfair” because she “never had the opportunity to try the case for	12
which the costs are sought” and the Farmers Defendants “should not in fairness and	13
equity have received the benefit of bifurcation and the added benefit of recovering	14
costs for a case which it argued should not be tried.” Plaintiff cites no authority	15
supporting the proposition that a district court may not award costs relating to the	16
untried portion of a bifurcated proceeding where a jury verdict on a separately tried	17
issue renders trial on the remainder of the case unnecessary. Nor does she explain	18
how it was inequitable to award these costs in light of the district court’s	19

19
determination they were “reasonably necessary to the litigation of the whole case,	1
regardless of the fact that only the car accident portion of the case was tried.”6
2
{26} 	Instead, citing Marchman v. NCNB Texas National Bank, 1995-NMSC-041,	3
¶ 66, 120 N.M. 74, 898 P.2d 709, Plaintiff asserts that “the merits of [her] insurance	4
claims ha[ve] not been adjudicated” and that Defendant Farmers therefore is not the	5
“prevailing party” as to those claims within the meaning of Rule 1-054(D)(1). We	6
disagree. As we view the record, the jury’s finding that the driver was not	7
negligent—i.e. that Plaintiff had no substantive legal entitlement to recover damages	8
from the driver—was dispositive of the merits of all of Plaintiff’s claims remaining	9
at the time of trial. See Bd. of Cty. Comm’rs v. City of Las Vegas, 1980-NMSC-137,	10
¶ 7, 95 N.M. 387, 622 P.2d 695 (explaining that a decision “on the[] merits” is one	11
based “on a consideration of [a case’s] substance and the legal rights involved” rather	12
than on “mere defects of procedure or the technicalities thereof” (internal quotation	13
marks and citation omitted)). The district court entered judgment in favor of	14
6 The district court awarded expert witness fees for a number of witnesses, all
of whom appear to have testified by deposition. Plaintiff cites Jimenez v. Foundation
Reserve Insurance Co., 1988-NMSC-052, ¶ 20, 107 N.M. 322, 757 P.2d 792, for the
proposition that “a party is not entitled to recover costs for experts who did not testify
at trial.” The quoted portion of the opinion states that “there are two hurdles the
prevailing party must overcome before costs beyond per diem will be allowed for
a[n expert] witness[: f]irst, the witness must qualify as an expert and, second, the
expert must testify either at trial or by deposition.” Id. ¶ 20 (emphasis added). We
accordingly find Plaintiff’s reliance on Jimenez misplaced and decline to separately
address the district court’s award of expert fees.

20
Defendants on all of those claims, and Plaintiff does not contend on appeal that any	1
of her claims survived the jury’s verdict. We accordingly conclude that Plaintiff has	2
failed to demonstrate that the district court abused its discretion in awarding costs	3
relating to the untried portion of Plaintiff’s case.	4
{27} 	We likewise find unpersuasive Plaintiff’s argument that it was an abuse of	5
discretion for the district court to award costs for portions of the expert witness fee	6
charged by the Farmers Defendants’ accident reconstructionist not disclosed prior to	7
trial. Plaintiff cites no authority supporting the proposition that a party’s failure to	8
provide an opposing party with an updated calculation of its expert’s fees ahead of	9
trial automatically precludes an award of costs for any fees not so disclosed, and we	10
assume no such authority exists. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2.	11
The accident reconstructionist qualified as an expert and testified at trial, and the	12
district court found that his testimony was reasonably necessary to the litigation. See	13
generally NMSA 1978, § 38-6-4(B) (1983) (providing that a district court may	14
award expert witness fees, limited to one expert regarding liability and one regarding	15
damages, “for any witness who qualifies as an expert and who testifies in the cause	16
in person or by deposition” and additional expert witness fees upon finding “that	17
additional expert testimony was reasonably necessary to the prevailing party and . . .	18
not cumulative”); Rule 1-054(D)(2)(g) (providing that the prevailing party may	19
generally recover “expert witness fees for services as provided by Section 38-6-4(B)	20

21
. . . or when the court determines that the expert witness was reasonably necessary	1
to the litigation”). On the record before us, we cannot say that the district court	2
abused its discretion.	3
CONCLUSION	4
{28} 	We affirm.	5
{29} 	IT IS SO ORDERED.	6
_________________________________	7
ZACHARY A. IVES, Judge	8
WE CONCUR:	9
_________________________________	10
J. MILES HANISEE, Chief Judge	11
_________________________________	12
KRISTINA BOGARDUS, Judge	13