December 16, 2015 – Healthsouth Rehabilitation Hospital of New Mexico, LTD d/b/a Healthsouth Rehabilitation Hospital v. Terry A. Brawley, individually, and Terry A. Brawley as personal representative of the Estate of Joye Brawley, deceased and The Board of Regents of New Mexico Insitute of Mining and Technology, No. 33,593

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: 	December 16, 2015
NO. 33,593
HEALTHSOUTH REHABILITATION HOSPITAL
OF NEW MEXICO, LTD., d/b/a HEALTHSOUTH
REHABILITATION HOSPITAL,
Plaintiff,
v.
TERRY A. BRAWLEY, individually, and TERRY A.
BRAWLEY as personal representative of the Estate
of JOYE BRAWLEY, deceased,
Defendants/Third-Party Plaintiffs/Appellants,
and
THE BOARD OF REGENTS OF NEW MEXICO
INSTITUTE OF MINING AND TECHNOLOGY,
Third-Party Defendant/Appellee.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Alan M. Malott, District Judge
Steven J. Vogel
Corrales, NM
Janice K. Woods

Socorro, NM
for Defendants/Third-Party Plaintiffs/Appellants
Rodey, Dickason, Sloan, Akin & Robb, P.A.
Jocelyn Drennan
Edward Ricco
Albuquerque, NM
for Third-Party Defendant/Appellee

OPINION
BUSTAMANTE, Judge.
{1} 	Third-Party Plaintiff Terry A. Brawley was severely injured in an accident
while riding his all-terrain vehicle. He sought coverage under a health plan provided
by his wife’s employer, New Mexico Institute of Mining and Technology (NM Tech).
NM Tech denied Brawley’s claims on the ground that Brawley’s injuries were
sustained while Brawley was under the influence of alcohol and hence his injuries
were excluded from coverage under the terms of the health plan. After a bench trial,
the district court found that NM Tech had breached its statutory duty to properly
investigate the claims, but also found that Brawley’s injuries were not covered by the
health plan because Brawley was under the influence of alcohol at the time of the
accident and that the influence of alcohol was “a cause” of the accident. Brawley
appeals, arguing that the district court and NM Tech erred in relying on a certain
blood alcohol content report and that his claims should be covered under the
“concurrent cause” or “independent intervening cause” doctrines. We conclude that
Brawley’s evidentiary arguments do not present reversible error and that Brawley
failed to preserve his arguments as to causation. We therefore affirm.

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BACKGROUND
{2} 	On the evening of August 1, 2009, Brawley was drinking in the Mountain View
Bar in Lemitar, New Mexico. One of the last to leave, Brawley told the bartender, “my
ride is here” as he left the bar. This statement was consistent with Brawley’s
testimony, corroborated by other witnesses, that he customarily had friends or
colleagues drive him home after he had been drinking. Later that night, Brawley was
found unconscious near his all-terrain vehicle (ATV) on an unlighted road between
the bar and his home. Brawley apparently had been thrown off the ATV when he
encountered a “wash[]out” in the road measuring fifteen feet wide and five feet deep.
He suffered extensive injuries, and after being treated for several hours at Socorro
General Hospital, was airlifted to the University of New Mexico Hospital in
Albuquerque, New Mexico. In total, Brawley was treated at four different hospitals
over a period of approximately fourteen weeks. He incurred over $500,000 in charges
for this care.
{3} 	Brawley was provided medical benefits through his wife’s employer, Defendant
NM Tech. The self-funded Health Benefit Plan (the Plan) was administered for NM
Tech by a third-party, HCH Administration (HCH), although NM Tech retained the
right of final determination as to any claim made under the Plan and had the power to
accept or reject HCH’s recommendations. The Plan was subject to the provisions of

3
the New Mexico Insurance Code, NMSA 1978, §§ 59A-1-1 to -61-6 (1978, as
amended through 2014). The Plan provides that
no benefits are payable under [the] Plan for expenses incurred or in
connection with . . . injury or sickness sustained . . . while under the
influence of alcohol . . . [provided that] there is a direct relationship
between [being under the influence of alcohol] and the sickness or
injuries sustained.
This provision also states that “[f]or purposes of this section, a person shall be
presumed to be under the influence of alcohol if his blood alcohol level equals or
exceeds the limit for driving under the influence of alcohol as determined by the law
of the state in which the [i]njury occurred.”
{4} 	Based on this exclusion, called the “alcohol exclusion” by the parties, HCH
denied the Brawleys’ claims related to the accident. In its decision to deny the claims,
HCH relied on “the police report and preliminary medical records only.” Neither HCH
nor NM Tech contacted Brawley or his wife (collectively, the Brawleys) or the
investigating police officer or emergency medical personnel at the accident scene prior
to denying the claims. No one from HCH or NM Tech went to the accident scene to
investigate the accident. Finally, HCH and NM Tech did not interview the Mountain
View Bar bartender or patrons of the bar, analyze the circumstances of the blood test
upon which they relied to assure its reliability, talk with Brawley’s medical care
providers, or follow up on the issuance and later dismissal of the DWI citation issued

4
to Brawley after the accident. The district court found that these steps would have
constituted a reasonable inquiry under the circumstances.
{5} 	The present matter was initiated when HealthSouth Rehabilitation Hospital of
New Mexico, Ltd., d/b/a HealthSouth Rehabilitation Hospital (HealthSouth), sued the
Brawleys to recover the amount of their bills unpaid by NM Tech. The Brawleys filed
an answer and third-party complaint naming HealthSouth and NM Tech as third-party
defendants. The complaint alleged breach of contract, bad faith, violation of the
Insurance Code, and violation of the Unfair Practices Act, NMSA 1978, §§ 57-12-1
to -26 (1967, as amended through 2009). The Brawleys also sought a declaratory
judgment establishing that their claims are covered under the Plan.
{6} 	HealthSouth was dismissed from suit based on a settlement agreement and the
matter proceeded to a bench trial against NM Tech. At trial, the Brawleys tendered
testimony by an accident reconstructionist who opined that the washout was the sole
cause of the accident and an insurance expert who testified that NM Tech failed to
properly investigate the accident and, more specifically, whether Brawley’s alleged
intoxication had a “direct relationship” to the accident. NM Tech presented testimony
by its own insurance expert who testified that HCH and NM Tech properly denied the
claims based on a medical report showing Brawleys’ blood alcohol level and that no

5
further investigation was required. The parties stipulated that the amount remaining
unpaid was $308,391.89.
{7} 	The district court entered a number of findings of fact. First, it found that “[a]
blood test performed some time after the crash, and after . . . Brawley had been
hospitalized, indicated that he had a blood alcohol level nearly double the New
Mexico threshold for a presumption of intoxication” and that “[t]his was confirmed
by the testimony of [NM Tech’s witness].” As to the alcohol exclusion, the district
court found that, although the phrase “direct relationship” is not defined in the Plan,
“[t]he parties have uniformly and consistently represented to the [c]ourt, and to each
other, that the ‘direct relationship’ [required by the provision] is functionally the same
as causation.” The district court rejected the expert testimony to the effect that the
washout was the sole cause of the accident and found that “Brawley’s alcohol use on
the night of [the accident] was a cause of the ATV crash in which he was injured, and
which generated the medical bills at [the] root of this litigation.” As discussed above,
the district court found that neither HCH nor NM Tech undertook a reasonable
investigation into the Brawleys’ claims. It also found that the Brawleys “did not suffer
any actual damages as a result of NM Tech’s . . . lack of an appropriate thorough and
complete investigation into the [accident] . . . prior to the denial of medical benefits
at issue.” See § 59A-16-30 (stating that a person “who has suffered damages as a

1The Brawleys did not argue below nor do they argue on appeal that the
exclusion at issue here is contrary to public policy. The district court noted that
“[w]hile [it had]concerns about the enforceability of such broad exclusionary
language, neither party has put the validity or enforceability of [the alcohol] exclusion
before the [c]ourt in this matter and it is not, then, considered.” Likewise, we do not
consider the public policy implications of the alcohol exclusion.
6
result of a violation of [the Insurance Code] by an insurer or agent is granted a right
to bring an action in district court to recover actual damages”). The district court did
not enter findings of fact specifically addressing the Brawleys’ common law bad faith
claim or request for punitive damages. The Brawleys make no argument on appeal as
to the district court’s failure to address their common law bad faith claim or their
request for punitive damages under that claim. 1
{8} 	Based on its findings, the district court concluded that NM Tech “violated [t]he
Insurance Code by failing to have a licensed adjustor[,] and by failing to adopt and
implement a reasonable plan for the appropriate investigation of claims in general and
as 	to 	the 	Brawley 	claims 	in 	specific.” 	Second, 	the 	court 	concluded 	that
“[n]otwithstanding [NM Tech’s] violation of the Insurance Code,” the denial of
benefits to the Brawleys was appropriate because there was sufficient evidence that
the accident bore a “direct relationship” to Brawley’s “ingestion of alcohol” and was
otherwise supported by sufficient evidence. The court entered judgment in favor of
NM Tech.

7
DISCUSSION
{9} 	On appeal, the Brawleys argue that the judgment must be reversed for two
reasons. First, they argue that it was error for NM Tech and/or the district court to rely
on an inadmissible document as evidence that Brawley was under the influence of
alcohol and that, without this document, there was insufficient evidence that Brawley
was under the influence of alcohol at the time of the accident. Second, they argue that,
even if alcohol use and resultant impairment was a cause of the accident as the district
court found, the district court erred in its application of the law of causation in
insurance cases. We address each of the Brawleys’ arguments in turn.
A. 	The District Court’s Admission of Exhibit B is Not Reversible Error
{10} 	“We review the admission or exclusion of evidence for abuse of discretion.”
Progressive Cas. Ins. Co. v. Vigil, 2015-NMCA-031, ¶ 13, 345 P.3d 1096 (internal
quotation marks and citation omitted), cert. granted, Progressive v. Vigil, 2015-
NMCERT-003, 346 P.3d 1163. “[W]hen there is no evidence that necessary
foundational requirements are met [for admission of evidence], an abuse of discretion
occurs.” State v. Gardner, 1998-NMCA-160, ¶ 5, 126 N.M. 125, 967 P.2d 465. The
focus of the Brawleys’ argument is a document showing Brawley’s blood alcohol
level (Exhibit B). Exhibit B was apparently generated by a medical care provider, not
the state laboratory division. The Brawleys argue that Exhibit B should not have been

8
admitted at trial because NM Tech failed to provide a foundation for it and to show
that the blood draw and test were consistent with the Implied Consent Act. See NMSA
1978, §§ 66-8-105 to -112 (1978, as amended through 2015).
{11} 	NM Tech argues that the Brawleys’ argument was not preserved either because
they failed to timely object to testimony about Exhibit B or because the objections
made at trial differ from the issue raised on appeal. We disagree. The Brawleys
objected to admission of Exhibit B, first stating that Exhibit B was hearsay, then
arguing that “there is no basis that can be established” and “[t]here is no medical
doctor here that withdrew the blood [and t]here’s no nurse that withdrew the blood.”
Furthermore, the Brawleys went on to argue that “under the Implied Consent Act,
there are numerous provisions that must be followed in the extraction of blood. And
so we cannot authenticate this document as to whether or not the blood was withdrawn
pursuant to the Implied Consent Act.” In addition to these statements at trial, the
Brawleys requested a finding of fact invoking (although not naming) the Implied
Consent Act and associated regulations. See, e.g., § 66-8-109(A) (stating that blood
samples 	may 	be 	taken 	only 	by 	authorized 	personnel); 	NMAC 	7.33.2.15(A)
(4/30/2010) (setting out the requirements for blood sample collection). They also
requested a conclusion of law stating that “[t]he blood draw evidence is excluded for
failure to meet statutory, foundational[,] and authenticity requirements.” We conclude

9
that the Brawleys’ arguments as to the foundational requirements for Exhibit B were
adequately presented to the district court and were preserved for appeal.
{12} 	However, the applicability of the alcohol exclusion does not depend on a certain
blood alcohol level. Rather, the provision states that benefits are not payable for
injuries sustained while “under the influence of alcohol.” The provision’s reference
to state law as to the “legal limit” for driving under the influence merely describes a
condition under which the insured may be presumed to be under the influence of
alcohol. The next sentence of the provision further states that “a person may be
considered to be under the influence of alcohol . . . if objective evidence suggests such
condition[.]” Here, even if the district court’s finding that Brawley’s blood alcohol
content was “nearly double the New Mexico threshold for a presumption of
intoxication” was based on improperly admitted evidence, we conclude that other
evidence supports the district court’s implicit finding that Brawley was under the
influence of alcohol at the time of the accident. See Stephenson v. Dale Bellamah
Land Co., 1969-NMSC-147, ¶ 7, 80 N.M. 732, 460 P.2d 807 (“We have held, and
here reiterate, that error [in the admission of evidence], if it was error, will not be
considered to require reversal unless no other admissible evidence substantially
supporting the court’s findings is present.”)

10
{13} 	The district court found that Brawley was drinking in the Mountain View Bar
the evening before the accident and “was one of the last persons to leave the bar.” This
finding is supported by testimony to the effect that Brawley arrived at the bar around
9 p.m. on August 1, 2009, and consumed “maybe four shots of Crown Royal[,]” and
testimony that Brawley left the bar at about 10:15 p.m. One of the emergency medical
personnel who attended Brawley at the accident scene stated that he suspected alcohol
was involved because he smelled alcohol on Brawley’s person. The Brawleys’
accident reconstructionist testified that Brawley was not “in any shape to drive the
[ATV]” and that Brawley was “above the .08 limit.” Dr. Alois Treybal, who was
admitted as an expert “in the context of family practice as applied to traumatic brain
injury[,]” reviewed a medical record dated August 2, 2009, at 5 a.m. indicating that
Brawley had a blood alcohol level of .26 and testified that this level “would be an
intoxicating [level].” This medical record was admitted into evidence as well.
{14} 	Taken together, this evidence supports a reasonable inference that Brawley was
under the influence of alcohol when he left the bar on his ATV and that consequently
his driving ability was impaired. See State v. Baldwin, 2001-NMCA-063, ¶ 16, 130
N.M. 705, 30 P.3d 394 (stating that “human experience guides us in deciding whether
. . . an accused likely had the ability to drive an automobile in a prudent manner within
a reasonable time before or after [he] is observed in a state of intoxication”); Toynbee

2The Brawleys argued at oral argument before this Court that the district court
found only that Brawley had used alcohol and failed to find that he was “under the
influence” of alcohol as the alcohol exclusion requires. Considering the findings
together and in context, we conclude that the district court’s findings indicate that it
found that Brawley was “under the influence” of alcohol at the time of the accident.
11
v. Mimbres Mem’l Nursing Home, 1992-NMCA-057, ¶ 16, 114 N.M. 23, 833 P.2d
1204 (“On appeal, a reviewing court liberally construes findings of fact adopted by
the fact finder in support of a judgment, and such findings are sufficient if a fair
consideration of all of them taken together supports the judgment entered below.”).
{15} 	The district court also found that “Brawley’s alcohol use2 . . . was a cause of the
ATV crash in which he was injured[.]” This finding is a reasonable inference from the
evidence as well. The accident reconstructionist agreed with NM Tech that alcohol use
could “affect reaction and reflex time” and that “[p]ersons who are intoxicated have
longer perception and reaction times.” The accident reconstructionist also testified that
any person, sober or not, would have had the accident. But the investigating officer
testified that a neighbor, who knew Brawley had been drinking in the bar and who
heard Brawley passing his house on the ATV, followed Brawley “to make sure that
he will do all right . . . because he thought Mr. Brawley [was] intoxicated.” This
individual apparently did not have an accident at the washout. Finally, counsel for NM
Tech and Brawleys’ insurance expert had the following exchange on cross-
examination:

12
Q: 	[Y]ou concluded [on direct examination] with the statement . . .
that, based on the washout alone, alcohol was not a cause of the
accident.
A: 	Well, if that’s what I said, I didn’t mean to. It’s not the only cause
of the accident.
{16} 	Considering this evidence in the light most favorable to the district court’s
decision, we conclude that it supports the district court’s conclusion that “Brawley’s
injuries . . . bore a ‘direct relationship’ to his ingestion of alcohol at the Mountain
View Bar prior to the ATV crash.” See Tartaglia v. Hodges, 2000-NMCA-080, ¶ 27,
129 N.M. 497, 10 P.3d 176 (stating that, in reviewing the district court’s findings after
a bench trial, “we view the evidence in a light most favorable to the decision below,
we resolve all conflicts in the evidence in favor of that decision and . . . disregard
evidence to the contrary, we defer to the trial court in regard to the weighing of
conflicting evidence, and we indulge every presumption to sustain the judgment of the
trial court”). “There being substantial admissible evidence to support the court’s
findings, whether or not inadmissible evidence [e.g., Exhibit B] was admitted is not
material[] and did not constitute reversible error.” Stephenson, 1969-NMSC-147, ¶ 7.
B. 	The Brawleys’ Causation Theories Were Not Preserved for Appeal
{17} 	“Every litigated case is tried at least three times: there is the trial the attorneys
intended to conduct; there is the trial the attorneys actually conducted; and there is the

13
trial that, after the verdict, the attorneys wished they had conducted.” Gracia v.
Bittner, 1995-NMCA-064, ¶ 1, 120 N.M. 191, 900 P.2d 351. On appeal, our review
is limited to the case actually litigated below. See In re T.B., 1996-NMCA-035, ¶ 13,
121 N.M. 465, 913 P.2d 272 (“[W]e review the case litigated below, not the case that
is fleshed out for the first time on appeal.”). This principle governs our analysis of the
Brawleys’ causation arguments.
{18} 	The district court found that the term “direct relationship” was not defined in
the Plan and that the parties “represented to the [c]ourt, and to each other,” that the
meaning of “direct relationship” in the alcohol exclusion “is functionally the same as
causation.” It appears that the district court was referring to the definitions of
causation in Uniform Jury Instructions 13-305 or 13-1709. UJI 13-305 NMRA states:
An [act] [or] [omission] [or] [ __________ (condition)] is a “cause” of
[injury] [harm] [__________ (other)] if[, unbroken by an independent
intervening cause,] it contributes to bringing about the [injury] [harm]
[__________ (other)] [, and if injury would not have occurred without
it]. 	It need not be the only explanation for the [injury] [harm]
[__________ (other)], nor the reason that is nearest in time or place. It
is sufficient if it occurs in combination with some other cause to produce
the result. To be a “cause”, the [act] [or] [omission] [or] [__________
(condition)], nonetheless, must be reasonably connected as a significant
link to the [injury] [harm].
(Fourth emphasis added.) UJI 13-1709 NMRA, being one part of the instructions
addressing both common-law and statute-based unfair practices claims in insurance
cases, states that “[a] cause of a loss is a factor [that] contributes to the loss and

14
without which the loss would not have occurred. It need not be the only cause.”
(Emphasis added.) The district court’s holding that coverage was precluded because
alcohol was “a cause” of the accident is consistent with these two tort-based
definitions. No objections to this finding were filed in the district court. In addition,
the parties did not dispute this finding in the appellate briefs or during oral argument
before this Court.
{19} 	There are two problems with this approach. To begin with, causation principles
in tort law are different from causation principles in insurance law because “the two
systems examine the causation question for fundamentally different purposes. In tort,
it is to assess fault for wrongdoing. In insurance, it is to determine when the operative
terms of a contractual bargain come into play.” Erik S. Knutsen, Confusion About
Causation in Insurance: Solutions for Catastrophic Losses, 61 Ala. L. Rev. 957, 968
(2010); Knutsen, supra, at 969-70 (stating that “[i]nsurance causation therefore bears
little resemblance to the policy-laden proximate cause analysis of tort law”); see also
Standard Oil Co. of N.J. v. United States, 340 U.S. 54, 66 (1950) (Frankfurter, J.,
dissenting) (“[T]he subtleties and sophistries of tort liability for negligence are not to
be applied in construing the covenants of [an insurance] policy.”); Allstate Ins. Co. v.
Smiley, 659 N.E.2d 1345, 1354 (Ill. App. Ct. 1995) (declining to follow a case because
its holding “introduc[ed] . . . tort principles into the interpretation of an insurance

15
policy”); Robert H. Jerry II, Understanding Insurance Law, 502 (2d ed. 1996) (stating
that “many courts have explicitly stated that the proximate cause test is not the same
in tort law and insurance law”).
{20} 	Moreover, by relying on tort-based definitions of causation, the parties and the
district court essentially construed the phrase “direct relationship” in the way most
favorable to the insurer, not the insured, contrary to the general rule that “an insurance
policy which may reasonably be construed in more than one way should be construed
liberally in favor of the insured.” Battishill v. Farmers All. Ins. Co., 2006-NMSC-004,
¶ 17, 139 N.M. 24, 127 P.3d 1111 (internal quotation marks and citation omitted).
Indeed, it is not clear to us what the phrase “direct relationship” actually means in the
context of the alcohol exclusion. Assuming that the “relationship” required is a causal
one, does the phrase encompass any contributing cause of the injuries as the parties
appear to have agreed and the district court found? Or does the word “direct” mean
that the excluded cause must be the dominant cause or the immediate cause of the
injuries? There are a myriad of cases defining the word “direct” in the context of
insurance policy provisions—some equating it with “proximate cause” and others
stating that a “direct loss” is “more than proximate cause . . . [and] that the loss must
flow immediately, either in time or space.” 3 Allan D. Windt, Insurance Claims and
Disputes § 11:22C n.3 (6th ed. 2015) (collecting cases).

16
{21} 	In spite of these problems with the district court’s approach to causation in this
context, our review does not depend on resolution of them because neither party
identifies the district court’s finding as error. See State v. Joanna V., 2003-NMCA-
100, ¶ 7, 134 N.M. 232, 75 P.3d 832 (stating that this Court’s primary role is to
correct trial court error, “not to arrive at a conclusion we believe would be just by
deciding issues that were not raised below”). Instead, the Brawleys have accepted the
district court’s finding and argue only that the district court misconstrued its legal
effect. Hence, we turn to that argument next.
{22} 	The Brawleys argue that, even if Brawley’s alcohol use was “a cause” of the
accident, the district court nonetheless erred in concluding that the alcohol exclusion
precluded coverage. They posit two bases for this argument. First, they rely on the
principle of “concurrent causation” to maintain that the claims should be covered.
Generally, under the concurrent cause rule, “coverage should be permitted whenever
two or more causes do appreciably contribute to the loss and at least one of the causes
is a risk [that] is covered under the terms of the policy.” Steven Plitt, et al., 7 Couch
on Insurance 3d, § 101:55, at 101-104 to 101-105 (Rev. ed. 2013). Second, they argue
that the washout was an independent intervening cause of the accident, i.e., “the
washout was an unforeseeable force of nature that intercepted and interrupted the
normal progression of causation.” 	See 	UJI 13-306 NMRA (“An independent

17
intervening cause interrupts and turns aside a course of events and produces that
which was not foreseeable as a result of an earlier act or omission.”). They maintain
that since the washout was an independent intervening cause of the accident, the
claims should be covered.
{23} 	But these arguments were not preserved for appeal. The only mention of the
concurrent cause doctrine during the trial occurred in the testimony of the Brawleys’
insurance expert, Professor Allen. On appeal, the Brawleys point to that testimony as
evidence that the theory was raised. Assuming arguendo that an argument can be
preserved solely through witness testimony, we conclude that Professor Allen’s
testimony was insufficient to “alert[] the district court as to which theories [the
Brawleys were] relying on in support of [their] argument in order to allow the district
court to make a ruling thereon.” State v. Janzen, 2007-NMCA-134, ¶ 11, 142 N.M.
638, 168 P.3d 768; State v. Miller, 1997-NMCA-060, ¶ 8, 123 N.M. 507, 943 P.2d
541 (holding that an issue was not preserved where the state “ ‘elicited facts’
supporting its theories” but did not “present[] any of [the related] legal principles or
arguments to the trial court”). Indeed, Professor Allen used the phrase “concurrent
causation” only twice in his entire testimony. He stated, “This case involves what we
call in the insurance industry concurrent causation; that is, there’s a ditch, a washout.
That’s a potential cause of this injury or accident. And intoxication is a potential

18
cause.” Professor Allen went on, “So you got to figure out which one was it, or is it
both, concurrent causation, and it’s hard.” Although Professor Allen elsewhere stated
that the “direct relationship” clause in the alcohol exclusion “connotes causation” and
that the alcohol use “has to make a contribution [to the accident,]” he never stated the
concurrent causation rule in full. Indeed, he seemed to invoke several different
causation theories when he stated, “So if you have two contributing causes, it just gets
real complicated. One thing you could try to do is allocate between the two. That
would be awfully hard. The other possibility is, if there are two, you could allocate it
to either one, and you have to allocate it to the one that most favors the insured,
because it’s an exclusion, and you have to do that narrowly.” Cf. Mark M. Bell, A
Concurrent Mess and A Call for Clarity in First-Party Property Insurance Coverage
Analysis, 18 Conn. Ins. L.J. 73, 75-76 (2012) (stating that courts have employed four
different approaches to analyzing concurrent causes but “routinely refer to each
approach as the ‘concurrent cause doctrine’ ”). In addition, there were no opening or
closing arguments, and the Brawleys never argued this theory to the district court.
Neither did the Brawleys request a finding or conclusion based on the concurrent
causation doctrine. The district court thus was never apprised of the concurrent
causation doctrine nor asked to rule on it. The Brawleys’ concurrent causation
argument was not preserved for appeal. See Spectron Dev. Lab. v. Am. Hollow Boring

19
Co., 1997-NMCA-025, ¶ 32, 123 N.M. 170, 936 P.2d 852 (noting that general
principles of preservation prohibit the raising of new theories on appeal).
{24} 	Finally, the Brawleys argue that their independent intervening cause argument
was preserved through testimony of their two experts, who testified that the washout
was the cause of the accident. We do not agree because, like their concurrent causation
argument, the Brawleys never elicited a ruling from the district court on this particular
theory. They did not request a finding of fact or conclusion of law citing the
independent intervening cause doctrine or the UJI defining it, and the phrase
“independent intervening cause” was never mentioned at trial. See UJI 13-306. “To
preserve an issue for review on appeal, it must appear that appellant fairly invoked a
ruling of the trial court on the same grounds argued in the appellate court.” Benz v.
Town Ctr. Land, LLC, 2013-NMCA-111, ¶ 24, 314 P.3d 688 (internal quotation marks
and citation omitted). The Brawleys having failed to do so, we conclude that this
argument also was not preserved for appeal.

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CONCLUSION
{25} 	We conclude that even if Exhibit B was improperly admitted at trial, the district
court’s findings were supported by sufficient other evidence. We also conclude that
the Brawleys’ arguments as to concurrent causation and independent intervening
cause were not preserved and decline to address them. We affirm.
{26} 	IT IS SO ORDERED.
__________________________________
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
___________________________________
JONATHAN B. SUTIN, Judge
TIMOTHY L. GARCIA, Judge