59A-16-20. Unfair claims practices defined and prohibited.

Any and all of the following practices with respect to claims, by an insurer or other person, knowingly committed or performed with such frequency as to indicate a general business practice, are defined as unfair and deceptive practices and are prohibited: 

A. misrepresenting to insureds pertinent facts or policy provisions relating to coverages at issue; 

B. failing to acknowledge and act reasonably promptly upon communications with respect to claims from insureds arising under policies; 

C. failing to adopt and implement reasonable standards for the prompt investigation and processing of insureds' claims arising under policies; 

D. failing to affirm or deny coverage of claims of insureds within a reasonable time after proof of loss requirements under the policy have been completed and submitted by the insured; 

E. not attempting in good faith to effectuate prompt, fair and equitable settlements of an insured's claims in which liability has become reasonably clear; 

F. failing to settle all catastrophic claims within a ninety-day period after the assignment of a catastrophic claim number when a catastrophic loss has been declared; 

G. compelling insureds to institute litigation to recover amounts due under policy by offering substantially less than the amounts ultimately recovered in actions brought by such insureds when such insureds have made claims for amounts reasonably similar to amounts ultimately recovered; 

H. attempting to settle a claim by an insured for less than the amount to which a reasonable person would have believed he was entitled by reference to written or printed advertising material accompanying or made part of an application; 

I. attempting to settle claims on the basis of an application that was altered without notice to, or knowledge or consent of, the insured, his representative, agent or broker; 

J. failing, after payment of a claim, to inform insureds or beneficiaries, upon request by them, of the coverage under which payment has been made; 

K. making known to insureds or claimants a practice of insurer of appealing from arbitration awards in favor of insureds or claimants for the purpose of compelling them to accept settlements or compromises less than the amount awarded in arbitration; 

L. delaying the investigation or payment of claims by requiring an insured, claimant or the physician of either to submit a preliminary claim report and then requiring the subsequent submission of formal proof of loss forms, both of which submissions contain substantially the same information; 

M. failing to settle an insured's claims promptly where liability has become apparent under one portion of the policy coverage in order to influence settlement under other portions of the policy coverage; 

N. failing to promptly provide an insured a reasonable explanation of the basis relied on in the policy in relation to the facts or applicable law for denial of a claim or for the offer of a compromise settlement; or 

O. violating a provision of the Domestic Abuse Insurance Protection Act [59A-16B-1 to 59A-16B-10 NMSA 1978]. 

59A-16-3. Practices and acts prohibited, in general.

No person shall engage in this state in any practice which in this article is defined or prohibited as, or determined to be, an unfair method of competition, or unfair or deceptive act or practice, or fraudulent. 

59A-16-4. Misrepresentation, false advertising of policies.

No person shall make, publish, issue or circulate any estimate, illustration, circular, statement, sales presentation or comparison which: 

A. misrepresents the benefits, advantages, conditions or terms of any policy; 

B. misrepresents the premium overcharge commonly called dividends or share of the surplus to be received on any policy; 

C. makes any false or misleading statement as to dividends or share of surplus previously paid on any policy; 

D. is misleading or a misrepresentation as to the financial condition of any person, or as to the reserve system upon which any life insurer operates; 

E. uses any name or title of any policy or class of policies misrepresenting the true nature thereof; 

F. misrepresents any policy as being shares of stock; or 

G. fails to disclose material facts reasonably necessary to prevent other statements made from being misleading. 

No person shall make, publish, disseminate, circulate or place before the public, or cause, directly or indirectly, to be made, published, disseminated, circulated or placed before the public, in a newspaper, magazine or other publication, or in the form of a notice, circular, pamphlet, letter or poster, or over any radio or television station, or in any other way, any advertisement, announcement or statement containing any assertion, representation or statement with respect to any business subject to the superintendent's supervision under the Insurance Code, or with respect to any person in the conduct of such business, which is untrue, deceptive or misleading. 

59A-16-6. "Twisting" prohibited.

No person shall make or issue, or cause to be made or issued in any manner, any written or oral statement misrepresenting or making misleading comparison as to the terms, conditions, benefits or advantages of any policy for the purpose of inducing or attempting or tending to induce any other person to lapse, forfeit, surrender, borrow against, retain, exchange, convert or otherwise deal with or dispose of any policy. 

B. failing to acknowledge and act reasonably promptly upon communications with respect to claims from insureds arising under policies; 

C. failing to adopt and implement reasonable standards for the prompt investigation and processing of insureds' claims arising under policies; 

D. failing to affirm or deny coverage of claims of insureds within a reasonable time after proof of loss requirements under the policy have been completed and submitted by the insured; 

E. not attempting in good faith to effectuate prompt, fair and equitable settlements of an insured's claims in which liability has become reasonably clear; 

F. failing to settle all catastrophic claims within a ninety-day period after the assignment of a catastrophic claim number when a catastrophic loss has been declared; 

59A-16-4. Misrepresentation, false advertising of policies.

No person shall make, publish, issue or circulate any estimate, illustration, circular, statement, sales presentation or comparison which: 

A. misrepresents the benefits, advantages, conditions or terms of any policy; 

B. misrepresents the premium overcharge commonly called dividends or share of the surplus to be received on any policy; 

C. makes any false or misleading statement as to dividends or share of surplus previously paid on any policy; 

D. is misleading or a misrepresentation as to the financial condition of any person, or as to the reserve system upon which any life insurer operates; 

E. uses any name or title of any policy or class of policies misrepresenting the true nature thereof; 

F. misrepresents any policy as being shares of stock; or 

G. fails to disclose material facts reasonably necessary to prevent other statements made from being misleading. 

No person shall make, publish, disseminate, circulate or place before the public, or cause, directly or indirectly, to be made, published, disseminated, circulated or placed before the public, in a newspaper, magazine or other publication, or in the form of a notice, circular, pamphlet, letter or poster, or over any radio or television station, or in any other way, any advertisement, announcement or statement containing any assertion, representation or statement with respect to any business subject to the superintendent's supervision under the Insurance Code, or with respect to any person in the conduct of such business, which is untrue, deceptive or misleading. 

59A-16-26. Insurer name; deceptive use prohibited.

No person who is not an insurer shall assume or use in this state any name which deceptively implies or suggests that it is an insurer. 

55-2-201. Formal requirements; statute of frauds.

(1)  Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing. 

(2)  Between merchants if within a reasonable time a writing in conformation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of Subsection (1) against such party unless written notice of objection to its contents is given within ten days after it is received. 

(3)  A contract which does not satisfy the requirements of Subsection (1) but which is valid in other respects is enforceable: 

(a) if the goods are to be specially manufactured for the buyer and are not suitable for sale to others in the ordinary course of the seller's business and the seller, before notice of repudiation is received and under circumstances which reasonably indicate that the goods are for the buyer, has made either a substantial beginning of their manufacture or commitments for their procurement; or 

(b) if the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made, but the contract is not enforceable under this provision beyond the quantity of goods admitted; or 

(c) with respect to goods for which payment has been made and accepted or which have been received and accepted (Section 2-606 [55-2-606 NMSA 1978]). 

55-2-502. Buyer's right to goods on seller's repudiation, failure to deliver or insolvency.

(1)  Subject to Subsections (2) and (3) of this section and even though the goods have not been shipped, a buyer who has paid a part or all of the price of goods in which he has a special property under the provisions of the immediately preceding section may on making and keeping good a tender of any unpaid portion of their price recover them from the seller if: 

(a) in the case of goods bought for personal, family or household purposes, the seller repudiates or fails to deliver as required by the contract; or 

(b) in all cases, the seller becomes insolvent within ten days after receipt of the first installment on their price. 

(2)  The buyer's right to recover goods pursuant to Paragraph (a) of Subsection (1) of this section vests upon acquisition of a special property even if the seller has not then repudiated or failed to deliver. 

(3)  If the identification creating his special property has been made by the buyer he acquires the right to recover the goods only if they conform to the contract for sale. 

55-2-725. Statute of limitations in contracts for sale.

(1)  An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it. 

(2)  A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance, the cause of action accrues when the breach is or should have been discovered. 

(3)  Where an action commenced within the time limited by Subsection (1) is so terminated as to leave available a remedy by another action for the same breach, such other action may be commenced after the expiration of the time limited and within six months after the termination of the first action unless the termination resulted from voluntary discontinuance or from dismissal for failure or neglect to prosecute. 

(4)  This section does not alter the law on tolling of the statute of limitations nor does it apply to causes of action which have accrued before this act [this chapter] becomes effective

57-12-22. Telephone solicitation sales; automated telephone dialing systems for sales restricted; disclosure and other requirements established for authorized telephone solicitation sales.

A.  A person shall not utilize an automated telephone dialing or push-button or tone-activated address signaling system with a prerecorded message to solicit persons to purchase goods or services unless there is an existing business relationship between such persons and the person being called consents to hear the prerecorded message. 

B.  It is unlawful under the Unfair Practices Act for any person to solicit by means of a seller initiated telephone sale of goods or services: 

(1) without promptly disclosing name of the sponsor and the primary purpose or purposes of the contact; 

(2) in which offers or solicitations in the guise of research or a survey are made when the real intent is to sell goods or services; 

(3) without disclosing, prior to commitments by customers, the cost of the goods or services, all terms, conditions, payment plans and the amount or existence of any extra charges such as shipping and handling; 

(4) which are [is] received before 9:00 a.m. or after 9:00 p.m.; 

(5) using automatic dialing equipment unless the telephone immediately releases the line when the called party disconnects; and 

(6) asking for credit card numbers until and unless the customer has committed to make the purchase and expressed a desire to use a credit card to pay for the purchase. 

57-12-21. Door-to-door sales; contracts; requirements; prohibitions.

A.  In connection with any door-to-door sale, it constitutes an unfair or deceptive trade practice for any seller to: 

(1) fail to furnish the buyer with a fully completed receipt or copy of any contract pertaining to such sale at the time of its execution that is in the same language as that principally used in the oral sales presentation and that shows the date of the transaction and contains the name and address of the seller and, in immediate proximity to the space reserved in the contract for the signature of the buyer or on the front page of the receipt if a contract is not used and in bold face type of a minimum size of ten points, a statement in substantially the following form: 

"You, the buyer, may cancel this transaction at any time prior to midnight of the third business day after the date of this transaction. See the attached notice of cancellation form for an explanation of this right."; 

(3) fail, before furnishing copies of the notice of cancellation to the buyer, to complete both copies by entering the name of the seller, the address of the seller's place of business, the date of the transaction and the date, not earlier than the third business day following the date of the transaction, by which the buyer may give notice of cancellation; 

(4) include in any door-to-door contract or receipt any confession of judgment or any waiver of any of the rights to which the buyer is entitled under this section, including specifically his right to cancel the sale in accordance with the provisions of this section; 

(5) fail to inform each buyer orally, at the time he signs the contract or purchases the goods or services, of his right to cancel; 

(6) misrepresent in any manner the buyer's right to cancel; 

(7) fail or refuse to honor any valid notice of cancellation by a buyer and, within ten business days after the receipt of such notice, fail to: 

(a) refund all payments made under the contract or sale; 

(b) return in substantially as good condition as when received by the seller any goods or property traded in; and 

(c) cancel and return any negotiable instrument executed by the buyer in connection with the contract or sale and take any action necessary or appropriate to terminate promptly any security interest created in the transaction; 

(8) negotiate, transfer, sell or assign any notice or other evidence of indebtedness to a finance company or other third party prior to midnight of the fifth business day following the day the contract was signed or the goods or services were purchased; and 

(9) fail to notify the buyer, within ten business days of receipt of his notice of cancellation, whether the seller intends to repossess or to abandon any shipped or delivered goods. 

B.  The cancellation period provided for in this section as applied to telephone initiated sales shall not begin until the buyer has been informed of his right to cancel and has been provided with copies of the notice of cancellation. 

C.  For the purposes of this section: 

(1) "business day" means any calendar day except Sunday or the following business holidays: new year's day, Washington's birthday, memorial day, independence day, labor day, Columbus day, veterans' day, thanksgiving day, Christmas day, Martin Luther King, Jr.'s birthday and any other legal public holiday of the state of New Mexico or the United States; 

(2) "consumer goods or services" means goods or services other than perishable goods or agricultural products purchased, leased or rented primarily for personal, family or household purposes, including courses of instruction or training, regardless of the purpose for which they are taken; 

(3) "door-to-door sale" means a sale, lease or rental of consumer goods or services with a purchase price of twenty-five dollars ($25.00) or more, whether under single or multiple contracts, in which the seller or his representative personally solicits the sale, including those in response to or following an invitation by the buyer, and the buyer's agreement or offer to purchase is made at a place other than the place of business of the seller.  A door-to-door sale includes seller initiated telephone sales.  A door-to-door sale does not include a transaction: 

(a) made pursuant to prior negotiations in the course of a visit by the buyer to a retail business establishment having a fixed permanent location where the goods are exhibited or the services are offered for sale on a continuing basis; 

(b) in which the consumer is accorded the right of rescission by the provisions of the Consumer Credit Protection Act, 15 U.S.C. 1635, or regulations issued pursuant thereto; 

(c) in which the buyer has initiated the contract and the goods or services are needed to meet a bona fide immediate personal emergency of the buyer, and the buyer furnishes the seller with a separate dated and signed personal statement in the buyer's handwriting describing the situation requiring immediate remedy and expressly acknowledging and waiving the right to cancel the sale within three business days; 

(d) in which the buyer has initiated the contract and specifically requested the seller to visit his home for the purpose of repairing or performing maintenance upon the buyer's personal property.  If in the course of such a visit the seller sells the buyer the right to receive additional services or goods other than replacement parts necessarily used in performing the maintenance or in making the repairs, the sale of those additional goods or services would not fall within this exclusion; 

(e) pertaining to the sale or rental of real property, to the sale of insurance or to the sale of securities or commodities by a broker-dealer registered with the securities and exchange commission; or 

(f) in which a consumer acquires the use of goods under the terms of a rental-purchase agreement made pursuant to the provisions of the Rental-Purchase Agreement Act [57-26-1 to 57-26-12 NMSA 1978], with an initial rental period of one week or less, by placing a telephone call to a lessor and by requesting that specific goods be delivered to the consumer's residence or such other place as the consumer directs and consummation of the rental-purchase agreement occurs after the goods are delivered; 

(4) "place of business" means the main or permanent branch office or local address of a seller; 

(5) "purchase price" means the total price paid or to be paid for the consumer goods or services, including all interest and service charges; and 

(6) "seller" means any person, partnership, corporation or association engaged in the door-to-door sale of consumer goods or services. 

59A-13-3. License required.

A.  No person shall in this state act as, or hold himself out to be, an adjuster unless licensed as such by the superintendent under the Insurance Code. 

B.  No person, regardless of location, shall act as, or hold himself out to be, an adjuster with respect to workers' compensation claims of claimants resident or located in New Mexico unless licensed as such by the superintendent under the Insurance Code. 

59A-13-4. Qualifications for license as adjuster.

A.  The superintendent shall license as an adjuster only an individual who is otherwise in compliance with this article and Article 11 [Chapter 59A, Article 11 NMSA 1978] (licensing procedures) of the Insurance Code, and who has furnished evidence satisfactory to the superintendent that the applicant for license: 

(1) is not less than eighteen (18) years of age; 

(2) is a bona fide resident of this state, or of a state or country that permits residents of this state to act as adjusters therein, except that under circumstances of necessity the superintendent may waive the requirement of reciprocity; 

(3) can demonstrate a good business reputation, and intends to engage in a bona fide manner in the business of adjusting insurance claims; 

(4) except as to temporary license provided for under Section 234 [59A-13-6 NMSA 1978] of this article, has had at least one year's experience or special education or training in handling of losses or claims under insurance contracts, such experience, education and training to be of such nature and extent as to demonstrate applicant's competence to fulfill the responsibilities of an adjuster; and 

(5) has filed the bond required under Section 233 [59A-13-5 NMSA 1978] of this article. 

B.  Paragraphs (2) and (5) above shall not apply as to staff adjusters. 

C.  Individuals holding licenses as adjusters on the effective date of the Insurance Code shall be deemed to meet the qualifications for the license except as in Article 11 (licensing procedures) [Chapter 59A, Article 11 NMSA 1978] of the Insurance Code and in this article hereinafter provided. 

59A-11-12. Appointment of agents; continuation.

A.  Each insurer or other principal appointing an agent in this state shall file with the superintendent a written appointment specifying the name and address of the appointee and the kinds of insurance or business to be transacted by the agent and pay the appointment fee, or license fee, as the case may be, as specified in Section 101 [59A-6-1 NMSA 1978] (fee schedule) of the Insurance Code. 

B.  Subject to continuation by the insurer or principal as provided in Section 189 [59A-11-10 NMSA 1978] of this article, each appointment shall remain in effect until the agent's license is revoked or otherwise terminated, or there is earlier termination of the appointment. 

C.  Not later than thirty (30) days prior to date set under this article for continuation of appointments of agents, the insurer or other principal shall file with the superintendent an alphabetical list of all its agents in this state whose appointments or licenses are continued as to kinds of insurance or business then covered by the appointments or licenses, together with payment of the applicable continuation fees specified in Section 101 (fee schedule) of the Insurance Code. At the same time the insurer or principal shall file with the superintendent an alphabetical list of all appointments or licenses not being continued, or to be modified as to kinds of insurance or business to be transacted, with payment of applicable continuation fees as to appointments or licenses being so modified. Any appointment or license not so continued and not otherwise expressly terminated shall be deemed to have expired at midnight on date specified therefor under Section 189 of this article, or pursuant to the superintendent's regulations as provided in Section 190 [59A-11-11 NMSA 1978] of this article. 

59A-11-9. License contents; number required.

A.  The license issued by the superintendent under this article shall state the name of the licensee and residence address if an individual, or business address if a firm or corporation or a place of business is otherwise required of the licensee, the capacity in which the licensee is to act and the kind of business covered, date of issue of license, and such other information as the superintendent deems pertinent and consistent with law. 

B.  The license of an insurance agent shall not specify the name of any particular insurer or underwriter's department by which the licensee is appointed, except as to certain limited licenses, and the licensee may represent as agent under the one license as many insurers or underwriter's departments as may appoint him as agent under the Insurance Code, subject to Section 192 [59A-11-13 NMSA 1978] of this article as to certain life or health insurance agents having unsettled debit balances with an insurer previously represented. 

C.  The license of a solicitor shall show also the name and address of the employer to be represented. 

D.  The license of a firm or corporation shall also state, or record by endorsement attached thereto, the name of each individual authorized to exercise the license powers. At the superintendent's discretion the name of such an individual may be registered with the insurance department in lieu of [being] shown or endorsed on the license. 

E.  Each limited license issued under Section 219 [59A-12-18 NMSA 1978] of the Insurance Code shall show also the name of the insurer so represented, and a separate license shall be required as to each such insurer. 

59A-11-6. Examination of applicant.

Where the applicant for a license is required to take and pass an examination prior to issuance of license applied for, such examinations shall be subject to the following provisions: 

A. the examination shall be made available to applicants for particular licenses at least once each month at place or places within New Mexico of convenience designated by the superintendent; 

B. the examination shall be prepared by or under authorization of the superintendent and be of such scope as reasonably to test applicant's knowledge of business proposed to be transacted under the license applied for, of his responsibilities as a licensee, and general competence; 

C. the examination shall require written answers of the applicant to questions asked. If the applicant so requests, the examination shall be administered in the Spanish language; 

D. all examinations shall be given, conducted and graded in a fair and impartial manner, and without unfair discrimination as between individuals examined; 

E. an applicant shall not be deemed to have passed the examination unless receiving a grade thereon of not less than seventy (70); 

F. any individual who has failed to pass an examination may take another such examination at any subsequent scheduled examination date; except, that an individual who has taken and failed to pass two (2) such examinations shall not be entitled to take another such examination within thirty (30) days after date of last examination failed; and if thereafter the individual fails to pass two (2) more such examinations, the individual shall not be eligible to take any further such examination until after six (6) months from date of last examination failed; 

G. an examination application fee, in amount stated in Section 101 [59A-6-1 NMSA 1978] (fee schedule) of the Insurance Code, or as provided for under Paragraph I below, shall be paid as to each instance of examination; 

H. the superintendent may, at discretion, cause to be prepared and made available to applicants a manual showing general type and scope of examination as to any license for which examination is required; and 

I. in lieu of preparing, conducting and grading examinations through insurance department personnel, the superintendent may contract with an established independent agency experienced therein for preparation, conduct and grading of examinations, and in such case the examination fee shall be in reasonable amount as fixed by the superintendent and payable to the examination agency. The examination in such instance shall be prepared, conducted and graded subject to the same requirements and standards as would apply to examination by the superintendent direct.