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Burge v. Mid-Continent Casualty Co.12/4/1996
mount of the damages. This approach was imminently reasonable, especially since no action had been taken by Mid-Continent to set aside the default judgment.
{51} As noted above, any defenses of Mid-Continent were derivative of those available to Sanchez since it stood "in the shoes of the uninsured motorist with regard to the question whether [the uninsured motorist] was negligent and with regard to his defenses such as contributory negligence." ) (quoting )). Consequently, Mid-Continent was in privity with Sanchez and the legal effect of the default judgment was to bar a subsequent suit on issues that could have been determined in the first action. See (holding that parties and their privies are barred from raising defenses in subsequent actions after default judgment is entered). The affirmative defense of contributory negligence had to be raised by Sanchez in his answer to the complaint, see Rule 1-008(C) NMRA 1996, or by Mid-Continent when it either sought intervention or thereafter. But more importantly, Mid-Continent was required to move that the default judgment (a judgment that determined that Sanchez was 100% at fault) be set aside. Having failed to do so, Mid-Continent became bound under the judgment to pay according to its contract.
{52} Mid-Continent, having failed to effectively intervene and set aside the default judgment, should be barred from further litigation of its derivative defenses. Thus, I would
DAN A. McKINNON, III, Justice
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