## Facts

- Charles Niederstadt alleged that on August 28, 2003, Carrizozo police officer Johnny Rivera used excessive force while arresting him at Niederstadt’s mother’s home, causing physical and psychological injuries.
- Niederstadt sued Rivera in federal court, asserting civil-rights claims under 42 U.S.C. § 1983 and state tort claims (assault, battery, false arrest, false imprisonment) under the New Mexico Tort Claims Act (TCA).
- Niederstadt sued Rivera only in his individual capacity and did not name the Town of Carrizozo as a defendant, while alleging Rivera acted within the scope of his law-enforcement employment and under color of state law.
- After being served, Rivera requested the Town provide him a defense under the TCA; the Town refused, and Rivera defended himself.
- The federal case settled through a consent judgment for $60,000 against Rivera, and Rivera assigned to Niederstadt all claims Rivera had against the Town, including claims arising from the Town’s refusal to defend.
- Niederstadt then sued the Town in state court (as Rivera’s assignee) seeking a declaration that the Town must satisfy the judgment and damages for the Town’s alleged bad-faith failure to defend Rivera.

## Issues

1. Whether Niederstadt’s failure to provide the Town written notice under the TCA barred enforcement of the Town’s statutory duty to indemnify Rivera for the consent judgment.
2. Whether the same lack of TCA notice barred enforcement of the Town’s statutory duty to defend Rivera and a related claim for damages based on the Town’s refusal to defend.

## Decision

- The Court of Appeals reversed the district court’s dismissal.
- The court held that failure to give TCA notice did not release the Town from its statutory duties to defend and indemnify Rivera.
- The case was remanded for further proceedings; other defenses (including whether Rivera acted within the scope of employment and whether TCA coverage otherwise applied) were not resolved by the notice ruling.

## Legal Principles

- The TCA notice requirement is aimed at alerting a governmental entity to potential claims against the entity to permit timely investigation and possible settlement.
- Statutory duties under the TCA to defend and indemnify employees for covered conduct are distinct from tort claims asserted against the governmental entity, and those duties are not extinguished solely because the injured claimant failed to provide TCA notice to the entity.
- An employee’s rights to defense and indemnification under the TCA may be enforced by the employee or by an assignee standing in the employee’s shoes.
- Lack of TCA notice does not, by itself, decide whether defense or indemnification is owed; substantive predicates such as scope of employment and statutory coverage remain relevant on remand.

## Conclusion

The New Mexico Court of Appeals held that a claimant’s failure to provide Tort Claims Act notice to a town did not bar claims (brought by assignment from the officer) to enforce the town’s statutory duties to defend and indemnify the officer, and it reversed dismissal and remanded for further proceedings.


Niederstadt v. Town of Carrizozo, 182 P.3d 769 (N.M. Ct. App. 2008)