¶1(specially concurring).
¶2The doctrine of cross-examination of a “claims investigator” should be put to rest. After Arias, the claims investigator, had contradicted testimony of plaintiff’s witness on' direct examination, he was asked this question, to which he made this answer:
Q. Mr. Arias, in investigating this claim you were working for an insurance company?
A. Yes, sir.
¶3Is this question proper? Of course, it is.
¶4This is a matter of first impression in New Mexico. Thirty years ago, the Supreme Court opened the door to reality about a juror’s knowledge of insurance coverage for large corporations, but it was “not prepared to accept the invitation to carry the fiction further than it has been carried up to this time.” Olguin v. Thygesen, 47 N.M. 377, 384, 143 P.2d 585, 589 (1943).
¶5A generation has passed. The invitation lays in quiet repose.
¶6In Miss. Ice & Utilities Co. v. Pearce, 161 Miss. 252, 134 So. 164 at 167 (1931), the court said:
If counsel, in good faith, on cross-examination, seeks to elicit the interest, bias, or prejudice of a witness by a proper question, he will not be precluded from doing so simply because the answer may reveal that a liability insurance company is interested. No witness, offered by either side, be he prince, potentate, physician, judge, or private citizen, is exempt from the right of fair cross-examination in this state.
¶7Generally, an insurance company employs a claims agency to investigate a claim against an insured. This agency stands in the same shoes as that of the employees of the insurance company which investigates its own claims. It has long been recognized that cross-examination of an adverse witness may leave the bounds of direct examination when it tends to discredit or impeach the witness or to show his bias or prejudice, or the like. State v. Wilcoxson, 51 N.M. 501, 188 P.2d 611 (1948). This cross-examination includes his employment, even though it discloses the name of the insurance company. Pickett v. Kolb, 250 Ind. 449, 237 N.E.2d 105 (1968); Yates v. Grider, 145 Ind.App. 567, 251 N.E.2d 846 (1969); Annot. 4 A.L.R.2d 761 at 779.
¶8An insurance company is, subrosa, the defendant in the case. It has extraordinary experience in trials. It usually employs able attorneys. Its attorneys should know that an insurance company servant or agent used as a witness to harm a plaintiff’s case is subject to cross-examination on the matter of the witness’ employment.
¶9One method of avoiding the “conspiracy of silence” requires the insurance company to place each claim in the office of an attorney. The attorney’s duties are owed primarily to the insured. Knepper, Conflicts of Interest in Defending Insurance Cases, 19 Defense L.J. 515 (1970). If the attorney selects an investigator to discover the facts, the investigator is not an employee of an insurance company. If this fact is made known to plaintiff in the event of litigation, cross-examination on the subject of the witness’ employment should be limited to that of the attorney for whom he was employed.
¶10Often, adjusters and claims examiners of insurance companies take action and make decisions over which the lawyer has no control.
¶11In my opinion, the defendant’s attorney was justified in using Arias as a witness. This leads to new avenues of thought on the subject of error during cross-examination. “The conspiracy of silence is hard to maintain.” McCormick on Evidence, 358 (1954).
¶12The many controversies which exist on the subject of insurance disclosure need not be restated. McCormick on Evidence, 355, McDonald, Insurance Against Liability: An Anomaly in Negligence Cases, 65 Dickinson L.R. 19 (1960); Lauver,' the Insurance Syndrome and the Pennsylvania Courts, 70 Dickinson L.R. 64 (1965); ICalven, The Jury, The Law, and the Personal Injury Damage Award, 19 Ohio St.L.J. 158 at 170 (1958); Hagedorn, Exclusion of Evidence of Insurance in Oregon, 8 Willamette, L.J. 294 (1972); McKay, Evidence-Introduction of Insurance at a Trial, 73 W.Va.L.R. 282 (1971); Brockmann, Evidence-Identification of Defendant’s Insurance Company, 16 Ark.L.R. 299 (1962).
¶13Constant appeals and new trials by mention of the word “insurance” should end. The knowledge of jurors on the subject is unquestionable. Runnacles v. Doddrell, 59 N.J.Super. 363, 157 A.2d 836 (1960).
¶14The complete abolition of the exclusionary rule is the best solution. It has been done in the States of Louisiana and Wisconsin where the insurance company is the party defendant. It is true where compulsory insurance is statutory. 4 A.L.R.2d 761 at 786, § 13 (1949).
¶15Times have changed. Seasons in the law have changed in succeeding generations. Decisions in some states move slowly in the direction of abolition of the exclusionary rule. We, in New Mexico, move more slowly to attain that objective.
¶16Secrecy of “insurance” is an old fashioned antique. The “hush-hush” policy should be discarded. The dignified term “insurance” should be placed on the drawing board of the courtroom. When plaintiff and defendant play this game fairly and openly before a jury in the last quarter of the twentieth century, both plaintiff and defendant will receive a fair trial. The many new trials, the expensive appeals, the struggle over the use of fastidious words of explanation, the contradictions in judicial opinions, all would fade away. I express no opinion on the concepts of “no-fault” insurance. If adopted in New Mexico,' it will simply dignify the word “insurance” instead of making it a “prejudicial” word in the courtroom. A review of the hundreds of cases listed in 4 A.L.R.2d 761, and supplements, disclose a circus of decisions made up of clowns and tumblers.