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KING V. ALLSTATE INSURANCE CO., 2007-NMCA-044, 141 N.M. 612, 159 P.3d 261
FREDERICK KING,
Plaintiff-Appellant,
v.
ALLSTATE INSURANCE COMPANY,
Defendant-Appellee.

Docket No. 25,539
COURT OF APPEALS OF NEW MEXICO
2007-NMCA-044, 141 N.M. 612, 159 P.3d 261
February 20, 2007, Filed

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY, James Hall, District Judge Certiorari Denied, No. 30,283, April 9, 2007. Released for publication April 24, 2007.
COUNSEL
David J. Berardinelli, Santa Fe, NM, for Appellant Simone, Roberts & Weiss, P.A., Stephen M. Simone, David W. Frizzell, Albuquerque, NM, Steptoe & Johnson, LLP, Bennett Evan Cooper, Jon T. Neumann, Matthew Parry, Phoenix, AZ, for Appellee

JUDGES
RODERICK T. KENNEDY, Judge. WE CONCUR: A. JOSEPH ALARID, Judge, JAMES J. WECHSLER, Judge AUTHOR: RODERICK T. KENNEDY

OPINION
KENNEDY, Judge.
{1} Plaintiff lost a jury verdict on his Unfair Claims Practices Act (UCPA) action.  He now appeals the district court's denial of his motion for a new trial based on its admission into evidence of a New Mexico Insurance Commission study on claims resolution, and defense counsel's heavy use in opening statements of what were asserted as Plaintiff's outrageous offers to settle. These statements by Defendant (Allstate) were almost immediately thereafter ruled inadmissible by the district court as lacking sufficient foundation.  Plaintiff asserts that Allstate's behavior amounts to fraud upon the court sufficient to warrant overturning the verdict.
{2} Allstate moved for dismissal of Plaintiff's case before, during and after trial on the grounds that absent a determination of liability in the underlying settlement and proof that Allstate waived any rights or defenses in the course of settlement, Plaintiff's suit could not lie. The district court denied the motions based on the reservation of claims against Allstate in Plaintiff's release of Eloy Rael's estate.  We hold that the absence of a judicial determination of fault is an absolute bar to liability under the Insurance Code, precluding Plaintiff's claim altogether, and we reverse the district court's denials of Allstate's motions to dismiss.  Since this ruling is dispositive, we do not address Plaintiff's appeal.
{3} While Allstate's practices and the evidence to which Plaintiff objected are of questionable repute, and we agree that the use of the settlement offers at a time when their admissibility was undecided is somewhat questionable behavior in a litigation contest between counsel who were perhaps inclined to be aggressive and ham-fisted with each other, we need not decide these issues since the suit was barred under Hovet v. Allstate Insurance Co., 2004-NMSC-010, 135
N.M. 397, 89 P.3d 69.  Continuing on the subject of professionalism, we must also state that on appeal, we decline to consider facts argued by the parties (in this case, Plaintiff) that are not either in evidence or of record in a case. See Rangel v. Save Mart Inc., 2006-NMCA-120,

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New Mexico Law