Ellis v. Cigna Property & Casualty Companies

2007 NMCA 123, 167 P.3d 945, 142 N.M. 497
CourtNew Mexico Court of Appeals
DecidedJune 27, 2007
Docket23,491
StatusPublished
Cited by8 cases

This text of 2007 NMCA 123 (Ellis v. Cigna Property & Casualty Companies) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ellis v. Cigna Property & Casualty Companies, 2007 NMCA 123, 167 P.3d 945, 142 N.M. 497 (N.M. Ct. App. 2007).

Opinion

OPINION

BUSTAMANTE, Judge.

{1} This is an insurance ease in which the parties dispute, among other things, the scope of uninsured motorist (UM) coverage. Defendant issued an automobile insurance policy to the personal representative of an estate to cover vehicles that were estate assets. The overarching question throughout the litigation has been whether Plaintiff, who is the personal representative’s son, was entitled to UM benefits under the terms of the policy. Over time, Defendant raised several theories in response to that question. Finally, at the close of an evidentiary hearing and following the district court’s rulings on cross-motions for summary judgment, Defendant asserted a new theory that Plaintiffs father could not, in his fiduciary capacity as the personal representative of the estate, have a household or family member that would be entitled to UM coverage under the policy. The district court requested briefing on Defendant’s new theory, but later ruled in a partial judgment that the theory was untimely raised. In the same partial judgment, the district court held that, under the particular circumstances of this case, Plaintiff should be viewed as a “named insured,” but also certified the case for interlocutory appeal because the case involved “a controlling question of law as to which there is substantial ground for difference of opinion.” The district court did not specify the controlling question of law to which it referred, and Defendant filed an application for interlocutory appeal premised on the same theory that the district court ruled as untimely raised. We granted Defendant’s application for interlocutory appeal. However, after a thorough review of the record below, we conclude that our grant of interlocutory review was inappropriate. We therefore dismiss the appeal and remand for further proceedings.

BACKGROUND

{2} On April 12,1987, Plaintiff Fremont F. Ellis II (Plaintiff) was injured in a shooting related to a motor vehicle incident. Plaintiff had been a passenger in a car that was fired upon by the occupants of a pickup truck. The occupants of the truck shot Plaintiff in his leg after he got out of the car to get the license plate number of the truck. Plaintiff sued the driver and passenger of the truck and obtained a judgment against them. However, the driver and passenger were uninsured and apparently judgment-proof. Plaintiff then made an unsuccessful demand against the insurance company providing UM coverage for the vehicle in which he had been a passenger when the shooting took place.

{3} At the time of the shooting, a probate administration of the estate of Plaintiffs grandfather, Fremont Ellis (Fremont I), had been underway for more than two years. Plaintiffs father, Frederick Ellis, was administering the estate, initially as guardian and later as personal representative after the death of Fremont I on January 12, 1985. Among the estate assets were two Studebaker vehicles. Frederick Ellis had procured an automobile policy on the Studebakers that extended liability, property damage, and UM coverage. The policy was first issued by Defendant on November 2, 1984, to the named insured Frederick Ellis as guardian for Fremont I, and was subsequently renewed in six-month intervals throughout the administration of the estate. Frederick Ellis paid all of the policy premiums using estate funds.

{4} On April 11,1994, after making claims for UM benefits against other insurance carriers, Plaintiff initiated litigation against Defendant to invoke the arbitration provisions of the policy. In lieu of filing an answer on the merits, Defendant filed a motion to dismiss in which Defendant alleged that the complaint was barred by the statute of limitations. The district court granted the motion and dismissed the case. Plaintiff appealed from that order, which was ultimately reversed by our Supreme Court. See Ellis v. Cigna Prop. & Cas. Cos., 1999-NMSC-034, 128 N.M. 54, 989 P.2d 429. Following remand, Defendant filed an answer on the merits, asserting, inter alia, that Plaintiff was neither a named insured nor an otherwise covered person for UM benefits under the policy.

{5} The parties filed cross-motions for summary judgment. Defendant, in its motion, asserted that: (1) Plaintiff filed his complaint after the statute of limitations had expired, and (2) the shooting incident that caused Plaintiffs injuries was not an “accident” that could trigger UM coverage under the policy. Later, in a reply in support of its motion for summary judgment, Defendant asserted that Plaintiff was not a member of Frederick Ellis’s household and therefore was not within the definition of an “insured” under the policy. Defendant reiterated this argument in its response in opposition to Plaintiffs motion for summary judgment. More specifically, Defendant argued that Plaintiff did not reside at his father’s address. Plaintiff replied by pointing out that: (1) Defendant had not raised the “household member” argument previously, (2) Plaintiff did, in fact, reside at his father’s address, (3) the “household member” issue was Defendant’s only challenge to Plaintiffs status as an insured, and (4) the shooting incident was an event that could trigger UM coverage.

{6} The district court entered an order on the motions for summary judgment on October 12, 2001. The court denied Defendant’s motion and ruled that: (1) Plaintiffs claim was not barred by the statute of limitations, (2) the shooting incident was a covered event under the policy, and (3) the court still needed to determine who was the insured under the policy. More specifically, the district court stated that it required “an evidentiary hearing as to whether Frederick F. Ellis is the insured under the Cigna policy ... or whether the insured is some other person or entity other than Frederick F. Ellis.”

{7} The district court held an evidentiary hearing on May 1, 2002. The court heard evidence regarding whether Plaintiff was a member of Frederick Ellis’s household and concluded that he was. Additionally, Defendant presented the argument that, because Frederick Ellis had procured the policy in his fiduciary capacity as guardian of the estate, the policy only extended to situations involving his legal responsibility to maintain or use the covered vehicles or while acting for the estate. At the conclusion of the hearing, the district court asked for further briefing on the issue of whether Frederick Ellis’s fiduciary role had any impact on coverage.

{8} Plaintiff filed a post-hearing memorandum in which he objected to the “insured-as-fiduciary” issue as untimely raised by Defendant. Plaintiff pointed out that Defendant’s response to Plaintiffs motion for summary judgment raised only two issues: (1) whether the shooting was an automobile-related accident, and (2) whether Plaintiff was a member of Frederick Ellis’s household. Because the pleadings did not contain any argument related to whether Frederick Ellis, as a fiduciary for the estate, could not have a household under the policy, Plaintiff asserted that Defendant should be prohibited from raising that argument at such a late phase in the litigation. Plaintiff further argued that nothing in the policy limited household member coverage for Frederick Ellis as a guardian or personal representative.

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Cite This Page — Counsel Stack

Bluebook (online)
2007 NMCA 123, 167 P.3d 945, 142 N.M. 497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellis-v-cigna-property-casualty-companies-nmctapp-2007.