Kaiser v. DeCarrera

923 P.2d 588, 122 N.M. 221
CourtNew Mexico Supreme Court
DecidedAugust 26, 1996
Docket23121
StatusPublished
Cited by31 cases

This text of 923 P.2d 588 (Kaiser v. DeCarrera) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kaiser v. DeCarrera, 923 P.2d 588, 122 N.M. 221 (N.M. 1996).

Opinions

OPINION

BACA, Chief Justice.

1. Appellant Lawrence Kaiser (“Kaiser”) appeals an order granting summary judgment in favor of Appellee Windsor Insurance Company (“Windsor”). Kaiser had sued Windsor for bad faith, alleging that Windsor failed to pay uninsured/underinsured motorist coverage (“UM/UIM coverage”) benefits for injuries he suffered in a motorcycle accident. Windsor claimed that Kaiser did not carry an uninsured motorist policy because he signed a “Notice of Rejection of Uninsured/Underinsured Motorist Coverage.” We address (1) whether signing a Notice of Rejection of Uninsured/Underinsured Motorist Coverage is sufficient to reject such coverage when the rejection is not “made a part of the policy of bodily injury and property damage insurance” as required by Section 5-1-4 of the Department of Insurance regulations; and (2) whether mailing the rejection notice alone is sufficient to satisfy the requirement that the rejection be made a part of the policy when the notice is returned to the insurance company and the insurance company has alternative means to contact its insured but does not utilize them. We note jurisdiction under SCRA 1986, 12-102(A)(1) (Repl.Pamp.1992) (appeals of cases sounding in contract taken to Supreme Court), and reverse.

I.

2. On May 21, 1992, Kaiser completed an application to purchase automobile insurance with Windsor, including his residential address, his home telephone number, his motorcycle garaging address, and his employer’s address. However, he did not specify his apartment number on the application. Also as part of this application, Kaiser signed a rejection notice, which provides:

I understand the State requires that Family Protection against Uninsured/Underinsured Motorists Insurance be afforded me under my motor vehicle liability policy unless I specifically reject this coverage. Accordingly, I reject Family Protection against Uninsured/Underinsured Motorists Coverage and direct the Company to issue my policy without the said coverage.

3. On June 12, 1992, Windsor issued to Kaiser a copy of the Declarations Page and the insurance policy. Kaiser received the Declarations Page and the insurance policy at his home address as stated on the insurance application. The Declarations Page did not indicate that UM/UIM coverage was not included in the insurance policy, and the insurance policy did not contain the rejection notice. Kaiser claims he did not receive any other policies, amendments, or endorsements from Windsor.

4. On October 29, 1992, Windsor mailed an amended Declarations Page that stated, “NO UNINSURED/UNDERINSURED MOTORIST COVERAGE PROVIDED BY THIS POLICY,” and an insurance policy that included the rejection notice. Windsor mailed the amended policy to the address that Kaiser provided on his insurance application. On November 4, 1992, the amended policy, intact in its envelope, was returned to Windsor with a Postal Service stamp that stated, “Return to Sender Large Complex Needs Apt. # Space #.” Windsor did not attempt to send the amended policy again.

5. On March 4,1993, Kaiser was involved in an automobile accident with Imelda De-Carrera. DeCarrera was uninsured at the time of the accident. Kaiser filed a complaint against DeCarrera, alleging negligence. Kaiser later amended his complaint to include a claim against Windsor, in which he alleged that he never rejected uninsured motorist coverage and that Windsor acted in bad faith by refusing to provide coverage. Windsor responded that Kaiser rejected UM/UIM coverage by signing the rejection notice. Windsor later filed a motion for summary judgment, arguing that Kaiser’s rejection of UM/UIM coverage was within statutory guidelines and Department of Insurance regulations. The district court granted the motion for summary judgment, and Kaiser now appeals.

II.A.

6. We address whether signing a rejection of UM/UIM coverage as part of an application for automobile insurance is sufficient to reject such coverage. Windsor argues that by signing the rejection notice, Kaiser informed Windsor that he did not want UM/UIM coverage and, by not paying for UM/UIM coverage, he had no expectation that his policy provided such coverage. We disagree with Windsor. In Romero v. Dairyland Insurance Co., 111 N.M. 154, 808 P.2d 243 (1990), we addressed this issue thoroughly and held that:

[U]nless the named insured rejects [uninsured/underinsured motorist] coverage in a manner consistent with the requirements imposed by the superintendent of insurance, uninsured motorist coverage will be read into the insured’s automobile liability insurance policy regardless of the intent of the parties or the fact that a premium has not been paid.

Id. at 155, 803 P.2d at 244. Romero is dispositive here.

7. New Mexico requires that no automobile liability insurance policy shall be delivered unless the policy includes UM/UIM coverage. NMSA 1978, § 66-5-301(A) (Repl.Pamp.1994). In Romero, we recognized the strong public policy embodied in Section 66-5-301(A) to make UM/UIM “coverage a part of every automobile liability insurance policy.” Id. at 156, 803 P.2d at 245 (emphasis added). The statute is intended “to protect individual members of the public against the hazard of culpable uninsured motorists.” Id. The statute is interpreted liberally to implement that remedial purpose, and any exception will be strictly construed. Id.

8. Nevertheless, an individual has the right to reject such coverage. Section 66-5-301(C). However, the rejection must be done in accordance with the rules and regulations promulgated by the superintendent of insurance. Romero, 111 N.M. at 155, 803 P.2d at 244. The superintendent of insurance has promulgated the following regulation that fixes the manner by which coverage may be rejected:

Rejection of Uninsured Motorist Coverage. The rejection of the provisions covering damage caused by an uninsured or unknown motor vehicle as required in writing by the provisions of Section 66-5-301 New Mexico Statutes Annotated, 1978 Compilation, must be endorsed, attached, stamped or otherwise made a part of the policy of bodily injury and property damage insurance.

Romero, 111 N.M. at 155, 803 P.2d at 244 (quoting Regulations of the New Mexico Department of Insurance, Art. 5, Part 4, Ch. 66, Rule 1, § 5-1-4 (undated)) (emphasis added). This regulation is currently in effect and was in effect in 1992. Even though an insured may sign a rejection notice of UM/UIM coverage, that alone is not enough. The rejection notice must also be “endorsed, attached, stamped or otherwise made a part of the policy” to be effective. Id.

The rejection must be made a part of the policy by endorsement on the declarations sheet, by attachment of the written rejection to the policy, or by some other means that makes the rejection a part of the policy so as to clearly and unambiguously call to the attention of the insured the fact that such coverage has been waived.

Id. at 156, 803 P.2d at 245.

9. According to Romero, Section 5-1-4 of the insurance regulations helps “to ensure that the insured has affirmative evidence of the extent of coverage.” Id.

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Bluebook (online)
923 P.2d 588, 122 N.M. 221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kaiser-v-decarrera-nm-1996.