1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 MARTHA VELASQUEZ,
3 Plaintiff-Appellant,
4 v. NO. 27,522
5 AMERICAN MODERN LIFE INSURANCE CO., 6 GENERAL ELECTRIC EVENDALE 7 EMPLOYEES FEDERAL CREDIT UNION 8 (a/k/a General Electric Federal Credit Union) 9 and SHAUNA R. Lawlor, individually and 10 as an employee of General Electric Evendale 11 Employees Federal Credit Union,
12 Defendants-Appellees.
13 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 14 Linda M. Vanzi, District Judge
15 Tucker Law Firm, P.C. 16 Steven L. Tucker 17 Santa Fe, NM
18 Steven J. Vogel 19 Albuquerque, NM
20 Law Offices of David A. Archuleta 21 David A. Archuleta 22 Albuquerque, NM
23 for Appellant
24 Civerolo, Gralow, Hill & Curtis 1 M. Clea Gutterson 2 William P. Gralow 3 Albuquerque, NM
4 for Appellee American Modern Life Insurance Co.
5 Michael E. Kushner, P.A. 6 Michael E. Kushner 7 Albuquerque, NM
8 Aldridge, Grammar, Jeffrey, & Hammar, P.A. 9 Kevin Hammar 10 Albuquerque, NM
11 for Appellees General Electric Evendale Employees 12 Federal Credit Union and Shauna R. Lawlor
13 MEMORANDUM OPINION
14 KENNEDY, Judge.
15 In this case, we affirm an order for summary judgment granted in favor of
16 Defendants-Appellees American Modern Life Insurance Company, General Electric
17 Evendale Employees Federal Credit Union, and Shauna Lawlor (collectively
18 Defendants). Doing so, we hold that Plaintiff’s disability insurance policy had ended
19 prior to her receiving a determination of disability from the United States Social
20 Security Administration. Plaintiff-Appellant Martha Velasquez argues the existence
21 of genuine issues of material fact that render summary judgment improper and
22 contends that the district court erroneously denied her motion for additional discovery.
2 1 We disagree and hold that the district court did not abuse its discretion in denying
2 additional discovery.
3 BACKGROUND
4 Although the parties dispute the legal significance of certain facts, neither
5 materially disputes what actually took place. Velasquez purchased a new Mitsubishi
6 automobile with financing through the Credit Union on July 22, 1997. Lawlor, an
7 employee of the Credit Union, acted as Velasquez’s loan officer, and during the
8 course of the transaction, Velasquez also agreed to refinance her Chevrolet truck. As
9 a precaution, Velasquez purchased the disability insurance policy that forms the basis
10 of this appeal. That policy insured her for “Accident and Health (Total Disability)”
11 and covered both the Mitsubishi and the Chevrolet.
12 Although sold by the Credit Union, the policy was written and issued by
13 American Modern. By its terms, in the event of a “total disability,” American Modern
14 agreed to pay Velasquez up to $50,000.00 for any outstanding balance on both
15 vehicles at a rate of not more than $750.00 per month. In defining total disability, the
16 policy incorporates a two-level system. Under level one, a person is totally disabled
17 if “during the first 12 months of disability, [one is] unable to perform the substantial
18 and material duties of [one’s] own occupation.” Under level two, a person continues
19 to be totally disabled if “after the first 12 months of disability, [one is] unable to
3 1 perform the substantial and material duties of any occupation for which [one is]
2 reasonably qualified.” Additionally, the following language appears on the policy’s
3 second page: “You may not start any legal action until 60 days after you send us
4 proof of your disability. Also, legal action may not be started more than 3 years after
5 the proof is filed.” The policy does not specify what constitutes adequate proof of
6 disability to trigger payment.
7 On July 26, 1999, Velasquez filed a disability claim on the policy. On the
8 claims form, she outlined her employment status, educational background and
9 professional history, and for twelve months thereafter, American Modern paid
10 Velasquez under level one of the policy. At the conclusion of that time, Velasquez
11 sought to continue coverage under level two, but her request was denied when
12 American Modern determined that she “was able to perform the duties of sedentary
13 work and did not meet the definition of total disability . . . as defined in her certificate
14 of insurance” under level two. American Modern’s decision was based on materials
15 submitted by Velasquez personally, including two separate medical evaluations and
16 an employability evaluation. The last communication received by American Modern
17 from Velasquez prior to 2004 was a medical evaluation received on March 7, 2000,
18 after which American Modern transmitted its denial via a formal letter dated March
19 8, 2000. In closing, the letter stated, “if you are awarded a Social Security Disability
4 1 Benefit, we would gladly reconsider your claim at that time.”
2 For more than four years after the denial, there was no communication
3 between Velasquez and American Modern. Likewise, no contact occurred between
4 Velasquez and the Credit Union until October 28, 2002, when the Credit Union
5 demanded Velasquez pay $14,233.52, the remaining balance on her loans. Velasquez
6 refused, and as a result, the Credit Union repossessed both vehicles. Nothing in the
7 record indicates that American Modern became aware of these transactions at the time
8 they occurred.
9 Velasquez eventually received a determination of full disability from the Social
10 Security Administration on January 30, 2004. In its letter, the agency awarded her full
11 benefits and found that Velasquez suffered “‘severe’ impairments,” including “chronic
12 cervical strain, and chronic recurrent right shoulder impingement, status-post
13 subacromial decompression times two, and distal clavicle resection.” It went on to
14 find that Velasquez had sustained disabilities that rendered her unable “to perform fine
15 and gross movements effectively” and established her date of disability as September
16 28, 1998. The record reveals no evidence that Velasquez ever sent American Modern
17 a copy of the SSA letter or notified it of that letter’s existence prior to the initiation
18 of this lawsuit.
19 Velasquez next contacted Defendants on November 15, 2004. On that date,
5 1 Velasquez submitted letters to both American Modern and the Credit Union.
2 The letter sent to American Modern stated:
3 Attached is my insurance policy with American Modern Life Insurance 4 Company. I continue to be totally disabled and I have not heard from 5 you with regards to the loss of my two (2) vehicles. You have failed to 6 pay under the enclosed policy. You need to follow up on making all the 7 payments that have not been made on this policy and replace the vehicles 8 that [were] covered on this policy. Please do this immediately. 9 In her letter to the Credit Union, hand-delivered that same day, Velasquez
10 requested all files pertaining to her case:
11 This letter will follow up my verbal request for complete files regarding 12 the two accounts I have with GE Federal Credit Union. Please provide 13 me with complete files in the above-referenced accounts within ten (10) 14 days of this letter. Should you have any questions, feel free to call me.
15 Neither letter referenced the SSA’s determination of full disability, and the record
16 indicates no evidence that copies were attached. Under any legally operable definition
17 of “proof,” we cannot regard her conclusory statement about a continuing disability
18 as proof of a disability when she was specifically aware that American General was
19 looking for documentary evidence that Social Security had determined her to be
20 disabled. Submitting proof for evaluation of a claim quickly became a moot point.
21 The next day, on November 16, 2004, Velasquez filed suit against Defendants in
22 district court for breach of contract, insurance bad faith, violations of the New Mexico
23 Insurance Practices Act, and violations of the Unfair Trade Practices Act.
24 Once the lawsuit had begun, the parties engaged in limited discovery.
6 1 Defendants turned over Velasquez’s files to her, and Velasquez submitted a copy of
2 the SSA’s benefits letter to Defendants. On September 25, 2006, American Modern
3 moved for summary judgment, claiming that no genuine issues of material fact existed
4 in the case because the policy’s three-year time to sue provision had run on
5 Velasquez’s claim. At the hearing, American Modern again argued that the three-year
6 time to sue requirement ran on Velasquez’s claim—at the absolute latest, on March
7 8, 2003, three years from their denial of her claim. In the alternative, it argued that the
8 policy’s sixty-day waiting period barred the claim because Velasquez filed suit only
9 one day after her November 15, 2004 letter. Velasquez responded by arguing that the
10 November 15, 2004 letter constituted “new proof” of her disability, and as such, re-set
11 the three-year time to sue provision. In support of her answer, she submitted the
12 affidavit of insurance industry expert Garth Allen. Mr. Allen supported Velasquez’s
13 argument, stating that her “November 15, 2004 letters and personal visit . . .
14 constitute[d] new proofs of loss.” Regarding Velasquez’s failure to submit the SSA’s
15 determination of disability, he claimed that it was American Modern’s responsibility
16 to search out and find such documents. “If [American Modern] would have conducted
17 even a cursory investigation, it would have learned that Ms. Velasquez was designated
18 as Social Security disabled on January 30, 2004 and had not worked since 1998.”
19 Velasquez also argued that summary judgment was improper on the basis that
7 1 discovery was incomplete. Under Rule 1-056(F) NMRA, she contended that the
2 discovery already conducted in the case was insufficient to support a response to
3 Defendants’ motion for summary judgment. She also asserts that summary judgment
4 was premature because additional discovery was required to establish, among other
5 facts, the meaning of “proof” as used in the policy. At the hearing, held in conjunction
6 with the hearing on the motion for summary judgment, the court asked Velasquez
7 what she sought to achieve with additional discovery. She replied that further
8 discovery would reveal exactly who at American Modern examined the claim, the
9 nature of the claims adjustment process, various company standards, and the quality
10 of investigation practiced by American Modern. At no time during the hearing did
11 Velasquez mention an attempt to determine the meaning of “proof” in the language
12 of the insurance contract, or relate her discovery needs to American Modern’s
13 statement of what it sought as proof in their letter of 2000.
14 The district court issued an order granting summary judgment on December 7,
15 2006. It held that after granting her all reasonable inferences and benefits of doubt,
16 Velasquez was required to file her lawsuit “no later than March 8, 2003.” “Nothing
17 about the November [] 2004 letters, or her decision from the [SSA], remedy her failure
18 to timely file her lawsuit.” The court’s order does not mention insurance contract
19 ambiguity or any dispute as to the meaning of the term “proof.” Likewise, the court
8 1 did not consider the agency argument of the Credit Union and Shauna Lawlor.
2 Velasquez now appeals the district court’s order of summary judgment. She
3 asserts, in addition to her discovery argument, the existence of genuine issues of
4 material fact, namely, that reasonable minds could differ as to whether her actions in
5 November 2004 constituted “new proofs” within the meaning of the policy. We now
6 address those issues in turn.
7 DISCUSSION
8 A. The District Court’s Refusal to Allow Additional Discovery was Proper
9 Velasquez acknowledges that denials of additional discovery are reviewed for
10 abuse of discretion, yet she urges us to review hers de novo. The rule is well-
11 established that discovery orders are reviewed for abuse of discretion. Paragon
12 Found. v. N.M. Livestock Bd., 2006-NMCA-004, ¶ 31, 138 N.M. 761, 126 P.3d. 577.
13 Such denials, even when made in conjunction with motions for summary judgment,
14 are reviewed for abuse of discretion. Design Prof’ls Ins. Cos. v. St. Paul Fire &
15 Marine Ins. Co., 1997-NMCA-049, ¶ 18, 123 N.M. 398, 940 P.2d 1193. Accordingly,
16 in order to find an abuse of discretion, we must determine that the district court’s
17 ruling was arbitrary, unreasonable, untenable, or contrary to logic and reason. Edens
18 v. Edens, 2005-NMCA-033, ¶ 13, 137 N.M. 207, 109 P.3d 295; New Mexicans For
19 Free Enter. v. City of Santa Fe, 2006-NMCA-007, ¶ 67, 138 N.M. 785, 126 P.3d
9 1 1149. And where valid arguments both support and oppose a finding of abuse of
2 discretion, we defer to the ruling of the district court. See Edens, 2005-NMCA-033,
3 ¶ 13; New Mexicans for Free Enter., 2006-NMCA-007, ¶ 67.
4 Velasquez filed a motion pursuant to Rule 1-056(F) in order to obtain additional
5 discovery prior to summary judgment. She asserted that Defendants “blocked
6 discovery and depositions” and prevented “a proper response.” As an exhibit to her
7 motion, Velasquez included the affidavit of Steven Vogel (Vogel), her attorney, who
8 stated his qualifications and achievements as well as the relevant facts of the case.
9 “The critical and essential facts of this case,” Vogel wrote, “lie with the testimony of
10 Defendant’s employees, [whose] depositions are now tentatively scheduled for
11 October 2006.” As a result, he claimed, Defendants’ “[m]otion for [s]ummary
12 [j]udgment [was] premature,” and “essential facts, documents and depositions” were
13 incomplete.
14 In Butler v. Deutsche Morgan Grenfell, Inc., 2006-NMCA-084, ¶¶ 38-39, 140
15 N.M. 111, 140 P.3d 532, this Court described the pleading and procedural
16 requirements for motions filed pursuant to Rule 1-056(F). That opinion held that Rule
17 1-056(F) “allows a party faced with a motion for summary judgment to ask the district
18 court to stay its determination so that the non-movant can conduct discovery needed
19 to rebut the motion.” Butler, 2006-NMCA-084, ¶ 38. Under the rule, “a party must
10 1 submit an affidavit explaining why additional time and discovery are needed.” Id.
2 “[S]uch affidavits must contain more than conclusory statements about the need for
3 discovery.” Id. They must make “specific allegations” regarding what evidence the
4 movant hopes to find and include a statement of how the evidence will enable him to
5 properly address the motion for summary judgment. See id. ¶¶ 38-39. “[V]ague
6 assertions that additional discovery [would] produce needed, but unspecified, facts”
7 are insufficient. Id. (internal quotation marks and citation omitted).
8 Applying these standards, we hold that the district court properly denied
9 Velasquez’s motion. Neither Vogel’s affidavit nor his arguments before the court
10 constitute anything more than the conclusory statements insufficient under the rule.
11 In the affidavit, Vogel stated that additional discovery would reveal “critical and
12 essential facts” of the case, and that without discovery, Velasquez would be “unable
13 to adequately respond” to Defendants’ motion for summary judgment. “[E]ssential
14 facts, documents and depositions,” he concluded, were yet undisclosed, but the Court
15 is left to wonder, which facts? Likewise, Vogel’s oral arguments before the district
16 court fail to meet the burden imposed by Rule 1-056(F). When asked, “Can you just
17 outline what specifically you think [the additional discovery] information might be
18 that will defeat summary judgment,” Vogel stated that he hoped to determine “who
19 investigated this claim,” the nature of the claims adjustment process, and how policies
11 1 are sold. He explained, “I don’t know exactly what they’re going to say until I go talk
2 to them.”
3 While more specific than his affidavit, these are still insufficient to support his
4 motion. None of these statements demonstrate how Velasquez would rebut the motion
5 for summary judgment by obtaining additional discovery. In her brief, Velasquez
6 argues that additional discovery would have allowed her to determine the proper
7 definition of “proof” as that term is used in the insurance policy, but she did not raise
8 this argument or make a showing that discovery might reveal this prior to the district
9 court’s order. It appears neither in Vogel’s affidavit nor in his oral arguments at the
10 hearing on the motion. The only time Velasquez raised the issue of defining “proof”
11 below was in her motion for a reconsideration of the order for summary judgment,
12 which came long after the district court first considered her Rule 1-056(F) motion.
13 If providing “proof” of Velasquez’s claim was Defendants’ undischarged
14 responsibility, neither the identity of persons “investigating” her claim nor knowledge
15 of how the policy was sold materially affects a determination of what constitutes
16 “proof.” Because this was a claim that, for reasons discussed more completely below,
17 American Modern properly regarded as closed, we see no reason that anyone but
18 Velasquez had an obligation to obtain proof of disability later than March 2003.
19 We agree with Velasquez that courts should deny motions of this type
12 1 cautiously. As this Court stated in Butler, the specificity standard should be used
2 “sparingly.” Butler, 2006-NMCA-084, ¶ 45. “Our cases and procedural rules
3 mandate that if there is any possibility that disputed facts might be relevant to the
4 ultimate disposition of a case, a court should be exceedingly cautious in dismissing
5 the case before discovery has occurred.” Id. In this case, the district court was
6 sufficiently cautious. As we stated above, Velasquez’s requests were just not specific
7 enough. All deal with the review of her claim; none address that American Modern
8 requested in its March 2000 letter to know if she was “awarded a Social Security
9 Disability Benefit” or why she failed to mention she had received one ten months
10 before her letter, or particularly that she received one at all. More to the point, the
11 argument that the bald statement that Velasquez “continue[d] to be totally disabled”
12 constituted adequate proof appears nowhere in the record. Finally, none of
13 Velasquez’s claims tend to establish the likelihood that the review would have
14 included any new proof of disability that Velasquez may have submitted.
15 Viewing Vogel’s affidavit and Velasquez’s assertions, we reassert our
16 observation in Butler that such affidavits must contain more than conclusory
17 statements about the need for discovery, and must specifically demonstrate how
18 postponement of a ruling will enable the party to “rebut the movant’s showing of the
19 absence of a genuine issue of fact.” 2006-NMCA-084.
13 1 Furthermore, a significant amount of discovery had already taken place when
2 Velasquez’s motion was denied. Prior to Defendants’ motion for summary judgment,
3 Velasquez was in possession of American Modern’s entire claims file, and she had
4 submitted interrogatories which were duly answered. Such discovery, without a
5 showing of how additional information would specifically assist in rebutting
6 Defendants’ motion for summary judgment, is adequate. We now analyze the district
7 court’s order of summary judgment.
8 B. The District Court’s Order of Summary Judgment was Proper
9 We review orders of summary judgment de novo, Fikes v. Furst, 2003-NMSC-
10 033, ¶ 11, 134 N.M. 602, 81 P.3d 545, and determine the existence of any genuine
11 issues of material fact by making all reasonable inferences in the light most favorable
12 to the non-moving party. Nashan v. Nashan, 119 N.M. 625, 627, 894 P.2d 402, 404
13 (Ct. App. 1995). In order to receive summary judgment, Defendants were required
14 to make a prima facie case that Velasquez was not in compliance with the provisions
15 of the insurance contract. The burden then shifted to Velasquez to show the existence
16 of genuine issues of material fact. Juneau v. Intel Corp., 2006-NMSC-002, ¶ 10, 139
17 N.M. 12, 127 P.3d 548.
18 1. Velasquez’s Coverage Under the Policy Terminated Upon Repossession of 19 Her Cars
20 In October 2002, two and a half years after American Modern denied
14 1 Velasquez’s claim, the Credit Union repossessed her cars. The record does not
2 indicate that neither the Credit Union or Velasquez notified American Modern of this
3 event. Nor does it indicate that American Modern was informed of the repossession
4 in some other manner. Velasquez had no contact with American Modern until
5 November 2004.
6 By its own terms the policy coverage ended when Velasquez’s vehicles were
7 repossessed. It states, “[y]our insurance . . . stops on the earliest of the following
8 dates: . . . (8) the date the collateral you pledged to secure debt is repossessed.”
9 Neither party in this case disputes that Velasquez’s Mitsubishi and Chevy automobiles
10 constituted the collateral. Likewise, neither party disputes that both automobiles were
11 repossessed prior to November 2004. Thus, at the time the vehicles were repossessed,
12 Velasquez’s insurance contract with American Modern became inoperative. Any
13 proof sent to American Modern after that date was also inoperative because there was
14 no longer any purpose to the policy. For so long as Velasquez’s disability required
15 American Modern to pay, American Modern made payments. After the expiration of
16 her coverage under level one, Velasquez’s only option for continued coverage was
17 under level two, which required total disability. Since evidence of total disability was
18 not forthcoming until November 2004, if at all, there was no impediment to ending the
19 insurance contract according to its terms at the moment the collateral was repossessed.
15 1 Without a determination of total disability entitling Velasquez to level two coverage
2 at the time of repossession, the policy ended by its own terms. There is no ambiguity
3 in the language of this provision to allow for another interpretation. Simply put, when
4 the collateral was repossessed, there was nothing left to insure and no further
5 obligation on the part of American Modern.
6 American Modern denied Velasquez’s claim for level two benefits in March
7 2000, after she submitted medical reports indicating she was not totally disabled.
8 American Modern informed her as to what might trigger a reconsideration of her case
9 at a later date. The Credit Union’s repossession of Velasquez’s cars was an
10 intervening circumstance which occurred after American Modern determined it had
11 no further liability and had been given no information to the contrary. We hold that
12 the policy stopped of its own terms upon repossession of the cars in October 2002.
13 2. Velasquez Did Not Comply With the Policy’s Three-year Time to Sue 14 Provision
15 Summary judgment was also proper for failure of Velasquez to submit proof
16 of a disibility or sue within the policy’s time to sue provision. Three-year time to sue
17 provisions are valid in New Mexico insurance contracts. This position was endorsed
18 in Willey v. United Mercantile Life Ins. Co., 1999-NMCA-137, 128 N.M. 98, 990 P.2d
19 211, where this Court analyzed a three-year time to sue provision almost identical to
20 the one now before us and held that it was both valid and reasonable. Id. ¶ 10.
16 1 Indeed, because New Mexico’s insurance code codifies such language, NMSA 1978,
2 § 59A-22-14 (1984), this Court stated that its appearance in insurance contracts bears
3 “the imprimatur of our Legislature.” Willey, 1999-NMCA-137, ¶ 11.
4 The insurance contract between Velasquez and American Modern provides that
5 “legal action may not be started more than 3 years after the proof is filed.” Velasquez
6 first filed a claim on the insurance policy on July 26, 1999. Assuming, perhaps most
7 logically, that this first claim is “proof” to which the contract refers, Velasquez’s suit
8 would have been barred as of July 26, 2002. Even if we give Velasquez the benefit
9 of the doubt, her claim still fails. Prior to 2004, the last communication between
10 Velasquez and American Modern concerning her ability to work occurred on March
11 7, 2000 and included a medical evaluation from Velasquez’s physician, Dr. Gathings.
12 Dr. Gathings clearly indicated that Velasquez could work, and his comments provided
13 the basis upon which her claim was disallowed. If Velasquez had been unable to work
14 at a later date, she could have submitted more information at that time. Nevertheless,
15 calculating the time to sue provision from March 7, 2000, Velasquez’s claim was
16 barred as of March 7, 2003. Because she filed her claim on November 16, 2004, long
17 after the tolling of the time to sue provision, her claim is barred.
18 Velasquez asserts that her November 15, 2004, letters to American Modern and
19 the Credit Union, together with her November 15, 2004, visit to the Credit Union,
17 1 constitute “new proof” that functions to re-set the three-year time to sue provision.
2 This argument fails on the facts. American Modern informed Velasquez that it would
3 consider evidence proving an award of Social Security Disability Benefits. More than
4 three years elapsed until this award came through. Still, Velasquez’s November 15,
5 2004 letter, ten months after her notification that benefits were approved, did not
6 mention any disability endorsed by the SSA; it just asserted that she was “totally
7 disabled.” Further, as noted below, an ambiguous and conclusory reference such as
8 that, when followed the next day by filing suit for ignoring a fact less than a day old,
9 cannot serve as proper notice upon which American Modern might have a duty to act
10 under the policy. By the time the time to sue provision ran in 2003, there was nothing
11 existing to show a total disability. Mr. Allen’s assignment of a duty to investigate
12 assumes that the claim would stay open indefinitely; a proposition we reject.
13 Investigation at the moment the time-to-sue provision ran in March 2003, would have
14 revealed nothing concerning a Social Security award that would not be forthcoming
15 for nearly another year. Considering that since the policy had ended with the
16 repossession of Velasquez’s cars, American Modern had no reason in 2004 to
17 investigate her claim.
18 3. Velasquez did not Comply with the Policy’s Sixty-day Waiting Period 19 Prior to Suit
20 Immediately prior to the three-year time to sue provision in the policy, the
18 1 following language appears: “You may not start any legal action until 60 days after
2 you send us proof of your disability.” As we stated above, Velasquez visited the
3 Credit Union to demand her file in November 2004. Likewise, she sent letters to both
4 American Modern and the Credit Union on November 15, 2004. Neither letter
5 mentioned the SSA determination of full disability issued to her in January 2004. The
6 very next day, on November 16, 2004, Velasquez filed suit against Defendants. For
7 purposes of discussing this waiting period, it is irrelevant whether her actions were
8 adequate proofs under the policy. What is important is that the waiting period was
9 valid and binding.
10 The provision limiting Velasquez’s right to sue until sixty days after submitting
11 proof of her disability allows the insurance company to investigate her claim, ascertain
12 its merit, and make a decision on whether to settle it or dispute liability in court. Such
13 a provision also serves public policy by encouraging settlements of this type.
14 Velasquez short-circuited that process by sending her letters to American Modern and
15 the Credit Union, and by filing suit against them the very next day.
16 A requirement in a contract that a party fulfill specific requirements before
17 bringing suit constitutes a condition precedent to successfully bringing that suit.
18 Rushing v. Lovelace-Bataan Health Program, 93 N.M. 168, 169, 598 P.2d 211, 212
19 (1979) (holding that a policy requiring an insured to submit a written claim and
19 1 exhaust administrative remedies prior to filing suit was enforceable as a condition
2 precedent). When the terms of a contract are clear, courts may not modify the terms
3 and must construe them as written. Id. In this case, the sixty-day waiting period was
4 an unambiguous condition precedent with which Velasquez failed to comply.
5 American Modern’s March 2000 letter expressed a willingness to consider a
6 SSA determination of disability. It clearly informed Velasquez of what might be
7 required as proof of disability should she wish to submit such information. However,
8 the policy ended in 2002 with the repossession of the vehicles. Velasquez did not
9 attempt to assert any rights or seek benefits under the policy at that point, or otherwise
10 communicate with American Modern. After January 2004, Velasquez possessed a
11 determination of disability from the SSA but failed to forward it to American Modern.
12 She then sent a letter asserting “total disability” without supporting proof and filed
13 suit the next day. The quality of Velasquez’s proof is not important here; her
14 submission of anything asserting to be proof triggered the sixty-day waiting period.
15 Thus, the waiting period was properly interposed as a defense to her suit.
16 4. Velasquez Failed to Preserve the Issue of Ambiguity for Appeal
17 Velasquez argues that because the insurance contract provides no definition of
18 “proof,” we should analyze the contract for ambiguity and construe it against
19 Defendants. We refuse to do so because Velasquez did not properly preserve the
20 1 issue. In order to “preserve an issue for review on appeal, it must appear that
2 appellant fairly invoked a ruling of the trial court on the same grounds argued in the
3 appellate court.” Woolwine v. Furr's, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct.
4 App. 1987); In re Doe, 98 N.M. 540, 541, 650 P.2d 824, 825 (1982) (explaining that
5 an appellate court should not reach issues that the parties have failed to raise);
6 Diversey Corp. v. Chem-Source Corp., 1998-NMCA-112, ¶ 38, 125 N.M. 748, 965
7 P.2d 332 (holding that preservation serves two purposes: (1) it allows the trial court
8 an opportunity to correct any errors, thereby avoiding the need for appeal; and (2) it
9 creates a record from which the appellate court can make informed decisions).
10 Velasquez did not properly preserve the issue of contract ambiguity for appeal.
11 In her response to Defendants’ motion for summary judgment, she never once asserted
12 that American Modern failed to properly define “proof” in the contract. Likewise, she
13 never mentioned the issue in oral arguments before the district court, and she never
14 directly addressed it in the hearing on her motion for reconsideration. She also never
15 asserted that anything beyond her conclusory statement that she suffered a “total
16 disability” constituted proof under the policy. As a result, the district court never
17 properly ruled on the issue, relying as it did on the three-year time to sue provision as
18 the primary basis for its order.
19 CONCLUSION
21 1 For the reasons set out above, we hold that the district court’s order for
2 summary judgment in favor of Defendants was proper. Viewing the facts in the light
3 most favorable to Velasquez, we find no genuine issues of material fact and affirm the
4 district court’s order. Similarly, we find no abuse of discretion on the part of the
5 district court in allowing summary judgment to proceed without additional discovery.
6 IT IS SO ORDERED.
7 ___________________________________ 8 RODERICK T. KENNEDY, Judge
9 WE CONCUR:
10 ___________________________ 11 JAMES J. WECHSLER, Judge
12 ___________________________ 13 MICHAEL E. VIGIL, Judge