Nollen v. Reynolds

1998 NMCA 108, 962 P.2d 633, 125 N.M. 387
CourtNew Mexico Court of Appeals
DecidedJuly 7, 1998
Docket18709
StatusPublished
Cited by2 cases

This text of 1998 NMCA 108 (Nollen v. Reynolds) 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
Nollen v. Reynolds, 1998 NMCA 108, 962 P.2d 633, 125 N.M. 387 (N.M. Ct. App. 1998).

Opinion

OPINION

BOSSON, Judge.

{1} Plaintiffs appeal from an order granting summary judgment to Farmers Insurance Company regarding the limits of the Lability insurance poLcy in this case. Plaintiffs maintained that under the liability policy they could recover separate policy limits for an independent claim for loss of consortium. Farmers contended that all such claims had to fit within the “per person” policy limits. The district court agreed with Farmers, and on appeal we affirm.

FACTS

{2} Plaintiff Linda Nollen and her daughter Crystalyn were involved in an automobile accident with another vehicle insured by Farmers. Both Linda and Crystalyn Nollen successfully sued the driver of the other car to recover payment for their respective injuries. In addition, Richard Nollen, Linda’s husband and Crystalyn’s father, sued Farmers’ insured to recover for loss of consortium and for reimbursement of medical expenses incurred by his daughter.

{3} Farmers’ policy provides maximum coverage of $100,000 for bodily injury “for each person” and maximum coverage of $300,000 for bodily injury “for each occurrence.” The policy states:

1. The bodily injury liability limit for “each person” is the maximum for bodily injury sustained by one person in any occurrence. Any claim for loss of consortium or injury to the relationship arising from this injury shall be included in this limit.
If the financial responsibility law of the place of the accident treats the loss of consortium as a separate claim, financial responsibility limits will be furnished.
2. Subject to the bodily injury liability limit for “each person” the bodily injury liability limit for “each occurrence ” is the maximum combined amount for bodily injury sustained by two or more persons in any occurrence.

Plaintiffs argue that, in addition to the coverage provided for Linda and Crystalyn Nollen’s damages under Paragraph 1, Richard Nollen is also entitled to recover separately for his loss-of-consortium claim, as long as all claims, taken together, fit within the “per occurrence” limits. Farmers argues that, under the language of the policy, Richard’s loss-of-consortium claim falls under the “per person” limits, and therefore there is no further coverage available.

DISCUSSION

{4} “Summary judgment is proper if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Roth v. Thompson, 113 N.M. 331, 334, 825 P.2d 1241, 1244 (1992). In order to establish the risks that insurer and its policyholder assumed when the insurance policy was issued, we look to the language of the policy. Gonzales v. Allstate Ins. Co., 1996-NMSC-041, 122 N.M. 137, 139, 921 P.2d 944, 946. Here, the language in the first and second sentences of Paragraph 1 provide that a claim for loss of consortium “shall be included in this limit” which applies to each person ($100,000). This portion of the provision unambiguously includes loss of consortium under the “per person” limits of the policy. Furthermore, limiting payments for loss of consortium in this fashion has only recently been upheld by our Supreme Court in Gonzales, which involved a similar insurance provision and an “independent” claim for loss of consortium. See id. at 140, 921 P.2d at 947.

{5} Given the holding in Gonzales, whatever viable dispute remains in this ease must center on language different from that in the insurance policy in Gonzales. There is one such difference. The third sentence of Paragraph 1 states: “If the financial responsibility law of the place of the accident treats the loss of consortium as a separate claim, financial responsibility limits will be furnished.” This language was not present in Gonzales. Plaintiffs argue that, under Romero v. Byers, 117 N.M. 422, 426, 872 P.2d 840, 844 (1994), loss of consortium is recognized as a separate claim belonging to the spouse in New Mexico, which entitles Richard to recover $25,000, the minimum coverage required by the financial responsibility law. See NMSA 1978, § 66-5-208(A) (1983). Farmers, on the other hand, argues that it is necessary to look elsewhere than general tort law in New Mexico. Rather, Farmers maintains that under the explicit language of the policy we must examine the “financial responsibility law of the place of the accident” to see if that statute, and not just the general tort law, specifies loss of consortium as a separate claim. Of course, New Mexico’s financial responsibility statute makes no reference to claims for loss of consortium. Because the financial responsibility statute does not separate loss of consortium from other types of claims, Farmers takes the position that no separate claim is allowed under the language of the insurance policy, and we agree.

{6} The first and second sentences of Paragraph 1 show that Farmers and its policyholder insured, the two parties to the insurance contract, intended to include within the bodily injury liability limit recovery for loss of consortium arising out of that “bodily injury.” Thus, the injuries suffered by a person who is actually injured in an accident and any injury to consortium arising from that injury are subject to the “per person” limits for that bodily injury. We read the third sentence to say that if the financial responsibility laws of the state do not allow loss of consortium to be included under a claim of bodily injury and instead require a separate limit to be provided for loss-of-eonsortium claims, the policy will allow those limits required by the financial responsibility laws to apply. That is, the third sentence merely ensures that the policy will comply with a state’s financial responsibility law; if that law prohibits an insurer from including loss of consortium in a “per person” bodily injury limit, the policy provides the minimum coverage. Cf. Schaefer v. Allstate Ins. Co., 76 Ohio St.3d 553, 668 N.E.2d 913, 915 (1996) (holding, in essence, that Ohio public policy forbids insurer from attempting to limit uninsured motorist coverage for loss-of-consortium claim to injured party’s limits, and requiring that separate “per person” limits be available for loss of consortium to claimant).

{7} New Mexico has no prohibition against combining a loss-of-consortium claim with a bodily injury claim. Additionally, the financial responsibility statute contains no language requiring separate coverage for loss of consortium. Therefore, the plain language of the policy, which includes loss of consortium in the “per person” limits for bodily injury, applies. This result is supported by case law from other states. See Mid-Century Ins. Co. v. Bash, 211 Cal. App.3d 431, 259 Cal.Rptr. 382, 385-86 (1989) (holding that policy containing similar clause under “per person” limit provision unambiguously provided that loss-of-consortium claims would be included in that limit unless financial responsibility law of state required different treatment); Teply v. Ballard, 142 Or. App. 574, 922 P.2d 1236

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Cite This Page — Counsel Stack

Bluebook (online)
1998 NMCA 108, 962 P.2d 633, 125 N.M. 387, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nollen-v-reynolds-nmctapp-1998.