Ullman v. Safeway Ins. Co.

• Court: New Mexico Court of Appeals
• Decided: June 28, 2017
• Docket: 34,897
• Status: Published

Opinion

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 Opinion Number: ___________

3 Filing Date: June 28, 2017

4 NO. 34,897

5 BETTY E. ULLMAN, for herself and 6 others similarly situated,

7 Plaintiff-Appellee,

8 v.

9 SAFEWAY INSURANCE COMPANY,

10 Defendant-Appellant,

11 and

12 RICHARD BAILEY,

13 Defendant.

14 INTERLOCUTORY APPEAL FROM THE DISTRICT COURT OF 15 SANTA FE COUNTY 16 Francis J. Mathew, District Judge

17 Law Offices of Geoffrey R. Romero 18 Geoffrey R. Romero 19 Albuquerque, NM

20 Garcia Ives Nowara, LLC 21 Matthew L. Garcia 22 Albuquerque, NM 1 Freedman, Boyd, Hollander, Goldberg, Urias & Ward, P.A. 2 Joseph Goldberg 3 David A. Freedman 4 Vincent J. Ward 5 Albuquerque, NM

6 Vargas Law Firm, LLC 7 Ray M. Vargas, II 8 Albuquerque, NM

9 O’Connell Law LLC 10 Erin B. O’Connell 11 Albuquerque, NM

12 for Appellees

13 Butt, Thornton & Baehr, P.C. 14 Rheba Rutkowski 15 James H. Johansen 16 Albuquerque, NM

17 for Appellant 1 OPINION

2 SUTIN, Judge.

3 {1} This matter comes to us on interlocutory appeal from the denial of Safeway

4 Insurance Company’s motion for summary judgment seeking dismissal of class action

5 claims. Safeway sought to prove that its insurance documents were legally adequate

6 to support its rejections of claims of class members to uninsured and underinsured

7 motorist (UM/UIM) benefits. The district court certified that the case involved “a

8 controlling question of law as to which there is [a] substantial . . . difference of

9 opinion and that an immediate appeal . . . may materially advance the ultimate

10 termination of the litigation.” The court identified that controlling question as

11 “whether Safeway has complied with New Mexico law in obtaining waivers of

12 [UM/UIM] coverage insurance, including stacked coverage, from its insureds.”

13 {2} Safeway asks this Court to (1) rule that Safeway obtained valid rejections of

14 UM/UIM coverage in compliance with New Mexico law; (2) reverse the order

15 denying Safeway’s class-related motion for summary judgment; and (3) remand with

16 instructions to dismiss the class claims with prejudice and de-certify the class because

17 “a ruling on the certified question in Safeway’s favor means that the alleged violation

18 of law that grounds the class definition and class claims does not exist, leaving no

19 common question appropriate for class litigation.” We hold that Safeway obtained 1 valid rejections of UM/UIM coverage in compliance with New Mexico law. We

2 further hold that, on remand, the district court is to address any remaining class-

3 related issues or concerns.

4 I. THE CLASS

5 {3} In pursuit of class certification in an action against Safeway, Plaintiff Betty E.

6 Ullman stated the certified class to be:

7 All New Mexico residents, who are all Safeway policyholders or 8 insureds under any Safeway policy issued, or reissued, in New Mexico 9 where that Safeway policy did not provide the maximum amount of 10 [UM/UIM] coverage allowed by law and for which Safeway did not 11 obtain a valid waiver/rejection of UM/UIM coverage with limits equal 12 to the limits of liability coverage. An invalid waiver/rejection of 13 UM/UIM coverage is one which did not include an offer of UM/UIM 14 limits up to the liability limits and a disclosure of premium amount for 15 each available level of coverage, including stacked coverage.

16 Ullman’s claims and the class membership are based on Ullman’s assertion of legally

17 inadequate Safeway UM/UIM documentation affecting all policyholders in the class.

18 II. STANDARD OF REVIEW

19 {4} In the district court, Ullman argued that the issue was whether Safeway’s

20 uniform documentary language complied with New Mexico law, and for that reason,

21 the particular circumstances surrounding an ultimate rejection, including the means

22 in which the rejection was obtained, were immaterial. Whether the documents met the

23 legal requirements for offering and obtaining waivers of UM/UIM coverage and for

2 1 stacking of benefits is a legal question resolved by interpretation of applicable

2 statutory, regulatory, and case law, calling for de novo review. See Marckstadt v.

3 Lockheed Martin Corp., 2010-NMSC-001, ¶ 13, 147 N.M. 678, 228 P.3d 462;

4 Wilkeson v. State Farm Mut. Auto Ins. Co., 2014-NMCA-077, ¶ 6, 329 P.3d 749.

5 {5} The question whether language in a document meaningfully informs a customer

6 regarding the insurance offered requires this Court “to consider legal concepts in the

7 mix of fact and law and to exercise judgment about the values that animate legal

8 principles[.]” State v. Attaway, 1994-NMSC-011, ¶ 6, 117 N.M. 141, 870 P.2d 103

9 (internal quotation marks and citation omitted). Like the concept of reasonableness,

10 the concept of meaningful involves the exercise of reasoned and evaluative judgment

11 as to concepts inherently factual yet in need of appellate court de novo review. See

12 id. ¶ 9 (discussing “rules and tests, based as they are on careful balancing of the

13 underlying constitutional values,” serving as “a proxy for reasonableness, generally

14 applicable, but inherently factual[,]” yet “extend[ing] beyond fact-finding and

15 implicat[ing] an assessment of broader legal policies . . . entrust[ed] to the reasoned

16 judgment of the appellate courts of this state”); Randall H. Warner, All Mixed Up

17 About Mixed Questions, 7 J. App. Prac. & Process, No. 1, at 129 (Spring 2005)

18 (“[E]valuative determinations involve the judging of a person’s conduct or belief.

19 This is typically done by applying a standard like ‘reasonable’ or ‘fair’ that conveys

3 1 to the decision-maker that he or she is judging according to a community standard.”).

2 In such instances, appellate courts are free to conclude that, as a matter of policy, the

3 issue should be reviewed de novo in the interests of judicial administration. Attaway,

4 1994-NMSC-011, ¶¶ 6-8; Warner, supra, at 109-12, 118, 130-31. Thus, it is for this

5 Court to determine whether the documents were legally adequate to meaningfully

6 inform Ullman of required insurance information. For the purposes of our de novo

7 review, it is to be understood that Ullman received the critical documents.

8 III. THE LEGAL REQUIREMENTS

9 A. UM/UIM Coverage and Rejection of Coverage

10 {6} UM/UIM coverage and rejection of coverage are subjects of NMSA 1978,

11 Section 66-5-301 (1983), and its implementing regulation, 13.12.3.9 NMAC. Section

12 66-5-301 reads:

13 A. No motor vehicle or automobile liability policy insuring 14 against loss resulting from liability imposed by law for bodily injury or 15 death suffered by any person and for injury to or destruction of property 16 of others arising out of the ownership, maintenance or use of a motor 17 vehicle shall be delivered or issued for delivery in New Mexico with 18 respect to any motor vehicle registered or principally garaged in New 19 Mexico unless coverage is provided therein or supplemental thereto in 20 minimum limits for bodily injury or death and for injury to or 21 destruction of property as set forth in Section 66-5-215 NMSA 1978 and 22 such higher limits as may be desired by the insured, but up to the limits 23 of liability specified in bodily injury and property damage liability 24 provisions of the insured’s policy, for the protection of persons insured 25 thereunder who are legally entitled to recover damages from owners or 26 operators of uninsured motor vehicles because of bodily injury, sickness

4 1 or disease, including death, and for injury to or destruction of property 2 resulting therefrom, according to the rules and regulations promulgated 3 by, and under provisions filed with and approved by, the superintendent 4 of insurance.

5 B. The uninsured motorist coverage described in Subsection 6 A of this section shall include underinsured motorist coverage for 7 persons protected by an insured’s policy. For the purposes of this 8 subsection, “underinsured motorist” means an operator of a motor 9 vehicle with respect to the ownership, maintenance or use of which the 10 sum of the limits of liability under all bodily injury liability insurance 11 applicable at the time of the accident is less than the limits of liability 12 under the insured’s uninsured motorist coverage. . . .

13 C. The uninsured motorist coverage shall provide an exclusion 14 of not more than the first two hundred fifty dollars ($250) of loss 15 resulting from injury to or destruction of property of the insured in any 16 one accident. The named insured shall have the right to reject uninsured 17 motorist coverage as described in Subsections A and B of this section; 18 provided that unless the named insured requests such coverage in 19 writing, such coverage need not be provided in or supplemental to a 20 renewal policy where the named insured has rejected the coverage in 21 connection with a policy previously issued to him by the same insurer.

22 The regulation states: “The rejection of the provisions covering damage caused by an

23 uninsured . . . motor vehicle as required in writing by the provisions of Section 66-5-

24 301 . . . must be endorsed, attached, stamped or otherwise made a part of the policy

25 of bodily injury and property damage insurance.” 13.12.3.9 NMAC; see Romero v.

26 Dairyland Ins. Co., 1990-NMSC-111, ¶ 8, 111 N.M. 154, 803 P.2d 243 (“An insured

27 may reject [UM] coverage, but the rejection must satisfy the regulations promulgated

28 by the superintendent of insurance.”).

5 1 {7} In Montano v. Allstate Indemnity Co., 2004-NMSC-020, ¶¶ 17, 20, 135 N.M.

2 681, 92 P.3d 1255, our Supreme Court charted a “new course” in UM/UIM law,

3 which, among other rulings, required insurers in multiple-vehicle policies to “declare

4 the premium charge for each of the . . . coverages” as a means of ensuring that

5 consumers get what they pay for. In Progressive Northwestern Insurance Co. v. Weed

6 Warrior Services, 2010-NMSC-050, ¶¶ 8, 14-15, 149 N.M. 157, 245 P.3d 1209, our

7 Supreme Court required that insurers offer UM/UIM coverage that includes “the

8 maximum amount statutorily available” equal “to the liability limits of the policy[.]”

9 Further, the Court explained the insured’s choice to purchase any lower amount

10 functions as a rejection of that maximum amount of coverage statutorily possible. Id.

11 ¶ 14.

12 {8} With respect to obtaining valid rejections of UM/UIM coverage, several New

13 Mexico Supreme Court cases have stated what constitutes compliance, starting with

14 Romero, 1990-NMSC-111, and then later Marckstadt, 2010-NMSC-001, and Jordan

15 v. Allstate Insurance Co., 2010-NMSC-051, 149 N.M. 162, 245 P.3d 1214. Romero

16 explained that “[t]he rejection must be made a part of the policy by endorsement on

17 the declarations sheet, by attachment of the written rejection to the policy, or by some

18 other means that makes the rejection a part of the policy so as to clearly and

19 unambiguously call to the attention of the insured the fact that such coverage has

6 1 been waived.” 1990-NMSC-111, ¶ 8. Further, under Romero, “[p]roviding affirmative

2 evidence of the rejection of the coverage comports with a policy that any rejection of

3 the coverage be knowingly and intelligently made.” Id. ¶ 9. And UM/UIM coverage

4 will be read into the policy “when a rejection of such coverage does not comply with

5 [the] regulation[].” Id.

6 {9} In Marckstadt, our Supreme Court clarified that “an insurer must obtain a

7 written rejection of UM/UIM coverage . . . in order to exclude it[,]” but that “neither

8 the statute nor the regulation requires that the insured’s written rejection be signed[,]”

9 and “the written rejection itself need not be made part of the policy.” 2010-NMSC-

10 001, ¶ 4; see id. ¶¶ 23-26, 32. The Court further clarified that “the rejection which the

11 regulation requires to be in writing must be the act of rejection described in the

12 statute and not the evidence of that act mandated by the regulation itself.” Id. ¶ 22.

13 Marckstadt explained that this requirement assures “that the insured is sufficiently

14 informed before rejecting coverage, alerting the insured to the importance of the

15 decision, and providing clear evidence of a decision to reject[.]” Id. ¶ 21. The

16 Marckstadt Court stated, “[W]e cannot hold that the regulation may only be satisfied

17 by the attachment of the written rejection provided to the insurer by the insured[,]”

18 id. ¶ 25, and that “other forms of notification could function equally well to clearly

19 and unambiguously call to the attention of the insured the fact that such coverage has

7 1 been waived.” Id. (internal quotation marks and citation omitted). In sum, under

2 Marckstadt, “the insurer must obtain a written rejection from the insured, . . . the

3 written rejection need not be signed or attached to the policy[,]” and the regulation

4 “requires that some evidence of the insured’s written rejection of UM/UIM coverage

5 must be made part of the policy by endorsement, attachment, or some other means

6 that calls the insured’s attention to the fact that such coverage has been waived.” Id.

7 ¶ 26.

8 {10} Almost a year after Marckstadt, Jordan decided that the “Court’s repeated

9 pronouncements” in Marckstadt and Romero, “indicate[d] that insurers continue[d]

10 to offer UM/UIM coverage in ways that are not conducive to allowing the insured to

11 make a realistically informed choice.” Jordan, 2010-NMSC-051, ¶ 20. The Court

12 therefore proceeded to “prescribe workable requirements for a valid and meaningful

13 rejection of UM/UIM coverage in amounts authorized by statute.” Id. The Court

14 stated:

15 When issuing an insurance policy, an insurer must inform the 16 insured that he or she is entitled to purchase UM/UIM coverage in an 17 amount equal to the policy’s liability limits and must also provide the 18 corresponding premium charge for that maximum amount of UM/UIM 19 coverage. The premium cost for the minimum amount of UM/UIM 20 coverage allowed by Section 66-5-301(A) must also be provided, as well 21 as the relative costs for any other levels of UM/UIM coverage offered 22 to the insured. The insured must be informed that he or she has a right 23 to reject UM/UIM coverage altogether. Providing the insured with a 24 menu of coverage options and corresponding premium costs will enable

8 1 the insured to make an informed decision about the level of UM/UIM 2 coverage he or she wants to purchase and can afford and will minimize 3 uncertainty and litigation with regard to the coverage that the insured 4 has obtained.

5 Id. ¶ 21. More recently, in Whelan v. State Farm Mutual Automobile Insurance Co.,

6 2014-NMSC-021, ¶ 25, 329 P.3d 646, our Supreme Court confirmed Montano’s

7 having imposed a requirement “that insurers disclose the premium costs for each

8 available level of stacked coverage as a means of guaranteeing that consumers can

9 knowingly exercise their statutory rights to UM/UIM coverage.” And Whelan further

10 confirmed that “Jordan followed Montano by requiring similar premium disclosure

11 as to the premium charges corresponding to each available [UM/UIM] option[.]”

12 Whelan, 2014-NMSC-021, ¶ 25 (internal quotation marks and citation omitted).

13 {11} Jordan sets out the consequences stemming from an insurer’s failure to abide

14 by the requirements.

15 If an insurer does not (1) offer the insured UM/UIM coverage equal to 16 his or her liability limits, (2) inform the insured about premium costs 17 corresponding to the available levels of coverage, (3) obtain a written 18 rejection of UM/UIM coverage equal to the liability limits, and (4) 19 incorporate that rejection into the policy in a way that affords the 20 insured a fair opportunity to reconsider the decision to reject, the policy 21 will be reformed to provide UM/UIM coverage equal to the liability 22 limits.

23 Jordan, 2010-NMSC-051, ¶ 22.

9 1 B. Stacking

2 {12} Stacking rules were substantially clarified in Montano, 2004-NMSC-020, and

3 were also discussed in Jordan, 2010-NMSC-051. Montano addressed “whether an

4 insurance company effectively precluded its insured from stacking the policy limits

5 of all of his vehicles insured under the policy for his [UM] claim[,]” where the

6 plaintiff insured four vehicles under a policy, paid a single premium for UM

7 coverage, and limited stacking to two coverage limits. 2004-NMSC-020, ¶¶ 1, 3-4,

8 6. The plaintiff asked the Court to declare all anti-stacking clauses void as against

9 public policy, and alternatively, that he be permitted to stack four coverage limits

10 under the circumstances. Id. ¶ 7. Our Supreme Court did not expand its public policy

11 favoring stacking to require stacking in all cases, stating, “[w]e have always

12 understood stacking to be the remedy for an ambiguous contract or the charging of

13 multiple premiums.” Id. ¶ 9. And after reviewing prior cases, the Court stated that it

14 had “never held that anti-stacking clauses violate public policy when unambiguous

15 and when only one premium has been charged for the coverage.” Id. ¶ 15. The Court

16 explained that to declare all anti-stacking clauses void as against public policy

17 would expand the public policy in favor of stacking beyond what [the] 18 earlier cases have declared it to be. Our public policy in support of 19 stacking, rather, has always been tied to the notion that it is unfair not 20 to allow stacking when multiple premiums are paid or when the policy 21 is otherwise ambiguous. It would thus be an expansion of that policy to 22 also require stacking when the policy clearly only charges a single

10 1 premium and unambiguously precludes stacking. We decline to modify 2 our case law in order to expand our expression of the public policy 3 underlying stacking.

4 . . . Further, requiring stacking in all cases on a take-it-or-leave-it basis 5 would reduce the freedom of the parties to contract for less coverage and 6 thus their freedom to decide how much coverage they can afford. This 7 could frustrate, rather than advance, the legislative intent behind the UM 8 statute. . . . [and] . . . result in some lower-income insureds who own 9 multiple vehicles being effectively “priced out” of UM coverage.

10 Id. ¶¶ 15-16.

11 {13} Stacking is not a statutorily mandated UM coverage level but “a judicially-

12 created doctrine[.]” Id. ¶ 17; Wilkeson, 2014-NMCA-077, ¶ 8 (“In New Mexico,

13 stacking is ‘a judicially-created doctrine’ that has arisen in cases in which our

14 Supreme Court has needed to determine whether insurance policy limitations of

15 liability provisions restrict or permit stacking.” (quoting Montano, 2004-NMSC-020,

16 ¶ 17). Because the “traditional case-by-case ambiguity analysis has proved

17 unworkable” and “[b]earing in mind that [stacking] is a judicial doctrine,” the

18 Montano Court determined that a “new approach” was needed “to protect the

19 reasonable expectations of insureds and to ensure that they get what they pay for.”

20 2004-NMSC-020, ¶ 17. Taking “guidance” from a concurrence in an out-of-state

21 decision stating that stacking should be treated as “extra coverage for which the

22 parties have contracted,” and also from Section 66-5-301(A) and (C), the Court

23 “discern[ed] a solution to the seemingly inherent ambiguities in anti-stacking clauses:

11 1 an insurance company should obtain written rejections of stacking in order to limit

2 its liability based on an anti-stacking provision.” Montano, 2004-NMSC-020, ¶¶ 18-

3 19 (internal quotation marks and citation omitted); see also Whelan, 2014-NMSC-

4 021, ¶ 1 (confirming Montano as requiring insurers to “obtain explicit written

5 rejections of stacking in order to limit their statutory obligations”).

6 {14} The Court in Montano illustrated its holding:

7 [I]n a multiple-vehicle policy insuring three cars, the insurer shall 8 declare the premium charge for each of the three UM coverages and 9 allow the insured to reject, in writing, all or some of the offered 10 coverages. Thus, hypothetically, in the case of a $25,000 policy, if the 11 premium for one UM coverage is $65, two coverages is an additional 12 $60, and three coverages $57 more, the insured who paid all three (for 13 a total premium of $182) would be covered up to $75,000 in UM bodily 14 injury coverage. However, the insured may reject, in writing, the third 15 available coverage and pay $125 for $50,000 of UM coverage; or the 16 insured may reject, in writing, the second and third coverages and pay 17 $65 for $25,000 of UM coverage; or the insured may reject all three UM 18 coverages. In any event, the coverage would not depend on which 19 vehicle, if any, was occupied at the time of the injury. Thus, the 20 insured’s expectations will be clear, and an insured will only receive 21 what he or she has paid for.

22 2004-NMSC-020, ¶ 20. The Court followed with: “In all future cases, an insurance

23 policy that complies with this requirement will avoid the conclusion we now draw

24 from the history of stacking litigation in this State, namely, that anti-stacking clauses

25 are almost inherently ambiguous and are no longer effective at precluding stacking.

26 With written waivers, insureds will know exactly what coverage they are receiving

12 1 and for what cost[.]” Id. ¶ 21. Having “set forth the policy language requirements for

2 future stacking cases,” the Court relied on its “traditional ambiguity analysis” to

3 resolve the case, reasoning that “it would be inequitable to apply [the new

4 requirements] against [the insurer] before it has had an opportunity to alter its policy

5 language[.]” Id. ¶ 22. Applying that analysis, the Court held that the plaintiff was

6 “entitled to stack his four coverages” because the policy did not meet the

7 requirements “for a truly unambiguous policy[.]” Id. ¶¶ 27-28.

8 {15} In regard to the phrase “rejections of stacking” in Montano, as we state later

9 in this opinion, because an insurer has no duty to offer or explain stacking to a

10 customer, we construe the phrase “rejections of stacking” to mean rejection of

11 UM/UIM coverage which, if valid, necessarily precludes court-imposed stacking.1 Id.

1 12 This Court’s opinion in Arias v. Phoenix Indemnity Insurance Co., 2014- 13 NMCA-027, ___P.3d___, appears to discuss rejection of coverage and rejection of 14 stacking as two different concepts, but the Court ultimately and correctly concluded 15 that absent a valid rejection of UM/UIM coverage as to multiple vehicles, the law 16 “demands stacking of coverage[.]” Id. ¶ 15. We stated:

17 Having extended . . . the availability of UM/UIM coverage as a matter 18 of law, we also include per-vehicle stacking. We believe that, in the 19 absence of a rejection of coverage altogether, the coverage that must be 20 extended is the full measure accorded [the plaintiff] by the default 21 positions afforded by law. This includes UM/UIM coverage generally, 22 specifically to be stacked as to each of [the] insured vehicles.

23 Id.

13 1 ¶ 19. Thus, where stacking is not otherwise lawfully precluded, UM/UIM coverages

2 that have not been rejected can be stacked. There exists no required express stacking

3 rejection independent of coverage rejection.

4 IV. SAFEWAY’S DOCUMENTS RELATING TO UM/UIM COVERAGES 5 AND REJECTION OF COVERAGES

6 {16} Several documents used in Ullman’s insurance purchase appear in the record.

7 Safeway’s documents include the following forms: Application, Selection/Rejection,

8 Endorsement Page, Declarations Page, and the standard form policy. Also in the

9 record are insurance agency forms used by the insurance agency in the process of

10 contracting for the insurance with Ullman. The parties agree that the critical and

11 operative documents on the issue of legal adequacy are the Safeway documents and

12 that the agency’s documents are not relevant on the issue of legal adequacy. We

13 nevertheless set out the agency’s documents that were signed by Ullman so that the

14 reader has a full understanding of what Ullman had before her.

15 A. New Mexico Automobile Insurance Application

16 {17} Ullman signed a New Mexico Automobile Insurance Application form on

17 November 12, 2011. The application asks the insured to “please read” certain matters

18 set out in the application, one of which reads, in part, “I understand that I have only

19 the coverages indicated in Section 5. All of the coverages shown in Section 5 have

20 been explained. I understand the various coverages and that I have only those

14 1 coverage [sic] which have been completed. I have rejected all coverages not

2 completed in Section 5.” Under Section 5, “Coverages,” the document states, “No

3 coverage unless checked or premium shown[.]” The application shows bodily injury

4 limits of $25,000/$50,000 for each insured vehicle, listing the premium amount of

5 $79.00 for each. And the application has a location for the limits and premiums for

6 UM/UIM coverage, as to which each vehicle shows “rejected.” Ullman signed the

7 completed application on November 12, 2011.

8 B. UM/UIM Coverage Selection/Rejection Form

9 {18} Ullman signed an “Uninsured/Underinsured Motorist Coverage

10 Selection/Rejection Form” on November 12, 2011. This selection/rejection form at

11 the outset informs the insured of the following:

12 New Mexico [l]aw requires that all policies provide [UM/UIM] 13 Coverage of at least $25,000 per person, $50,000 per accident, and 14 [UM] Property Damages . . . limits of at least $10,000 unless you 15 specifically reject such coverage in writing. [UM] Coverage provides 16 that if you suffer bodily injury or sickness including death, resulting 17 from an accident with a person who does not carry liability insurance, 18 and that driver is at fault, you may make a claim against your own 19 insurance company for general and special damages. [UIM] Coverage 20 protects you from a driver who has insurance, but in an amount less than 21 your [UM] Coverage.

22 You have a right to purchase [UM/UIM] coverage in an amount up to 23 your policy’s liability limit, or you may reject the coverage entirely. The 24 limit may not exceed your liability coverage limits. If you make no 25 UM/UIM choices below, you will receive UM/UIM at the liability limits 26 shown on your policy declarations.

15 1 The selection/rejection form gave Ullman the opportunity to purchase UM/UIM

2 coverage at the bodily injury limits or to reject that coverage. The document has blank

3 spaces for selection of bodily injury limits in a certain coverage amount that correlate

4 with the available UM/UIM coverage option for a particular total premium cost per

5 vehicle. That is, immediately below the first two advisory provisions, the form has a

6 place for insertion of the bodily injury limits chosen by the insured, with an additional

7 location for insertion of the corresponding available UM/UIM coverage option

8 chosen for the policy, including the total premium cost per vehicle. The bodily injury

9 limit chosen by Ullman was shown to be $25,000/$50,000, and the available

10 UM/UIM coverage option was shown to be $25,000/$50,000 per person/per

11 occurrence, with a total premium cost for the UM/UIM available option of $52.00,

12 or $0.29 per day, per vehicle.

13 {19} Different, separate options then appear on the selection/rejection form in regard

14 to UM/UIM coverage for the insured to consider and choose by marking the choice

15 with an “X” on a blank line. Those options relating to each insured vehicle are:

16 I wish to purchase UM/UIM Coverage in the amount of $25,000/50,000.

17 ....

18 I wish to REJECT UM/UIM . . . Coverage[] entirely and understand that my 19 policy will not contain [this] Coverage[].

16 1 The first option set out above has no “X” placed in the blank spaces for her two

2 vehicles. Instead, an “X” appears for each of Ullman’s vehicles with respect to her

3 “wish to REJECT UM/UIM . . . Coverage[] entirely and understand[ing] that [her]

4 policy will not contain [that] Coverage[].”

5 {20} The selection/rejection form ends just before the signature line with the

6 following:

7 I understand and agree that selection of any of the options indicated 8 above shall apply on this policy and on all future renewals of such 9 policy, and on all endorsements because of a change in vehicle or 10 coverage, or because of an interruption of coverage. If I decide to select 11 another option at some future time, I must notify the Company in 12 writing.

13 MUST BE SIGNED. DO NOT SIGN UNTIL YOU HAVE READ 14 AND UNDERSTOOD YOUR SELECTIONS.

15 Ullman signed this completed form on November 12, 2011.

16 C. Declaration Page/Renewal Certificate

17 {21} A Declaration Page/Renewal Certificate form shows that it was processed on

18 November 12, 2011. This declaration page has a location to show the insured’s bodily

19 injury limits and premiums for each insured vehicle, as well as spacing for the

20 insured’s limits and premiums for UM coverage if that coverage were selected for

21 either vehicle. The form also tells the insured to “[k]eep [the form] in your car at all

22 times as proof of your insurance.” The declaration page shows “rejected” under UM

17 1 bodily injury coverage. This information is preceded by the statement, “Coverage is

2 provided where a Limit of Liability and a Premium are indicated.” The form states

3 that “THE ENTIRE POLICY CONTRACT INCLUDES THIS DOCUMENT, THE

4 APPLICATION, THE POLICY AND ANY ENDORSEMENTS.”

5 D. Endorsement Page of Personal Automobile Insurance Policy

6 {22} The effective date of the Endorsement Page of Personal Automobile Insurance

7 Policy is shown as January 4, 2012. This endorsement page is virtually identical to

8 the declarations page. It states that it is “[a]ttached to and forming part of [the

9 Ullman] policy[.]” Different from the declarations page, the bodily injury premiums

10 are not shown, and nothing is shown in the UM bodily injury coverage for either

11 vehicle. The form also states that “THE ENTIRE POLICY CONTRACT INCLUDES

12 THIS DOCUMENT, THE APPLICATION, THE POLICY AND ANY

13 ENDORSEMENTS.”

14 E. New Mexico Automobile Policy

15 {23} The New Mexico Automobile Policy indicates that it is an April 1, 2009 form.

16 The policy states that its provisions “WITH THE APPLICATION, DECLARATIONS

17 PAGE AND ENDORSEMENTS, IF ANY, ISSUED TO FORM A PART THEREOF,

18 COMPLETE THIS POLICY.” Under “INSURING AGREEMENT,” the policy states:

19 For the policyholder’s payment of premiums and fees in amounts we 20 require and subject to all of the terms and conditions of this policy, we

18 1 agree to provide the coverages the policyholder has selected. These 2 selections are shown in the enclosed Declarations, which are a part of 3 this policy contract. The selected coverages in this policy apply only to 4 occurrences while this policy is in force. Renewal premiums must be 5 paid in advance.

6 The policy has a section titled “UNINSURED MOTORISTS” that sets out the parties’

7 “Coverage Agreement.” Under “Limits and Conditions of Payment Amounts Payable

8 for Uninsured Motorists Losses,” the policy states, “Our obligation to pay Uninsured

9 Motorists—Bodily Injury losses is limited to the amounts per person and per

10 occurrence in the Declarations.”

11 V. THE AGENCY’S DOCUMENTS

12 A. Automobile Coverage Form

13 {24} An “Automobile Coverage Form” provides for bodily injury liability insurance

14 and UM/UIM insurance limits selected or not selected by the insured. This form

15 shows the liability limits choices of “BI–$25k/50k, $50k/100k, $100k/300k, Other”

16 and separately lists the same choices for UM limits. Liability limits designated

17 “BI–$25k/50k” is circled, and nothing is circled for UM limits. Ullman signed this

18 document on November 12, 2011.

19 1 B. Albuquerque Insurance World, Inc. “Dear Customer” Reminder

2 {25} An Albuquerque Insurance World, Inc. “Dear Customer” form instructs the

3 insured to “carefully” review the form, “ask questions on anything” the insured does

4 not “completely understand,” and then sign. The document states the following as two

5 of sixteen items the insured is to read: “3. IS THE COVERAGE WHAT YOU

6 ORDERED AND IN THE AMOUNTS YOU ORDERED?” and “4. IF YOU

7 REJECTED [UM] COVERAGE, ARE YOU CLEAR ON HOW THE COVERAGE

8 WOULD HAVE BENEFITED YOU? WE STRONGLY RECOMMEND THIS

9 COVERAGE.” Above the signature, the form states, “I HAVE READ EACH ITEM

10 ABOVE AND UNDERSTAND HOW EACH ONE AFFECTS ME. I AM ALSO

11 RECEIVING A COPY OF THIS FORM FOR MY RECORDS.” Ullman signed this

12 document on November 12, 2011.

13 C. “Dear Insured” Reminder

14 {26} A “Dear Insured” form tells the insured, among other things, that “It is

15 important that you obtain your policy in the mail and review it to be sure all drivers,

16 vehicles, and coverages that you desire to be included on your policy are included.

17 If you do not receive your policy please call us.” Ullman signed this document on

18 November 12, 2011.

20 1 VI. ULLMAN’S VIEWS

2 A. Contentions as to Genuine Issues of Material Fact

3 {27} Ullman contends in her answer brief that, in denying Safeway’s motion for

4 summary judgment, the district court did not decide whether the forms were legal but

5 instead denied the motion for summary judgment because of genuine issues of

6 material fact. She further states that a factual basis existed for a jury to find that

7 Safeway did not properly inform insureds about premium costs corresponding to

8 available levels of coverage, did not assess whether Safeway advised Ullman and

9 similarly situated insureds of the maximum UM/UIM coverage available, and did not

10 properly incorporate rejection of UM/UIM coverage into her policy. And she explains

11 that “a jury has not rendered any factual findings as to whether Safeway violated its

12 legal obligations to its insureds.” Ullman further points out that discovery should be

13 allowed to proceed in the district court as to what documents Ullman received or did

14 not receive. And she raises the question whether rejection was called to the attention

15 of the insured, citing Arias v. Phoenix Indemnity Insurance Co., 2009-NMCA-100,

16 ¶ 13, 147 N.M. 14, 216 P.3d 264, which cites to Romero, 1990-NMSC-111, ¶ 8, as

17 having emphasized an insurer’s need to clearly and unambiguously call the rejection

18 to the insured’s attention.

21 1 B. Contentions as to UM/UIM Coverages

2 {28} In her answer brief, Ullman argues: (1) that Safeway’s policy had no language

3 advising her of the “full range of options in purchasing UM/UIM coverage and the

4 corresponding costs associated with each option”; (2) that Safeway’s “rejection form

5 and endorsements did not advise an insured of the extent or maximum amount of

6 UM/UIM coverage being offered, and did not advise of the costs corresponding to the

7 available coverages”; (3) that Safeway’s “purported rejection was not attached,

8 endorsed, stamped or otherwise made a part of the policy, as required by law, where

9 the endorsement does not advise the insured that UM/UIM coverage has been

10 rejected”; (4) that Ullman’s purported rejection was not incorporated into her policy

11 “in a manner that called attention to the fact that she was not receiving the benefits

12 of UM/UIM coverage”; (5) that no evidence was provided to Ullman of a “rejection

13 by endorsement, attachment, or some other means that calls the insured’s attention to

14 the fact that UM/UIM coverage has been waived”; and (6) that Safeway’s

15 endorsement page and policy booklet, which consisted of the “limited information . . .

16 provided to . . . Ullman, . . . say[] nothing as to whether . . . Ullman was offered or

17 rejected any UM/UIM coverage.”

22 1 C. Contentions as to Stacking

2 {29} Ullman contends in her answer brief that Safeway’s “policy language provided

3 [her] with no meaningful explanation that in purchasing liability coverage she was

4 entitled to purchase stacked (or aggregated) coverage[,]” and “[t]o the contrary, and

5 contrary to New Mexico law, [Safeway’s] policy specifically advises insureds that

6 stacking of UM/UIM coverage is never available regardless of the number of vehicles

7 insured.” She argues that, under Montano, insurers cannot exclude stacked UM/UIM

8 coverage from a policy unless the insurer obtains a written waiver/rejection of

9 stacking.

10 {30} Ullman states that the New Mexico-specific application Safeway provides to

11 its insureds states that if the insured selected UM/UIM coverage “there will be no

12 stacking or combining of coverage afforded to more than one auto under [the]

13 policy[,]” specifically quoting a form that does not appear to be one that was used in

14 Ullman’s purchase. Ullman further states that the policy booklet misrepresents

15 stacked coverage by asserting that stacked UM/UIM coverage is never available on

16 a multi-vehicle policy.

17 {31} Ullman argues that Safeway “exacerbates” the stacking-related deficiency by

18 its general failure “to provide any information regarding the maximum amount of

19 UM/UIM coverage available on the two vehicles under her policy.” She spends a

23 1 significant part of her answer brief discussing stacking, as though it is her primary

2 contention.

3 VII. SAFEWAY’S VIEWS

4 {32} In showing that its documentation complies with New Mexico law, Safeway

5 takes pains to set out what each document states. Having set out earlier in this opinion

6 what the relevant documents show and state, we see no reason to further discuss

7 Safeway’s descriptions. Stacking, however, needs to be discussed.

8 {33} Safeway asserts that Montano “plainly did not declare anti-stacking language

9 illegal, let alone even suggest that insureds have a right to stack coverages in every

10 circumstance.” See Rodriguez v. Windsor Ins. Co., 1994-NMSC-075, ¶ 21, 118 N.M.

11 127, 879 P.2d 759 (“We do not declare that it is impossible for an insurance company

12 to issue [UM] coverage that is immune to stacking.”), modified on other grounds by

13 Montano, 2004-NMSC-020, ¶ 1. Safeway states that there exists “no requirement to

14 explain stacking law, much less advise the insured of a per se entitlement to stack

15 separate coverages in every circumstance.” Safeway adds the following:

16 Jordan adopted Montano’s “menu” in its requirements for 17 offering and obtaining waivers of UM coverage. [Jordan,] 2010-NMSC- 18 051, ¶ 24. But it required no more than that the insurer declare each 19 level of statutorily available UM coverage and corresponding premium. 20 Id. ¶ 2 (requiring “a rejection of UM/UIM coverage equal to the liability 21 limits” and that “insurers must provide the insured with the premium 22 charges corresponding to each available option for UM/UIM coverage 23 so that the insured can make a knowing and intelligent decision to

24 1 receive or reject the full amount of coverage to which the insured is 2 statutorily entitled”); id. ¶ 20 (stating “workable requirements for a valid 3 and meaningful rejection of UM/UIM coverage in amounts authorized 4 by statute”); id. ¶ 21 (“[A]n insurer must inform the insured that he or 5 she is entitled to purchase UM/UIM coverage in an amount equal to the 6 policy’s liability limits and must also provide the corresponding 7 premium charge for that maximum amount of UM/UIM coverage”); id.[] 8 ¶ 22 (“[I]nsurers have statutory obligations to offer UM/UIM coverage 9 up to the liability limits of the policy”); id. ¶¶ 25, 30; see Progressive, 10 2010-NMSC-050, ¶¶ 8, 14-15.

11 {34} Safeway finds support in holdings in the United States District Court for the

12 District of New Mexico and the Tenth Circuit Court of Appeals rejecting the

13 argument such as that made by Ullman “that a rejection of UM coverage is invalid

14 under New Mexico law unless the rejection form contains an explanation of stacking

15 and a calculation of total coverage amounts if statutorily available UM coverage

16 levels were stacked.” See Jaramillo v. Gov’t Emps. Ins. Co., No. 12-2108, 573 F.

17 App’x 733 (10th Cir. 2014) (non-precedential).2

18 {35} Safeway points out that the Jaramillo complaint was filed as a putative class

19 action, with allegations substantially similar to those made here. See id. at 737. The

20 insurers moved for summary judgment, arguing that the insureds’ written rejection

21 of UM/UIM coverage complied with New Mexico law, and because all of the claims

22 “stemmed from an allegedly improper denial of UM/UIM benefits, the complaint was

2 23 “Unpublished decisions are not precedential, but may be cited for their 24 persuasive value.” 10th Cir. R. 32.1(A); Fed. R. App. P. 32.1.

25 1 not viable.” Id. (emphasis omitted). The district court granted the insurers’ motion.

2 Id. The court determined that the rejection form “clearly offered the opportunity to

3 select UM/UIM coverage in an amount equal to or lower than those selected bodily

4 injury liability limits while also providing premium costs corresponding to each level

5 of coverage” and that the insurers had incorporated the rejection into the policy. Id.

6 (internal quotation marks and citation omitted). In denying the insureds’ motion to

7 reconsider, the district court reaffirmed its view that the insurers’ form complied with

8 New Mexico law as articulated in Jordan. Jaramillo, 573 F. App’x at 737-38.

9 {36} The plaintiffs argued on appeal to the Tenth Circuit Court of Appeals that the

10 insurers’ “offer of UM/UIM coverage was invalid for failure to make clear the

11 amount of stacked UM/UIM coverage available . . . or the corresponding cost of such

12 coverage.” Id. at 739 (omission in original) (internal quotation marks omitted). The

13 Tenth Circuit saw this argument as dovetailing into the question “whether the district

14 court erred in holding that under New Mexico law, an insurer is not required to

15 inform the insured about premium costs corresponding to each available level of

16 stacked UM/UIM coverage.” Id. (alteration, internal quotations marks, and citation

17 omitted). Addressing whether the insurance form was “invalid as a matter of law

18 because it lacks a discussion or explanation of stacked UM/UIM coverage[,]” the

26 1 Tenth Circuit affirmed the district court’s conclusion that the form and coverage

2 rejection satisfied New Mexico law. Id.

3 {37} Further, the Tenth Circuit rejected the insureds’ argument that the insurers’

4 “Option Form” was invalid “because it does not flesh out the nuances of stacked

5 UM/UIM coverage” as a “strained reading” of Jordan and Montano, neither of which

6 required that UM/UIM rejection forms must explain stacking. Jaramillo, 573 F.

7 App’x at 741-42, n.7. Jaramillo explained that Montano’s “core holding” was that

8 “ ‘an insurance company should obtain written rejections of stacking in order to limit

9 its liability based on an anti-stacking provision’ in a policy.” Jaramillo, 573 F. App’x

10 at 742 (quoting Montano, 2004-NMSC-020, ¶ 19). And Jaramillo stated that Jordan

11 “did not comment on the question of stacking, and it did not explicitly forge a nexus

12 between the new standard that it announced and the concept of stacking.” Jaramillo,

13 573 F. App’x at 743. Thus, rejecting the insureds’ treatment of “maximum amount of

14 coverage” and “maximum stacked amount of coverage” as “fungible concepts,”

15 Jaramillo explained that “Jordan makes clear that the ‘maximum amount’

16 contemplated is simply an amount equal to the policy’s liability limits,” and the court

17 declined “to graft the crucial word ‘stacked’ onto its holding.” Jaramillo, 573 F.

18 App’x at 744 n.9 (citing Jordan, 2010-NMSC-051, ¶ 21).

27 1 {38} Jaramillo further explained that Jordan required insurers to provide only the

2 “ ‘premium charge for the maximum amount of UM/UIM coverage’ (the maximum

3 amount being ‘an amount equal to the policy’s liability limits’) as well as the

4 ‘premium cost for the minimum amount of UM/UIM coverage allowed by Section 66-

5 5-301(A),’ and ‘the relative costs for any other levels of UM/UIM coverage offered

6 to the insured’—viz., the costs for a range of coverage between the minimum and

7 maximum amounts.” Jaramillo, 573 F. App’x at 744 (alteration and footnote omitted)

8 (quoting Jordan, 2010-NMSC-051, ¶ 21). Jaramillo concluded that “Montano does

9 not stand for the proposition that the Option Form could only have been valid under

10 New Mexico law if it had specifically mentioned the concept and effect of stacking

11 coverage[,]” and further that “Jordan does not mandate—either explicitly or

12 implicitly—that a rejection of UM/UIM coverage equal to a policy’s liability limits

13 is invalid without a ‘discussion’ or ‘explanation’ of stacking principles.” Jaramillo,

14 573 F. App’x at 746-47. Jaramillo also concluded that the insureds’ “rejection of

15 UM/UIM insurance could not have been invalid under New Mexico law simply

16 because the Option Form did not tally up the stacked coverage amounts for the

17 [insureds’] four vehicles—in other words, because it did not multiply each available

18 level of coverage by four.” Id. at 748.

28 1 VIII. SETTING UM/UIM REQUIREMENTS AGAINST THE DOCUMENTS

2 {39} This discussion sets the New Mexico legal requirements relating to UM/UIM

3 coverage and rejection against Safeway’s documents.

4 A. Requirements: An Insurer Must Inform Its Insured That the Insured Is 5 Entitled to Purchase the Maximum Amount of UM/UIM Coverage 6 Statutorily Available; An Insurer Must Meaningfully Offer Its Insured the 7 Same

8 {40} In Progressive, our Supreme Court required that insurers: (1) “ ‘meaningfully

9 offer’ the maximum amount of UM/UIM coverage permitted by the statute, e.g., the

10 liability limits of the policy”; (2) offer UM/UIM coverage that includes “the

11 maximum amount statutorily available . . . [in an amount equal] to the liability limits

12 of the policy”; and (3) after such an offer is made, the insured’s choice “to purchase

13 any lower amount functions as a rejection of that maximum amount of coverage

14 statutorily possible.” 2010-NMSC-050, ¶¶ 8, 14-15.

15 {41} Further, Jordan’s prescribed “workable requirements” set out earlier in this

16 opinion are to be repeated, with emphasis on particular language. See 2010-NMSC-

17 051, ¶ 20.

18 When issuing an insurance policy, an insurer must inform the 19 insured that he or she is entitled to purchase UM/UIM coverage in an 20 amount equal to the policy’s liability limits and must also provide the 21 corresponding premium charge for that maximum amount of UM/UIM 22 coverage. The premium cost for the minimum amount of UM/UIM 23 coverage allowed by Section 66-5-301(A) must also be provided, as well 24 as the relative costs for any other levels of UM/UIM coverage offered

29 1 to the insured. The insured must be informed that he or she has a right 2 to reject UM/UIM coverage altogether. Providing the insured with a 3 menu of coverage options and corresponding premium costs will enable 4 the insured to make an informed decision about the level of UM/UIM 5 coverage he or she wants to purchase and can afford and will minimize 6 uncertainty and litigation with regard to the coverage that the insured 7 has obtained.

8 Id. ¶ 21 (emphasis added).

9 {42} Ullman interprets “maximum amount” in stacking terms, that is, Ullman argues

10 that Safeway “exacerbates” the stacking-related deficiency by its general failure to

11 provide meaningful information “regarding the maximum amount of UM/UIM

12 coverage available on the two vehicles under her policy.” Ullman complains that she

13 is unable to “understand that if she chooses UM/UIM coverage in the amount of

14 $25,000 per person and $50,000 per accident on each of her two vehicles[,]” under

15 stacking, she would have “$50,000 per person and $100,000 per accident in available

16 UM/UIM coverage.” We reject Ullman’s interpretation as not in accord with Jordan’s

17 prescription.

18 {43} We agree with the analysis in Jaramillo that “Jordan makes clear that the

19 maximum amount contemplated is simply an amount equal to the policy’s liability

20 limits.” Jaramillo, 573 F. App’x at 744 n.9 (internal quotation marks omitted) (citing

21 Jordan, 2010-NMSC-051, ¶ 21). Further, we agree with Jaramillo that Jordan

22 requires insurers to provide only the “ ‘premium charge of the maximum amount of

30 1 UM/UIM coverage’ (the maximum amount being ‘an amount equal to the policy’s

2 liability limits’)”; “the ‘premium cost for the minimum amount of UM/UIM coverage

3 allowed by Section 66-5-301(A)’ ”; and “ ‘the relative costs for any other levels of

4 UM/UIM coverage offered to the insured’—viz., the costs for a range of coverage

5 between the minimum and maximum amounts.” Jaramillo, 573 F. App’x at 744

6 (footnote omitted) (quoting Jordan, 2010-NMSC-051, ¶ 21). As highlighted by

7 Safeway, Ullman misreads Jaramillo’s (and thus Jordan’s) wording of “that

8 maximum amount” by stating “the maximum amount.” “[T]hat maximum amount”

9 plainly refers to “UM/UIM coverage in an amount equal to the policy’s liability

10 limits[.]” Jordan, 2010-NMSC-051, ¶ 21; see Jaramillo, 573 F. App’x at 744 & n.9.

11 As in Jaramillo, we will not graft stacking onto our view of Jordan.

12 {44} After setting out the New Mexico requirement that insurers offer UM/UIM

13 coverage, the selection/rejection form explains to the insured: “You have a right to

14 purchase [UM/UIM] coverage in an amount up to your policy’s liability limit, or you

15 may reject the coverage entirely. The limit may not exceed your liability coverage

16 limits. If you make no UM/UIM choices below, you will receive UM/UIM at the

17 liability limits shown on your policy declarations.” The declaration page shows the

18 bodily injury limits Ullman chose and the premiums for those limits as to each

19 insured vehicle. It further shows that Ullman rejected UM coverage. We hold that

31 1 Safeway complied with the UM/UIM legal requirement as to maximum insurance.

2 Ullman was sufficiently made aware of the maximum amount statutorily available.

3 B. Requirements: An Insurer Must Inform Its Insured About the Premium 4 Costs Corresponding to All Available Levels of Coverage; An Insurer 5 Must Provide Its Insured With a Menu of Options and Corresponding 6 Premium Costs That Will Enable the Insured to Make an Informed 7 Decision About the Level of UM/UIM Coverage the Insured Wants to 8 Purchase and Can Afford

9 {45} The Safeway documents show that Ullman chose a $25,000/50,000 level of

10 bodily injury coverage, thereby limiting her to a $25,000/50,000 level of UM/UIM

11 coverage. Safeway was obligated to provide the premium cost for these levels of

12 coverage. See Jordan, 2010-NMSC-051, ¶¶ 21-22. The premium cost for the bodily

13 injury level of coverage appeared in the application and the declaration page. The

14 premium cost for the UM/UIM coverage appeared in the selection/rejection form. We

15 hold that Safeway was in compliance with the Jordan requirements.

16 {46} Although not briefed, in oral argument before this Court, Ullman argued that

17 the selection/rejection form was ambiguous with respect to the information in regard

18 to the UM/UIM premium cost. Ullman asserted that only by adding language to the

19 statement of the premium cost could the ambiguity be cleared up for legal adequacy.

20 Thus, Ullman argued that the statement would have to read: “Based on your Bodily

21 Injury Limit of: $25,000/50,000 the available UM/UIM Coverage option(s) for this

22 policy are: $25,000/50,000 (per person/per occurance [sic]) with a total premium cost

32 1 of $52.00, or $0.29 per day,” on each vehicle for which you have selected UM/UIM

2 coverage.

3 {47} Further, Ullman argued that, because there existed language in the standard

4 form policy that can be read to be an anti-stacking clause, an inconsistency or

5 ambiguity existed as to whether Ullman could receive the full benefit of the UM/UIM

6 offered in the selection/rejection form. We reject the contentions as a basis on which

7 to reform Safeway’s documents to require UM/UIM coverage and benefits.

8 C. Requirements: An Insurer Must Inform Its Insured of the Insured’s Right 9 to Reject the UM/UIM Coverage; An Insurer Must Obtain a Written 10 Rejection; The Act of Rejection Must Assure That the Insured Is 11 Sufficiently Informed of the Importance of the Decision, and There Is 12 Clear Evidence of a Decision to Reject

13 {48} The selection/rejection form states, “You have a right to purchase [UM/UIM]

14 coverage in an amount up to your policy’s liability limit, or you may reject the

15 coverage entirely. The limit may not exceed your liability coverage limits. If you

16 make no UM/UIM choices below, you will receive UM/UIM at the liability limits

17 shown on your policy declarations.” The selection/rejection form also contains

18 language that permits the insured to reject UM/UIM coverage. See Jordan, 2010-

19 NMSC-051, ¶ 21. That part states, “I wish to REJECT UM/UIM . . . Coverages

20 entirely and understand that my policy will not contain these Coverages” and contains

21 places in which an “X” is to be placed if the insured rejects coverages. Ullman’s

33 1 completed form contains an “X” for rejection of UM/UIM coverage for each vehicle.

2 See Jordan, 2010-NMSC-051, ¶ 22; Marckstadt, 2010-NMSC-001, ¶¶ 4, 21-26.

3 {49} Furthermore, the application and the declaration page show that Ullman

4 rejected the coverage. And the selection/rejection form contains other options that

5 show UM/UIM coverage that can be selected by the insured. The form states, “An ‘X’

6 indicates your current UM/UIM . . . selection(s).” The selection/rejection form

7 contains a place for the insured’s signature. Ullman signed the form, constituting a

8 written act of rejecting the UM/UIM coverage. See Jordan, 2010-NMSC-051, ¶ 22;

9 Marckstadt, 2010-NMSC-001, ¶ 21.

10 {50} Further, the selection/rejection form contains the bodily injury limits that the

11 insured has chosen and matches that with the available UM/UIM coverage along with

12 the “total premium cost . . . per vehicle.” Ullman’s form shows that, based on her

13 chosen limits of “$25,000/50,000 the available UM/UIM coverage option for this

14 policy” are “$25,000/50,000 (per person/per occurrence) with a total premium cost

15 of $52.00, or $0.29 per day, per vehicle.”

16 {51} In addition, the selection/rejection form contains at the outset the following

17 informational material for the insured:

18 New Mexico Law requires that all policies provide [UM/UIM] Coverage 19 of at least $25,000 per person, $50,000 per accident . . . unless you 20 specifically reject such coverage in writing. [UM] Coverage provides 21 that if you suffer bodily injury or sickness including death, resulting

34 1 from an accident with a person who does not carry liability insurance, 2 and that driver is at fault, you may make a claim against your own 3 insurance company for general and special damages. [UIM] Coverage 4 protects you from a driver who has insurance, but in an amount less than 5 your [UM] Coverage.

6 {52} As well, the application specifically evidences rejection of UM/UIM coverage.

7 Under Section 5 of this document, it states, “No coverage unless checked or premium

8 shown.” The document has space for bodily injury limits and premium, as well as

9 limits and premiums for UM coverage, for each insured vehicle. Ullman signed the

10 application. The form in Section 5 contains the bodily injury liability limits of

11 $25,000/50,000, and the premium amount for that coverage for each insured vehicle,

12 and shows “rejected” under the UM coverage for each. Above Ullman’s signature, the

13 application asks the insured to read certain matters set out in the application, two of

14 which read in part:

15 I understand that I have only coverages indicated in Section 5. All of the 16 coverages shown in Section 5 have been explained. I understand the 17 various coverages and that I have only those coverage [sic] which have 18 been completed. I have rejected all coverages not completed in Section 19 5. . . .

20 ....

21 I hereby acknowledge that I have received a completed copy of this 22 application, the [UM/UIM] Coverage Selection/Rejection form, the 23 policy, the declarations page and any endorsements, and I understand 24 the coverage selections that I have made. I further understand that the 25 entire policy contract includes this application, the policy, declarations 26 page and any endorsements.

35 1 We hold that Safeway was in compliance with the aforementioned requirements.

2 D. Requirement: The Written Rejection Must Be Made a Part of the Policy 3 By Endorsement on the Declarations Page; Attachment to the Policy or By 4 Some Other Means That Makes the Rejection a Part of the Policy so as to 5 Clearly and Unambiguously Call to the Attention of the Insured the Fact 6 That Such Coverage Has Been Waived

7 {53} The document constituting the act of rejection need not be made a part of the

8 policy, and it need not be attached to the policy. See Marckstadt, 2010-NMSC-001,

9 ¶ 4. The insurer must “incorporate [the] rejection into the policy in a way that affords

10 the insured a fair opportunity to reconsider the decision to reject[.]” Jordan, 2010-

11 NMSC-051, ¶ 22 (emphasis added); Romero, 1990-NMSC-111, ¶ 8.

12 {54} The application, under “Fraud Statement,” states above the signature line:

13 I hereby acknowledge that I have received a completed copy of this 14 application, the [UM/UIM] Coverage Selection/Rejection form, the 15 policy, the declarations page and any endorsements, and I understand 16 the coverage selections that I have made. I further understand that the 17 entire policy contract includes this application, the policy, declarations 18 page and any endorsements.

19 Ullman signed this document.

20 {55} The declaration page and the endorsement page each state “THE ENTIRE

21 POLICY CONTRACT INCLUDES THIS DOCUMENT, THE APPLICATION, THE

22 POLICY AND ANY ENDORSEMENTS.” The endorsement page, which is virtually

23 identical to the declaration page, states that it is “[a]ttached to and forming part of

24 [the Ullman] policy.” The policy states that its provisions “WITH THE

36 1 APPLICATION, DECLARATIONS PAGE AND ENDORSEMENTS, IF ANY,

2 ISSUED TO FORM A PART THEREOF, COMPLETE THIS POLICY.” We hold

3 that Safeway complied with the aforementioned requirement.

4 VIII. NO FACTUAL ISSUES EXIST

5 {56} The district court did not deny Safeway’s class summary judgment motion on

6 the basis of the existence of genuine issues of material fact. The court instead ruled

7 against Safeway on a controlling issue of law that the court certified to this

8 Court—whether Safeway’s uniform documentation complied with New Mexico law

9 in obtaining waivers of UM/UIM coverage, including stacked coverage. The court

10 determined that there existed a substantial ground for difference of opinion. Ullman’s

11 attempt to recharacterize issues of law into issues of fact fails on the merits and

12 cannot overcome the legal nature of our inquiry. Indeed, Ullman’s class definition

13 reflects her primary contention, and she pursued that contention in the district court.

14 Also noteworthy is Ullman’s statement in a document that she filed following this

15 Court’s grant of Safeway’s application for an interlocutory appeal in which Ullman

16 stated that the “critical determination” was “whether Safeway’s standard policy

17 documents and UM/UIM forms comply with New Mexico law,” and further, that

18 “[t]he fact-specific circumstances surrounding any particular rejection are

37 1 immaterial.” As well, in her answer brief, Ullman has not denied that she is seeking

2 relief on the ground that Safeway’s documents were legally inadequate.

3 IX. THE STATUS OF CLASS ACTION CERTIFICATION

4 {57} Safeway sought summary judgment seeking to dismiss the class action on the

5 ground that its uniform documents were valid and legal as to all class member-

6 insureds. The district court determined that “there [was] at least one issue common

7 to all persons affected dealing with the application of New Mexico law to the uniform

8 policy language Safeway uses in insurance contracts with New Mexico residents.”

9 Commonality can exist when alleged legal deficiencies in uniform documents are

10 common to the defined class. In considering predominance under Rule 1-023(B)(3)

11 NMRA, the district court stated:

12 Liability issues raised by this litigation are common to the class, and 13 these common questions predominate over individual questions. The 14 sole focus of the liability inquiry in this case is whether Safeway acted 15 in accordance with its obligations pursuant to New Mexico law 16 requiring insurers to obtain valid waivers of UM/UIM coverage, 17 including stacked coverage. This question predominates over any other 18 issue raised in this litigation. . . . All members of the class own standard 19 Safeway automobile insurance policies in which the operative language 20 is uniform.

21 {58} Thus, in certifying the class, the district court presumably determined that the

22 class was appropriate because the documents were the same or essentially the same

23 for all class-member insureds. Our determination in this appeal that the uniform

38 1 documents are legal and valid as a matter of law and in compliance with New Mexico

2 law would appear to constitute a determination common to and predominating the

3 class. Based on the foregoing, Safeway asks us to overturn the district court’s

4 certification of the class. We leave that issue for the district court on remand.

5 X. CONCLUSION

6 {59} We hold that Safeway’s forms complied with New Mexico law in all respects

7 as to what is required for a valid rejection of UM/UIM coverage, including stacking.

8 We reverse the district court’s determination to the contrary and remand to the district

9 court for whatever further proceedings may be required.

10 {60} IT IS SO ORDERED.

11 __________________________________ 12 JONATHAN B. SUTIN, Judge

13 WE CONCUR:

14 _______________________________ 15 JAMES J. WECHSLER, Judge

16 _______________________________ 17 J. MILES HANISEE, Judge