Timothy MARCKSTADT, Plaintiff-Petitioner, v. LOCKHEED MARTIN CORPORATION, Missiles & Fire Control, Mid-Century Insurance Company, and Pacific Employers Company, Insurance Company of Philadelphia, Pennsylvania, Defendants-Respondents. Federated Service Insurance Company, a Minnesota corporation, Plaintiff-Appellee, v. Danny Martinez, Defendant-Appellant.
Nos. 31,258, 31,447
Supreme Court of New Mexico
Nov. 19, 2009
2010-NMSC-001 | 228 P.3d 462
Law Office
Butt, Thornton & Baehr, P.C., Emily A. Franke, Albuquerque, NM, Stevens & Associates, J. Monty Stevens, El Paso, TX, Gant & Hicks, P.L.L.C., Craig C. Gant, Dallas, TX, for Respondents.
Peifer, Hanson & Mullins, P.A., Robert E. Hanson, Lauren Keefe, Albuquerque, NM, for Appellee and for Amicus Curiae Federated Service Insurance Company.
Janet Santillanes, P.C., Janet K. Santillanes, James T. Roach, Ewing & Ewing, P.C., Steven C. Ewing, Albuquerque, NM, for Appellant and for Amicus Curiae Danny Martinez.
OPINION
CHAVEZ, Chief Justice.
{1} In these consolidated cases, Appellants, employees who were injured on the job, sought uninsured or underinsured (UM/UIM) motorist benefits under their employers’ insurance policies, which were denied. They claim that because they were covered under their employers’ automobile liability policies and because their employers and their employers’ insurers failed to properly reject UM/UIM coverage, it should be read into their employers’ policies. Specifically, Appellants argue that in order to reject UM/UIM coverage in New Mexico, the insured must provide the insurer with a written, signed rejection, which must be attached to the insurance policy. Appellees, the insurers in both cases and one of the employers, contend that because there is no dispute that the employers intended to reject such coverage, and because this rejection was evidenced by endorsements to their policies, UM/UIM coverage was successfully rejected.
{2}
A. No motor vehicle or automobile liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person and for injury to or destruction of property of others arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in New Mexico with respect to any motor vehicle registered or principally garaged in New Mexico unless coverage is provided therein . . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, and for injury to or destruction of property resulting therefrom, according to the rules and regulations promulgated by, and under provisions filed with and approved by, the superintendent of insurance.
B. The uninsured motorist coverage described in Subsection A of this section shall include underinsured motorist coverage for persons protected by an insured‘s policy. . . .
C. . . . The named insured shall have the right to reject uninsured motorist coverage as described in Subsections A and B of this section[.]
The rejection of the provisions covering damage caused by an uninsured or unknown motor vehicle as required in writing by the provisions of
Section 66-5-301 NMSA 1978 must be endorsed, attached, stamped or otherwise made a part of the policy of bodily injury and property damage insurance.
{3} We consolidated these cases because they involve substantially similar issues. Gov‘t Employees Ins. Co. v. Welch, 2004-NMSC-014, ¶ 13, 135 N.M. 452, 90 P.3d 471. In Marckstadt v. Lockheed Martin Corp., the issue reaches us on appeal of the district court‘s grant of summary judgment in favor of Appellees. In Federated Service Insurance Co. v. Martinez, the question has been certified from the Tenth Circuit Court of Appeals.
{4} Answering the question certified in Federated, we hold that an insurer must obtain a written rejection of UM/UIM coverage from the insured in order to exclude it from an automobile liability insurance policy under
I. BACKGROUND
A. MARCKSTADT v. LOCKHEED MARTIN CORP.
{5} The facts of Marckstadt are not in dispute. Defendant-Appellee Lockheed Martin Corp. entered into an insurance policy with Defendant-Appellee Pacific Employers Insurance Co. that became effective on September 1, 1998. It appears undisputed that the policy included some liability coverage for Plaintiff-Appellant Timothy Marckstadt, a Lockheed employee. The policy also included an endorsement entitled “Limits of Liability—Uninsured Motorists” that featured a list of states and next to each, either an “X” indicating the rejection of UM/UIM coverage or a dollar figure reflecting the state‘s “minimum limits.” Next to New Mexico, the endorsement contained an “X” indicating rejection. Lockheed maintains that it intended to reject UM/UIM coverage, and Marckstadt does not appear to dispute this.
{6} However, the record is not clear regarding the circumstances resulting in the inclusion of this endorsement in the policy. There is no evidence of any discussions or correspondence in which Lockheed directed Pacific to exclude UM/UIM coverage from its policy. The record shows that before the policy went into effect, documents were provided to Lockheed “for [its] execution” that were subsequently returned to its underwriter post-execution. The record does not contain all of the documents that were “executed,” but it does include a copy of the relevant endorsement and several associated portions of the policy as they appeared when Lockheed returned them to its underwriter. From these documents alone, it is not clear exactly what Lockheed did to “execute” its policy: there is no signature on the endorsement, and from the record we cannot determine whether it was Lockheed, Pacific, or some other party who drafted or filled in the endorsement, for example, by indicating with an “X” that coverage in New Mexico was rejected. It was only after the accident giving rise to this case that Lockheed signed a rejection of UM/UIM coverage.1
{7} On November 25, 1998, after the policy was in effect, Plaintiff-Appellant Timothy Marckstadt was injured in an automobile accident through no fault of his own while acting within the scope and course of his employment by Lockheed. Marckstadt received workers’ compensation benefits and was awarded $25,000 from Allstate, the insurer of the driver who hit him. He then brought this action, asking the district court to determine whether he was owed UIM benefits from his personal insurer, Farmers Insurance Group, or from his employer, Lockheed, or both. Marckstadt later amended his complaint to name Defendant Mid-Century Insurance Co. instead of Farmers and to include Pacific, Lockheed‘s insurance provider. Marckstadt‘s claims against Mid-Century were removed to arbitration and abated pending the determination of whether Lockheed was primarily responsible for UIM coverage. Lockheed and Pacific moved for summary judgment, claiming that because Lockheed‘s policy contained the endorsement reflecting Lockheed‘s intent to reject, UIM coverage had been rejected under
may not be the best written regulation I ever saw. But I think that “or otherwise made part of the policy,” I think that this matter—that Lockheed has done that. Even though they call it an endorsement. Even though there may be a question as to whether that endorsement should be signed, I think it‘s clear that they intended to reject it, and it is otherwise made a part of the policy.
The district court did not reach the question regarding the Texas workers’ compensation statute. The Court of Appeals affirmed, holding that the attached but unsigned endorsement satisfied the requirements of the insurance code and regulations, and that public policy did not mandate a contrary outcome. Marckstadt v. Lockheed Martin Corp., 2008-NMCA-138, ¶¶ 12, 23, 145 N.M. 90, 194 P.3d 121. Like the trial court, the Court of Appeals did not find support for Marckstadt in either the statute or the regulation. Id. ¶ 23. The Court opined that the regulation‘s purpose is to provide affirmative evidence to the insured of the rejection of coverage. Id. ¶ 12. Since the regulation allowed many methods of providing such evidence, and since there was no signature requirement on its face, the Court could find no evidence that a signature was required. Id. ¶¶ 15-23. In addition, the Court could not discern any policy reason to require a signature where “the insured maintains that he or she never doubted whether UM coverage had been rejected.” Id. ¶ 21.
{9} We granted certiorari to decide “[w]hether a rejection of uninsured motorist (UM) and/or underinsured motorist (UIM) coverage must be signed by the insured, in addition to being attached or otherwise made a part of the policy, before it constitutes a valid rejection under the provisions of
B. FEDERATED SERVICE INSURANCE CO. v. MARTINEZ
{10} The facts of Federated are also undisputed. Capitol Motor Co. first obtained an automobile insurance policy from Plaintiff-Appellee Federated Service Insurance Co. in 2001. Again, it appears undisputed that the policy provided some liability coverage for the injured employee in this case, Defendant-Appellant Danny Martinez. In the original policy, Capitol elected to receive UM/UIM coverage in the amount of $500,000 per accident for management employees and $60,000 per accident for non-management employees. In November of 2001, Denny Rommann, a Federated employee, executed a change to Capitol‘s policy that eliminated UM/UIM coverage for nonmanagement employees effective March 1, 2002. There was no written or signed rejection from Capitol leading to this change, but like Lockheed, it is uncontested that Capitol intended to reject coverage. Strangely, on March 29, 2002, Capitol‘s general manager, Mark Brandt, signed and returned a document to Federated that selected UM/UIM coverage in the amount of $60,000 per accident for non-management employees. Nevertheless, as of March 1, 2002, Capitol‘s premium for UM/UIM coverage for its non-management employees was returned. Subsequent renewed policies included endorsements rejecting UM/UIM coverage, none of which were signed by Capitol. The renewed policy that was in effect on May 11, 2005, included such an endorsement.
{11} On May 11, 2005, Martinez was struck by a car while working at Capitol as a non-management employee. He requested UM benefits from Federated, leading Federated to bring an action in federal court under diversity jurisdiction seeking a declaratory judgment that Martinez was not entitled to any benefits under its policy with Capitol. Martinez answered, seeking a declaratory judgment that Capitol‘s rejection was “contrary to insurance policy and therefore . . . invalid” and seeking damages for personal injury, breach of contract, bad faith violations of New Mexico‘s Insurance Code and Unfair Practices Act, and negligence.
there does not appear to be any requirement under New Mexico law that a rejection of UM/UIM coverage takes any particular form, e.g., a document with a box that must be checked to decline coverage. . . . So long as some means of making the rejection a part of the policy is employed “to clearly and unambiguously call to the attention of the insured the fact that such coverage has been waived,” the requirements of New Mexico law are satisfied.
Federated Serv. Ins. Co. v. Martinez, No. 06-638, slip op. at 8 (D.N.M. Aug. 31, 2007) (quoting Romero v. Dairyland Ins. Co., 111 N.M. 154, 156, 803 P.2d 243, 245 (1990)). The district court found this to be particularly the case in the context of a corporate policy when there was evidence that the insured party was fully aware of its right to have UM/UIM coverage. The district court‘s partial summary judgment was certified as a final judgment and appealed to the Tenth Circuit Court of Appeals, where Martinez asked the Court to hold as a matter of law that UM/UIM coverage had not been properly rejected because there was not a written rejection provided by the insured and attached to the policy. The Tenth Circuit requested certification to this Court of the question of whether, “[f]or a valid rejection of UM/UIM coverage under New Mexico law, must that rejection be written, signed by the insured, and attached to the policy?” We accepted certification.
II. DISCUSSION
{13} In these cases, the Court is asked to determine what is required under
{14} When deciding a statute‘s meaning, “[o]ur goal . . . is to determine and give effect to legislative intent. We do not depart from the plain language of a statute unless we must resolve an ambiguity, correct a mistake or absurdity, or deal with a conflict between different statutory provisions.” N.M. Bd. of Veterinary Med. v. Riegger, 2007-NMSC-044, ¶ 11, 142 N.M. 248, 164 P.3d 947 (citation omitted). However, in light of the purpose of New Mexico‘s UM/UIM statute to expand coverage to protect members of the public against uninsured motorists, “[t]he statute is interpreted liberally to implement that remedial purpose, and any exception will be strictly construed.” Kaiser v. DeCarrera, 1996-NMSC-050, ¶ 7, 122 N.M. 221, 923 P.2d 588 (citation omitted). Finally, although our task today also involves the interpretation of a regulation, the same principles apply. Alliance Health of Santa Teresa, Inc. v. Nat‘l Presto Indus., Inc., 2007-NMCA-157, ¶ 18, 143 N.M. 133, 173 P.3d 55 (“In interpreting sections of the Administrative Code, we apply the same rules as used in statutory interpretation.” (citation omitted)).
A. 13.12.3.9 NMAC REQUIRES AN INSURED TO REJECT UM/UIM COVERAGE IN WRITING
{15}
{16}
{17} In contrast, we believe that a written rejection requirement can unambiguously be found in
The rejection of the provisions covering damage caused by an uninsured or unknown motor vehicle as required in writing by the provisions of
Section 66-5-301 NMSA 1978 must be endorsed, attached, stamped or otherwise made a part of the policy of bodily injury and property damage insurance.
{18} Unless the rejection requirements of
{19} Cases applying
The rejection must be made a part of the policy by endorsement on the declarations sheet, by attachment of the written rejection to the policy, or by some other means that makes the rejection a part of the policy so as to clearly and unambiguously call to the attention of the insured the fact that such coverage has been waived.
Id. at 156, 803 P.2d at 245. We reasoned that strict compliance was required under the insurance regulations, and that, in any case, this outcome furthered the policy of giving the insured “affirmative evidence of the extent of coverage” to enable him or her to make informed choices about coverage. Id. A similar conclusion was reached in Kaiser, in which this Court held that UM/UIM coverage had not been effectively rejected, despite the insurance company‘s receipt of a signed waiver from the insured, because the policy contained no evidence of the rejection, even though the insurance company had made unsuccessful efforts to mail an updated declarations page to the insured. 1996-NMSC-050, ¶¶ 1-4, 17, 122 N.M. 221, 923 P.2d 588.
{20} We disagree with Appellees that placing evidence of the rejection in the policy is the only requirement to be found in the regulation.
{21} To create such a requirement was certainly within the authority delegated to the superintendent of insurance under
{22} Appellees suggest that “in writing” merely applies to the subsequent portion of the regulation such that only the endorsement, attachment, stamp, or other means of making the rejection part of the policy must be in writing, and not the insured‘s rejection of UM/UIM coverage itself. We disagree. First, Appellees’ construction of the “in writing” provision would reduce that language to a redundancy. Obviously, whatever is attached, endorsed, stamped, or otherwise made part of the policy, providing evidence of the decision to reject, must be in writing, because policies are written instruments. We hesitate to read the regulation to render certain terms extraneous. See T.W.I.W., Inc. v. Rhudy, 96 N.M. 354, 357, 630 P.2d 753, 756 (1981) (“[Regulations] must be construed so that no part of the [regulation] is rendered surplusage, if possible.“). Second, we believe Appellees’ reading contradicts the regulation‘s plain language. The regulation states that the rejection of UM/UIM coverage as required by the statute must be in writing. However, the statute does not speak to the necessity of endorsing, attaching, or otherwise making the rejection part of the policy. This requirement is found only in the regulation. As a result, the rejection which the regulation requires to be in writing must be the act of rejection described in the statute and not the evidence of that act mandated by the regulation itself.
{23} We note that although no New Mexico case has directly decided the question of whether an insured must reject UM/UIM coverage in writing, other cases that have found occasion to comment on it have also concluded that the insured must provide a written rejection before UM/UIM coverage can be excluded from an automobile liability policy. See, e.g., Montano, 2004-NMSC-020, ¶ 19, 135 N.M. 681, 92 P.3d 1255 (basing its requirement of a written waiver of stacking in part on its observation that the New Mexico‘s UM/UIM statute and regulations “[have] been interpreted as requiring an insured to reject UM coverage in writing” (citation omitted)); Kaiser, 1996-NMSC-050, ¶ 8, 122 N.M. 221, 923 P.2d 588 (“Even though an insured may sign a rejection notice of UM/UIM coverage, that alone is not enough. The rejection notice must also be endorsed, attached, stamped or otherwise made a part of the policy to be effective.” (internal quotation marks and citation omitted) (emphasis added)); Romero, 111 N.M. at 156, 803 P.2d at 245 (“The rejection must be made a part of the policy by endorsement on the declarations sheet, by attachment of the written rejection to the policy, or by some other means that makes the rejection a part of the policy so as to clearly and unambiguously call to the attention of the insured the fact that such coverage has been waived.” (emphasis added)). Following this long-held understanding, we hold that
B. THE INSURED‘S WRITTEN REJECTION NEED NOT BE SIGNED TO BE EFFECTIVE
{24} We next consider whether, as Appellants suggest, the written rejection must be signed by the insured. We conclude that a signature is not required. First, unlike the writing requirement, neither the statute nor the regulation includes any explicit mention of signature. As Appellees point out, the Legislature has explicitly required signatures in related contexts where it desires them. See, e.g.,
C. THE INSURED‘S WRITTEN OBJECTION DOES NOT NEED TO BE ATTACHED TO THE POLICY
{25} We also disagree with Appellants’ contention that the written rejection itself must be attached to the policy in order for rejection to be effective. It is correct that the automobile liability policy must contain some evidence of the insured‘s rejection in order to satisfy
{26} To summarize, we hold that in order to exclude UM/UIM coverage from an automobile liability policy pursuant to
D. OUR HOLDING APPLIES TO THIS CASE
{27} Appellees suggest that even if this is our holding, the circumstances of the cases at bar should lead us to draw exceptions for three reasons. First, Appellees argue that because the insurers and the insureds agree that the insureds intended to reject UM/UIM coverage, the employees, as third-party beneficiaries, should not be permitted to seek to modify the terms of their agreement. Appellees point to Jaramillo v. Providence Washington Insurance Co., in which we wrote that “[i]n cases in which the question is whether a third-party beneficiary is entitled to coverage, if the premium-paying insured and the
{28} The case before us is distinguishable from Jaramillo. Here, there is no dispute that Appellants were the intended beneficiaries of liability coverage under their employers’ policies. The only dispute is whether this coverage included UM/UIM coverage. Unlike the availability of policy stacking in Jaramillo, the question of the presence of UM/UIM coverage under an automobile liability policy is not a question of intent.
{29} In a second argument for an exception from our holding, Appellees contend that Lockheed and Capitol, as sophisticated commercial parties, should not be held to the same standards as individual policyholders. We cannot draw such a distinction here. Appellees contend that Rehders v. Allstate Ins. Co., 2006-NMCA-058, 139 N.M. 536, 135 P.3d 237 stands for the proposition that New Mexico courts apply a different, more stringent standard in cases involving commercial policies. We need not determine whether Rehders stands for such a broad proposition here because it is wholly inapplicable to the issue before us. In Rehders, the Court of Appeals construed a corporate policy to determine whether the son of the sole shareholders of the named insured corporation was a class-one insured. Id. ¶¶ 1, 15-18. Here, we are not at all concerned with interpreting language in the relevant policies. Rather, we are concerned with legislative intent and must construe {30} Finally, Appellees argue that even if our holding does apply to situations such as the case at bar, it should be applied {31} We do not believe that Montano‘s reasoning applies here. Generally speaking, there is a presumption that the holding of a civil case will apply retroactively. Beavers v. Johnson Controls World Servs., Inc., 118 N.M. 391, 398, 881 P.2d 1376, 1383 (1994). We are empowered to limit a holding to prospective application depending on the weight of the following factors: First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that we must weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation. Finally, we have weighed the inequity imposed by retroactive application, for where a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity. Id. (internal quotation marks, citations, and alterations in original omitted). We do not believe that these factors weigh in favor of prospectivity. First, the holding we announce today is not clearly a new rule: it does not supplant any prior rule, and although it is an issue of first impression, we believe that as a matter of statutory and regulatory interpretation drawing on explicit language in the relevant provisions, the parties could have foreseen this result. Indeed, although it is not a matter of record how common the practice already may be, we have observed that even in Marckstadt, Pacific did obtain a written, signed waiver from Lockheed—although it was too late to affect its coverage of Marckstadt. We also noted in footnote 2 that, at least since 1990, insurance companies have not only obtained written rejections, they have obtained signed, written rejections, which suggests either that the superintendent of insurance codified an existing practice or insurance companies understood perfectly that written rejections are required in New Mexico. Of course, even if the outcome of our decision was difficult to foresee, there could not have been any reliance on a different rule, since none had been announced by a New Mexico court in any other case. See id. at 399, 881 P.2d at 1384 (discussing reliance as a factor in determining the retroactive application of a new rule of law). Second, the purpose of the rule we recognize today is to promote the Legislature‘s remedial policy of expanding UM/UIM coverage by assuring that rejections are knowingly and intelligently made. See Romero, 111 N.M. at 156, 803 P.2d at 245. The Legislature and the superintendent of insurance intended their rules to take effect immediately, and we will not second-guess them. Third, we do not perceive any serious risk of inequity. There is no hardship in applying a foreseeable rule, and to the extent that our holding was difficult to anticipate, the hardship we cause to insurance companies seems equal to the hardship we would cause to many rightful beneficiaries of UM/UIM coverage should we apply our rule prospectively. See Padilla v. Wall Colmonoy Corp., 2006-NMCA-137, ¶ 22, 140 N.M. 630, 145 P.3d 110 (acknowledging that in determining the retroactive application of a decision that changes the law, the Court should evaluate the potential unfairness to the de- fendants, {32} Under {33} IT IS SO ORDERED. WE CONCUR: PATRICIO M. SERNA, PETRA JIMENEZ MAES and CHARLES W. DANIELS, Justices. RICHARD C. BOSSON, Justice, dissenting. BOSSON, Justice (dissenting). {34} The Tenth Circuit certified the following question to us: “For a valid rejection of UM/UIM coverage under New Mexico law, must that rejection be written, signed by the insured, and attached to the policy?” Plaintiffs have urged us to answer in the affirmative. In other words, the rejection would have to be in writing, signed by the insured, and physically attached to the policy. The majority opinion comes to a different conclusion with which I partially agree. Correctly, the rejection does not have to be signed by the insured or attached to the policy because nothing in the statute or the insurance regulation requires either. And no opinion from this Court has ever required a signature or an attachment. In fact, physical attachment is only one of several ways to make the rejection a part of the policy; the policy can just say “UM coverage rejected” without any attachment and that should take care of it. {35} Our only dispute now reduces to whether the rejection must not only be made a part of the written policy (with which we all agree), but also whether that rejection must appear in a prior writing that precedes the policy. The majority opinion now requires, for the very first time, two writings—a kind of belt and suspenders approach. First, the insured must indicate in writing (but not necessarily sign it) his or her decision to reject UM coverage, and then, independently, the policy must also state the fact of rejection. {36} In our two consolidated cases, of course, the decision to reject is quite clearly stated in the policy, and there is no dispute about this. This is not simply a case of the policy not including or not mentioning UM coverage or being otherwise vague; both policies affirmatively reject UM coverage for their employees just as the law allows. All agree on this record that such a choice represented a conscious decision by the employer—the insured party and the owner of the policy—to reject UM coverage for employees, however irresponsible that decision may have been. {37} What is not clear, however, is whether the insurer also issued a separate, initial document preceding the policy in which the employer first indicated its desire to reject. I suspect not, given that these employers are both commercial entities, likely accustomed to conducting their insurance business through agents, with advice of counsel, and in a less structured manner. The salient point, however, is that in both cases, the employer as insured stands behind its decision to reject coverage. Both insureds acknowledge their choice to reject UM coverage for their employees, a decision which each insured asks this Court to respect. {38} If freedom of contract means anything, it must be that—absent a statutory requirement of UM coverage—corporate employers like Lockheed and Capitol Motors are free to make a knowing, informed business decision about who not to insure and when not to insure them. They are free to choose. For as long as we have been a state, New Mexico has recognized the right of parties to contract as they see fit, especially in their business affairs. It is part of the common law we inherited, first from England, {39} Without much hyperbole, the freedom to contract is part of fundamental personal liberty. It cuts against that notion of liberty to be told that, although the law allows a company to reject UM insurance coverage for its employees and the company does so openly and knowingly, the courts are now going to countermand that business decision. It seems all the more offensive to interfere simply because of a lack of a second writing—one the company did not need, did not ask for, and still does not ask for today. It is a writing that would not have made any difference in the context of these two cases. The majority does not dispute the futility of such an exercise in these two cases, a futility which Judge Parker acknowledges—and on which he appropriately relies—in the Capitol Motors case. If ever there was a hypertechnicality, this seems like one. {40} The majority takes the position that the insured‘s intent is irrelevant; it boils down instead to the supposedly “clear” language of the statute and insurance regulation. The statute, of course, makes no mention of a writing; it only says the insured may reject UM coverage without any mention of the means of rejection—in writing, verbally, or I suppose by any other method. Curiously, the regulation says: “The rejection [of UM coverage] as required in writing by the provisions of {41} Our case law attempts to fill the gap left by such an awkwardly phrased regulation. Time after time, we have said that an initial rejection of UM coverage, even if signed by the insured, is not good enough; it must thereafter appear in, or be attached to, or “otherwise made a part of” the written policy. The insured must be given a second chance to reflect over a decision to reject UM coverage. See Romero v. Dairyland Ins. Co., 111 N.M. 154, 156, 803 P.2d 243, 245 (1990) (“Upon further reflection, consultation with other individuals, or after merely having an opportunity to review one‘s policy at home, an individual may well reconsider his or her rejection of uninsured motorist coverage.“). Fair enough. And since context is everything in the law, just who are we trying to protect with this construction? More to the point, who is the Insurance Superintendent trying to protect by affording the insured this second chance? Josie Romero comes immediately to mind. {42} Upon reading the Romero opinion, one cannot forget the plight of poor Josie Romero, a 59-year-old widow, purchasing insurance for the first time, who did not even have a driver‘s license. Although she had rejected UM coverage in writing, it was not made part of the policy, and she apparently had no independent understanding of what she had done. Correctly, the opinion makes reference to the need of insureds like Josie Romero who are “unsophisticated in business affairs,” those who need our help and the help of the Insurance Superintendent. Id. at 159, 803 P.2d at 248. I agree. It takes no great leap to conclude that {43} Justice Ransom‘s opinion in Romero makes clear that the requirement of a writing is not an end in itself but is designed to serve a remedial purpose: “so as to clearly and unambiguously call to the attention of the insured the fact that such coverage has been waived.” 111 N.M. at 156, 803 P.2d at 245. The purpose of the regulation is to protect those who are easily preyed upon like {44} Importantly, I do not read Justice Ransom to negate an insured‘s choice when the insured, like Lockheed and Capitol Motor, seek to enforce that choice, not overturn it. Most of the case law on which he relies simply requires one written rejection, usually the policy itself if the initial rejection was oral. What purpose, other than to set a trap for the unwary, would there be in requiring not one but two writings, “so as to clearly and unambiguously call to the attention of the insured,” when a corporate “insured” like Lockheed or Capitol Motor is fully aware of “the fact that such coverage has been waived?” {45} This is indeed the point of friction. Most of our UM jurisprudence interpreting this statute and the insurance regulation derives from people like Josie Romero who truly need the “belt and suspenders” approach. Implicit in our opinions is the plight of the individual insured trying to come to terms with indecipherable insurance jargon and policies as dense as any jungle. Even when faced with a knowledgeable insured, we allowed the insured to rescind a rejection that had never found its way into the written policy. Kaiser v. DeCarrera, 1996-NMSC-050, 122 N.M. 221, 923 P.2d 588. {46} We have never, however, forced UM coverage upon an insured who had rejected coverage initially, that rejection appeared in the policy, and the insured went to court to defend that rejection. None of our case law has ever applied the insurance regulation to businesses like Lockheed and Capitol Motors who made an informed choice, knew what they were doing, put that choice in the policy, and now seek to ratify not abandon that choice in this litigation. None of our case law has ever said that, even though the rejection is clearly “part of the policy” as the regulation requires, the courts will vitiate that choice because (1) it was not preceded by an additional writing never before required, and (2) an employee who was not a party to the insurance contract now claims rights under the contract that his employer has expressly disavowed. {47} The Legislature or the Insurance Superintendent could make employees mandatory third-party beneficiaries of their employers’ insurance contracts. Employees could be given a place at the table when their employers negotiate insurance coverage to benefit the company. Labor unions might negotiate for such access to protect their rank and file. All this is possible, and perhaps desirable, but completely missing from this case. The Legislature or the Insurance Superintendent, not this Court, should make that decision. {48} When the employer knowingly decides not to purchase UM coverage for its employees, this Court has respected that choice. In Lucero v. New Mexico Public School Insurance Authority, 119 N.M. 465, 465, 892 P.2d 598, 598 (1995), a school employee driving a vehicle owned and insured by the school district was injured by an uninsured driver. She sued for uninsured motorist coverage from the school district. The school district, as the insured, had excluded employees from the policy‘s UM coverage, though it is not clear from the opinion whether that rejection was in a separate writing or verbally. It did not seem to make any difference to this Court. {49} Recognizing that the named insured—the employer—had the right under New Mexico law to reject UM coverage, including for its employees, this Court affirmed that choice, noting that both the insured (the school district) and the insurer agreed (shared the intent) that employees were not included within the policy‘s UM coverage. Justice Franchini wrote (Justices Frost and Minzner concurring) that, “When both the insurance company and the named insured agreed as to the identity of the thirdparty beneficiaries [employees] of an insurance contract purchased by the named insured, the court will enforce that interpretation of the contract.” Id. at 466, 892 P.2d at 599. Archunde v. International Surplus Lines Insurance Company, 120 N.M. 724, 729, 905 P.2d 1128, 1133 (Ct.App.1995), although factually more complex, came to a similar conclusion in which the named in- sureds, {50} In short, I would respect the clear, unambiguous, and uncontradicted intent of all parties to these insurance contracts to do as the law allows, and omit UM coverage for their employees. Even if I could be persuaded differently, I would still opt not to apply this opinion to the two employers before us. It seems unfair to do so in this instance. I cannot agree that this opinion was “foreseeable” to anyone who read our prior cases. Lockheed, in particular, appears to have done its homework and should not be faulted for relying on case law that emphasized inclusion of the rejection in the written policy, not in a second, separate writing. It is easy enough to say now that two writings have always been required. Suffice it to say that in these two consolidated cases alone, both district judges and a unanimous panel of the New Mexico Court of Appeals thought otherwise. I would give both Lockheed and Capitol Motors the benefit of considerable doubt as to any such requirement and apply our holding prospectively only.
III. CONCLUSION