Progressive Nw. Ins. Co. v. Weed Warrior Servs.Progressive Nw. Ins. Co. v. Weed Warrior Servs.
Released for publication December 14, 2010
COUNSEL
George Wright Weeth, Albuquerque, NM, for Appellants
Simone, Roberts & Weiss, P.A., Meena H. Allen, Albuquerque, NM, for Appellee
Modrall, Sperling, Roehl, Harris & Sisk, P.A., Lisa Mann, Jennifer Noya, Albuquerque, NM, for Amici Curiae American Insurance Association and Property Casualty Insurers Association of America
JUDGES
PATRICIO M. SERNA, Justice. WE CONCUR: CHARLES W. DANIELS, Chief Justice, PETRA JIMENEZ MAES, Justice, RICHARD C. BOSSON, Justice, EDWARD L. CHÁVEZ, Justice
AUTHOR: PATRICIO M. SERNA
SERNA, Justice.
{1} In this case we consider the duty imposed on insurers to offer uninsured/underinsured motorist (UM/UIM) coverage under
FACTUAL AND PROCEDURAL BACKGROUND
{2} Brenda Etcheverry was injured in a car accident and settled her claim against the tortfeasor for his policy limits of $100,000. Progressive Nw. Ins. Co. v. Weed Warrior Servs., 588 F. Supp. 2d 1281, 1282 (D.N.M. 2008). Mrs. Etcheverry filed a claim with Progressive Northwestern Insurance Company (Progressive), with whom her husband‘s company, Weed Warrior Services, insured their vehicles. Id. The Progressive policy included liability limits of $1,000,000 and UM/UIM coverage of $100,000 for each accident. Id. The United States District Court for the District of New Mexico entered a declaratory judgment in favor of Progressive, because the amount of UM/UIM coverage available under the Progressive policy was offset by the settlement with the tortfeasor. Id. Mrs. Etcheverry was permitted to amend her complaint and argued that the Progressive policy should be reformed to provide UM/UIM coverage equal to the liability limits of $1,000,000, rather than $100,000, because the purchase of UM/UIM coverage at an amount lower than the liability limits was not evidenced with a written rejection. Id. at 1282, 1284.
{3} The district court predicted that this Court would interpret New Mexico law to provide that “the affirmative selection of a level of UM/UIM coverage in an amount less than full liability coverage [does not] constitute[] a ‘rejection’ of coverage such that an insurer must obtain a written waiver of coverage and include it in the policy.” Id. at 1288. Mrs. Etcheverry and Weed Warrior Services appealed the district court‘s ruling to the Tenth Circuit Court of Appeals, which certified the following question pursuant to
Does the election to take UM/UIM coverage for less than the general policy liability limits constitute a rejection under the New Mexico uninsured motorist statute, [Section] 66-5-301[]?
ANALYSIS
{5}
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 . . . shall be delivered or issued for delivery in New Mexico . . . unless coverage is provided therein or supplemental thereto in minimum limits for bodily injury or death and for injury to or destruction of property . . . and such higher limits as may be desired by the insured, but up to the limits of liability specified in bodily injury and property damage liability provisions of the insured‘s policy, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles . . . .
(Emphasis added.) The minimum limits are defined in the Mandatory Financial Responsibility Act as $25,000 per person, $50,000 per accident, and $10,000 for property damage.
The uninsured motorist coverage described in Subsection A . . . shall include underinsured motorist coverage for persons protected by an insured‘s policy. . . .
“[U]nderinsured motorist” means an operator of a motor vehicle . . . which the sum of the limits of liability under all bodily injury liability insurance applicable at the time of the accident is less than the limits of liability under the insured‘s uninsured motorist coverage.
The ability of the insured to reject UM/UIM coverage is set forth in Subsection C: “The named insured shall have the right to reject uninsured motorist coverage as described in Subsections A and B . . . .”
{6} Our analysis of whether the election to purchase UM/UIM coverage in an amount less than the policy liability limits is a rejection under our insurance laws requires us to construe our UM/UIM statute, a task we undertake de novo. See Marckstadt v. Lockheed Martin Corp., 2010-NMSC-001, ¶ 13, 147 N.M. 678, 228 P.3d 462.
When deciding a statute‘s meaning, our 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. . . . [I]n light of the purpose of New Mexico‘s UM/UIM statute to expand coverage to protect members of the public against uninsured motorists, the statute is interpreted liberally to implement that remedial purpose, and any exception will be strictly construed.
Id. ¶ 14 (internal quotation marks, citations, brackets and ellipsis omitted).
{7} This Court in Marckstadt interpreted
{8} Our task is to determine whether the statute imposes the offer and rejection requirements on all levels of UM/UIM coverage: Must insurers “meaningfully offer” the maximum amount of UM/UIM coverage permitted by the statute, e.g., the liability limits of the policy, or does our statute merely require insurers to offer the minimum amount, e.g., $25,000 per person per accident? The only New Mexico case to affirmatively define
{9} In reaching this conclusion, Pielhau relied on Archunde v. International Surplus Lines Insurance Co., 120 N.M. 724, 905 P.2d 1128 (Ct. App. 1995). In Archunde, the Court of Appeals held that
{10} The requirement that insurers offer UM/UIM coverage in an amount greater than the minimum is apparent from the language of
{11} In interpreting statutes, we presume that the Legislature intends the application of the words it uses. See State v. Davis, 2003-NMSC-022, ¶ 6, 134 N.M. 172, 74 P.3d 1064. With
{12} The policy behind our UM/UIM statute is consistent with the requirement that the insurer offer the maximum amount of UM/UIM coverage to the insured. The requirement
{13} We reject outright any suggestion that
{14} Recalling that
CONCLUSION
{15} We conclude that
{16} IT IS SO ORDERED.
PATRICIO M. SERNA, Justice
WE CONCUR:
CHARLES W. DANIELS, Chief Justice
PETRA JIMENEZ MAES, Justice
RICHARD C. BOSSON, Justice
EDWARD L. CHÁVEZ, Justice
Topic Index for Progressive Nw. Ins. Co. v. Weed Warrior Servs., Docket No. 32,220
IN INSURANCE
IN-CV Coverage
IN-MV Motor Vehicle Insurance
IN-UM Uninsured or Underinsured Motorist
ST STATUTES
ST-IP Interpretation
ST-LI Legislative Intent
ST-RC Rules of Construction