A-1-CA-34961 | Omnilex

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Court of Appeals of New Mexico
6/14/2018 8:41 AM
Office of the Clerk
Mark Reynolds

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Filed

Court of Appeals of New Mexico
6/14/2018 8:41 AM

O pe of the Clerk
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tbe L f

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO Mik Reynolds

Opinion Number:

Filing Date: _June 14, 2018

NOS. A-1-CA-34961 & A-1-CA-35661 (Consolidated)
ANGELA LUERAS and JOE LUERAS, individually,
Plaintiffs-Appellants,

and

ANGELA LUERAS and JOE LUERAS,
as parents and guardians of A. LUERAS, a minor,

- Plaintiffs,
V.
GEICO GENERAL INSURANCE COMPANY,

Defendant-Appellee,

and
MARIA RODRIGUEZ, FARMERS INSURANCE COMPANY
OF ARIZONA a/k/a FARMERS INSURANCE GROUP a/k/a
FARMERS INSURANCE EXCHANGE, |

Defendants,

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Alan M. Malott, District Judge

1]
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And

DAVID VAN EPPS,
Plaintiff-Appellant,

Vv.

GEICO INDEMNITY COMPANY
Defendant-Appellee,

and

CESAR MONTANO,
Defendants.

APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
Sarah C. Backus, District Judge

Law Offices of Geoffrey R. Romero
Geoffrey R. Romero
Albuquerque, NM

O’Connell Law LLC
Erin B. O’Connell
Albuquerque, NM

Widner Law Firm LLC

Susan H. Widner

Albuquerque, NM

for Lueras Appellants

Anthony G. Lopez, Attorney at Law
Anthony G. Lopez

Taos, NM

for Van Epps Appellant

(oS)

TAH

Chapman and Priest, PC
Stephen M. Simone
Albuquerque, NM

Perry Law, P.C.
Meloney Perry

Stacy Thompson
Dallas, TX

for GEICO Appellees

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OPINION

KIEHNE, Judge.

a} Plaintiffs, Angela and Joe Lueras, and David Van Epps, filed two separate
lawsuits against GEICO General Insurance Company and GEICO Indemnity
Company’, respectively, in response to GEICO’s refusal to pay
uninsured/underinsured (UM/UIM) benefits to them. GEICO declined to pay because
Plaintiffs had rejected UM/UIM coverage. The district courts granted summary
judgment to GEICO in both cases. These appeals raise substantially similar issues,
and for that reason we exercise our discretion to consolidate them for decision. See
Rule 12-317(B) NMRA.

23} Onappeal, Plaintiffs make the following claims:

1. The UM/UIM rejection forms violated New Mexico law because
they did not explain that the UM/UIM benefits would be stacked.

2. The insurance policies were misleading and ambiguous because
they incorrectly stated that UM/UIM benefits would not be
stacked.

3. The Luerases separately claim that GEICO violated New Mexico
law because the declaration page misrepresents the amount of
UM/UIM coverage.

4. GEICO’s requirement that Plaintiffs either purchase the same
level of UM/UIM insurance on each vehicle covered by a single

'GEICO General Insurance Company and GEICO Indemnity Company are
referred to throughout this opinion collectively as GEICO.

Ww NO ee

nm &

Coo Amn DN

13.

policy, or reject UM/UIM insurance entirely, violated New
Mexico law.

5. The Luerases separately claim that GEICO’s failure to obtain
another rejection of UM/UIM coverage when they added a
vehicle to their policy entitles them to UM/UIM coverage.

6. | Mr. Van Epps separately contends that after his wife initially
selected UM/UIM coverage below the liability limits of tlie
policy, GEICO sent her a form that improperly discouraged her
from purchasing UM/UIM coverage, and that her rejection of
UM/UIM coverage on that form is therefore invalid.

3} Weaffirm. Claims 1 and 2 are identical to claims that we recently considered
and rejected in Ullman v. Safeway Insurance Co., 2017-NMCA-071, 404 P.3d 434,
cert. granted, 2017-NMCERT-___ (A-1-CA-36580 Aug. 24, 2017). Claim 3 is also
foreclosed by the rationale in Ullman. We reject Claim 4 because New Mexico law
does not preclude an insurer from requiring an insured to choose the same UM/UIM
coverage (or to reject UM/UIM coverage entirely) for all vehicles covered by a single
policy. Claim 5 is foreclosed by our decision in Vigil v. Rio Grande Insurance of
Santa Fe, 1997-NMCA-124, ff 14-17, 124 N.M. 324, 950 P.2d 297, which has not}
been modified by any later decisions by our Supreme Court. Finally, we reject Claim
6 because GEICO was required by law to send the UM/UIM coverage form to Mrs.
Van Epps, and nothing in it discouraged her from selecting UM/UIM coverage.
BACKGROUND

I. Lueras v. GEICO General Insurance Company

44; The Luerases bought an automobile insurance policy for their three vehicles
from GEICO in 2009. The policy had liability limits of $50,000 per person and
$100,000 per occurrence. GEICO presented the Luerases with a form on which they
could select or reject UM/UIM coverage. The form did not explain that the UM/UIM
coverages for each vehicle would be stacked. The form provided the Luerases with
the option of selecting the same UM/UIM coverage for all three vehicles, or rejecting
UM/UIM coverage entirely. The Luerases rejected UM/UIM coverage. Later, the
Luerases added a fourth vehicle to their policy, and GEICO again sent the Luerases
a form on which to select or reject UM/UIM coverage. The Luerases did not sign or
return the form to GEICO.

5} In 2011, Plaintiff Angela Lueras was the driver of, and her daughter a
passenger in, a vehicle that was involved in acrash with Defendant Maria Rodriguez.
Ms. Rodriguez’s automobile insurance coverage was not sufficient to fully
compensate the Luerases for the injuries they suffered as a result of the crash. The
Luerases asked GEICO to provide UIM benefits, but GEICO denied their claim
because they had rejected UM/UIM coverage. The Luerases then sued GEICO and
Ms. Rodriguez in the Second Judicial District Court, Bernalillo County, arguing that
their rejection of UM/UIM coverage was invalid on several grounds. The parties filed

cross-motions for summary judgment. The district court granted summary judgment

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in GEICO’s favor and denied the Luerases’ cross-motion for summary judgment The
Luerases timely appealed.

II. Van Epps v. GEICO Indemnity Company

6 | Mr. Van Epps’ wife, Wendy Van Epps, purchased a GEICO insurance policy
in 2010 on four vehicles that the couple owned. The policy had liability limits of
$50,000 per person and $100,000 per occurrence. Mrs. Van Epps selected UM/UIM
coverage of $25,000 per person and $50,000 per occurrence, which was less than the
liability limits. Two days later, GEICO sent Mrs. Van Epps a form letter asking her
to select or reject UM/UIM coverage. According to the menu of options on the form,
if Mrs. Van Epps wanted to select UM/UIM coverage, she had to purchase the same
level of coverage on all four vehicles, and if she wanted to reject UM/UIM coverage,
she had to reject it on all four vehicles. She could not select different UM/UIM
coverage limits for each vehicle, or select UM/UIM coverage on some vehicles and
reject it on others. The form also did not inform Ms. Van Epps that the UM/UIM
policies would be stacked in the event of an accident with an uninsured or
underinsured motorist. Mrs. Van Epps rejected UM/UIM coverage on all four
vehicles.

(7; While working as a security officer at a local restaurant in 2012, Mr. Van Epps

was threatened by Defendant Cesar Montafio, who was attempting to patronize the

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restaurant. When Mr. Montafio left in his car, he drove it towards Mr. Van Epps,
hitting him and knocking him to the ground. Mr. Montafio then backed up his car and
ran over Mr. Van Epps’ leg. Mr. Van Epps sustained permanent injuries.

{8} Mr. Montafio also had a GEICO insurance policy, but it provided only $25,000
in coverage, which was insufficient to cover Mr. Van Epps’ injuries. Mr. Van Epps
sought UIM benefits under his own policy. GEICO refused to pay based on Mrs. Van
Epps’ rejection of UM/UIM coverage. Mr. Van Epps then sued GEICO and Mr.
Montafio in the Eighth Judicial District Court, Taos County, New Mexico, raising
arguments similar to those made by the Luerases. The parties filed cross-motions for
summary judgment. The district court granted summary judgment to GEICO, and
denied Mr. Van Epps’ cross-motion for summary judgment. Mr. Van Epps timely
appealed.

DISCUSSION

I. Standard of Review

9} Each claim in this case involves the interpretation of insurance policy language,
and we therefore apply de novo review. See Rummel v. Lexington Ins. Co., 1997-
NMSC-041, § 60, 123 N.M. 752, 945 P.2d 970 (“The interpretation of an insurance
contract is a matter of law about which the court has the final word.”). We also apply

de novo review to district court orders granting summary judgment. See Farmington

Police Officers Ass’n Commc’n Workers of America Local 7911 v. City of
Farmington, 2006-NMCA-077, J 13, 139 N.M. 750, 137 P.3d 1204 (“An appeal from
an order granting a motion for summary judgment presents a question of law subject
to de novo review.”).
If. Plaintiffs’ Claim That the Policies and Rejection Forms Should Have
Explained That Their UM/UIM Benefits Would Be Stacked, Their Claim
That the Rejection Form Was Ambiguous Because It Purported to
Prohibit Stacking, and the Luerases’ Claim That the Declaration Page
Misrepresents the Amount of UM/UIM Coverage Are Controlled by Our
‘Decision in Ullman
410} InJordanyv. Allstate Insurance Co.,2010-NMSC-051, 922, 149 N.M. 162, 245
P.3d 1214, our Supreme Court stated that to obtain a valid rejection of UM/UIM
coverage, an insurer must “(1) offer the insured UM/UIM coverage equal to his or her
liability limits, (2) inform the insured about the premium costs corresponding to the
available levels of coverage, (3) obtain a written rejection of UM/UIM coverage equal
to the liability limits, and (4) incorporate that rejection into the policy in a way that |
affords the insured a fair opportunity to reconsider the decision to reject[.]” Plaintiffs
argue that GEICO’s insurance policy and its UM/UIM rejection form violated
requirements (2) and (3) of Jordan because they did not explain that UM/UIM
benefits would be stacked in the event of a collision with an uninsured or

underinsured motorist, thus misrepresenting the amount of UM/UIM coverage that

was actually available to them. See Black’s Law Dictionary 1623 (10th ed. 2014)

(defining “stacking” as “[t]he process of obtaining benefits from a second policy on
the same claim when recovery from the first policy alone would be inadequate”).
Plaintiffs also argue that GEICO’s insurance policy was ambiguous and misleading
because it contained language that purported to prohibit stacking, although the anti-
stacking provision was invalid under New Mexico law.

{1143 We recently considered, and rejected, identical claims in Ullman. 2017-
NMCA-071, {ff 39-52. That decision is controlling, and accordingly we affirm the
district courts’ orders rejecting these claims. See Arco Materials, Inc. v. N.M.
Taxation & Revenue Dep’t, 1994-NMCA-062, § 3, 118 N.M. 12, 878 P.2d 330
(stating that a formal Court of Appeals opinion is controlling even when our Supreme
Court has granted certiorari to review the case), rev’d on other grounds sub nom.
Blaze Constr. Co., Inc. v. N.M. Taxation & Revenue Dep’t, 1994-NMSC-110, 118
N.M. 647, 884 P.2d 803.

12} Inaddition, the Luerases argue that GEICO violated requirement (4) of Jordan.
Although the Luerases’ rejection of UM/UIM coverage was incorporated into the
policy via a declarations page, the Luerases argue that the declarations page
“affirmatively misrepresents how much coverage was rejected under GEICO’s
policy” because it shows “that only a single limit of UM coverage was waived”

without explaining that UM/UIM benefits would be stacked in the event ofa collision

ie)

with an uninsured or underinsured motorist. Ullman rejected claims that requirements

(2) and (3) of Jordan were violated where the insurer did not explain that UM/UIM

benefits would be stacked, see Ullman, 2017-NMCA-071, 9 39-52, and we see no

reason why Uliman’s rationale would not also apply to the Luerases’ declarations
page, which contains the same alleged defect. Accordingly, we affirm the district
court’s rejection of this claim.

Ill. GEICO’s Requirement That Plaintiffs Either Purchase the Same Level of
UM/UIM Insurance on Each Vehicle Covered by a Single Policy, or Reject
UM/UIM Insurance Entirely, Did Not Violate New Mexico Law

13} Plaintiffs claim that GEICO’s “all-or-nothing” requirement that they purchase

the same level of UM/UIM insurance on each of their vehicles, or reject UM/UIM

coverage on all vehicles, is contrary to our Supreme Court’s decision in Montano v.

Allstate Indemnity Co., 2004-NMSC-020, 135 N.M. 681, 92 P.3d 1255, and thus was

an invalid offer of UM/UIM coverage. Under Plaintiffs’ view of the law, an insured

with four vehicles must be allowed to select, say, UM/UIM coverage of
$100,000/$200,000 on one vehicle, $50,000/$100,000 on the next two vehicles, and
no UM/UIM coverage at all on the fourth, or any other combination that the insured

may desire. We conclude that Plaintiffs have misinterpreted Montafio, and we reject

this claim.

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414}. Montafio didnot address the requirements for making a valid offer of UM/UIM
coverage, but instead involved the “judicially-created doctrine” of stacking. Id. J 17.

In that case, the plaintiff bought UM/UIM coverages on his four vehicles, but the
policy said that he could only stack two of those coverages. Id. J 2. The plaintiff filed
a lawsuit alleging that he was entitled to stack all four UM/UIM coverages. Id.

415} When the case reached our Supreme Court, the plaintiff asked the Supreme

Court to “declare that all anti-stacking clauses are void as against New Mexico’s

stated policy in favor of stacking.” Id. J 8. Our Supreme Court acknowledged that its

cases “ha[d] expressed a public policy in favor of stacking[,|” id. ] 9, but rejected the
plaintiffs argument, stating that “requiring stacking in all cases on a take-it-or-leave-
it basis would reduce the freedom of the parties to contract for less coverage and thus
their freedom to decide how much coverage they can afford,” which “could frustrate,

rather than advance, the legislative intent behind the [UM/UIM] statute.” Id. J 16.

The Supreme Court explained that the Legislature’s intent in requiring insurers to

offer minimum levels of UM/UIM coverage was “to encourage insureds to purchase
such coverage|,]” and that “[r]equiring stacking for all vehicles would put the insured
who owns multiple vehicles in the position of paying for all of the coverages or
rejecting UM[/UIM] coverage altogether, rather than deciding how much coverage

they can afford.” Jd. { 16. The Supreme Court stated that if an insurance company

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wants to preclude stacking, it “should obtain written rejections of stacking in order
to limit its liability based on an anti-stacking provision.” Jd. | 19.
{16} The Supreme Court then went on to explain how an insurance company could
go about obtaining an adequate written rejection of stacking:
As an illustration of our holding, in a multiple-vehicle policy insuring
three cars, the insurer shall declare the premium charge for each of the
three UM coverages and allow the insured to reject, in writing, all or
some of the offered coverages. Thus, hypothetically, in the case of a
$25,000 policy, if the premium for one UM coverage is $65, two
coverages is an additional $60, and three coverages $57 more, the
insured who paid all three (for a total premium of $182) would be
covered up to $75,000 in UM bodily injury coverage. However, the
insured may reject, in writing, the third available coverage and pay $125
for $50,000 of UM coverage; or the insured may reject, in writing, the
second and third coverages and pay $65 for $25,000 of UM coverage;
or the insured may reject all three UM coverages.
Id. § 20. Our Supreme Court concluded that “an insurance policy that-complies with
this requirement will avoid the conclusion . . . that anti-stacking clauses are almost
inherently ambiguous and are no longer effective at precluding stacking.” Id. J 21.
417; Plaintiffs interpret this “illustration” in Montafo as requiring all insurers to
offer UM/UIM coverage on a per-vehicle basis and as prohibiting an insurer from
offering UM/UIM coverage on a per-policy basis. But Plaintiffs forget the context
that led to the inclusion of this passage. In Montano, our Supreme Court considered

an argument that stacking should be required on all vehicles covered by a multi-

vehicle policy. 2004-NMSC-020, 9 8-21. The Court recognized New Mexico’s

public policy in favor of stacking, but rejected the plaintiffs’ argument based on both
freedom-of-contract grounds and a concern that requiring all-or-nothing policies |
would discourage the purchase of UM/UIM insurance. Thus, in the passage on which
Plaintiffs rely, our Supreme Court was merely explaining what an insurance company
would have to do if it wanted to obtain an effective rejection of stacking by an
insured. By its own terms, Montafio’s “illustration” does not describe a mandatory
requirement imposed on all insurers offering UM/UIM coverage, but rather provides

a voluntary option for those insurers that do not wish to offer stacking.

183 We conclude that Montafio did not consider whether automobile insurers

should be required to offer policyholders UM/UIM coverage on a per-vehicle basis,
much less impose such a requirement. See Padilla v. State Farm Mut. Auto. Ins. Co.,
2002-NMCA-001, § 10, 131 N.M. 419, 38 P.3d 187 (explaining that “cases are not
authority for propositions not considered” (internal quotation marks and citation
omitted)). Other than the illustration in Montamio, Plaintiffs have cited to no authority
supporting their contention that GEICO must offer UM/UIM coverage on a per-
vehicle basis, as opposed to a per-policy basis. Further, we find nothing in the
UM/UIM statute that provides otherwise. See NMSA 1978, § 66-5-301; see also
Briggs v. Am. Nat’l Prop. & Cas. Co., 209 P.3d 1181, 1185-86 (Colo. Ct. App. 2009)

(holding that insured has no right to be offered UM/UIM coverage on a per-vehicle

basis under nearly identical Colorado statute). Accordingly, GEICO’s offer of
UM/UIM coverage on a per-policy basis was not contrary to New Mexico law.

IV. GEICO Was Not Required to Obtain an Additional Rejection of UM/UIM
Coverage When the Luerases Added Another Vehicle to Their Policy

419} At some point after purchasing automobile insurance and rejecting UM/UIM
coverage, but before the accident, the Luerases added a fourth vehicle to their policy.
At that time, GEICO sent a UM/UIM rejection form to the Luerases, but the Luerases

did not sign or return it. The Luerases argued in the district court, as they do on

appeal, that adding the fourth vehicle was a new and different offer of coverage, and

GEICO’s failure to obtain a new UM/UIM rejection form rendered the Luerases’
earlier rejection of UM/UIM coverage invalid.

20} Thedistrict courtrejected this argument, relying on our decision in Vigil, 1997-
NMCA-124. In Vigil we held that when an insurer has obtained a valid rejection of
UM/UIM insurance, the insurer is not required to obtain a new rejection from the
insured each time a new vehicle is added to the policy. Id. F§ 14-17. In reaching that
conclusion, we noted that the relevant statute does not require that UM/UIM coverage
be included in “a renewal policy where the named insured has rejected the coverage
in connection with a policy previously issued to him or her by the same insurer.” Jd.
4 14 (alteration omitted) (quoting NMSA 1978, § 66-5-301(C) (1983)). We also noted

that the policy in question provided that any vehicles that the insured bought would

be automatically added to the policy, which meant that “there [was] no change in the
insurance contract or the coverage purchased pursuant to that contract when a vehicle
[was] added to the policy.” Jd. § 15. We concluded that in these circumstances, the
addition of vehicles did not create a new policy, and therefore no new rejection of
UM/UIM coverage was required. Id. J] 16-17.

21} Here, the district court correctly determined that no new rejection of UM/UIM
coverage was required when the Luerases added a vehicle to their policy. The
Legislature has not amended Section 66-5-301(C) since Vigil was decided. The
UM/UIM rejection form that the Luerases signed when they originally bought the
policy informed them multiple times that their rejection of UM/UIM coverage would
automatically apply to any vehicles added to the policy unless the Luerases informed
GEICO otherwise. First, the form said that “my Uninsured/Underinsured Motorist
Coverage election applies to this policy and all vehicles insured under this policy
until I notify [GEICO], in writing, that I wish to change my election.” Next, the form
advised the Luerases that “[m]y Uninsured/Underinsured Motorist coverage election
shall apply to any renewal, reinstatement, substitute, amended, altered, modified, or
replaced policy with this company or any affiliated Government Employees Insurance
Company.” Finally, in the section of the form where the Luerases checked that they

wished to reject UM/UIM coverage, the form stated that “I understand that until I

inform [GEICO] in writing that I wish to add UM/UIM Coverage to my insurance
policy, no automobile insurance policy issued to me by [GEICO] will provide
coverage if I am injured or my property is damaged by an uninsured or underinsured
motorist.” These provisions made it abundantly clear that any vehicles added to the.
policy would not create a new policy, and therefore no new rejection of UM/UIM
coverage was required.

22} The Luerases argue, however, that Vigil has been “modified” by our Supreme
Court’s decisions in Montafio, 2004-NMSC-020, § 20, and Jordan v. Allstate
Insurance Company, 2010-NMSC-051, 9] 20-22, 149 N.M. 162, 245 P.3d 1214. As
we have already explained, Montafio was concerned with how insurance companies
could obtain a valid waiver of stacking, not with how to obtain a valid rejection of
UM/UIM coverage. Montafio did not even consider, much less hold, that Vigil was
modified or overruled. In Jordan, our Supreme Court consolidated three cases in
which the issue was whether the insureds had rejected UM/UIM coverage when they
initially bought their policies. 2010-NMSC-051, 493-12. The Jordan Court explained
what an insurer must do to obtain a valid rejection of UM/UIM coverage and held that
a policy that failed to meet those requirements would be reformed to provide
UM/UIM coverage in the same amount as the policy’s liability limits. 201 0-NMSC-

051, 44 3-12, 20-21. In Jordan our Supreme Court had no occasion to consider

whether a new rejection form would be required if a vehicle was added to the policy
at a later date, and nothing in Jordan even suggests, much less holds, that our
decision in Vigil should be modified. Accordingly, we reject the Luerases’ claim. °

V. The Letter and UM/UIM Option Form That GEICO Sent to Mrs. Van
Epps Were Not Improper or Ambiguous

3} Mr. Van Epps argues that certatn GEICO documents were misleading and
discouraged Mrs. Van Epps from selecting UM/UIM coverage. Mrs. Van Epps
originally selected UM/UIM coverage at the $25,000/$50,000 level, which was less
than the $50,000/$100,000 bodily injury liability limits. Two days later, GEICO sent
her both a letter and an “option form” on which to select or reject UM/UIM coverage.
The letter said that “[i]t is important that we receive this. form back in order to
continue your policy at the current premium, so please don’t delay. If you do not
complete this form, we are required to make adjustments to your coverage, which will
result in an increase in your premium.” Neither the option form nor the letter
explained what “adjustments” would be made or why the premium would increase if
the form were not signed and returned to GEICO. Mr. Van Epps argues that GEICO
sent the option form to “discourage” his wife from purchasing UM/UIM coverage,
and that the option form caused her to believe that “in order to complete the
processing of her new policy, she had to sign the [option form].” Mr. Van Epps

contends that his wife’s rejection of UM/UIM coverage is therefore invalid because

“GEICO’s scheme of sending its insureds this [option form] and [letter] after the
insureds have selected UM/UIM coverage . . . violated New Mexico public policy by
misleading and discouraging the purchase of UM/UIM coverage[.]”

24} To the extent that Mr. Van Epps argues that GEICO should not have sent the
letter, his argument lacks merit. As GEICO correctly points out, our Supreme Court
has held that where, as here, an insured selects UM/UIM coverage that is lower than
the policy’s liability limits, that functions as a rejection of the maximum amount of
coverage statutorily available. See Progressive Northwestern Ins. Co. v. Weed
Warrior Servs., 2010-NMSC-050, 9 14.15, 149 N.M. 157, 245 P.3d 1209 (reflecting
that “[a]s Section 66-5-301 requires insurers to offer UM/UIM coverage up to the
liability limits of the policy, it follows that the choice by the insured to purchase any
lower amount is arejection”). Thus, to give effect to Mrs. Van Epps’ choice, GEICO
was required to send her a form on which to indicate her selection of a level of
UM/UIM coverage. Jordan, 2010-NMSC-051, 4 2.

25} Mr. Van Epps acknowledges that GEICO was required to obtain a written
waiver from Mrs. Van Epps, but complains that “GEICO did not in any way indicate
in its initial application that it would later be sending [an option form] with a
[letter] [,]” and questions why GEICO did not do so at that time. Mr. Van Epps cites

no legal authority in support of his argument that GEICO was required to provide the

option form at the time of Mrs. Van Epps’ original application for insurance, and
therefore we assume that none exists. See In re Doe, 1984-NMSC-024, 9 2, 100 N.M.
764, 676 P.2d 1329 (“Issues raised in appellate briefs which are unsupported by cited
authority will not be reviewed by us on appeal.”). Accordingly, we reject Mr. Van
Epps’ argument that GEICO acted improperly by sending the option form and letter
to Mrs. Van Epps. |

26 As for Mr. Van Epps’ arguments that the option form and letter were
ambiguous and thus “discouraged” the purchase of UM/UIM insurance, we disagree.
While it is true that the letter stated that failure to return the form would lead to an
increase in the insurance premium, nothing in the letter or form suggested that Mrs.
Van Epps had to reject UM/UIM coverage to prevent her premium from rising. The
option form allowed her to select UM/UIM coverage at the same level as before, to

select UM/UIM coverage at a different level, or to reject UM/UIM coverage entirely.

Accordingly, we reject Mr. Van Epps’ argument that the option form improperly
discouraged the purchase of UM/UIM coverage.

CONCLUSION

27 For all of these reasons, we affirm the district courts’ grants of GEICO’s
motions for summary judgment and denials of Plaintiffs’ cross-motions for summary
judgment.

23} ITISSO ORDERED.

PIV CL.

EMIL JAKIEHNE, Judge

I CONCUR:

LE Judge

ATTREP, Judge (specially concurring).

29} [concur with today’s opinion, but write separately as I have reservations about
Ullman, 2017-NMCA-071, the decision tipon which Section II of the Discussion is
premised. The Court in Ullman broadly held that an insurer, in offering UM/UIM
coverage on a multiple-vehicle insurance policy, is not required to explain stacked
coverage or inform the insured about premium costs for each available level of
stacked coverage. Id. J 15, 44.

30} Ullman relied heavily on, and adopted, the Tenth Circuit’s approach in
Jaramillo v. Government Employees Insurance Co., 573 F. App’x 733 (10th Cir.
2014) (non-precedential). See Ullman, 2017-NMCA-071, {§ 34-38. Jaramillo, in

turn, hung its analysis on Jordan, 2010-NMSC-051, which set out a four-factor test

‘an insurer must follow in order to obtain a valid rejection of UM/UIM coverage. Id.

30. The circumstances before the Supreme Court in Jordan, however, were different
from those in Jaramillo. In Jordan, the insureds accepted UM/UIM coverage at a
level lower than their policy liability limits; because one or more of the Jordan
factors were not met, the policies were reformed to provide UM/UIM coverage equal
to the policy limits. 2010-NMSC-051, {ff 5-12, 31-35. In contrast, the insureds in

Jaramillo (as well as in the cases before us today) rejected UM/UIM coverage

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entirely but were.never informed of the total level of stacked coverage actually being
offered. Jaramillo, 573 F. App’x at 734-36, 745, 747-48.

31} Mechanically applying Jordan, the Tenth Circuit determined that an insurer is
only obligated to set out the premium charges for each level of UM/UIM |
coverage—it need not inform the insured of the total amount of stacked coverage
available at each level. Jaramillo, 573 F. App’x at 748-49; see also Ullman, 2017-
NMCA-071, 9 15. The Tenth Circuit rationalized that it need not address stacking
because stacking comes into play as a judicially-created doctrine only after an insured |
has purchased UM/UIM coverage. See Jaramillo, 573 F. App’x at 744-46. The Tenth
Circuit construed Jordan as being divorced from our Supreme Court’s stacking
jurisprudence, proclaiming that “except for the general reference to Monta/fi/o, the
Jordan court was silent on the issue of stacking, and it did not clearly tie stacking to
its new UM/UIM coverage-rejection standard.” Id. at 744.

32} I think this to be an inaccurate gloss on our Supreme Court’s jurisprudence.
Montajfio requires “insurers [to] disclose the premium costs for each available level
of stacked coverage as a means of guaranteeing that consumers can knowingly
exercise their statutory rights to UM/UIM coverage.” Whelan v. State Farm Mut.
Auto. Ins. Co., 2014-NMSC-021, § 25, 329 P.3d 646 (citing Montafio, 2004-NMSC-

020, If 17, 20); see also Jordan, 2010-NMSC-051, {24 (“In Monta[it]o, this Court

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struck th[e] balance [between freedom of contract and the intent of the UM/UIM ]}.
statute] by requiring insurance carriers to provide insureds with the premium costs for

each available level of stacked coverage in order to allow insureds to contract for the

amount of coverage they can afford and want to purchase.”). Notwithstanding this,

our Court in Ullman adopted the reasoning of Jaramillo wholesale. See Ullman,
2017-NMCA-071, ff 34-38, 43.

33} - The problem with relieving insurers of any obligation to ‘disclose stacked
coverage levels when obtaining UM/UIM rejections—as Jaramillo and Ullman
permit—becomes apparent when examining the facts at issue in the cases before our
Court today. In these cases, GEICO readily admits that it sells its insureds stacked
UM/UIM coverage. GEICO, however, does not explain this to its insureds, and does
not disclose the total amount of stacked coverage being offered at each premium |
level. A look at GEICO’s UM/UIM Selection/Rejection F om, which is reproduced

in relevant part below, is worthwhile:

UM/UIM Bodily Injury Coverage Limits
Your Bodily Injury Liability Coverage Limit is: $50,000/$100,000
Coverage Limit

Per Person/Per Accident VEHICLE! VEHICLE2 VEHICLE3 VEHICLE4
( ) $25,000/$50,000 $ 36.60 $ 36.60 $ 36.60 $ 36.60
() $50,000/$100,000 $ 54.90 $ 54.90 $ 54.90 $ 54.90
() $100,000/$200,000 $ 73.20 $ 73.20 $ 73.20 $ 73.20
() $100,000/$300,000 $ 82.40 $ 82.40 $ $ 82.40

82.40

Sa NHN DA HR W NH

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( ) $300,000/$300,000 $ 95.60 $ 95.60 $ 95.60 -$ 95.60
( ) $250,000/$500,000 $ 103.30 $ 103.30 $ 103.30 $ 103.30
() $300,000/$500,000 $ 104.40 $ 104.40 $ 104.40 $ 104.40
-() $500,000/$500,000 $ 113.90 $ 113.90 $ 113.90 $ 113.90
() $500,000/$750,000 $ 121.20 $ 121.20 $ 121.20 $ 121.20
() $500,000/$1MIL $ 124.80 $ 124.80 $ 124.80 $ 124.80
() $1MIL/$1MIL $ 145.40 $ 145.40 $ 145.40 $ 145.40

Looking at the first line, for example, GEICO offers the insured the statutory
minimum amount of UM/UIM coverage of $25,000 per person/$50,000 per accident.
See NMSA 1978, §§ 66-5-301 (1983), 66-5-215 (1983). The insured has no option
of purchasing this coverage on, for instance, only one or two vehicles. Instead, if the
insured elects this coverage, she must pay four premiums. Yet GEICO’s UM/UIM
Selection/Rejection Form makes no mention of the fact that if four premiums are
paid, the insured is entitled to stacked coverage of four times the listed coverage (e.g.,
$100,000/$200,000, not $25,000/$50,000).

4} Consistent with the holdings in Jaramillo and Ullman, GEICO claims that it
has no obligation to disclose to its insureds the stacked coverage amounts. It reasons
that this is a rejection case, governed by Jordan, not a stacking case. While it is true
that this case is not necessarily governed by “judicial stacking,” this misses the mark.
GEICO stacks on its own initiative—not because it is judicially imposed after the

fact. See Jaramillo v. Providence Washington Ins. Co., 1 994-NMSC-01 8,9 4n.1, 117

N.M. 337, 871 P.2d 1343 (explaining the difference between “judicial stacking” and
“policy stacking”); see also Jaramillo, 573 F. App’x at 745 (“GEICO maintains that
it does stack vehicle insurance coverage in New Mexico and that it has never
employed anti-stacking language in such policies to avoid aggregating an insured’s
UM/UIM coverage.”). Perhaps GEICO has chosen to offer stacked UM/UIM
coverage because of the long line of New Mexico cases imposing stacking by judicial
construction where the insurer has not obtained a valid waiver of stacked coverage.
See Montatio, 2004-NMSC-020, ff 9-14 (summarizing the Supreme Court’s stacking
jurisprudence). The reason GEICO stacks, however, is of no import. GEICO stacks.
35} But GEICO does not disclose to the insured the level of stacked UM/UIM
coverage that it is actually offering. This runs afoul of the guiding principle behind
Jordan—that “in order for the offer and rejection requirements of [the UM/UIM
statute] to effectuate the policy of expanding UM/UIM coverage, the insurer is
required to meaningfully offer such coverage and the insured must knowingly and
intelligently act to reject it before it can be excluded from the policy.” Marckstadt v.
Lockheed Martin Corp., 2010-NMSC-001, § 16, 147 N.M. 678, 228 P.3d 462; see
Jordan, 2010-NMSC-051, 4 18 (citing Marckstadt ,2010-NMSC-001, { 16-17). “Iff,
as here,] the policy documentation is unclear, the insured will not be able to make an

informed decision whether to purchase and stay with that policy (and that insurance

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company) or to opt for another.” Rodriguez v. Windsor Ins. Co., 1994-NMSC-075,
q 21, 118 N.M. 127, 879 P.2d 759. Given GEICO’s UM/UIM Selection/Rejection
Form and the fact that GEICO stacks from the outset, it would seem that GEICO’s
offers of UM/UIM coverage in these cases may be “so inadequate or misleading as
to render [the Plaintiffs’] rejection ineffective under the [UM/UIM] statute.”
Marckstadt,2010-NMSC-001, § 16. Ullman, however, has charted a different course.
Under Ullman, GEICO has complied with the four-factor test in Jordan and no
further analysis is required.

{36 Notwithstanding my concerns about whether Ul/man was correctly decided, I
concur in this case because this issue was recently decided by a panel of our Court,
in a published opinion, which now awaits decision by the Supreme Court. See Arco
Materials, Inc., 1994-NMCA-062, § 19 (“Notwithstanding my concerns about
whether the issue was correctly decided... , however, I believe it is more important
for this Court to follow its own precedent than to allow the rights of the parties to be
governed by which panel of judges is assigned to the case.” (Black, J. specially

concurring)).

JENMIFER L. ATTREP, Judge

June 14, 2018- David Van Epps v. Geico Indemnity Company, Nos. A-1-CA-34961 & A-1-CA-35661 (Consolidated)

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