November 20, 2013 – Lonnie Curry and Mildred Curry for themselves and all other similarly situated v. Great Northwest Insurance Company, a foreign corporation, J.S. Ward & Son, Inc., a New Mexico Corporation, Dean Chavez, John Doe Adjusters and Agents of Great Northwest Insurance Company and J.S. Ward & Son, Inc., No. 31,990

2 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _ November 20, 2013

NO. 31,990

LONNIE CURRY, and
MILDRED CURRY, for themselves
and all other similarly situated,

Plaintiffs-A ppellees,
V.

GREAT NORTHWEST
INSURANCE COMPANY, a foreign
Corporation, J. S. WARD & SON,
INC. A New Mexico Corporation,
DEAN CHAVEZ, JOHN DOE
ADJUSTERS and AGENTS of
GREAT NORTHWEST
INSURANCE COMPANY and

J. S. WARD & SON, INC.,

Defendants-A ppellants.

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
John W. Pope, District Judge

The Rowe Law Fimm, P.C.
Gordon H. Rowe, III

Albuquerque, NM

for Appellees

McClaugherty & Silver, P.C.
Joe L. McClaugherty
Santa Fe, NM

for Appellants

OPINION
ZAMORA, Judge.
{1} 	This case presents us with the limited question of whether our Supreme Court’s
decision in Jordan v. Allstate Ins. Co., 2010-NMSC-051, 149 N.M. 162, 245 P.3d
1214, requires that uninsured and underinsured motorist (UM/UIM) coverage options
and corresponding premiums appear on the written UM/UIM coverage rejection form
itself. Unpersuaded that Jordan creates such a specific requirement, we conclude that
Plaintiffs’ complaint is based upon an incorrect reading of Jordan, thereby failing to
state a claim upon which relief could be granted. We reverse the district court’s
decision denying Defendants’ motion to dismiss as to that issue and remand for
proceedings consistent with this Opinion.
I. 	BACKGROUND
{2} 	We take the relevant facts from the allegations of the complaint filed by Lonnie
Curry and Mildred Curry (Plaintiffs) for themselves and on behalf of others similarly
situated. We accept these facts as true for purposes of reviewing a motion to dismiss.
Padilla v. Wall Colmonoy Corp., 2006-NMCA-137, ¶ 2, 140 N.M. 630, 145 P.3d 110.
A motion to dismiss tests the legal sufficiency of the complaint, not the facts that
support it. See Rule 1-012(B)(6) NMRA; Three Rivers Land Co. v. Maddoux, 1982-

1All named Defendants filed the motion to dismiss. The specific issue before
this Court is limited to the insurance policy and rejection form issued by the
Defendant Great Northwest Insurance Company. Any reference to the singular
Defendant shall be to Defendant Great Northwest Insurance Company and any
reference to the plural Defendants shall be to all named Defendants.
2
NMSC-111, ¶ 13, 98 N.M. 690, 652 P.2d 240, overruled on other grounds by
Universal Life Church v. Coxon, 1986-NMSC-086, 105 N.M. 57, 728 P.2d 467.
{3} 	In September 2009, Plaintiffs were involved in a serious motor vehicle accident.
Plaintiffs’ vehicle was covered by a standard insurance policy with Great Northwest
Insurance Company (Defendant) 1, which provided liability coverage for their vehicle.
Because coverage from the underlying liability carriers was insufficient to compensate
for all of their injuries, Plaintiffs filed an underinsured motorist claim with Defendant.
Defendant denied Plaintiffs’ underinsured motorist claim based on a written rejection
of UM/UIM coverage Plaintiffs signed when they purchased their policy.
{4} 	Plaintiffs filed suit alleging that the UM/UIM coverage rejection form
Defendant relied upon in denying their uninsured motorist claim was invalid under
Jordan because it did not contain a list of premium charges corresponding to the
available UM/UIM coverage options. Plaintiffs also asserted that because the
UM/UIM coverage rejection form was invalid, their policy should be reformed as a
matter of law by providing UM/UIM coverage equal to their limits of liability.

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{5} 	In response to Plaintiffs’ suit, Defendants moved for dismissal claiming that
Plaintiffs misconstrued Jordan and as a result failed to state a claim upon which relief
could be granted. Defendants argued that Jordan requires insurers to provide
UM/UIM coverage options and corresponding premium information, but that it does
not require that the information also appear directly on the written rejection of
UM/UIM coverage.
{6} 	The claims in Plaintiffs’ complaint are limited to the rejection form. Aside from
the rejection form issue, none of the parties raised an issue of whether the UM/UIM
coverage and corresponding premiums were provided in writing when the insurance
policy was being considered. Therefore, we limit our decision to the issue of whether
New Mexico law requires that an insurer provide available UM/UIM coverage options
and corresponding premium information on the written rejection form delivered with
the insurance policy to the insured.
{7} 	After hearing the parties’ arguments, the district court denied Defendants’
motion to dismiss. In its order, the court found that although Jordan did not directly
address the issue of whether a valid waiver or rejection of UM/UIM coverage requires
that the insured be provided a written list of coverage options and corresponding
premium charges on the rejection form itself, an argument could be made that Jordan
created such a requirement. The court therefore certified this specific question for

2Aside from the question certified for interlocutory appeal, Defendants’ motion
to dismiss also claimed that (1) the court lacked personal jurisdiction over Dean
Chavez, (the adjuster who denied Plaintiffs’ claim and who was named in the
complaint individually), and (2) Plaintiffs failed to identify an ascertainable class.
Therefore, the district court’s order denying the motion to dismiss was not solely
based on the question before this Court in this appeal.
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interlocutory appeal. This Court granted the request for an interlocutory appeal
pursuant to NMSA 1978, Section 39-3-4 (1999) and Rule 12-203(A) NMRA. 2
{8} 	Although we are not confined to the particular questions the district court
certified for this interlocutory appeal, the scope of our review must be limited to the
issues fairly contained in the order. Pena Blanca P’ship v. San Jose de Hernandez
Cmty. Ditch, 2009-NMCA-016, ¶ 7, 145 N.M. 555, 202 P.3d 814. This Court has
declined to decide issues that were not the basis of the order actually appealed from.
See Bell v. Estate of Bell, 2008-NMCA-045, ¶ 9, 143 N.M. 716, 181 P.3d 708
(declining to address an issue that was neither the basis of the district court’s order nor
specifically certified for interlocutory appeal); see also Ellis v. Cigna Prop. & Cas.
Cos., 2007-NMCA-123, ¶ 14, 142 N.M. 497, 167 P.3d 945 (concluding that the issues
raised by appellant were not certified for interlocutory appeal by the district court);
cf. Armijo v. Wal-Mart Stores, Inc., 2007-NMCA-120, ¶ 19, 142 N.M. 557, 168 P.3d
129 (stating an appellate court can decide issues other than those certified, where a
party raises issues which were not stated in the questions certified, but were not

5
wholly unrelated to the issues identified by the lower court in its order). The argument
before the district court by both parties, the district court’s order, and the question
before this Court is limited to the question of whether a valid waiver or rejection of
UM/UIM coverage requires that the insured be provided a written list of coverage
options and corresponding premium charges on the rejection form itself.
II. 	DISCUSSION
A. 	Standard of Review
{9} 	The decision of the district court to deny Defendants’ Rule 1-012(B)(6) motion
is a question of law that we review de novo. Valles v. Silverman, 2004-NMCA-019,
¶ 6, 135 N.M. 91, 84 P.3d 1056. De novo review requires appellate courts “to make
an independent assessment of the record.” Aken v. Plains Elec. Generation &
Transmission Coop., Inc., 2002-NMSC-021, ¶ 19, 132 N.M. 401, 49 P.3d 662.
B. 	UM/UIM Rejections in New Mexico
{10} 	NMSA 1978, Section 66-5-301 (1983) and its implementing regulation, now
codified as 13.12.3.9 NMAC (5/14/2004), govern UM/UIM insurance coverage in
New Mexico. Jordan, 2010-NMSC-051, ¶¶ 16-18. The New Mexico Supreme Court
construes the statute liberally, and the default rule is to provide the maximum possible
amount of UM/UIM coverage. Id. ¶15. Any exception to that rule is strictly construed
to protect the insured. Id. Section 66-5-301 embodies a public policy of New Mexico

6
that UM/UIM coverage be provided with every automobile liability insurance policy
issued in this state. Romero v. Dairyland Ins. Co., 1990-NMSC-111, ¶ 6, 111 N.M.
154, 803 P.2d 243. For that reason, “the insurer may not exclude UM/UIM coverage
from an automobile liability policy unless it has offered it to the insured, and the
insured has exercised the right to reject the coverage through some positive act.”
Marckstadt v. Lockheed Martin Corp., 2010-NMSC-001, ¶ 15, 147 N.M. 678, 228
P.3d 462 (citation omitted).
{11} 	Section 66-5-301 provides insureds the right to reject UM/UIM coverage. It
does not specify the form or manner that an effective rejection must take. Romero,
1990-NMSC-111, ¶ 4. The form and manner of effective UM/UIM coverage
rejections are established by rules and regulations promulgated by the superintendent
of insurance. Kaiser v. DeCarrera, 1996-NMSC-050, ¶ 8, 122 N.M. 221, 923 P.2d
588. Regulation 13.12.3.9 NMAC requires rejections of UM/UIM coverage to be
written and included in the policy delivered to the insured. Marckstadt, 2010-NMSC-
001, ¶ 17. This “furthers [the] legislative purpose to provide for the inclusion of
uninsured motorist coverage in every automobile liability policy unless the insured
has knowingly and intelligently waived such coverage.” Romero,1990-NMSC-111,
¶ 9. Any insured rejecting UM/UIM coverage should be well informed as to that
decision. Id. The rejection, as part of the delivered policy, provides affirmative

7
evidence of the extent of coverage. Id. This affirmative evidence “comports with [the]
policy that any rejection of the coverage be knowingly and intelligently made.” Id.
C. 	Jordan Does Not Require UM/UIM Coverage Options and Corresponding
Premium Charges to Be Provided on the Written Rejection Form Itself
{12} 	In Jordan, the New Mexico Supreme Court recognized that insurers were
offering UM/UIM coverage in ways that did not allow insureds to make realistically
informed choices. 2010-NMSC-051, ¶ 20. After examining Section 66-5-301, the
corresponding 	regulation 	13.12.3.9 	NMAC, 	and 	related 	case 	law, 	the 	Court
endeavored to set forth workable requirements for valid, meaningful rejections of
UM/UIM 	coverage. 	Jordan, 	2010-NMSC-051, 	¶¶ 	20-21. 	The 	Jordan 	Court
determined that UM/UIM coverage equal to the liability limits would be the default
coverage unless the insurer:
(1) offer[s] the insured UM/UIM coverage equal to his or her liability
limits, (2) inform[s] the insured about premium costs corresponding to
the available levels of coverage, (3) obtain[s] a written rejection of
UM/UIM coverage equal to the liability limits, and (4) incorporate[s]
that rejection into the policy [delivered to the insured] in a way that
affords the insured a fair opportunity to reconsider the decision to
reject[.]
Id. ¶¶ 22, 30.
{13} 	Plaintiffs argue that when read together, the requirement that insurers provide
coverage and premium information and the requirement that rejections be in writing,

8
create an implicit requirement that the coverage and premium information be provided
on the written rejection form itself. We disagree.
{14} 	In Jordan, the Court explained to effectuate New Mexico’s public policy of
protecting insureds, an insured’s decision to reject UM/UIM coverage must be
knowing and intelligent. Id. ¶ 20. To ensure that rejections are knowingly and
intelligently made, insurers must offer UM/UIM coverage in a meaningful way and
obtain any rejections of the statutorily authorized coverage in writing. Id. ¶ 18.
Offering UM/UIM coverage in a meaningful way includes providing the insured with
a menu of coverage options and corresponding premium costs. Id. ¶ 21. Providing this
information and obtaining written rejections enables the insured to make an informed
decision about the level of UM/UIM coverage he or she wants to purchase and
minimizes uncertainty (and litigation) with regard to the coverage that the insured has
obtained. Id.; see also Romero, 1990-NMSC-111, ¶ 9 (including an insured’s rejection
with their delivered policy ensures that the insured has affirmative evidence of the
extent of their coverage).
{15} 	The Jordan Court’s discussion is articulated in terms of information made
available to the prospective insured prior to purchasing liability and UM/UIM
coverage. In setting out the workable requirements for valid, meaningful rejections of
UM/UIM coverage, Jordan used the term “provide” when discussing coverage and

9
premium information. Jordan, 2010-NMSC-051, ¶ 21. The Jordan Court also noted
that by providing a menu of coverage options and corresponding premiums, insureds
can make an informed decision on the type of UM/UIM coverage they would like to
purchase. Id.
{16} 	The cases leading up to Jordan also address the requisite UM/UIM information
issue within the context of purchasing an insurance policy. See Romero, 1990-NMSC-
111, ¶ 4 (finding that the rejection form specified that insured’s policy would not
contain coverage when issued and said rejection form was not attached to the liability
policy that was later issued); Marckstadt, 2010-NMSC-001, ¶ 4 (holding that an
insurer must get a written rejection of UM/UIM coverage before it can exclude it from
the insurance policy); Progressive Nw. Ins. Co. v. Weed Warrior Servs., 2010-NMSC-
050, ¶ 1, 149 N.M. 157, 245 P.3d 1209 (holding that an election by an insured to
purchase UM/UIM coverage in an amount less than the policy liability limits
constitutes a rejection of maximum amount of UM/UIM coverage). Additionally,
Section 66-5-301 presents in terms of issuing an insurance policy and 13.12.3.9
NMAC, which references the statute, requires that the rejection of UM/UIM coverage
be made a part of the issued insurance policy.
{17} 	When discussing the rejection forms, the Jordan Court used the word “written.”
2010-NMSC-051, ¶ 22. Indeed, the Court’s entire discussion of UM/UIM rejection

10
forms centered around the importance of obtaining UM/UIM rejections in writing. Id.
¶¶ 16-19. In contrast, the Court’s discussion of providing coverage and premium
information focused primarily on the need to provide insureds with enough
information 	to 	make 	an 	informed 	decision 	regarding 	UM/UIM 	coverage 	in
contemplation of purchasing their insurance policy. Id. ¶¶ 20-21. The Court did not
address every method insurers may use to provide this information or the validity of
those methods. We conclude that Jordan does not require UM/UIM coverage options
and corresponding premium information to appear on the written UM/UIM rejection
form included with an insured’s policy.
{18} 	Jordan decided three consolidated cases: Jordan v. Allstate, Romero v.
Progressive Northwestern Insurance Co., and Lucero v. Trujillo. Jordan, 2010-
NMSC-051, ¶ 3. Our Supreme Court decided to consolidate the three cases and
resolve them with a single opinion in order to provide guidance on the requirements
for valid offers and rejections of UM/UIM coverage. Id. ¶ 13. After the Court
prescribed the four requirements, it discussed the application of those requirements
to each of the three cases.
1. 	Jordan v. Allstate
{19} 	Plaintiffs argue that the facts in Jordan are virtually identical to the facts in the
case before us. We disagree. It is necessary to point out in Jordan, the insured was

11
provided with a combination UM/UIM selection/rejection form. While the Jordan
Court 	did 	not 	address 	this 	particular 	type 	of 	form, 	it 	did 	find 	that 	the
selection/rejection form included a menu of coverage options from the statutory
minimum up to policy liability limits. Id. ¶ 31. However, the Court held that the
rejections were insufficient, both because the insurer did not provide the premium
costs for each coverage option on this selection/rejection form, and because the
rejections were not part of the policies delivered to the insureds. Id. ¶ 32. Plaintiffs
argue this holding demonstrates the Court’s intention that written UM/UIM rejection
forms include UM/UIM coverage options and premium costs.
{20} 	We disagree for two reasons. First, in Jordan, the rejections were insufficient
as a matter of law because the rejections were not made part of the policies delivered
to the insureds. The insurer did not disagree that the forms were not attached to the
policies, but instead argued that the signed forms showed that the insureds knowingly
and intelligently elected to purchase the minimum UM/UIM coverage limits. This
argument completely ignored the requirements of 13.12.3.9 NMAC. While the
declaration pages sent to the insureds listed the amounts of liability and UM/UIM
coverages provided by the policies, “the pages did not contain specific references to
[the insureds’] rejection of UM/UIM coverage” equal to the policies’ liability limits.
Jordan, 2010-NMSC-051, ¶ 32 (internal quotation marks and citation omitted).

12
Contrary to the argument of Plaintiffs, the Jordan Court did not hold that the rejection
failed as a matter of law because the insurer did not provide UM/UIM coverage
options and premium pricing on the selection/rejection form, specifically. Instead the
rejections failed because the insurer failed to provide the rejections as part of the
policies delivered to the insureds. Id. Second, Plaintiffs’ interpretation of the Court’s
holding in Jordan is inconsistent with the Court’s holdings in the other consolidated
cases.
2. 	Romero v. Progressive
{21} 	In Romero, there was no evidence in the record to show: (1) the insurer offered
the insured UM/UIM coverage equal to his liability limits; (2) the insured was
informed of UM/UIM coverage costs; or (3) the insured rejected the coverage in
writing. Jordan, 2010-NMSC-051, ¶ 33. Again, the declaration page listed the amount
of liability and UM/UIM coverage in the policy, but did not expressly indicate that the
higher levels of UM/UIM coverage had been rejected. Id. The Court therefore found
none of the requirements for a valid rejection of UM/UIM coverage were met.
3. 	Lucero v. Trujillo
{22} 	When applying its UM/UIM coverage rejection requirements to the last of the
three consolidated cases, the Lucero Court held that the rejection of coverage was

13
invalid. Id. ¶ 34. The list of UM/UIM coverage options and premiums provided in
pull-down menus on the insurer’s website were acceptable. Id. The Court went on to
say that the provision of price quotations for UM/UIM coverage and premiums on the
insurer’s website was not only sufficient to satisfy the requirement, but was a
“commendable system of offering meaningful choices to its insureds.” Id. ¶¶ 34, 35.
However, the Court concluded that the failure to make the insured’s rejection part of
the policy fell short of full compliance with the law. Id. ¶ 35; see 13.12.3.9 NMAC.
It reached this conclusion because there was nothing in the plaintiff’s application,
declaration page, or policy to show she rejected policy limit UM/UIM coverage that
would allow her to go back and review her decision. Jordan, 2010-NMSC-051, ¶ 35.
The Court held that, in contemplation of purchasing an insurance policy, an insured
must 	be 	provided 	with 	a 	list 	of 	available 	UM/UIM 	coverage 	options 	and
corresponding premiums in order to review their options and select their preferred
type of coverage. Any rejections of options are confirmation of what insureds have
selected and what insureds have not selected. This information and documentation
provided to insureds enables them to review their decision to accept or reject
UM/UIM coverage, at their convenience, if necessary.
{23} 	The dissent suggests that the only meaningful way for insureds to review their
decision is to have the coverage options and corresponding premiums surrounding

14
their rejection presented to them when the policy is delivered. This suggestion
assumes that the listed options and premiums offered, though not selected, will remain
the same throughout the duration of the policy. It also assumes that a menu of options
and costs on the rejection form is the only means of re-evaluating any decision to
obtain UM/UIM coverage in an amount less than one’s liability insurance. 	In
contemplation of purchasing an insurance policy, insureds are provided with a list of
options and premiums in order to decide what type of UM/UIM coverage they would
like to purchase, if any. Additionally, in this day and age, access to UM/UIM
information can be requested from an insurer through its website at any time and at
the insureds’ convenience. Traditionally, the insured can always contact the insurance
agent from whom they purchased the policy. Notably in Lucero, for our purposes, this
required information was provided on the insured’s website and not as part of the
rejection form. Also, the Court approved of the insured’s provisions of the required
information.
{24} 	The holdings in Jordan, Romero, and Lucero, read together, make clear that
insurers must provide UM/UIM coverage and premium information in a way that
allows the insured to make an informed decision about the coverage purchased or
rejected, in a knowing and intelligent manner. However, they do not prescribe any one
particular way the information must be provided. The Jordan Court intended to

15
require insurers to fully inform their insureds regarding UM/UIM coverage options
and corresponding premium costs but it did not set forth the requirement that such
information be provided on the written rejection form itself. Therefore, Plaintiffs have
failed to state a claim upon which relief may be granted.
D. 	Rules of Statutory Construction and Rules of Interpretation of Insurance
Regulations Are Not Applicable to Interpretation of Precedent
{25} 	In interpreting New Mexico’s uninsured motorist statute, Jordan recognized
that the New Mexico Supreme Court has consistently interpreted Section 66-5-301
and its implementing regulation, 13.12.3.9 NMAC, liberally, holding that the
provision of the maximum possible amount of UM/UIM coverage in every insurance
policy is the default rule. Jordan, 2010-NMSC-051, ¶ 15. “[A]ny exception to that
rule must be construed strictly to protect the insured.” Id. (internal quotation marks
and citation omitted).
{26} 	Plaintiffs present the argument that this Court should interpret Jordan using the
same statutory construction principles Jordan itself used to interpret Section 66-5-301,
thereby interpreting the case strictly and in favor of the insured. We are not persuaded.
{27} 	Statutes are generally applicable and principles of statutory construction exist
to enable the application of statutes to specific sets of facts in each case. Key v.
Chrysler Motors Corp., 1996-NMSC-038, ¶ 13, 121 N.M. 764, 918 P.2d 350 (stating

16
that we seek to give effect to the Legislature’s intent when interpreting statutes). On
the other hand, our approach to interpreting precedent is governed by the principle of
stare decisis. Trujillo v. City of Albuquerque, 1998-NMSC-031, ¶ 33, 125 N.M. 721,
965 P.2d 305 (“Stare decisis is the judicial obligation to follow precedent, and it lies
at the very core of the judicial process of interpreting and announcing law.”).
{28} 	Plaintiffs do not cite any authority for the proposition that this Court should
apply principles of statutory construction to our interpretation of precedent, and we
have found none. Where a party cites no authority to support an argument, we may
assume no such authority exists. In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100
N.M. 764, 676 P.2d 1329. Therefore, we decline to depart from well-established
jurisprudence and apply principles of statutory construction to our interpretation of
the Jordan decision.
E. 	Jordan’s Discussion of Montano Does Not Provide Guidance in Our
Decision in This Case
{29} 	Lastly, Plaintiffs argue that Jordan’s discussion of 	Montano v. Allstate
Indemnity Co., 2004-NMSC-020, 135 N.M. 681, 92 P.3d 1255, demonstrates the
Court’s intention to require UM/UIM coverage options or premiums to be provided
in writing. Plaintiffs are correct that our Supreme Court held that an insurance
company must provide the insured with the premium costs for each level of available

17
stacked coverage and obtain a written rejection of stacking automobile insurance
policy coverages in order to limit the insured liability based on an anti-stacking
provision. Id. ¶¶ 19-20. However, the narrow question before this Court is whether
Jordan requires UM/UIM coverage options or premiums to be on the written
UM/UIM coverage rejection form itself. The only guidance Montano does provide
is that a written rejection provides an insured with the exact coverage they have
chosen. Yet, it does not provide any guidance in answering the specific question
before us.
III. 	CONCLUSION
{30} 	We conclude that the Jordan Court intended to require insurers to fully inform
insureds regarding available UM/UIM coverage options and corresponding premium
costs when purchasing or renewing a policy, but that it did not set forth the
requirement that such information be provided on the written rejection form delivered
with the purchased policy. We reverse the district court’s denial of Defendants’
motion to dismiss as to that issue, and remand for further proceedings consistent with
this Opinion.
{31} 	IT IS SO ORDERED.
___________________________
M. MONICA ZAMORA, Judge

I CONCUR:

JAMES J. WECHSLER, Judge

CYNTHIA A. FRY, Judge dissenting).

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19
FRY, Judge (dissenting).
{32} 	I respectfully dissent. In my view, the line of Supreme Court cases addressing
the acceptable method of rejecting full UM/UIM coverage, culminating in Jordan,
compels 	the 	conclusion 	that 	information 	regarding 	UM/UIM 	coverages 	and
corresponding premiums must be listed in the policy—not necessarily in the rejection
form—provided to the insured. Our Supreme Court in Jordan made it clear that one
of the four prerequisites to valid rejection of full UM/UIM coverage is that the insurer
“inform the insured about premium costs corresponding to the available levels of
coverage.” 2010-NMSC-051, ¶ 22. The question presented by the present case is how
that information must be conveyed to the insured. The Majority limits its discussion
to whether this information must be provided on the written rejection form and
concludes that providing this information prior to the purchase of insurance was
sufficient for purposes of validly rejecting UM/UIM coverage equal to the limits of
liability coverage. Majority Opinion ¶¶ 6, 30.
{33} 	I have two primary disagreements with the Majority’s approach in this case.
First, I do not agree with the Majority’s conclusion that providing a UM/UIM
coverage/premium menu at any time prior to the insured’s rejection of maximum

20
available coverage constitutes compliance with Jordan’s requirements. I think Jordan
requires the insurer to provide this menu with the policy at the same time it transmits
the insured’s written rejection. Second, I do not agree that we should limit our analysis
to the question of whether the coverage/premium menu must be part of the insured’s
written rejection form. Under our notice pleading standard, Plaintiffs’ complaint
sufficiently alerted Defendant to their claim that the absence of a coverage/premium
menu from the delivered policy established an invalid waiver of UM/UIM coverage.
The Manner in Which UM/UIM Coverages and Premiums Must Be Disclosed
{34} 	Based on its limited view of Plaintiffs’ complaint, the Majority concludes that
Plaintiffs validly rejected UM/UIM coverage equal to the limits of their liability
coverage. The question as the Majority frames it is whether the menu of UM/UIM
coverages and corresponding premiums had to be provided in the written form
rejecting UM/UIM coverage equal to the policy’s liability coverage. The Majority
states that Jordan did not “prescribe any one particular way the information must be
provided.” Majority Opinion ¶ 24. And, in its discussion of the Lucero case that was
consolidated with Jordan, the Majority appears to determine that pull-down menus on
an insurer’s website, which were accessed by the insured prior to her purchase of
UM/UIM coverage, “were acceptable.” Majority Opinion ¶ 22. Thus, in the Majority’s
view, if an insurer provides a coverage/premium menu at any time prior to the

21
purchase of UM/UIM coverage, one of the four prerequisites to valid rejection of
maximum coverage is satisfied.
{35} 	My difficulty with the Majority’s view stems from the message I glean from
Jordan and the line of UM/UIM cases preceding Jordan. I believe the Supreme Court
has made it clear that an insurer must provide an insured the opportunity to reconsider
his or her rejection of maximum available UM/UIM coverage after the policy is
delivered. The only meaningful way to allow reconsideration is to present the insured
with all of the pertinent information surrounding rejection when the policy is
delivered, and this includes a list of UM/UIM coverages and corresponding premiums.
{36} 	That the coverages and premiums must be provided as part of the policy is
apparent from the Court’s discussion in Jordan. The Court consistently referred to the
need to “[i]ncorporat[e] the rejection into the policy [in order to] keep[] the insured
well-informed about the decision to reject coverage and [to] allow[] the insured to
reconsider his or her rejection after further reflection, consultation with other
individuals, or after merely having an opportunity to review one’s policy at home.”
Jordan, 2010-NMSC-051, ¶ 18 (emphasis added) (internal quotation marks and
citation omitted). More significantly, the Court stated that “[p]roviding the insured
with a menu of coverage options and corresponding premium costs will enable the
insured to make an informed decision about the level of UM/UIM coverage he or she

22
wants to purchase.” Id. ¶ 21. It is hard to understand how an insured could
meaningfully reconsider his or her rejection of UM/UIM coverage if the menu of
coverages and premiums is not included in the policy. Cost is obviously an important
part of the insured’s decision to reject. See id. ¶ 22 (stating that rejection is ineffective
unless the insurer “incorporate[s] that rejection into the policy in a way that affords
the insured a fair opportunity to reconsider the decision to reject”). And it seems clear
that the Supreme Court anticipated that this menu would be part of the policy when
it stated, “By requiring insurance carriers to list premium costs corresponding to each
available UM/UIM coverage level, we are providing specific guidance concerning the
form and manner that valid offers and rejections of UM/UIM insurance must take to
comply with controlling statutory and regulatory provisions.” Id. ¶ 25 (emphasis
added).
{37} 	I am also not persuaded by the Majority’s view that requiring the policy to
include UM/UIM coverage and premium options is inconsistent with the Jordan
Court’s holdings in the other consolidated cases addressed in Jordan. Majority
Opinion ¶ 19. Nothing in the Jordan Court’s discussion about the Romero or Lucero
policies contradicts a requirement for including these options in the policy. Instead,
the Court simply noted that neither policy satisfied the requirements for a valid
rejection for a variety of reasons. In addition, I do not agree that the Court concluded

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that the pull-down menus in the Lucero situation were “sufficient to satisfy the
requirement.” Majority Opinion ¶ 22. The Jordan Court stated that “[d]espite [the
insurer’s] commendable system of offering meaningful choices to its insureds, full
compliance with the requirements of the law was not achieved because the rejection
was never made a part of Diana Lucero’s written policy.” 2010-NMSC-051, ¶ 35
(emphasis added). I do not read this as stating that the only missing requirement was
inclusion of Lucero’s written rejection as part of the policy. Instead, I read it as stating
that a valid rejection must be made part of the policy and that the policy must
“provide[ the insured] evidence of her rejection for later reference or reflection.” Id.
I do not see how the insured could meaningfully reflect about rejection without being
provided with a menu of coverages and premiums. Such reflection would be made in
a vacuum if the menu were not available for the insured to consult.
{38} 	All of this is not to say that the menu of UM/UIM coverages and premiums
must be part of the rejection form itself. Instead, I think Jordan tells us that the menu
must be provided in the policy along with the rejection form in order to give the
insured a chance to reconsider the rejection. This brings me to my second
disagreement with the Majority.
The Complaint’s Claims Are Not Limited to Deficiencies in the Rejection Form
{39} 	I further disagree with the Majority’s conclusion that we should read Plaintiffs’

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complaint as asserting only the specific claim that UM/UIM coverage/premium
information must be included in the rejection form. Majority Opinion ¶ 6. New
Mexico adheres to the principles of notice pleading, which require “only that the
plaintiff allege facts sufficient to put the defendant on notice of his claims.” Madrid
v. Village of Chama, 2012-NMCA-071, ¶ 17, 283 P.3d 871. The complaint in this case
provided adequate notice of Plaintiffs’ claims. The complaint alleged:
A rejection of UM/UIM coverage equal to the liability limits in an
automobile insurance policy must be made in writing and must be made
part of the insurance policy that is delivered to the insured. . . . In order
to honor these requirements effectively, insurers must provide the
insured with the premium charges corresponding to each available option
for UM/UIM coverage so that the insured can make a knowing and
intelligent decision to receive or reject the full amount of coverage to
which the insured is statutorily entitled.
While other paragraphs in the complaint contained allegations suggesting that the
coverage waiver itself must contain the coverage/premium information, I think the
overall thrust of the complaint sufficed to inform Defendant that Plaintiffs claimed
they should have been provided this information when they were provided with their
rejection form as part of their policy.
{40} 	In the context of a motion to dismiss for failure to state a claim, our case law
does not require a plaintiff in his or her complaint to use specific language or to
establish the likelihood of success on the merits. See Madrid, 2012-NMCA-071, ¶ 17

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(explaining that “our appellate courts have never required trial courts to consider the
merits of a plaintiff's allegations when deciding a motion to dismiss, and we see no
justification for requiring such technical forms of pleadings now”). Instead, in
considering a motion to dismiss under Rule 1-012(B)(6), a court tests “the legal
sufficiency of the complaint, not the factual allegations of the pleadings which, for
purposes of ruling on the motion, the court must accept as true.” Herrera v. Quality
Pontiac, 2003-NMSC-018, ¶ 2, 134 N.M. 43, 73 P.3d 181 (internal quotation marks
and citation omitted). “Dismissal under Rule 1-012(B)(6) is appropriate only if the
non-moving party is not entitled to recover under any theory of the facts alleged in
their complaint.” Madrid, 2012-NMCA-071, ¶ 18 (internal quotation marks and
citation omitted). The court “resolve[s] all doubts in favor of sufficiency of the
complaint.” Id. (internal quotation marks and citation omitted). “The purpose of our
rule is to test the law of the claim, not the facts that support it.” Id. (internal quotation
marks and citation omitted).
{41} 	Plaintiffs’ complaint provided notice that the UM/UIM coverage/premium
menu was not provided in a way meaningful to an intelligent rejection of maximum
available UM/UMI coverage. One meaningful way to provide the information is to
include it in the policy. We do not know if the policy provided this information
because the policy is not in the record, and there is nothing else in the record shedding

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light on the matter. As a result, whether the policy provided this information is a
matter for proof introduced in the district court, not a matter for determination in the
context of a Rule 1-012(B)(6) motion.
{42} 	Given my analysis of the holdings in Jordan, Plaintiffs’ complaint states a
claim supportable by the law. That claim is that Defendant was required and failed to
provide Plaintiffs information on UM/UIM coverages and premiums at the same time
that it provided them with the written rejection form in order to establish that Plaintiffs
had validly rejected UM/UIM coverage equal to their liability coverage. In my view,
the district court erroneously dismissed Plaintiffs’ legally supportable claim, and its
judgment should be reversed. If, on remand, Defendant can prove that it provided the
coverage/premium menu with the policy and the rejection form, then Defendant
should prevail on the merits. Because the Majority disagrees, I respectfully dissent.
CYNTHIA A. FRY, Judge