May 27, 2020- Jansen Downs v. Progressive Northern Insurance Company, No. A-1-CA-38235

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
JANSEN DOWNS,	2
Plaintiff-Appellant,	3
v. 	NO. A-1-CA-38235	4
PROGRESSIVE NORTHERN	5
INSURANCE COMPANY,	6
Defendant-Appellee,	7
and	8
ELEANOR GOODEN,	9
Defendant.	10
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	11
Joshua A. Allison, District Judge	12
Mescall Law Firm, P.C.	13
Thomas J. Mescall, II	14
Phillip Patrick Baca	15
Albuquerque, NM	16
for Appellant	17
Allen Law Firm, LLC	18
Meena H. Allen	19
Kerri L. Allensworth	20
Albuquerque, NM	21
for Appellee	22
MEMORANDUM OPINION	23
VANZI, Judge.	24
Court of Appeals of New Mexico
Filed 5/27/2020 10:33 AM

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{1} 	Plaintiff appeals from the district court’s memorandum opinion and order	1
denying her motion for declaratory judgment and granting Defendant Progressive	2
Northern Insurance Company’s motion for summary judgment. In this Court’s	3
notice of proposed disposition, we proposed to summarily affirm. Plaintiff filed a	4
memorandum in opposition, which included a request to reconsider our denial of	5
Plaintiff’s motion to certify this case to the New Mexico Supreme Court. Having	6
duly considered Plaintiff’s arguments, we remain unpersuaded and affirm.	7
{2} 	In her memorandum in opposition, Plaintiff maintains that the district court	8
erred in concluding she was not entitled to recover a separate “each person” limit for	9
her claim of loss of consortium despite language contained in the applicable	10
insurance policy that expressly includes loss of consortium claims within the “each	11
person” limit already paid to her late-fiancé’s estate. [MIO 2] Plaintiff specifically	12
argues that our reliance on Gonzales v. Allstate Insurance Co., 1996-NMSC-041,	13
¶ 2, 122 N.M. 137, 921 P.2d 944, is misplaced because: (1) the Legislature	14
subsequently enacted the Mandatory Financial Responsibility Act (MFRA), NMSA	15
1978, §§ 66-5-201 to -239 (1978, as amended 2019), and Gonzales interpreted the	16
MFRA’s precursor; and (2) the rationale underlying the decision in Gonzales has	17
been undercut by more recent opinions of the New Mexico Supreme Court. [MIO 3-	18
4] However, 	Gonzales 	remains a valid Supreme Court opinion that squarely	19
addresses the ultimate issue raised by Plaintiff and is entitled to deference from this	20

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Court as explained in our notice of proposed disposition. [CN 6] Because Gonzales	1
seems to address this exact issue and there is not a clear statement in the MFRA that	2
would seem to abrogate or contradict the Supreme Court’s holding in Gonzales, this	3
Court must defer and leave it to our Supreme Court to evaluate 	Gonzales’s	4
continuing applicability in light of changes to the MFRA. As such, Plaintiff has	5
failed to provide any new facts, law, or argument that persuade us that our notice of	6
proposed disposition was erroneous. See Hennessy v. Duryea, 1998-NMCA-036,	7
¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held that, in	8
summary calendar cases, the burden is on the party opposing the proposed	9
disposition to clearly point out errors in fact or law.”); State v. Mondragon, 1988-	10
NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003 (stating that a party responding to	11
a summary calendar notice must come forward and specifically point out errors of	12
law and fact, and the repetition of earlier arguments does not fulfill this requirement),	13
superseded by statute on other grounds as stated in State v. Harris, 2013-NMCA-	14
031, ¶ 3, 297 P.3d 374. Accordingly, we refer Plaintiff to our analysis therein.	15
{3} 	For the reasons stated in our notice of proposed disposition and herein, we	16
affirm the district court’s memorandum opinion and order. Furthermore, we deny	17
Plaintiff’s request to reconsider the denial of her motion to certify this case to the	18
New Mexico Supreme Court. To the extent the parties wish for the New Mexico	19

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Supreme Court to consider the issues raised, they may file a petition for writ of	1
certiorari from our decision.	2
{4} 	IT IS SO ORDERED.	3
______________________________	4
LINDA M. VANZI, Judge	5
WE CONCUR:	6
_____________________________	7
JENNIFER L. ATTREP, Judge	8
_____________________________	9
ZACHARY A. IVES, Judge	10