Lewis v. Catlin

542 F.Supp.3d 1159

Jennifer LEWIS, Plaintiff and Counterdefendant,

v.XL CATLIN ¹ , Defendant and Counterclaimant.

No. 20-cv-705 JCH/KRS

United States District Court, D. New Mexico.

Signed June 4, 2021

Royce E. Hoskins, Sean Wang, Trenchard & Hoskins, LLP, Roswell, NM, for Plaintiff and Counterdefendant.

Bruce Celebrezze, Pro Hac Vice, Michael Topp, Pro Hac Vice, Clyde & Co. LLP, San Francisco, CA, Lisa Entress Pullen, David M. Wesner, Civerolo, Gralow & Hill, P.A., Albuquerque, NM, for Defendant and Counterclaimant.

MEMORANDUM OPINION AND ORDER

Judith C. Herrera, SENIOR UNITED STATES DISTRICT JUDGE

This matter is before the Court on Plaintiff Jennifer Lewis's Motion for Partial Summary Judgment (Doc. 38, filed January 12, 2021) ("Lewis Motion"), and Defendant XL Catlin, a/k/a Greenwich Insurance Company's Motion for Summary Judgment (Doc. 39, filed January 12, 2021) ("Greenwich Motion"). The Motions are fully briefed.²

These Motions arise out of a denied claim for underinsured motorist insurance ("UIM") benefits that Plaintiff made after being allegedly hit by an underinsured motorist in Roswell, New Mexico, while she was driving a vehicle for her then employer, The Hershey Company ("Hershey") of Hershey, Pennsylvania. See Doc. 1, Ex. A ("Complaint") ¶ 6. Plaintiff argues in the Lewis Motion that Defendant, the UIM carrier for Hershey, breached the insurance contract when it declined to pay her UIM benefits. Specifically, Plaintiff alleges that the insurance contract was reformed to provide coverage because Defendant failed to comply with Jordan v. Allstate Ins. Co. , 2010-NMSC-051, 149 N.M. 162, 245 P.3d 1214 (N.M. 2010), which delineates the requirements that an insurer (Defendant) must follow when obtaining a valid UM/UIM waiver from the insured (Hershey) under New Mexico's statutory framework, N.M. Stat. Ann. § 66–5–301 and N.M. Admin. Code § 13.12.3. Lewis Mot. 3–5. Those requirements are: "(1) offer the insured UM/UIM coverage equal to his or her liability limits, (2) inform the insured about 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, the policy will be reformed to provide UM/UIM coverage equal to the liability limits." Jordan , 245 P.3d at 1221.

Defendant's Motion is plain: New Mexico law does not apply to Hershey's UM/UIM waiver, therefore Plaintiff's claims fail as a matter of law. Greenwich Mot., passim. Defendant's position is grounded in the text of N.M. Stat. Ann. § 66–5–301, which provides that "[n]o motor vehicle or automobile liability policy insuring against loss resulting from liability ... shall be delivered or issued for delivery in New Mexico with respect to any motor vehicle registered or principally garaged in New Mexico ...." § 66–5–301 (emphasis added).³ Defendant argues that the Policy was not "delivered or issued for delivery in New Mexico," thus New Mexico's UM/UIM statutory framework and Jordan , the seminal New Mexico case interpreting that framework, does not apply to the Policy. The Court agrees.

As an initial matter, the Court will summarily DENY the five-page Lewis Motion pursuant to Local Rule 56.1, which requires the party moving for summary judgment to "refer with particularity to those portions of the record upon which the movant relies." D.N.M.LR-Civ. 56.1. Out of Plaintiff's seventeen proffered undisputed material facts, she cites to the record for only two of them. Nonetheless, the issues presented in the Lewis Motion, i.e., whether Defendant was required to comply with New Mexico law, will be fully addressed in the Court's resolution of the Greenwich Motion.

I. FACTUAL BACKGROUND

Plaintiff "does not dispute any of Defendant's Statement of Material Facts with Defendant's Motion." Pl.’s Resp. 1. Therefore, the Court recites those facts in full.

A. The Policy

Greenwich issued Commercial Lines Policy number RAD943773303 ("the Policy") to Hershey at 100 Crystal A Drive, Hershey, Pennsylvania, for the January 1, 2018, to January 1, 2019, policy period. Doc. 40, Ex. D. Greenwich first issued a commercial automobile policy to Hershey beginning on January 1, 2015, in response to a request for proposals by Hershey's insurance broker, Aon Risk Services Central, Inc. of Philadelphia, Pennsylvania. Doc. 39–1 (Declaration of Elizabeth Juarez) ¶ 3. Successive policies were issued annually thereafter on substantially the same terms. Id.

On or about October 26, 2017, Aon's Philadelphia office provided to Greenwich a Global Casualty Renewal Submission ("the 2018 Submission") for the policy term January 1, 2018 to January 1, 2019, for Hershey's casualty insurance program, including commercial auto liability, commercial general liability, and workers’ compensation insurance. Id. ¶ 4; see also Doc. 40–1 at 3–58 (Ex. A) (2018 Submission). In the 2018 Submission, Aon, on behalf of Hershey, requested "Symbol 6" coverage for uninsured and underinsured motorists coverage. Ex. A at 42. Consistent with its expectation that the Hershey auto policy would be renewed on terms similar to the expiring policy, Greenwich sent UM/UIM rejection forms for New Mexico and other states to Kymberly Saif of Aon on September 7, 2017, for presentation to Hershey and, if Hershey wished, execution by Hershey. Juarez Dec. ¶ 6. Ms. Saif returned the signed rejection forms to Greenwich on November 10, 2017. Id.

All of the rejection forms were signed on November 9, 2017, by Ryan J. McGuinness, Manager, Risk and Insurance, for The Hershey Company in Hershey, Pennsylvania. Id. ; see also Ex. B (Docs. 39–1 at 7–80 (part 1), 39–2 at 1–56 (part 2)). Among the forms signed by Mr. McGuinness was a form entitled, "New Mexico – Selection or Rejection of Uninsured Motorists Coverage" ("the Rejection Form"), which provides:

The New Mexico Laws ( Section 66-5-301 ), amended, permit you, the insured named in the policy, to reject the Uninsured Motorists Coverage or to select a limit of liability higher than the minimum financial responsibility limit but not more than the limit of Liability Coverage in the policy. Uninsured Motorists Coverage provides insurance for the protection of persons insured under the policy 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.

Uninsured Motorists Coverage includes Underinsured Motorists Coverage. An underinsured motorist means an operator of a motor vehicle with respect to the ownership, maintenance or use of 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 limit of liability under the Underinsured Motorists Coverage of your policy. In accordance with the New Mexico Laws ( Section 66-5-301 ), amended, the undersigned insured (and each of them) –

(Applicable item marked "X")

****

Ex. B pt. 2 at 7. Mr. McGuinness marked the item stating "rejects uninsured motorists coverage (including underinsured motorists coverages) in its entirety." Id.

Greenwich responded to the 2018 Submission with a proposal dated November 30, 2017. Juarez Dec. ¶ 7; Doc. 40–2 (Ex. C). With respect to automobile liability, Greenwich offered UM/UIM coverage pursuant to "Symbol 6," and with respect to "Limit," stated "Reject where allowable, Statutory Minimum all other." Ex. C at 24. The Policy was issued effective January 1, 2018. Doc. 40–3 at 28 (Ex. D pt. 1). In the Business Auto Declarations, the Hershey auto policy afforded a number of coverages for the covered autos identified in Item Two – Schedule of Coverages and Covered Autos of the Declarations, including Uninsured Motorists (UM) and Underinsured Motorists (UIM) (when not included in UM coverage) for vehicles identified with Symbol 06. Per Item Two, the "coverages will apply only to those ‘autos’ shown as covered ‘autos.’ " Id.

Per the Policy's Business Auto Coverage Form, CA 00 01 10 13, Symbol 6 is described as "Owned ‘Autos’ Subject To A Compulsory Uninsured Motorists Law," which means "[o]nly those ‘autos’ you own that because of the law in the state where they are licensed or principally garaged are required to have and cannot reject Uninsured Motorists Coverage. Doc. 40–4 at 13 (Ex. D pt. 2). This includes those ‘autos’ you acquire ownership of after the policy begins provided, they are subject to the same state uninsured motorists requirement." Id.

Consistent with the Rejection Form, the Hershey auto policy does not contain any endorsements that afford either UM or UIM coverage under New Mexico law. Doc. 39–2 at 7. Consistent with the Rejection Form, and the identification of only "Symbol 6" vehicles as covered autos for UM/UIM coverage, the Hershey auto policy's Forms Schedule indicates that UM/UIM coverage endorsements are only included for the states of Connecticut, Illinois, Kansas, Maine, Maryland, Minnesota, Missouri, Nebraska, New Jersey, New York, North Carolina, North Dakota, Oregon, Rhode Island, South Carolina, South Dakota, Vermont, Virginia, West Virginia, and Wisconsin. No New Mexico UM/UIM coverage endorsement is included in the Hershey auto policy, because New Mexico law allows rejection of UM/UIM coverage, and Hershey rejected UM/UIM coverage for New Mexico. Doc. 40–3 at 32–33 (Ex. D pt. 1).

Greenwich delivered the Hershey auto policy to Hershey's broker, Aon Risk Services Central, Inc., on February 14, 2018, via email with a file-sharing link. The office location of the Aon recipient was One Liberty Place, 1650 Market Street, Suite 1000, Philadelphia, PA 19103. Juarez Dec., ¶ 9, Ex. E.

B. The Accident and Plaintiff's Claim

On or about March 14, 2018, Lewis reported to Greenwich that she had been involved in a collision while driving a company car provided to her by her...