Thaxton v. GEICO Advantage Ins. Co.

1

MICHAEL THAXTON, on behalf of himself and all others similarly situated, Plaintiff, v. GEICO ADVANTAGE INSURANCE COMPANY, GOVERNMENT EMPLOYEES INSURANCE COMPANY, GEICO GENERAL INSURANCE COMPANY, GEICO INDEMNITY COMPANY, GEICO CASUALTY COMPANY, GEICO CHOICE INSURANCE COMPANY, GEICO COUNTY MUTUAL, and GEICO SECURE INSURANCE COMPANY, Defendants.

No. 1:18-cv-00306-KWR-KK

United States District Court, D. New Mexico

February 17, 2022

MEMORANDUM OPINION AND ORDER

KEA W RIGGS UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court upon Defendant GEICO County Mutual Insurance Company's^[1] Motion to Dismiss Pursuant to F.R.C.P. 12(b)(2) (Doc. 53). Having reviewed the parties' pleadings and the applicable law the Court finds that Defendant Geico County's Motion to Dismiss is WELL-TAKEN and, therefore, is GRANTED.

BACKGROUND

This is a putative class action involving underinsured motorist coverage. On August 16, 2017, Plaintiff was injured in an automobile collision with another driver. Doc. 1 at ¶¶ 11-18. The tortfeasor carried minimum limits of liability coverage, that is, $25, 000 per person and $50, 000 per occurrence. Plaintiff received the full extent of liability coverage carried by the tortfeasor, but that coverage was insufficient to fully compensate Plaintiff for his damages. Doc. 1 at ¶ 21. Therefore, Plaintiff alleges that the tortfeasor was an underinsured motorist at the time of the collision. Doc. 1 at ¶ 20.

At the time of the collision Plaintiff was insured by one of the defendants.^[2] He had purchased uninsured and underinsured motorist coverage in the amount of $25, 000 per person and $50, 000 per occurrence. He alleges he paid a premium for that coverage. Id. at ¶¶ 19-20, 22, 30, 37, 40. Plaintiff alleges that Defendants failed to inform him that a purchase of 25/50 UIM coverage, when triggered by a crash with a tortfeasor who has 25/50 bodily injury liability limits, would result in payment of a premium for which no payment of benefits would occur. Id. at ¶¶ 29, 32-33, 38, 41-43. Plaintiff also alleges that Defendants failed to inform him that New Mexico's offset law drastically diminishes payment of benefits arising from a covered occurrence under his policy. Id. Finally, Defendants allegedly misrepresented to Plaintiff that he would benefit form 25/50 UIM coverage when it knew or should nave know, pursuant to New Mexico law, that coverage was meaningless. Id. at ¶¶ 26, 29, 31, 33, 38, 41-43, 62-63, 68, 79, 82.

When Plaintiff requested that Defendants provide him with the UIM benefits for which he paid a premium, Defendants denied his claim. Id. at ¶¶ 34-35, 39.

Plaintiff subsequently filed this putative class action, asserting the following claims:

Count I: Negligence;

Count II: Violations of the Unfair Trade Practices Act (N.M.S.A.1978, Section 57 12-2) (“UPA”);

Count III: Violations of the Unfair Insurance Practices Act (N.M.S.A.1978, §§ 59A-16-1 et seq.) (“UIPA”);

Count IV: Breach of Contract and claim for Motorist Coverage

Count V: Breach of Contract and Covenant of Good Faith and Fair Dealing; Count VI: Injunctive Relief;

Count VII: Declaratory Judgment; and

Count VIII: Punitive Damages.

Doc. 1. The putative class consisting of the following:

All persons (and their heirs, executors, administrators, successors, and assigns) who, in the prior six years from the date of filing of this complaint, were a policyholder and/or insured, of a Motor Vehicle Policy issued by Defendants where that policy did not and does not provide underinsured coverage paid for by the policyholder, and sold and solicited by Defendants, due to the application of an offset as set forth in NMSA 66-5-301, otherwise known as the New Mexico offset law or being a "difference state".

Doc. 1 at ¶ 49.

LEGAL STANDARD

This case is brought to federal court based on diversity jurisdiction, and therefore, this Court is required to apply New Mexico law. See Armijo v. Ex Cam, Inc., 843 F.2d 406, 407 (10th Cir. 1988); James River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1216-17 (10th Cir. 2011) (“In a federal court diversity case, except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state.”).

“Personal jurisdiction is established by the laws of the forum state and must comport with constitutional due process.” Fireman's Fund Ins. Co. v. Thyssen Min. Const. of Canada, Ltd., 703 F.3d 488, 492 (10th Cir. 2012). New Mexico's long-arm statute “extends the jurisdictional reach of New Mexico courts as far as constitutionally permissible.” See Tercero v. Roman Cath. Diocese of Norwich, 2002-NMSC-018, ¶ 6, 132 N.M. 312, 316, 48 P.3d 50, 54; Fireman's Fund, 703 F.3d at 492-93. The personal jurisdiction analysis, therefore, concerns only whether the exercise of personal jurisdiction offends due process.

“Due process requires both that the defendant [1] ‘purposefully established minimum contacts within the forum State' and [2] that the assertion of personal jurisdiction would comport with ‘fair play and substantial justice.'” Old Republic Ins. Co. v. Cont'l Motors, Inc., 877 F.3d 895, 903 (10th Cir. 2017) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985)). In other words, “the contacts with the forum State must be such that the defendant should reasonably anticipate being haled into court there.” XMission, 955 F.3d at 839-40 (internal quotations omitted); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). Yet, even if a plaintiff satisfies the minimum contacts requirement, the defendant can still defeat jurisdiction by presenting a “compelling case that the presence of some other considerations would render jurisdiction unreasonable.” See Burger King Corp., 471 U.S. at 477.

When personal jurisdiction is contested, the plaintiff has the burden of establishing personal jurisdiction over the defendant. See Benton v. Cameco Corp., 375 F.3d 1070, 1074 (10th Cir. 2004); AST Sports Sci., Inc. v. CLF Distribution Ltd., 514 F.3d 1054, 1056 (10th Cir. 2008). At this stage, where a pre-trial motion to dismiss is considered by a court without an evidentiary hearing, the plaintiff “need only make a prima facie showing of personal jurisdiction to defeat the motion.” See AST Sports, 514 F.3d at 1057. The plaintiff can satisfy this burden by “demonstrating, via affidavit or other written materials, facts that if true would support jurisdiction over the defendant.” Id. (quoting OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir. 1998)). This showing is “light.” See Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995).

“If the parties present conflicting affidavits, all factual disputes must be resolved in the plaintiff's favor, and the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party.” Id. (internal quotations omitted); Fed. Deposit Ins. Corp. v. Oaklawn Apartments, 959 F.2d 170, 174 (10th Cir. 1992). In other words, in determining whether the requisite showing has been made, all factual disputes are resolved in the plaintiff's favor and, if uncontroverted by the defendant's affidavits, the well-pled factual allegations in the Complaint must be taken as true. See XMission, L.C. v. Fluent LLC, 955 F.3d 833, 836 (10th Cir. 2020). Still, “[t]he plaintiff has the duty to support jurisdictional allegations in a complaint by competent proof of the supporting facts if the jurisdictional allegations are challenged by an appropriate pleading.” Wenz, 55 F.3d at 1508 (quoting Pytlik v. Professional Resources, Ltd., 887 F.2d 1371, 1376 (10th Cir. 1989)).

DISCUSSION

Defendant GEICO County Mutual Insurance Company (“GEICO County”) moves to dismiss the claims against it for lack of personal jurisdiction.

Defendant GEICO County presented evidence that it does not and has never conducted business in the state of New Mexico. Doc. 53-1 at 3. GEICO County does not have a registered agent in New Mexico. Id. It has no place of business in New Mexico and it never advertised in New Mexico. It also never sought to enter into any contract with any resident of the state of New Mexico for insurance coverage in New Mexico. Doc. 53 at 3. It has no employees or agents in New Mexico and does not send any agents or employees to New Mexico to solicit business. Doc. 53-1 at 3. Defendant GEICO County is not a subsidiary or parent company of the other defendants. GEICO County has not entered into a contract with Plaintiff did not solicit business from the Plaintiff, and did not adjust, evaluate, investigate, or handle Plaintiff's claim in this case. Id. Plaintiff does not dispute these facts.

Plaintiff does not allege facts to establish that Defendant GEICO County has the requisite minimum contacts with New Mexico to confer jurisdiction. The Court concludes that Plaintiff has failed to make a prima facie showing which establishes personal jurisdiction over Defendant GEICO County.

Plaintiff attempts to show that this Court has personal jurisdiction over GEICO County under a joint venture theory. The Court concludes that Plaintiff has also failed to make a prima facie showing under this theory.

I. Plaintiff has not made a prima facie showing that Defendant GEICO County is in a joint venture with other Defendants sufficient to establish personal jurisdiction.

Plaintiff does not attempt to show that Defendant GEICO County independently has sufficient minimum contacts with New Mexico to establish personal jurisdiction. Rather, Plaintiff asserts that the Court has personal jurisdiction over Defendant GEICO County because GEICO County is part of a joint venture with other GEICO Defendants which “operate” in New Mexico. Plaintiff asserts that under a joint venture theory ...