Jaramillo v. Government Employees Insurance , 573 F. App'x 733 ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 29, 2014
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
MELVYN JARAMILLO; DEBBIE
JARAMILLO, for themselves and others
similarly situated,
Plaintiffs-Appellants,
v. No. 12-2108
(D.C. No. 6:10-CV-01095-JCH-LFG)
GOVERNMENT EMPLOYEES (D.N.M.)
INSURANCE COMPANY; GEICO
GENERAL INSURANCE COMPANY;
GEICO INDEMNITY COMPANY;
GEICO CASUALTY COMPANY,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before TYMKOVICH, HOLLOWAY,** and HOLMES, Circuit Judges.
*
This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth
Circuit Rule 32.1.
**
The late Honorable William J. Holloway, Jr., United States Senior Circuit
Judge, heard oral argument and participated in the panel’s conference for this appeal, but
passed away prior to final disposition. Judge Holloway did not cast a vote regarding this
order and judgment, and he had no role in its preparation. “The practice of this Court
permits the remaining two panel judges if in agreement to act as a quorum in resolving
the appeal.” United States v. Sharp, 749 F.3d 1267, 1270 n.* (10th Cir. 2014) (internal
quotation marks omitted); see also 28 U.S.C. § 46(d) (noting that a circuit court may
adopt procedures permitting the resolution of an appeal where a remaining quorum of a
panel agrees on the disposition). The remaining panel members have acted as a quorum
(continued...)
Melvyn and Debbie Jaramillo filed a class-action complaint against Government
Employees Insurance Company, GEICO General Insurance Company, GEICO Indemnity
Company, and GEICO Casualty Company (collectively “GEICO”), bringing claims
arising out of a motor vehicle accident. The district court granted summary judgment to
GEICO and denied the Jaramillos’ subsequent motion to reconsider, and the Jaramillos
challenge both rulings on appeal. In addition, the Jaramillos have filed a motion with this
court requesting certification of a legal question to the New Mexico Supreme Court.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s
award of summary judgment to GEICO, affirm the district court’s denial of
reconsideration, and deny the Jaramillos’ motion to certify.
I
On March 31, 2009, the Jaramillos purchased an automobile insurance policy (“the
Policy”) from GEICO. The Policy insured four vehicles owned by the Jaramillos; for
each vehicle, it provided bodily-injury liability coverage with limits of $50,000 per
person and $100,000 per occurrence (alternatively styled “$50,000/$100,000”), and
property-damage coverage with a limit of $50,000. As initially issued, the Policy also
supplied uninsured/underinsured motorist (“UM/UIM”) coverage. That version of the
**
(...continued)
with respect to this order and judgment and, for the reasons stated below, vote to affirm
the judgment of the district court in all respects and deny the Jaramillos’ motion to certify
a question of law to the New Mexico Supreme Court.
2
Policy provided UM/UIM bodily-injury coverage limits of $25,000 per person and
$50,000 per occurrence on each vehicle.1
Also on March 31, 2009, in connection with the Jaramillos’ purchase of the Policy,
GEICO sent the Jaramillos a “new business packet” including, inter alia, a copy of the
Policy, endorsement declarations, and a blank New Mexico UM/UIM Coverage
Information and Selection Form (the “Option Form”). On April 21, 2009, GEICO
received a returned copy of the Option Form containing the printed name “Debbie
Jaramillo” and the signature “D. Jaramillo.” Aplt. App. at 192 (Option Form,
filed Feb. 21, 2011). Although that document is not dated, the envelope in which the
Jaramillos mailed it bears a stamp indicating transmittal from Albuquerque, New Mexico
on April 4, 2009. See id. at 193.
The first page of the Option Form reads, “I have had [UM/UIM] Coverage
1
In a ruling postdating the issuance of the original Policy, the New Mexico
Supreme Court held that a vehicle insurance policy may not contain UM/UIM limits
lower than bodily-injury limits in the absence of the policyholder’s written rejection of
such UM/UIM coverage. See Progressive Nw. Ins. Co. v. Weed Warrior Servs., 245 P.3d
1209, 1214 (N.M. 2010) (expressly stating that New Mexico’s motor vehicle laws
“require[] an insurer to offer UM/UIM coverage in an amount equal to the liability limits
of the policy and that the choice of the insured to purchase any lower amount functions as
a rejection of that maximum amount of coverage statutorily possible”). It is undisputed
that the Jaramillos did not submit to GEICO a written rejection of the Policy’s initial
UM/UIM limits; as a result, the Policy as initially written would have been invalid under
Weed Warrior. But Weed Warrior does not materially alter our analysis or our ultimate
decision to affirm the judgment of the district court. This is so because the issue
presented in this appeal is whether the Jaramillos’ subsequent written rejection of all
UM/UIM coverage passed muster under New Mexico law—not whether the Policy’s
initial UM/UIM coverage limits would have been legally sufficient.
3
explained to me and I fully understand it,” and continues:
I also understand that my [UM/UIM] 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. My [UM/UIM] 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. If a box is not checked,
I understand that UM/UIM Bodily Injury Coverage will be issued with
limits equal to the Bodily Injury Liability Limits of my policy and my
UM Property Damage Coverage will be issued with limits of $10,000
each accident.
Any change to my [UM/UIM] Coverage election shall be effective as
of the date of the written notification being received and shall apply to
all vehicles currently on the policy and to all vehicles added to the
policy in the future.
Id. at 191.
Beneath these statements are two boxes corresponding to the insured’s choice
regarding UM/UIM coverage. Next to the first box is the option to reject UM/UIM
coverage, which is presented as follows:
I reject UM/UIM Bodily Injury Coverage and UM Property Damage
Coverage. I have been offered [UM/UIM] Coverage up to an amount
equal to the limits of liability coverage and I reject the option to
purchase any [UM/UIM] Coverage. I understand that New Mexico law
requires [GEICO] to include [UM/UIM] Coverage with each policy of
automobile insurance sold in New Mexico. I understand that UM/UIM
provides insurance for losses which I may incur if I am injured by a
person who is not insured or who does not have enough insurance to
compensate me for my injury. I understand that New Mexico law
allows me to decide whether I want to keep the UM/UIM Coverage on
my insurance policy. Based on my understanding, I choose to decline
UM/UIM Coverage. 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
4
underinsured motorist.
Id. The Option Form signed and returned by the Jaramillos contains a checkmark in the
box beside the foregoing language.
The second box on the Option Form—left blank on the version returned by the
Jaramillos—accompanies the option to select UM/UIM coverage. This option states:
I select UM/UIM Bodily Injury Coverage and UM Property Damage
Coverage for the following limits which are equal to or lower than my
selected Bodily Injury Liability Limits (limits higher than the Bodily
Injury Liability Limits may not be selected). I have also selected my
option for UM Property Damage Coverage and understand that this
coverage cannot be purchased without UM/UIM Bodily Injury
Coverage.
Id.
The second page of the Option Form, which bears Ms. Jaramillo’s signature, notes
at the top that the Jaramillos’ “bodily injury liability coverage limit is:
$50,000/$100,000.” Id. at 192 (capitalization altered). It then itemizes several options
for UM/UIM coverage that may be purchased: eleven different UM/UIM bodily-injury
coverage limits, and six different UM property-damage coverage limits. In detailing
these potential coverage choices, the Option Form indicates the premium that would be
assessed for each option for each of the Jaramillos’ four vehicles. None of the boxes
corresponding to any UM/UIM selections have been checked on the Jaramillos’ returned
Option Form.
“After receiving the signed Option Form” on April 21, 2009, “GEICO deleted the
UM/UIM coverage initially selected by the Jaramillos . . . and refunded the prorated
5
UM/UIM premium of $163.23.” Id. at 304 (Mem. Op. & Order on Summ. J., filed Sept.
14, 2011). On April 22, 2009, GEICO issued a new Policy packet to the Jaramillos that
contained a revised set of endorsement declarations. A section of the packet labeled
“Important Messages” notifies the recipient that “[c]overages and/or limits were changed
as you requested or due to state requirements.” Id. at 199 (Family Auto. Pol’y
Endorsement Decls., issued Apr. 22, 2009) (emphasis added) (capitalization altered). The
next two pages set forth the Policy’s updated coverage limits and associated premiums for
all four insured vehicles—including the notation “INSURED REJECTS” in the sections
corresponding to UM/UIM coverage limits. Id. at 200–01. In addition, both pages advise
the insureds that “[c]overage applies where a premium or 0.00 is shown for the vehicle.”
Id. For each vehicle, the document displays a blank space in the premium section for
UM/UIM coverage, as opposed to a dollar amount or “0.00.” The revised Policy packet
also included a blank Option Form listing the same coverage options and premiums as the
version of the Option Form signed by Ms. Jaramillo—presumably for the Jaramillos’ use
if they chose to reconsider their rejection of UM/UIM coverage.
On July 11, 2009, while driving one of his insured vehicles, Mr. Jaramillo was
involved in an automobile accident. He sustained serious injuries, spent several days in
the hospital, and “incurred more than $200,000 in medical costs.” Aplt. Opening Br. at 7.
Because the operator of the other vehicle involved in the accident—who was apparently
at fault—was an underinsured motorist, the Jaramillos sought UM/UIM benefits. When
they did, GEICO refused to pay the claim, reasoning that the Jaramillos had expressly
6
rejected UM/UIM coverage. See Aplt. App. at 176 (Decl. of Ruben Garay, filed Feb. 21,
2011) (stating GEICO’s view that on the date of the accident, “the Jaramillo Policy did
not provide UM/UIM Bodily Injury coverage or UM/UIM Property Damage coverage as
to any vehicle on the Jaramillo Policy”).
After GEICO denied their claim, the Jaramillos filed suit in New Mexico state
court. Their complaint, styled as a putative class action, stated eight2 causes of action
related to GEICO’s refusal to pay UM/UIM benefits: (1) violation of New Mexico’s
Unfair Trade Practices Act; (2) violation of New Mexico’s Trade Practices and Frauds
Act and its insurance code; (3) a claim for UM/UIM benefits; (4) breach of the implied
covenant of good faith and fair dealing; (5) breach of contract; (6) a request for injunctive
relief;3 (7) a request for a declaratory judgment articulating their rights under the Policy;
and (8) a request for punitive damages. GEICO timely removed the matter to federal
court under the Class Action Fairness Act, see 28 U.S.C. § 1441(a); id. § 1332(d), and the
parties agreed to submit to the district court the legal and factual issues underlying only
the Jaramillos’ claims before proceeding to address the question of class certification.
2
In total, the complaint advanced thirteen causes of action. Counts Nine
through Thirteen pertained to Michael Atencio (the driver of the other vehicle involved in
Mr. Jaramillo’s accident) and Sarah Peterson (the owner of that vehicle), who were
subsequently dismissed as defendants.
3
In particular, the Jaramillos asked that “GEICO be enjoined from
continuing practices that violate [its] duties . . . and legal obligations”—i.e., “to stop its
practice of failing to provide UM/UIM coverage with limits equal to the limits of liability
coverage, where it has failed to obtain a valid waiver/rejection.” Aplt. App. at 46
(Compl., filed Oct. 15, 2010).
7
See Dist. Ct. Doc. 33, at 1 (Am. Scheduling Order, filed Feb. 15, 2011) (noting the
parties’ “agree[ment] on a process where key legal issues could [first] be presented”).
In early 2011, GEICO filed a motion for summary judgment, arguing that the
Policy provided no UM/UIM coverage for Mr. Jaramillo’s accident. GEICO contended
that the Jaramillos’ “written rejection of UM/UIM coverage [was] valid and enforceable
as it fully complie[d] with New Mexico law.” Aplt. App. at 162 (Summ. J. Mem., filed
Feb. 21, 2011). As a result, GEICO argued, its denial of UM/UIM benefits was
justified—and because all of the Jaramillos’ claims stemmed from an allegedly improper
denial of UM/UIM benefits, the complaint was not viable. The Jaramillos rejoined that
the Option Form was legally deficient for a host of reasons, including that GEICO had not
meaningfully incorporated the document into the Policy or made a “clear offer of
UM/UIM limits equal to and less than . . . liability limits.” Id. at 225 (Pls.’ Mem. in
Opp’n to Summ. J., filed Mar. 30, 2011) (emphasis omitted).
On September 14, 2011, the district court granted summary judgment in GEICO’s
favor. It concluded that the Option Form signed by Ms. Jaramillo complied with New
Mexico law because the document “clearly offered the opportunity to select UM/UIM
coverage in an amount equal to or lower than those selected bodily injury liability limits
while also providing premium costs corresponding to each level of coverage.” Id. at 309.
The court thus determined that GEICO had obtained a valid written rejection of UM/UIM
coverage from the Jaramillos and that it had properly incorporated the Jaramillos’
rejection of UM/UIM coverage into the Policy.
8
Not to be deterred, the Jaramillos filed a motion to reconsider, which the district
court construed as a motion to alter or amend a judgment brought pursuant to Federal
Rule of Civil Procedure 59(e).4 See Aplt. App. at 385 (Mem. Op. & Order Den. Recons.,
filed June 6, 2012). A full round of briefing ensued on the post-judgment motion.
Several months later, the district court denied reconsideration, observing that
“reconsideration is appropriate where the court has misapprehended the facts, a party’s
position, or the controlling law,” id. (internal quotation marks omitted), and that the
Jaramillos’ “repackaging” of arguments from the summary-judgment phase of the
litigation was “an improper basis for reconsideration,” id. at 387. The court then
reaffirmed its view that GEICO’s Option Form complied with New Mexico law, as
articulated by that state’s highest tribunal in Jordan v. Allstate Insurance Co., 245 P.3d
1214 (N.M. 2010), and noted the Jaramillos’ “fail[ure] to set forth any intervening change
in controlling law, new evidence that was previously unavailable, or other need to correct
clear error or prevent manifest injustice.” Aplt. App. at 391. This appeal followed.
4
Technically, “[a] motion for reconsideration [is] not recognized by the
Federal Rules of Civil Procedure.” Computerized Thermal Imaging, Inc. v. Bloomberg,
L.P., 312 F.3d 1292, 1296 n.3 (10th Cir. 2002). This court construes such a motion as
filed pursuant to Rule 59(e) or 60(b), depending on the asserted justification for, and
timing of, the motion. Id.; compare Servants of Paraclete v. Does, 204 F.3d 1005, 1012
(10th Cir. 2000) (“Grounds warranting a motion to reconsider [under Rule 59(e)] include
(1) an intervening change in the controlling law, (2) new evidence previously unavailable,
and (3) the need to correct clear error or prevent manifest injustice.”), with Fed. R. Civ. P.
60(b) (justifying relief for reasons such as “mistake, inadvertence, surprise, . . . excusable
neglect; . . . newly discovered evidence . . . ; [or] fraud”).
9
II
In this diversity case, the substantive law of New Mexico governs our analysis of
the Jaramillos’ claims, “but we are governed by federal law in determining the propriety
of the district court’s grant of summary judgment.” Hill v. Allstate Ins. Co., 479 F.3d
735, 739 (10th Cir. 2007) (internal quotation marks omitted). We therefore review the
district court’s order “de novo, applying the same standard as the district court.” Eugene
S. v. Horizon Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1130 (10th Cir. 2011). “In
so doing, we view the evidence and make inferences in the light most favorable to the
non-movant.” Kerber v. Qwest Grp. Life Ins. Plan, 647 F.3d 950, 959 (10th Cir. 2011).
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “[I]f the evidence is such that a reasonable jury could return a verdict for
the nonmoving party” on the issue presented, the dispute is “genuine.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmoving party’s obligation is to
“present more than a scintilla of evidence in favor of his position.” Ford v. Pryor, 552
F.3d 1174, 1178 (10th Cir. 2008).
“[A]n appeal from the denial of a motion to reconsider construed as a Rule 59(e)
motion permits consideration of the merits of the underlying judgment.” Hawkins v.
Evans, 64 F.3d 543, 546 (10th Cir. 1995); accord Pippin v. Burlington Res. Oil & Gas
Co., 440 F.3d 1186, 1191 (10th Cir. 2006). We generally review a district court’s denial
of relief under Rule 59(e) for an abuse of discretion. See Ysais v. Richardson, 603 F.3d
101175, 1180 (10th Cir. 2010). “We will not disturb such a decision ‘unless [we have] a
definite and firm conviction that the lower court made a clear error of judgment or
exceeded the bounds of permissible choice in the circumstances.’” Barber ex rel. Barber
v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009) (alteration in original)
(quoting Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997)). Moreover, as the
district court correctly noted in denying reconsideration, we will find “Rule 59(e)
relief . . . appropriate only where ‘the court has misapprehended the facts, a party’s
position, or the controlling law.’” Id. (quoting Servants of Paraclete, 204 F.3d at 1012).
III
A
We pause at the outset of our analysis to clarify the issues actually resolved in this
order and judgment. Although the Jaramillos purport to raise five issues for our review,
we construe their opening brief as presenting three issues. For the reasons stated herein,
we address only the first of these issues.
1
According to the Jaramillos, the first “issue” on appeal is whether GEICO’s offer
of UM/UIM coverage was invalid for failure to “make clear the amount of stacked
UM/UIM coverage available . . . or the corresponding cost” of such coverage.5 Aplt.
5
In the insurance context, to “stack” coverage means to aggregate it. See
Allstate Ins. Co. v. Indep. Appliance & Refrigeration Serv., Inc., 278 F.3d 1102, 1104 n.2
(10th Cir. 2002) (noting, while applying New Mexico law, that “‘[s]tacking’ . . . occurs
(continued...)
11
Opening Br. at 2. This question dovetails into the second “issue” presented: “[w]hether
the district court erred in holding that under New Mexico law, an insurer is not required
to inform the insured about premium costs corresponding to each available level of
stacked UM/UIM coverage.” Id. In light of this substantial overlap, we have determined
that “Issues I and II” more accurately comprise one question—viz., whether the Option
Form, through which the Jaramillos chose not to purchase UM/UIM coverage, is invalid
as a matter of law because it lacks a discussion or explanation of stacked UM/UIM
coverage. We confine our discussion of the merits to this issue and, as explicated below,
affirm the district court’s conclusion that the Option Form (and, by extension, the
Jaramillos’ rejection of UM/UIM coverage) satisfies New Mexico law.
2
Read together, “Issues III and V”6 (as stated by the Jaramillos) likewise constitute
one core question. In this argument the Jaramillos contend that, through statements in the
Policy, GEICO expressly misrepresented to them that stacked UM/UIM coverage was
unavailable. GEICO rejoins that the Jaramillos have not preserved this issue for appellate
5
(...continued)
when an individual collects from the insurer under multiple coverages”); see also Breaux
v. Am. Family Mut. Ins. Co., 554 F.3d 854, 856 (10th Cir. 2009) (describing “stacking,”
under Colorado law, as “combining the aggregate limits from separate policies”).
6
The Jaramillos frame “Issue III” as “[w]hether an insured can make a
knowing and intelligent rejection of UM/UIM coverage where an insurer misrepresents
that stacking of UM/UIM coverage is not available, misrepresents the cost of such
coverage, and misrepresents how much coverage is waived.” Aplt. Opening Br. at 3.
“Issue V” continues in that vein, asking “[w]hether the district court erred in authorizing
GEICO’s misrepresentations.” Id.12
review, and we agree. Consequently, we do not reach the merits of any misrepresentation
argument advanced by the Jaramillos here.
The Jaramillos’ misrepresentation theory originated in Count Two of their
complaint, wherein they alleged that GEICO violated New Mexico’s Trade Practices and
Frauds Act in several ways, such as “misrepresenting to insureds pertinent facts or policy
provisions relating to coverages at issue.” Aplt. App. at 43 (quoting N.M. Stat. Ann.
§ 59A-16-20(A)) (internal quotation marks omitted). Their argument was broad at the
inception of this lawsuit and remained so at the summary-judgment phase. In fact,
despite having access to their own challenged Policy at all relevant times in the district
court proceedings, the Jaramillos never underscored the Policy language constituting
these supposed misrepresentations. Instead, they lodged accusations that the Option
Form was “confus[ing]” and “mislead[ing]” in violation of New Mexico law. Id. at 225.
That broad position stands in stark relief to the significantly narrower one asserted on
appeal.
In this court, the Jaramillos identify the relevant misrepresentation as anti-stacking
language contained in the Policy—that is, GEICO’s alleged misrepresentation that
stacked UM/UIM coverage was unavailable to them. This is certainly not the same
argument propounded to the district court in the first instance. Indeed, our review of the
record makes clear that the Jaramillos never alleged misrepresentation as it relates to
stacked coverage in the pleadings or in responding to GEICO’s motion for summary
judgment. They completely neglected to isolate language from the Policy until the
13
reconsideration stage, see id. at 359, at which point the district court properly did not
address their newly-minted, post-judgment argument.
Because we find it pellucid that the district court was never fairly presented with
this late-stage, more nuanced question pertaining to misrepresentation, we conclude that
the Jaramillos have not preserved the issue. And while the Jaramillos’ shortcomings in
this regard are less egregious than if they had entirely failed to allege misrepresentation,
they have nonetheless forfeited their misrepresentation argument insofar as their theory
relies on the presence or absence of language in the Policy regarding stacking. See
Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011) (noting that “if [a]
theory . . . [was not] raised before the district court, we usually hold it forfeited”). We
decline to address this forfeited theory because of the Jaramillos’ “failure to argue for
plain error and its application on appeal,” which ordinarily, in this circuit, “surely marks
the end of the road for an argument for reversal not first presented to the district court.”
Id. at 1131.
3
Finally, in advancing “Issue IV,” the Jaramillos ask us to resolve the issue of
whether GEICO “meaningfully incorporated” the Option Form (and, therefore, their
rejection of UM/UIM coverage) into the Policy. Aplt. Opening Br. at 3. We find it
inappropriate to do so, given that their argument is limited to a handful of cursory
statements such as: “Put simply, GEICO failed to satisfy the fourth requirement laid out
[by the New Mexico Supreme Court]—to incorporate an insured’s rejection into the
14
policy. . . .” Id. at 18 (internal quotation marks omitted); see also id. at 12 (“[W]ithout a
valid waiver/selection/rejection of UM/UIM coverage, GEICO could not meaningfully
incorporate the same . . . .”); id. at 17–18 (“Because GEICO failed to make an offer that
complies with New Mexico law, it cannot satisfy its obligation to incorporate [the
insured’s] rejection into the policy. . . .” (alteration in original) (internal quotation marks
omitted)). There is no question either that “[s]cattered statements in the appellant’s brief
are not enough to preserve an issue for appeal,” Exum v. U.S. Olympic Comm., 389 F.3d
1130, 1134 n.4 (10th Cir. 2004), or that we “will not consider such issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation,” United
States v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004) (internal quotation marks
omitted). Guided by these principles, we deem this argument inadequately briefed and
will not consider it. See In re FCC 11-161, 753 F.3d 1015, 1093 (10th Cir. 2014)
(“Allband . . . fails to cite to a single case or statute in support of its claim. Consequently,
we deem the claim inadequately briefed and thus [unpreserved].”); Wilburn v. Mid-South
Health Dev., Inc., 343 F.3d 1274, 1281 (10th Cir. 2003) (noting that we “will not consider
issues that are raised on appeal but not adequately addressed”).
In sum, we expressly cabin our analysis here to the adequacy of the Option Form
provided by GEICO to the Jaramillos, guided by the principles of New Mexico’s
automobile insurance law. We decline to reach the merits of any of their other arguments
in support of reversal.
15
B
In resisting the district court’s summary-judgment ruling, the Jaramillos
principally rely on two New Mexico Supreme Court decisions—Jordan and Montano v.
Allstate Indemnity Co., 92 P.3d 1255 (N.M. 2004)—which they believe resolve the
question of the Option Form’s validity in their favor. Employing a strained reading of
both cases, the Jaramillos appear to assert that the Option Form is legally infirm because
it does not flesh out the nuances of stacked UM/UIM coverage.7 We are not persuaded by
7
We note that the Jaramillos’ arguments on this subject—both in the district
court and in their opening brief on appeal—reflect a lack of clarity. They fail to articulate
what language should be, but is not, printed on the Option Form; this failure significantly
undermines their ability to present a cogent argument for reversal. As the appellants, they
are required to identify in their opening brief their “contentions and the reasons for them,
with citations to the authorities and [relevant] parts of the record.” Bronson v. Swensen,
500 F.3d 1099, 1104 (10th Cir. 2007) (quoting Fed. R. App. P. 28(a)) (internal quotation
marks omitted); see id. (observing that “we routinely have declined to consider arguments
that are . . . inadequately presented . . . in an appellant’s opening brief”). Time and again,
however, the Jaramillos have failed to state in any useful way what it means as a practical
matter for a UM/UIM rejection form to “discuss” or “explain” stacked coverage. See
Aplt. Opening Br. at 26 n.6 (“[T]he Jaramillos concede they inelegantly used the phrase
‘discussion of stacking’ . . . .”). This deficiency has understandably stymied GEICO’s
attempts to offer a meaningful response. See, e.g., Aplee. Br. at 24 (“Neither Jordan nor
Montano require that UM/UIM rejection forms must become treatises on the law of
UM/UIM coverage and must include information on the many nuances regarding the
stackability of such coverage in New Mexico.”).
Indeed, not until the filing of their reply brief have the Jaramillos attempted to
offer any language that, in their view, could cure the alleged deficiencies in GEICO’s
Option Form. Their eleventh-hour explanation is that “[s]imply adding two
columns . . . makes clear to the insured the ‘maximum amount’ of coverage they are
being offered for the premium price paid.” Aplt. Reply Br. at 8. And, to that end, they
suggest that GEICO augment the Option Form with columns titled “Total premium cost”
and “Total stacked coverage per person/per accident.” Id. (capitalization altered). They
(continued...)
16
their unsupported summation of these governing cases regarding the proper construction
of New Mexico’s uninsured motorist statute.
1
First, given the parties’ focus (and that of their cited cases) on stacked UM/UIM
coverage in New Mexico, some basic contextual background is warranted. “Stacking is a
judicially-created doctrine, which thus far has not met the disapproval of the [New
7
(...continued)
also intimate that unless the Option Form states, “You may purchase any of the coverage
options up to, but not exceeding, your liability coverage limits,” id., “an insured is led to
believe . . . that [he] can purchase more UM/UIM insurance than what [he] ha[s] in
liability coverage,” id. at 8 n.4. We are not inclined to afford this cursory, late-stage (and
still distressingly vague) explanation any solicitude. To do so “would be manifestly
unfair to the appellee who, under our rules, has no opportunity for a written response.”
Hill v. Kemp, 478 F.3d 1236, 1251 (10th Cir. 2007) (internal quotation marks omitted).
Insofar as the foregoing captures what the Jaramillos seek concerning the Option
Form, we recognize that there are states that ostensibly embrace and require such
language. The courts of Pennsylvania and Hawaii, for instance, arguably could be
deemed to have required some “discussion” of stacking in the way the Jaramillos
presumably mean. See, e.g., Sackett v. Nationwide Mut. Ins. Co., 940 A.2d 329, 334 (Pa.
2007); Macabio v. TIG Ins. Co., 955 P.2d 100, 107–09 (Haw. 1998). And, while the
Jaramillos make no mention of Macabio, we note in particular that this case involved a
coverage-selection form with language that we suspect the Jaramillos would like to see on
GEICO’s Option Form. See 955 P.2d at 103 (“The enclosed Selection form allows you to
request ‘stacked’ UM or UIM Coverages. Premium for the ‘stacked’ options are provided
alongside the premiums for the same limit with ‘non-stacked’ coverage for easy
comparison.”). But ultimately the Jaramillos must accept the conclusion, as explicated
herein, that New Mexico is not among the states that require such stacking-related
language. We express no opinion on the propriety of such language and cite it only for
purposes of comparison. The operative point is that New Mexico plainly does not
mandate that level of detail as part of its “workable requirements” for rejecting UM/UIM
coverage, see Jordan, 245 P.3d at 1221—ergo, the absence of such language cannot
support reversal.
17
Mexico] Legislature.” Montano, 92 P.3d at 1260; see Rodriguez v. Windsor Ins. Co., 879
P.2d 759, 759 (N.M. 1994) (“Our past cases have evolved a strong judicial policy, rooted
in [New Mexico’s] uninsured motorists insurance statute, favoring stacking . . . .”
(citation omitted)), modified on other grounds by Montano, 92 P.3d at 1256. It
contemplates not only “[t]he process of obtaining benefits from a second policy on the
same claim when recovery from the first policy alone would be inadequate,” Black’s Law
Dictionary 1534 (9th ed. 2009), but also “intra-policy stacking” in the context of
automobile insurance, which is “guided by the simple fact that UM personal injury
coverage [follows the insured and] does not follow the automobile,” Montano, 92 P.3d at
1258. See also Mena v. Safeco Ins. Co., 412 F.3d 1159, 1162 (10th Cir. 2005) (though
applying Wyoming law, recognizing that stacking is “the phenomenon of insureds or
claimants against them adding all available policies together to create a greater pool in
order to satisfy their actual loss” (internal quotation marks omitted)).
In recent years, New Mexico courts have addressed the validity of automobile
insurance policies that purport to preclude stacking. One notable decision in that regard
is Montano, wherein the insurer attempted to rely on anti-stacking language in a policy it
issued so as to avoid stacking coverage despite the insured’s payment of multiple
premiums. See 92 P.3d at 1256. In Montano, the plaintiff posed to the New Mexico
Supreme Court the “invitation to declare all anti-stacking provisions void as against
public policy,” which the court rejected. Id. The Montano court instead declared its
intent to resolve the “seemingly inherent ambiguities in anti-stacking clauses.” Id. at
18
1260. Its core holding was that “an insurance company should obtain written rejections
of stacking in order to limit its liability based on an anti-stacking provision” in a policy.
Id. (emphasis added).8
Six years later, in Jordan, the New Mexico Supreme Court nodded—in very
general terms—to its holding in Montano, which it viewed as having properly balanced
the public-policy concerns of freedom of contract and the need to honor “the broad intent
of the [UM/UIM] statute.” Jordan, 245 P.3d at 1221 (alteration in original) (quoting
Montano, 92 P.3d at 1255) (internal quotation marks omitted). But it is important to
recognize that Jordan did no more than give this general nod to Montano: the Jordan
court did not comment on the question of stacking, and it did not explicitly forge a nexus
between the new standard that it announced and the concept of stacking.
Setting the stage for explicating this standard, we note that it was clear when
Jordan was decided that New Mexico’s UM/UIM statute (1) required every vehicle
insurance policy to provide UM/UIM coverage “in minimum limits for bodily injury or
death . . . and such higher limits as may be desired by the insured, but up to the limits of
liability specified in [the] bodily injury” portion of a policy, N.M. Stat. Ann. § 66-5-
301(A); and (2) conferred upon the insured “the right to reject [UM/UIM] coverage,” id.8
To illustrate its holding, the court offered the following hypothetical (which
we find comparable to the situation presented by the Jaramillos): “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.” Montano, 92 P.3d at 1260–61.
19
§ 66-5-301(C); accord Weed Warrior, 245 P.3d at 1211. However, the Jordan court was
troubled by those provisions’ “[failure to] expressly specify the form or manner that a
rejection must take in order to be effective.” 245 P.3d at 1220. Jordan was therefore a
milestone along the state’s path of interpreting its UM/UIM statute because it expressly
“[held] that a rejection of UM/UIM coverage equal to the limits of liability is valid only if
it is obtained in writing and made a part of the policy that is delivered to the insured.” Id.
Most salient for our purposes, Jordan presented the opportunity to clarify the
mechanics of applying New Mexico’s uninsured motorist statute. At the outset of its
discussion, the court noted that it was consolidating three cases “in order to provide
guidance on the technical requirements for valid offers and rejections of UM/UIM
coverage.” Id. at 1219. In each of those cases, the insurers issued automobile insurance
policies providing UM/UIM coverage in amounts less than the liability coverage. Id. at
1217–19. The insureds argued that “each insurer failed to obtain a valid rejection of
UM/UIM coverage equal to the limits of liability,” and the court of appeals went on to
rule in favor of all three groups of insureds. Id. at 1219. In light of its newly-minted
decision in Weed Warrior (issued the same day), see supra note 1, the New Mexico
Supreme Court articulated a test to guide courts going forward on “the form and manner
that offers and rejections of UM/UIM coverage must take” to satisfy state law. Jordan,
245 P.3d at 1219.
Bearing in mind that “[t]he provision of the maximum possible amount of
UM/UIM coverage in every insurance policy is the default rule, and any exception to that
20
rule must be ‘construed strictly to protect the insured,’” id. (quoting Romero v. Dairyland,
803 P.2d 243, 245 (N.M. 1990)), the court stated as follows:
If an insurer does not (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.
Id. at 1221. With respect to the second prong, the Jordan court clarified that an insurer
must provide the “premium charge for [the] maximum amount of UM/UIM coverage”
(the maximum amount being “an amount equal to the policy’s liability limits”9) as well as
the “premium cost for the minimum amount of UM/UIM coverage allowed by Section
66-5-301(A),” and “the relative costs for any other levels of UM/UIM coverage offered to
the insured”—viz., the costs for a range of coverage between the minimum and maximum
amounts. Id. The court alluded to the public-policy justification for this rule by
9
It is evident that the Jaramillos construe “maximum amount of coverage”
and “maximum stacked amount of coverage” as fungible concepts. See Aplt. Opening Br.
at 33 (arguing that “GEICO expressly violates Jordan’s mandate that the insured be
advised of the maximum UM/UIM coverage available, and the cost for the same” in the
context of arguing that GEICO should have indicated that stacking was available).
However, the language of Jordan makes clear that the “maximum amount” contemplated
is simply an amount equal to the policy’s liability limits, and we decline to graft the
crucial word “stacked” onto its holding. See 245 P.3d at 1221 (without mentioning
stacking, holding that “[w]hen issuing an insurance policy, an insurer must inform the
insured that he or she is entitled to purchase UM/UIM coverage in an amount equal to the
policy’s liability limits and must also provide the corresponding premium charge for that
maximum amount of UM/UIM coverage” (emphasis added)).
21
observing that “[p]roviding . . . 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 wants to purchase and can afford.” Id. Importantly, as noted, except
for the general reference to Montano, 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.
2
Next, having clarified the rules of Montano and Jordan, we are left with no doubt
that the Jaramillos misunderstand both holdings in a manner that fatally undermines their
position. The Jaramillos characterize the New Mexico Supreme Court as having staked a
clear position in Montano and Jordan—namely, that the court “reaffirmed and clarified
its repeated pronouncements that insurers must give consumers adequate information
regarding the amounts of stacked UM/UIM coverage available.” Aplt. Opening Br. at 12
(internal quotation marks omitted). By contrast, we view both cases as ironclad support
for GEICO’s position—and, more importantly, for affirming the district court.
a
With respect to Montano, the Jaramillos claim that case “provides the legal
foundation for the [New Mexico Supreme] Court’s mandate that insurance carriers
provide the premium costs for each available level of stacked coverage.” Id. at 28
(internal quotation marks omitted). But that argument does not tip the balance in their
favor. Montano is easily distinguishable from the Jaramillos’ case, and it does not control
the outcome of this appeal.
22
By its terms, Montano’s holding is a narrow one; notably, it presupposes a policy
with anti-stacking language. See 92 P.3d at 1260 (holding that the “solution
to . . . inherent ambiguities in anti-stacking clauses” was to “obtain written rejections of
stacking in order to limit [an insurer’s] liability based on an anti-stacking provision”
(emphasis added)); id. at 1261 (“[T]he conclusion we now draw from the history of
stacking litigation in this State [is] . . . that anti-stacking clauses are almost inherently
ambiguous and are no longer effective at precluding stacking.”). In fact, the Montano
court unmistakably declared that “the question presented in this case, specifically, [was]
whether [the court] would preclude stacking when the insurance policy purports to
preclude it.” Id. at 1258.
By contrast, 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. And GEICO’s assertion finds support
in the record; a cursory review of the Policy—both as initially issued and after the
Jaramillos’ rejection of UM/UIM coverage—demonstrates that there is no language
germane to the concept of stacking at all in the document. Notably, the Policy contains
no provision like the clause at issue in Montano, which purported to limit stacking. See
id. at 1257 (“[W]e will stack or aggregate up to two, but no more than two, Uninsured
Motorist Insurance for Bodily Injury coverages under this policy.”). Thus, GEICO’s
record-substantiated contention alone clearly renders Montano inapposite here.
Cases interpreting Montano likewise have not suggested that its holding sweeps as
23
broadly as the Jaramillos insist that it does—viz., broadly enough to establish the legal
predicate for a purported obligation of insurers to specify in the Option Form (and waiver
of UM/UIM coverage) the premium costs for each available level of stacked coverage.
See, e.g., Whelan v. State Farm Mut. Auto. Ins. Co., --- P.3d ----, 2014 WL 2707843, at *6
(N.M. 2014) (describing Montano as merely “holding for the first time that insurers were
expected to be aware of rejection requirements regarding UM/UIM coverage”).
One noteworthy example in this regard is the New Mexico Court of Appeals’s
recent decision in Arias v. Phoenix Indemnity Insurance Co., --- P.3d ----, 2013 WL
6494110 (N.M. Ct. App. 2013), cert. denied, 321 P.3d 935 (N.M. 2014). Not
surprisingly, the Jaramillos bring this case to our attention because of the court’s initial
statement that “Montano holds that insurers must obtain written rejections of stacking to
avoid liability,” Arias, 2013 WL 6494110, at *3, and its nod to “Montano’s discussion of
stacking as extra coverage for which the parties have contracted,” id. at *4 (internal
quotation marks omitted). In fact, the Jaramillos contend, the import of this language is
that “[Arias] held that just as UM/UIM coverage has to be read into a policy absent a
valid rejection of UM/UIM coverage, so too must stacked coverage.” Notice of Supp.
Authority, No. 12-2108, at 1 (10th Cir., filed Dec. 19, 2013). We disagree.
A more careful reading of Arias makes short work of the Jaramillos’ suggestion
that it bolsters their appellate argument concerning Montano. The Arias court expressly
stated that “Montano dealt with a policy that specifically sought to limit stacking by its
terms, but wound up having those limitations struck down and full per-vehicle stacking
24
imposed on the policy when an ambiguity resulted in an invalid rejection of stacking.”
2013 WL 6494110, at *4. That language laid the foundation for the court’s central
concern: whether, when UM/UIM coverage is judicially imposed on a policy, that court-
created coverage must also be stacked. The Arias court was especially concerned about
the “legal ambiguity as to the extent of that [judicially-imposed] coverage,” id. at
*5—much as the Montano court sought to alleviate “inherent ambiguities in anti-stacking
clauses,” 92 P.3d at 1260. Just as Montano was clearly predicated on the ambiguousness
of anti-stacking language in a policy, Arias presupposed ambiguousness caused by the
imposition of UM/UIM coverage on a policy. In other words, stacking in the situation
contemplated by Arias follows only after the court finds an invalid rejection of UM/UIM
coverage and reads that coverage into a policy.
We are ultimately satisfied that our interpretation of Arias is congruent with that
court’s own reasoning, as demonstrated by the following excerpts:
Plaintiff attempts to impose intra-policy stacking of [UM/UIM]
coverage into an insurance policy we previously reformed, owing to the
imperfect handling of her rejection of UM/UIM coverage. . . .
Where courts confer UM/UIM coverage where a policy is silent on the
matter, it follows that each vehicle also acquires coverage, and those
coverages are to be stacked. . . .
We hold that, as much as coverage itself to the maximum limit of
liability must be read into [the insured’s] policy, stacking of coverage
for each of the two vehicles thus insured must now follow suit . . . .
[W]e conclude that as we inject UM/UIM coverage into a policy as a
matter of law for failure of any rejection of coverage, the law also
requires the imposition of a per-vehicle stacking of coverage into a
25
single policy. In this case, ambiguities arose in Arias’s policy’s
language, owing first to the defective rejection of coverage requiring
that coverage be read into the policy. Second, the requirement noted
above that coverage applies to any vehicle demands stacking of
coverage in the absence of indications to the contrary. Having extended
to her the availability of UM/UIM coverage as a matter of law, we also
include per-vehicle stacking. We believe that, in the absence of a
rejection of coverage altogether, the coverage that must be extended is
the full measure accorded her by the default positions afforded by law.
This includes UM/UIM coverage generally, specifically to be stacked
as to each of her insured vehicles.
2013 WL 6494110, at *1, *4–5 (emphases altered). As we see it, the foregoing trajectory
of logic does not substantiate the Jaramillos’ argument that “[Arias] demonstrates that the
full offer of UM/UIM coverages includes stacked coverages, [and that] therefore
GEICO’s offer of coverage was defective because its policy specifically prohibited
stacking, i.e., did not offer stacked coverage.” Notice of Supp. Authority at 1. Rather, it
demonstrates that the Jaramillos have placed the metaphorical cart before the horse by
insisting that we read stacking into a policy before reaching the issue of whether they
validly rejected UM/UIM coverage. This we will not do, for Jordan answers the
threshold validity question in GEICO’s favor.
In sum, we conclude that Montano does not stand for the proposition that the
Option Form could only have been valid under New Mexico law if it had specifically
mentioned the concept and effect of stacking coverage. Arias does not change our
analysis in any appreciable fashion. Having properly concluded that the Jaramillos
validly rejected the option to purchase UM/UIM coverage, the district court was never
obligated to consider—let alone read into the policy—stacking coverage.
26
b
Turning to Jordan, we likewise conclude that it does not do the mighty work the
Jaramillos claim it does—at least not as applied to their circumstances. At bottom,
Jordan’s primary contribution to New Mexico’s insurance jurisprudence is its
presentation of four “workable requirements” for a valid rejection of UM/UIM coverage:
(1) an offer to the insured to purchase UM/UIM coverage in an amount equal to the
policy’s liability limits; (2) information regarding corresponding premium charges for
each available UM/UIM coverage choice; (3) the insured’s “written rejection of UM/UIM
coverage equal to the liability limits”; and (4) incorporation of that rejection into the
policy such that the insured may fairly reconsider his decision. 245 P.3d at 1221. Jordan
does not mandate—either explicitly or implicitly—that a rejection of UM/UIM coverage
equal to a policy’s liability limits is invalid without a “discussion” or “explanation” of
stacking principles.10
As noted above, the district court conducted a thorough review of GEICO’s Option
Form and deemed it fully compliant with the requirements of Jordan. On appeal, the
Jaramillos continue their attack on the Option Form under Jordan’s second prong—viz.,
they argue that the document does not “inform the insured about premium costs
corresponding to the available levels of coverage.” Id. at 1221. In mounting this
10
In our view, stacking is relevant to this appeal only in the context of
GEICO’s duty under Jordan to “inform the insured about premium costs corresponding to
the available levels of coverage.” 245 P.3d at 1221.
27
challenge, they deem the Option Form “legally deficient because it does not meaningfully
allow the insured to understand how much UM/UIM coverage is being offered, or how
much coverage is being given up, at the premium prices provided in the form.” Aplt.
Opening Br. at 19. The sole argument advanced in support of this allegation is that an
insurer’s obligation to provide insureds with the premium costs for each available level of
UM/UIM coverage (the second prong of the Jordan test) “necessarily includes stacked
coverage in a multiple-vehicle policy, in order to allow insureds to contract for the exact
amount of coverage they can afford and want to purchase.” Id. at 20. Thus, reason the
Jaramillos, GEICO was obligated to list substantially more information on the Option
Form than it did.
The Jaramillos operate from the premise that they “were entitled to purchase up to
$50,000/$100,000 in UM/UIM coverage on each of their four vehicles because they had
chosen $50,000/$100,000 in liability coverage on each of their four vehicles.” Id. at 21.
This is unquestionably true under the Weed Warrior line of cases. See 245 P.3d at
1213–14; accord Jordan, 245 P.3d at 1217; Curry v. Great Nw. Ins. Co., 320 P.3d 482,
486 (N.M. Ct. App. 2013), cert. denied, 324 P.3d 375 (N.M. 2014). And by the
Jaramillos’ calculations, the stacking effect of choosing this maximum level of UM/UIM
coverage (a choice they undisputedly did not make) would have “afford[ed] coverage
limits of $200,000.00 per person”—i.e., $50,000 liability coverage multiplied by each of
the four vehicles—and “$400,000.00 per occurrence”—i.e., $100,000 liability coverage
multiplied by each of the four vehicles—“for any incident involving an uninsured or
28
underinsured motorist tortfeasor.” Aplt. Opening Br. at 21. This, too, is true.
However, according to the Jaramillos, the problem with the foregoing is that none
of this stacked-coverage arithmetic is printed on the Option Form. See id. at 21–22
(“[N]othing in the [Option Form] . . . informs the Jaramillo family of the stacked
UM/UIM coverage benefits available to them. Nothing in the [Option Form] advises the
Jaramillos of their ability to select lower limits with a corresponding advisory
[discussion] of what the total in stacked limits would afford in coverage.” (emphases
added)). This suggests to the Jaramillos that the Option Form does not convey “the
actual UM/UIM coverage available to them,” id. at 22 (emphasis added), and that it
somehow obfuscates the issue of rejecting UM/UIM benefits.
The Jaramillos further contend that, based on the Option Form,
an insured cannot consider that, for the cost of four premiums, the
insured has accessibility to four times as much UM/UIM coverage as
is indicated on the option form (e.g., $25,000/$50,000 in UM coverage
x 4 stacked vehicles = $100,000/$200,000 in stacked UM/UIM
coverage). Instead, the insured is led to believe that he or she must pay
four premiums and will only have single limits (i.e., $25,000/$50,000)
available.
Id. at 23; see Aplt. App. at 192. In other words, they maintain that the Option Form
“simply [did] not alert the Jaramillos to the fact that for every $38.90 in coverage (on
each vehicle) they were getting an additional $25,000/$50,000 in stacked UM/UIM
coverage.” Aplt. Opening Br. at 28. We need not (and consequently do not) opine on
whether this is a feasible interpretation of the document, however, for the Option Form on
its face clearly comports with Jordan’s mandate that it “inform the insured about
29
premium costs corresponding to the available levels of coverage.” 245 P.3d at 1221.
Critically, Jordan does not expressly require that the Option Form provide the premium
costs corresponding to the available levels of stacked coverage.11 Thus, the Jaramillos’
rejection of UM/UIM insurance could not have been invalid under New Mexico law
simply because the Option Form did not tally up the stacked coverage amounts for the
Jaramillos’ four vehicles—in other words, because it did not multiply each available level
of coverage by four.
The New Mexico Supreme Court’s holding in Whelan bolsters our view that
Jordan means what we construe it to mean: “Jordan followed Monta[n]o by requiring
similar premium disclosure as to the premium charges corresponding to each available
option of UM/UIM coverage.” Whelan, 2014 WL 2707843, at *7 (internal quotation
marks omitted). Jordan does, of course, require that insurers provide the premium costs
when offering UM/UIM coverage. And here, the Option Form returned by the Jaramillos
plainly did provide the relevant premium costs for each level of coverage; it simply did
not list the total amount of stacked coverage that would be available at each level. But
Jordan did not require it to do so. It mandated only the four requirements listed above,
11
The district court emphasized this observation in granting summary
judgment for GEICO, stating: “At no point does Jordan mandate or even imply that
UM/UIM Option Forms must have a discussion of stacking in order to be valid. This
failure to mention a requirement that the Option Form discuss stacking is especially fatal
to [the Jaramillos’] argument in light of Jordan’s stated aim ‘to provide guidance on the
technical requirements for valid offers and rejections of UM/UIM coverage.’” Aplt. App.
at 314 (quoting Jordan, 245 P.3d at 1219).
30
which the district court properly deemed GEICO to have satisfied by offering the state-
required amount of UM/UIM coverage; informing the Jaramillos of the same in the
Option Form, see Aplt. App. at 191–92; receiving the returned, signed Option Form (i.e.,
a written rejection); and meaningfully incorporating the rejection of coverage into the
Policy by providing “Endorsement Declarations at the front of the Policy expressly
stat[ing] that coverage [had] been rejected,” id. at 318.
In sum, we find that neither Jordan nor Montano expressly requires the kind of
“discussion of stacking”—viz., a totaling of the premium cost for all vehicles and the
provision of the associated amount of stacked coverage at each level of coverage—that
the Jaramillos suggest must be on a valid Option Form (and waiver of UM/UIM
coverage).12 In support of this conclusion, we observe that the philosophy underlying
New Mexico’s stacking jurisprudence is twofold: “fulfilling the reasonable expectations
of the insured and ensuring that the insured receive what he or she pays for.” Montano,
92 P.3d at 1261. Here, both of these functions were achieved. The Jaramillos opted out
12
The district court concluded that
[t]o the extent that Jordan cites Montano, it is not to expand Montano’s
holding regarding anti-stacking provisions to impose new requirements
for rejecting UM/UIM coverage. The Jordan Court cited Montano’s
requirement that insurance carriers provide insureds with the premium
costs for each available level of stacked coverage as an example of
striking the balance between freedom of contract and honoring the
broad intent of the UM/UIM statute.
Aplt. App. at 313.
31
of UM/UIM coverage entirely and, as such, could have had no reasonable expectation of
having such coverage. See Aplt. App. at 191; cf. Montano, 92 P.3d at 1261–62 (“If the
primary goal is to fulfill the reasonable expectations of the insured, then there is no need
to look at anything beyond the language of the policy itself.”). And, since they at no
point tendered any premium payments for UM/UIM benefits, they appropriately did not
receive such coverage after Mr. Jaramillo’s (admittedly unfortunate) accident.
Perhaps the underlying import of the Jaramillos’ argument is that if they had
known stacked coverage was available—and that they would therefore be getting four
times the coverage for the premium paid in the event of an accident—they would have
opted to purchase UM/UIM coverage instead of declining it. Insofar as that has been
intimated, we find no record support for it. And, because New Mexico case law does not
buttress the Jaramillos’ argument that GEICO was obligated to discuss stacking in its
Option Form, we affirm the district court’s grant of summary judgment to GEICO.
C
For the same reasons discussed above concerning the summary-judgment ruling,
the Jaramillos’ challenge to the district court’s denial of reconsideration also fails. The
motion to reconsider was predicated on the Jaramillos’ insistence that, in granting
summary judgment to GEICO, the district court disregarded binding New Mexico
authority. See Aplt. App. at 326 (Mot. for Recons., filed Oct. 12, 2011) (arguing that the
summary-judgment ruling “forsakes” the principles of Jordan and Montano). It in no
way established the “extraordinary circumstances” of an intervening change in controlling
32
law or new, but previously unavailable evidence. Servants of Paraclete, 204 F.3d at
1012. And its claim that the summary-judgment ruling “circumvent[ed] GEICO’s
obligation to make plain its offer of stackable UM/UIM coverage,” Aplt. App. at 330
(emphasis added), does not reveal any “need to correct clear error or prevent manifest
injustice,” Servants of Paraclete, 204 F.3d at 1012, because the assertion is incorrect.
Having reviewed the Jaramillos’ arguments regarding reconsideration, we discern
no facts or legal theories other than ones they repackaged from earlier proceedings or
could have asserted during those proceedings. The district court was therefore under no
obligation to “revisit[], albeit in somewhat different forms, the same issues already
addressed” at summary judgment, and it is clear that “[o]n this basis alone we [may]
affirm the district court’s denial of the motion to reconsider.” Van Skiver v. United
States, 952 F.2d 1241, 1243 (10th Cir. 1991) (internal quotation marks omitted).
Nonetheless, the district court did address the Jaramillos’ recycled assertions—rebutting
them with reasoned, legally supported justifications, no less. In our view, the court’s
careful attention to the Jaramillos’ submissions militates against a finding of abuse of
discretion. We are satisfied that its denial of reconsideration was squarely within “the
bounds of permissible choice in the circumstances,” Phelps, 122 F.3d at 1324, and we
affirm that judgment of the district court as well.
33
IV
The Jaramillos have also filed a motion to certify to the New Mexico Supreme
Court the issue we have addressed on appeal. More specifically, they request that we ask
the New Mexico Supreme Court “[whether] a motor vehicle insurer [may] issue a valid
waiver of uninsured motorists coverage where the waiver form does not advise the
insured of stacked uninsured motorists coverage, and fails to advise the insured of the
maximum coverage, or the extent of coverage, available.” Mot. to Certify, No. 12-2108,
at 3 (10th Cir., filed Oct. 1, 2012). Finding no basis to do so, we deny the Jaramillos’
motion.
Tenth Circuit Rule 27.1(A) governs the certification of state-law questions and
provides that, “[w]hen state law permits, this court may: (1) certify a question arising
under state law to that state’s highest court according to that court’s rules; and (2) abate
the case in this court to await the state court’s decision of the certified question.” 10th
Cir. R. 27.1(A); accord Kan. Judicial Review v. Stout, 519 F.3d 1107, 1120 (10th Cir.
2008). New Mexico permits its highest state tribunal to “answer a question of law
certified to it by a court of the United States . . . if the answer may be determinative of an
issue in pending litigation in the certifying court and there is no controlling appellate
decision, constitutional provision or statute of this state.” N.M. Stat. Ann. § 39-7-4. The
decision to certify ultimately “rests in the sound discretion of the federal court.” Lehman
Bros. v. Schein, 416 U.S. 386, 391 (1974). We have said that the certification procedure
“is particularly appropriate where the legal question at issue is novel and the applicable
34
state law is unsettled,” Allstate Ins. Co. v. Brown, 920 F.2d 664, 667 (10th Cir. 1990) (per
curiam), two considerations that often arise in insurance cases. See, e.g., Ball v. Wilshire
Ins. Co., 498 F.3d 1084, 1084 (10th Cir. 2007) (certifying questions regarding the
interpretation of Oklahoma’s compulsory liability insurance statute); Hartford Ins. Co. of
Midwest v. Cline, 427 F.3d 715, 716 (10th Cir. 2005) (certifying a question regarding
construction of “family member” under New Mexico’s vehicle insurance statute); Cline,
427 F.3d at 717 (noting that an insurance question was “distinctively a state-law issue”).
However, in our view Jordan and Montano provide a coherent basis for resolving
the Jaramillos’ appeal, making a resort to certification unnecessary. Cf. Pino v. United
States, 507 F.3d 1233, 1236 (10th Cir. 2007) (“[W]e will not trouble our sister state
courts every time an arguably unsettled question of state law comes across our desks.
When we see a reasonably clear and principled course, we will seek to follow it
ourselves.”). Assuming arguendo that this case implicates a novel legal issue, it is well-
settled that “just because a new state law question is raised, ‘[c]ertification is not to be
routinely invoked whenever a federal court is presented with an unsettled question of
state law.’” Copier ex rel. Lindsey v. Smith & Wesson Corp., 138 F.3d 833, 838 (10th
Cir. 1998) (alteration in original) (quoting Armijo v. Ex Cam, Inc., 843 F.2d 406, 407
(10th Cir. 1988)). We are confident that we have fulfilled our “duty to decide questions
of state law even if difficult or uncertain,” id., in the case at hand.
Additionally, it is undisputed that at no point in the proceedings before the district
court did the Jaramillos seek certification of this (or, indeed, any other) state-law
35
question. In fact, the record unambiguously shows that the Jaramillos’ proposed
certification question did not surface until after the district court’s award of summary
judgment to GEICO. This court “generally will not certify questions to a state supreme
court when the requesting party seeks certification only after having received an adverse
decision from the district court.” Massengale v. Okla. Bd. of Exam’rs in Optometry, 30
F.3d 1325, 1331 (10th Cir. 1994); accord Enfield ex rel. Enfield v. A.B. Chance Co., 228
F.3d 1245, 1255 (10th Cir. 2000); see also Boyd Rosene & Assocs., Inc. v. Kan. Mun. Gas
Agency, 178 F.3d 1363, 1364 (10th Cir. 1999) (“Late requests for certification are rarely
granted by this court . . . , particularly when the district court has already ruled.”). We
certainly may do so, see, e.g., State Farm Mut. Auto. Ins. Co. v. Fisher, 609 F.3d 1051,
1058–59 (10th Cir. 2010) (sua sponte certifying “a matter of exceptional importance” and
multiple “unsettled questions of Colorado law”), but we are “never compelled [to], even
when there is no state law governing an issue,” Boyd Rosene, 178 F.3d at 1365. We
decline to do so in this instance. “[N]either this court nor the parties would reap any
conservation of time, energy, or resources” from certification—even if “[c]ertification
may well have been an appropriate option at some time earlier in [the] litigation.” Id.
We find that the New Mexico Supreme Court’s holdings in Jordan and Montano
establish “a reasonably clear and principled course” for us to follow. Pino, 507 F.3d at
1236. Consequently, we follow that course and deny the Jaramillos’ motion to certify a
question of state law.
36
V
We AFFIRM the district court’s grant of summary judgment in favor of GEICO,
AFFIRM its denial of reconsideration, and DENY the Jaramillos’ motion to certify.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
37