Farmers Ins. Co. v. Chen ( 2011 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 FARMERS INSURANCE COMPANY
8 OF ARIZONA,
9 Plaintiff/Counter-Defendant-Appellants,
10 v. NO. 28,859
11 XIAN CHEN,
12 Defendant/Counter-Plaintiff-Appellee.
13 APPEAL FROM THE DISTRICT COURT OF LOS ALAMOS COUNTY
14 James A. Hall, District Judge
15 O’Brien & Padilla, P.C.
16 Daniel J. O’Brien
17 Albuquerque, NM
18 for Appellant
19 Law Office of James A. Branch, Jr.
20 James A. Branch, Jr.
21 Albuquerque, NM
22 Law Office of Brian K. Branch
23 Brian K. Branch
24 Albuquerque, NM
25 for Appellee
1 MEMORANDUM OPINION
2 VANZI, Judge.
3 This case comes to us on remand from the New Mexico Supreme Court for
4 further consideration in light of Progressive Northwestern Insurance Co. v. Weed
5 Warrior Services, 2010-NMSC-050, ___ N.M. ___, ___ P.3d ___. See Order,
6 Farmers Ins. Co. of Ariz. v. Chen, S. Ct. No.32,243, dated Nov. 3, 2010. We conclude
7 on remand that Weed Warrior and our Supreme Court’s related decision in Jordan v.
8 Allstate Insurance Co., 2010-NMSC-051, ___ N.M. ___, ___ P.3d ___ (consolidated
9 with Romero v. Progressive Nw. Ins. Co., and Lucero v. Trujillo), does not change our
10 prior decision filed on January 26, 2010 (Farmers I), affirming the district court ’s
11 order granting summary judgment in favor of Mr. Chen. Farmers Ins. Co. of Ariz. v.
12 Chen, 2010-NMCA-031, ¶ 28, 148 N.M. 151, 231 P.3d 607.
13 DISCUSSION
14 At our request, the parties filed supplemental briefs addressing our Supreme
15 Court’s disposition in Weed Warrior and Jordan. Mr. Chen urges us to affirm our
16 prior ruling because it is consistent with our Supreme Court’s holdings in Weed
17 Warrior and Jordan. Farmers Insurance Company of Arizona (Farmers), on the other
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1 hand, argues that (1) the rule set forth in Jordan requiring insurers to provide
2 information concerning premium charges for each available UM/UIM coverage
3 should not be applied retroactively to the Farmers I case; and (2) the Chen policies
4 meet the rejection requirements of the UM statute and regulation as they were
5 interpreted prior to Montano v. Allstate Indemnity Co., 2004-NMSC-020, 135 N.M.
6 681, 92 P.3d 1255 . For the reasons that follow, we disagree with Farmers. We take
7 its arguments in reverse order.
8 Farmers challenges this Court’s prior determination that Farmers failed to meet
9 the “written rejection” and “attached notification” requirements as defined in
10 Marckstadt v. Lockheed Martin Corp., 2010-NMSC-001, 147 N.M. 678, 228 P.3d
11 462. We observe that Farmers is essentially rearguing its position on this issue set
12 forth in Farmers I. On remand, Farmers asks us to abandon our prior ruling and adopt
13 the dissenting opinion’s view in that decision. We are unable to do so. We conclude
14 that we are constrained to cleave to our prior ruling by both Weed Warrior and
15 Jordan. Weed Warrior makes plain that an election to take UM/UIM coverage in an
16 amount less than the policy liability limits is a rejection under our under insured
17 motorist statute. There is simply no room for argument on the issue. Jordan is
18 similarly clear with regard to the “written rejection” and “attached notification”
19 requirements for an effective rejection. Factually, we see no meaningful distinction
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1 between this case and the policy and circumstances described in Jordan at paragraphs
2 5 through 7. Jordan found there was not effective rejection in those circumstances,
3 and we see no way to exempt this case from the Jordan ruling. In addition, Jordan
4 makes clear that insurers must provide their insureds with information concerning
5 premiums associated with different levels of UM/UIM coverage. 2010-NMSC-051,
6 ¶¶ 20-21. There is no indication in this record that that was done. Given Jordan’s
7 ruling concerning application of its holding, we cannot escape its application here.
8 Farmers other argument on remand is that the rule set forth in Jordan requiring
9 insurers to provide information concerning premium charges should not be applied
10 retroactively to the facts of this case. Specifically, Farmers contends that Jordan
11 established a new rule of law that was not evident when the Chen policies were issued
12 in 1998 or when Mrs. Chen’s accident occurred in 2001.
13 Our Supreme Court in Jordan made clear that it is unreasonable for insurers to
14 believe that the plain language of NMSA 1978, Section 66-5-301 (1983), and
15 13.12.3.9 NMAC (5/14/2004) does not apply to an insured’s decision to purchase
16 UM/UIM coverage in less than maximum amounts. Jordan, 2010-NMSC-051, ¶ 27.
17 Further, the Court noted that its holding requiring “insurers to provide premium costs
18 for each available UM/UIM coverage level . . . is based on settled principles
19 articulated in twenty years of UM/UIM jurisprudence.” Id. Consequently, “the
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1 equities do not favor any form of prospective-only application.” Id. ¶ 29. We see
2 nothing different in the application of the facts in Jordan, Romero, and Lucero that
3 would warrant a different result in this case.
4 CONCLUSION
5 We hold that Weed Warrior and Jordan do not change the conclusion in our
6 January 26, 2010, formal opinion that the district court did not err by granting
7 summary judgment in favor of Mr. Chen. We therefore see no basis on which to
8 change or overrule, and we affirm this Court’s ultimate disposition in our January 26,
9 2010, opinion affirming the district court.
10 IT IS SO ORDERED.
11 __________________________________
12 LINDA M. VANZI, Judge
13 WE CONCUR:
14 _________________________________
15 MICHAEL D. BUSTAMANTE, Judge
16 _________________________________
17 MICHAEL E. VIGIL, Judge
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