Opinion
No. CIV-06-0061 BB/RLP.
September 27, 2006
CERTIFICATION ORDER
This matter is before the Court pursuant to Plaintiff's motion for declaratory relief (Doc. 11) and Defendant's motion for summary judgment (Doc. 14). The Court finds sua sponte that certification of the following questions to the New Mexico Supreme Court is appropriate because the questions involve propositions of New Mexico law that are determinative of a significant portion of the case before this Court, and there are no controlling appellate decisions, statutes, or constitutional provisions answering the questions. NMSA § 39-7-4; NMRA 12-607.
Questions of Law to be Answered:
(A) Whether Defendant's insurance policy provision, excluding all government-owned vehicles from the definition of an "uninsured motor vehicle," is unenforceable because it violates public policy as established by New Mexico's Uninsured Motorist Act, NMSA § 66-5-301;
(B) Whether an insured carrying underinsured-motorist coverage is "legally entitled to recover" damages exceeding the limits established by the New Mexico Tort Claims Act, NMSA § 41-4-19, when the insured is injured by a government employee driving a government-owned vehicle and makes a claim against her insurer for damages that exceed those limits.
Facts Relevant to the Questions:
Plaintiff was severely injured in a motor vehicle accident when a government employee driving a government vehicle failed to stop at a red light and broad-sided Plaintiff's vehicle. She claims she suffered damages of more than $20,000,000. At the time of the accident Plaintiff carried uninsured/underinsured motorist coverage of $500,000 as part of her motor vehicle insurance policy, with an additional $2,000,000 in such coverage under her umbrella policy. Plaintiff settled her claim against the government defendant for much less than her alleged damages, and then requested additional payment from Defendant pursuant to her vehicle insurance and umbrella insurance policies, for damages suffered in excess of the limits imposed by the Tort Claims Act. Defendant denied such coverage on two grounds: (1) Defendant's policies contain an express exclusion, stating that an "uninsured motor vehicle" does not include a vehicle "owned by a government or any of its political subdivisions or agencies;" and (2) the Tort Claims Act does not allow a plaintiff to recover any amount of damages greater than the limits set forth in that statute, and this means Plaintiff was not "legally entitled to recover" damages in any amount greater than those limits, which in turn precludes Plaintiff from recovering under the uninsured-motorist statute. Plaintiff, on the other hand, contends the exclusion for government-owned vehicles is unenforceable because it violates public policy. She also argues that the phrase "legally entitled to recover" damages, as used in the uninsured-motorist statute, simply means she must establish fault on the part of the other driver.
Reason for Certification:
Defendant relies primarily on two New Mexico cases denying uninsured-motorist coverage: State Farm Auto. Ins. Co. v. Ovitz, 117 N.M. 547, 873 P.2d 979 (1994), and State Farm Mut. Auto. Ins. Co. v. Maidment, 107 N.M. 568, 761 P.2d 446 (Ct.App. 1988). In Ovitz, the Supreme Court held that an insured could not collect uninsured-motorist benefits for non-economic damages because the insured was injured in Hawaii, and under Hawaii's no-fault law the insured was not entitled to recover such damages. In Maidment, the New Mexico Court of Appeals held that an insured could not collect punitive damages under the uninsured-motorist provision of the insured's policy, because the tortfeasor had died and punitive damages may not be recovered from the estate of a deceased tortfeasor. Defendant maintains that the damage limitations of the Tort Claims Act operate like Hawaii's no-fault law in Ovitz and the death of the tortfeasor in Maidment — they render Plaintiff unable to legally recover any amounts in excess of those limitations.
Plaintiff, on the other hand, points to a substantial body of out-of-state case law invalidating exclusions identical to the one relied on by Defendant in this case. See, e.g., West American Ins. Co. v. Popa, 723 A.2d 1 (Md. 1998). Plaintiff, as did the court in Popa, argues that the damage limitations in the Tort Claims Act are analogous to the coverage limitations of a private insurer, and do not implicate the "legally entitled to recover" analysis. Plaintiff also argues, as Popa held, that the government-vehicle exclusion in Defendant's policies is unenforceable. See also Borjas v. State Farm Mut. Auto. Ins. Co., 33 P.3d 1265 (Co. App. 2001) (invalidating same exclusion as that at issue in Popa and this case); Cropper v. State Farm Mut. Auto. Ins. Co., 671 A.2d 423 (Del.Super.Ct. 1995) (same, noting that majority of jurisdictions have invalidated similar exclusions).
These questions thus raise an important issue of New Mexico law for which there is no clear precedent, statute, or constitutional provision answering the questions this Court wishes to certify. The answers to the questions will be determinative of many, if not all, the state-law claims pending before this Court. Acknowledgment: Pursuant to NMRA 12-607(C)(4), this Court acknowledges that the New Mexico Supreme Court has discretion to accept or reject this certification, and to reformulate the questions presented.
Names and Addresses of Counsel of Record: Counsel for Plaintiff are Merit Bennett and Talia V. Kosh, Bennett Kosh, 460 St. Michael's Drive, Ste. 703, Santa Fe, N.M. 87505. Counsel for Defendant are Terry R. Guebert, RaMona G. Bootes, and Christopher J. DeLara, P.O. Box 93880, Albuquerque, N.M. 87199.
Order of Certification: For the reasons stated above, the Court hereby certifies the questions stated above to the New Mexico Supreme Court for decision, in that Court's discretion. The Clerk of the United States District Court for the District of New Mexico is hereby directed to forward a certified copy of this certification order to the New Mexico Supreme Court. All case management deadlines applicable to the case remain in place, unless and until such time as it may become necessary to change those deadlines.