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in Odyssey.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1
Opinion Number: _____________ 2
Filing Date: December 6, 2022 3
No. A-1-CA-39014 and No. A-1-CA-39799 4
(consolidated for purpose of opinion) 5
GRACIELA CONTRERAS, 6
Plaintiff-Appellant, 7
v. 8
FRED LOYA INSURANCE COMPANY 9
d/b/a YOUNG AMERICA INSURANCE 10
COMPANY, 11
Defendant-Appellee. 12
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13
Joshua A. Allison, District Judge 14
and 15
MARIA VARELA-BURCIAGA, 16
Plaintiff-Appellant, 17
v. 18
STATE FARM MUTUAL AUTOMOBILE 19
INSURANCE COMPANY, 20
Defendant-Appellee. 21
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 22
Erin B. O’Connell, District Judge 23
Court of Appeals of New Mexico
Filed 12/6/2022 10:37 AM
Ferrance Law, P.C. 1
David A. Ferrance 2
Albuquerque, NM 3
for Appellant Graciela Contreras 4
O’Brien & Padilla, P.C. 5
Alicia M. Santos 6
Albuquerque, NM 7
for Appellee Fred Loya Insurance Company 8
Jarmie & Rogers, P.C. 9
Mark D. Standridge 10
Las Cruces, NM 11
for Amicus Curiae NM Defense Lawyers Association (No. A-1-CA-39014) 12
Law Office of Robert J. Andreotti 13
Robert J. Andreotti 14
Santa Fe, NM 15
for Appellant Maria Varela-Burciaga 16
Stiff, Garcia & Associates, LLC 17
John S. Stiff 18
Edward F. Snow 19
Albuquerque, NM 20
for Appellee State Farm Mutual Automobile Insurance Company 21
OPINION 1
BOGARDUS, Judge. 2
{1} In these consolidated cases,
1
Plaintiff Graciela Contreras and Plaintiff Maria 3
Varela-Burciaga (collectively, Plaintiffs) each appeal from a district court order 4
granting summary judgment in favor of, in Contreras’s case, Defendant Fred Loya 5
Insurance Company and, in Varela-Burciaga’s case, Defendant State Farm Mutual 6
Automobile Insurance Company (collectively, Defendants) on Plaintiffs’ claims 7
arising from Defendants’ denial of uninsured and underinsured motorist (UM/UIM) 8
benefits. Plaintiffs each argue that the district court erred by granting summary 9
judgment based on the erroneous conclusion that the respective insurance company 10
obtained from each of them a valid rejection of UM/UIM coverage. In addition, 11
Plaintiff Contreras argues that the district court erred in dismissing her claims, 12
alleging violations of the Unfair Practices Act (the UPA), NMSA 1978, §§ 57-12-1 13
to -26 (1967, as amended through 2019). We reverse in Contreras v. Fred Loya 14
Insurance Co., No. A-1-CA-39014, and affirm in Varela-Burciaga v. State Farm 15
Mutual Automobile Insurance Company, No. A-1-CA-39799. 16
1
Because these appeals raise substantially similar issues, we exercise our
discretion to consolidate them for decision. See Rule 12-317(B) NMRA.
2
BACKGROUND 1
{2} These cases arise out of car accidents involving underinsured drivers. At issue 2
in both cases is whether each insurance company obtained a valid rejection of 3
UM/UIM coverage from the respective Plaintiff. We view the facts of each case in 4
the light most favorable to Plaintiffs, against whom summary judgment was granted. 5
See
Haygood v. United Servs. Auto. Ass’n
, 2019-NMCA-074, ¶ 7, 453 P.3d
6
1235.
7
A. Contreras v. Fred Loya Insurance Co. 8
{3} Contreras, whose primary language is Spanish and whose understanding of 9
English is limited to common greetings or phrases, purchased an automobile 10
insurance policy from Fred Loya Insurance Company (Loya) through a Spanish-11
speaking representative. The representative provided Contreras an English-language 12
form for the selection or rejection of UM/UIM coverage. The selection/rejection 13
form stated that the insured had the right to purchase or reject UM/UIM coverage, 14
offered UM/UIM coverage up to the insured’s liability limits, and provided the 15
premium costs for UM/UIM coverage up to the insured’s liability limits. Contreras 16
signed the selection/rejection form under a heading stating, “REJECTION OF 17
UNINSURED/UNDERINSURED MOTORISTS COVERAGE.” The policy’s 18
declarations page stated that UM/UIM coverage had been “OFFERED AND 19
REJECTED.” Contreras attested that the “agency’s representative had to fill out 20
3
[her] application for insurance for [her], because it was in English,” and that the 1
representative told her where to sign and initial the forms. Contreras also attested 2
that no one discussed UIM insurance with her, or offered her this coverage or 3
discussed her rejection of this coverage. Loya disputed this point, attesting that, 4
when assisting Spanish-speaking customers, its procedures call for explaining 5
UM/UIM coverage to the customer and verbally offering UM/UIM coverage up to 6
the customer’s liability limits. 7
{4} Contreras was later involved in a car accident with an underinsured driver and 8
filed a claim for UM/UIM benefits,
which Loya denied.
Contreras sued Loya, 9
seeking a
declaratory judgment
that she was entitled to UM/UIM benefits and 10
alleging various claims based on Loya’s denial of these benefits, including
breach
11
of contract, insurance bad faith, and unfair and unconscionable trade practices
12
under the UPA. The district court denied Contreras’s claim for a declaratory
13
judgment that she was entitled to UM/UIM benefits, relying on the four
14
requirements that insurers must satisfy to obtain a valid rejection of UM/UIM
15
coverage under
Jordan v. Allstate Insurance Co.
, 2010-NMSC-051, ¶ 22, 149
16
N.M. 162, 245 P.3d 1214. The
district court reasoned, “If [Jordan’s four 17
requirements] are met, as they were here, the [c]ourt must conclude that the rejection 18
of UM/UIM coverage was valid.”
Concluding that Loya had obtained a valid
19
4
rejection, the district court granted summary judgment in favor of Loya on all
1
claims.
2
B. Varela-Burciaga v. State Farm Mutual Automobile Insurance Co. 3
{5} Varela-Burciaga, whose primary language is Spanish and who does not speak 4
English, purchased an automobile insurance policy from State Farm Mutual 5
Automobile Insurance Company (State Farm) through a Spanish-speaking 6
representative. Varela-Burciaga was provided an English-language form for the 7
rejection of UM/UIM coverage, which included a list of premium costs for different 8
levels of UM/UIM coverage. The rejection form stated, “I acknowledge and agree 9
that I have been offered [UM/UIM c]overage with limits equal to my [l]iability 10
[c]overage limits,” and then provided check-mark boxes where the insured could 11
indicate whether he or she wished to reject UM/UIM coverage equal to his or her 12
liability limits or in its entirety. Varela-Burciaga checked the box for “reject 13
[UM/UIM c]overage in its entirety” and signed the rejection form. The policy’s 14
declaration page stated, in relevant part, “YOU HAVE REJECTED THE OFFER 15
OF [UM/UIM] COVERAGE.” Varela-Burciaga does not dispute that an agent 16
“explained
the coverages in Spanish,” and “explained to
her
in Spanish that by
17
signing the UM rejection form, that ‘means you will not have coverage under
18
the [UM/UIM c]overage under your policy.’”
19
5
{6} Varela-Burciaga was later involved in a car accident with an underinsured 1
driver and filed a claim for UM/UIM benefits,
which State Farm denied.
Varela-2
Burciaga sued State Farm, seeking a
declaratory judgment
that her policy be 3
reformed to include UM/UIM coverage and asserting a claim for breach of contract. 4
The district court granted summary judgment in favor of State Farm, reasoning
5
that State Farm “was not required by law to provide a rejection of [UM/UIM]
6
coverage to
[Varela-Burciaga] in Spanish.” 7
DISCUSSION 8
I. Standard of Review 9
{7} Our resolution of these cases requires us to interpret NMSA 1978, Section 66-10
5-301 (1983) and 13.12.3.9 NMAC to determine whether each insurance company 11
obtained a valid rejection of UM/UIM coverage. See Jordan, 2010-NMSC-051, 12
¶ 14. Accordingly, these cases present questions of law, which we review de novo. 13
See Marckstadt v. Lockheed Martin Corp., 2010-NMSC-001, ¶ 13, 147 N.M. 678, 14
228 P.3d 462. 15
{8} “This Court’s primary goal when interpreting statutes is to further legislative 16
intent.” Jordan, 2010-NMSC-051, ¶ 15. When construing the legislative intent 17
behind our UM/UIM statute, this Court has long applied a “qualitatively different 18
analysis” than we use when construing many other types of statutes and insurance 19
policies. Padilla v. Dairyland Ins. Co., 1990-NMSC-025, ¶ 10, 109 N.M. 555, 787 20
6
P.2d 835. “In a consistent line of cases, [the appellate courts have] liberally 1
interpreted Section 66-5-301 and its implementing regulation, . . . 13.12.3.9 NMAC, 2
for their remedial purposes. The provision of the maximum possible amount of 3
UM/UIM coverage in every insurance policy is the default rule, and any exception 4
to that rule must be construed strictly to protect the insured.” Jordan, 2010-NMSC-5
051, ¶ 15 (internal quotation marks and citations omitted). 6
II. Legal Background 7
{9} Plaintiffs argue that the district court in each case erred by granting summary 8
judgment based on its conclusion that the insurance company obtained a valid 9
rejection of UM/UIM coverage from each of them. Section 66-5-301 governs 10
UM/UIM coverage in New Mexico. Subsections (A) and (B) of the statute require 11
insurance companies to “include in automobile policies UM/UIM coverage ranging 12
from the minimum statutory limits . . . up to the limits of liability coverage contained 13
in a policy.” Arias v. Phoenix Indem. Ins. Co., 2009-NMCA-100, ¶ 7, 147 N.M. 14, 14
216 P.3d 264 (citation omitted). The purpose of this requirement “is to put the 15
insured in the same position he or she would have been in if the tortfeasor had 16
liability coverage equal to the UM/UIM protection as provided by the insured’s 17
policy.” Id. The requirement thus “embodies a strong public policy to expand 18
insurance coverage and to protect individual members of the public against the 19
hazard of culpable uninsured and underinsured motorists.” Id. (alteration, internal 20
7
quotation marks, and citation omitted). Consistent with this public policy, 1
Subsection (C) allows an insured to reject the UM/UIM coverage described in 2
Subsections (A) and (B) only if the rejection “satisf[ies] the regulations promulgated 3
by the superintendent of insurance.” Id. ¶ 8. 4
{10} Interpreting Section 66-5-301 and the applicable insurance regulation, and 5
recognizing that “an insured’s decision to reject UM/UIM coverage must be 6
knowing and intelligent in order to effectuate New Mexico’s public policy,” our 7
Supreme Court has held that a rejection of UM/UIM coverage is valid only if certain 8
requirements are met. See Jordan, 2010-NMSC-051, ¶¶ 14-22; accord Marckstadt, 9
2010-NMSC-001, ¶ 16 (“[I]n order for the offer and rejection requirements of 10
Section 66-5-301 to effectuate the policy of expanding UM/UIM coverage, the 11
insurer is required to meaningfully offer such coverage and the insured must 12
knowingly and intelligently act to reject it before it can be excluded from a policy.” 13
(emphases omitted)). Thus, in Jordan, our Supreme Court stated that an insurer 14
must: 15
(1) offer the insured UM/UIM coverage equal to his or her liability 16
limits, (2) inform the insured about premium costs corresponding to the 17
available levels of coverage, (3) obtain a written rejection of UM/UIM 18
coverage equal to the liability limits, and (4) incorporate that rejection 19
into the policy in a way that affords the insured a fair opportunity to 20
reconsider the decision to reject. 21
8
2010-NMSC-051, ¶ 22. If the insurer fails to comply with one or more of these 1
requirements, the insured’s rejection of coverage is invalid, and “the policy will be 2
reformed to provide UM/UIM coverage equal to the liability limits.” Id. 3
{11} Plaintiffs do not dispute that they were provided English-language forms for 4
the selection/rejection of UM/UIM coverage, or that they indicated in writing their 5
rejection of UM/UIM coverage. Rather, Plaintiffs argue that, because of their 6
English-language limitations, the forms did not constitute meaningful offers of 7
UM/UIM coverage, and Plaintiffs did not knowingly or intelligently act to reject this 8
coverage. As a result, Plaintiffs contend, the district court in each case erred by 9
determining, as a matter of law, that they had validly rejected UM/UIM coverage. 10
We examine each case in turn. 11
III. Contreras’s Case: Jordan Did Not Foreclose the Possibility That a 12
Rejection of UM/UIM Coverage May Be Invalid Under the 13
Circumstances of This Case 14
{12} In Contreras’s case, the district court relied on the requirements as set out in 15
Jordan to determine that her rejection was valid, concluding, “If [Jordan’s four 16
requirements] are met, as they were here, the [c]ourt must conclude that the rejection 17
of UM/UIM coverage was valid.” Contreras does not dispute that the English-18
language forms she was provided comport with Jordan but contends, in particular, 19
that her rejection was invalid because Loya provided her information it knew she 20
could not understand. Loya responds that Jordan’s requirements are exclusive and, 21
9
according to Loya, previously have been applied as such by this Court. Loya 1
contends that this interpretation is supported by Jordan’s goal of establishing a 2
workable framework for objectively assessing the validity of rejections to minimize 3
litigation. 4
{13} In Contreras’s case, we are presented with an issue that was not directly 5
addressed in Jordan. Nevertheless, as we explain, the concepts found in Jordan and 6
in Marckstadt support the conclusion we reach here. 7
{14} Contreras attested that the only language she speaks fluently is Spanish and 8
that her understanding of English is limited to common greetings or phrases. She 9
also attested that when she purchased the insurance policy, she and a representative 10
only spoke in Spanish, that she has not learned to read or write English other than a 11
few basic words, and that she could not read the English-language UM/UIM 12
selection/rejection form. Finally, Contreras attested that the agency’s representative 13
had to fill out the insurance application for her because it was in English and that 14
she signed and initialed where the representative told her to do so. Accordingly, there 15
is, at the very least, a genuine issue of material fact as to whether Contreras can 16
communicate in English. 17
{15} The plaintiffs in Jordan, by contrast, never attested that they could not 18
communicate in English. See generally 2010-NMSC-051. Jordan simply does not 19
speak to the scenario we address here because it did not deal with non-English-20
10
speaking insureds. See Fernandez v. Farmers Ins. Co. of Ariz., 1993-NMSC-035, 1
¶ 15, 115 N.M. 622, 857 P.2d 22 (“The general rule is that cases are not authority 2
for propositions not considered.” (internal quotation marks and citation omitted)); 3
State v. Jones, 2010-NMSC-012, ¶ 39, 148 N.M. 1, 229 P.3d 474 (“[N]either case 4
expressly considered the waiver issue, and thus neither can be relied on as authority 5
for the [s]tate’s argument.”). 6
{16} We agree that, in general, insurers can obtain a valid UM/UIM rejection by 7
following the requirements listed in Jordan. See 2010-NMSC-051, ¶¶ 30-36; Ullman 8
v. Safeway Ins. Co., 2017-NMCA-071, ¶¶ 39-55, 404 P.3d 434. Nevertheless, we 9
conclude that Jordan does not require, under the circumstances present in this case, 10
a determination as a matter of law that Contreras’s apparent rejection of UM/UIM 11
coverage was valid simply because it complied with the requirements set forth in 12
Jordan. 13
{17} This conclusion is consistent with the guiding principle behind Jordan’s 14
prescription of its four requirements: “[I]n order for the offer and rejection 15
requirements of [the UM/UIM statute] to effectuate the policy of expanding 16
UM/UIM coverage, the insurer is required to meaningfully offer such coverage and 17
the insured must knowingly and intelligently act to reject it before it can be excluded 18
from a policy.” Marckstadt, 2010-NMSC-001, ¶ 16; see Jordan, 2010-NMSC-051, 19
¶¶ 18, 20 (citing Marckstadt, 2010-NMSC-001, ¶¶ 16-17). Jordan’s four 20
11
requirements were thus intended to further the remedial purposes of the UM/UIM 1
statute, including “a legislative purpose to provide for the inclusion of uninsured 2
motorist coverage in every automobile liability policy unless the insured has 3
knowingly and intelligently waived such coverage.” Romero v. Dairyland Ins. Co., 4
1990-NMSC-111, ¶ 9, 111 N.M. 154, 803 P.2d 243; see Jordan, 2010-NMSC-051, 5
¶ 15 (citing Romero, 1990-NMSC-111, ¶ 6). Under the circumstances present in 6
Contreras’s case, we cannot say that simply providing otherwise valid English-7
language forms satisfied, as a matter of law, Loya’s burden to “meaningfully offer 8
[UM/UIM] coverage” so that Contreras could “knowingly and intelligently act to 9
reject it.” See Marckstadt, 2010-NMSC-001, ¶ 16. This conclusion is also consistent 10
with our mandate to interpret the UM/UIM statute liberally to implement its remedial 11
purpose and strictly construe any exceptions to protect the insured. See id. ¶ 14 (“[I]n 12
light of the purpose of New Mexico’s UM/UIM statute to expand coverage to protect 13
members of the public against uninsured motorists, the statute is interpreted liberally 14
to implement that remedial purpose, and any exception will be strictly construed.” 15
(alteration, internal quotation marks, and citation omitted)); Jordan, 2010-NMSC-16
051, ¶ 15 (stating that the “primary goal when interpreting statutes is to further 17
legislative intent” and that, “[w]hen construing the legislative intent behind our 18
UM/UIM statute, our [Supreme] Court has long applied a qualitatively different 19
analysis” (internal quotation marks and citation omitted)). 20
12
{18} Loya, however, points to principles of contract law—that an individual who 1
signs a contract is bound by it, regardless of whether he or she read the terms. Loya 2
argues that, if Contreras did not understand something in the UM/UIM 3
selection/rejection form, it was her burden “to ask for help and to inquire further 4
before executing the form.”
However, i
n cases involving UM/UIM coverage, where 5
we apply a “qualitatively different analysis than we use when construing many other 6
types of statutes and insurance policies,” Jordan, 2010-NMSC-051, ¶ 15 (internal 7
quotation marks and citation omitted), accepting these arguments would shift the 8
insurer’s burden to the insured. Before Loya could exclude UM/UIM coverage from 9
Contreras’ policy, Loya had the burden to “meaningfully offer such coverage” such 10
that Contreras could “knowingly and intelligently act to reject it.” See Marckstadt, 11
2010-NMSC-001, ¶ 16. Otherwise, Loya could not secure a valid rejection.
2
See 12
2
To the extent that Loya contends that insurers are not responsible for ensuring
subjective understanding of UM/UIM coverage, we agree. See Vigil v. Rio Grande
Ins. of Santa Fe, 1997-NMCA-124, ¶¶ 10, 21-22, 124 N.M. 324, 950 P.2d 297
(stating that an insurer “had no duty to inform [the p]laintiffs of the significance of
UM[/UIM] coverage” or “the ramifications of [the purchasers’] decision” to reject
such coverage, and that “[n]othing in the applicable statute requires an insurer to
make a purchaser aware of the importance of UM[/UIM] coverage before accepting
a rejection of such coverage”). Our conclusion does not require that Loya ensure
such subjective understanding to secure a valid rejection, and is consistent with our
case law requiring that an insured “be appropriately informed that he or she has
rejected the coverage.” Id. ¶ 10; cf. Crutcher v. Liberty Mut. Ins. Co., 2022-NMSC-
001, ¶ 22, 501 P.3d 433 (concluding that “the Legislature intended to place the
burden on the policyholders to determine how much [UM/UIM] protection they
want and are willing to pay for,” and the policyholders’ responsibility is premised
on their awareness of what they are purchasing).
13
Farmers Ins. Co. of Ariz. v. Chen, 2010-NMCA-031, ¶ 27, 148 N.M. 151, 231 P.3d 1
607 (explaining that “[w]here a valid rejection of UM/UIM coverage has not been 2
obtained by the insurer, New Mexico law requires UM/UIM coverage to be read into 3
the policy at the liability limits, regardless of the intent of the parties or the fact that 4
a premium has not been paid”). 5
{19} In sum, under the circumstances present in Contreras’s case, the district court 6
erred by concluding that that there was a valid rejection of UM/UIM coverage simply 7
because Contreras’s apparent rejection complied with the requirements set forth in 8
Jordan. Having so concluded, we reverse the district court’s grant of summary 9
judgment on Contreras’s declaratory judgment and breach of contract claims. We 10
additionally vacate the district court’s grant of summary judgment on Contreras’s 11
remaining claims because the resolution of those claims depended at least in part on 12
the district court’s determination that there was a valid rejection of UM/UIM 13
coverage, which we have reversed. Accordingly, we do not address Contreras’s 14
additional arguments that the district court erred by dismissing her UPA claims. 15
{20} Based on the foregoing, we remand Contreras’s case to the district court. See 16
Rummel v. Lexington Ins. Co., 1997-NMSC-041, ¶ 16, 123 N.M. 752, 945 P.2d 970 17
(“[O]n appeal, when the [district] court’s grant of summary judgment is grounded 18
upon an error of law, the case may be remanded so that the issues may be determined 19
under the correct principles of law.”). In determining whether Loya obtained a valid 20
14
rejection of UM/UIM coverage on remand, the district court should consider the 1
guiding principle behind Jordan’s four requirements: “[I]n order for the offer and 2
rejection requirements of [the UM/UIM statute] to effectuate the policy of expanding 3
UM/UIM coverage, the insurer is required to meaningfully offer such coverage and 4
the insured must knowingly and intelligently act to reject it before it can be excluded 5
from a policy.” Marckstadt, 2010-NMSC-001, ¶ 16; see Jordan, 2010-NMSC-051, 6
¶¶ 18, 20 (citing Marckstadt, 2010-NMSC-001, ¶¶ 16-17). In making this 7
determination, we emphasize, as we discuss below, that a UM/UIM rejection is not 8
invalid as a matter of law simply because the selection/rejection form is not in the 9
insured’s primary or preferred language.
3
Instead, consistent with the only other 10
jurisdiction we found to have repeatedly addressed this issue, the district court 11
should consider, for example, the insured’s ability to communicate in English, 12
whether an individual’s inability to communicate in English was known or should 13
have been known to the insurer, and whether the individual was offered assistance 14
or information in a language he or she could understand in assessing whether the 15
3
Loya argues adopting “[Contreras’s] argument that a valid rejection by a
Spanish[-]speaking individual can only be accomplished by making the UM/UIM
selection form available in Spanish would ultimately run afoul of the UM[/UIM]
statute because it would lead to a whole class of people being unable to ever reject
UM[/UIM] coverage.” Contreras, however, does not argue
that insurers are required
to make UM/UIM selection/rejection forms available in Spanish, and this opinion does
not preclude individuals who cannot communicate in English from validly rejecting
UM/UIM coverage when provided
English-language forms.
15
insurer meaningfully offered UM/UIM coverage so that the insured could knowingly 1
and intelligently act to reject it. Compare Ponce v. Welch, 15-669, pp. 3, 8 (La. App. 2
5 Cir. 3/16/16); 191 So. 3d 73, 75, 77-78 (concluding that an insurer obtained a valid 3
rejection from a Spanish-speaking insured in part because the insured had lived in 4
the United States for thirty-two years, could converse in English, and did not dispute 5
that the insurance agent had explained to her that she was rejecting UM/UIM 6
coverage), and Garay-Lara v. Cornerstone Nat’l Ins. Co., 2013-2016, p. 6 (La. App. 7
1 Cir. 5/2/14); 145 So. 3d 423, 426 (concluding that an insurer obtained a valid 8
UM/UIM rejection from a Spanish-speaking insured where the agent explained the 9
details of the available coverage in Spanish), with Duong v. Salas, 38,613, pp. 5, 9 10
(La. App. 2 Cir. 6/23/04); 877 So. 2d 269, 272, 274 (concluding that the insurer had 11
failed to obtain a valid rejection from a non-English-speaking insured where the 12
insured had arrived in the United States less than six months before signing the UM 13
rejection, and the district court could have concluded based on the evidence that the 14
insured had no capacity to communicate in English or to understand the UM waiver, 15
that no one explained the waiver to him, and that his incapacity was known or should 16
have been known to the insurer). 17
IV. Varela-Burciaga’s Case: Spanish-Language Forms Are Not Required 18
Under the UM/UIM Statute and Regulations 19
{21}
We turn now to Varela-Burciaga’s case. Varela-Burciaga and State Farm
20
filed cross-motions for summary judgment. At the hearing on these motions, the
21
16
parties agreed that these motions raised the sole legal issue of “whether a failure
1
to provide the UM/UIM waiver form in Spanish violates New Mexico’s
2
requirements for obtaining a valid waiver” of UM/UIM coverage. The district
3
court concluded that State Farm “was not required by law to provide a rejection
4
of [UM/UIM] coverage to
[Varela-Burciaga] in Spanish.” On appeal, Varela-5
Burciaga contends, in particular, that the English-language UM/UIM rejection form 6
was ineffective to a Spanish speaking insured, such as herself.
4
We agree with the 7
district court. 8
{22} State Farm presents a reasoned statutory construction argument in its answer 9
brief as to why no such Spanish-translation requirement exists in the UM/UIM 10
statute, and Varela-Burciaga largely fails to address this argument in her reply brief. 11
Indeed, nothing in Section 66-5-301, 13.12.3.9 NMAC, or our case law interpreting 12
these provisions requires an insurer to provide UM/UIM selection/rejection forms in 13
an insured’s primary or preferred language. “The Legislature knows how to include 14
language in a statute if it so desires,” Cordova v. Cline, 2021-NMCA-022, ¶ 9, 489 15
P.3d 957 (internal quotation marks and citation omitted), and could have included 16
such language had it chosen to do so. See, e.g., NMSA 1978, § 50-15-5(C) (2005) 17
(requiring notice in English and Spanish); NMSA 1978, § 50-17-6(B) (2021) (same); 18
4
We limit our analysis in the
Varela-Burciaga
case to the particular issue
addressed by the district court and the parties.
17
NMSA 1978, § 27-6-17(A)(1) (1993) (same); cf. Schultz ex rel. Schultz v. Pojoaque 1
Tribal Police Dep’t, 2013-NMSC-013, ¶ 36, 484 P.3d 954 (“[W]hen the Legislature 2
includes a particular word in one portion of a statute and omits it from another 3
portion of that statute, such omission is presumed to be intentional.” (internal 4
quotation marks and citation omitted)). We therefore decline to read this requirement 5
into Section 66-5-301 or 13.12.3.9 NMAC. See High Ridge Hinkle Joint Venture v. 6
City of Albuquerque, 1998-NMSC-050, ¶ 5, 126 N.M. 413, 970 P.2d 599 (“The court 7
will not read into a statute or ordinance language which is not there, particularly if 8
it makes sense as written.” (internal quotation marks and citation omitted)). 9
{23} To the extent Varela-Burciaga argues that, in the absence of a Spanish-10
language form, she was not afforded a fair opportunity to reconsider her rejection, 11
this argument does not persuade us to infer a statutory requirement that is not there. 12
See Dominguez v. Dairyland Ins. Co., 1997-NMCA-065, ¶ 8, 123 N.M. 448, 942 13
P.2d 191 (“Although the uninsured motorist statute is remedial and the statute should 14
be liberally interpreted to further its objectives, a policy of liberal interpretation, 15
absent a clear statutory provision to the contrary, may not negate reasonable and 16
unambiguous policy limitations.”). 17
{24} Accordingly, the district court did not err in concluding that
State Farm was
18
not required to provide
Varela-Burciaga
Spanish-language UM/UIM
19
selection/rejection forms
and granting summary judgment in favor of State Farm. 20
18
Having so concluded, we do not reach Varela-Burciaga’s additional arguments 1
related to stacking. 2
CONCLUSION 3
{25} In Contreras v. Fred Loya Insurance Co., we reverse the district court’s grant 4
of summary judgment on Contreras’s declaratory judgment and breach of contract 5
claims. We additionally vacate the district court’s grant of summary judgment on 6
Contreras’s remaining claims. We affirm in Varela-Burciaga v. State Farm Mutual 7
Automobile Insurance Co. 8
{26} IT IS SO ORDERED. 9
____________________________ 10
KRISTINA BOGARDUS, Judge 11
WE CONCUR: 12
______________________________ 13
J. MILES HANISEE, Chief Judge 14
______________________________ 15
JENNIFER L. ATTREP, Judge 16
