Gallegos v. Citizens Ins. Agency
| Decision Date | 21 August 1989 |
| Docket Number | No. 17624,17624 |
| Citation | 779 P.2d 99,1989 NMSC 55,108 N.M. 722 |
| Parties | Fernando GALLEGOS, et al., Plaintiffs-Appellees, v. CITIZENS INSURANCE AGENCY, et al., Defendants-Appellants. |
| Court | New Mexico Supreme Court |
This matter coming on for consideration by the Court upon motion for reconsideration, and the Court having considered said motion and being sufficiently advised;
NOW, THEREFORE, IT IS ORDERED that the opinion handed down by the Court on June 27, 1989, is hereby withdrawn and the opinion filed this date substituted therefor.
Fernando and Frances Gallegos sued the following defendants as partners in the Citizens Insurance Agency (Citizens): Emilio Aragon (Aragon) and his wife, Imelda; Amadeo Tenorio, Jr. (Tenorio), and his wife, Mary; Max Sanchez; and Robert Gonzales. The complaint alleged that the defendants wrongfully failed to provide the plaintiffs a policy of automobile insurance, and were liable for the cost of two minor accidents and for punitive damages. Defendants Aragon and Gonzales denied they were partners at the time of the transaction about which plaintiffs complain. Prior to trial, the plaintiffs settled with Tenorio and his wife.
Upon the close of testimony in the ensuing jury trial, the plaintiffs amended their complaint to conform to the evidence, and the jury was instructed on theories of express, implied and quasi-contract, and on tort theories of a negligent or fraudulent misrepresentation that insurance had been provided. The evidence determinative of this appeal may be summarized as follows.
Sanchez and Tenorio were equal partners in Citizens. Sometime prior to May 12, 1984, Gonzales began soliciting insurance business on behalf of Citizens. Gonzales also was discussing with Tenorio the possibility of purchasing the latter's interest in the partnership. On or about May 12, Gonzales procured from Mrs. Gallegos an application and a $600 quarterly premium check for Citizens to provide automobile insurance for eight vehicles. Gonzales testified that he received a price quotation over the telephone from Sanchez. Mrs. Gallegos confirmed that Gonzales received the price information by telephone. Gonzales delivered the application and the check to Citizens. Citizens endorsed and deposited the check on May 14.
On June 15, a purchase agreement was executed for the purchase of Tenorio's interest in Citizens by Gonzales and Aragon. Gonzales received keys to Citizens and was listed on the signature cards for two of Citizens' bank accounts. Gonzales, however, failed to timely pay his portion of the purchase price and Aragon acquired the entirety of Tenorio's partnership interest. By early July, neither Gonzales nor Tenorio any longer had an interest in Citizens.
On or about June 11 and 12, Gonzales asked Della Valerio, Citizens' secretary, to issue receipts for the insurance premium for each of the plaintiffs' vehicles. Valerio issued eight receipts. Contemporaneously with the issuance of the receipts, Mrs. Gallegos inquired as to the whereabouts of her insurance policy and proofs of financial responsibility. See NMSA 1978, Secs. 66-5-201 to 66-5-239 (Repl.Pamp. 1984 & Cum.Supp.1988). Valerio testified further that around this same time she informed both Sanchez and Aragon that plaintiffs had not received a policy. Despite requests by Gonzales that Citizens issue the plaintiffs a policy, it did not provide one to them. During that summer, Mrs. Gallegos made several requests to Citizens for her policy but was told to speak to Gonzales. Gonzales, in turn, would assure her that the policy and proofs were coming.
On July 8, one of the vehicles that was supposed to be insured was involved in a minor accident. Under the instructions of Gonzales, the plaintiffs submitted two repair estimates to Citizens. Citizens never made payment on this claim. On October 2, another of the plaintiffs' automobiles was involved in a minor accident. Mrs. Gallegos telephoned Citizens and was instructed by Valerio to submit two repair estimates to Citizens. Finally, a few weeks after the October 2 accident, Aragon and Sanchez met with Mr. Gallegos. They informed him that Citizens had not procured an insurance policy for the Gallegoses, that they were uninsured, and that the damages resulting from the two accidents would not be reimbursed. Although Citizens did offer to reimburse the plaintiffs' premium, the $600 was never refunded.
Instructions. Initially, we are compelled to comment on the instructions. The case was submitted to the jury on fifty-four separately numbered instructions without an integrated and comprehensive statement of the issues. The introduction to Chapter 3 of the Uniform Jury Instructions--Civil, SCRA 1986, 13-101 to 13-2221, states:
The key to good instruction is the formulation of the issues of the lawsuit.
* * * * * *
It is essential that the trial lawyers and the trial judge realize their duty to thoughtfully draft and clearly present the statement of the issues to the jury * * *. A simple, commonsense, logical presentation of the key issues is the objective.
Under this rubric, it would have been appropriate, for example, to instruct the jury on the issues as follows:
The plaintiffs seek compensation under claims of Breach of an Automobile Insurance Contract and of Unfair Acceptance and Retention of an Insurance Premium [i.e., quasi-contract or unjust enrichment], and under claims of Negligent or Fraudulent Misrepresentation. Plaintiffs have the burden of proving the amount of any damages to which they may be entitled.
A. To establish the claim of Breach of Contract, plaintiffs have the burden of proving (1) that plaintiffs had supplied all fleet information required by Citizens before it would enter into an insurance contract, and (2) at least one of the following contentions a. Actual Agent: In dealing with the plaintiffs for the automobile insurance policy, Gonzales was the agent of Citizens; or
b. Apparent Agent: Citizens, by its statements, acts or conduct, led plaintiffs reasonably to believe Gonzales was its agent, and plaintiffs dealt with Gonzales in reliance upon the representations of Citizens.
The defendants Aragon and Sanchez deny that all required fleet information was supplied and they also deny that Gonzales was either an actual or an apparent agent of Citizens.
B. To establish the claim of Unfair Acceptance and Retention of an Insurance Premium, plaintiffs have the burden of proving that Citizens accepted and retained the premium under circumstances in which it would not be fair to keep the premium without paying the insurance claim. The defendants deny they acted unfairly under the circumstances.
C. To establish the claim of Misrepresentation on the part of a defendant, the plaintiffs have the burden of proving at least one of the following contentions applicable to that defendant:
1. The defendant made a negligent and material misrepresentation that automobile insurance had been provided; or
2. The defendant made a fraudulent misrepresentation that automobile insurance had been provided; and
plaintiffs also contend and have the burden of proving they relied on such misrepresentation to their damage. The defendants deny these contentions.
D. Related to the claims, plaintiffs contend and have the burden of proving that misconduct of a defendant was an act for which punitive damages should be awarded against that defendant. Defendants deny this contention. Also, defendants Aragon deny they were partners in Citizens at the time of the Gallegos transaction, and defendant Gonzales claims he was an agent, but not a partner. Only defendant Sanchez admits he was a partner; and plaintiffs, therefore, have the burden of proving which of the remaining defendants, if any, were partners in Citizens at the time of the Gallegos transaction.
After considering the evidence and these instructions as a whole, the preliminary question presented for you to answer under Breach of Contract, Part A of the special verdict form, is whether Gonzales was acting for Citizens in dealing with plaintiffs. If you answer, "No," you shall go to Part B of the special verdict form. If, on the other hand, you answer "Yes," that Gonzales was a partner or otherwise acted as an agent of Citizens, you will continue under Part A to decide whether plaintiffs supplied all fleet information required by Citizens before it would enter into the insurance contract, and, if so, you will determine the amount of money that will compensate plaintiffs for damages resulting from Citizens' failure to provide a policy of automobile insurance.
Under Unfair Acceptance and Retention of an Insurance Premium, Part B of the special verdict form, you will answer whether Citizens accepted and retained the premium under circumstances in which it would not be fair to keep the premium without paying the insurance claim. If you answer "No," you will go to Part C of the special verdict form. If, on the other hand, you answer "Yes," and, if you have not already determined damages under Part A, you will continue under Part B to determine the amount of damages to be awarded plaintiffs.
Under Misrepresentation, Part C of the special verdict form, you will answer whether a defendant made to plaintiffs either a negligent or fraudulent misrepresentation that automobile insurance had been provided, and whether plaintiffs relied on any such misrepresentation to their damage. If you answer "No," you will go to Part D of the special verdict form. If, on the other hand, you answer "Yes," you will answer the additional questions requested of you under Part C. [E.g., by whom the misrepresentation was made, whether negligent or fraudulent, and damages if not yet determined.]
Under Punitive Damages, Part D of the special verdict form, you will answer...
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