Montano v. Allstate Indem. Co.

• Decision Date: 27 January 2003
• Docket Number: No. 22,614.,22,614.
• Citation: 2003 NMCA 66,133 N.M. 696,68 P.3d 936
• Parties: John MONTANO, Plaintiff-Appellant, v. ALLSTATE INDEMNITY COMPANY, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

68 P.3d 936

133 N.M. 696

2003 NMCA 66

John MONTANO, Plaintiff-Appellant, v. ALLSTATE INDEMNITY COMPANY, Defendant-Appellee.

No. 22,614.

Court of Appeals of New Mexico.

January 27, 2003.

Certiorari Granted April 7, 2003.

Randi McGinn, Clay Campbell, McGinn & Carpenter, P.A., Albuquerque, NM, for Appellant.

Lisa Mann, Jennifer A. Noya, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, NM, for Appellee.

Certiorari Granted, No. 27,966, April 7, 2003.

OPINION

SUTIN, Judge.

{1} This appeal requires us to delve further into the elusive issue of whether an insured who purchases uninsured motorist coverage receives what he or she pays for. Plaintiff John Montano purchased an Allstate Indemnity Company (Allstate) multi-vehicle policy under which Montano insured four vehicles. Montano paid one premium amount for uninsured motorist bodily injury coverage. Allstate limited Montano's stacking rights to "two, but no more than two," coverage limits. Montano sued Allstate for uninsured motorist bodily injury coverage limits based on stacking of four coverage limits. The parties presented the stacking issue to the district court through cross-motions for summary judgment. The district court denied Montano's motion and granted Allstate's. Montano appeals. We affirm.

{2} The primary issue Montano attempts to resolve in this case is whether the premium charged for uninsured motorist bodily injury coverage in Allstate's multi-vehicle policy is an actuarial subterfuge that circumvents the law of, and policy favoring, stacking, and that deprives Montano of benefits he paid for. We also look at whether the policy unambiguously limits stacking. We conclude that our cases do not require a court examination into Allstate's cost/profit actuarial analyses. Furthermore, even were we to engage in that examination, because of the manner in which this case was presented below and its procedural posture on appeal, Montano is foreclosed from arguing on appeal that Allstate considered such information as loss severity and stacking losses in setting the premium. We hold, therefore, that, under controlling New Mexico Supreme Court precedent, Allstate's stacking liability limitation is valid. We decline Montano's request that we determine, as a matter of policy, that stacking should be required no matter what the insurance policy states and irrespective of the number or amount of premiums charged. On that issue we are also constrained by decisions of our Supreme Court.

BACKGROUND

{3} We refer in this opinion to Allstate Insurance Company as "Allstate Insurance." We refer to Defendant Allstate Indemnity Company as "Allstate."

A. The Procedural Posture of This Case on Appeal and Standard of Review

{4} The procedural posture of this case as it arrived in this Court is important. Below, each party disputed several of the other's undisputed facts. On appeal Montano asserts contentions that, for reversal, require a resolution in his favor of certain disputed material facts. These disputed facts include, for instance, Montano's actuarial expert's reading of Allstate documents. Yet there was an understanding between the parties and the district court that the issues would be decided by the district court on cross-motions for summary judgment.

{5} The district court entered an order stating that the stacking issue was to be presented "on stipulated facts by the parties, affidavits and sworn deposition testimony." Montano did not oppose this manner of proceeding. In the summary judgment proceeding, Montano left it to the court "to ascertain and determine the facts" from the affidavits, motions, and briefs. In oral argument on the cross-motions, Montano did not argue that issues of material fact precluded summary judgment in favor of Allstate. He argued only legal issues.

{6} On appeal, Montano does not seek reversal on the ground that genuine issues of material fact exist. Montano confirms in his brief in chief that the parties agreed to present the stacking issue to the district court for decision through cross-motions for summary judgment. In oral argument on appeal, when questioned about whether facts were in dispute requiring adjudication, Montano's counsel indicated that Montano wanted the issues decided as though all material facts were undisputed.

{7} We, therefore, review the summary judgment de novo. Barncastle v. Am. Nat'l Prop. & Cas. Cos., 2000-NMCA-095, ¶ 5, 129 N.M. 672, 11 P.3d 1234. We have stated that, where the parties agree to have the district court decide an issue on cross-motions for summary judgment without raising issues of fact, on the basis of attorney representations of what the facts are, or as a matter of law on stipulated facts, we will review the case on the same basis as it was presented below. See id. (stipulated facts); Barnae v. Barnae, 1997-NMCA-077, ¶ 14, 123 N.M. 583, 943 P.2d 1036 (attorney representations); Gonzales v. Pub. Employees Ret. Bd., 114 N.M. 420, 422, 839 P.2d 630, 632 (Ct.App.1992) (agreement that facts not in dispute); see also Ontiveros Insulation Co. v. Sanchez, 2000-NMCA-051, ¶¶ 8, 9, 129 N.M. 200, 3 P.3d 695 (distinguishing the standard of review applicable to judgments "on the merits" as opposed to "summary judgment" in case decided on cross-motions for summary judgment). We note that neither party complied with Rule 12-213(A)(4) and (B) NMRA 2002, which required that they state the applicable standard of review in their respective briefs.

B. Historical Pricing and Stacking (1) In General

{8} In 1988 our Supreme Court ruled that an insurer must stack limits on each insured vehicle for which a separate premium for uninsured motorist coverage is charged despite the existence in the policy of an otherwise enforceable, unambiguous anti-stacking exclusionary clause. Jimenez v. Found. Reserve Ins. Co., 107 N.M. 322, 324, 757 P.2d 792, 794 (1988).

{9} Allstate Insurance immediately reacted to this decision. See, e.g., Allstate Ins. Co. v. Indep. Appliance & Refrigeration Serv., Inc., 278 F.3d 1102, 1104 (10th Cir. 2002) ("In 1990, Allstate decided to end the practice of `stacking'. . . . Allstate amended the policy in 1997 . . . to allow stacking of two `but no more than two' coverages."); Allstate Ins. Co. v. Stone, 116 N.M. 464, 465, 863 P.2d 1085, 1086 (1993) ("Until April 1990, Allstate [Insurance] had charged separate premiums. . . . After April 1990, however, Allstate charged one premium . . . on their multi-car policy.").

{10} Before November 1989, Allstate Insurance and apparently also Allstate charged a separate premium for uninsured motorist coverage for each vehicle insured. Allstate charged $23.20 for the first vehicle, $42.40 for two vehicles, $59.40 for three, and $74.40 for four vehicles. These separate premiums included both bodily injury and property damage coverages for each vehicle. The uninsured motorist bodily injury premiums discussed throughout this opinion are for limits of $25,000 per person/$50,000 per accident.

{11} Montano represents, and Allstate does not contest, that Allstate was formed in about 1989 to insure higher risk drivers in New Mexico. After November 1989, Allstate Insurance and Allstate discontinued including both bodily injury and property damage coverages within one premium amount. In addition, Allstate Insurance and Allstate did not set out separate premiums for bodily injury coverage in a multi-vehicle policy. In regard to bodily injury coverage, Allstate began charging a premium of $34.20 for a single-vehicle policy and a premium of $63.30 for a multi-vehicle (two to four vehicles) policy. In regard to property damage coverage, Allstate charged a separate premium of $4.50 per vehicle. Allstate's actuarial data and analyses, two-tiered premium structure, and anti-stacking clauses were essentially the same as those made and employed by Allstate Insurance after Jimenez, 107 N.M. at 324, 757 P.2d at 794. In 1995 Allstate charged a premium for bodily injury coverage of $51 for a single-vehicle policy and a premium of $94.40 for a multi-vehicle policy.

{12} In 1997 Allstate determined it would permit stacking of "two, but no more than two," uninsured motorist bodily injury liability limits. Allstate asserts that this decision was made "because case law in other jurisdictions had found that, given Allstate's premium structure, the insurer must stack two, but no more than two, policy limits, because two, but no more than two, premiums are being charged." See Estate of Swartz v. Metro. Prop. & Cas. Co., 949 S.W.2d 72, 76-78 (Ky.Ct.App.1997) (requiring stacking of limits of two, but not more than two, vehicles under a policy ostensibly charging a single premium but in fact charging $6 for a single-vehicle policy and $10 for a multi-vehicle policy, and therefore charging two separate premiums "under the guise of one lump sum"); Wilson v. Allstate Ins. Co., 912 P.2d 345, 348 (Okla.1996) (requiring stacking of limits of two vehicles where, under two-tiered premium structure, the multi-vehicle premium was almost twice the one-vehicle premium, and stating that in such a circumstance the inclusion of more than two vehicles in a policy "would have no effect upon the number of [uninsured motorist] benefit amounts recoverable"); Kramer v. Allstate Ins. Co., 909 P.2d 128, 129 (Okla.Ct.App.1994) (mem.) (requiring stacking of limits of two insured vehicles, but not the third, where by "charging nearly twice as much for [uninsured motorist] coverage on multiple-vehicle policies as it did for single-vehicle policies, Allstate created the reasonable contractual expectation that the amount of [uninsured motorist] coverage on a multiple-vehicle policy would be correspondingly greater than the amount of coverage on a single-vehicle policy"; and holding that as to the third vehicle, "no additional premium was charged or paid").

{13} In accordance with its policy amendment allowing stacking of two bodily injury coverage limits, Allstate in 1997 began...