State Farm Mutual Auto. Ins. Co. v. Luebbers

• Decision Date: 14 June 2005
• Docket Number: No. 23,556.,23,556.
• Citation: 2005 NMCA 112,119 P.3d 169
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff-Appellee, v. Naomi LUEBBERS, individually, and as Mother, Guardian, and Next Friend of Brian Salazar, Jr., a minor, Defendants-Appellants.
• Court: New Mexico Supreme Court

119 P.3d 169

2005 NMCA 112

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff-Appellee, v. Naomi LUEBBERS, individually, and as Mother, Guardian, and Next Friend of Brian Salazar, Jr., a minor, Defendants-Appellants.

No. 23,556.

Court of Appeals of New Mexico.

June 14, 2005.

Certiorari Granted, No. 29,385, August 26, 2005.

COPYRIGHT MATERIAL OMITTED

Rudolph A. Lucero, Ruth Fuess, Miller Stratvert PA, Albuquerque, NM, for Appellee.

Geoffrey R. Romero, Law Offices of Geoffrey R. Romero, Albuquerque, NM, for Appellants.

OPINION

BUSTAMANTE, Chief Judge.

{1} Naomi Luebbers (Luebbers) presented a claim to State Farm Mutual Insurance Company (State Farm) on behalf of her minor son, Brian Salazar, Jr. for uninsured motorist benefits, alleging that Brian Jr. sustained loss of consortium damages as a result of the shooting death of his Father by or with the complicity of the operator of an uninsured motor vehicle. State Farm sought a declaratory judgment that its insurance policies did not provide coverage for Luebbers' claims. In a motion for summary judgment, State Farm argued (1) Brian Jr. did not qualify as an insured under the policy because, as a four-week-old fetus at the time of the shooting, he was not a viable person; (2) under the policies, bodily injury triggering coverage must be to an insured, and Father was not an insured under its policies; and (3) Brian Jr. had no cause of action available to him since there is no New Mexico precedent allowing recovery for loss of parental consortium outside of a wrongful death act proceeding.

{2} The district court granted State Farm's motion for summary judgment. We reverse.

FACTUAL BACKGROUND

{3} Brian Salazar, Sr. (Father) was shot and killed in November 1996 by an unidentified person shooting from a moving vehicle. Before being shot, Father argued with the occupants of a blue truck. Father and the driver of the blue truck engaged in a fistfight while stopped at a red light. The fight ended when the passenger of the blue truck fired a gunshot into the air. The two vehicles continued down the street and Father was hit by a shot fired through his windshield. It is currently unknown who actually fired the gun.

{4} On the day of the shooting, Luebbers was approximately four weeks pregnant with Father's son, Brian Jr. Luebbers lived with her mother and stepfather, Kathleen and Edward O'Brien, and was a member of their household. There were two insurance policies issued by State Farm in force providing uninsured motorist coverage to members of the O'Brien household. Brian Jr. was born on July 8, 1997, and continued to reside with his mother in the O'Brien household until September 2001. Father was not a member of the O'Brien household at the time of the shooting.

{5} Slightly reorganized from their argument, the parties briefed the following issues:

1. Does the provision of the State Farm policy limiting coverage for loss of consortium claims to damages caused by "bodily injury to an insured" comply with New Mexico's uninsured motorist statute, NMSA 1978, § 66-5-301 (1983)?

2. Can Brian Jr. be deemed an insured under the policy where the event causing his injury occurred when he was a four-week-old fetus?

3. Is loss of consortium of a parent available to Brian Jr. as a cause of action separate from a wrongful death claim?

4. Was the shooting death of Father an accident within the requirements of the insurance policy?

{6} The first three issues present pure questions of law. As such, we apply a de novo standard of review. Cooper v. Chevron USA, Inc., 2002-NMSC-020, ¶ 16, 132 N.M. 382, 49 P.3d 61 ("The meaning of language used in a statute is a question of law that we review de novo."); Envtl. Control, Inc. v. City of Santa Fe, 2002-NMCA-003, ¶ 14, 131 N.M. 450, 38 P.3d 891 ("Whether ambiguity exists [in a contract] is a question of law; therefore, this Court reviews the district court's decision de novo.").

{7} State Farm did not raise issue number four in its own motion for summary judgment, but instead argued it in response to Luebbers' motion for summary judgment. The language of the order granting State Farm's motion for summary judgment does not indicate that this issue was decided or played a role in the district court's decision. If anything, the record indicates that the district court did not decide the issue since it denied Luebbers' motion for summary judgment which initially raised it. Given the posture of the record, we believe the issue is not ripe for review and is subject to renewal and consideration on remand. Thus, we will not address this issue.

1. Does the provision of the State Farm policy limiting coverage for loss of consortium claims to damages caused by "bodily injury to an insured" comply with New Mexico's uninsured motorist statute, NMSA 1978, § 66-5-301 (1983)?

{8} State Farm argues that the general insuring provision of its insurance policy plainly requires that bodily injury be sustained by an insured before any coverage provision applies. It is undisputed that Father was not an insured under the State Farm policy. Luebbers argues that the policy has conflicting language both granting and limiting coverage and, therefore, is ambiguous. In addition, Luebbers argues that if the policy does exclude coverage for the damages sustained by Brian Jr., the uninsured motorist insurance statute bars that exclusion. See § 66-5-301.

The policy is not ambiguous and requires bodily injury to an insured.

{9} "In order to determine coverage, we initially look to the language of the policy itself." Gonzales v. Allstate Ins. Co., 122 N.M. 137, 139, 921 P.2d 944, 946 (1996). If an insurance policy is found to be reasonably susceptible to different interpretations, "the contract is construed against the insurance company which drafted the clause." Lopez v. Found. Reserve Ins. Co., 98 N.M. 166, 168, 646 P.2d 1230, 1232 (1982), modified on other grounds by Montano v. Allstate Indem. Co., 2004-NMSC-020, 135 N.M. 681, 92 P.3d 1255. However,

[i]f the words of an insurance policy can reasonably be given their plain, ordinary, and popular meaning, the provisions should be applied as written, and the parties should be bound to the agreement into which they entered. This court cannot strain or torture the language of an insurance policy to create an ambiguity.

Gonzales, 122 N.M. at 141, 921 P.2d at 948 (internal quotation marks and citation omitted).

{10} State Farm relies on language in Section III — "Uninsured and Unknown Motorists" on page twelve of the policy which states:

We will pay damages for bodily injury or property damage an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be sustained by an insured and the bodily injury or property damage must be caused by accident arising out of the ownership, maintenance or use of an uninsured motor vehicle.

Luebbers also relies on this policy language, arguing that this portion of the policy refers to direct bodily injuries to an insured but does not address consequential damages such as loss of consortium. These types of claims and damages are covered, Luebbers asserts, under the "Limits of Liability" section on page thirteen of the policy:

Bodily injury

The amount of coverage is shown on the declarations page under "Limits of Liability — U — Each Person, Each Accident." Under "Each Person" is the amount of coverage for all damages due to bodily injury to one person. "Bodily injury to one person" includes all injury and damages to others resulting from this bodily injury. Under "Each Accident" is the total amount of coverage, subject to the amount shown under "Each Person", for all damages due to bodily injury to two or more persons in the same accident.

{11} Luebbers argues that the two paragraphs are in conflict since the second paragraph specifically recognizes payment for damages claims to non-injured insureds resulting from a bodily injury, while the first paragraph limits claims to those losses sustained by an insured suffering bodily injury. Luebbers claims that this conflict creates an ambiguity. In response, State Farm argues that the first paragraph quoted above is the general insuring provision, which sets forth the general limits of coverage. According to State Farm, if the general insuring provision does not provide coverage, there is no coverage.

{12} We perceive no ambiguity in this policy. The Limits of Liability language makes clear that the per-person/per-accident limits cover all damages flowing from bodily injury to insureds, including derivative claims such as loss of consortium. Further, coverage for "hit and run" drivers as a specie of uninsured motorist requires that the unknown motor vehicle cause "bodily injury to an insured." The definition of "insured" for uninsured coverage includes "any person entitled to recover damages because of bodily injury to an insured." It is clear that State Farm sought to require bodily injury to an insured before coverage for any claims would be triggered. State Farm expressed its desire in language which cannot be interpreted by a reasonable insured in another way. See Computer Corner, Inc. v. Fireman's Fund Ins. Co., 2002-NMCA-054, ¶ 13, 132 N.M. 264, 46 P.3d 1264 (emphasizing that insurance contract language should be interpreted to reflect the "understanding that a non-lawyer insured could derive from the ... policy").

{13} In order to prevail in a claim under the language of the policy, Brian Jr. must demonstrate bodily injury to an insured. Father was not an insured under the policy, so his bodily injury cannot constitute bodily injury to an "insured." Assuming that Brian Jr. is an insured, he would have to demonstrate his own bodily injury in order to meet the terms of the policy. However, New Mexico case law has made clear that the emotional distress suffered because of loss of consortium is not "bodily injury" within the meaning of an insurance...