Hawley v. Farm Bureau

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 5, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
JOHN HAWLEY,

Plaintiff - Appellant,

v. No. 19-2183
(D.C. No. 1:18-CV-00489-JHR-SCY)
FARM BUREAU PROPERTY & (D. N.M.)
CASUALTY INSURANCE COMPANY,

Defendant - Appellee.
_________________________________

ORDER AND JUDGMENT *
_________________________________

Before MATHESON, McHUGH, and EID, Circuit Judges.
_________________________________

John Hawley suffered injuries in an automobile accident. The other driver was at

fault and underinsured. Mr. Hawley recovered $25,000 from the at-fault driver’s insurer,

State Farm. He then asked his insurer, Farm Bureau, to pay the rest of his damages under

his uninsured motorist/underinsured motorist (“UM/UIM”) coverage. Farm Bureau paid

$75,000—the UM/UIM policy limit of $100,000 less $25,000 to offset the State Farm

payment.

*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
 When Mr. Hawley purchased his Farm Bureau policy, he selected UM/UIM

coverage, but he also signed an endorsement rejecting stacked coverage, limiting his

UM/UIM coverage to $100,000. After the accident, however, Mr. Hawley thought he

should be entitled to “stacked” UM/UIM coverage of $600,000 because he insured six

vehicles with Farm Bureau.

Mr. Hawley sued Farm Bureau, alleging his rejection of stacked coverage was not

valid under New Mexico law. The district court disagreed and granted summary

judgment to Farm Bureau. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

A. UM/UIM Coverage and Stacking

An at-fault driver in an automobile accident who lacks enough insurance to cover

the injured party’s damages is an uninsured or underinsured motorist. UM/UIM coverage

allows an injured party to recover from its own insurer in this circumstance, up to the

UM/UIM coverage limit. See Progressive Nw. Ins. Co. v. Weed Warrior Servs., 245 P.3d

1209, 1211 (N.M. 2010).

“Stacked” coverage enables an insured to increase this coverage limit by

aggregating UM/UIM coverage across multiple vehicles for an accident involving any

one of the vehicles. As explained in State Farm Mutual Automobile Insurance Co. v.

Safeco Insurance Co., 298 P.3d 452 (N.M. 2013), “The term ‘stacking’ refers to an

insured’s attempt to recover damages in aggregate under more than one policy or one

policy covering more than one vehicle until all damages either are satisfied or the total

2
policy limits are exhausted.” Id. at 454 (quotation omitted). For instance, the coverage

limit doubles when an injured party insures two vehicles and stacks coverage across those

vehicles.

B. Factual Background

Mr. Hawley’s Insurance Policy

Farm Bureau issued Mr. Hawley a motor vehicle insurance policy covering six

vehicles and providing bodily injury liability coverage of $100,000 per person and

$300,000 per accident. When Mr. Hawley bought the policy, he completed an

“Uninsured And Underinsured Motor Vehicle Coverage Stacking

Rejection/Coverage Selection” form. See App. at 91-92.

As described below, Farm Bureau allowed Mr. Hawley to (a) select UM/UIM

coverage and, if he did, (b) select stacked UM/UIM coverage. He chose UM/UIM

coverage but rejected stacked coverage. Farm Bureau then issued the policy showing Mr.

Hawley’s selections as (c) declarations.

a. UM/UIM selection

The selection form described base-level UM/UIM coverage—UM/UIM coverage

without stacking. It instructed Mr. Hawley that he could (1) purchase coverage up to his

liability limit, (2) purchase coverage in a lesser amount, or (3) reject coverage.

The form provided a menu of “Available UM Coverage Limit[s]”: the “[l]iability

limit” of “$100,000 per person/$300,000 per accident,” two intermediate offerings of

$50,000/$100,000 and $25,000/$50,000, and “$0 – REJECT UM coverage completely.”

3
Id. at 91. Next to the various coverage levels, the form listed the applicable premiums.

The following excerpt from his policy shows Mr. Hawley selected the maximum

coverage level ($100,000/$300,000).

Id. 1 Note that the policy offered non-stacked and stacked coverage at various levels of

base UM/UIM coverage.

The policy listed “[r]epresentations,” including that “UM coverage ha[d] been

explained” and that the insured “selected the UM coverage limit as indicated.” Id. at 92

(emphasis omitted). Mr. Hawley signed below these representations.

b. Stacking selection

The policy also allowed Mr. Hawley to select whether any UM/UIM coverage he

purchased would be stacked for all six vehicles. As the foregoing excerpt shows, the

selection form listed the options and applicable premiums for non-stacked and stacked

coverage. For example, the premium for the maximum level of non-stacked UM/UIM

coverage was $274.16, and the premium for the stacked equivalent was $726.56. Farm

Bureau did not offer Mr. Hawley a choice of stacked coverage on fewer than six vehicles.

1
The highlighting appears in the record.

4
 The form then instructed that Mr. Hawley could reject stacked coverage. It also

explained the benefits from paying for stacked coverage: “Intra-Policy Stacked UM

Coverage refers to combining the UM coverage limits . . . for each vehicle specifically

insured for UM coverage under the policy.” Id.

The following excerpt from the policy shows Mr. Hawley selected the option

stating “I reject Intra-Policy Stacked UM Coverage and, instead, select Non-Stacked UM

Coverage.” Id. He signed his name under this selection. 2

Id. 3

c. Declarations

The declarations in Mr. Hawley’s policy reflected both the UM/UIM coverage

level he selected and his rejection of stacking for each of his six insured vehicles. Each

2
Mr. Hawley’s wife later completed a materially similar UM/UIM and stacking
selection form, which was incorporated into the insurance policy before the accident.
The parties and the district court focused on Mr. Hawley’s selection form.
3
The highlighting appears in the record.

5
entry said that the UM/UIM coverage was $100,000 per person/$300,000 per accident,

and “Uninsured and Underinsured Motor Vehicle Stacking Rejected.” Id. at 94-96.

The policy also explained the meaning of “stacking rejected”:

If stacking rejected is indicated in the Declarations for a
particular vehicle then the limits provided for that vehicle to
protect against damages “caused by” accidents with
“uninsured motor vehicles” and “underinsured motor
vehicles” are to be applied separately to that vehicle and
cannot be stacked, added together or combined to determine
the amount of insurance available from one “occurrence” . . . .

Id. at 101.

Accident and Claim

In 2015, Mr. Hawley was involved in a car accident and suffered injuries. He

recovered the policy limit of $25,000 from State Farm, the at-fault driver’s insurer. Farm

Bureau then paid Mr. Hawley $75,000, reflecting $100,000 of UM/UIM coverage minus

the statutory offset of $25,000 from the at-fault driver’s policy.4 Farm Bureau capped its

payment at the non-stacked coverage limit in Mr. Hawley’s policy.

C. Procedural Background

In 2018, Mr. Hawley sued Farm Bureau in New Mexico state court. Farm Bureau

removed the action to the U.S. District Court for the District of New Mexico on diversity

4
The New Mexico UM/UIM “statute limits the insured’s recovery to the amount
of uninsured motorist coverage purchased for the insured’s benefit; that amount will be
paid in part by the tortfeasor’s liability carrier and the remainder by the insured’s
uninsured motorist insurance carrier.” Schmick v. State Farm Mut. Auto. Ins. Co., 704
P.2d 1092, 1099 (N.M. 1985); see N.M. Stat. § 66-5-301(B).

6
grounds. Mr. Hawley and Farm Bureau agreed to have a magistrate judge conduct the

proceedings.

Mr. Hawley voluntarily dismissed all of his claims except those relating to

stacking. Farm Bureau then moved for summary judgment, arguing that Mr. Hawley

could not stack his UM/UIM coverages. The district court granted summary judgment

for Farm Bureau and dismissed the action with prejudice.

II. DISCUSSION

Mr. Hawley argues his rejection of stacked UM/UIM insurance was invalid

because Farm Bureau did not provide him an opportunity to “reject each and every

possible combination of stacking for each and every vehicle under his policy.” See Aplt.

Br. at 12. He insists that Farm Bureau—rather than offering a choice only between no

stacking at all or stacking coverage on all six of his vehicles—should have offered him

the choice of stacking on a per-vehicle basis.

For example, at his selected base UM/UIM coverage level of $100,000 per person,

Mr. Hawley contends that Farm Bureau should have offered him the opportunity to stack

his UM/UIM coverage across two vehicles (doubling his coverage to $200,000), or stack

his coverage across three vehicles (tripling his coverage to $300,000), or stack his

coverage across four vehicles (quadrupling his coverage to $400,000), and so on. 5 Only

then, he argues, would a rejection of stacked coverage be valid.

5
To the extent that Mr. Hawley suggests these choices should be available for
each base UM/UIM coverage level, our analysis remains the same.

7
 We conclude New Mexico law does not require insurers to offer such per-vehicle

stacking to obtain a valid rejection.

A. Additional Legal Background

Standard of Review

“We review de novo the district court’s grant of summary judgment and apply the

same legal standard used by the district court.” Cornhusker Cas. Co. v. Skaj, 786 F.3d

842, 849 (10th Cir. 2015) (quotation omitted). A court “shall grant summary judgment if

the movant shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In applying this

standard, [the court] view[s] the evidence and the reasonable inferences to be drawn from

the evidence in the light most favorable to the nonmoving party.” Parker Excavating,

Inc. v. Lafarge W., Inc., 863 F.3d 1213, 1220 (10th Cir. 2017) (quotation omitted).

“We also review legal questions de novo, including the district court’s

interpretation of [state] law . . . .” Black & Veatch Corp. v. Aspen Ins. (UK), 882 F.3d

952, 957 (10th Cir. 2018). 6 “Where the state’s highest court has not addressed the issue

presented, the federal court must determine what decision the state court would make if

faced with the same facts and issue.” Bird v. W. Valley City, 832 F.3d 1188, 1199 (10th

Cir. 2016) (quotation omitted). In making this determination, we may look to “decisions

rendered by lower courts in the relevant state, appellate decisions in other states with

6
The parties agree New Mexico law governs.

8
similar legal principles, district court decisions interpreting the law of the state in

question, and the general weight and trend of authority in the relevant area of law.”

Patterson v. PowderMonarch, LLC, 926 F.3d 633, 637 (10th Cir. 2019) (quotation

omitted).

New Mexico Law on UM/UIM Coverage

a. UM/UIM statute

By statute, motor vehicle insurance issued in New Mexico must offer UM/UIM

coverage. See N.M. Stat. § 66-5-301(A), (B); see also N.M. Code R. § 13.12.3

(regulation addressing UM coverage). 7 The insurer must offer levels of UM/UIM

coverage above a statutory minimum and up to the liability coverage limit. See N.M.

Stat. § 66-5-301(A); Weed Warrior Servs., 245 P.3d at 1211. An insured may decline

UM/UIM coverage. See N.M. Stat. § 66-5-301(C).

b. New Mexico Supreme Court’s application of the statute

The New Mexico Supreme Court has observed that this “UM/UIM statute is

intended to expand insurance coverage and to protect individual members of the public

against the hazard of culpable uninsured motorists.” Weed Warrior Servs., 245 P.3d

at 1211 (quotation omitted). Thus, “the uninsured motorist statute must be liberally

7
Although the New Mexico statute requires UM/UIM coverage to be offered with
motor vehicle insurance, the insurance follows the insured rather than a vehicle. See
Chavez v. State Farm Mut. Auto. Ins. Co., 533 P.2d 100, 103 (N.M. 1975). For instance,
“UM coverage also insures one against bodily injury while a pedestrian or a passenger in
someone else’s vehicle.” Montano v. Allstate Indem. Co., 92 P.3d 1255, 1258 (N.M.
2004).

9
construed to implement the purpose of compensating those injured through no fault of

their own.” Schmick v. State Farm Mut. Auto. Ins. Co., 704 P.2d 1092, 1095 (N.M.

1985). Ambiguous policies “are construed against the insurer.” See Rodriguez v.

Windsor Ins. Co., 879 P.2d 759, 763 (N.M. 1994), modified, Montano v. Allstate Indem.

Co., 92 P.3d 1255, 1256 (N.M. 2004). As a result, “UM/UIM coverage [is] the default

when the insured has not exercised the right to reject.” Marckstadt v. Lockheed Martin

Corp., 228 P.3d 462, 468 (N.M. 2009).

In Jordan v. Allstate Insurance Co., 245 P.3d 1214 (N.M. 2010), the New Mexico

Supreme Court identified the steps an insurer must take “to obtain a valid rejection” of

UM/UIM coverage. See id. at 1221. The court expressed concern that insurers were

“offer[ing] UM/UIM coverage in ways that are not conducive to allowing the insured to

make a realistically informed” or “knowing and intelligent” decision to reject UM/UIM

coverage. See id. at 1220. To remedy this problem, the court said that insurers must

(1) offer the insured UM/UIM coverage equal to his or her
liability limits, (2) inform the insured about premium costs
corresponding to the available levels of coverage, (3) obtain a
written rejection of UM/UIM coverage equal to the liability
limits, and (4) incorporate that rejection into the policy in a
way that affords the insured a fair opportunity to reconsider
the decision to reject . . . .

Id. at 1221.

If an insurer fails to meet these requirements, “the policy will be reformed to

provide UM/UIM coverage equal to the liability limits.” See id.

10
 New Mexico Law on Stacked Coverage - Montano

Unlike UM/UIM coverage, no New Mexico statute specifically addresses stacked

coverage. Rather, “[s]tacking is a judicially-created doctrine.” Montano, 92 P.3d

at 1260. 8 This doctrine does not require insurers to provide stacking. See id. (declining

to find “anti-stacking provisions void as against public policy”). Instead, the New

Mexico Supreme Court “treat[s] stacked coverage as extra coverage for which the parties

have contracted.” Id. (quotation omitted). If an insurer fails to obtain a valid rejection of

stacked coverage that has been offered, “the insured is entitled [to stacking] by default.”

See id. (quotation omitted).

In Montano v. Allstate Indemnity Co., 92 P.3d 1255 (N.M. 2004), the policy

offered stacking limited to two vehicles, but the insured purchased liability coverage on

four vehicles. See id. at 1256-57. The insured claimed he was entitled to stack his

coverage across all four. See id. at 1256. Further, he argued the court should declare “all

anti-stacking clauses . . . void as against New Mexico’s public policy.” Id. at 1257. The

court declined to do so, see id. at 1256, and clarified what an insurer that has offered

stacked UM/UIM coverage must do to avoid providing it, see id. at 1260. The court read

New Mexico’s UM/UIM statute to “suggest that insurance companies obtain the written

rejection of each stacked coverage from [their] insureds in order to limit that coverage,”

and thus held that “an insurance company should obtain written rejections of stacking in

8
The New Mexico Legislature has not disapproved of stacking, however.
Montano v. Allstate Indem. Co., 92 P.3d 1255, 1260 (N.M. 2004).

11
order to limit its liability based on an anti-stacking provision.” Id. This requirement

“effectuate[s] the two functions of [New Mexico’s] stacking jurisprudence: fulfilling the

reasonable expectations of the insured and ensuring that the insured receive what he or

she pays for.” Id. at 1261.

The Montano court also provided an example of what a valid stacking rejection

might look like:

As an illustration of our holding, in a multiple-vehicle policy
insuring three cars, the insurer shall declare the premium
charge for each of the three UM coverages and allow the
insured to reject, in writing, all or some of the offered
coverages. Thus, hypothetically, in the case of a $25,000
policy, if the premium for one UM coverage is $65, two
coverages is an additional $60, and three coverages $57 more,
the insured who paid all three (for a total premium of $182)
would be covered up to $75,000 in UM bodily injury
coverage. However, the insured may reject, in writing, the
third available coverage and pay $125 for $50,000 of UM
coverage; or the insured may reject, in writing, the second
and third coverages and pay $65 for $25,000 of UM
coverage; or the insured may reject all three UM coverages.
In any event, the coverage would not depend on which
vehicle, if any, was occupied at the time of the injury. Thus,
the insured’s expectations will be clear, and an insured will
only receive what he or she has paid for.

Id. at 1260-61.

Citing to this illustration, Jordan said “Montano . . . require[s] insurance carriers

to provide insureds with the premium costs for each available level of stacked coverage.”

245 P.3d at 1221; see also Whelan v. State Farm Mut. Auto. Ins. Co., 329 P.3d 646, 653

(N.M. 2014) (summarizing Montano as requiring “that insurers disclose the premium

12
costs for each available level of stacked coverage as a means of guaranteeing that

consumers can knowingly exercise their statutory rights to UM/UIM coverage”).

In sum, Montano holds that when an insurer has offered stacking of UM/UIM

coverage, it can avoid providing it by (1) stating the premium costs for the offered

coverage and (2) obtaining a written rejection from the insured.

Later Stacking Cases

Since Montano, New Mexico and federal courts have attempted to apply its

holding about rejection of stacked coverage. Some of these cases speak to the question

before us—whether an insurer must offer every possible combination of stacking for a

rejection to be valid.

In Arias v. Phoenix Indemnity Insurance Co., --- P.3d ----, 2013 WL 12439297

(N.M. Ct. App. 2013), the plaintiff insured two vehicles and “rejected UM/UIM

coverage.” See id. at *1. The New Mexico Court of Appeals found the insured’s

rejection invalid and reformed her policy to provide UM/UIM coverage. See id. It also

decided the reformed coverage limit should stack across the two insured vehicles, see id.

at *4, noting “Montano’s strong dicta indicating a preference for policies to treat vehicles

individually and, hence, requiring a policyholder’s specific rejection of stacked coverage

for each and every vehicle owned before stacking is validly rejected,” id. at *3. The

court explained, “[A]bsent the execution of a sufficient rejection of each and every

possible combination of stacking, stacking is something ‘to which the insured is entitled

by default.’” Id. (quoting Montano, 92 P.3d at 1260). Thus, “Montano demonstrates that,

13
when invalid rejection of stacking exists, our courts favor and extend stacking to all

vehicles covered by the policy.” Id. The court “h[e]ld that, as much as coverage itself to

the maximum limit of liability must be read into [the plaintiff’s] policy, stacking of

coverage for each of the two vehicles thus insured must now follow suit absent valid

rejection.” Id. at *4.

In Jaramillo v. Government Employees Insurance Co., 573 F. App’x 733 (10th

Cir. 2014) (unpublished), 9 we addressed whether New Mexico law requires insurers to

explain stacking to insureds. See id. at 739. We noted that “the Jordan court was silent

on the issue of stacking, and it did not clearly tie stacking to its new UM/UIM coverage-

rejection standard.” Id. at 744. We concluded “neither Jordan nor Montano expressly

requires the kind of ‘discussion of stacking’—viz., a totaling of the premium cost for all

vehicles and the provision of the associated amount of stacked coverage at each level of

coverage—that the [plaintiffs] suggest must be on a valid Option Form (and waiver of

UM/UIM coverage).” Id. at 749.

In Government Employees Insurance Co. v. Shroyer, No. 1:15-cv-00306

PJK/SCY, 2015 WL 12669885 (D.N.M. Dec. 1, 2015), the U.S. District Court for the

District of New Mexico addressed a selection form that offered UM/UIM coverage on

only an “‘all cars’ or ‘no cars’ basis.” See id. at *1-3. The insured argued that because

9
Although not precedential, we find the reasoning of unpublished opinions cited
in this order and judgment instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are
not precedential, but may be cited for their persuasive value.”); see also Fed. R. App. P.
32.1.

14
the form did not allow selection of “coverage on each car individually,” it was invalid.

See id. at *3. She thus asked the court to reform the policy to provide the maximum

amount of stacked coverage. See id. at *1. The court observed that the insured’s

argument for per-vehicle offerings, “[t]aken to its logical end, . . . would require an

infinite number of choices, an approach that is unworkable.” See id. at *4. Looking to

Montano and Jordan, it determined “[t]here simply is no requirement that an insurer

make available, let alone disclose, every permutation [of coverage] regardless of whether

it is offered as an option.” See id.; see also Allstate Fire & Cas. Ins. Co. v. Trissell,

No. 1:17-cv-00362 PJK/GBW, 2017 WL 6028515, at *4 (D.N.M. Dec. 5, 2017) (“There

is no requirement that an insurer offer [stacked] UM/UIM coverage on a per-vehicle basis

in a multi-vehicle policy, nor is there a requirement that an insurer provide premium

amounts for options not available.”).

In Ullman v. Safeway Insurance Co., 404 P.3d 434 (N.M. Ct. App. 2017), cert.

granted, No. S-1-SC-36580 (N.M. Aug. 24, 2017), the New Mexico Court of Appeals

addressed an insurer’s duty to explain stacking to customers. See id. at 439-40, 444-47.

The court, adopting Jaramillo’s analysis of Montano and Jordan, found an insurer need

not present to an insured its UM/UIM coverage level if stacked. See id. at 446-47. It

generally held “an insurer has no duty to offer or explain stacking.” Id. at 440.

Finally, in Lueras v. GEICO General Insurance Co., 424 P.3d 665 (N.M. Ct. App.

2018), cert. granted, Nos. S-1-SC-37135, S-1-SC-37137 (N.M. Aug. 16, 2018), the New

Mexico Court of Appeals addressed the same questions presented in Ullman, see id.

15
at 666, and also whether an insurer may require insureds either to “purchase the same

level of UM/UIM insurance on each of their vehicles, or reject UM/UIM coverage on all

vehicles,” id. at 668-69. First, relying on Ullman, the court rejected the claim that an

insurer’s “not explain[ing] that UM/UIM benefits would be stacked”—and thus not

stating “the amount of UM/UIM coverage . . . actually available”—violated Jordan. See

id. at 668. Second, the court held that New Mexico law does not “impose . . . a

requirement” that “automobile insurers . . . offer policyholders UM/UIM coverage on a

per-vehicle basis.” Id. at 670. Thus, “New Mexico law does not preclude an insurer

from requiring an insured to choose the same UM/UIM coverage (or to reject UM/UIM

coverage entirely) for all vehicles covered by a single policy.” Id. at 666-67.

B. Analysis

In our view, New Mexico law does not require an insurer to offer every

combination of UM/UIM coverage stacking for an insured’s rejection of stacked

coverage to be valid. First, the New Mexico Supreme Court has not addressed the

question before us, and its cases do not imply such a requirement. Second, the relevant

case law suggests New Mexico law does not require an insurer to offer every

combination of stacking. Third, New Mexico public policy does not call for this

requirement.

New Mexico Supreme Court

The New Mexico Supreme Court did not address in Jordan or Montano whether

insurers must offer every combination of stacked UM/UIM coverage. In Jordan, it

16
identified the steps an insurer must take to obtain a valid rejection of base UM/UIM

coverage, not stacking. See 245 P.3d at 1221; see also Jaramillo, 573 F. App’x at 744

(“[E]xcept for the general reference to Montano, the Jordan court was silent on the issue

of stacking, and it did not clearly tie stacking to its new UM/UIM coverage-rejection

standard.”); Ullman, 404 P.3d at 447 (“As in Jaramillo, we will not graft stacking onto

our view of Jordan.”).

In Montano, the court addressed stacking, but narrowly “h[e]ld that insurance

companies must obtain written rejections of stacking in order to limit their liability.”

92 P.3d at 1256. As the policy before us shows, requiring insurers to receive a rejection

of stacking before limiting coverage is not the same as requiring insurers to offer and

receive rejections of every possible combination of stacking before limiting coverage.

See Lueras, 424 P.3d at 670 (“We conclude that [Montano] did not consider whether

automobile insurers should be required to offer policyholders UM/UIM coverage on a

per-vehicle basis, much less impose such a requirement.”). Rather, Montano holds that

insurers must obtain rejections “of the offered coverages,” Montano, 92 P.3d at 1261

(emphasis added), which is what happened with Mr. Hawley. Post-Montano decisions

correspondingly refer to the “available level[s] of stacked coverage.” See Jordan, 245

P.3d at 1221 (emphasis added); see also Whelan, 329 P.3d at 653.

The Montano court gave an “illustration of [its] holding” in which an insurer

offered per-vehicle stacking. See 92 P.3d at 1260-61. But an illustration is an example,

not a holding. See Lueras, 424 P.3d at 670 (identifying no authority “[o]ther than the

17
illustration in [Montano]” for the “contention that [an insurer] must offer UM/UIM

coverage on a per-vehicle basis,” and thus rejecting it). Nothing in the illustration

requires an insurer to offer every combination of stacked coverage. See id. (stating that

“[b]y its own terms, [Montano’s] ‘illustration’ does not describe a mandatory requirement

imposed on all insurers offering UM/UIM coverage”). Rather, the illustration shows how

an insurer could receive a valid stacking rejection if it offered stacking in this fashion.

See Trissell, 2017 WL 6028515, at *4 (stating that “[t]he illustration in Montano

concerns a policy where the insurer offers stacking on a per-vehicle basis (so a written

rejection of stacking on each vehicle would be appropriate), but it does not mandate such

an offering”).

Based on Jordan and Montano, we have no reason to predict that the New Mexico

Supreme Court would require insurers to offer every possible stacking combination

before a rejection can be valid, as Mr. Hawley contends. Even if Jordan’s requirements

to reject base UM/UIM coverage applied to stacking, we find nothing in Jordan that

would require an insurer to offer and then receive a rejection of every possible

combination of stacking, as opposed to a rejection of just the stacking options offered by

the insurer. See Trissell, 2017 WL 6028515, at *4 (stating that the requirements of

“premium disclosure and rejection are designed for available options, not every

permutation imaginable”).

18
 Relevant Case Law from Other Courts

The foregoing analysis of New Mexico Supreme Court decisions accords with

decisions from other courts. In Shroyer and Trissell, the U.S. District Court for the

District of New Mexico addressed similar questions and concluded New Mexico insurers

need not offer every combination of UM/UIM coverage or stacking. See 2015 WL

12669885, at *3-5; 2017 WL 6028515, at *3-4. In Lueras, the New Mexico Court of

Appeals likewise rejected a requirement for per-vehicle UM/UIM coverage offerings.

See 424 P.3d at 666-70. And in Ullman, the New Mexico Court of Appeals stated that an

insurer need not “offer or explain stacking to a customer,” 404 P.3d at 440—which also

would necessarily preclude a requirement to offer or explain per-vehicle stacking.

Similarly, we concluded in Jaramillo that neither Jordan nor Montano requires a

“discussion of stacking” for “available levels” of coverage, see 573 F. App’x at 744-49,

much less unavailable ones. 10

Mr. Hawley’s reliance on Arias is factually inapposite. First, in Arias the insured

rejected base UM/UIM coverage. See 2013 WL 12439297, at *1. Here, Mr. Hawley

10
Mr. Hawley correctly observes the district court improperly stated it was
“bound” by Jaramillo. See App. at 145. Typically, “when a panel of this Court has
rendered a decision interpreting state law, that interpretation is binding on district courts
in this circuit, and on subsequent panels of this Court, unless an intervening decision of
the state’s highest court has resolved the issue.” Patterson v. PowderMonarch, LLC, 926
F.3d 633, 637 (10th Cir. 2019) (quotation omitted). Jaramillo is an unpublished opinion.
And while unpublished opinions may have “persuasive value,” they “are not binding
precedent.” United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005); see also 10th
Cir. R. 32.1(A). As our analysis reveals, despite this inaccurate statement by the district
court, its ultimate conclusion of law proved accurate.

19
selected base UM/UIM coverage and rejected stacked coverage. Second, in Arias, the

court held the plaintiff’s rejection of UM/UIM coverage was invalid, and it reformed the

policy to provide base coverage. See id. Here, the policy already included base

UM/UIM coverage. Third, Arias addressed what stacking options should be available

when the court has reformed the policy to add base UM/UIM coverage. See id. at *3-4.

Here, Mr. Hawley’s policy already included base UM/UIM and stacking options without

reformation of the policy. See Jaramillo, 573 F. App’x at 746 (“[S]tacking in the

situation contemplated by Arias follows only after the court finds an invalid rejection of

UM/UIM coverage and reads that coverage into a policy.”). Fourth, the Arias policy

covered only two vehicles, so the only stacking possibility was to double the UM/UIM

coverage limit over two vehicles. See 2013 WL 12439297, at *1. Here, Mr. Hawley

could choose to stack his UM/UIM coverage over six vehicles. He argues he should have

had other options, but Farm Bureau gave him at least as many options as the court created

in Arias. The stark differences between Arias and this case render the Arias dicta (in turn

based on Montano dicta) on per-vehicle stacking coverage unpersuasive here.

Public Policy

New Mexico recognizes a “public policy in support of stacking.” Montano, 92

P.3d at 1259. But this policy does not help Mr. Hawley here. It has two goals:

“fulfilling the reasonable expectations of the insured and ensuring that the insured receive

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what he or she pays for.” Id. at 1261. Mr. Hawley received the coverage that he

requested and for which he paid. 11

The Montano court recognized that stacking coverage across all vehicles only

could reduce consumers’ “freedom to decide how much coverage they can afford.” See

id. at 1259. But this preference for consumer choice does not require every conceivable

choice. Indeed, the law does not even require an insurer to offer every possible level of

UM/UIM coverage, and does not require an insurer to offer stacked coverage at all. See

Jordan, 245 P.3d at 1221 (explaining that the “menu of coverage options and

corresponding premium costs” an insurer must provide includes rejection of UM/UIM

coverage, coverage in “the minimum amount . . . allowed by [statute],” coverage in the

“amount equal to the policy’s liability limits,” and “any other levels of UM/UIM

coverage offered to the insured”).

Farm Bureau offered Mr. Hawley three base levels of UM/UIM coverage:

(1) $25,000; (2) $50,000; or (3) $100,000. It further offered him the choice of not

stacking his chosen base coverage or of stacking it across his six vehicles. As a result,

Mr. Hawley could pick (1) $25,000 non-stacked; (2) $50,000 non-stacked; (3) $100,000

11
In his reply brief, Mr. Hawley notes that Montano states as a matter of public
policy that “it is unfair not to allow stacking when multiple premiums are paid,” Aplt.
Reply Br. at 6 (quoting Montano, 92 P.3d at 1259 (emphasis omitted)), and argues he
“paid separate UM/UIM premiums for each of his . . . covered vehicles,” id. By raising
this argument only in his reply brief, Mr. Hawley waived it. See United States v. Pickel,
863 F.3d 1240, 1259 (10th Cir. 2017) (stating that an appellant “waived” an argument
made “for the first time in his reply brief”). We thus do not address it.

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non-stacked; (4) $25,000 stacked (equal to $150,000 of coverage); (5) $50,000 stacked

(equal to $300,000 of coverage); or (6) $100,000 stacked (equal to $600,000 of

coverage). Or he could (7) reject UM/UIM coverage entirely. Mr. Hawley argues these

seven options did not provide him with adequate choice. He contends the only way Farm

Bureau could have offered a sufficient range of choice was by providing every

combination of stacking for every vehicle, potentially necessitating a vastly expanded

number of options. The New Mexico Supreme Court has not indicated it would require

an insurer to do so.

* * * *

We do not read New Mexico law to require an insurer to offer every possible

combination of UM/UIM stacking to obtain a valid rejection. Farm Bureau therefore

received a valid rejection of stacking from Mr. Hawley. He was not entitled to stack his

UM/UIM coverage.

III. CONCLUSION

We affirm the district court’s judgment.

Entered for the Court

Scott M. Matheson, Jr.
Circuit Judge

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