(dissenting).
In my view the majority opinion incorrectly reverses a summary judgment for Windsor based upon Romero v. Dairyland Insurance Co., 111 N.M. 154, 803 P.2d 243 (1990). This case is distinguishable from Romero in a number of significant respects.
In this case, Kaiser told Windsor, in writing, that he did not want uninsured/under-insured motorist coverage (“UM/UIM coverage”). He was never charged for the coverage nor did he pay for it. Unlike Romero, there is no indication whatsoever in this case that Kaiser was ever confused about what coverage he had purchased. Kaiser admits he signed the insurance policy and he knew it did not include UM/UIM coverage. Unlike Romero, here Windsor issued a declaration page incorporating Kaiser’s rejection of UM/UIM coverage, which expressly stated that no UM/UIM coverage was provided.
Further Windsor mailed this notice of rejection to Kaiser’s last known address, which was incomplete and therefore incorrect. This incomplete and incorrect address was given to Windsor by Kaiser himself. He had not listed his apartment number and the mailing containing the notice was returned to Windsor for not having a complete address. In my judgment the majority misplaces the fault or responsibility for the incomplete address upon the defendant rather than upon the plaintiff where it rightfully belongs. The majority opinion apparently stands for the questionable proposition that one who negligently provides an incomplete address and subsequently does not receive his mail can shift the blame to the sender of mail to whom the faulty address was originally given.
Windsor, by not attaching the rejection of UM/UIM coverage to the policy, has admittedly made a technical error. However, there is overwhelming evidence in this case of substantial compliance by Windsor with NMSA 1978, Section 66-5-301 (Repl.Pamp. 1994) and the attendant insurance regulations. See Regulations of the New Mexico Department of Insurance, Art. 5, Part 4, Ch. 66, Rule 1, § 5-1-4. Furthermore, the statute and regulations are basically notice provisions to ensure that the insured has affirmative evidence of the extent of coverage. See § 5 — 1—4. I do not believe the statutes and regulations were ever intended to be used by a plaintiff who knowingly and intelligently rejects UM/UIM coverage in the first instance and then reverses his position and makes a claim for that coverage when ten months later he is injured by an uninsured motorist. This is what occurred here.
In Romero, the plaintiff claimed confusion and pressure. Further, Dairyland, the defendant in that case, never attempted any compliance with the statutes or regulations and was therefore correctly held responsible for its actions or lack thereof. Those facts are clearly absent as between Kaiser and Windsor in this case.
The public policies of this State are to (a) encourage the purchase of uninsured motorist coverage, and (b) to give any insured his or her just due. See Fasulo v. State Farm Mut. Auto. Ins. Co., 108 N.M. 807, 780 P.2d 633 (1989); Sandoval v. Valdez, 91 N.M. 705, 580 P.2d 131 (Ct.App.1978). The majority opinion here does neither. Instead it gives the plaintiff Kaiser a windfall that he does not deserve. He knowingly, intelligently, and expressly rejected coverage. To allow him to make a claim now on the ground that he did not receive his policy in the mail because he provided Windsor with an incomplete address in the first place is a violation of both public policies.
In my view, the majority opinion gives a windfall to an undeserving plaintiff and punishes a defendant for the plaintiffs own error. I would affirm the summary judgment for Windsor. The majority holding otherwise, I respectfully dissent.