(dissenting).
{17} I respectfully dissent because I conclude that Charles Cline and Judy Davis are family members within the automobile insurance policy definition and that New Mexico public policy supports recognizing them as such. At the time of the automobile accident that gives rise to this lawsuit, Mr. Cline was approximately 80 years old and Ms. Davis was approximately 50 years of age. Mr. Cline and Ms. Davis have lived together continuously since 1997. He testified that the reason they chose not to formally marry was due to a promise to his deceased wife, Virginia, to whom he was married for 41 years. “I told Virginia I won’t never get married again,” Mr. Cline stated. Ms. Davis declared, “he knew I loved him and I knew he loved me. And I just didn’t feel that I had to have a piece of paper or that anyone else should have the right to tell us that we could or couldn’t or should or should not____” Ms. Davis testified that even though she never officially changed her name to Cline, most people know her as Judy Cline, and that she has credit cards issued to her as Judy Cline.
{18} Prior to the accident, both Mr. Cline and Ms. Davis took measures to make sure they were insured against such bad luck. In a sworn affidavit, Mr. Cline stated that he advised his insurance agents that Ms. Davis was his wife and that she could renew the policies and act on his behalf. Ms. Davis said that she was personally introduced to one insurance agent, and when speaking to Hartford on a recorded phone call, Mr. Cline introduced her as his wife. On the endorsement page of the Hartford policy, there is a line listing the named insured. Insured is stated in the singular and nothing about the form indicates that more than one name could or should be printed on the line. On the declarations page, by contrast, there is ample space for multiple drivers to be listed and both Mr. Cline and Ms. Davis are listed as drivers. Under the heading “MS,” presumably for marital status, both drivers are Usted as “M,” presumably for married.
{19} Ms. Davis visited Mr. CUne’s brother in the hospital and, upon returning from the hospital, another vehicle struck her car. The other driver died as a result of the accident. Due to the car crash, Ms. Davis is disabled. She testified that according to her doctor, “I will never be able to use my hand and leg or do the things that I used to do.” Mr. CUne takes care of her daily needs, such as food and shelter. “I can’t hold a frying pan. He helps me do the cooking. I can’t get in the tub or get out by myself unless he puts me in there. Because I can’t get up and I can’t get out.”
{20} After the accident, Mr. Cline and Ms. Davis claimed coverage for Ms. Davis’ substantial injuries. Both Hartford and Interstate insurance companies denied coverage and sought a declaration that Ms. Davis was not a family member within their policy definitions. We are now asked, “Is excluding domestic partners from the definition of family member in an automobile insurance policy invalid as contrary to public policy of the State of New Mexico?” I answer yes. In my mind, allowing Hartford and Interstate to deny coverage on these facts to a couple like Mr. Cline and Ms. Davis does violate New Mexico public policy. I concede that because we do not have a definitive statement from our Legislature, this case is close. However, in close cases in which this Court must employ its judgment until the Legislature definitively speaks, I am more comfortable upholding the insureds’ contract expectations, see Loya v. State Farm Mut. Ins. Co., 119 N.M. 1, 5, 888 P.2d 447, 451 (1994) (resolving language ambiguities affecting coverage in favor of the reasonable expectations of the insured), and deciding that Mr. Cline and Ms. Davis are family members, rather than announcing that an octogenarian caring for his disabled domestic partner is outside New Mexico’s understanding of family. I am also troubled that Hartford and Interstate waited to clarify their position on coverage for Ms. Davis and the insurance companies’ definition of family member until they were asked to pay a claim. It seems that it was within the insurance companies’ power to assist Mr. Cline and Ms. Davis to fill out the forms to conform with the consumers’ coverage expectations. In addition to these fairness concerns, I come to my public policy conclusion based on action from all three branches of state government.
{21} The Legislature in the 2005 session considered House Bill 86, otherwise known as the Domestic Partner Benefits Bill. The Bill specifically addressed insurance coverage and stated, a domestic partner “is jointly responsible for the common welfare of and shares financial obligations with another person.” H.B. 86, 47th Leg., 1st Sess. (N.M. 2005). The House Consumer and Public Affairs Committee voted 4-3 in favor of the bill and recommended that it do pass, the House Business and Industry Committee voted 10-2 in favor of the bill and recommended that it do pass, and the bill did pass the House on the 25th day of the 2005 legislative session. The Senate Public Affairs Committee voted 4-2 in favor of the bill and recommended that it do pass and the Senate Judiciary Committee postponed action indefinitely on the 37th day of the legislative session. The Senate also considered the Domestic Partner Rights and Responsibilities Act, Senate Bill 576. That proposed act declared that “[djomestic partners have the same rights, protections and benefits under law, whether derived from statute, rule, common law or other provisions or sources of law, as spouses in a marriage.” S.B. 576, 47th Leg., 1st Sess. (N.M.2005). The Senate Public Affairs Committee recommended a do pass, but action was postponed indefinitely in the Senate Judiciary Committee. I think the most we can discern with certainty from the legislative history is that the committees that did review and vote on these bills were overwhelmingly supportive of domestic partner benefits but that these bills were not a high enough priority in the 2005 session to receive a vote from the full Legislature. This history supports answering the certified question in the affirmative and concluding that Mr. Cline and Ms. Davis are family members more than this history supports answering the question in the negative and declaring that these domestic partners are not family members.
{22} The Legislature did pass the Uniform Health-Care Decisions Act, NMSA 1978, § 24-7A-1 to -18 (1995, as amended through 2000). In terms of who can make health care decisions for a patient, the Act grants a spouse first priority and then second priority to “an individual in a long-term relationship” to act as a surrogate. Section 24-7A-5(B). The Act does not grant greater rights and benefits to a spouse with marriage paperwork than to an individual in a long-term relationship, so I read this to be an indirect statement of legislative intent to treat domestic partners the same as spouses. This also more likely supports answering the certified question in the affirmative rather than the negative.
{23} The executive branch has also addressed domestic partners in a way that favors answering the certified question in the affirmative. Governor Bill Richardson signed an executive order establishing benefits for domestic partners of state employees. The order provides for state government to “engage in negotiations with benefits providers to ensure that domestic partners of state employees are afforded the same benefits as spouses.” Exec. Order No.2003-010 (Apr. 9, 2003). While this order has limited applicability to answering the certified question, it does tend to support the idea that state public policy is to treat domestic partners like spouses rather than to treat domestic partners as not having any recognizable relationship.
{24} Our judicial branch decisions are consistent with the direction of both the legislative and the executive branches. We have permitted domestic partners to pursue loss of consortium claims regardless of legal status. Lozoya v. Sanchez, 2003-NMSC-009, 133 N.M. 579, 66 P.3d 948. Since 1985, it has been against public policy in New Mexico to exclude household members from automobile insurance policies. Estep v. State Farm Mut. Auto. Ins. Co., 103 N.M. 105, 703 P.2d 882 (1985). In 2002, we reaffirmed “that a restriction ... limiting coverage for household members violates New Mexico law and is a repudiation of our public policy.” State Farm Mut. Auto. Ins. Co. v. Ballard, 2002-NMSC-030, ¶ 13, 132 N.M. 696, 54 P.3d 537. As recently as 2004, we reiterated this point when answering a certified question from the federal courts. This Court stated, “we conclude that family exclusions in liability and uninsured or underinsured motorist coverage offered through umbrella policies implicate a fundamental principle of justice and are contrary to New Mexico public policy.” Gov’t Employees Ins. Co. v. Welch, 2004-NMSC-014, ¶ 8, 135 N.M. 452, 90 P.3d 471. The Majority has not convinced me that its opinion is within the precedent of our earlier decisions.
{25} For the reasons stated above, I am compelled to dissent.