Ullman v. Safeway Ins. Co.

The slip opinion is the first version of an opinion released by the Chief Clerk of the
Supreme Court. Once an opinion is selected for publication by the Court, it is
assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule
23-112 NMRA, authenticated and formally published. The slip opinion may
contain deviations from the formal authenticated opinion.

1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

2 Opinion Number: __________________

3 Filing Date: October 2, 2023

4 NO. S-1-SC-36580

5 BETTY E. ULLMAN, for herself
6 and others similarly situated,

7 Plaintiff-Petitioner,

8 v.

9 SAFEWAY INSURANCE COMPANY,

10 Defendant-Respondent,

11 ORIGINAL PROCEEDING ON CERTIORARI
12 Francis J. Mathew, District Judge;

13 CONSOLIDATED WITH

14 NO. S-1-SC-37135

15 ANGELA LUERAS and JOE LUERAS individually,

16 Plaintiffs-Petitioners,

17 and

18 ANGELA LUERAS and JOE LUERAS,
19 as parents and guardians of A. Lueras, a minor,

20 Plaintiffs,
 1 v.

2 GEICO GENERAL INSURANCE COMPANY,

3 Defendant-Respondent,

4 and

5 MARIA RODRIGUEZ, FARMERS
6 INSURANCE COMPANY OF ARIZONA
7 a/k/a FARMERS INSURANCE GROUP
8 a/k/a FARMERS INSURANCE EXCHANGE,

9 Defendants,

10 ORIGINAL PROCEEDING ON CERTIORARI
11 Alan Malott, District Judge;

12 CONSOLIDATED WITH

13 NO. S-1-SC-37137

14 DAVID VAN EPPS,

15 Plaintiff-Petitioner,

16 v.

17 GEICO INDEMNITY COMPANY,

18 Defendant-Respondent,

19 and

20 CESAR MONTANO,

21 Defendant.
 1 ORIGINAL PROCEEDING ON CERTIORARI
2 Sarah C. Backus, District Judge.

3 Garcia Ives Nowara LLC
4 Matthew L. Garcia
5 Albuquerque, NM

6 Freedman Boyd Hollander Goldberg Urias & Ward, P.A.
7 David Freedman
8 Joseph Goldberg
9 Vincent J. Ward
10 Albuquerque, NM

11 The Vargas Law Firm
12 Ray M. Vargas, II
13 Albuquerque, NM

14 O’Connell Law LLC
15 Erin B. O’Connell
16 Albuquerque, NM

17 Law Offices of Geoffrey R. Romero
18 Geoffrey R. Romero
19 Albuquerque, NM

20 for Petitioner Betty E. Ullman

21 Butt, Thornton & Baehr, P.C.
22 Rheba Rutkowski
23 James H. Johansen
24 Albuquerque, NM

25 for Respondent Safeway Insurance Company

26 Law Offices of Geoffrey R. Romero
27 Geoffrey R. Romero
28 Albuquerque, NM
 1 Widner Law Firm LLC
2 Susan H. Widner
3 Albuquerque, NM

4 O’Connell Law LLC
5 Erin B. O’Connell
6 Albuquerque, NM

7 The Chacon Law Firm
8 M. David Chacon, II
9 Albuquerque, NM

10 for Petitioners Angela Lueras and Joe Lueras

11 Perry Law, P.C.
12 Meloney Perry
13 Stacy Thomson
14 Dallas, TX

15 for Respondent GEICO General Insurance Company

16 Allen Law Firm, LLC
17 Meena H. Allen
18 Kerri L. Allensworth
19 Albuquerque, NM

20 for Amicus Curiae Property Casualty Insurers Association of America

21 Law Office of Anthony G. Lopez
22 Anthony G. Lopez
23 Taos, NM

24 for Petitioner David Van Epps

25 Chapman and Priest, P.C.
26 Stephen M. Simone
27 Jessica C. Singer
28 Albuquerque, NM
1 for Respondent GEICO Indemnity Company

2 Allen Law Firm, LLC
3 Meena H. Allen
4 Kerri L. Allensworth
5 Albuquerque, NM

6 for Amicus Curiae Property Casualty Insurers Association of America
 1 OPINION

2 ZAMORA, Justice.

3 {1} We are asked to revisit the question of what information an insurer must

4 provide in an offer of insurance so that a consumer may make an informed decision

5 about the amount of uninsured/underinsured motorist (UM/UIM) coverage, if any,

6 the consumer might wish to purchase. In Jordan v. Allstate Insurance Co., 2010-

7 NMSC-051, 149 N.M. 162, 245 P.3d 1214, we sought to settle this issue by

8 prescribing “workable requirements” that insurers must meet to ensure their offers

9 of UM/UIM insurance are sufficiently meaningful such that an insured’s rejection

10 of such coverage will be deemed effective under New Mexico law. Id. ¶ 20.

11 Nonetheless, we conclude that further clarification is needed.

12 {2} The primary issue before us is whether insurers, in their offers of coverage,

13 must include information about stacked (or aggregated) benefits insureds may be

14 entitled to recover if they pay multiple premiums for UM/UIM coverage on multiple

15 vehicles. We hold that, going forward, insurers must provide basic information about

16 stacking to prospective insureds so that insurers’ offers are meaningful and any

17 associated rejections or waivers by insureds are effective.
 1 I. BACKGROUND

2 {3} In each of the cases before us, a consumer purchased an automobile insurance

3 policy providing liability coverage for multiple vehicles but rejected any UM/UIM

4 coverage. Each insured was then involved in an accident with an underinsured or

5 uninsured motorist, and all sought UM/UIM benefits from their insurers. In each

6 case, the insurer denied the claim on the basis that the insured had rejected UM/UIM

7 coverage by signing and returning a selection/rejection form 1 indicating rejection.

8 The insureds then sued for breach of contract, insurance bad faith, and other causes

9 of action, arguing that they should have been provided UM/UIM benefits because

10 their rejections were legally deficient. More specifically, the plaintiffs in these cases

11 argued that, for a rejection of UM/UIM coverage on multiple vehicles to be effective,

12 an insurer must have provided information about stacked coverages in its offer,

13 including information about the premium costs per vehicle. According to the

14 insureds, the defendant-insurers’ failures to include such information meant, as a

15 matter of law, that their offers of UM/UIM coverage were not meaningful and the

16 rejections the plaintiffs submitted were ineffective. The plaintiffs also alleged that

1
The form requesting an insured to select or reject UM/UIM coverage is
alternately called a “selection/rejection form” and an “option form.” For clarity and
consistency, we refer to it as a selection/rejection form throughout this opinion.

2
 1 certain information included in the Defendant-insurers’ offers was so misleading as

2 to violate New Mexico law and that UM/UIM insurance must be offered on a per-

3 vehicle basis. We granted certiorari to provide additional clarification as to what

4 constitutes a valid offer and waiver of UM/UIM coverage in New Mexico.

5 A. Ullman v. Safeway

6 {4} The plaintiff Betty Ullman purchased automotive liability insurance for her

7 two vehicles from Safeway Insurance Company (Safeway) through an insurance

8 broker, choosing liability limits of $25,000 per person/$50,000 per occurrence in

9 bodily injury damages and $25,000 in liability for property damage. According to

10 Safeway, Ullman was informed by the agent that she “could have uninsured motorist

11 bodily injury coverage equal to her bodily injury liability limits for fifty-two dollars

12 ($52.00) for one insured vehicle, or pay twice that amount ($104.00) to have

13 uninsured motorist bodily injury coverage for both insured vehicles.” Safeway

14 provided Ullman with a UM/UIM coverage selection/rejection form which

15 contained this information, and she indicated rejection of UM/UIM coverage with

16 an “x” marked next to the rejection language for each of her insured vehicles.

17 {5} Ullman does not dispute that she signed the UM/UIM selection/rejection form

18 but does dispute that the agent explained the coverage options to her. She also

19 contends that “[o]nly the endorsement page and policy booklet were provided to

3
 1 [her]” and that nothing that she was given to take home with her indicated her

2 rejection of UM/UIM coverage.

3 {6} After purchasing coverage, Ullman was injured when she was struck by an

4 uninsured motorist while driving one of her insured vehicles. She made a claim to

5 Safeway for UM coverage in the amount of her liability limits, seeking to stack the

6 limits associated with her two vehicles. Safeway denied the claim on the grounds

7 that Ullman had rejected UM/UIM coverage when applying for liability coverage.

8 Ullman then filed a class action complaint against Safeway,2 alleging breaches of

9 statutory, common law, and contractual duties and seeking damages and declaratory

10 relief. In her complaint, Ullman alleged that Safeway wrongfully denied her, and all

11 similarly situated insureds, UM/UIM benefits available through Safeway’s

12 automobile insurance policy because Safeway failed to obtain legally valid

13 rejections of such coverage.

14 {7} In response, Safeway filed a motion for summary judgment arguing that it had

15 met all legal requirements in securing Ullman’s rejection of UM/UIM insurance.

16 Safeway contended that by offering Ullman UM/UIM coverage in amounts up to her

17 liability limits, informing her of the premium costs per vehicle, securing her

2
Ullman also sued the uninsured driver of the vehicle responsible for her
injuries. Those claims are not before us.

4
 1 signature on the UM/UIM selection/rejection form, and providing her with a copy

2 of the policy and declaration page, it had complied with the requirements under New

3 Mexico law for securing an effective rejection.

4 {8} Ullman filed a response to Safeway’s motion, arguing that disputed issues of

5 material fact precluded summary judgment in the case and that Safeway had not

6 made a meaningful offer of UM/UIM coverage because it failed to inform Ullman,

7 and those similarly situated, that they were “entitled to purchase stacked (or

8 aggregated) coverage” amounting to multiples of their individual liability limits.

9 {9} The district court held a hearing on Safeway’s motion. Finding there were

10 disputed issues of material fact as to whether Ullman knowingly and intelligently

11 decided to reject UM coverage “among other issues of fact that may arise” around

12 the selection/rejection form, the court denied the motion.

13 {10} Safeway then filed a second motion for summary judgment to dismiss

14 Ullman’s class claims, arguing again that its selection/rejection form complied with

15 New Mexico law and Ullman was an improper representative of the putative class.

16 Ullman opposed Safeway’s motion and moved to certify a class of all New Mexico

17 residents having automobile insurance with Safeway, for whom Safeway did not

18 obtain valid rejections of UM/UIM coverage. She defined an invalid rejection as

19 “one which did not include an offer of UM/UIM limits up to the liability limits and

5
 1 a disclosure of premium amount for each available level of coverage, including

2 stacked coverage.”

3 {11} The district court denied Safeway’s second motion for summary judgment and

4 granted Ullman’s motion to certify the class. In so doing, the court determined that

5 the question whether Safeway had complied with New Mexico law in obtaining

6 legally effective rejections of UM/UIM coverage, including stacked coverage,

7 predominated over individual claims that might be advanced by members of the

8 proposed class. Safeway filed an application with the Court of Appeals for

9 interlocutory appeal of the district court’s orders denying Safeway’s motion for

10 summary judgment opposing class certification and granting Ullman’s motion for

11 class certification. Safeway’s application asserted that because the validity of

12 UM/UIM rejection by an insured is “individualized” for each insured, Ullman

13 “cannot adequately represent the interests” of such a class. The Court of Appeals

14 granted the application for interlocutory appeal “on the controlling question . . .

15 whether [Safeway] . . . complied with New Mexico law in obtaining waivers of

16 UM/UIM coverage.”

17 B. Lueras v. GEICO

18 {12} The plaintiffs Angela and Joe Lueras (collectively the Luerases) purchased

19 automobile liability insurance from the defendant GEICO General Insurance

6
 1 Company (GEICO) for three vehicles. Like Ullman, the Luerases rejected UM/UIM

2 coverage by completing a selection/rejection form when initiating coverage. At

3 some time after this initial rejection, they added a fourth vehicle to their policy, and

4 GEICO sent them a new selection/rejection form with updated information about

5 coverages and premiums. The Luerases did not complete this form.

6 {13} After purchasing the GEICO policy and during the policy period covering all

7 four vehicles, Mrs. Lueras and her child were driving in one of her insured vehicles

8 and were struck by an underinsured motorist and severely injured, incurring damages

9 that the Luerases aver are beyond the tortfeasor’s liability limits. The Luerases made

10 a claim to GEICO for UIM coverage but were denied on the grounds that they had

11 rejected it. They then filed a complaint against GEICO, 3 alleging statutory and

12 common law claims arising from GEICO’s denial of their claim for UIM coverage

13 and seeking damages and declaratory relief.

14 {14} The parties filed competing motions for summary judgment. GEICO argued

15 in its motion that it was entitled to summary judgment because its selection/rejection

16 form met all legal requirements, the Luerases declined to select UM/UIM coverage

17 when they initiated coverage and never changed this election prior to the accident,

3
The Luerases also sued the driver of the vehicle that injured Mrs. Lueras and
her child, as well as the driver’s insurer, Farmers Insurance Co. Those claims are not
before us.

7
 1 and in the absence of a valid breach of contract claim, the Luerases could not

2 establish insurance bad faith. The Luerases opposed GEICO’s motion and filed a

3 cross-motion for summary judgment. Their primary argument was that GEICO’s

4 selection/rejection form failed to adequately provide an insured with information

5 about stacked coverages available in a multiple-vehicle policy. They also contended

6 that GEICO’s requirement of an insured to purchase UM/UIM “on an all or nothing

7 basis” violates New Mexico law, that GEICO misrepresents to insureds that stacking

8 is never available to them, that the selection/rejection form signed by the Luerases

9 in 2009 was ineffective in rejecting UM/UIM coverage when they added a fourth

10 vehicle to their policy, and that GEICO misrepresents the amount of coverage that

11 has been rejected on its declarations page because the amount represents the single

12 limit of coverage rather than the amount recoverable after stacking coverages on

13 multiple vehicles.

14 {15} The district court granted GEICO’s motion and denied the Luerases’ motion,

15 concluding that GEICO’s selection/rejection form complied with New Mexico law

16 because it provided “a menu of available coverage options and the premiums

17 associated with each available level of coverage up to the maximum liability limits.”

18 The court determined that the form did not have to include an explanation of

19 stacking, concluding that such information was not required under existing law.

8
 1 Having found an effective rejection of UM/UIM coverage, the court further ruled

2 that GEICO’s “all or nothing” offers of UM/UIM coverage and the limitation of

3 liability clause in its policy only implicated New Mexico’s stacking jurisprudence

4 and therefore the offers were valid. The court noted that “[a]lthough stacking and

5 the availability of UM/UIM coverage both may affect the amount of benefits

6 available under a policy, they are separate inquiries” and “[t]he question of stacking

7 arises only if the insured purchases UM/UIM coverage or if a rejection of UM/UIM

8 coverage is invalid.” The Luerases appealed.

9 C. Van Epps v. GEICO

10 {16} David Van Epps initiated coverage with GEICO Indemnity Company when

11 his wife, Wendy Van Epps, submitted an online application through GEICO’s4

12 website requesting insurance on their three vehicles. In her application, Wendy Van

13 Epps selected UM/UIM coverage in an amount lower than the bodily injury liability

14 limits she had selected. Shortly thereafter, GEICO sent the Van Eppses a new

15 business packet, which included a letter instructing them they needed to return a

4
We identify both GEICO General Insurance Company, the defendant-insurer
for the Luerases, and GEICO Indemnity Company, the defendant-insurer for Van
Epps, as GEICO. Hereinafter, a reference to GEICO is a reference to either or to
both entities unless a distinction between them requires identifying GEICO as one
or the other specifically.

9
 1 signed selection/rejection form “to complete the processing of [their] new policy”

2 that included a recently added fourth vehicle. The Van Eppses returned the form,

3 which was identical to the selection/rejection forms sent to the Luerases, checking

4 the box indicating they rejected UM/UIM coverage. They later renewed the policy

5 several times, each time indicating rejection of UM/UIM coverage.

6 {17} After initiating coverage, David Van Epps was severely injured when he was

7 struck as a pedestrian by a vehicle driven by an underinsured motorist. He sought

8 UIM coverage from GEICO, was denied, and sued in district court alleging

9 negligence and breach of contract and seeking damages and declaratory relief. 5 As

10 in the Luerases’ proceedings, the parties brought competing motions for summary

11 judgment. GEICO argued that it had complied with all legal requirements in securing

12 a waiver of UM/UIM coverage from the Van Eppses, who consequently “had no

13 reasonable expectation of coverage under the circumstances.” David Van Epps

14 argued that GEICO’s forms do not constitute a meaningful offer of UM/UIM

15 coverage because “a meaningful offer of coverage must provide information about

16 the availability of stacking, an insured’s ability to waive stacking, and corresponding

17 premium costs associated with the same.” He attached an affidavit from Wendy Van

5
Van Epps also sued the underinsured motorist who injured him. Those claims
are not before us.

10
 1 Epps asserting that, had she known she could have selected different amounts on

2 different vehicles and could stack coverage, she would not have rejected UM/UIM

3 coverage entirely.

4 {18} Following a hearing on the competing motions, the district court granted

5 GEICO’s motion, finding GEICO’s selection/rejection form was legally adequate to

6 secure a rejection of UM/UIM coverage and was not ambiguous. The court also

7 rejected Van Epps’s argument that an explanation of stacking was required because

8 “stacking does not apply unless there is coverage.” Van Epps appealed.

9 D. The Court of Appeals’ Opinions

10 1. Ullman v. Safeway
11 {19} The Court of Appeals reversed the district court’s denial of Safeway’s motion

12 to dismiss Ullman’s class claims. Ullman v. Safeway Ins. Co., 2017-NMCA-071, ¶¶

13 2, 59, 404 P.3d 434. The Court first reviewed the legal requirements governing

14 UM/UIM offers and rejections, including NMSA 1978, Section 66-5-301 (1983) and

15 its implementing regulation, 13.12.3.9 NMAC, as well as opinions in which we have

16 had occasion to interpret those provisions. Ullman, 2017-NMCA-071, ¶¶ 6-15. In

17 light of this body of law and based on its review of the record identifying the

18 documents Safeway provides to insureds in its offers of UM/UIM coverage, the

19 Court held on this controlling question that Safeway had “obtained valid rejections

11
 1 of UM/UIM coverage in compliance with New Mexico law” but left, for the district

2 court to address, “any remaining class-related issues.” Id. ¶ 2.

3 {20} The Court rejected Ullman’s contention that an insurer must inform the

4 insured of the total amount of stacked coverage available. Id. ¶ 43. Endorsing the

5 reasoning of the Tenth Circuit in Jaramillo v. Government Employees Insurance Co.,

6 573 F. App’x 733 (10th Cir. 2014) (nonprecedential), the Court concluded that

7 nothing in New Mexico’s UM/UIM jurisprudence requires an insurer to provide an

8 explanation of the operation or effects of stacking in an offer of UM/UIM coverage.

9 Ullman, 2017-NMCA-071, ¶¶ 34-38, 43. The Court also rejected Ullman’s

10 contention that because Safeway’s limitation of liability clause “can be read to be an

11 anti-stacking clause,” the offer was ambiguous “as to whether Ullman could receive

12 the full benefit of the UM/UIM” coverage offered in the selection/rejection form. Id.

13 ¶ 47.

14 {21} The Court of Appeals remanded to the district court for a determination of the

15 remaining claims, including whether to preserve the district court’s prior class

16 certification. Id. ¶¶ 58-59.

17 2. Lueras v. GEICO and Van Epps v. GEICO
18 {22} The Court of Appeals consolidated the appeals in Lueras and Van Epps and

19 affirmed the district court in both cases. Lueras v. GEICO Gen. Ins. Co., 2018-

12
 1 NMCA-051, ¶¶ 1, 3, 424 P.3d 665. First, it held that Ullman controlled the Luerases’

2 and Van Epps’s claims related to stacking and therefore the policies could not be

3 stacked. Id. ¶¶ 2-3, 11. The Court also rejected the Luerases’ and Van Epps’s claims

4 that GEICO was required to offer UM/UIM insurance on a per-vehicle basis, finding

5 nothing in New Mexico law authorizing such a requirement. Id. ¶¶ 13-18. Next, the

6 Court concluded that GEICO was not required to obtain new rejections of coverage

7 when the Luerases added a new vehicle to their existing policy, reaffirming the

8 holding of Vigil v. Rio Grande Insurance of Santa Fe, 1997-NMCA-124, ¶ 16, 124

9 N.M. 324, 950 P.2d 297. Lueras, 2018-NMCA-051, ¶¶ 19-22. Finally, the Court

10 disagreed with Van Epps’s claim that the letter GEICO sent to Wendy Van Epps

11 requesting that she return a signed selection/rejection form “improperly discouraged

12 the purchase of UM/UIM coverage.” Id. ¶ 26. The Court of Appeals “affirm[ed] the

13 district courts’. . . denials of the [Luerases’ and Van Epps’s] . . . summary judgment”

14 claims. Id. ¶ 27.

15 {23} The special concurrence disagreed with the Ullman Court’s reliance on the

16 Tenth Circuit’s opinion in Jaramillo, but concurred in the result because Ullman was

17 binding on the Court of Appeals unless and until this Court holds otherwise. Lueras,

18 2018-NMCA-051, ¶¶ 30-36 (Attrep, J., specially concurring). According to the

19 special concurrence, the fact that GEICO stacks UM/UIM benefits should have been

13
 1 disclosed to the Van Eppses and Luerases in GEICO’s UM/UIM selection/rejection

2 form, and GEICO’s failure to do so precluded the insureds from making a

3 meaningful and intelligent decision whether to select or reject coverage. Id. ¶¶ 34-

4 35 (Attrep, J., specially concurring).

5 {24} The Ullman, Lueras, and Van Epps plaintiffs each appealed the Court of

6 Appeals’ decisions, and we granted certiorari to further clarify this vexing area of

7 our jurisprudence.

8 II. DISCUSSION

9 {25} Each of the cases before us poses multiple questions on certiorari. Distilled to

10 their essences, however, Plaintiffs advance five distinct arguments: (1) Defendant-

11 insurers’ UM/UIM selection/rejection forms fail to comply with New Mexico law

12 because they do not disclose information about stacked benefits that an insured may

13 be entitled to receive in a multivehicle policy, (2) the addition of a new vehicle to an

14 existing policy triggers a new offer of insurance, such that Defendant-insurers should

15 be required to obtain a (new) legally valid waiver of UM/UIM coverage from the

16 insured, (3) Defendant-insurers’ “Limits of Liability” clauses amount to antistacking

17 provisions that are per se illegal or create an ambiguity when considered in relation

18 to the UM/UIM selection/rejection form, (4) GEICO’s form letter and waiver form

19 was misleading and discouraged the Van Eppses’ purchase of UM/UIM coverage,

14
 1 and (5) Defendant-insurers impermissibly require insureds to select UM/UIM

2 coverage for multiple vehicles on an “all or nothing” basis. As we explain, while

3 each of these arguments was raised in some form in Plaintiffs’ briefings before the

4 district courts hearing these matters, and while the Court of Appeals addressed all of

5 them on appeal, only the first two are squarely before us.

6 A. Standard of Review

7 {26} We review claims requiring the interpretation of insurance policy language de

8 novo. See Rummel v. Lexington Ins. Co., 1997-NMSC-041, ¶ 60, 123 N.M. 752, 945

9 P.2d 970 (“The interpretation of an insurance contract is a matter of law about which

10 the court has the final word.”). Where the relevant facts are undisputed, the

11 interpretation of “Section 66-5-301 and 13.12.3.9 NMAC in order to determine the

12 form and manner that offers and rejections of UM/UIM coverage must take” presents

13 questions of law that we review de novo. Jordan, 2010-NMSC-051, ¶ 14. Finally, a

14 district court’s grant of summary judgment is also subject to de novo review.

15 Farmington Police Officers Ass’n Commc’n Workers of Am. Loc. 7911 v. City of

16 Farmington, 2006-NMCA-077, ¶ 13, 139 N.M. 750, 137 P.3d 1204. “Under this

17 standard of review, we step into the shoes of the district court, reviewing the motion,

18 the supporting papers, and the non-movant’s response as if we were ruling on the

19 motion in the first instance.” Id.

15
 1 B. To Secure a Knowing and Intelligent Waiver of UM/UIM Coverage, an
2 Insurer Must Explain That, in the Event of a Covered Loss, the Insured’s
3 Policy May Entitle Them to Stack Coverages on Multiple Vehicles

4 {27} The primary issue before us is whether New Mexico law requires an insurer

5 to disclose in its UM/UIM selection/rejection form that an offer to insure multiple

6 vehicles, for which an insurer will charge multiple premiums, will result in stacked

7 or aggregated benefits in the event of a covered loss. Here, each of the Plaintiffs

8 rejected UM/UIM benefits by signing the insurer’s selection/rejection form.

9 Notwithstanding these affirmative acts of rejection, Plaintiffs contend they did not,

10 and could not, reject coverage as a matter of law because the forms failed to inform

11 them that, had they selected UM/UIM coverage for multiple vehicles, they would

12 have been entitled to stack the single coverage limits for each vehicle.

13 {28} GEICO and Safeway contend nothing in New Mexico statutes or case law

14 requires insurers to explain stacking on their UM/UIM selection/rejection forms,

15 their forms otherwise comply with all legal requirements, and Plaintiffs’ rejections

16 of UM/UIM coverage were therefore effective. They argue our UM/UIM

17 jurisprudence makes clear that an offer must only reference the maximum amount

18 of UM/UIM coverage statutorily available, which is the liability limit selected by

19 the insured.

16
 1 {29} Intrapolicy stacking is a judicial remedy and now a common industry practice

2 favored (although not mandated) in New Mexico. Montano v. Allstate Indem. Co.,

3 2004-NMSC-020, ¶ 17, 135 N.M. 681, 92 P.3d 1255. Stacking “refers to an insured’s

4 attempt to recover damages in aggregate under more than one policy or one policy

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

6 policy limits are exhausted.” Morro v. Farmers Ins. Grp., 1988-NMSC-006, ¶ 5, 106

7 N.M. 669, 748 P.2d 512. For example, an insured who purchases UM/UIM insurance

8 for two vehicles in the amount of $50,000 per person/$100,000 per occurrence, and

9 pays two premiums for such coverage, may be permitted to stack the two coverages

10 and receive benefits of up to $100,000/$200,000 for a covered loss. See Lopez v.

11 Found. Rsrv. Ins. Co., 1982-NMSC-034, ¶¶ 1, 25, 98 N.M. 166, 646 P.2d 1230

12 (holding that an insured who paid two separate premiums for coverage in the amount

13 of $30,000 per accident would be entitled to stack two $30,000 coverages), holding

14 modified on other grounds by Montano, 2004-NMSC-020, ¶ 1. Resolving whether

15 an insurer must disclose in its UM/UIM selection/rejection form that an offer to

16 insure multiple vehicles will result in stacking requires us to interpret Section 66-5-

17 301 and its implementing regulation, 13.12.3.9 NMAC. Section 66-5-301(A)

18 provides, in part:

19 No motor vehicle or automobile liability policy . . . shall be delivered
20 or issued for delivery in New Mexico with respect to any motor vehicle

17
 1 registered or principally garaged in New Mexico unless coverage is
2 provided therein or supplemental thereto in minimum limits for bodily
3 injury or death and for injury to or destruction of property as set forth
4 in [NMSA 1978,] Section 66-5-215 [(1983)] and such higher limits as
5 may be desired by the insured, but up to the limits of liability specified
6 in bodily injury and property damage liability provisions of the
7 insured’s policy, for the protection of persons insured thereunder who
8 are legally entitled to recover damages from owners or operators of
9 uninsured motor vehicles . . . .

10 Section 66-5-301(B) makes the statute applicable to policies covering underinsured

11 motorists who cause injury or damages to insureds. Section 66-5-301(C) provides:

12 The named insured shall have the right to reject uninsured motorist
13 coverage as described in Subsections A and B of this section; provided
14 that unless the named insured requests such coverage in writing, such
15 coverage need not be provided in or supplemental to a renewal policy
16 where the named insured has rejected the coverage in connection with
17 a policy previously issued to him by the same insurer.

18 The implementing regulation addresses the manner of rejection of UM/UIM

19 coverage, establishing that a rejection “must be endorsed, attached, stamped or

20 otherwise made a part of the policy of bodily injury and property damage insurance.”

21 13.12.3.9 NMAC.

22 {30} Nothing in the plain language of Section 66-5-301 or 13.12.3.9 NMAC

23 expressly requires insurers to provide an explanation of stacking or how it might

18
 1 increase an insured’s benefits.6 The relevant portion of Section 66-5-301 requires

2 only that UM/UIM coverage be offered

3 in minimum limits for bodily injury or death and for injury to or
4 destruction of property as set forth in Section 66-5-215 NMSA 1978
5 and such higher limits as may be desired by the insured, but up to the
6 limits of liability specified in bodily injury and property damage
7 liability provisions of the insured’s policy.

8 Section 66-5-301(A).7 As we have noted, its implementing regulation requires that

9 a rejection of UM/UIM coverage be in writing and included with the policy

10 documents. See 13.12.3.9 NMAC.

11 {31} However, our inquiry does not end there, as we have always interpreted the

12 uninsured motorist statute liberally “to implement [the] purpose of compensating

13 those injured through no fault of their own.” Chavez v. State Farm Mut. Auto. Ins.

14 Co., 1975-NMSC-011, ¶ 9, 87 N.M. 327, 533 P.2d 100. We do so to “ensure that the

6
Plaintiffs largely decline to make a textual argument in this case. The closest
version of such an argument is offered by Ullman who, relying in part on a rule of
construction that permits the substitution of a plural term for a singular term in a
statute, NMSA 1978, § 12-2A-5(A) (1997), suggests that we may read the phrase
“limits of liability” in Section 66-5-301(A) to mean “the sum total of all liability
limits and coverages in the policy.” Here, Ullman asks us to change several words
in, and add others to, Section 66-5-301(A) in order to establish a new statutory
requirement. We determine this stretches the boundaries of textualism too far.
Section 66-5-215(A) establishes that the minimum limits of liability are
7

$25,000 per person/$50,000 for two or more persons in bodily injury damages and
$10,000 per occurrence in property damages.

19
 1 insured’s reasonable expectations are met and that an insured gets what he or she

2 pays for and no more.” Montano, 2004-NMSC-020, ¶ 1; see also Jimenez v. Found.

3 Rsrv. Ins. Co., 1988-NMSC-052, ¶ 10, 107 N.M. 322, 757 P.2d 792 (noting the

4 public policy in favor of interpreting insurance contracts to ensure the purchased

5 coverages meet the insured’s “reasonable expectations”).

6 {32} In Montano, we addressed whether insurers may prohibit the stacking of

7 benefits by including antistacking language in their policy documents. 2004-NMSC-

8 020, ¶ 1. Although stacking is not mentioned in the UM/UIM statute, we reiterated

9 that New Mexico had long recognized a strong public policy in favor of the practice

10 and held that insurers may only prohibit stacking as a remedy for a loss if they first

11 secure a written rejection of stacking from the insured. Id. ¶¶ 1, 9. Nevertheless, we

12 declined to declare all antistacking language void as against public policy or to make

13 stacking mandatory in every case, concluding that such a requirement might price

14 some potential insureds out of the UM/UIM market. Id. ¶¶ 15-16. We also observed

15 that permitting some flexibility with respect to stacking could benefit insureds by

16 ensuring the availability of low-cost options to consumers seeking lower premiums.

17 Id. ¶ 16. “[T]ak[ing] guidance from Section[] 66-5-301(A) and (C), . . . we

18 discern[ed] a solution to the seemingly inherent ambiguities in anti-stacking clauses:

19 an insurance company should obtain written rejections of stacking in order to limit

20
 1 its liability based on an anti-stacking provision.” Id. ¶ 19. We expressed the hope

2 that our decision would help to ensure that, going forward, insureds would receive

3 the benefit of the premiums they had paid⸺no more, and no less. Id. ¶¶ 15, 18, 20.

4 {33} Our case law setting out the requirements for valid offers and rejections of

5 UM/UIM insurance coverage has also sought to advance the legislative purpose of

6 encouraging the purchase of such coverage among New Mexico motorists. In

7 Marckstadt v. Lockheed Martin Corp., we held that, to secure a valid waiver of

8 UM/UIM coverage, an insurer must obtain a written rejection from the insured

9 because, while such a requirement “does not appear on the face of the statute,” it

10 clearly advances its purpose. 2010-NMSC-001, ¶ 16, 147 N.M. 678, 228 P.3d 462.

11 We determined that a knowing and intelligent rejection of UM/UIM coverage

12 requires an affirmative act on the part of the insured. Id. ¶¶ 15-16.

13 {34} In Progressive Northwestern Insurance Co. v. Weed Warrior Services, we

14 further expanded the concept of a “meaningful offer of UM/UIM coverage,”

15 concluding that it must include not only the minimum amount of UM/UIM coverage

16 permitted by statute but also “the maximum amount of UM/UIM coverage permitted

17 by the statute, e.g., the liability limits of the policy.” 2010-NMSC-050, ¶¶ 8, 11, 14,

18 149 N.M. 157, 245 P.3d 1209. We determined that such a rule is “consistent” with

19 the policy encouraging insureds to purchase UM/UIM coverage. Id. ¶ 12. “Recalling

21
 1 that Section 66-5-301 is a remedial statute that must be construed liberally,” we also

2 held that an insured’s choice to select an amount lower than the liability limit

3 functions as a rejection of the maximum amount of coverage. Id. ¶¶ 14, 15.

4 {35} Finally, in Jordan, we “prescribe[d] workable requirements for a valid and

5 meaningful rejection of UM/UIM coverage” to insurers, 2010-NMSC-051, ¶¶ 20-

6 21, and stated,

7 If an insurer does not (1) offer the insured UM/UIM coverage equal to
8 his or her liability limits, (2) inform the insured about premium costs
9 corresponding to the available levels of coverage, (3) obtain a written
10 rejection of UM/UIM coverage equal to the liability limits, and (4)
11 incorporate that rejection into the policy in a way that affords the
12 insured a fair opportunity to reconsider the decision to reject, the policy
13 will be reformed to provide UM/UIM coverage equal to the liability
14 limits.

15 Id. ¶ 22. Our intention in setting out these requirements and stating that failure to

16 meet them would result in reformation of the contract was to provide a definitive

17 guide to insurers as to what they must do to secure a legally binding rejection of

18 coverage. Id. ¶ 25. Seeking to ensure that insureds could “make a realistically

19 informed choice,” we articulated clear “requirements for a valid and meaningful

20 rejection of UM/UIM coverage in amounts authorized by statute.” Id. ¶ 20.

21 {36} Plaintiffs challenge the rejections executed in these three cases on the grounds

22 that Defendant-insurers failed to make meaningful offers of UM/UIM coverage, in

23 violation of our UM/UIM jurisprudence. They contend that an offer of UM/UIM

22
 1 insurance that does not include an explanation of stacking is not meaningful and that

2 it discourages consumers from purchasing UM/UIM insurance, in contravention of

3 the legislative purpose of Section 66-5-301. They argue that, because Defendant-

4 insurers stack coverages as a matter of course, if an insured pays multiple premiums

5 for UM/UIM coverage on multiple vehicles, the actual maximum amount of

6 coverage available is the amount of coverage that would result from stacking. See

7 Weed Warrior, 2010-NMSC-050, ¶¶ 14-15 (holding that an offer of UM/UIM

8 coverage must include the maximum amount of coverage statutorily available and

9 that an insured’s election of a lower amount acts as a rejection of that maximum

10 amount); Jordan, 2010-NMSC-051, ¶ 2 (holding that “insurers must provide the

11 insured with the premium charges corresponding to each available option for

12 UM/UIM coverage so that the insured can make a knowing and intelligent decision

13 to receive or reject the full amount of coverage to which the insured is statutorily

14 entitled”). Accordingly, Plaintiffs argue that insurers’ failure to provide an

15 explanation of stacking deprives insureds of information that is essential to a

16 knowing and intelligent waiver of UM/UIM coverage.

17 {37} Defendant-insurers respond Plaintiffs have misread Weed Warrior and Jordan

18 by ignoring language in both opinions that establishes that the maximum amount of

19 coverage insurers are required to offer is that which is “statutorily available”⸺that

23
 1 is, an amount equal to the liability limits of the policy. They observe that there is a

2 difference between maximum available coverage and the maximum benefits that an

3 insured may obtain following a loss and argue that New Mexico’s rules governing

4 valid offers and rejections apply only to the former. They note Jordan’s “‘workable

5 requirements’” for a valid UM/UIM insurance offer and rejection do not mention

6 stacking.

7 {38} Two of the three district courts agreed with the insurers and found that Jordan

8 controls and does not require disclosure of stacked benefits on UM/UIM offer or

9 selection/rejection forms. In Jaramillo, the Tenth Circuit held similarly. 573 F.

10 App’x at 749. In that case, the panel focused exclusively on the question of whether

11 GEICO’s selection/rejection form (identical to those at issue in Lueras and Van Epps

12 and materially very similar to Safeway’s form) was adequate under New Mexico

13 law. Jaramillo, 573 F. App’x at 741. It concluded that Jordan’s requirements govern

14 offers and waivers of UM/UIM coverage and that, while those requirements

15 incorporated Montano’s instruction that premiums be disclosed, they did not

16 “expressly require that the Option Form provide the premium costs corresponding

17 to the available levels of stacked coverage.” Id. at 748. The Jaramillo Court

18 “decline[d] to graft the crucial word ‘stacked’ onto [Jordan’s] holding.” Id. at 744

19 n.9.

24
 1 {39} The clearest articulation of a contrary analysis comes from the special

2 concurrence in Lueras, which viewed the Jaramillo Court’s analysis as overly

3 mechanical. 2018-NMCA-051, ¶ 31 (Attrep, J., specially concurring). The special

4 concurrence stated that because GEICO stacks coverage, its failure to disclose the

5 stacked coverages available to insureds “runs afoul of the guiding principle behind

6 Jordan—that ‘in order for the offer and rejection requirements of [the UM/UIM

7 statute] to effectuate the policy of expanding UM/UIM coverage, the insurer is

8 required to meaningfully offer such coverage and the insured must knowingly and

9 intelligently act to reject it before it can be excluded from the policy.’” Id. ¶ 35

10 (Attrep, J., specially concurring) (alteration in original) (quoting Marckstadt, 2010-

11 NMSC-001, ¶ 16). Accordingly, the failure to include a disclosure of stacking in the

12 selection/rejection form means insureds are inadequately informed about what they

13 are giving up when they reject coverage because they are not given information

14 about what the insurer is “actually offering.” Id.

15 {40} We find authority in our UM/UIM jurisprudence in support of either

16 approach. For example, in describing our “workable requirements” as prescriptive,

17 we clearly communicated our intention that they be strictly adhered to by insurers to

18 settle the question as to what was required to secure effective rejections of UM/UIM

19 coverage. Jordan, 2010-NMSC-051, ¶ 20 (“Accordingly, we find it necessary to

25
 1 prescribe workable requirements for a valid and meaningful rejection of UM/UIM

2 coverage in amounts authorized by statute.”); id. ¶ 25 (“In these cases we detail for

3 the first time the technical requirements for a valid rejection of UM/UIM coverage

4 in an amount equal to liability limits.”).

5 {41} On the other hand, “in order for the offer and rejection requirements of [the

6 UM/UIM statute] to effectuate the policy of expanding UM/UIM coverage, the

7 insurer [must] meaningfully offer such coverage and the insured must knowingly and

8 intelligently act to reject it before it can be excluded from the policy.” Marckstadt,

9 2010-NMSC-001, ¶ 16. “The courts of New Mexico assume the average purchaser

10 of automobile insurance ‘will have limited knowledge of insurance law,’ and we will

11 not impose on the consumer an expectation [of] an informed decision as to the

12 amount of UM/UIM coverage desired or required without first receiving information

13 from the insurance company.” Weed Warrior, 2010-NMSC-050, ¶ 13. While Section

14 66-5-301’s requirement that every insurance policy issued in New Mexico must

15 offer UM/UIM coverage in minimum and maximum amounts speaks of single limits

16 of liability (per person or per occurrence), the purchase of coverage on multiple

17 vehicles through payment of multiple premiums will enhance the value of an

18 insured’s premiums if stacking is permitted under the policy. We therefore agree

19 with Plaintiffs that, because insurers stack benefits in most cases where multiple

26
 1 vehicles are insured, 8 insurers should provide information about stacking to

2 consumers to ensure that they understand what they may be waiving in rejecting

3 UM/UIM coverage. By providing material information about the benefits an insured

4 may actually receive when purchasing UM/UIM coverage on multiple vehicles, an

5 explanation of stacking may encourage some consumers to purchase UM/UIM

6 insurance where they might otherwise demur, advancing the legislative purpose of

7 Section 66-5-301. See Padilla v. Dairyland Ins. Co., 1990-NMSC-025, ¶ 4, 109

8 N.M. 555, 787 P.2d 835 (“‘The purpose of the Mandatory Financial Responsibility

9 Act . . . is to require and encourage residents of the state of New Mexico . . . to have

10 the ability to respond in damages to [motor vehicle] accidents.’” (quoting NMSA

11 1978, § 66-5-201.1 (1983, amended 1998) of the Mandatory Financial

12 Responsibility Act)). The purpose of the UM/UIM statute is best advanced when

13 insureds are provided clear, comprehensible information about the costs and benefits

14 of offered coverages; under this approach, “‘those who want stacked coverage pay

15 for it, and those who don’t want it don’t pay for it.’” Montano, 2004-NMSC-020, ¶

8
See Lopez, 1982-NMSC-034, ¶ 21 (“Whether stacking is to be permitted
depends on the evidence presented in each case.”); Montano, 2004-NMSC-020, ¶ 15
(recognizing that insurers may decline to stack benefits “when the policy clearly
only charges a single premium and unambiguously precludes stacking”).

27
 1 18 (quoting U.S. Fid. & Guar. Co. v. Ferguson, 698 So. 2d 77, 84 (Miss. 1997) (Lee,

2 C.J., specially concurring)).

3 {42} Our interpretation of Section 66-5-301 in Jordan and Weed Warrior was

4 grounded firmly in the imperative to construe the statute “liberally” to achieve its

5 “remedial purpose[].” Jordan, 2010-NMSC-051, ¶ 15; see Weed Warrior, 2010-

6 NMSC-050, ¶ 14. Indeed, because the text of Section 66-5-301 has often provided

7 insufficient guidance in answering the questions that come before us, the imperative

8 to further the statute’s legislative purpose has directed our UM/UIM decisions. For

9 example, we have held that the legislative purpose of expanding UM/UIM coverage

10 demands that, where a rejection of UM/UIM coverage fails to adhere to regulatory

11 requirements, such coverage must be read into the policy when the insured files a

12 claim for the benefits. Romero v. Dairyland Ins. Co., 1990-NMSC-111, ¶¶ 6-9, 111

13 N.M. 154, 803 P.2d 243. Similarly, in Weed Warrior, we “[r]ecall[ed] that Section

14 66-5-301 is a remedial statute that must be construed liberally” in holding that the

15 choice by an insured to purchase UM/UIM insurance in an amount lower than the

16 policy limits “functions as a rejection of th[e] maximum amount of coverage

17 statutorily possible.” 2010-NMSC-050, ¶¶ 14-15.

18 {43} We therefore conclude that our resolution of this issue requires us to balance

19 a recognition of the formal requirements we set forth in Jordan with the practical

28
 1 reality that the routine stacking of benefits in New Mexico may increase the value

2 of an insured’s premium payment. We hold that, in recognition of the practical

3 reality that insurers now permit stacking as a matter of course in New Mexico, offers

4 of UM/UIM insurance going forward must include a brief discussion of stacking.

5 However, insurers need not set out a matrix of all stacking possibilities in their offers

6 of UM/UIM coverage to adequately inform insureds of the potential effects of

7 stacking. A declaration that clarifies that an insured who purchases insurance on

8 multiple vehicles and pays multiple premiums would be entitled to stack benefits in

9 the event of a covered loss and affords the insured an opportunity to obtain additional

10 information about stacking will satisfy this requirement. We impose this requirement

11 to ensure that coverages meet the consumers’ reasonable expectations. See Jimenez,

12 1988-NMSC-052, ¶ 10.

13 C. Our Application of This Holding Is Selectively Prospective

14 {44} We next consider whether to apply this holding retroactively or prospectively.

15 “It is within the inherent power of a state’s highest court to give a decision

16 prospective or retrospective application without offending constitutional principles.”

17 Lopez v. Maez, 1982-NMSC-103, ¶ 17, 98 N.M. 625, 651 P.2d 1269. While we

18 observe “a presumption of retroactivity for a new rule [adopted] in a civil case,” this

19 presumption “may be overcome by a sufficiently weighty combination” of several

29
 1 factors: (1) whether the decision to be applied prospectively establishes a new

2 principle of law, (2) whether retroactive operation will advance or inhibit the

3 operation of the new rule, and (3) whether retroactive application may “produce

4 substantial inequitable results.” Beavers v. Johnson Controls World Servs., Inc.,

5 1994-NMSC-094, ¶¶ 22-23, 118 N.M. 391, 881 P.2d 1376 (internal quotation marks

6 and citation omitted).

7 {45} With respect to the first factor, Plaintiffs contend the requirement that insurers

8 include an explanation of stacking on an offer of UM/UIM coverage does not

9 constitute a new rule. They argue that our discussion of a hypothetical offer in

10 Montano established that all offers of UM/UIM insurance for multiple vehicles must

11 disclose each of the stacked liability limits available for purchase and their

12 associated premiums. They point to a hypothetical offer we described in Montano,

13 which stated:

14 As an illustration of our holding, in a multiple-vehicle policy insuring
15 three cars, the insurer shall declare the premium charge for each of the
16 three UM coverages and allow the insured to reject, in writing, all or
17 some of the offered coverages. Thus, hypothetically, in the case of a
18 $25,000 policy, if the premium for one UM coverage is $65, two
19 coverages is an additional $60, and three coverages $57 more, the
20 insured who paid all three (for a total premium of $182) would be
21 covered up to $75,000 in UM bodily injury coverage. However, the
22 insured may reject, in writing, the third available coverage and pay
23 $125 for $50,000 of UM coverage; or the insured may reject, in writing,
24 the second and third coverages and pay $65 for $25,000 of UM
25 coverage; or the insured may reject all three UM coverages.

30
 1 2004-NMSC-020, ¶ 20. Plaintiffs contend the phrase “the insurer shall declare the

2 premium charge for each of the three UM coverages,” id. (emphasis added), along

3 with the description of stacked coverages, established a rule requiring disclosure of

4 stacking in all UM/UIM offers.

5 {46} We disagree. In Montano, we addressed whether an insurer could enforce a

6 limitation-of-stacking clause that would have permitted the insured to stack

7 coverages from only two of the four vehicles he had insured. Montano, 2004-NMSC-

8 020, ¶¶ 3-7. We did not consider the question whether the insurer’s offer of UM/UIM

9 insurance was valid under New Mexico law, and “cases are not authority for

10 propositions not considered.” Fernandez v. Farmers Ins. Co. of Ariz., 1993-NMSC-

11 035, ¶ 15, 115 N.M. 622, 857 P.2d 22 (internal quotation marks and citation

12 omitted). Plaintiffs also ignore the language in Montano preceding the hypothetical,

13 clarifying its inclusion “[a]s an illustration of our holding,” 2004-NMSC-020, ¶ 20,

14 which is that “an insurance company should obtain written rejections of stacking in

15 order to limit its liability based on an anti-stacking provision.” Id. ¶ 19.

16 {47} Defendant-insurers were not unreasonable in relying on our prior decisions in

17 determining that a disclosure of the effects of stacking was not required in offers of

18 UM/UIM coverage. See Beavers, 1994-NMSC-094, ¶ 27 (“The extent to which the

19 parties in a lawsuit, or others, may have relied on the state of the law before a law-

31
 1 changing decision has been issued can hardly be overemphasized.”). Having

2 considered this first factor on presumption of retroactivity, we therefore conclude

3 that the requirement to disclose information about stacking in offers of UM/UIM

4 insurance favors prospective application as it is “a new, and not easily foreshadowed

5 aspect to our jurisprudence.” Montano, 2004-NMSC-020, ¶ 22.

6 {48} Addressing the second factor, the purpose of the stacking disclosure rule we

7 announce in this opinion is to provide potential insureds with the information they

8 need to make an intelligent and informed decision whether to purchase or reject

9 UM/UIM coverage. See Marckstadt, 2010-NMSC-001, ¶ 16. Retroactive application

10 of the stacking disclosure rule would not advance this purpose for those insureds

11 who would be receiving this information in light of a loss already suffered. See

12 generally Beavers, 1994-NMSC-094, ¶¶ 34-35 (stating that the deterrence purpose

13 would not be advanced by retroactive application of prima facie tort rule because it

14 could not deter conduct that had already occurred). On the other hand, retroactive

15 application of the rule would serve a compensatory purpose, id., and accordingly

16 “provide meaningful enforcement of the requirements of Section 66-5-301 . . .

17 ensuring that every insured has been afforded his or her statutory right to either

18 obtain UM/UIM insurance coverage equal to the liability limits of the policy or to

19 make a knowing and intelligent rejection of part or all of that coverage.” Jordan,

32
 1 2010-NMSC-051, ¶ 28. Considering these purposes together, we conclude that the

2 second factor weighs neutrally. Beavers, 1994-NMSC-094, ¶ 35.

3 {49} Third, we consider whether it would be inequitable to apply the stacking

4 disclosure rule retroactively to Defendant-insurers. Id. ¶ 23. “The greater the extent

5 a potential defendant can be said to have relied on the law as it stood at the time he

6 or she acted, the more inequitable it would be to apply the new rule retroactively.”

7 Id. ¶ 38. As we have stated, we do not consider it unreasonable for Defendant-

8 insurers to have relied on language in our earlier decisions to conclude that their

9 offers need not include stacking disclosures. Additionally, our statement in Jordan

10 that we were “prescrib[ing]” the requirements “for a valid and meaningful rejection

11 of UM/UIM coverage in amounts authorized by statute” may have suggested to

12 insurers that the enumerated requirements⸺which did not mention stacking⸺were

13 conclusive. Jordan, 2010-NMSC-051, ¶ 20. Although Defendant-insurers may be in

14 a better position than insureds to bear the costs associated with enforcement of the

15 new requirement, we cannot say that this is an instance in which insurers failed to

16 ensure their compliance with existing law, thereby mitigating any inequity. See id. ¶

17 29 (“[W]e deem it more equitable to let the financial detriments be borne by insurers,

18 who were in a better position to ensure meaningful compliance with the law, than to

19 let the burdens fall on non-expert insureds, who are the Legislature’s intended

33
 1 beneficiaries.”). Moreover, “[t]he reliance interest to be protected by a holding of

2 nonretroactivity is strongest in commercial settings, in which rules of contract and

3 property law may underlie the negotiations between or among parties to a

4 transaction.” Beavers, 1994-NMSC-094, ¶ 28. Accordingly, we again conclude in

5 favor of prospective application of the rule: it would be inequitable to apply the

6 stacking disclosure requirement to Defendant-insurers “before [they have] had an

7 opportunity to [ensure compliance].” Montano, 2004-NMSC-020, ¶ 22.

8 {50} On balance, we conclude that the stacking disclosure rule we announce in this

9 opinion should be applied prospectively. However, we have recognized that pure

10 prospectivity⸺where a new rule of law is applied only to conduct arising after the

11 issuance of our mandate⸺is rarely appropriate. See Beavers, 1994-NMSC-094, ¶ 18

12 n.7. Instead, “[w]e have repeatedly held that certain decisions would be given

13 ‘selective’ or ‘modified’ prospective effect,” applying to the litigants in the case

14 giving rise to the new rule and “thereafter only to parties whose conduct occurs after

15 the announcement.” Id. ¶ 18 & n.7. Because this case has “afforded us the

16 opportunity to change an outmoded and unjust rule of law,” we conclude that our

17 decision should apply with selective prospectivity. See Lopez, 1982-NMSC-103, ¶

18 18.

34
 1 {51} Accordingly, we reverse the Court of Appeals’ determinations in Ullman and

2 Lueras that Defendant-insurers’ failure to include an explanation of stacking in their

3 offers of UM/UIM coverage did not render Plaintiffs’ rejections invalid in those

4 cases. Ullman, 2017-NMCA-071, ¶¶ 42-44, 59; Lueras, 2018-NMCA-051, ¶¶ 10-

5 11.

6 D. An Insurer Need Not Obtain a New Rejection of UM/UIM Coverage
7 When an Insured Adds a Vehicle to an Existing Policy

8 {52} The Luerases contend that GEICO did not secure an effective rejection of

9 UM/UIM coverage from them because GEICO failed to obtain a new rejection of

10 coverage after the Luerases added a vehicle to their existing policy. According to the

11 Luerases, when a new vehicle is added to a policy “there is necessarily a change in

12 the levels of UM/UIM coverage available to the insured, and a change in the

13 corresponding costs associated with each level of coverage” and there can be no

14 rejection unless information about coverages and costs is provided to the insured.

15 Thus, the Luerases ask us to revisit Vigil, which held that an insurer need not obtain

16 a new rejection of UM/UIM coverage when insureds add an additional vehicle to

17 their existing policy. 1997-NMCA-124, ¶ 16. They argue that the rule announced in

18 Vigil is inconsistent with our later holdings in Montano and Jordan in which we

19 “made clear, years after the Court of Appeals decision in Vigil, that there can be no

20 valid UM/UIM [rejection] where an insured is not provided information regarding

35
 1 all levels of UM/UIM coverages available and the costs for the same.” Alternatively,

2 the Luerases contend that the blank selection/rejection form sent to insureds seeking

3 to add a vehicle is ambiguous because it states, “If a box is not checked, I understand

4 that UM/UIM Bodily Injury Coverage will be issued with limits equal to the Bodily

5 Injury Liability Limits of my policy and my UM Property Damage Coverage will be

6 issued with limits of $10,000 each accident.”

7 {53} GEICO responds that Plaintiffs’ argument ignores Section 66-5-301(C),

8 which provides that “unless the named insured requests such coverage in writing,

9 such coverage need not be provided in or supplemental to a renewal policy where

10 the named insured has rejected the coverage in connection with a policy previously

11 issued to him by the same insurer.” GEICO further notes that the basis of the Vigil

12 decision was the Court of Appeals’ determination that the addition of a vehicle to an

13 existing policy did not trigger the creation of a new contract but “merely amounted

14 to a continuation of the original policy.” Vigil, 1997-NMCA-124, ¶ 16.

15 {54} We agree with GEICO. Nothing in our decisions in Montano or Jordan

16 concerns the continuation, renewal, or modification of an existing automotive

17 insurance policy. As we have explained, Montano does not set forth rules for

18 obtaining rejections of UM/UIM coverage but, instead, establishes requirements for

19 insurers seeking to limit their liability through antistacking provisions. Montano,

36
 1 2004-NMSC-020, ¶ 17. In Montano, “we conclude[d] that the protracted litigation

2 over the validity of anti-stacking clauses in this State demands our continued efforts

3 to clarify when and under what circumstances those provisions might be enforced.”

4 Id. Our decision in that case therefore provides no authority for Plaintiffs’ contention

5 that a change in premiums or coverages requires a new rejection of UM/UIM

6 coverage.

7 {55} Further, while Jordan does address the requirements for securing an insured’s

8 “knowing and intelligent decision to receive or reject the full amount of coverage to

9 which the insured is statutorily entitled,” 2010-NMSC-051, ¶ 2, the Jordan Court

10 did not consider the question of what constitutes a new policy versus a “renewal” for

11 purposes of applying Section 66-5-301(C). Id. ¶¶ 16-22. Moreover, nothing in

12 Jordan calls into question the central observation of Vigil that “the policy trails the

13 insured regardless of what vehicle is to be covered by the policy.” Vigil, 1997-

14 NMCA-124, ¶ 15.

15 {56} We conclude that the addition of a fourth vehicle to the Luerases’ policy did

16 not trigger the creation of a new contract obliging GEICO to comply with the Jordan

17 requirements but instead only required it to comply with the requirements of Section

18 66-5-301(C). See Vigil, 1997-NMCA-124, ¶¶ 14-16. Additionally, because the

19 initial UM/UIM selection/rejection form completed by the Luerases (indicating their

37
 1 rejection of UM/UIM coverage) clearly stated that the insured’s election “shall apply

2 to all vehicles currently on the policy and to all vehicles added to the policy”

3 (emphasis added), the blank selection/rejection form GEICO sent to the Luerases

4 when they sought to add an additional vehicle to their policy merely afforded them

5 the opportunity to make a different election and created no ambiguity warranting

6 construal of the contract against GEICO. 9 See Vigil, 1997-NMCA-124, ¶¶ 11, 18-19

7 (explaining that “the validity of the initial rejection of UM coverage” was not

8 affected by the plaintiffs’ selections, since they were not “changing limits or adding

9 coverages”); cf. Lopez, 1982-NMSC-034, ¶¶ 5-6 (holding that where the contract

10 contained no mention of effect of payment of multiple premiums on multiple

11 vehicles, it was ambiguous and warranted construal of its terms against the insurer).

12 {57} We therefore hold that the addition of a new vehicle to the Luerases’ policy

13 did not trigger a new policy warranting compliance with Jordan’s requirements for

14 rejection of UM/UIM coverage.

This language was consistent with language appearing on the Declarations
9

page stating that the insured could contact the insurer “at any time to request a
change to the coverage limits provided by this policy.”

38
 1 E. Plaintiffs’ Remaining Claims Are Remanded to the District Courts for
2 Additional Development

3 {58} Plaintiffs’ final three claims concern whether Defendant-insurers’ “Limits of

4 Liability” clauses misled insureds, whether GEICO’s form letter instructing the Van

5 Eppses to return a selection/rejection form to ensure processing of their application

6 was either misleading or otherwise in violation of law, and whether Defendant-

7 insurers must offer UM/UIM coverage on a per-vehicle basis. Because we conclude

8 that each issue requires further factual and/or legal development below, we reverse

9 the Court of Appeals’ resolution of these issues and remand them to the respective

10 district courts. We address each briefly in turn.

11 1. Whether Defendant-Insurers’ “Limits of Liability” Clauses Mislead
12 Insureds to Believe That Stacking Is Unavailable
13 {59} Both Safeway and GEICO include “Limits of Liability” clauses in their

14 UM/UIM policy documents. Safeway’s clause appears in its policy booklet under

15 the subheading “Limits and Conditions of Payment Amounts Payable for Liability

16 Losses” and states:

17 Liability limits apply as stated in the Declarations. The insuring of more
18 than one person or vehicle under this policy does not increase our
19 liability limits.

20 GEICO’s clause appears in its policy booklet under the heading “Limits of Liability”

21 and states:

39
 1 When coverage is afforded to two or more autos, the limits of liability
2 shall apply separately to each auto as stated in the declarations but shall
3 not exceed the highest limit of liability applicable to one auto.

4 {60} Plaintiffs argue that these are antistacking provisions and that their inclusion

5 in insurers’ policy booklets (1) precludes a knowing and intelligent rejection of

6 UM/UIM coverage under Jordan by affirmatively misrepresenting to insureds that

7 coverages may never be stacked, (2) violates public policy by limiting the insured to

8 the benefit of a single liability limit while charging the insured multiple premiums,

9 and/or (3) creates an ambiguity in the contract because it states that insureds may

10 not stack coverages even as “New Mexico law demands that all UM/UIM coverages

11 be aggregated and applied to cover an insured’s damages absent a valid [rejection]

12 of stacked UM/UIM coverage.”

13 {61} Safeway responds that “policy language forbidding or limiting stacking” is

14 not prohibited in New Mexico, and that Montano reiterated that such provisions do

15 not violate public policy unless they are ambiguous or unless multiple premiums are

16 charged for one coverage limit. Safeway and GEICO both suggest that Plaintiffs’

17 claims concerning the limitation of liability clauses are inapt because the question

18 of stacking only arises after a covered loss where the remedy is at issue. They

19 contend that, because these cases concern insurer denials of coverage as opposed to

40
 1 insurer denials of stacking (that is, an attempt to enforce an antistacking provision),

2 the clauses at issue are irrelevant.

3 {62} We decline to reach these arguments because none of the district courts whose

4 decisions Plaintiffs appealed to the Court of Appeals directly considered, much less

5 ruled on, whether the clauses at issue in fact amount to antistacking provisions. We

6 note that neither limitation of liability provision at issue here expressly refers to

7 stacking, unlike Montano, 2004-NMSC-020, ¶ 4 (quoting from the relevant “Limits

8 of Liability” provision stating in part that “we will stack or aggregate up to two, but

9 no more than two, Uninsured Motorist Insurance for Bodily Injury coverages under

10 this policy” (internal quotation marks omitted)). However, Defendant-insurers have

11 yet to be called on to explain precisely what the contested provisions do mean.

12 {63} The only district court to address the issue found that the question whether

13 GEICO’s purported assertion that “stacking of UM/UIM is never available” is

14 misleading to insureds would only arise “if the insured purchases UM/UIM coverage

15 or if a rejection of UM/UIM coverage is invalid.”10 We conclude that this amounts

16 to putting the cart, the purchase or rejection, before the horse. The determination of

10
The Court of Appeals, without explanation, “reject[ed the Ullman
Plaintiff’s] contentions as a basis on which to reform Safeway’s documents,”
Ullman, 2017-NMCA-071, ¶ 47, and declined to address the effect of the GEICO
clause in Lueras, 2018-NMCA-051, ¶¶ 10-11.

41
 1 whether specific contractual language violates New Mexico’s public policy on

2 stacking depends on the policy language at issue considered in light of the policy as

3 a whole. See Montano, 2004-NMSC-020, ¶¶ 11-13 (reviewing prior decisions

4 determining whether antistacking provisions violated public policy by examining

5 the language of the provisions and determining whether multiple premiums were

6 charged for coverage). Similarly, whether the challenged clauses are so misleading

7 as to defeat an insured’s knowing and intelligent rejection of UM/UIM coverage,

8 Marckstadt, 2010-NMSC-001, ¶ 16, or create ambiguities in the contract, Fickbohm

9 v. St. Paul Ins. Co., 2003-NMCA-040, ¶ 10, 133 N.M. 414, 63 P.3d 517, depends on

10 whether they in fact purport to limit stacking. Because these determinations depend

11 on facts not yet developed in the present proceedings, they are more properly

12 committed to the district court. “As an appellate court, we will not originally

13 determine the questions of fact.” Guidry v. Petty Concrete Co., 1967-NMSC-048, ¶

14 13, 77 N.M. 531, 424 P.2d 806. On remand, the respective district courts should first

15 ascertain the meaning of GEICO’s or Safeway’s limits of liability provisions and

16 then determine whether, in light of the documents constituting Defendant-insurers’

17 offers of UM/UIM coverage, the contested language created ambiguities in the offer,

18 violated the public policy of New Mexico, or so misled insureds as to defeat a

19 knowing and intelligent waiver of coverage.

42
 1 2. Whether GEICO’s Form Letter to Wendy Van Epps Was Misleading or
2 Otherwise Improperly Discouraged the Van Eppses from Purchasing
3 UM/UIM Coverage

4 {64} The fourth claim on appeal is limited to the case involving the Van Eppses.

5 Van Epps argues that the form letter GEICO sent to Wendy Van Epps after she

6 initially selected UM/UIM coverage through an online application system amounted

7 to a “bait and switch.” The letter stated:

8 In order to complete the processing of your new policy, a signed option
9 form is needed. The option form is enclosed in your new customer
10 package and is located after your ID cards, but before your insurance
11 contract. Please complete, sign and return all of the pages of the option
12 form. The form may be returned via fax . . . .

13 It is important that we receive this form back in order to continue your
14 policy at the current premium, so please don’t delay. If you do not
15 complete this form, we are required to make adjustments to your
16 coverage, which will result in an increase in your premium.

17 Van Epps contends that the letter was misleading and confusing because it failed to

18 explain what “adjustments” GEICO would make to the Van Eppses’ policy if they

19 failed to complete the form or how their coverage or premiums might change,

20 thereby discouraging the Van Eppses from purchasing UM/UIM coverage at all.

21 {65} GEICO responds that, because Wendy Van Epps initially selected UM/UIM

22 coverage in an amount below her policy liability limits, she had effectively rejected

23 the maximum amount of UM/UIM coverage. But because a rejection of coverage

24 must be in writing, “by law, GEICO was required to obtain her rejection in writing”

43
 1 or read in coverage at the policy’s liability limits. GEICO explains that the form

2 letter “always gets sent as a matter of course whenever an applicant selects UM/UIM

3 coverage in an amount that is less than his liability limits” and defends the letter on

4 the grounds that, had GEICO failed to secure the Van Eppses’ rejection in writing,

5 their policy would have been revised in accordance with law to include UM/UIM

6 coverage up to the liability limits of their policy, and they would have been charged

7 the higher premium.

8 {66} The Court of Appeals agreed with GEICO. Lueras, 2018-NMCA-051, ¶¶ 23-

9 26. It determined that GEICO was required to send the letter because otherwise the

10 insured’s initial selection would have amounted to a legally deficient rejection of the

11 offer of UM/UIM coverage. Id. ¶ 24. It disagreed with the Van Eppses’ contention

12 that the form and letter were ambiguous and that GEICO “discouraged” the purchase

13 of UM/UIM coverage. Id. ¶ 26.

14 {67} We agree with the Court of Appeals that GEICO was legally required to send

15 the selection/rejection form to Wendy Van Epps to effectuate her initial selection of

16 UM/UIM coverage. See id. ¶ 24. Selection of an amount of coverage lower than the

17 maximum available amounts to a rejection of that coverage and must be made in

18 writing. Weed Warrior, 2010-NMSC-050, ¶¶ 14-15; Marckstadt, 2010-NMSC-001,

19 ¶ 20.

44
 1 {68} However, we do not agree with the Court of Appeals’ conclusion that the letter

2 created no ambiguity in the offer as a matter of law. See Lueras, 2018-NMCA-051,

3 ¶ 26. Van Epps appears not to have argued (and the Court of Appeals did not address)

4 whether, in the specific circumstances at issue here, GEICO’s documentation may

5 have run afoul of Jordan’s requirement that GEICO provide sufficient information

6 about premiums and coverages to “meaningfully enable consumers to make a

7 knowing and intelligent purchase or rejection of UM/UIM coverage.” 2010-NMSC-

8 051, ¶ 24. The parties did not fully litigate this issue before the district court, nor did

9 that court make a specific determination as to whether GEICO’s letter created an

10 ambiguity in the offer sufficient to call into question the validity of the rejection.

11 Indeed, the hearing on GEICO’s motion for summary judgment evinces significant

12 confusion among the parties and the court about when GEICO’s letter was sent, why

13 it was sent, and what the effect would have been had the Van Eppses not returned it.

14 {69} We therefore reverse the Court of Appeals’ rejection of Van Epps’s claim

15 concerning the form letter sent to the Van Eppses and remand to the district court

16 for its consideration of this issue.

17 3. Whether Insurers Must Offer UM/UIM Coverage on a Per-Vehicle Basis

18 {70} The Lueras Plaintiffs argued before the district courts that GEICO’s

19 selection/rejection form, which requires an insured to select or reject UM/UIM

45
 1 coverage on all insured vehicles or none of them, violates New Mexico law.11 The

2 Luerases contended that our decision in “Montano held that an insurer must offer

3 UM/UIM coverage on each vehicle, must declare a premium charge for each

4 coverage, and must permit the insured to reject some or all of the offered coverages

5 on a per-vehicle basis.” They argued that GEICO’s failure to offer per-vehicle

6 UM/UIM coverage violated this prescription and “the public policy of New Mexico

7 . . . to expand UM[/UIM] coverage.”

8 {71} Van Epps argued that GEICO’s failure to explain to Wendy Van Epps that

9 “she was entitled to select UM/UIM coverage in different amounts on each vehicle

10 and was entitled to this UM/UIM coverage regardless of what vehicle her family

11 was in when involved in an accident with the UM motorist” meant that her waiver

12 of coverage “was not an informed or intelligent decision.” He argued that, had

13 Wendy Van Epps known of these aspects of coverage, she would not have rejected

Safeway’s form does provide per-vehicle UM/UIM coverage options.
11

Ullman’s version of this question is “[w]hether an insurer can obtain a valid rejection
of UM/UIM coverage on a multi-vehicle policy where it affirmatively misrepresents
to an insured that rejection of UM/UIM coverage on one vehicle will eliminate all
UM/UIM coverage on a policy regardless of UM/UIM selections on other insured
vehicles.” However, Ullman’s brief in chief fails to explain how Safeway’s form
achieves this misrepresentation, nor does it cite any authority in support of Ullman’s
argument. We therefore decline to address it. See Headley v. Morgan Mgmt. Corp.,
2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (stating that a reviewing court
“will not review unclear arguments, or guess at what [a party’s] arguments might
be”).

46
 1 coverage on all four of her vehicles, referring to an affidavit submitted by Wendy

2 Van Epps in support. In his argument on the motion before the district court, Van

3 Epps also cited Montano in support of his contention that per-vehicle coverage

4 options are required in New Mexico.

5 {72} The district court in the Lueras matter rejected this claim. It determined that

6 the Luerases’ argument “conflate[d] Jordan’s explanation of the statutory

7 requirements for obtaining a valid rejection of UM/UIM coverage with the

8 judicially-created remedy of stacking [addressed in Montano].” The court stated that

9 “[a]lthough stacking and the availability of UM/UIM coverage both may affect the

10 amount of benefits available under a policy, they are separate inquiries.” The court

11 did not address the Luerases’ contention that New Mexico’s public policy requires

12 a per-vehicle UM/UIM coverage option.

13 {73} The district court in the Van Epps matter did not specifically address the claim

14 that New Mexico law requires a per-vehicle UM/UIM coverage option. 12

15 {74} On appeal to the Court of Appeals, both Van Epps and the Luerases argued

16 that our decision in Montano established a requirement that insurers offer UM/UIM

17 coverage on a per-vehicle basis and that GEICO’s form violates the dictates of that

The district court did conclude broadly that “the form was adequate to
12

explain what was being rejected and fully complied with the requirements set forth
in Jordan . . . .” The court also concluded that GEICO’s “form was not ambiguous.”

47
 1 decision and contravenes the legislative purpose of the UM/UIM statute. Notably,

2 the Lueras and Van Epps Plaintiffs relied on Montano for their public policy

3 arguments.

4 {75} The Court of Appeals, reviewing this claim de novo, determined that the

5 Lueras and Van Epps Plaintiffs had “misinterpreted Montano,” concluding that

6 “Montano did not consider whether automobile insurers should be required to offer

7 policyholders UM/UIM coverage on a per-vehicle basis, much less impose such a

8 requirement.” Lueras, 2018-NMCA-051, ¶¶ 9, 13, 18. Other than the hypothetical

9 example of UM/UIM coverage described in Montano, the Lueras Plaintiffs had cited

10 no authority for the claim that GEICO was required to offer per-vehicle coverage,

11 and the Court determined that “nothing in the UM/UIM statute . . . provides [for such

12 a requirement],” Lueras, 2018-NMCA-051, ¶¶ 16-18.

13 {76} Before this Court, the Luerases and Van Epps reprise their argument that our

14 decision in Montano established the requirement that insurers offer UM/UIM

15 coverage on a per-vehicle basis. We agree with the Court of Appeals’ conclusion

16 that Montano established no such requirement. Lueras, 2018-NMCA-051, ¶ 18. As

17 we have said, Montano addressed the requirements an insurer must meet should it

18 seek to preclude the stacking of coverages in a multivehicle policy for which the

19 insured pays multiple premiums. 2004-NMSC-020, ¶ 1.

48
 1 {77} However, our conclusion that Montano does not impose such a requirement

2 does not end the inquiry as to whether New Mexico law, interpreted in light of the

3 Legislature’s clear purpose of encouraging the purchase of UM/UIM insurance,

4 supports the imposition of a requirement that insurers offer per-vehicle UM/UIM

5 coverage. Plaintiffs have thus far only faintly developed an argument in support of

6 such a requirement, suggesting that it might enhance freedom of contract and

7 encourage some consumers to purchase UM/UIM insurance who would otherwise

8 elect to reject coverage. It is the role of appellate courts to “review the case litigated

9 below, not the case that is fleshed out for the first time on appeal.” Spectron Dev.

10 Lab. v. Am. Hollow Boring Co., 1997-NMCA-025, ¶ 32, 123 N.M. 170, 936 P.2d

11 852 (internal quotation marks and citation omitted). We “will not rule on an

12 inadequately-briefed issue where doing so would require this Court ‘to develop the

13 arguments itself, effectively performing the parties’ work for them.’” State v. Flores,

14 2015-NMCA-002, ¶ 17, 340 P.3d 622 (quoting Elane Photography, LLC v. Willock,

15 2013-NMSC-040, ¶ 70, 309 P.3d 53).

16 {78} On remand of the Lueras and Van Epps matters, each party will be afforded

17 an opportunity to litigate this issue properly and fully should each choose to do so.

49
 1 III. CONCLUSION

2 {79} We hold that, in order to secure a knowing and intelligent rejection of

3 UM/UIM coverage in a policy insuring multiple vehicles and charging multiple

4 premiums, an insurer must explain that the insured may be entitled to stack

5 coverages on multiple vehicles, in the event of a covered loss. Because we apply this

6 rule with selective prospectivity, we reverse the Court of Appeals’ resolution of this

7 issue with respect to the three petitions before us. We also reverse the Court of

8 Appeals’ determination that GEICO’s and Safeway’s limitation of liability clauses

9 are not so misleading as to invalidate a UM/UIM rejection, as well as the Court of

10 Appeals’ determination that the February 2010 letter GEICO sent to the Van Eppses

11 did not preclude a knowing and intelligent rejection of UM/UIM coverage. Finally,

12 we affirm the Court of Appeals’ determination that the addition of a new vehicle to

13 an existing policy does not require a new offer or a new rejection of UM/UIM

14 coverage under New Mexico law. We remand each of the three matters to the

15 respective district court for further proceedings in accordance with this opinion.

16 {80} IT IS SO ORDERED.

17
18 BRIANA H. ZAMORA, Justice

50
 1 WE CONCUR:

2
3 MICHAEL E. VIGIL, Justice

4
5 DREW D. TATUM, Judge
6 Sitting by designation

7 JAROD K. HOFACKET, Chief Judge, specially concurring
8 Sitting by designation

9 ANGIE K. SCHNEIDER, Chief Judge, joining in special concurrence
10 Sitting by designation

51
 1 HOFACKET, Chief Judge (specially concurring).

2 {81} Based on the precedent and the sound legal reasoning in Part II.A-C, supra, I

3 concur with the opinion.

4 {82} In order for a rejection of UM/UIM coverage to be valid, a meaningful offer

5 of coverage must be made and the consumer must knowingly and intelligently act to

6 reject the offer. As reasoned in the opinion, this now includes a meaningful offer and

7 discussion of the effect of stacking in multiple-vehicle policies. I concur that such a

8 requirement may not have been foreseeable, because of the language in Jordan v.

9 Allstate Insurance Co., 2010-NMSC-051, 149 N.M. 162, 245 P.3d 1214, and

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

11 2014) (nonprecedential), and that the selective prospective application is

12 appropriate.

13 {83} However, I write separately to point out that the precedent itself may be the

14 cause of the confusion that it was trying to alleviate. Three cases are consolidated

15 for ruling in this matter. Jordan was also a consolidated case. The district courts, the

16 Court of Appeals, the United States Court of Appeals for the Tenth Circuit, and this

17 Court in prior opinions have all labored on this and similar questions.

18 {84} In Jordan, this Court stated:

19 If an insurer does not (1) offer the insured UM/UIM coverage equal to
20 his or her liability limits, (2) inform the insured about premium costs

52
 1 corresponding to the available levels of coverage, (3) obtain a written
2 rejection of UM/UIM coverage equal to the liability limits, and (4)
3 incorporate that rejection into the policy in a way that affords the
4 insured a fair opportunity to reconsider the decision to reject, the policy
5 will be reformed to provide UM/UIM coverage equal to the liability
6 limits.

7 2010-NMSC-051, ¶ 22. Insurers must comply with the above requirement, and if

8 they fail to do so, there is already an express remedy: the policy will be reformed.

9 Id. That language is broad enough to answer today’s question regarding stacking in

10 this case.

11 {85} However, the Court in Jordan noted that insurers continued to offer “coverage

12 in ways that are not conducive to allowing the insured to make a realistically

13 informed choice” and found “it necessary to prescribe workable requirements” and

14 a menu of disclosures. Id. ¶¶ 20, 21. This is nearly the same dilemma presented to

15 the Court today, and the Court finds it necessary to further clarify those workable

16 requirements.

17 {86} I respectfully submit that it was unwise for the Court in Jordan to have

18 provided those workable requirements. The Court noted that the “form and manner

19 of a valid rejection are established by the rules and regulations promulgated by the

20 superintendent of insurance.” Id. ¶ 17 (internal quotation marks and citation

21 omitted). The superintendent of insurance should have promulgated any needed

22 requirements.

53
 1 {87} I would use the opportunity presented in this case to overrule Jordan to the

2 extent that it promulgated workable requirements, and therefore it would not have

3 been necessary to extend and clarify them in the opinion. Other bodies should set

4 workable requirements to comply with the law as stated in Jordan, id. ¶ 22, quoted

5 above.

6 {88} Notwithstanding this concern, I concur with the opinion and the outcome.

7 Jordan has not been overruled, and I agree with the legal reasoning in the opinion

8 interpreting Jordan and the other precedents and the need for additional clarity on

9 the workable requirements promulgated by Jordan.

10 _________________________________
11 JAROD K. HOFACKET, Chief Judge
12 Sitting by designation

13 I CONCUR:

14
15 ANGIE K. SCHNEIDER, Chief Judge
16 Sitting by designation

54