Ullman v. Safeway Ins. Co.

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 11:17:43 2017.11.03

Certiorari Granted, August 24, 2017, No. S-1-SC-36580

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2017-NMCA-071

Filing Date: June 28, 2017

Docket No. A-1-CA-34897

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

Plaintiff-Appellee,

v.

SAFEWAY INSURANCE COMPANY,

Defendant-Appellant,

and

RICHARD BAILEY,

Defendant.

INTERLOCUTORY APPEAL FROM THE DISTRICT COURT OF SANTA FE
COUNTY
Francis J. Mathew, District Judge

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

Garcia Ives Nowara, LLC
Matthew L. Garcia
Albuquerque, NM

Freedman, Boyd, Hollander, Goldberg, Urias & Ward, P.A.
Joseph Goldberg
David A. Freedman
Vincent J. Ward
Albuquerque, NM

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Vargas Law Firm, LLC
Ray M. Vargas, II
Albuquerque, NM

O’Connell Law LLC
Erin B. O’Connell
Albuquerque, NM

for Appellees

Butt, Thornton & Baehr, P.C.
Rheba Rutkowski
James H. Johansen
Albuquerque, NM

for Appellant

OPINION

SUTIN, Judge.

{1} This matter comes to us on interlocutory appeal from the denial of Safeway Insurance
Company’s motion for summary judgment seeking dismissal of class action claims. Safeway
sought to prove that its insurance documents were legally adequate to support its rejections
of claims of class members to uninsured and underinsured motorist (UM/UIM) benefits. The
district court certified that the case involved “a controlling question of law as to which there
is [a] substantial . . . difference of opinion and that an immediate appeal . . . may materially
advance the ultimate termination of the litigation.” The court identified that controlling
question as “whether Safeway has complied with New Mexico law in obtaining waivers of
[UM/UIM] coverage insurance, including stacked coverage, from its insureds.”

{2} Safeway asks this Court to (1) rule that Safeway obtained valid rejections of
UM/UIM coverage in compliance with New Mexico law; (2) reverse the order denying
Safeway’s class-related motion for summary judgment; and (3) remand with instructions to
dismiss the class claims with prejudice and de-certify the class because “a ruling on the
certified question in Safeway’s favor means that the alleged violation of law that grounds
the class definition and class claims does not exist, leaving no common question appropriate
for class litigation.” We hold that Safeway obtained valid rejections of UM/UIM coverage
in compliance with New Mexico law. We further hold that, on remand, the district court is
to address any remaining class-related issues or concerns.

I. THE CLASS

{3} In pursuit of class certification in an action against Safeway, Plaintiff Betty E.

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Ullman stated the certified class to be:

All New Mexico residents, who are all Safeway policyholders or insureds
under any Safeway policy issued, or reissued, in New Mexico where that
Safeway policy did not provide the maximum amount of [UM/UIM]
coverage allowed by law and for which Safeway did not obtain a valid
waiver/rejection of UM/UIM coverage with limits equal to the limits of
liability coverage. An invalid waiver/rejection of UM/UIM coverage is one
which did not include an offer of UM/UIM limits up to the liability limits and
a disclosure of premium amount for each available level of coverage,
including stacked coverage.

Ullman’s claims and the class membership are based on Ullman’s assertion of legally
inadequate Safeway UM/UIM documentation affecting all policyholders in the class.

II. STANDARD OF REVIEW

{4} In the district court, Ullman argued that the issue was whether Safeway’s uniform
documentary language complied with New Mexico law, and for that reason, the particular
circumstances surrounding an ultimate rejection, including the means in which the rejection
was obtained, were immaterial. Whether the documents met the legal requirements for
offering and obtaining waivers of UM/UIM coverage and for stacking of benefits is a legal
question resolved by interpretation of applicable statutory, regulatory, and case law, calling
for de novo review. See Marckstadt v. Lockheed Martin Corp., 2010-NMSC-001, ¶ 13, 147
N.M. 678, 228 P.3d 462; Wilkeson v. State Farm Mut. Auto Ins. Co., 2014-NMCA-077, ¶ 6,
329 P.3d 749.

{5} The question whether language in a document meaningfully informs a customer
regarding the insurance offered requires this Court “to consider legal concepts in the mix of
fact and law and to exercise judgment about the values that animate legal principles[.]” State
v. Attaway, 1994-NMSC-011, ¶ 6, 117 N.M. 141, 870 P.2d 103 (internal quotation marks
and citation omitted). Like the concept of reasonableness, the concept of meaningful
involves the exercise of reasoned and evaluative judgment as to concepts inherently factual
yet in need of appellate court de novo review. See id. ¶ 9 (discussing “rules and tests, based
as they are on careful balancing of the underlying constitutional values,” serving as “a proxy
for reasonableness, generally applicable, but inherently factual[,]” yet “extend[ing] beyond
fact-finding and implicat[ing] an assessment of broader legal policies . . . entrust[ed] to the
reasoned judgment of the appellate courts of this state”); Randall H. Warner, All Mixed Up
About Mixed Questions, 7 J. App. Prac. & Process, No. 1, at 129 (Spring 2005)
(“[E]valuative determinations involve the judging of a person’s conduct or belief. This is
typically done by applying a standard like ‘reasonable’ or ‘fair’ that conveys to the decision-
maker that he or she is judging according to a community standard.”). In such instances,
appellate courts are free to conclude that, as a matter of policy, the issue should be reviewed
de novo in the interests of judicial administration. Attaway, 1994-NMSC-011, ¶¶ 6-8;

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Warner, supra, at 109-12, 118, 130-31. Thus, it is for this Court to determine whether the
documents were legally adequate to meaningfully inform Ullman of required insurance
information. For the purposes of our de novo review, it is to be understood that Ullman
received the critical documents.

III. THE LEGAL REQUIREMENTS

A. UM/UIM Coverage and Rejection of Coverage

{6} UM/UIM coverage and rejection of coverage are subjects of NMSA 1978, Section
66-5-301 (1983), and its implementing regulation, 13.12.3.9 NMAC. Section 66-5-301
reads:

A. No motor vehicle or automobile liability policy insuring
against loss resulting from liability imposed by law for bodily injury or death
suffered by any person and for injury to or destruction of property of others
arising out of the ownership, maintenance or use of a motor vehicle shall be
delivered or issued for delivery in New Mexico with respect to any motor
vehicle registered or principally garaged in New Mexico unless coverage is
provided therein or supplemental thereto in minimum limits for bodily injury
or death and for injury to or destruction of property as set forth in Section
66-5-215 NMSA 1978 and such higher limits as may be desired by the
insured, but up to the limits of liability specified in bodily injury and property
damage liability provisions of the insured’s policy, for the protection of
persons insured thereunder who are legally entitled to recover damages from
owners or operators of uninsured motor vehicles because of bodily injury,
sickness or disease, including death, and for injury to or destruction of
property resulting therefrom, according to the rules and regulations
promulgated by, and under provisions filed with and approved by, the
superintendent of insurance.

B. The uninsured motorist coverage described in Subsection A
of this section shall include underinsured motorist coverage for persons
protected by an insured’s policy. For the purposes of this subsection,
“underinsured motorist” means an operator of a motor vehicle with respect
to the ownership, maintenance or use of which the sum of the limits of
liability under all bodily injury liability insurance applicable at the time of
the accident is less than the limits of liability under the insured’s uninsured
motorist coverage. . . .

C. The uninsured motorist coverage shall provide an exclusion
of not more than the first two hundred fifty dollars ($250) of loss resulting
from injury to or destruction of property of the insured in any one accident.
The named insured shall have the right to reject uninsured motorist coverage

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 as described in Subsections A and B of this section; provided that unless the
named insured requests such coverage in writing, such coverage need not be
provided in or supplemental to a renewal policy where the named insured has
rejected the coverage in connection with a policy previously issued to him by
the same insurer.

The regulation states: “The rejection of the provisions covering damage caused by an
uninsured . . . motor vehicle as required in writing by the provisions of Section 66-5-301 . . .
must be endorsed, attached, stamped or otherwise made a part of the policy of bodily injury
and property damage insurance.” 13.12.3.9 NMAC; see Romero v. Dairyland Ins. Co., 1990-
NMSC-111, ¶ 8, 111 N.M. 154, 803 P.2d 243 (“An insured may reject [UM] coverage, but
the rejection must satisfy the regulations promulgated by the superintendent of insurance.”).

{7} In Montano v. Allstate Indemnity Co., 2004-NMSC-020, ¶¶ 17, 20, 135 N.M. 681,
92 P.3d 1255, our Supreme Court charted a “new course” in UM/UIM law, which, among
other rulings, required insurers in multiple-vehicle policies to “declare the premium charge
for each of the . . . coverages” as a means of ensuring that consumers get what they pay for.
In Progressive Northwestern Insurance Co. v. Weed Warrior Services, 2010-NMSC-050,
¶¶ 8, 14-15, 149 N.M. 157, 245 P.3d 1209, our Supreme Court required that insurers offer
UM/UIM coverage that includes “the maximum amount statutorily available” equal “to the
liability limits of the policy[.]” Further, the Court explained the insured’s choice to purchase
any lower amount functions as a rejection of that maximum amount of coverage statutorily
possible. Id. ¶ 14.

{8} With respect to obtaining valid rejections of UM/UIM coverage, several New Mexico
Supreme Court cases have stated what constitutes compliance, starting with Romero, 1990-
NMSC-111, and then later Marckstadt, 2010-NMSC-001, and Jordan v. Allstate Insurance
Co., 2010-NMSC-051, 149 N.M. 162, 245 P.3d 1214. Romero explained that “[t]he rejection
must be made a part of the policy by endorsement on the declarations sheet, by attachment
of the written rejection to the policy, or by some other means that makes the rejection a part
of the policy so as to clearly and unambiguously call to the attention of the insured the fact
that such coverage has been waived.” 1990-NMSC-111, ¶ 8. Further, under Romero,
“[p]roviding affirmative evidence of the rejection of the coverage comports with a policy
that any rejection of the coverage be knowingly and intelligently made.” Id. ¶ 9. And
UM/UIM coverage will be read into the policy “when a rejection of such coverage does not
comply with [the] regulation[].” Id.

{9} In Marckstadt, our Supreme Court clarified that “an insurer must obtain a written
rejection of UM/UIM coverage . . . in order to exclude it[,]” but that “neither the statute nor
the regulation requires that the insured’s written rejection be signed[,]” and “the written
rejection itself need not be made part of the policy.” 2010-NMSC-001, ¶ 4; see id. ¶¶ 23-26,
32. The Court further clarified that “the rejection which the regulation requires to be in
writing must be the act of rejection described in the statute and not the evidence of that act
mandated by the regulation itself.” Id. ¶ 22. Marckstadt explained that this requirement

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assures “that the insured is sufficiently informed before rejecting coverage, alerting the
insured to the importance of the decision, and providing clear evidence of a decision to
reject[.]” Id. ¶ 21. The Marckstadt Court stated, “[W]e cannot hold that the regulation may
only be satisfied by the attachment of the written rejection provided to the insurer by the
insured[,]” id. ¶ 25, and that “other forms of notification could function equally well to
clearly and unambiguously call to the attention of the insured the fact that such coverage has
been waived.” Id. (internal quotation marks and citation omitted). In sum, under Marckstadt,
“the insurer must obtain a written rejection from the insured, . . . the written rejection need
not be signed or attached to the policy[,]” and the regulation “requires that some evidence
of the insured’s written rejection of UM/UIM coverage must be made part of the policy by
endorsement, attachment, or some other means that calls the insured’s attention to the fact
that such coverage has been waived.” Id. ¶ 26.

{10} Almost a year after Marckstadt, Jordan decided that the “Court’s repeated
pronouncements” in Marckstadt and Romero, “indicate[d] that insurers continue[d] to offer
UM/UIM coverage in ways that are not conducive to allowing the insured to make a
realistically informed choice.” Jordan, 2010-NMSC-051, ¶ 20. The Court therefore
proceeded to “prescribe workable requirements for a valid and meaningful rejection of
UM/UIM coverage in amounts authorized by statute.” Id. The Court stated:

When issuing an insurance policy, an insurer must inform the insured
that he or she is entitled to purchase UM/UIM coverage in an amount equal
to the policy’s liability limits and must also provide the corresponding
premium charge for that maximum amount of UM/UIM coverage. The
premium cost for the minimum amount of UM/UIM coverage allowed by
Section 66-5-301(A) must also be provided, as well as the relative costs for
any other levels of UM/UIM coverage offered to the insured. The insured
must be informed that he or she has a right to reject UM/UIM coverage
altogether. Providing the insured with a menu of coverage options and
corresponding premium costs will enable the insured to make an informed
decision about the level of UM/UIM coverage he or she wants to purchase
and can afford and will minimize uncertainty and litigation with regard to the
coverage that the insured has obtained.

Id. ¶ 21. More recently, in Whelan v. State Farm Mutual Automobile Insurance Co., 2014-
NMSC-021, ¶ 25, 329 P.3d 646, our Supreme Court confirmed Montano’s having imposed
a requirement “that insurers disclose the premium costs for each available level of stacked
coverage as a means of guaranteeing that consumers can knowingly exercise their statutory
rights to UM/UIM coverage.” And Whelan further confirmed that “Jordan followed
Montano by requiring similar premium disclosure as to the premium charges corresponding
to each available [UM/UIM] option[.]” Whelan, 2014-NMSC-021, ¶ 25 (internal quotation
marks and citation omitted).

{11} Jordan sets out the consequences stemming from an insurer’s failure to abide by the

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requirements.

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

Jordan, 2010-NMSC-051, ¶ 22.

B. Stacking

{12} Stacking rules were substantially clarified in Montano, 2004-NMSC-020, and were
also discussed in Jordan, 2010-NMSC-051. Montano addressed “whether an insurance
company effectively precluded its insured from stacking the policy limits of all of his
vehicles insured under the policy for his [UM] claim[,]” where the plaintiff insured four
vehicles under a policy, paid a single premium for UM coverage, and limited stacking to two
coverage limits. 2004-NMSC-020, ¶¶ 1, 3-4, 6. The plaintiff asked the Court to declare all
anti-stacking clauses void as against public policy, and alternatively, that he be permitted to
stack four coverage limits under the circumstances. Id. ¶ 7. Our Supreme Court did not
expand its public policy favoring stacking to require stacking in all cases, stating, “[w]e have
always understood stacking to be the remedy for an ambiguous contract or the charging of
multiple premiums.” Id. ¶ 9. And after reviewing prior cases, the Court stated that it had
“never held that anti-stacking clauses violate public policy when unambiguous and when
only one premium has been charged for the coverage.” Id. ¶ 15. The Court explained that to
declare all anti-stacking clauses void as against public policy

would expand the public policy in favor of stacking beyond what [the] earlier
cases have declared it to be. Our public policy in support of stacking, rather,
has always been tied to the notion that it is unfair not to allow stacking when
multiple premiums are paid or when the policy is otherwise ambiguous. It
would thus be an expansion of that policy to also require stacking when the
policy clearly only charges a single premium and unambiguously precludes
stacking. We decline to modify our case law in order to expand our
expression of the public policy underlying stacking.

. . . Further, requiring stacking in all cases on a take-it-or-leave-it basis would
reduce the freedom of the parties to contract for less coverage and thus their
freedom to decide how much coverage they can afford. This could frustrate,
rather than advance, the legislative intent behind the UM statute. . . . [and]
. . . result in some lower-income insureds who own multiple vehicles being
effectively “priced out” of UM coverage.

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Id. ¶¶ 15-16.

{13} Stacking is not a statutorily mandated UM coverage level but “a judicially-created
doctrine[.]” Id. ¶ 17; Wilkeson, 2014-NMCA-077, ¶ 8 (“In New Mexico, stacking is ‘a
judicially-created doctrine’ that has arisen in cases in which our Supreme Court has needed
to determine whether insurance policy limitations of liability provisions restrict or permit
stacking.” (quoting Montano, 2004-NMSC-020, ¶ 17). Because the “traditional case-by-case
ambiguity analysis has proved unworkable” and “[b]earing in mind that [stacking] is a
judicial doctrine,” the Montano Court determined that a “new approach” was needed “to
protect the reasonable expectations of insureds and to ensure that they get what they pay
for.” 2004-NMSC-020, ¶ 17. Taking “guidance” from a concurrence in an out-of-state
decision stating that stacking should be treated as “extra coverage for which the parties have
contracted,” and also from Section 66-5-301(A) and (C), the Court “discern[ed] a solution
to the seemingly inherent ambiguities in anti-stacking clauses: an insurance company should
obtain written rejections of stacking in order to limit its liability based on an anti-stacking
provision.” Montano, 2004-NMSC-020, ¶¶ 18-19 (internal quotation marks and citation
omitted); see also Whelan, 2014-NMSC-021, ¶ 1 (confirming Montano as requiring insurers
to “obtain explicit written rejections of stacking in order to limit their statutory obligations”).

{14} The Court in Montano illustrated its holding:

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

2004-NMSC-020, ¶ 20. The Court followed with: “In all future cases, an insurance policy
that complies with this requirement will avoid the conclusion we now draw from the history
of stacking litigation in this State, namely, that anti-stacking clauses are almost inherently
ambiguous and are no longer effective at precluding stacking. With written waivers, insureds
will know exactly what coverage they are receiving and for what cost[.]” Id. ¶ 21. Having
“set forth the policy language requirements for future stacking cases,” the Court relied on
its “traditional ambiguity analysis” to resolve the case, reasoning that “it would be
inequitable to apply [the new requirements] against [the insurer] before it has had an

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opportunity to alter its policy language[.]” Id. ¶ 22. Applying that analysis, the Court held
that the plaintiff was “entitled to stack his four coverages” because the policy did not meet
the requirements “for a truly unambiguous policy[.]” Id. ¶¶ 27-28.

{15} In regard to the phrase “rejections of stacking” in Montano, as we state later in this
opinion, because an insurer has no duty to offer or explain stacking to a customer, we
construe the phrase “rejections of stacking” to mean rejection of UM/UIM coverage which,
if valid, necessarily precludes court-imposed stacking.1 Id. ¶ 19. Thus, where stacking is not
otherwise lawfully precluded, UM/UIM coverages that have not been rejected can be
stacked. There exists no required express stacking rejection independent of coverage
rejection.

IV. SAFEWAY’S DOCUMENTS RELATING TO UM/UIM COVERAGES AND
REJECTION OF COVERAGES

{16} Several documents used in Ullman’s insurance purchase appear in the record.
Safeway’s documents include the following forms: Application, Selection/Rejection,
Endorsement Page, Declarations Page, and the standard form policy. Also in the record are
insurance agency forms used by the insurance agency in the process of contracting for the
insurance with Ullman. The parties agree that the critical and operative documents on the
issue of legal adequacy are the Safeway documents and that the agency’s documents are not
relevant on the issue of legal adequacy. We nevertheless set out the agency’s documents that
were signed by Ullman so that the reader has a full understanding of what Ullman had before
her.

A. New Mexico Automobile Insurance Application

{17} Ullman signed a New Mexico Automobile Insurance Application form on November

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This Court’s opinion in Arias v. Phoenix Indemnity Insurance Co., 2014-NMCA-
027, ___P.3d___, appears to discuss rejection of coverage and rejection of stacking as two
different concepts, but the Court ultimately and correctly concluded that absent a valid
rejection of UM/UIM coverage as to multiple vehicles, the law “demands stacking of
coverage[.]” Id. ¶ 15. We stated:

Having extended . . . the availability of UM/UIM coverage as a matter of
law, we also include per-vehicle stacking. We believe that, in the absence of
a rejection of coverage altogether, the coverage that must be extended is the
full measure accorded [the plaintiff] by the default positions afforded by law.
This includes UM/UIM coverage generally, specifically to be stacked as to
each of [the] insured vehicles.

Id.

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12, 2011. The application asks the insured to “please read” certain matters set out in the
application, one of which reads, in part, “I understand that I have only the coverages
indicated in Section 5. All of the coverages shown in Section 5 have been explained. I
understand the various coverages and that I have only those coverage [sic] which have been
completed. I have rejected all coverages not completed in Section 5.” Under Section 5,
“Coverages,” the document states, “No coverage unless checked or premium shown[.]” The
application shows bodily injury limits of $25,000/$50,000 for each insured vehicle, listing
the premium amount of $79.00 for each. And the application has a location for the limits and
premiums for UM/UIM coverage, as to which each vehicle shows “rejected.” Ullman signed
the completed application on November 12, 2011.

B. UM/UIM Coverage Selection/Rejection Form

{18} Ullman signed an “Uninsured/Underinsured Motorist Coverage Selection/Rejection
Form” on November 12, 2011. This selection/rejection form at the outset informs the insured
of the following:

New Mexico [l]aw requires that all policies provide [UM/UIM] Coverage of
at least $25,000 per person, $50,000 per accident, and [UM] Property
Damages . . . limits of at least $10,000 unless you specifically reject such
coverage in writing. [UM] Coverage provides that if you suffer bodily injury
or sickness including death, resulting from an accident with a person who
does not carry liability insurance, and that driver is at fault, you may make
a claim against your own insurance company for general and special
damages. [UIM] Coverage protects you from a driver who has insurance, but
in an amount less than your [UM] Coverage.

You have a right to purchase [UM/UIM] coverage in an amount up to your
policy’s liability limit, or you may reject the coverage entirely. The limit may
not exceed your liability coverage limits. If you make no UM/UIM choices
below, you will receive UM/UIM at the liability limits shown on your policy
declarations.

The selection/rejection form gave Ullman the opportunity to purchase UM/UIM coverage
at the bodily injury limits or to reject that coverage. The document has blank spaces for
selection of bodily injury limits in a certain coverage amount that correlate with the available
UM/UIM coverage option for a particular total premium cost per vehicle. That is,
immediately below the first two advisory provisions, the form has a place for insertion of the
bodily injury limits chosen by the insured, with an additional location for insertion of the
corresponding available UM/UIM coverage option chosen for the policy, including the total
premium cost per vehicle. The bodily injury limit chosen by Ullman was shown to be
$25,000/$50,000, and the available UM/UIM coverage option was shown to be
$25,000/$50,000 per person/per occurrence, with a total premium cost for the UM/UIM
available option of $52.00, or $0.29 per day, per vehicle.

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{19} Different, separate options then appear on the selection/rejection form in regard to
UM/UIM coverage for the insured to consider and choose by marking the choice with an
“X” on a blank line. Those options relating to each insured vehicle are:

I wish to purchase UM/UIM Coverage in the amount of $25,000/50,000.

....

I wish to REJECT UM/UIM . . . Coverage[] entirely and understand that my policy
will not contain [this] Coverage[].

The first option set out above has no “X” placed in the blank spaces for her two vehicles.
Instead, an “X” appears for each of Ullman’s vehicles with respect to her “wish to REJECT
UM/UIM . . . Coverage[] entirely and understand[ing] that [her] policy will not contain [that]
Coverage[].”

{20} The selection/rejection form ends just before the signature line with the following:

I understand and agree that selection of any of the options indicated above
shall apply on this policy and on all future renewals of such policy, and on
all endorsements because of a change in vehicle or coverage, or because of
an interruption of coverage. If I decide to select another option at some future
time, I must notify the Company in writing.

MUST BE SIGNED. DO NOT SIGN UNTIL YOU HAVE READ AND
UNDERSTOOD YOUR SELECTIONS.

Ullman signed this completed form on November 12, 2011.

C. Declaration Page/Renewal Certificate

{21} A Declaration Page/Renewal Certificate form shows that it was processed on
November 12, 2011. This declaration page has a location to show the insured’s bodily injury
limits and premiums for each insured vehicle, as well as spacing for the insured’s limits and
premiums for UM coverage if that coverage were selected for either vehicle. The form also
tells the insured to “[k]eep [the form] in your car at all times as proof of your insurance.”
The declaration page shows “rejected” under UM bodily injury coverage. This information
is preceded by the statement, “Coverage is provided where a Limit of Liability and a
Premium are indicated.” The form states that “THE ENTIRE POLICY CONTRACT
INCLUDES THIS DOCUMENT, THE APPLICATION, THE POLICY AND ANY
ENDORSEMENTS.”

D. Endorsement Page of Personal Automobile Insurance Policy

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{22} The effective date of the Endorsement Page of Personal Automobile Insurance Policy
is shown as January 4, 2012. This endorsement page is virtually identical to the declarations
page. It states that it is “[a]ttached to and forming part of [the Ullman] policy[.]” Different
from the declarations page, the bodily injury premiums are not shown, and nothing is shown
in the UM bodily injury coverage for either vehicle. The form also states that “THE ENTIRE
POLICY CONTRACT INCLUDES THIS DOCUMENT, THE APPLICATION, THE
POLICY AND ANY ENDORSEMENTS.”

E. New Mexico Automobile Policy

{23} The New Mexico Automobile Policy indicates that it is an April 1, 2009 form. The
policy states that its provisions “WITH THE APPLICATION, DECLARATIONS PAGE
AND ENDORSEMENTS, IF ANY, ISSUED TO FORM A PART THEREOF, COMPLETE
THIS POLICY.” Under “INSURING AGREEMENT,” the policy states:

For the policyholder’s payment of premiums and fees in amounts we require
and subject to all of the terms and conditions of this policy, we agree to
provide the coverages the policyholder has selected. These selections are
shown in the enclosed Declarations, which are a part of this policy contract.
The selected coverages in this policy apply only to occurrences while this
policy is in force. Renewal premiums must be paid in advance.

The policy has a section titled “UNINSURED MOTORISTS” that sets out the parties’
“Coverage Agreement.” Under “Limits and Conditions of Payment Amounts Payable for
Uninsured Motorists Losses,” the policy states, “Our obligation to pay Uninsured
Motorists—Bodily Injury losses is limited to the amounts per person and per occurrence
in the Declarations.”

V. THE AGENCY’S DOCUMENTS

A. Automobile Coverage Form

{24} An “Automobile Coverage Form” provides for bodily injury liability insurance and
UM/UIM insurance limits selected or not selected by the insured. This form shows the
liability limits choices of “BI–$25k/50k, $50k/100k, $100k/300k, Other” and separately lists
the same choices for UM limits. Liability limits designated “BI–$25k/50k” is circled, and
nothing is circled for UM limits. Ullman signed this document on November 12, 2011.

B. Albuquerque Insurance World, Inc. “Dear Customer” Reminder

{25} An Albuquerque Insurance World, Inc. “Dear Customer” form instructs the insured
to “carefully” review the form, “ask questions on anything” the insured does not “completely
understand,” and then sign. The document states the following as two of sixteen items the
insured is to read: “3. IS THE COVERAGE WHAT YOU ORDERED AND IN THE

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AMOUNTS YOU ORDERED?” and “4. IF YOU REJECTED [UM] COVERAGE, ARE
YOU CLEAR ON HOW THE COVERAGE WOULD HAVE BENEFITED YOU? WE
STRONGLY RECOMMEND THIS COVERAGE.” Above the signature, the form states, “I
HAVE READ EACH ITEM ABOVE AND UNDERSTAND HOW EACH ONE AFFECTS
ME. I AM ALSO RECEIVING A COPY OF THIS FORM FOR MY RECORDS.” Ullman
signed this document on November 12, 2011.

C. “Dear Insured” Reminder

{26} A “Dear Insured” form tells the insured, among other things, that “It is important that
you obtain your policy in the mail and review it to be sure all drivers, vehicles, and
coverages that you desire to be included on your policy are included. If you do not receive
your policy please call us.” Ullman signed this document on November 12, 2011.

VI. ULLMAN’S VIEWS

A. Contentions as to Genuine Issues of Material Fact

{27} Ullman contends in her answer brief that, in denying Safeway’s motion for summary
judgment, the district court did not decide whether the forms were legal but instead denied
the motion for summary judgment because of genuine issues of material fact. She further
states that a factual basis existed for a jury to find that Safeway did not properly inform
insureds about premium costs corresponding to available levels of coverage, did not assess
whether Safeway advised Ullman and similarly situated insureds of the maximum UM/UIM
coverage available, and did not properly incorporate rejection of UM/UIM coverage into her
policy. And she explains that “a jury has not rendered any factual findings as to whether
Safeway violated its legal obligations to its insureds.” Ullman further points out that
discovery should be allowed to proceed in the district court as to what documents Ullman
received or did not receive. And she raises the question whether rejection was called to the
attention of the insured, citing Arias v. Phoenix Indemnity Insurance Co., 2009-NMCA-100,
¶ 13, 147 N.M. 14, 216 P.3d 264, which cites to Romero, 1990-NMSC-111, ¶ 8, as having
emphasized an insurer’s need to clearly and unambiguously call the rejection to the insured’s
attention.

B. Contentions as to UM/UIM Coverages

{28} In her answer brief, Ullman argues: (1) that Safeway’s policy had no language
advising her of the “full range of options in purchasing UM/UIM coverage and the
corresponding costs associated with each option”; (2) that Safeway’s “rejection form and
endorsements did not advise an insured of the extent or maximum amount of UM/UIM
coverage being offered, and did not advise of the costs corresponding to the available
coverages”; (3) that Safeway’s “purported rejection was not attached, endorsed, stamped or
otherwise made a part of the policy, as required by law, where the endorsement does not
advise the insured that UM/UIM coverage has been rejected”; (4) that Ullman’s purported

13
rejection was not incorporated into her policy “in a manner that called attention to the fact
that she was not receiving the benefits of UM/UIM coverage”; (5) that no evidence was
provided to Ullman of a “rejection by endorsement, attachment, or some other means that
calls the insured’s attention to the fact that UM/UIM coverage has been waived”; and
(6) that Safeway’s endorsement page and policy booklet, which consisted of the “limited
information . . . provided to . . . Ullman, . . . say[] nothing as to whether . . . Ullman was
offered or rejected any UM/UIM coverage.”

C. Contentions as to Stacking

{29} Ullman contends in her answer brief that Safeway’s “policy language provided [her]
with no meaningful explanation that in purchasing liability coverage she was entitled to
purchase stacked (or aggregated) coverage[,]” and “[t]o the contrary, and contrary to New
Mexico law, [Safeway’s] policy specifically advises insureds that stacking of UM/UIM
coverage is never available regardless of the number of vehicles insured.” She argues that,
under Montano, insurers cannot exclude stacked UM/UIM coverage from a policy unless the
insurer obtains a written waiver/rejection of stacking.

{30} Ullman states that the New Mexico-specific application Safeway provides to its
insureds states that if the insured selected UM/UIM coverage “there will be no stacking or
combining of coverage afforded to more than one auto under [the] policy[,]” specifically
quoting a form that does not appear to be one that was used in Ullman’s purchase. Ullman
further states that the policy booklet misrepresents stacked coverage by asserting that stacked
UM/UIM coverage is never available on a multi-vehicle policy.

{31} Ullman argues that Safeway “exacerbates” the stacking-related deficiency by its
general failure “to provide any information regarding the maximum amount of UM/UIM
coverage available on the two vehicles under her policy.” She spends a significant part of
her answer brief discussing stacking, as though it is her primary contention.

VII. SAFEWAY’S VIEWS

{32} In showing that its documentation complies with New Mexico law, Safeway takes
pains to set out what each document states. Having set out earlier in this opinion what the
relevant documents show and state, we see no reason to further discuss Safeway’s
descriptions. Stacking, however, needs to be discussed.

{33} Safeway asserts that Montano “plainly did not declare anti-stacking language illegal,
let alone even suggest that insureds have a right to stack coverages in every circumstance.”
See Rodriguez v. Windsor Ins. Co., 1994-NMSC-075, ¶ 21, 118 N.M. 127, 879 P.2d 759
(“We do not declare that it is impossible for an insurance company to issue [UM] coverage
that is immune to stacking.”), modified on other grounds by Montano, 2004-NMSC-020, ¶ 1.
Safeway states that there exists “no requirement to explain stacking law, much less advise
the insured of a per se entitlement to stack separate coverages in every circumstance.”

14
Safeway adds the following:

Jordan adopted Montano’s “menu” in its requirements for offering
and obtaining waivers of UM coverage. [Jordan,] 2010-NMSC-051, ¶ 24.
But it required no more than that the insurer declare each level of statutorily
available UM coverage and corresponding premium. Id. ¶ 2 (requiring “a
rejection of UM/UIM coverage equal to the liability limits” and that “insurers
must provide the insured with the premium charges corresponding to each
available option for UM/UIM coverage so that the insured can make a
knowing and intelligent decision to receive or reject the full amount of
coverage to which the insured is statutorily entitled”); id. ¶ 20 (stating
“workable requirements for a valid and meaningful rejection of UM/UIM
coverage in amounts authorized by statute”); id. ¶ 21 (“[A]n insurer must
inform the insured that he or she is entitled to purchase UM/UIM coverage
in an amount equal to the policy’s liability limits and must also provide the
corresponding premium charge for that maximum amount of UM/UIM
coverage”); id.[] ¶ 22 (“[I]nsurers have statutory obligations to offer
UM/UIM coverage up to the liability limits of the policy”); id. ¶¶ 25, 30; see
Progressive, 2010-NMSC-050, ¶¶ 8, 14-15.

{34} Safeway finds support in holdings in the United States District Court for the District
of New Mexico and the Tenth Circuit Court of Appeals rejecting the argument such as that
made by Ullman “that a rejection of UM coverage is invalid under New Mexico law unless
the rejection form contains an explanation of stacking and a calculation of total coverage
amounts if statutorily available UM coverage levels were stacked.” See Jaramillo v. Gov’t
Emps. Ins. Co., No. 12-2108, 573 F. App’x 733 (10th Cir. 2014) (non-precedential).2

{35} Safeway points out that the Jaramillo complaint was filed as a putative class action,
with allegations substantially similar to those made here. See id. at 737. The insurers moved
for summary judgment, arguing that the insureds’ written rejection of UM/UIM coverage
complied with New Mexico law, and because all of the claims “stemmed from an allegedly
improper denial of UM/UIM benefits, the complaint was not viable.” Id. (emphasis omitted).
The district court granted the insurers’ motion. Id. The court determined that the rejection
form “clearly offered the opportunity to select UM/UIM coverage in an amount equal to or
lower than those selected bodily injury liability limits while also providing premium costs
corresponding to each level of coverage” and that the insurers had incorporated the rejection
into the policy. Id. (internal quotation marks and citation omitted). In denying the insureds’
motion to reconsider, the district court reaffirmed its view that the insurers’ form complied
with New Mexico law as articulated in Jordan. Jaramillo, 573 F. App’x at 737-38.

2
“Unpublished decisions are not precedential, but may be cited for their persuasive
value.” 10th Cir. R. 32.1(A); Fed. R. App. P. 32.1.

15
{36} The plaintiffs argued on appeal to the Tenth Circuit Court of Appeals that the
insurers’ “offer of UM/UIM coverage was invalid for failure to make clear the amount of
stacked UM/UIM coverage available . . . or the corresponding cost of such coverage.” Id.
at 739 (omission in original) (internal quotation marks omitted). The Tenth Circuit saw this
argument as dovetailing into the question “whether the district court erred in holding that
under New Mexico law, an insurer is not required to inform the insured about premium costs
corresponding to each available level of stacked UM/UIM coverage.” Id. (alteration, internal
quotations marks, and citation omitted). Addressing whether the insurance form was “invalid
as a matter of law because it lacks a discussion or explanation of stacked UM/UIM
coverage[,]” the Tenth Circuit affirmed the district court’s conclusion that the form and
coverage rejection satisfied New Mexico law. Id.

{37} Further, the Tenth Circuit rejected the insureds’ argument that the insurers’ “Option
Form” was invalid “because it does not flesh out the nuances of stacked UM/UIM coverage”
as a “strained reading” of Jordan and Montano, neither of which required that UM/UIM
rejection forms must explain stacking. Jaramillo, 573 F. App’x at 741-42, n.7. Jaramillo
explained that Montano’s “core holding” was that “ ‘an insurance company should obtain
written rejections of stacking in order to limit its liability based on an anti-stacking
provision’ in a policy.” Jaramillo, 573 F. App’x at 742 (quoting Montano, 2004-NMSC-020,
¶ 19). And Jaramillo stated that Jordan “did not comment on the question of stacking, and
it did not explicitly forge a nexus between the new standard that it announced and the
concept of stacking.” Jaramillo, 573 F. App’x at 743. Thus, rejecting the insureds’ treatment
of “maximum amount of coverage” and “maximum stacked amount of coverage” as
“fungible concepts,” Jaramillo explained that “Jordan makes clear that the ‘maximum
amount’ contemplated is simply an amount equal to the policy’s liability limits,” and the
court declined “to graft the crucial word ‘stacked’ onto its holding.” Jaramillo, 573 F. App’x
at 744 n.9 (citing Jordan, 2010-NMSC-051, ¶ 21).

{38} Jaramillo further explained that Jordan required insurers to provide only the
“ ‘premium charge for the maximum amount of UM/UIM coverage’ (the maximum amount
being ‘an amount equal to the policy’s liability limits’) as well as the ‘premium cost for the
minimum amount of UM/UIM coverage allowed by Section 66-5-301(A),’ and ‘the relative
costs for any other levels of UM/UIM coverage offered to the insured’—viz., the costs for
a range of coverage between the minimum and maximum amounts.” Jaramillo, 573 F.
App’x at 744 (alteration and footnote omitted) (quoting Jordan, 2010-NMSC-051, ¶ 21).
Jaramillo concluded that “Montano does not stand for the proposition that the Option Form
could only have been valid under New Mexico law if it had specifically mentioned the
concept and effect of stacking coverage[,]” and further that “Jordan does not
mandate—either explicitly or implicitly—that a rejection of UM/UIM coverage equal to a
policy’s liability limits is invalid without a ‘discussion’ or ‘explanation’ of stacking
principles.” Jaramillo, 573 F. App’x at 746-47. Jaramillo also concluded that the insureds’
“rejection of UM/UIM insurance could not have been invalid under New Mexico law simply
because the Option Form did not tally up the stacked coverage amounts for the [insureds’]
four vehicles—in other words, because it did not multiply each available level of coverage

16
by four.” Id. at 748.

VIII. SETTING UM/UIM REQUIREMENTS AGAINST THE DOCUMENTS

{39} This discussion sets the New Mexico legal requirements relating to UM/UIM
coverage and rejection against Safeway’s documents.

A. Requirements: An Insurer Must Inform Its Insured That the Insured Is Entitled
to Purchase the Maximum Amount of UM/UIM Coverage Statutorily Available;
An Insurer Must Meaningfully Offer Its Insured the Same

{40} In Progressive, our Supreme Court required that insurers: (1) “ ‘meaningfully offer’
the maximum amount of UM/UIM coverage permitted by the statute, e.g., the liability limits
of the policy”; (2) offer UM/UIM coverage that includes “the maximum amount statutorily
available . . . [in an amount equal] to the liability limits of the policy”; and (3) after such an
offer is made, the insured’s choice “to purchase any lower amount functions as a rejection
of that maximum amount of coverage statutorily possible.” 2010-NMSC-050, ¶¶ 8, 14-15.

{41} Further, Jordan’s prescribed “workable requirements” set out earlier in this opinion
are to be repeated, with emphasis on particular language. See 2010-NMSC-051, ¶ 20.

When issuing an insurance policy, an insurer must inform the insured
that he or she is entitled to purchase UM/UIM coverage in an amount equal
to the policy’s liability limits and must also provide the corresponding
premium charge for that maximum amount of UM/UIM coverage. The
premium cost for the minimum amount of UM/UIM coverage allowed by
Section 66-5-301(A) must also be provided, as well as the relative costs for
any other levels of UM/UIM coverage offered to the insured. The insured
must be informed that he or she has a right to reject UM/UIM coverage
altogether. Providing the insured with a menu of coverage options and
corresponding premium costs will enable the insured to make an informed
decision about the level of UM/UIM coverage he or she wants to purchase
and can afford and will minimize uncertainty and litigation with regard to the
coverage that the insured has obtained.

Id. ¶ 21 (emphasis added).

{42} Ullman interprets “maximum amount” in stacking terms, that is, Ullman argues that
Safeway “exacerbates” the stacking-related deficiency by its general failure to provide
meaningful information “regarding the maximum amount of UM/UIM coverage available
on the two vehicles under her policy.” Ullman complains that she is unable to “understand
that if she chooses UM/UIM coverage in the amount of $25,000 per person and $50,000 per
accident on each of her two vehicles[,]” under stacking, she would have “$50,000 per person
and $100,000 per accident in available UM/UIM coverage.” We reject Ullman’s

17
interpretation as not in accord with Jordan’s prescription.

{43} We agree with the analysis in Jaramillo that “Jordan makes clear that the maximum
amount contemplated is simply an amount equal to the policy’s liability limits.” Jaramillo,
573 F. App’x at 744 n.9 (internal quotation marks omitted) (citing Jordan, 2010-NMSC-051,
¶ 21). Further, we agree with Jaramillo that Jordan requires insurers to provide only the
“ ‘premium charge of the maximum amount of UM/UIM coverage’ (the maximum amount
being ‘an amount equal to the policy’s liability limits’)”; “the ‘premium cost for the
minimum amount of UM/UIM coverage allowed by Section 66-5-301(A)’ ”; and “ ‘the
relative costs for any other levels of UM/UIM coverage offered to the insured’—viz., the
costs for a range of coverage between the minimum and maximum amounts.” Jaramillo, 573
F. App’x at 744 (footnote omitted) (quoting Jordan, 2010-NMSC-051, ¶ 21). As highlighted
by Safeway, Ullman misreads Jaramillo’s (and thus Jordan’s) wording of “that maximum
amount” by stating “the maximum amount.” “[T]hat maximum amount” plainly refers to
“UM/UIM coverage in an amount equal to the policy’s liability limits[.]” Jordan, 2010-
NMSC-051, ¶ 21; see Jaramillo, 573 F. App’x at 744 & n.9. As in Jaramillo, we will not
graft stacking onto our view of Jordan.

{44} After setting out the New Mexico requirement that insurers offer UM/UIM coverage,
the selection/rejection form explains to the insured: “You have a right to purchase
[UM/UIM] coverage in an amount up to your policy’s liability limit, or you may reject the
coverage entirely. The limit may not exceed your liability coverage limits. If you make no
UM/UIM choices below, you will receive UM/UIM at the liability limits shown on your
policy declarations.” The declaration page shows the bodily injury limits Ullman chose and
the premiums for those limits as to each insured vehicle. It further shows that Ullman
rejected UM coverage. We hold that Safeway complied with the UM/UIM legal requirement
as to maximum insurance. Ullman was sufficiently made aware of the maximum amount
statutorily available.

B. Requirements: An Insurer Must Inform Its Insured About the Premium Costs
Corresponding to All Available Levels of Coverage; An Insurer Must Provide
Its Insured With a Menu of Options and Corresponding Premium Costs That
Will Enable the Insured to Make an Informed Decision About the Level of
UM/UIM Coverage the Insured Wants to Purchase and Can Afford

{45} The Safeway documents show that Ullman chose a $25,000/50,000 level of bodily
injury coverage, thereby limiting her to a $25,000/50,000 level of UM/UIM coverage.
Safeway was obligated to provide the premium cost for these levels of coverage. See Jordan,
2010-NMSC-051, ¶¶ 21-22. The premium cost for the bodily injury level of coverage
appeared in the application and the declaration page. The premium cost for the UM/UIM
coverage appeared in the selection/rejection form. We hold that Safeway was in compliance
with the Jordan requirements.

{46} Although not briefed, in oral argument before this Court, Ullman argued that the

18
selection/rejection form was ambiguous with respect to the information in regard to the
UM/UIM premium cost. Ullman asserted that only by adding language to the statement of
the premium cost could the ambiguity be cleared up for legal adequacy. Thus, Ullman argued
that the statement would have to read: “Based on your Bodily Injury Limit of:
$25,000/50,000 the available UM/UIM Coverage option(s) for this policy are:
$25,000/50,000 (per person/per occurance [sic]) with a total premium cost of $52.00, or
$0.29 per day,” on each vehicle for which you have selected UM/UIM coverage.

{47} Further, Ullman argued that, because there existed language in the standard form
policy that can be read to be an anti-stacking clause, an inconsistency or ambiguity existed
as to whether Ullman could receive the full benefit of the UM/UIM offered in the
selection/rejection form. We reject the contentions as a basis on which to reform Safeway’s
documents to require UM/UIM coverage and benefits.

C. Requirements: An Insurer Must Inform Its Insured of the Insured’s Right to
Reject the UM/UIM Coverage; An Insurer Must Obtain a Written Rejection;
The Act of Rejection Must Assure That the Insured Is Sufficiently Informed of
the Importance of the Decision, and There Is Clear Evidence of a Decision to
Reject

{48} The selection/rejection form states, “You have a right to purchase [UM/UIM]
coverage in an amount up to your policy’s liability limit, or you may reject the coverage
entirely. The limit may not exceed your liability coverage limits. If you make no UM/UIM
choices below, you will receive UM/UIM at the liability limits shown on your policy
declarations.” The selection/rejection form also contains language that permits the insured
to reject UM/UIM coverage. See Jordan, 2010-NMSC-051, ¶ 21. That part states, “I wish
to REJECT UM/UIM . . . Coverages entirely and understand that my policy will not contain
these Coverages” and contains places in which an “X” is to be placed if the insured rejects
coverages. Ullman’s completed form contains an “X” for rejection of UM/UIM coverage for
each vehicle. See Jordan, 2010-NMSC-051, ¶ 22; Marckstadt, 2010-NMSC-001, ¶¶ 4, 21-
26.

{49} Furthermore, the application and the declaration page show that Ullman rejected the
coverage. And the selection/rejection form contains other options that show UM/UIM
coverage that can be selected by the insured. The form states, “An ‘X’ indicates your current
UM/UIM . . . selection(s).” The selection/rejection form contains a place for the insured’s
signature. Ullman signed the form, constituting a written act of rejecting the UM/UIM
coverage. See Jordan, 2010-NMSC-051, ¶ 22; Marckstadt, 2010-NMSC-001, ¶ 21.

{50} Further, the selection/rejection form contains the bodily injury limits that the insured
has chosen and matches that with the available UM/UIM coverage along with the “total
premium cost . . . per vehicle.” Ullman’s form shows that, based on her chosen limits of
“$25,000/50,000 the available UM/UIM coverage option for this policy” are
“$25,000/50,000 (per person/per occurrence) with a total premium cost of $52.00, or $0.29

19
per day, per vehicle.”

{51} In addition, the selection/rejection form contains at the outset the following
informational material for the insured:

New Mexico Law requires that all policies provide [UM/UIM] Coverage of
at least $25,000 per person, $50,000 per accident . . . unless you specifically
reject such coverage in writing. [UM] Coverage provides that if you suffer
bodily injury or sickness including death, resulting from an accident with a
person who does not carry liability insurance, and that driver is at fault, you
may make a claim against your own insurance company for general and
special damages. [UIM] Coverage protects you from a driver who has
insurance, but in an amount less than your [UM] Coverage.

{52} As well, the application specifically evidences rejection of UM/UIM coverage. Under
Section 5 of this document, it states, “No coverage unless checked or premium shown.” The
document has space for bodily injury limits and premium, as well as limits and premiums
for UM coverage, for each insured vehicle. Ullman signed the application. The form in
Section 5 contains the bodily injury liability limits of $25,000/50,000, and the premium
amount for that coverage for each insured vehicle, and shows “rejected” under the UM
coverage for each. Above Ullman’s signature, the application asks the insured to read certain
matters set out in the application, two of which read in part:

I understand that I have only coverages indicated in Section 5. All of the
coverages shown in Section 5 have been explained. I understand the various
coverages and that I have only those coverage [sic] which have been
completed. I have rejected all coverages not completed in Section 5. . . .

....

I hereby acknowledge that I have received a completed copy of this
application, the [UM/UIM] Coverage Selection/Rejection form, the policy,
the declarations page and any endorsements, and I understand the coverage
selections that I have made. I further understand that the entire policy
contract includes this application, the policy, declarations page and any
endorsements.

We hold that Safeway was in compliance with the aforementioned requirements.

D. Requirement: The Written Rejection Must Be Made a Part of the Policy By
Endorsement on the Declarations Page; Attachment to the Policy or By Some
Other Means That Makes the Rejection a Part of the Policy so as to Clearly and
Unambiguously Call to the Attention of the Insured the Fact That Such
Coverage Has Been Waived

20
{53} The document constituting the act of rejection need not be made a part of the policy,
and it need not be attached to the policy. See Marckstadt, 2010-NMSC-001, ¶ 4. The insurer
must “incorporate [the] rejection into the policy in a way that affords the insured a fair
opportunity to reconsider the decision to reject[.]” Jordan, 2010-NMSC-051, ¶ 22 (emphasis
added); Romero, 1990-NMSC-111, ¶ 8.

{54} The application, under “Fraud Statement,” states above the signature line:

I hereby acknowledge that I have received a completed copy of this
application, the [UM/UIM] Coverage Selection/Rejection form, the policy,
the declarations page and any endorsements, and I understand the coverage
selections that I have made. I further understand that the entire policy
contract includes this application, the policy, declarations page and any
endorsements.

Ullman signed this document.

{55} The declaration page and the endorsement page each state “THE ENTIRE POLICY
CONTRACT INCLUDES THIS DOCUMENT, THE APPLICATION, THE POLICY AND
ANY ENDORSEMENTS.” The endorsement page, which is virtually identical to the
declaration page, states that it is “[a]ttached to and forming part of [the Ullman] policy.” The
policy states that its provisions “WITH THE APPLICATION, DECLARATIONS PAGE
AND ENDORSEMENTS, IF ANY, ISSUED TO FORM A PART THEREOF, COMPLETE
THIS POLICY.” We hold that Safeway complied with the aforementioned requirement.

IX. NO FACTUAL ISSUES EXIST

{56} The district court did not deny Safeway’s class summary judgment motion on the
basis of the existence of genuine issues of material fact. The court instead ruled against
Safeway on a controlling issue of law that the court certified to this Court—whether
Safeway’s uniform documentation complied with New Mexico law in obtaining waivers of
UM/UIM coverage, including stacked coverage. The court determined that there existed a
substantial ground for difference of opinion. Ullman’s attempt to recharacterize issues of law
into issues of fact fails on the merits and cannot overcome the legal nature of our inquiry.
Indeed, Ullman’s class definition reflects her primary contention, and she pursued that
contention in the district court. Also noteworthy is Ullman’s statement in a document that
she filed following this Court’s grant of Safeway’s application for an interlocutory appeal
in which Ullman stated that the “critical determination” was “whether Safeway’s standard
policy documents and UM/UIM forms comply with New Mexico law,” and further, that
“[t]he fact-specific circumstances surrounding any particular rejection are immaterial.” As
well, in her answer brief, Ullman has not denied that she is seeking relief on the ground that
Safeway’s documents were legally inadequate.

X. THE STATUS OF CLASS ACTION CERTIFICATION

21
{57} Safeway sought summary judgment seeking to dismiss the class action on the ground
that its uniform documents were valid and legal as to all class member-insureds. The district
court determined that “there [was] at least one issue common to all persons affected dealing
with the application of New Mexico law to the uniform policy language Safeway uses in
insurance contracts with New Mexico residents.” Commonality can exist when alleged legal
deficiencies in uniform documents are common to the defined class. In considering
predominance under Rule 1-023(B)(3) NMRA, the district court stated:

Liability issues raised by this litigation are common to the class, and these
common questions predominate over individual questions. The sole focus of
the liability inquiry in this case is whether Safeway acted in accordance with
its obligations pursuant to New Mexico law requiring insurers to obtain valid
waivers of UM/UIM coverage, including stacked coverage. This question
predominates over any other issue raised in this litigation. . . . All members
of the class own standard Safeway automobile insurance policies in which
the operative language is uniform.

{58} Thus, in certifying the class, the district court presumably determined that the class
was appropriate because the documents were the same or essentially the same for all class-
member insureds. Our determination in this appeal that the uniform documents are legal and
valid as a matter of law and in compliance with New Mexico law would appear to constitute
a determination common to and predominating the class. Based on the foregoing, Safeway
asks us to overturn the district court’s certification of the class. We leave that issue for the
district court on remand.

XI. CONCLUSION

{59} We hold that Safeway’s forms complied with New Mexico law in all respects as to
what is required for a valid rejection of UM/UIM coverage, including stacking. We reverse
the district court’s determination to the contrary and remand to the district court for whatever
further proceedings may be required.

{60} IT IS SO ORDERED.

____________________________________
JONATHAN B. SUTIN, Judge

WE CONCUR:

____________________________________
JAMES J. WECHSLER, Judge

____________________________________
J. MILES HANISEE, Judge

22