Marckstadt v. Lockheed Martin Corp.

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMSC-001

Filing Date: November 19, 2009

NO. 31,258

TIMOTHY MARCKSTADT,

Plaintiff-Petitioner,

v.

LOCKHEED MARTIN CORPORATION MISSILES
& FIRE CONTROL, MID-CENTURY INSURANCE
COMPANY, and PACIFIC EMPLOYERS COMPANY
INSURANCE COMPANY OF PHILADELPHIA,
PENNSYLVANIA,

Defendants-Respondents.

ORIGINAL PROCEEDING ON CERTIORARI
Jerald A. Valentine, District Judge

Consolidated with:

NO. 31,447

FEDERATED SERVICE INSURANCE
COMPANY, a Minnesota corporation,

Plaintiff-Appellee,

v.

DANNY MARTINEZ,

Defendant-Appellant.

CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE
TENTH CIRCUIT
Mary Beck Briscoe, Timothy M. Tymkovich, and Neil M. Gorsuch, Circuit Judges

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Law Office of Stephen E. Hosford, P.C.
Stephen E. Hosford
Las Cruces, NM

for Petitioner

Butt, Thornton & Baehr, P.C.
Emily A. Franke
Albuquerque, NM

Stevens & Associates
J. Monty Stevens
El Paso, TX

Gant & Hicks, P.L.L.C.
Craig C. Gant
Dallas, TX

for Respondents

Peifer, Hanson & Mullins, P.A.
Robert E. Hanson
Lauren Keefe
Albuquerque, NM

for Appellee and
for Amicus Curiae Federated Service Insurance Company

Janet Santillanes, P.C.
Janet K. Santillanes
James T. Roach
Albuquerque, NM

Ewing & Ewing, P.C.
Steven C. Ewing
Albuquerque, NM

for Appellant and
for Amicus Curiae Danny Martinez

OPINION

CHÁVEZ, Chief Justice.

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{1} In these consolidated cases, Appellants, employees who were injured on the job, sought
uninsured or underinsured (UM/UIM) motorist benefits under their employers’ insurance policies,
which were denied. They claim that because they were covered under their employers’ automobile
liability policies and because their employers and their employers’ insurers failed to properly reject
UM/UIM coverage, it should be read into their employers’ policies. Specifically, Appellants argue
that in order to reject UM/UIM coverage in New Mexico, the insured must provide the insurer with
a written, signed rejection, which must be attached to the insurance policy. Appellees, the insurers
in both cases and one of the employers, contend that because there is no dispute that the employers
intended to reject such coverage, and because this rejection was evidenced by endorsements to their
policies, UM/UIM coverage was successfully rejected.

{2} NMSA 1978, Section 66-5-301 (1983) provides, in relevant part:

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
. . . 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. . . .

C. . . . The named insured shall have the right to reject uninsured motorist
coverage as described in Subsections A and B of this section[.]

13.12.3.9 NMAC provides that:

The rejection of the provisions covering damage caused by an uninsured or
unknown motor vehicle as required in writing by the provisions of Section 66-5-301
NMSA 1978 must be endorsed, attached, stamped or otherwise made a part of the
policy of bodily injury and property damage insurance.

{3} We consolidated these cases because they involve substantially similar issues. Gov’t
Employees Ins. Co. v. Welch, 2004-NMSC-014, ¶ 3, 135 N.M. 452, 90 P.3d 471. In Marckstadt v.
Lockheed Martin Corp., the issue reaches us on appeal of the district court’s grant of summary
judgment in favor of Appellees. In Federated Service Insurance Co. v. Martinez, the question has
been certified from the Tenth Circuit Court of Appeals.

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{4} Answering the question certified in Federated, we hold that an insurer must obtain a written
rejection of UM/UIM coverage from the insured in order to exclude it from an automobile liability
insurance policy under Section 66-5-301 and 13.12.3.9 NMAC. However, we hold that neither the
statute nor the regulation requires that the insured’s written rejection be signed. Also, despite the
clear requirement under 13.12.3.9 NMAC that the rejection of UM/UIM coverage be attached,
endorsed, stamped, or otherwise made part of the policy, we hold that the written rejection itself
need not be made part of the policy. Accordingly, with respect to Marckstadt, because we cannot
determine on the basis of the record before us whether the insurer obtained a written rejection of
UM/UIM coverage from the insured, we find the district court’s grant of summary judgment
improper and remand.

I. BACKGROUND

A. MARCKSTADT v. LOCKHEED MARTIN CORP.

{5} The facts of Marckstadt are not in dispute. Defendant-Appellee Lockheed Martin Corp.
entered into an insurance policy with Defendant-Appellee Pacific Employers Insurance Co. that
became effective on September 1, 1998. It appears undisputed that the policy included some
liability coverage for Plaintiff-Appellant Timothy Marckstadt, a Lockheed employee. The policy
also included an endorsement entitled “Limits of Liability - Uninsured Motorists” that featured a list
of states and next to each, either an “X” indicating the rejection of UM/UIM coverage or a dollar
figure reflecting the state’s “minimum limits.” Next to New Mexico, the endorsement contained an
“X” indicating rejection. Lockheed maintains that it intended to reject UM/UIM coverage, and
Marckstadt does not appear to dispute this.

{6} However, the record is not clear regarding the circumstances resulting in the inclusion of this
endorsement in the policy. There is no evidence of any discussions or correspondence in which
Lockheed directed Pacific to exclude UM/UIM coverage from its policy. The record shows that
before the policy went into effect, documents were provided to Lockheed “for [its] execution” that
were subsequently returned to its underwriter post-execution. The record does not contain all of the
documents that were “executed,” but it does include a copy of the relevant endorsement and several
associated portions of the policy as they appeared when Lockheed returned them to its underwriter.
From these documents alone, it is not clear exactly what Lockheed did to “execute” its policy: there
is no signature on the endorsement, and from the record we cannot determine whether it was
Lockheed, Pacific, or some other party who drafted or filled in the endorsement, for example, by
indicating with an “X” that coverage in New Mexico was rejected. It was only after the accident
giving rise to this case that Lockheed signed a rejection of UM/UIM coverage.1

{7} On November 25, 1998, after the policy was in effect, Plaintiff-Appellant Timothy

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It is not entirely clear that this rejection applied to the policy covering Marckstadt,
but because the rejection postdated the accident at issue here, it is not directly relevant, even
if it applied to that policy.

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Marckstadt was injured in an automobile accident through no fault of his own while acting within
the scope and course of his employment by Lockheed. Marckstadt received workers’ compensation
benefits and was awarded $25,000 from Allstate, the insurer of the driver who hit him. He then
brought this action, asking the district court to determine whether he was owed UIM benefits from
his personal insurer, Farmers Insurance Group, or from his employer, Lockheed, or both.
Marckstadt later amended his complaint to name Defendant Mid-Century Insurance Co. instead of
Farmers and to include Pacific, Lockheed’s insurance provider. Marckstadt’s claims against Mid-
Century were removed to arbitration and abated pending the determination of whether Lockheed was
primarily responsible for UIM coverage. Lockheed and Pacific moved for summary judgment,
claiming that because Lockheed’s policy contained the endorsement reflecting Lockheed’s intent
to reject, UIM coverage had been rejected under Section 66-5-301 and 13.12.3.9 NMAC, and that,
in any case, Marckstadt was precluded from seeking his claims under the Texas Workers’
Compensation Act, Tex. Lab. Code Ann. § 408.001(a) (1993).

{8} After a hearing, the district court granted summary judgment to Lockheed and Pacific,
apparently finding that Section 66-5-301 did not support Marckstadt, and explaining that 13.12.3.9
NMAC

may not be the best written regulation I ever saw. But I think that “or otherwise
made part of the policy,” I think that this matter–that Lockheed has done that. Even
though they call it an endorsement. Even though there may be a question as to
whether that endorsement should be signed, I think it’s clear that they intended to
reject it, and it is otherwise made a part of the policy.

The district court did not reach the question regarding the Texas workers’ compensation statute. The
Court of Appeals affirmed, holding that the attached but unsigned endorsement satisfied the
requirements of the insurance code and regulations, and that public policy did not mandate a
contrary outcome. Marckstadt v. Lockheed Martin Corp., 2008-NMCA-138, ¶¶ 12, 23, 145 N.M.
90, 194 P.3d 121. Like the trial court, the Court of Appeals did not find support for Marckstadt in
either the statute or the regulation. Id. ¶ 23. The Court opined that the regulation’s purpose is to
provide affirmative evidence to the insured of the rejection of coverage. Id. ¶ 12. Since the
regulation allowed many methods of providing such evidence, and since there was no signature
requirement on its face, the Court could find no evidence that a signature was required. Id. ¶¶ 15-23.
In addition, the Court could not discern any policy reason to require a signature where “the insured
maintains that he or she never doubted whether UM coverage had been rejected.” Id. ¶ 21.

{9} We granted certiorari to decide “[w]hether a rejection of uninsured motorist (UM) and/or
underinsured motorist (UIM) coverage must be signed by the insured, in addition to being attached
or otherwise made a part of the policy, before it constitutes a valid rejection under the provisions of
[NMSA 1978,] §66-5-301 (1983).” Marckstadt asks us to reverse the district court’s grant of
summary judgment and remand.

B. FEDERATED SERVICE INSURANCE CO. v. MARTINEZ

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{10} The facts of Federated are also undisputed. Capitol Motor Co. first obtained an automobile
insurance policy from Plaintiff-Appellee Federated Service Insurance Co. in 2001. Again, it appears
undisputed that the policy provided some liability coverage for the injured employee in this case,
Defendant-Appellant Danny Martinez. In the original policy, Capitol elected to receive UM/UIM
coverage in the amount of $500,000 per accident for management employees and $60,000 per
accident for non-management employees. In November of 2001, Denny Rommann, a Federated
employee, executed a change to Capitol’s policy that eliminated UM/UIM coverage for non-
management employees effective March 1, 2002. There was no written or signed rejection from
Capitol leading to this change, but like Lockheed, it is uncontested that Capitol intended to reject
coverage. Strangely, on March 29, 2002, Capitol’s general manager, Mark Brandt, signed and
returned a document to Federated that selected UM/UIM coverage in the amount of $60,000 per
accident for non-management employees. Nevertheless, as of March 1, 2002, Capitol’s premium
for UM/UIM coverage for its non-management employees was returned. Subsequent renewed
policies included endorsements rejecting UM/UIM coverage, none of which were signed by Capitol.
The renewed policy that was in effect on May 11, 2005, included such an endorsement.

{11} On May 11, 2005, Martinez was struck by a car while working at Capitol as a non-
management employee. He requested UM benefits from Federated, leading Federated to bring an
action in federal court under diversity jurisdiction seeking a declaratory judgment that Martinez was
not entitled to any benefits under its policy with Capitol. Martinez answered, seeking a declaratory
judgment that Capitol’s rejection was “contrary to insurance policy and therefore . . . invalid” and
seeking damages for personal injury, breach of contract, bad faith violations of New Mexico’s
Insurance Code and Unfair Practices Act, and negligence.

{12} Federated moved for summary judgment, claiming that the endorsement to Federated’s
policy constituted a sufficient rejection under New Mexico law. Martinez also moved for summary
judgment, stating that because there was no written rejection attached to the policy, rejection could
not have been effective. The district court granted Federated’s motion and dismissed all of
Martinez’s claims except for negligence. The district court reasoned that

there does not appear to be any requirement under New Mexico law that a rejection
of UM/UIM coverage takes any particular form, e.g., a document with a box that
must be checked to decline coverage. . . . So long as some means of making the
rejection a part of the policy is employed “to clearly and unambiguously call to the
attention of the insured the fact that such coverage has been waived,” the
requirements of New Mexico law are satisfied.

Federated Serv. Ins. Co. v. Martinez, No. 06-638, slip op. at 8 (D.N.M. Aug. 31, 2007) (quoting
Romero v. Dairyland Ins. Co., 111 N.M. 154, 156, 803 P.2d 243, 245 (1990)). The district court
found this to be particularly the case in the context of a corporate policy when there was evidence
that the insured party was fully aware of its right to have UM/UIM coverage. The district court’s
partial summary judgment was certified as a final judgment and appealed to the Tenth Circuit Court
of Appeals, where Martinez asked the Court to hold as a matter of law that UM/UIM coverage had
not been properly rejected because there was not a written rejection provided by the insured and

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attached to the policy. The Tenth Circuit requested certification to this Court of the question of
whether, “[f]or a valid rejection of UM/UIM coverage under New Mexico law, must that rejection
be written, signed by the insured, and attached to the policy?” We accepted certification.

II. DISCUSSION

{13} In these cases, the Court is asked to determine what is required under Section 66-5-301 and
13.12.3.9 NMAC to effectively reject UM/UIM coverage. There are no factual disputes. In both
cases, Appellees argue that because the employers intended to reject UM/UIM coverage and
endorsements to their policies evidenced this rejection, the statute and regulation were satisfied and
summary judgment was justified. Neither of the Appellants disputes the existence of the
endorsements or the parties’ intent, but both suggest that some or all of the following additional
steps were required under the statute and regulation: written rejection by the insured, signature of
the rejection, and attachment of the rejection to the policy. In short, these cases present questions
of law, which the Court reviews de novo. See Pielhau v. RLI Ins. Co., 2008-NMCA-099, ¶ 6, 144
N.M. 554, 189 P.3d 687 (“We review de novo the granting of summary judgment[.]”); Boradiansky
v. State Farm Mut. Auto. Ins. Co., 2007-NMSC-015, ¶¶ 4-5, 141 N.M. 387, 156 P.3d 25 (applying
de novo review to a certified question about the meaning of Section 66-5-301).

{14} When deciding a statute’s meaning, “[o]ur goal . . . is to determine and give effect to
legislative intent. We do not depart from the plain language of a statute unless we must resolve an
ambiguity, correct a mistake or absurdity, or deal with a conflict between different statutory
provisions.” N.M. Bd. of Veterinary Med. v. Riegger, 2007-NMSC-044, ¶ 11, 142 N.M. 248, 164
P.3d 947 (citation omitted). However, in light of the purpose of New Mexico’s UM/UIM statute
to expand coverage to protect members of the public against uninsured motorists, “[t]he statute is
interpreted liberally to implement that remedial purpose, and any exception will be strictly
construed.” Kaiser v. DeCarrera, 1996-NMSC-050, ¶ 7, 122 N.M. 221, 923 P.2d 588 (citation
omitted). Finally, although our task today also involves the interpretation of a regulation, the same
principles apply. Alliance Health of Santa Teresa, Inc. v. Nat’l Presto Indus., Inc.,
2007-NMCA-157, ¶ 18, 143 N.M. 133, 173 P.3d 55 (“In interpreting sections of the Administrative
Code, we apply the same rules as used in statutory interpretation.” (citation omitted)).

A. 13.12.3.9 NMAC REQUIRES AN INSURED TO REJECT UM/UIM COVERAGE IN
WRITING

{15} Section 66-5-301 and 13.12.3.9 NMAC were designed to “expand insurance coverage to
protect the public from damage or injury caused by other motorists who were not insured and could
not make the impaired party whole.” Sandoval v. Valdez, 91 N.M. 705, 707, 580 P.2d 131, 133 (Ct.
App. 1978). The policy of expanding UM/UIM coverage is reflected in the plain language of
Section 66-5-301(A) and (B), which mandates that all automobile liability policies shall include
UM/UIM coverage for the persons insured under the liability policy. This section, however, is
qualified by Section 66-5-301(C), which provides that “[t]he named insured shall have the right to
reject[.]” Read as a whole, Section 66-5-301 makes UM/UIM coverage the default when the insured
has not exercised the right to reject. See Vigil v. Rio Grande Ins. of Santa Fe, 1997-NMCA-124,

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¶ 7, 124 N.M. 324, 950 P.2d 297 (“[T]he statute also allows an insured to choose not to purchase
UM coverage by specifically rejecting such coverage.” (emphasis added)). From the statute’s text,
we can deduce that the insurer may not exclude UM/UIM coverage from an automobile liability
policy unless it has offered it to the insured, see Montano v. Allstate Indem. Co., 2004-NMSC-020,
¶ 16, 135 N.M. 681, 92 P.3d 1255, and the insured has exercised the right to reject the coverage
through some positive act. Section 66-5-301(C).

{16} Section 66-5-301 does not explicitly address the manner in which the offer or rejection of
UM/UIM coverage must take place. However, under the statute’s plain language and the
unambiguous policies embodied within it, we believe that certain implications can clearly be
discerned. For example, in order for the offer and rejection requirements of Section 66-5-301 to
effectuate the policy of expanding UM/UIM coverage, the insurer is required to meaningfully offer
such coverage and the insured must knowingly and intelligently act to reject it before it can be
excluded from a policy. Romero, 111 N.M. at 156, 803 P.2d at 245. Thus, an offer of UM/UIM
coverage could, in principle, be so inadequate or misleading as to render a rejection ineffective
under the statute. Conversely, even if an offer of UM/UIM coverage were completely adequate, we
would not find that coverage had been rejected if the insured never acted to reject coverage, even
if an endorsement were attached to the policy by the insurer. Further, because of the distinct risks
of miscommunication and confusion in the context of complex insurance agreements, see Montano,
2004-NMSC-020, ¶ 17, and our statute’s clear policy of expanding UM/UIM coverage, we do not
believe it would be wholly implausible to interpret Section 66-5-301 alone to require the insured not
just to affirmatively act to reject coverage, but specifically to make its rejection in writing. See, e.g.,
Gyori v. Johnston Coca-Cola Bottling Group, Inc., 669 N.E.2d 824, 827 (Ohio 1996) (holding,
under a UM/UIM statute quite similar to New Mexico’s, that “the spirit of [the statute] is best served
by requiring the offer to be in writing. Such a requirement will prevent needless litigation about
whether the insurance company offered UM coverage and will in the long run benefit insurance
companies[,]” and that this reasoning “necessitates the same requirement for rejections. Such a
requirement will lessen the difficulty of proving rejection in a case such as this. We are persuaded
that requiring rejection of UM coverage to be in writing comports with the spirit of [the statute] and
with public policy.”), superseded by statute as recognized in Shindollar v. Erie Ins. Co., 774 N.E.2d
316, 319 (Ohio Ct. App. 2002). However, we also recognize that such a writing requirement simply
does not appear on the face of the statute. See id. at 827 (Cook, J., dissenting).

{17} In contrast, we believe that a written rejection requirement can unambiguously be found in
13.12.3.9 NMAC. Promulgated under Section 66-5-301’s grant of authority to create rules and
regulations concerning UM/UIM coverage, the words of 13.12.3.9 NMAC bear repeating:

The rejection of the provisions covering damage caused by an uninsured or
unknown motor vehicle as required in writing by the provisions of Section 66-5-301
NMSA 1978 must be endorsed, attached, stamped or otherwise made a part of the
policy of bodily injury and property damage insurance.

{18} Unless the rejection requirements of 13.12.3.9 NMAC are strictly met, UM/UIM coverage
will be read into an automobile liability policy. Romero, 111 N.M. at 155, 803 P.2d at 244

8
(“[U]nless the named insured rejects [UM/UIM] coverage in a manner consistent with the
requirements imposed by the superintendent of insurance, uninsured motorist coverage will be read
into the insured’s automobile liability insurance policy regardless of the intent of the parties or the
fact that a premium has not been paid.” (emphasis added)). For this reason, although we agree with
Appellees’ suggestion that public policy generally supports freedom of contract, see Lynch v. Santa
Fe Nat’l Bank, 97 N.M. 554, 560, 627 P.2d 1247, 1253 (Ct. App. 1981), the necessity of meeting
the statutory and regulatory requirements plainly conditions freedom of contract in this limited
situation. See id. (recognizing that public policy supports the parties’ freedom to contract “unless
they clearly contravene some positive law” (internal quotation marks and citation omitted)).
Therefore, although Appellees were free to reject UM/UIM coverage for their employees, they were
obliged to do so in accordance with the law.

{19} Cases applying 13.12.3.9 NMAC have focused on its “endorsed, attached, stamped or
otherwise made a part of” language. For example, in Romero, this Court considered the case of an
insured who claimed uninsured motorist coverage under her liability policy despite the fact that she
had knowingly signed a waiver of such coverage and had not paid premiums for it. 111 N.M. at
155-59, 803 P.2d at 244-48. We held in her favor because

The 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.

Id. at 156, 803 P.2d at 245. We reasoned that strict compliance was required under the insurance
regulations, and that, in any case, this outcome furthered the policy of giving the insured
“affirmative evidence of the extent of coverage” to enable him or her to make informed choices
about coverage. Id. A similar conclusion was reached in Kaiser, in which this Court held that
UM/UIM coverage had not been effectively rejected, despite the insurance company’s receipt of a
signed waiver from the insured, because the policy contained no evidence of the rejection, even
though the insurance company had made unsuccessful efforts to mail an updated declarations page
to the insured. 1996-NMSC-050, ¶¶ 1-4, 17.

{20} We disagree with Appellees that placing evidence of the rejection in the policy is the only
requirement to be found in the regulation. 13.12.3.9 NMAC states that the rejection, “as required
in writing by the provisions of Section 66-5-301 NMSA 1978” (emphasis added), must be made part
of the policy. Curiously, as we have noted, Section 66-5-301 does not explicitly require the
rejection to be in writing; the only mention of a writing in the statute concerns requests to reinstate
UM/UIM coverage when it has been previously rejected. Section 66-5-301(C). Despite its lack of
clarity, we cannot simply ignore this portion of the regulation. Benavidez v. Sierra Blanca Motors,
1996-NMSC-045, 122 N.M. 209, 213, 922 P.2d 1205, 1209 (“We presume that the [agency] is well
informed regarding existing statutory and common law and does not intend to enact a nullity.”).
Since the “in writing” language cannot restate a statutory requirement, we believe it must state an
additional explicit requirement: that the rejection must be in writing.

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{21} To create such a requirement was certainly within the authority delegated to the
superintendent of insurance under Section 66-5-301(A). Willey v. Farmers Ins. Group, 86 N.M.
325, 327, 523 P.2d 1351, 1353 (1974) (“The authority granted to the superintendent of insurance
is a lawful delegation of authority to an administrative agency.”), overruled on other grounds by
Found. Reserve Ins. Co. v. Marin, 109 N.M. 533, 535, 787 P.2d 452, 454 (1990). The written
rejection requirement furthers the policy of expanding UM/UIM coverage by assuring 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, reducing litigation after the fact.
In cases where the insured and insurer dispute whether coverage was rejected, without a written
rejection requirement, courts are forced to decide whether the insured acted to reject based solely
on extrinsic evidence of the parties’ intentions. In cases where the insured and the insurer agree that
coverage was rejected but a third party claims coverage, without a written rejection requirement, the
third party is susceptible to fraud.

{22} Appellees suggest that “in writing” merely applies to the subsequent portion of the regulation
such that only the endorsement, attachment, stamp, or other means of making the rejection part of
the policy must be in writing, and not the insured’s rejection of UM/UIM coverage itself. We
disagree. First, Appellees’ construction of the “in writing” provision would reduce that language
to a redundancy. Obviously, whatever is attached, endorsed, stamped, or otherwise made part of the
policy, providing evidence of the decision to reject, must be in writing, because policies are written
instruments. We hesitate to read the regulation to render certain terms extraneous. See T.W.I.W.,
Inc. v. Rhudy, 96 N.M. 354, 357, 630 P.2d 753, 756 (1981) (“[Regulations] must be construed so
that no part of the [regulation] is rendered surplusage, if possible.”). Second, we believe Appellees’
reading contradicts the regulation’s plain language. The regulation states that the rejection of
UM/UIM coverage as required by the statute must be in writing. However, the statute does not
speak to the necessity of endorsing, attaching, or otherwise making the rejection part of the policy.
This requirement is found only in the regulation. As a result, 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.

{23} We note that although no New Mexico case has directly decided the question of whether an
insured must reject UM/UIM coverage in writing, other cases that have found occasion to comment
on it have also concluded that the insured must provide a written rejection before UM/UIM coverage
can be excluded from an automobile liability policy. See, e.g., Montano, 2004-NMSC-020, ¶ 19
(basing its requirement of a written waiver of stacking in part on its observation that the New
Mexico’s UM/UIM statute and regulations “[have] been interpreted as requiring an insured to reject
UM coverage in writing” (citation omitted)); Kaiser, 1996-NMSC-050, ¶ 8 (“Even though an
insured may sign a rejection notice of UM/UIM coverage, that alone is not enough. The rejection
notice must also be endorsed, attached, stamped or otherwise made a part of the policy to be
effective.” (internal quotation marks and citation omitted) (emphasis added)); Romero, 111 N.M.
at 156, 803 P.2d at 245 (“The 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.” (emphasis added)). Following this long-

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held understanding, we hold that 13.12.3.19 NMAC requires an insured to reject UM/UIM coverage
in writing.

B. THE INSURED’S WRITTEN REJECTION NEED NOT BE SIGNED TO BE
EFFECTIVE

{24} We next consider whether, as Appellants suggest, the written rejection must be signed by the
insured. We conclude that a signature is not required. First, unlike the writing requirement, neither
the statute nor the regulation includes any explicit mention of signature. As Appellees point out, the
Legislature has explicitly required signatures in related contexts where it desires them. See, e.g.,
NMSA 1978, § 66-5-222 (1977, as amended through 1998) (requiring signatures on driver exclusion
endorsement forms). Second, we are not prepared to hold that the words “in writing” necessarily
imply that a signature is required in any context. See Black’s Law Dictionary 1748 (9th ed. 2009)
(defining “writing” as “[a]ny intentional recording of words that may be viewed or heard with or
without mechanical aids” and distinguishing it from a “signed writing,” which is defined as “[a]
writing to which a person’s signature has been affixed in some form”). Although as a matter of
prudence, it might appeal to us to require the signature of the insured to effectively reject coverage,2
see Lane v. Lane, 1996-NMCA-023, ¶ 20, 121 N.M. 414, 912 P.2d 290 (explaining that a signature
requirement can serve both an evidentiary purpose, assuring that the signatory actually gave consent,
and a cautionary purpose, because “[o]ne who pauses to sign a document can be expected to give
more thought to the consequences of consent than one who gives consent in a less formal setting”),
we are asked in this case only to interpret Section 66-5-301 and 13.12.3.9 NMAC. Given the lack
of an express signature requirement in these provisions, we cannot conclude that there is no situation
in which a written but unsigned rejection of coverage would satisfy the letter of and policy behind
the statute and regulation.

C. THE INSURED’S WRITTEN OBJECTION DOES NOT NEED TO BE ATTACHED
TO THE POLICY

{25} We also disagree with Appellants’ contention that the written rejection itself must be
attached to the policy in order for rejection to be effective. It is correct that the automobile liability
policy must contain some evidence of the insured’s rejection in order to satisfy 13.12.3.9 NMAC.
Romero, 111 N.M. at 156, 803 P.2d at 245. However, we note that the command of the regulation
is phrased in the form of a disjunctive: the rejection “must be endorsed, attached, stamped or

2
It seems to have appealed to insurers as well. Although it is not a matter of record
in this case, we observe that many UM/UIM cases suggest that the insurance industry
already has adopted a practice of seeking signed rejections. See, e.g., Kaiser, 1996-NMSC-
050, ¶ 2 (explaining that the plaintiff signed a UM/UIM rejection notice from his insurer);
Romero, 111 N.M. at 155, 803 P.2d at 244 (reproducing the rejection form, including space
for a signature, used by the plaintiff’s insurer); Vigil, 1997-NMCA-124, ¶ 9 (detailing the
signed rejection form obtained from the plaintiff). Indeed, in Marckstadt, Pacific obtained
a signed waiver from Lockheed after the accident at issue.

11
otherwise made a part of the policy of bodily injury and property damage insurance.” 13.12.3.9
NMAC (emphasis added). Thus, although the sufficiency of a particular form of endorsement or
attachment might be subject to debate, we cannot hold that the regulation may only be satisfied by
the attachment of the written rejection provided to the insurer by the insured. Certainly 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.” Romero, 111 N.M. at 156, 803 P.2d at 245.

{26} To summarize, we hold that in order to exclude UM/UIM coverage from an automobile
liability policy pursuant to Section 66-5-301 and 13.12.3.9 NMAC, the insurer must obtain a written
rejection from the insured, but that the written rejection need not be signed or attached to the policy.
Obviously the insurer may attach the written rejection itself to the policy and be in compliance with
the regulation. Alternatively, once the insurer obtains a written rejection from the insured, it may
choose not to attach the written rejection itself to the policy. However, we reiterate our holding in
Romero that 13.12.3.9 NMAC 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.

D. OUR HOLDING APPLIES TO THIS CASE

{27} Appellees suggest that even if this is our holding, the circumstances of the cases at bar should
lead us to draw exceptions for three reasons. First, Appellees argue that because the insurers and
the insureds agree that the insureds intended to reject UM/UIM coverage, the employees, as third-
party beneficiaries, should not be permitted to seek to modify the terms of their agreement.
Appellees point to Jaramillo v. Providence Washington Insurance Co., in which we wrote that “[i]n
cases in which the question is whether a third-party beneficiary is entitled to coverage, if the
premium-paying insured and the insurer agree as to what they intended, that should be controlling.”
117 N.M. 337, 341-42, 871 P.2d 1343, 1347-48 (1994). We do not believe this statement applies
to the case at bar. In Jaramillo, two of the plaintiffs, employees of the insured, claimed that they
should be able to stack UM bodily injury coverages under their employer’s policy. Id. at 339, 871
P.2d at 1345. The policy only allowed class-one insureds to stack coverage. Id. at 340-41, 871 P.2d
at 1346-47. The district court granted summary judgment in these plaintiffs’ favor, ruling that the
policy’s definition of who was a class-one insured was ambiguous as a matter of law and must be
construed in favor of coverage. Id. at 339, 871 P.2d at 1345. We reversed, holding that ambiguities
did not need to be construed in favor of coverage by “a third party who is not expressly named as
the insured or who is not an acknowledged family member[.]” Id. at 341, 871 P.2d at 1347. To the
contrary, if the premium-paying insured and insurer agree that the third party was not intended to
be included under the provision allowing stacking, their understanding should control. Id. at 342,
871 P.2d at 1348.

{28} The case before us is distinguishable from Jaramillo. Here, there is no dispute that
Appellants were the intended beneficiaries of liability coverage under their employers’ policies. The
only dispute is whether this coverage included UM/UIM coverage. Unlike the availability of policy
stacking in Jaramillo, the question of the presence of UM/UIM coverage under an automobile
liability policy is not a question of intent. Section 66-5-301 and 13.12.3.9 NMAC provide that

12
automobile liability policies shall contain UM/UIM coverage in the absence of an appropriate
rejection, irrespective of the parties’ intent. Romero, 111 N.M. at 155, 803 P.2d at 244. Appellants
recognize this principle and argue that rejection was ineffective, and therefore, as a matter of law,
their coverage includes UM/UIM coverage. Unlike Jaramillo, in which the central question of the
case had to be settled by referring to the parties’ intent in signing the contract, here, the question of
the intent to include or not to include the third-party beneficiaries in UM/UIM coverage is irrelevant
because the issue is whether the rejection, if any, conformed with the requirements of the statute and
the regulation. Even if the statutory or regulatory mechanisms are not perfectly adapted to their
goals–risking the possibility that fully knowing rejections might be found technically inadequate–we
cannot subvert the clear mandate of the regulation. Further, to hold as Appellees suggest would
benefit them at the cost of potentially harming other employees such as Appellants who could be
exposed to fraud. Moreover, it would undermine what we perceive to be the effort of both the
Legislature and the superintendent of insurance to impose more uniformity on often-confusing
insurance agreements.

(29} In a second argument for an exception from our holding, Appellees contend that Lockheed
and Capitol, as sophisticated commercial parties, should not be held to the same standards as
individual policyholders. We cannot draw such a distinction here. Appellees contend that Rehders
v. Allstate Insurance Co., 2006-NMCA-058, 139 N.M. 536, 135 P.3d 237 stands for the proposition
that New Mexico courts apply a different, more stringent standard in cases involving commercial
policies. We need not determine whether Rehders stands for such a broad proposition here because
it is wholly inapplicable to the issue before us. In Rehders, the Court of Appeals construed a
corporate policy to determine whether the son of the sole shareholders of the named insured
corporation was a class-one insured. Id. ¶¶ 1, 15-18. Here, we are not at all concerned with
interpreting language in the relevant policies. Rather, we are concerned with legislative intent and
must construe Section 66-5-301 and 13.12.3.9 NMAC. Because neither of these provisions contains
any hint of differing standards for commercial, as opposed to individual, policies, we decline
Appellees’ invitation to interpret their policies more strictly against the insureds. Moreover, the
regulation applies to the insurer, not the insured. Therefore, we cannot concern ourselves with the
sophistication of the insured when the regulation imposes burdens on the insurer and not the insured.

{30} Finally, Appellees argue that even if our holding does apply to situations such as the case
at bar, it should be applied prospectively. Appellees contend that because various federal courts and
the lower court in this case have drawn different conclusions on this question, compare Marckstadt,
2008-NMCA-138, with Farm Bureau Mut. Ins. Co. v. Jameson, 472 F. Supp. 2d 1272 (D.N.M.
2006), our holding is not easily foreshadowed such that it would be unfair to apply it to existing
policies. Appellees point to Montano, in which we modified the judicially-created doctrine of
stacking to require written rejection of stacked coverage where previously we had utilized a case-by-
case ambiguity analysis. 2004-NMSC-020, ¶ 17. We observed that this “new, and not easily
foreshadowed, aspect to our jurisprudence” could not equitably be applied to the insurer in that case
“before it has had an opportunity to alter its policy language[.]” Id. ¶ 22.

{31} We do not believe that Montano’s reasoning applies here. Generally speaking, there is a

13
presumption that the holding of a civil case will apply retroactively. Beavers v. Johnson Controls
World Servs., Inc., 118 N.M. 391, 398, 881 P.2d 1376, 1383 (1994). We are empowered to limit a
holding to prospective application depending on the weight of the following factors:

First, the decision to be applied nonretroactively must establish a new
principle of law, either by overruling clear past precedent on which litigants may
have relied, or by deciding an issue of first impression whose resolution was not
clearly foreshadowed.

Second, it has been stressed that we must weigh the merits and demerits in
each case by looking to the prior history of the rule in question, its purpose and
effect, and whether retrospective operation will further or retard its operation.

Finally, we have weighed the inequity imposed by retroactive application, for
where a decision of this Court could produce substantial inequitable results if applied
retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’
by a holding of nonretroactivity.

Id. (internal quotation marks, citations, and alterations in original omitted). We do not believe that
these factors weigh in favor of prospectivity. First, the holding we announce today is not clearly a
new rule: it does not supplant any prior rule, and although it is an issue of first impression, we
believe that as a matter of statutory and regulatory interpretation drawing on explicit language in the
relevant provisions, the parties could have foreseen this result. Indeed, although it is not a matter
of record how common the practice already may be, we have observed that even in Marckstadt,
Pacific did obtain a written, signed waiver from Lockheed–although it was too late to affect its
coverage of Marckstadt. We also noted in footnote 2 that, at least since 1990, insurance companies
have not only obtained written rejections, they have obtained signed, written rejections, which
suggests either that the superintendent of insurance codified an existing practice or insurance
companies understood perfectly that written rejections are required in New Mexico. Of course, even
if the outcome of our decision was difficult to foresee, there could not have been any reliance on a
different rule, since none had been announced by a New Mexico court in any other case. See id. at
399, 881 P.2d at 1384 (discussing reliance as a factor in determining the retroactive application of
a new rule of law). Second, the purpose of the rule we recognize today is to promote the
Legislature’s remedial policy of expanding UM/UIM coverage by assuring that rejections are
knowingly and intelligently made. See Romero, 111 N.M. at 156, 803 P.2d at 245. The Legislature
and the superintendent of insurance intended their rules to take effect immediately, and we will not
second-guess them. Third, we do not perceive any serious risk of inequity. There is no hardship
in applying a foreseeable rule, and to the extent that our holding was difficult to anticipate, the
hardship we cause to insurance companies seems equal to the hardship we would cause to many
rightful beneficiaries of UM/UIM coverage should we apply our rule prospectively. See Padilla v.
Wall Colmonoy Corp., 2006-NMCA-137, ¶ 22, 140 N.M. 630, 145 P.3d 110 (acknowledging that
in determining the retroactive application of a decision that changes the law, the Court should
evaluate the potential unfairness to the defendants, the plaintiffs, and potential future plaintiffs). For
these reasons, we decline to limit our holding to prospective application.

14
III. CONCLUSION

{32} Under Section 66-5-301 and 13.12.3.9 NMAC, insurance companies must obtain written
rejections of UM/UIM coverage from the insured to exclude such coverage from automobile liability
insurance policies. However, such waivers need not be signed or attached to the policy to be
effective. We therefore answer the certified question in Federated partly in the affirmative and
partly in the negative. We reverse the trial court’s grant of summary judgment in Marckstadt and
remand to the district court to determine whether the insured rejected UM/UIM coverage in writing.

{33} IT IS SO ORDERED.

____________________________________
EDWARD L. CHÁVEZ, Chief Justice

WE CONCUR:

____________________________________
PATRICIO M. SERNA, Justice

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
CHARLES W. DANIELS, Justice

RICHARD C. BOSSON, Justice, dissenting

BOSSON, Justice (dissenting).

{34} The Tenth Circuit certified the following question to us: “For a valid rejection of UM/UIM
coverage under New Mexico law, must that rejection be written, signed by the insured, and attached
to the policy?” Plaintiffs have urged us to answer in the affirmative. In other words, the rejection
would have to be in writing, signed by the insured, and physically attached to the policy. The
majority opinion comes to a different conclusion with which I partially agree. Correctly, the
rejection does not have to be signed by the insured or attached to the policy because nothing in the
statute or the insurance regulation requires either. And no opinion from this Court has ever required
a signature or an attachment. In fact, physical attachment is only one of several ways to make the
rejection a part of the policy; the policy can just say “UM coverage rejected” without any attachment
and that should take care of it.

{35} Our only dispute now reduces to whether the rejection must not only be made a part of the
written policy (with which we all agree), but also whether that rejection must appear in a prior
writing that precedes the policy. The majority opinion now requires, for the very first time, two

15
writings–a kind of belt and suspenders approach. First, the insured must indicate in writing (but not
necessarily sign it) his or her decision to reject UM coverage, and then, independently, the policy
must also state the fact of rejection.

{36} In our two consolidated cases, of course, the decision to reject is quite clearly stated in the
policy, and there is no dispute about this. This is not simply a case of the policy not including or
not mentioning UM coverage or being otherwise vague; both policies affirmatively reject UM
coverage for their employees just as the law allows. All agree on this record that such a choice
represented a conscious decision by the employer—the insured party and the owner of the
policy—to reject UM coverage for employees, however irresponsible that decision may have been.

{37} What is not clear, however, is whether the insurer also issued a separate, initial document
preceding the policy in which the employer first indicated its desire to reject. I suspect not, given
that these employers are both commercial entities, likely accustomed to conducting their insurance
business through agents, with advice of counsel, and in a less structured manner. The salient point,
however, is that in both cases, the employer as insured stands behind its decision to reject coverage.
Both insureds acknowledge their choice to reject UM coverage for their employees, a decision which
each insured asks this Court to respect.

{38} If freedom of contract means anything, it must be that—absent a statutory requirement of
UM coverage—corporate employers like Lockheed and Capitol Motors are free to make a knowing,
informed business decision about who not to insure and when not to insure them. They are free to
choose. For as long as we have been a state, New Mexico has recognized the right of parties to
contract as they see fit, especially in their business affairs. It is part of the common law we
inherited, first from England, and then from 19th Century America before statehood. Freedom to
contract remains firmly rooted in our jurisprudence. As a judiciary, exercising proper restraint, we
do not interfere with such business decisions without clear guidance from either the legislature or
an authorized executive agency.

{39} Without much hyperbole, the freedom to contract is part of fundamental personal liberty.
It cuts against that notion of liberty to be told that, although the law allows a company to reject UM
insurance coverage for its employees and the company does so openly and knowingly, the courts
are now going to countermand that business decision. It seems all the more offensive to interfere
simply because of a lack of a second writing—one the company did not need, did not ask for, and
still does not ask for today. It is a writing that would not have made any difference in the context
of these two cases. The majority does not dispute the futility of such an exercise in these two cases,
a futility which Judge Parker acknowledges—and on which he appropriately relies—in the Capitol
Motors case. If ever there was a hyper-technicality, this seems like one.

{40} The majority takes the position that the insured’s intent is irrelevant; it boils down instead
to the supposedly “clear” language of the statute and insurance regulation. The statute, of course,
makes no mention of a writing; it only says the insured may reject UM coverage without any
mention of the means of rejection—in writing, verbally, or I suppose by any other method.
Curiously, the regulation says: “The rejection [of UM coverage] as required in writing by the

16
provisions of Section 66-5-301 must be endorsed, attached, stamped or otherwise made a part of the
policy.” Since the statute clearly does not require any such writing, we are left in some doubt as to
what the regulation means. What is clear, however, is that the rejection must thereafter be made part
of the written insurance policy, one way or the other. If there is a written rejection, it can be
attached to the policy or duplicated within the policy. If the rejection is not in writing, like these two
cases, then it must appear in writing as part of the policy.

{41} Our case law attempts to fill the gap left by such an awkwardly phrased regulation. Time
after time, we have said that an initial rejection of UM coverage, even if signed by the insured, is
not good enough; it must thereafter appear in, or be attached to, or “otherwise made a part of” the
written policy. The insured must be given a second chance to reflect over a decision to reject UM
coverage. See Romero v. Dairyland Ins. Co., 111 N.M. 154, 156, 803 P.2d 243, 245 (1990) (“Upon
further reflection, consultation with other individuals, or after merely having an opportunity to
review one’s policy at home, an individual may well reconsider his or her rejection of uninsured
motorist coverage.”). Fair enough. And since context is everything in the law, just who are we
trying to protect with this construction? More to the point, who is the Insurance Superintendent
trying to protect by affording the insured this second chance? Josie Romero comes immediately to
mind.

{42} Upon reading the Romero opinion, one cannot forget the plight of poor Josie Romero, a 59-
year-old widow, purchasing insurance for the first time, who did not even have a driver’s license.
Although she had rejected UM coverage in writing, it was not made part of the policy, and she
apparently had no independent understanding of what she had done. Correctly, the opinion makes
reference to the need of insureds like Josie Romero who are “unsophisticated in business affairs,”
those who need our help and the help of the Insurance Superintendent. Id. at 159, 803 P.2d at 248.
I agree. It takes no great leap to conclude that Section 66-5-301 and the insurance regulation were
written with the average individual and family in mind. The Insurance Superintendent was likely
preoccupied with helping those who need our help, not those who do not.

{43} Justice Ransom’s opinion in Romero makes clear that the requirement of a writing is not an
end in itself but is designed to serve a remedial purpose: “so as to clearly and unambiguously call
to the attention of the insured the fact that such coverage has been waived.” 111 N.M. at 156, 803
P.2d at 245. The purpose of the regulation is to protect those who are easily preyed upon like Josie
Romero. I do not believe Justice Ransom’s intent, or his language, can be read to apply to every
case, regardless of the circumstances, regardless of the need.

{44} Importantly, I do not read Justice Ransom to negate an insured’s choice when the insured,
like Lockheed and Capitol Motor, seek to enforce that choice, not overturn it. Most of the case law
on which he relies simply requires one written rejection, usually the policy itself if the initial
rejection was oral. What purpose, other than to set a trap for the unwary, would there be in requiring
not one but two writings, “so as to clearly and unambiguously call to the attention of the insured,”
when a corporate “insured” like Lockheed or Capitol Motor is fully aware of “the fact that such
coverage has been waived?”

17
{45} This is indeed the point of friction. Most of our UM jurisprudence interpreting this statute
and the insurance regulation derives from people like Josie Romero who truly need the “belt and
suspenders” approach. Implicit in our opinions is the plight of the individual insured trying to come
to terms with indecipherable insurance jargon and policies as dense as any jungle. Even when faced
with a knowledgeable insured, we allowed the insured to rescind a rejection that had never found
its way into the written policy. Kaiser v. DeCarrera, 1996-NMSC-050, 122 N.M. 221, 923 P.2d
588.

{46} We have never, however, forced UM coverage upon an insured who had rejected coverage
initially, that rejection appeared in the policy, and the insured went to court to defend that rejection.
None of our case law has ever applied the insurance regulation to businesses like Lockheed and
Capitol Motors who made an informed choice, knew what they were doing, put that choice in the
policy, and now seek to ratify not abandon that choice in this litigation. None of our case law has
ever said that, even though the rejection is clearly “part of the policy” as the regulation requires, the
courts will vitiate that choice because (1) it was not preceded by an additional writing never before
required, and (2) an employee who was not a party to the insurance contract now claims rights under
the contract that his employer has expressly disavowed.

{47} The Legislature or the Insurance Superintendent could make employees mandatory third-
party beneficiaries of their employers’ insurance contracts. Employees could be given a place at the
table when their employers negotiate insurance coverage to benefit the company. Labor unions
might negotiate for such access to protect their rank and file. All this is possible, and perhaps
desirable, but completely missing from this case. The Legislature or the Insurance Superintendent,
not this Court, should make that decision.

{48} When the employer knowingly decides not to purchase UM coverage for its employees, this
Court has respected that choice. In Lucero v. New Mexico Public School Insurance Authority, 119
N.M. 465, 465, 892 P.2d 598, 598 (1995), a school employee driving a vehicle owned and insured
by the school district was injured by an uninsured driver. She sued for uninsured motorist coverage
from the school district. The school district, as the insured, had excluded employees from the
policy’s UM coverage, though it is not clear from the opinion whether that rejection was in a
separate writing or verbally. It did not seem to make any difference to this Court.

{49} Recognizing that the named insured—the employer—had the right under New Mexico law
to reject UM coverage, including for its employees, this Court affirmed that choice, noting that both
the insured (the school district) and the insurer agreed (shared the intent) that employees were not
included within the policy’s UM coverage. Justice Franchini wrote (Justices Frost and Minzner
concurring) that, “When both the insurance company and the named insured agreed as to the identity
of the third-party beneficiaries [employees] of an insurance contract purchased by the named
insured, the court will enforce that interpretation of the contract.” Id. at 466, 892 P.2d at 599.
Archunde v. International Surplus Lines Insurance Company, 120 N.M. 724, 729, 905 P.2d 1128,
1133 (Ct. App. 1995), although factually more complex, came to a similar conclusion in which the
named insureds, the school bus company and the school district, had rejected UM coverage for their
employees. See also Jaramillo v. Providence Washington Ins. Co. 117 N.M. 337, 341-42, 871 P.

18
2d 1343, 1347-48 (1994) (Ransom, J.) (“In cases in which the question is whether a third-party
beneficiary is entitled to coverage, if the premium-paying insured and the insurer agree as to what
they intended, that should be controlling.”).

{50} In short, I would respect the clear, unambiguous, and uncontradicted intent of all parties to
these insurance contracts to do as the law allows, and omit UM coverage for their employees. Even
if I could be persuaded differently, I would still opt not to apply this opinion to the two employers
before us. It seems unfair to do so in this instance. I cannot agree that this opinion was
“foreseeable” to anyone who read our prior cases. Lockheed, in particular, appears to have done its
homework and should not be faulted for relying on case law that emphasized inclusion of the
rejection in the written policy, not in a second, separate writing. It is easy enough to say now that
two writings have always been required. Suffice it to say that in these two consolidated cases alone,
both district judges and a unanimous panel of the New Mexico Court of Appeals thought otherwise.
I would give both Lockheed and Capitol Motors the benefit of considerable doubt as to any such
requirement and apply our holding prospectively only.

____________________________________
RICHARD C. BOSSON, Justice

Topic Index for Markstadt v. Lockheed Martin Corp., Nos.31,258/31,447

AE APPEAL AND ERROR
AE-CT Certification
AE-RM Remand

CN CONTRACTS
CN-CG Contracts, General
CN-TB Third Party Beneficiary

JM JUDGMENT
JM-SJ Summary Judgment

IN INSURANCE
IN-IC Insurance Contract
IN-ID Insurance Code
IN-RI Regulation or Insurance
IN-MV Motor Vehicle Insurance
IN-UM Uninsured or Underinsured Motorist

ST STATUTES
ST-IP Interpretation

19