United States District Court, D. New Mexico
CHARTER OAK FIRE INSURANCE COMPANY, TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, Plaintiffs,
STEPHANIE HOVLIK, as Personal Representative of the Estate of Salvador Garcia, ROBERT A. GARCIA, GABRIELLA P. GARCIA, and FRANCISCO GARCIA, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS'
MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT
MATTER comes before the Court upon a Motion for Summary
Judgment by Defendants, filed on June 30, 2017 (Doc. 33), and
a Motion for Summary Judgment by Plaintiffs filed on October
25, 2017 (Doc. 51). Having reviewed the parties'
pleadings and the applicable law, the Court finds that
Plaintiffs' motion is well taken and, therefore, is
are two insurers who issued two separate policies to Don
Curry Housemoving (the “Insured”). Travelers
Property Casualty Company of America
(“Travelers”) issued a general liability policy,
and Charter Oak Fire Insurance Company (“Charter
Oak”), an affiliate of Travelers, issued an automobile
policy. Plaintiffs filed this declaratory action pursuant to
28 U.S.C. § 2201(a) seeking to determine whether Charter
Oak's liability under an insurance policy is limited to
$500, 000, or whether the policy should be reformed to meet
minimum statutory liability amounts in New Mexico's Motor
Carrier Act. Plaintiffs further seek a declaration whether an
automobile exclusion in the Travelers general liability
policy is void.
Defendants are the representative and family members of
Salvador Garcia, a victim of a drunk driving accident
involving Randolph Curry, an employee of the insured. The
insured, Don Curry Housemoving, is not a party to this case.
The parties have apparently agreed that this accident is
covered by the Charter Oak policy and have settled the issue
of liability. They seek solely to determine the extent and
amount of coverage.
parties have filed cross-motions for summary judgment. The
Court will combine the facts presented by the parties and
where necessary, point out those parts that are contested.
The parties generally do not dispute the facts but rather
contest the relevancy or legal significance of those facts.
The Court will omit facts that are redundant, irrelevant,
unsupported, or conclusory.
March 22, 2012, on NM 337 in Bernalillo County, New Mexico,
Salvador Garcia was killed in a collision with Randolph Curry
(the “Collision”). At the time, Randolph Curry
was an employee of Don Curry Housemoving and was driving
drunk. The parties stipulated that Randolph Curry was acting
in the scope of his employment at the time of the Collision.
time of the Collision, Randolph Curry was driving his
personal 2004 GMC pickup. National General Insurance Company,
a GMAC company, had a policy in effect insuring the 2004 GMC
pickup. This policy provided liability coverage in the amount
of $50, 000.00 per person and $100, 000 per accident. GMAC
paid the $50, 000 policy limit to Defendants.
Defendants in this action filed a lawsuit against Randolph
Curry; Cindy Dale, as Trustee of the Estate of Don C. Curry
d/b/a Curry Housemoving; Terry A. Curry; Christopher J.
Curry; and Freeway Liquors, Inc., in the First Judicial
District Court, County of Santa Fe, State of New Mexico, Case
No. D-101-CV-2015-00695, seeking to recover damages for the
death of Salvador Garcia as a result of the Collision.
Travelers and Charter Oak insured Don Curry Housemoving's
structural moving operations, from which Don Curry
Housemoving reported it was earning $135, 000 per year.
Oak issued a commercial automobile liability insurance policy
to Don Curry Housemoving, policy number BA-4a158207-11-GRP,
with effective dates of July 20, 2011 to July 20, 2012, which
has a liability coverage limit of $500, 000.00 (the
“Charter Oak Policy”)
issued a commercial general liability insurance policy to Don
Curry Housemoving (hereafter, the “Insured”),
policy number 660-4A856704-TIL-11, with effective dates of
July 20, 2011 to July 20, 2012, which has a liability
coverage limit of $1, 000, 000.00 (the “Travelers
general liability policy”).
insurance policies issued by Travelers and Charter Oak were
arranged by a broker, Maguire Agency. Maguire Agency, and Charter
Oak, knew they were insuring structural moving operations.
Oak issued insurance cards to the Insured stating:
“[t]he Vehicle described below is covered by a
liability policy that meets New Mexico's insurance
requirements.” The 2004 GMC pickup was not listed.
October 3, 1996, Insured was issued a Warrant for
Transportation Services as an intrastate motor carrier of
property, which remained in effect through the date of the
Collision. The warrant specified “transportation of
general commodities between points and places throughout the
state of New Mexico.” The commodity description in the
warrant provided: “transportation of undismantled
houses, buildings and structures of every kind and character,
from points and places in the state of New Mexico to points
and places in the state of New Mexico.” The warrant was
subject to revocation in 2014.
was never categorized by the New Mexico Public Regulation
Commission as a motor carrier of household goods and was
never issued a certificate to that effect.
Travelers general liability policy contains an exclusion for
bodily injuries arising out of the use of an
“auto.” Auto means “a land motor vehicle,
trailer or semitrailer designed for travel on public
roads.” The exclusion provides as follows:
This insurance does not apply to:
g. Aircraft, Auto Or Watercraft
“Bodily injury” or “property damage”
arising out of the ownership, maintenance, use or entrustment
to others of any aircraft, “auto” or watercraft
owned or operated by or rented or loaned to any insured. Use
includes operation and “loading or unloading”.
This exclusion applies even if the claims against any insured
allege negligence or other wrongdoing in the supervision,
hiring, employment, training or monitoring of others by that
insured, if the “occurrence” which caused the
“bodily injury” or “property damage”
involved the ownership, maintenance, use or entrustment to
others of any aircraft, “auto” or watercraft that
is owned or operated by or rented or loaned to any insured.
amount of liability coverage provided by the Charter Oak
Policy, $500, 000.00, was the amount requested by the
Insured. After receiving a quote for an auto policy with
liability limits of $750, 000.00, the Insured requested that
the automobile liability limit be lowered to $500, 000.00.
Plaintiffs assert in argument that Charter Oak initially
offered a $750, 000 policy, but there is no evidence
supporting that assertion. Instead, there is evidence that
Bituminous Insurance Company (“Bituminous”)
offered a $750, 000 policy.
did not request that Charter Oak or Travelers make a filing
with the New Mexico Public Regulation Commission, or any
other regulatory agency, in connection with its request for
insurance. In its application, the Insured was asked whether
any filings were necessary to comply with state or federal
regulatory requirements. Specifically, the applications asked
“ARE ICC, PUC or OTHER FILINGS REQUIRED?” The
Insured answered “no.” It appears to be
undisputed that Charter Oak did not file a Uniform Form E,
which certifies to New Mexico that the policy met the
requirements of the motor carrier statute and associated
Curry Housemoving was insured by Bituminous in two separate
policies, one from September 14, 2010 to September 13, 2011,
and one from February 1, 2011 to February 1, 2012, for $750,
000. Bituminous filed a certificate of liability insurance
(Uniform Form E) with the New Mexico Public Regulation
Commission. This certificate of liability insurance was on
file with the Public Regulation Commission at all relevant
times. A cancellation form was not filed with the Public
Regulation commission until March 6, 2017.
of these filings by Bituminous, Plaintiffs assert that at the
time the application was submitted by the Insured to Charter
Oak, the Insured was in full compliance with the New Mexico
financial responsibility requirements. Defendants assert
there is no evidence that Charter Oak knew about these
filings or relied on them. While Bituminous' certificate
of liability insurance was on record as described, the Court
does not rule on any legal implications thereto.
asserted for the first time in a reply that Charter Oak did
not advise the Insured that the limits were deficient.
Defendants also later asserted this in a response to
Plaintiffs' motion, but did not set this out as a
separate additional fact that could be rebutted or
disputed. Therefore, the Court will not consider
Oak has paid to Defendants the $500, 000 liability limit in
the Charter Oak Policy, and the parties agreed to proceed
with this declaratory judgment action to resolve remaining
disputes regarding the extent of insurance coverage.
judgment is appropriate where no genuine issues of material
fact exist and the moving party is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(c). Rule 56(a) of the Federal
Rules of Civil Procedure provides that “[t]he court
shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). Where there is an absence of evidence to
support the nonmoving party's case, summary judgment is
appropriate. See Bacchus Indus., Inc. v. Arvin Indus.,
Inc., 939 F.2d 887, 891 (10th Cir. 1991). A genuine
issue of fact is one that “can be resolved only by a
finder of fact because [it] may reasonably be resolved in
favor of either party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). Importantly, summary
judgment is appropriate “unless there is ...