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Bhasker v. Kemper Casualty Insurance Co.

United States District Court, D. New Mexico

January 10, 2018

HELEN BHASKER, Plaintiff,
v.
KEMPER CASUALTY INSURANCE COMPANY; UNITRIN SPECIALTY FINANCIAL INDEMNITY COMPANY; FINANCIAL INDEMNITY COMPANY; ELITE FINANCIAL INSURANCE and NOELIA LUNA SUCET, Defendants.

          William Ferguson Adrian O. Vega Kedar Bhasker Will Ferguson & Associates Albuquerque, New Mexico Attorneys for the Plaintiff

          Kerri Lee Allensworth Alicia M. Santos O'Brien & Padilla, PC Albuquerque New Mexico Mark L. Hanover Dentons Chicago, Illinois Attorneys for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Defendant's Motion to Dismiss First Amended Complaint and Memorandum of Law in Support, filed April 28, 2017 (Doc. 15) (“MTD”). The Court held a hearing on July 24, 2017. The primary issues are: (i) whether New Mexico's filed rate doctrine bars Plaintiff Helen Bhasker's negligence claims, claims under New Mexico's Unfair Practices Act, N.M. Stat. Ann. § 57-12-1 (“UPA”) violations, claims under New Mexico's Unfair Insurance Practices Act, N.M. Stat. Ann. § 59A-16-1 (“UIPA”), and claims of breach of contract alleging that Financial Indemnity Company (“Financial Indemnity”) sold her illusory underinsured motorist insurance (“UIM”); (ii) whether, if New Mexico applies the filed rate doctrine to consumer-protection claims against insurers, Bhasker can seek premium-based damages, which depends on whether Bhasker's UIM coverage was illusory; (iii) whether, if the UIM coverage is not illusory, Bhasker's claims fail as a matter of law, because the UIM coverage offers benefits in some situations; and (iv) whether the voluntary payment doctrine bars Bhasker's claims. The Court concludes that: (i) the filed rate doctrine does not bar Bhasker's claims, because the Supreme Court of New Mexico would not apply the filed rate doctrine to claims against insurers alleging unfair or deceptive business practices; (ii) even if New Mexico applied the filed rate doctrine to those claims, Bhasker and the proposed class could still seek premium-based damages, because the Supreme Court of New Mexico would determine that the UIM coverage was illusory in light of little coverage it provides; (iii) even if the UIM coverage is not illusory, Bhasker's claims may proceed, because they do not require that the UIM coverage be illusory; and (iv) the voluntary payment doctrine does not bar Bhasker's claims, because she alleges that she did not know all the material facts. Accordingly, the Court denies the MTD.

         FACTUAL BACKGROUND

         Bhasker contends that, “[b]ased on the information provided by the Defendant, ” she agreed to “pay a six-month premium for the State of New Mexico mandated minimum automobile bodily injury and uninsured/underinsured motorist coverage.” First Amended Class Action Complaint for Breach of Statutory, Common law, and Contractual Duties ¶ 30, at 5, filed March 23, 2017 (Doc. 12)(“Complaint”). According to Bhasker, her insurance policy features: (i) liability coverage on one vehicle for $25, 000.00 per person and $50, 000.00 per accident, per vehicle; and (ii) underinsured coverage on one vehicle for $25, 000.00 per person and $50, 000 per occurrence, per vehicle. See Complaint ¶¶ 42-43, at 7 (citing Coverage for 1995 Lexus LS 500 4D at 1 (Doc. 12-2)). Bhasker asserts that Financial Indemnity did not “fully inform” her that “a purchase of 25/50 underinsured coverage, when triggered by a crash with a tortfeasor who has 25/50 bodily injury liability limits, will result in a payment of premium for which no payment of benefits will occur . . . .” Complaint ¶ 48, at 8.

         Bhasker avers that, on June 24, 2015, she was driving eastbound on I-40 in Albuquerque, New Mexico, when another driver, Stephanie Martinez, “failed to stop for the traffic in front of her vehicle” and struck Bhasker's car in the rear, causing “serious bodily injuries and other damages.” Complaint ¶¶ 12-14, at 2-3. Bhasker asserts that Martinez “was an underinsured motorist at the time of the collision” as Bhasker's insurance policy and New Mexico law define the term. Complaint ¶ 17, at 3. Bhasker contends that she “received the full extent of liability coverage carried by Ms. Martinez, ” which was $25, 000.00. Complaint ¶ 18, at 3. Bhasker asserts that after the accident, Financial Indemnity provided a certified copy of a document summarizing her policy. See Complaint ¶ 38, at 6 (citing New Mexico Personal Auto Application at 1-4 (Doc. 12-1)(“Policy Application”)). Bhasker contends that the “certified copy of the [Policy Application] materially misrepresented the terms of [its] underinsured [motorist] coverage and did not contain clear, unambiguous language regarding the effects of New Mexico's underinsured coverage offset laws.” Complaint ¶ 39, at 6. Furthermore, Bhasker contends that the Policy Application's language is “deceptive and clearly ambiguous in that it states that the applicant may purchase underinsured coverage in excess of the bodily injury coverage limits, which is the opposite of the legislative intent” of N.M. Stat. Ann. § 66-5-301 and New Mexico case law. Complaint ¶ 40, at 6. Bhasker contends that Financial Indemnity's Policy Application

did not alert [her], nor make clear to the ordinary and similarly situated insured, the fact that the New Mexico offset law drastically and materially diminished payment of benefits arising from a covered occurrence under the policy. . . . Specifically, there is virtually no possible underinsured minimum limits claim available to the Plaintiff and other similarly situated members of the class.

Complaint ¶ 43, at 7. Bhasker avers that, when she, “through counsel, demanded Defendant provide [her] with underinsured benefits that Defendant solicited and for which the Plaintiff paid a premium, ” Financial Indemnity denied her claim for underinsured benefits. Complaint ¶ 44, at 7.

         Bhasker further contends that Financial Indemnity has “written direct premium automobile insurance to thousands of New Mexico residents and, from 2010-12-14, wrote direct premiums” around the United States totaling $1.09 billion. Complaint ¶ 22, at 4.

         PROCEDURAL BACKGROUND

         Bhasker originally brought this case in the Second Judicial District Court, County of Bernalillo, State of New Mexico. See Class Action Complaint for Breach of Statutory, Common Law, and Contractual Duties, filed in the Second Judicial District Court, County of Bernalillo, State of New Mexico (filed in state court on December 30, 2016), filed in federal court February 24, 2016 (Doc. 1-1)(“State Complaint”). Financial Indemnity removed the action to federal court on February 24, 2017. See Notice of Removal, filed February 24, 2017 (Doc. 1). Financial Indemnity removed the case pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332(d) (“CAFA”), because “this is a putative class action with more than 100 putative class members that seeks to recover more than $5, 000, 000.00.” Notice of Removal at 1. One week later, Financial Indemnity filed a Motion to Dismiss. See Defendant Financial Indemnity Company's Motion to Dismiss and Memorandum of Law in Support, filed March 2, 2017 (Doc. 4).[1]

         1. The Complaint.

         A few weeks later, Bhasker filed her Complaint on March 23, 2017. In her Complaint, Bhasker argues that Financial Indemnity[2] “failed to act honestly and in good faith when it solicited and sold superfluous and illusory minimal limits underinsured motorist coverage to their insureds (in whole or in part)” in violation of New Mexico law, “and/or they denied claims for the benefits of that coverage.” Complaint ¶ 1, at 1. Bhasker contends that, “[b]asically, there is no such thing as ‘minimum limits underinsured motorist coverage.'” Complaint ¶ 1, at 1. Bhasker asserts that she “brings this action on her own behalf, and on behalf of the many insured around the state who have been deceived by [Financial Indemnity's] practices.” Complaint ¶ 4, at 2. Bhasker contends that, before the accident, she had “properly paid a premium for automobile coverage under the Financial Indemnity Company auto insurance policy, ” and, therefore, “had a reasonable expectation” that she carried underinsured motorist coverage for “$25, 000.00 each person and $50, 000.00 each accident.” Complaint ¶ 19, at 3.

         Next, Bhasker asserts that the Supreme Court of New Mexico “established that underinsured coverage is superfluous when the tortfeasor and the injured driver both carry the statutory minimum of liability and underinsured coverage.” Complaint ¶ 23, at 4 (citing Progressive v. Weed Warrior, 2010-NMSC-050, ¶ 10, 245 P.3d 1209, 1213 (“Weed Warrior”).

         Bhasker then asserts that Financial Indemnity's insurance agents told her that she “must be insured for the state mandated minimum automobile bodily injury insurance coverage of $25, 000.00 per person and $50, 000.00 per accident.” Complaint ¶ 26, at 4. Bhasker also avers that Financial Indemnity used an “incorrect and inappropriate form from another state, ” which “included ambiguous language that Plaintiff could purchase underinsured coverage in excess of her selected liability coverage limits.” Complaint ¶ 27, at 4 (citing Policy Application at 1-4).

         Bhasker alleges that Financial Indemnity “misrepresented to [her] that she would benefit from underinsured coverage when they knew, or should have known, that the coverage was meaningless, ” and that Financial Indemnity made these misrepresentations “knowingly and willfully, with the intent to deceive and induce the Plaintiff in purchasing underinsured coverage.” Complaint ¶ 29, at 5.

         Bhasker contends that Financial Indemnity breached its duty to “fully inform Plaintiff what the monthly premiums would be for the next available tier of coverage.” Complaint ¶ 33, at 5. Bhasker states that she paid a $80.00 premium for bodily injury coverage and $54.00 for uninsured/underinsured (“UM/UIM”) coverage for a total of $134.00 “for minimal combined coverage, ” and that a “purchase of higher limits, for example, at a premium of $201 would yield a disproportionate underinsured indemnification to premium ratio of 308/1, when compared to the purchase of minimal combined coverage for virtually no underinsured indemnification.” Complaint ¶ 34, at 5-6.

         Bhasker argues that the Policy Application violated New Mexico law, because it “failed to state that underinsured coverage is illusory in the event of a covered occurrence . . . involving a minimally insured driver.” Complaint ¶ 32, at 5. Bhasker also asserts that Financial Indemnity breached its duty to “act fairly, honestly, and in good faith” when it (i) “failed to fully inform Plaintiff of illusory underinsured coverage with a disproportionate premium/indemnification ratio when compared to the next tier of available coverage”; and (ii) “materially misrepresent[ed] the terms of underinsured coverage.” Complaint ¶ 35, at 6.

         Bhasker alleges that, by “fail[ing] to offer their insured sufficient information and knowledge regarding the superfluous, illusory, and deceptive coverage, ” Financial Indemnity violated the New Mexico Unfair Practices Act, N.M. Stat. Ann. § 57-12-1 (“UPA”), the New Mexico Unfair Insurance Practices Act, N.M. Stat. Ann. § 59A-16-1 (“UIPA”), and “New Mexico common law.” Complaint ¶ 46, at 7. Relatedly, Bhasker asserts that, under New Mexico law, the “underinsured application, coverage, and the corresponding policy language must not be so complex such that a reasonable person would be unable to understand its full impact . . . .” Complaint ¶ 49, at 8 (citing King v. Travelers Ins. Co., 1973-NMSC-013, 505 P.2d 1226, 1232; Romero v. Dairyland Ins. Co., 1990-NMSC-111, ¶ 17, 803 P.2d 243, 248). Bhasker concludes that, because Financial Indemnity did not “fully inform [her] of the New Mexico offset law or that New Mexico is a ‘different state' during the application and policy underwriting stages, in a matter consistent with the requirements imposed by[] the UPA, the UIPA, and New Mexico common law, ” Financial Indemnity should compensate Bhasker for her injuries and/or actual damages sustained in the June 24, 2015 accident “via the underinsured benefits ($25, 000.00) for which she paid a premium.” Complaint ¶ 50, at 8.

         Bhasker then asserts that, because Financial Indemnity has deceived many other New Mexicans in the same way as it deceived her, the action is “properly maintainable as a class action pursuant to Rule 1-023 NMRA.” Complaint ¶¶ 53-54, at 9. Bhasker proffers a class definition:

All persons (and their heirs, executors, administrators, successors, and assigns) who, in the prior six years from the date of filing of this complaint, were a policyholder and/or insured, of a Motor Vehicle Policy issued by defendant where that policy did not and does not provide underinsured coverage paid for by the policyholder, and sold and solicited by the defendant, due to the application of an offset as set forth in NMSA 66-5-301, otherwise known as the New Mexico offset law or being a “difference state”. . . . Excluded from the Class are all present or former officers and/or directors of Defendant, the “Referees” for purposes of the Evaluation Appeal process set forth below, Class Counsel and their resident relatives, and Defendant's counsel of record and their resident relatives.

Complaint ¶¶ 54-55, at 9.

         Bhasker then enumerates specific claims. See Complaint ¶¶ 65-109, at 13-21. First, Bhasker argues that Financial Indemnity was negligent, because Financial Indemnity breached its duty to ensure that she and other class members “would be offered and obtain the maximum benefit of underinsured coverage and would not be sold underinsured coverage.” Complaint ¶ 66, at 13. See Complaint ¶¶ 65-70, at 13-14. Moreover, Bhasker asserts that it was “reasonably foreseeable” that the underinsured coverage was, “in large part, ” illusory and that a “reasonably prudent insurance company exercising ordinary care” would not sell illusory coverage. Complaint ¶ 68, at 14. Bhasker contends that Financial Indemnity's negligence means that it is liable for actual damages as well as punitive damages for its actions that were “willful, reckless and wanton, and in bad faith.” Complaint ¶¶ 67-70, at 14.

         Second, Bhasker argues that Financial Indemnity violated the UPA.[3] See Complaint ¶¶ 71-75, at 14-16. She argues that Financial Indemnity “failed to deliver the quality or quantity of services, ” because (i) Financial Indemnity did not provide sufficient information to “fully inform a reasonably prudent person charged with the task of purchasing underinsured insurance, which Plaintiff was under the reasonable belief that such coverage existed”; and (ii) did not pay benefit claims. Complaint ¶ 73, at 15.

         Third, Bhasker alleges that Financial Indemnity violated the UIPA. See Complaint ¶¶ 76-96, at 16-17. Bhasker contends that Financial Indemnity violated its “duties of good faith, fair dealing, and the accompanying fiduciary obligations.” Complaint ¶ 80, at 16. Specifically, Bhasker asserts that Financial Indemnity: (i) misrepresented its policy's terms; (ii) did not disclose material facts; (iii) took advantage of Bhasker's lack of knowledge and experience; (iv) committed negligence per se by violating its statutory duties under the UIPA; (v) did not “acknowledge and act reasonably and promptly to Bhasker's communications regarding her claims, in violation of N.M. Stat. Ann. § 59A-16-20(B)”; (vi) did not “adopt and implement reasonable standards for the prompt investigation and processing” of Bhasker's claims, in violation of N.M. Stat. Ann. § 59A-16-20(C); (vii) did not “properly affirm and pay the coverage for claims” within a reasonable period of time, in violation of N.M. Stat. Ann. § 59A-16-20(D); (viii) did not act in good faith to promptly and fairly settle Bhasker's claims, in violation of N.M. Stat. Ann. § 59A-16-20(E); (ix) compelled Bhasker to sue Financial Indemnity because Financial Indemnity offered “substantially less (i.e. nothing)” than the amount owed to Bhasker, in violation N.M. Stat. Ann. § 59A-16-20(G); and (x) did not promptly explain why it denied her claims, in violation of N.M. Stat. Ann. § 59A-16-20(N). Complaint ¶¶ 83-94, at 17-18. Bhasker contends that she and other class members are entitled to attorneys' fees and costs pursuant to N.M. Stat. Ann. § 59A-16-30, plus actual damages. See Complaint ¶ 96, at 18.

         Fourth, Bhasker asserts that Financial Indemnity breached their contract by not providing underinsured coverage or, alternatively, by improperly denying underinsured benefit claims. See Complaint ¶¶ 91-95, at 18-19. Bhasker contends that she and other class members are entitled to “actual damages, including but not limited to, underinsured coverage in an amount equal to liability limits and may be entitled to payment of underinsured benefits, or payment of additional underinsured benefits accordingly and to damage to Plaintiff and the Class in an amount to be proven at trial.” Complaint ¶ 95, at 19.

         Fifth, Bhasker asserts that Financial Indemnity breached their contract, and the covenant of good faith and fair dealing. See Complaint ¶¶ 96-102, at 19-20. Bhasker contends that Financial Indemnity breached the implied covenant of good faith and fair dealing by, e.g., denying coverage, not investigating her claim promptly, and refusing to resolve her claim. See Complaint ¶ 100(a)-(f), at 20.

         Sixth, Bhasker seeks injunctive relief preventing Financial Indemnity from continuing practices that violate the duties, contractual, and legal obligations” owed to her and the class, Complaint ¶ 104, at 21, and a declaratory judgment that “establish[es] the respective rights and obligations of the parties with respect to the claims set forth herein, ” Complaint ¶ 108, at 21.

         Seventh, Bhasker argues that the Court should award punitive damages, because Financial Indemnity acted in “willful, wanton, and in reckless disregard” of Bhasker's and the proposed class' rights. Complaint ¶ 109, at 21.

         Bhasker concludes by summarizing her requests:

A. Certifying this action as a class action pursuant to Rule l-023(A) & (B) NMRA;
B. Awarding compensatory damages to the Plaintiff and the Class for the damages done to them by Defendant in an amount to be proven at trial;
C. Awarding punitive damages to the Plaintiff and the Class in an amount sufficient to punish Defendant for their willful and wanton conduct, and to deter them, and others similarly situated, from such conduct in the future in an amount to be proven at trial;
D. Awarding the Plaintiff and the Class damages from Defendant as a result of its violations of UIPA, in an amount to be determined at trial and for attorneys' fees and costs;
E. Awarding treble damages in accordance with the UPA which will deter Defendant and others from such unfair trade practices and wrongful conduct in the future and will punish them or the conduct set forth in this Complaint;
F. Granting a declaratory judgment that establishes the rights and obligations of the parties with respect to the claims set forth herein;
G. Granting injunctive relief as may be deemed proper by the Court to require Defendant to desist in the wrongful actions described herein;
H. Awarding the Plaintiff and the Class their costs and expenses incurred in this actions, including reasonable attorneys' fees, experts' fees, and costs; and
I. Granting such other and further relief as the Court deems just and proper.

Complaint at 22.

         2. The Motion to Dismiss.

         In the MTD, Financial Indemnity moves to dismiss the Complaint. See MTD at 1. Financial Indemnity argues that the filed rate and voluntary payments doctrines bar Bhasker's claims. See MTD at 1. Financial Indemnity also asserts that Bhasker's illusory coverage argument is “simply wrong” as a matter of law, “because minimum limits underinsured motorists coverage does provide tangible benefits to those who choose it.” MTD at 1.

         Financial Indemnity asserts that the filed rate doctrine bars Bhasker's claims. See MTD at 3. Financial Indemnity characterizes Bhasker's claims as challenging rates Financial Indemnity charged for UIM coverage such that her “theory is, simply stated that Defendant charged her a premium for UIM coverage that was ‘illusory.'” MTD at 3. Financial Indemnity argues that, because her Complaint is “premised on her ‘unlawful premium' theory, all her claims run afoul of the filed rate doctrine.” MTD at 3.

         According to Financial Indemnity, New Mexico's filed rate doctrine “provides that ‘any filed rate -- that is, one approved by the governing regulatory agency -- [is] per se reasonable and unassailable in judicial proceedings brought by ratepayers.'” MTD at 3 (quoting Coll v. First Am. Title Ins. Co., 642 F.3d 876, 886-87 (10th Cir. 2011)). Financial Indemnity contends that the filed rate doctrine's policy “is to preserve the role of agencies in approving rates and to keep courts out of the rate-making process.” MTD at 3-4 (citing Coll v. First Am. Title Ins. Co., 642 F.3d at 887; Korte v. Allstate Ins. Co., 48 F.Supp.2d 647, 650 (E.D. Tex. 1999)(Folsom, J.)).

         Financial Indemnity contends that the filed rate doctrine applies “regardless of the label plaintiffs may attach to the underlying allegedly wrongful conduct, ” which means that courts will apply the doctrine “even where plaintiffs allege fraud or other illegal activity.” MTD at 4 (citing Montana-Dakota Utilities Co. v. Northwestern Public Serv. Co., 341 U.S. 246, 248-52 (1951)); Keogh v. Chicago & Northwestern Ry. Co., 260 U.S. 156, 159-62 (1922)). Financial Indemnity asserts that the filed rate doctrine applies when, as in this case, the “relevant rates are filed with the Insurance Department.” MTD at 4. Financial Indemnity contends that courts have “repeatedly applied the filed rate doctrine in the insurance context.” MTD at 4 (citing Peacock v. AARP, Inc., 181 F.Supp.3d 430, 441 (S.D. Tex. 2016)(Hanks Jr., J.); Sher v. Allstate Ins. Co., 947 F.Supp.2d 370, 387-88 (S.D.N.Y. 2013)(Koeltl, J.)).

         Financial Indemnity asserts that an Alabama state court “faced an ‘illusory' UIM coverage claim similar to Plaintiff's claim here” and determined that the filed rate doctrine barred the claim. MTD at 5 (citing Alabama Mut. Ins. Corp. v. City of Fairfield, 178 So.3d 350, 363-64 (Ala. 2013), on return to remand (Dec. 19, 2014), reh'g denied (Feb. 20, 2015)). Financial Indemnity also asserts that a the United States District Court to the Eastern District of Texas determined that the filed rate doctrine barred the plaintiffs' claims that the insurers overcharged them in premiums, because: (i) the filed rate doctrine applies to the insurance industry; and (ii) the plaintiffs' claims “implicated the reasonableness of the filed rates.” MTD at 6 (citing Korte v. Allstate Ins. Co., 48 F.Supp.2d at 650).

         Financial Indemnity asserts that, in New Mexico, an insurer must “‘file with the superintendent rates and supplementary rate information prior to their use in New Mexico.'” MTD at 6 (quoting N.M. Stat. Ann. § 59A-17-9(A)(2)(a)). Financial Indemnity contends that the statute's purpose is to “‘promote the public welfare by regulating insurance rates to the end that they shall not be excessive, inadequate or unfairly discriminatory, and to protect policy holders and the public against the adverse effects of excessive, inadequate or unfairly discriminatory rates.'” MTD at 6 (quoting N.M. Stat. Ann. § 59A-17-3).

         Financial Indemnity contends that “[t]he Insurance Code makes it clear that the Superintendent of Insurance has exclusive authority over challenges to filed rates.” MTD at 7 (citing N.M. Stat. Ann. § 59A-17-26, -34). Financial Indemnity asserts that the New Mexico Insurance Code “leaves no doubt that the New Mexico Legislature did not intend that the premiums charged by insurers could be collaterally attacked, ” yet “that is precisely what Plaintiff is attempting to do here.” MTD at 7. Financial Indemnity contends that, if Bhasker's claims are “permitted to stand, ” the Court would have to “make an independent determination of the propriety of rate filings with the Insurance Department, and would undermine the exclusive authority vested in the Superintendent of Insurance to determine the propriety of insurance rates.” MTD at 8.

         Financial Indemnity also contends that Bhasker's claims “fail pursuant to the voluntary payments doctrine.” MTD at 8. Financial Indemnity asserts that it is a “‘well established rule that payments voluntarily made with full knowledge of all material facts cannot be recovered back in absence of fraud or duress.'” MTD at 8 (quoting Rabbit Ear Cattle Co. v. Frieze, 1969-NMSC-043, ¶ 5, 453 P.2d 373, 374). Financial Indemnity then summarizes cases from various jurisdictions that show, Financial Indemnity contends, that “[t]he voluntary payments doctrine bars all claims by a plaintiff who complains he or she has been misled by a defendant into paying for something where, as here, the plaintiff could have easily learned of the law underlying the basis for the disputed charge.” MTD at 9-12 (citing Randazzo v. Harris Bank Palatine, N.A., 262 F.3d 663, 667-68 (7th Cir. 2001)(Ripple, J.); Chris Albritton Const. Co. v. Pitney Bowes Inc., 304 F.3d 527, 531 (5th Cir. 2002)(Duhe, J.); Robbins v. Scana Energy Mktg. Inc., No. 08-CV-640, 2008 WL 7724171, at *5 (N.D.Ga. June 13, 2008)(Martin, J.); Cheesecake Factory, Inc. v. Baines, 1998-NMCA-120, ¶ 6, 964 P.2d 183, 185-86). Financial Indemnity contends that those cases show that Financial Indemnity's “alleged failure to advise Plaintiff about New Mexico's offset law, or any argument that Plaintiff was ignorant of the law, does not preclude application of the voluntary payments doctrine.” MTD at 12-13. Financial Indemnity adds that Bhasker “is attempting to do precisely what the Randazzo court described as contrary to the voluntary payments doctrine -- i.e., postponing litigation by paying the disputed charge in silence, then afterward suing to recover the amount paid.” MTD at 13 (citing Randazzo v. Harris Bank Palatine, N.A., 262 F.3d 663). Moreover, Financial Indemnity asserts that Bhasker's contention that Financial Indemnity “was required to disclose the existence and effect of the New Mexico offset law” contravenes the “well-established rule” that “all persons are charged with knowledge of the law.” MTD at 13 (citing New Jersey v. Delaware, 552 U.S. 597, 621 n.20; City of Aztec v. Groh, No. 29, 951, 2010 WL 4162051, *1 (N.M. Ct. App. May 25, 2010)(unpublished)). Financial Indemnity concludes that,

[a]s a matter of law, Plaintiff was presumed to know the law, clearly in the public domain, regarding New Mexico's UIM offset provision [and] she cannot now be heard to complain that she was misled into paying premiums based on Defendant's supposedly failing to tell her about New Mexico's offset law or its effect on her UIM coverage.

MTD at 13.

         Financial Indemnity then addresses Bhasker's contention that she had a “reasonable expectation” that she had UIM coverage of $25, 000.00 for each person and $50, 000 for each accident. MTD at 13. Financial Indemnity asserts that the “reasonable expectations doctrine simply does not come into play in the face of clear and unambiguous policy language.” MTD at 13-14 (citing Sheldon v. Hartford Ins. Co., 2008-NMCA-098, ¶ 17, 189 P.3d 695, 700; Truck Ins. Exch. V. Gagnon, 2001-NMCA-092, ¶ 7, 33 P.3d 901, 903). Financial Indemnity contends that the insurance policy documents that Bhasker attached to the Complaint[4] “not only list the level of UIM coverage Plaintiff selected, they also explicitly state when UIM coverage applies, describing the very ‘offset' of bodily injury liability coverage against UIM coverage which Plaintiff complaints results in ‘illusory' UIM coverage here.” MTD at 14. Financial Indemnity asserts that Bhasker “need only have looked at the very policy documents attached to her Complaint to see exactly what coverage she had.” MTD at 14. Consequently, Financial Indemnity concludes, the reasonable expectations doctrine “does not apply in these circumstances, nor can any conclusory allegation of some type of fraud or artifice by Defendant stand in the face of the unambiguous policy documents telling Plaintiff exactly what her coverage would be.” MTD at 14.

         Next, Financial Indemnity contends -- contrary to Bhasker's allegation that Financial Indemnity's insurance-policy application should have “advise[d] her what the monthly premiums would be for the next available tier of coverage or list[ed] corresponding levels of coverage, ” MTD at 15 -- that New Mexico requires that “corresponding premium levels be disclosed only where the policy holder rejects UM/UIM coverage equal to the bodily injury liability limits or altogether.” MTD at 15 (citing Jordan v. Allstate Ins. Co., 2010-NMSC-051, ¶ 25, 245 P.3d 1214, 1222); Farm Bureau Prop. & Cas. Ins. Co. v. Hale, No. CIV 14-0527, 2014 WL 11512598, at *8 (D.N.M. Nov. 14, 2014)(Johnson, J.); Gov't Employees Ins. Co. v. Shroyer, No. CIV 15-0306, 2015 WL 12669885, *2 (D.N.M. Dec. 1, 2015)(Kelly, J.). Financial Indemnity asserts that, in cases alleging improper failure to list coverage premiums, “the remedy is to reform the UIM limits to equal the bodily injury liability limits.” MTD at 16 (citing Jordan v. Allstate Ins. Co., 2010-NMSC-051, ¶ 36, 245 P.3d at 1225; Sinclair v. Zurich Am. Ins. Co., 141 F.Supp.3d 1162, 1168 (D.N.M. 2015)(Lynch, J.). Financial Indemnity asserts that it did not have to list corresponding premiums, because Bhasker “selected UM/UIM coverage limits equal to, not lower than, her bodily injury liability limits.” MTD at 16 (citing Complaint ¶ 26, at 4). Financial Indemnity further asserts that Bhasker “already has equalized UIM and bodily injury liability limits, and the need to list premiums . . . simply . . . does not apply.” MTD at 16.

         Financial Indemnity contends that, as a matter of law, Bhasker's insurance coverage was not illusory, because there are “several situations in which minimum limits UIM coverage has value for New Mexico policyholders.” MTD at 16. First, Financial Indemnity asserts that an Idaho state court held that “UIM coverage equal to minimum bodily injury liability limits was not illusory, even if no vehicle covered by a policy issued in the state could satisfy the definition of an underinsured motor vehicle, ” because, “if the tortfeasor was a driver with an out-of-state policy with lower bodily injury minimum limits than in the policy state, the policyholder could recover the difference as to those limits.” MTD at 17 (citing Vincent v. Safeco Ins. Co. of Am., 29 P.3d 943, 948 (Idaho 2001)). Financial Indemnity contends that an Indiana state court arrived at a similar conclusion, determining that underinsured motorist coverage is not illusory, because underinsured automobiles could include vehicles from states that require less liability insurance than Indiana requires. See MTD at 18 (citing Meridian Mut. Ins. Co. v. Richie, 544 N.E.2d 488, 489-90 (Ind. 1989)).

         Second, Financial Indemnity argues that policyholders with minimum limits UIM coverage “policyholders will be paid, even if they have minimum limits UIM coverage, where there are multiple injured parties in an accident, such that no single policyholder will recover the entirety of the tortfeasor's liability limit.” MTD at 18 (citing Showman v. Busser, No. 311141, 2013 WL 6037161, *4 (Mich. Ct. App. Nov. 14, 2013)). Third, Financial Indemnity contends that, under New Mexico law, “if the insured receives less than the tortfeasor's policy limits due to a contractual exclusion for punitive damages, the insurer may not offset the full amount of the tortfeasor's liability limits.” MTD at 19 (citing Farmers Ins. Co. of Arizona v. Sandoval, 2011-NMCA-051, ¶ 1, 253 P.3d 944, 946).

         Financial Indemnity asserts that the coverage is not, as a matter of law, illusory, because the “above cases show there is no question that minimum limits UIM coverage has value for New Mexico policyholders.” MTD at 19. Financial Indemnity notes, however, that “some courts have reached the opposite conclusion.” MTD at 19-20 (citing Hardy v. Progressive Specialty Ins. Co., 67 P.3d 892, 897; Schemberg v. Progressive Cas. Ins. Co., 709 F.Supp. 620, 621-22 (E.D. Pa. 1989)(Cahn, J.)). Financial Indemnity asserts, nonetheless, that the cases holding that minimum limits UIM coverage has value for policy holders “represent a clear majority of the authority existing on this issue, and [those] which reject the notion that the coverage ‘illusory' in these circumstances [are] better reasoned.” MTD at 20. According to Financial Indemnity, “[i]t makes no sense to deem coverage ‘illusory' when it clearly provides valuable benefits to insureds, as the above cases demonstrate minimum limits UIM coverage does in multiple situations.” MTD at 20.

         Next, Financial Indemnity addresses Bhasker's argument that the Supreme Court of New Mexico “established that UIM coverage is ‘superfluous' when the insured and tortfeasor both have the statutory minimum level of coverage.” MTD at 20 (quoting Complaint ¶ 23, at 4). Financial Indemnity contends the case which Bhasker cites for this proposition -- Weed Warrior -- does not support Bhasker. See MTD at 20. Financial Indemnity asserts that the Supreme Court of New Mexico considered only whether “elect[ing] to take UM/UIM coverage for less than the general policy liability limits constitute[s] a rejection under the New Mexico uninsured motorist statute.” MTD at 20 (quoting Weed Warrior, 2010-NMSC-050, ¶ 3, 245 P.3d at 1210). Financial Indemnity contends that the Supreme Court of New Mexico

held only that New Mexico insurers had to offer UM/UIM coverage up to the bodily injury liability limits of the subject policy. Here, of course, there is no dispute that this was done, since Plaintiff chose UM/UIM limits equal to her bodily injury liability limits. Nothing in Weed Warrior, though, in any way prohibited an insured from purchasing minimum limits UM/UIM coverage, or deemed such coverage illegal.

MTD at 21. Financial Indemnity asserts that the Supreme Court of New Mexico “had no occasion to consider or address all the situations in which minimum limits UM/UIM coverage does in fact have value.” MTD at 21.

         Financial Indemnity then asserts that a California state court ruled that, when an insurer offers minimum limits underinsured coverage that is consistent with applicable law, “there can be no argument that the coverage is ‘illusory.'” MTD at 21 (citing Fagundes v. Am. Internat. Adjustment Co., 3 Cal.Rptr.2d 763, 767 (Cal.Ct.App. 1992)).

         Next, Financial Indemnity addresses Bhasker's contention that Financial Indemnity allegedly charged excessive premiums for underinsured motorist coverage that Financial Indemnity did not, in the end, provide. See MTD at 22. Financial Indemnity asserts that this argument “is negated by her own Complaint allegation and exhibits.” MTD at 22. Financial Indemnity contends that Bhasker's policy documents shows that Financial Indemnity charged her a single premium for combined uninsured motorist (“UM”) and underinsured coverage. See MTD at 22. Financial Indemnity then argues:

Under New Mexico law, rates must be charged based on the insurers' loss history. See, e.g., N.M. Stat. Ann. § 59A-17-7 (“In determining whether rates comply with the rate standards, the following criteria shall be applied: A. due consideration shall be given to past and prospective loss and expense experience within and without this state[.]”); N.M. Stat. Ann. § 59A-17-6 (“Rates are inadequate if they are clearly insufficient, together with the investment income attributable to them, to sustain projected losses and expenses in the line, kind or class of business to which they apply.”). Taking Plaintiff's Complaint allegations that Defendant rarely, if ever, pays under minimum limits UIM coverage as true, then by definition the portion of the rate for the combined UM/UIM coverage that is attributable to UIM, as opposed to UM, coverage would be minimal based on a minimal loss payment history. So, again taking Plaintiff's Complaint allegations as true, Defendant cannot, as a matter of law, be collecting excessive premiums for UIM coverage that has an allegedly small or “illusory” value. And that analysis only further underscores why, as fully discussed above, the filed rate doctrine also bars Plaintiff's claims.

MTD at 22-23.

         3. The Response.

         Bhasker responds to Financial Indemnity's MTD. See Plaintiff's Response and Memorandum of Law in Opposition to Defendant's Motion to Dismiss First Amended Complaint and Memorandum of Law in Support, filed May 23, 2017 (Doc. 18)(“Response”). Bhasker argues that the filed rate doctrine does not apply to her claims. See Response at 3. Bhasker acknowledges that she paid a premium “for illusory coverage, ” but her Complaint concerns “disputed contractual coverage, misrepresentations to sell coverage, and failure to properly advise Plaintiff as to the impact of her choice.” Response at 3. Bhasker contends that “[s]uch conduct is separate from any regulatory framework or the setting of rates.” Response at 3. Bhasker asserts that the United States District Court for the Southern District of Illinois determined that the filed rate doctrine “was wholly inapplicable to claim of illusory UIM coverage” where the plaintiff alleges deception and fraud. Response at 4 (citing Keeling v. Esurance Ins. Co., No. 10-0835-DRH, 2012 WL 699580, at *4-5 (S.D. Ill. Mar. 1, 2012)(Herndon, C.J.)). In other words, Bhasker asserts that the filed rates doctrine does not apply where a plaintiff alleges claims that “‘challenge defendant's alleged deception, not the amount charged for the underinsured coverage and do not seek to change the rates.'” Response at 4 (quoting Keeling v. Esurance Ins. Co., 2012 WL 699580, at *5).

         Bhasker asserts that the same analysis should apply in this case, because she alleges that, “based on fraudulent and deceptive behavior by the insurer, the coverage provided was a sham, ” and New Mexico law “precludes an insurer from retaining premiums on an insurance contract where the policy is illegal.” Response at 4 (citing Forrest Currell Lumber Co. v. Thomas, 1970-NMSC-018, ¶¶ 15-16, 464 P.2d 891, 895 (1970)). Bhasker also contends that New Mexico law “provides that approval of a policy form by a regulatory body does not conclusively establish the validity of the policy or shield it from review by the courts.” Response at 4 (citing Azar v. Prudential Ins. Co. of Am., 2003-NMCA-062, ¶ 69, 68 P.3d 909, 929 (Ct. App. 2003)). Bhasker asserts that “[a]pplying the filed rate doctrine to every insurance dispute in which an insured alleges that the contract was illusory is clearly contrary to New Mexico law and cannot stand.” Response at 4. Bhasker concludes, accordingly, that, because she alleges that Financial Indemnity made fraudulent misrepresentations, the filed rate doctrine does not apply. See Response at 4-5.

         Next, Bhasker contends that the voluntary payment doctrine does not apply to her claims. See Response at 5. Bhasker asserts that the voluntary payment doctrine is “not a legally adequate affirmative defense to claims of unfair and deceptive business practices.” Response at 5 (citing Deere Constr., LLC v. Cemex Constr. Materials Florida, LLC, 198 F.Supp.3d 1332, 1342 (S.D. Fla. 2016); Soule v. Hilton Worldwide, Inc., 1 F.Supp.3d 1084, 1104 (D. Haw. 2014); Huch v. Charter Commc'ns, Inc., 290 S.W.3d 721 (Mo. 2009); State ex rel. Miller v. Vertrue, Inc., 834 N.W.2d 12 (Iowa 2013); Samuel v. Time Warner, Inc., 10 Misc.3d 537, 549, 809 N.Y.S.2d 408, 418 (Sup. Ct. 2005)). Bhasker asserts that one of Financial Indemnity's voluntary payment cases “identifie[s] the exception to the rule's application which is pertinent to the instant dispute: ‘payments voluntarily made with full knowledge of all material facts cannot be recovered back in absence of fraud or duress.'” Response at 5 (quoting Rabbit Ear Cattle Co. v. Frieze, 1969-NMSC-043, ¶ 5, 453 P.2d at 374)(emphasis added by Bhasker). Bhasker also discusses a Washington state court case, in which, she asserts, the state court recognized the voluntary payment doctrine's “generally recognized exception” that it is “inapplicable where the payment was induced by fraud.” Response at 6-7 (quoting Indoor Billboard/Washington, Inc. v. Integra Telecom of Washington, Inc., 170 P.3d 10, 23 (Wash. 2007)). Bhasker asserts that the Washington state court rejected the voluntary payment doctrine's application in an action brought under the state's consumer protection laws. Response at 7 (citing Indoor Billboard/Washington, Inc. v. Integra Telecom of Washington, Inc., 170 P.3d at 24). Moreover, Bhasker contends, federal district courts have “uniformly recognized” that the voluntary payment doctrine does not apply when the payment is made under duress or as a result of fraud. Response at 7 (citing Shaw v. Marriott Int'l, Inc., 474 F.Supp.2d 141, 151 (D.D.C. 2007)(Kessler, J.); Fink v. Time Warner Cable, 810 F.Supp.2d 633, 649 (S.D.N.Y. 2011)(Swain, J.), on reconsideration, 2011 WL 5121068 (S.D.N.Y. Oct. 28, 2011)).

         Bhasker then asserts that, on the few occasions on which New Mexico courts have considered the voluntary payment doctrine, they have “simply not recognized or applied the voluntary payment doctrine outside the context of restitution claims and clearly never in the context of a bar to a statutory cause of action.” Response at 7-8 (citing Aetna Life Ins. Co. v. Nix, 1973-NMSC-069, ¶ 9, 512 P.2d 1251, 1253; Cheesecake Factory, Inc. v. Baines, 1998-NMCA-120, ¶ 6, 964 P.2d 183, 185-86). Bhasker concludes that, “whether based on an improper extension of state law, or the well-recognized exceptions to the common law doctrine, the voluntary payment doctrine is equally inapplicable to the instant action and must fail.” Response at 8.

         Next, Bhasker asserts that her illusory-coverage claims is viable. See Response at 8. Bhasker contends that she “believed that she was purchasing valuable coverage, ” but “was led to purchase . . . worthless and illusory [coverage] since the insurer would never incur liability under the policy.” Response at 8-9 (citing Pompa v. Am. Family Mut. Ins. Co. 520 F.3d 1139, 1145 (10th Cir. 2008)). Bhasker contends that the Supreme Court of New Mexico has determined that an “‘insured carries UIM coverage only if the UM/UIM limits on her or his policy are greater than the statutory minimum of $25, 000.'” Response at 9 (quoting Weed Warrior, 2010-NMSC-050, ¶ 10, 245 P.3d 1209, 1212-13). Bhasker argues that, because New Mexico courts have not “squarely addressed” whether the UIM coverage which she purchased was illusory, the Court should consider authority in jurisdictions with “a similar statutory framework to that in New Mexico.” Response at 9. Bhasker contends:

In other jurisdictions where the limits of the tortfeasor's liability coverage and the claimants' underinsured motorist coverage limits are the same, and where the state law determines a claimant's status as underinsured solely by considering the contractual limits of liability rather than the damages sustained, courts have recognized that under the principle of illusory coverage, or under the reasonable expectations of the claimant, UIM coverage may be activated.

Response at 9.

         Bhasker contends that “different jurisdictions define and apply UIM coverage differently, ” with some jurisdictions “compar[ing] the damages sustained by the insured to the limits of coverage under the tortfeasor's policy, ” Response at 9-10 (citing Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809 (Tex. 2006)), while other jurisdictions “require a comparison of the limits of the tortfeasor's policy to the limits of the insured's UIM policy to satisfy the definition of an underinsured motorist, ” Response at 10 (citing S'Dao v. National Grange Mut. Ins. Co., 661 N.E.2d 1378 (N.Y. 1995)). Bhasker concludes that “those jurisdictions that have considered the issue which is most pertinent to Plaintiff's dispute are those where the definition of underinsured motorist requires an examination of the limits of coverage, as is required under the policy at issue in this case.” Response at 10 (citing Smith v. Auto-Owners Ins. Co., 500 So.2d 1042, 1044 (Ala. 1986); Glazewski v. Allstate Ins. Co., 466 N.E.2d 1151, 1156 (Ill.App.Ct. 1984), aff'd in part, rev'd in part sub nom., Glazewski v. Coronet Ins. Co., 483 N.E.2d 1263 (Ill. 1985); Hardy v. Progressive Specialty Ins. Co., 67 P.3d 892 (Mont. 2003); Pristavec v. Westfield Ins. Co., 400 S.E.2d 575, 577 ( W.Va. 1990); Hoglund v. Secura Ins., 500 N.W.2d 354, 355 (Wis. Ct. App. 1993), superseded by statute). Regarding Pristavec v. Westfield Ins. Co., Bhasker asserts that the court concluded that West Virginia's underinsured motorist statute public policy provides full compensation for damages not paid by a negligent tortfeasor to support its conclusion that “UIM coverage was activated” under the state's underinsured statute. Response at 14 (citing Pristavec v. Westfield Ins. Co., S.E.2d at 582). Bhasker contends that New Mexico's underinsured statute “also furthers a public policy of compensating injured persons not compensated by a negligent tortfeasor.” Response at 14 n.3 (citing Salas v. Mountain States Mut. Cas. Co., 2009-NMSC-005, ¶ 20, 202 P.3d 901, 808; Richards v. Mountain States Mut. Cas. Co., 1986-NMSC-021, ¶ 9, 716 P.2d at 240). Bhasker contends that, “[w]here an insured's underinsured coverage was equal to a tortfeasor's liability coverage, ” Indiana courts “held that such coverage was illusory under a policy that defined an underinsured motorist as one whose limits of liability coverage were less than the limits of UIM coverage.” Response at 14-15 (citing W. Reserve Mut. Cas. Co. v. Holland, 666 N.E.2d 966, 968 (Ind.Ct.App. 1996); Landis v. Am. Interinsurance Exch., 542 N.E.2d 1351, 1354 (Ind.Ct.App. 1989)).

         Next, Bhasker considers Financial Indemnity's argument that the contract is not illusory, because, in New Mexico, it is possible that an out-of-state driver may have liability insurance with lower limits than those New Mexico mandates. See Response at 15. Bhasker argues that this argument is unreasonable as a matter of law, because New Mexico courts “have already decided that a New Mexico insured with only $25, 000 in UM/UIM coverage does not, in fact, carry underinsured coverage.” Response at 15 (citing Weed Warrior Services, 2010-NMSC-050, ¶ 10, 245 P.3d at 1213). Bhasker also argues that,

even if a tortfeasor has an out-of-state liability policy with lower bodily injury liability minimum limits than those required in New Mexico, there is always the possibility that the tortfeasor's policy will contain an out-of-state coverage clause which will provide liability limits in an amount equal to the liability limits imposed by New Mexico's Mandatory Financial Responsibilities Act[, N.M. Stat. Ann. § 66-5-201]. See, for example, Bristol West Ins. Co. v. Wawanesa Mut. Ins. Co., 570 F.3d 461, 463-64 (1st Cir. 2009)). The effect of such a clause would be to increase the out-of-state tortfeasor's liability limits to the minimum amount required in New Mexico, namely, $25, 000. In such an instance, a New Mexico resident with minimum UIM limits would not be able to recover the benefits of his or her UIM coverage in an auto accident with an out-of-state driver.

Response at 15 (emphasis in original).

         Bhasker then considers Financial Indemnity's argument that the coverage is not illusory, because there are some instances in which the policy holder may recover benefits. See Response at 16-17. Bhasker argues that Financial Indemnity's “hypothetical and remote” examples do not negate the coverage's “illusory nature.” Response at 16 (citing Hardy v. Progressive Specialty Ins. Co., 67 P.3d at 894).

         Next, Bhasker argues that her reasonable expectations “are of paramount importance when considering what benefits an insured is entitled to under the terms of an insurance policy.” Response at 18 (citing Rummel v. Lexington Ins. Co., 1997-NMSC-041, ¶ 22, 945 P.2d 970, 977(1997); Sanchez v. Herrera, 1989-NMSC-073, ¶ 24, 783 P.2d 465, 469). Bhasker also contends that the reasonable expectations doctrine applies, because, in New Mexico, the reasonable expectations doctrine “‘is not restricted to those cases in which the policy language is at issue.'” Response at 18 (quoting Barth v. Coleman, 1994-NMSC-067, ¶ 15, 878 P.2d 319, 323)(citing Berlangieri v. Running Elk Corp., 2002-NMCA-046, ¶ 13, 44 P.3d 538, 541-42). Bhasker contends that, in any case, the policy's language at issue “is not clear and unambiguous.” Response at 19. Bhasker asserts that, in applying the reasonable expectations doctrine, “courts will look to how a reasonable non-attorney would view the terms of coverage.” Response at 19 (citing Battishill v. Farmers Alliance Ins. Co., 2006-NMSC-004, ¶ 13, 127 P.3d 1111, 1114; Computer Corner, Inc. v. Fireman's Funds Ins. Co., 2002-NMCA-054, ¶ 13, 46 P.3d 1264, 1268). Bhasker asserts that courts will also consider the kind of insurance at issue. See Response at 20 (citing Hinkle v. State Farm Fire & Cas. Co., 2013-NMCA-084, ¶ 18, 308 P.3d 1009, 1014).

         Bhasker concludes that she has

pled facts which, if taken as true and viewed in the light most favorable to the Plaintiff, suffice to evidence her entitlement to relief for her claims against Defendant for negligence, violation of the New Mexico Unfair Trade Practices Act, violation of the New Mexico Unfair Insurance Practices Act, breach of contract, breach of the covenant of good faith and fair dealing, and for punitive damages. Both of Defendant's affirmative defenses must fail as a matter of law and Bhasker has shown that the underinsured coverage she purchased must be considered illusory. Accordingly, Defendant's Motion to Dismiss must be denied in its entirety and the matter permitted to proceed.

Response at 20-21.

         4. The Reply.

         Financial Indemnity replies to Bhasker's response. See Reply in Support of Defendant's Motion to Dismiss First Amended Complaint, filed June 6, 2017 (Doc. 20)(“Reply”). Financial Indemnity first argues that the filed rate doctrine bars Bhasker's claims. See Reply at 1. Financial Indemnity disputes Bhasker's contention that her claims are “‘separate from any regulatory framework or the setting of rates.'” See Reply at 1 (quoting Response at 3). Financial Indemnity argues that “clear authority” in the United States Court of Appeals for the Tenth Circuit and in other United States Courts of Appeals hold that the filed rate doctrine “applies regardless of the label used to describe the claims, including where fraud or other illegal activity is alleged.” Reply at 1. Financial Indemnity contends that the Tenth Circuit, applying New Mexico law, “rejected the same type of ‘fraudulent activity' argument Plaintiff asserts here, upholding dismissal, based on the filed rate doctrine, of plaintiffs' claims against the insurer defendants of conspiracy and bribery.” Reply at 1-2 (citing Coll v. First Am. Title Ins. Co., 642 F.3d 876 (10th Cir. 2011)). In Coll v. First American Title Insurance Co., Financial Indemnity asserts, the Tenth Circuit held that the “‘focus for determining whether the filed rate doctrine applies is the impact the court's decision will have on agency procedures and rate determinations, '” and that the “‘underlying conduct does not control whether the filed rate doctrine applies.'” Reply at 2 (quoting 642 F.3d at 890). Financial Indemnity asserts that the Tenth Circuit concludes that the “‘dispositive question'” is whether a win for the plaintiff would impact the regulatory agency's rate determinations; “‘if so, the ‘filed rate' doctrine will bar the claim.'” Reply at 2 (quoting 642 F.3d at 890). Financial Indemnity argues that the Tenth Circuit, in Coll v. First American Title Insurance Co., looked to New Mexico precedent in Valdez v. State, 2002-NMSC-028, 54 P.3d 71, and “concluded that, under New Mexico law, there is no fraud exception to the ‘filed rate' doctrine.” Reply at 2 (citing 642 F.3d at 890). Financial Indemnity contends that other courts have reached similar conclusions. See Reply at 2-3 (citing Crumley v. Time Warner Cable, Inc., 556 ...


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