United States District Court, D. New Mexico
YVONNE APODACA, on behalf of herself and all others similarly situated, Plaintiff,
YOUNG AMERICA INSURANCE COMPANY, LOYA INSURANCE COMPANY, and EP LOYA GROUP, LP, Defendants.
MEMORANDUM OPINION AND ORDER
C. BRACK SENIOR U.S. DISTRICT JUDGE.
matter is before the Court on the Motion of Defendants to
Dismiss Plaintiff's First Amended Complaint, filed on
August 6, 2018. (Doc. 14.) Jurisdiction arises under 28
U.S.C. § 1332. In this putative class action, Ms.
Apodaca (Plaintiff) alleges that Defendants misrepresented
the terms of her underinsured motorist coverage. Defendants
argue that Plaintiff does not have standing to bring suit
against either Loya Insurance Company (Loya) or EP Loya
Group, LP (EP Loya), and that she has otherwise failed to
state a claim. Having considered the submissions of counsel
and the relevant law, the Court will GRANT IN
PART the motion.
2017, Plaintiff sustained bodily injuries and damages to her
car in an automobile accident with Mr. Ben Shriver. (Doc. 9
(Am. Compl.) at 3 ¶¶ 8, 10.) Mr. Shriver, who was
arrested for aggravated driving while under the influence,
was at fault in the accident. (Id. ¶¶ 8,
11-12.) Plaintiff had an auto insurance policy with Young
America Insurance Company (Young America). (Id.
¶¶ 15, 18; see also Doc. 14-1.) Plaintiff
carried the New Mexico minimum auto insurance liability
amounts, which provide bodily injury coverage of $25, 000 per
person and $50, 000 per accident (25/50 coverage), and
property damage coverage of $10, 000. (Am. Compl. ¶ 23;
see also Doc. 14-A at 1.) She had also purchased
uninsured/underinsured (UM/UIM) motorist coverage in the same
amounts. (Am. Compl. ¶ 23; see also Doc. 14-A
“received the full extent of [bodily injury] liability
coverage carried by [Mr. Shriver], $25, 000.00.” (Am.
Compl. ¶ 17.) Plaintiff believed that she was also
entitled to bodily injury coverage benefits from her own
UM/UIM policy and filed a claim with Young America after the
accident. (Am. Compl. ¶¶ 30-31, 34.) Young
America denied her claim for UM/UIM bodily injury coverage
benefits, however, on the basis that it was “entitled
to a full offset of [Mr. Shriver's] Policy
payments.” (See Doc. 1-1 at 45 (Ex. 2);
see also Am. Compl. ¶ 34.)
Plaintiff purchased the UM/UIM coverage, Young America told
her that it would benefit her in the event of an accident
with an underinsured driver. (Id. ¶ 24.)
Plaintiff avers that Young America misrepresented information
about the UM/UIM coverage, and that it knew or should have
known that the 25/50 UM/UIM coverage was meaningless.
(Id.) Young America failed to inform Plaintiff that,
due to New Mexico's “offset” law, the 25/50
UM/UIM coverage would not necessarily result in a payment of
benefits if triggered by an accident with a motorist who also
has 25/50 coverage. (See Id. ¶¶ 38, 40.)
Additionally, Young America did not tell Plaintiff about
premium costs for higher amounts of UM/UIM coverage or give
her a fair opportunity to select a higher amount of coverage.
(Id. ¶ 37.)
asserts that Defendants “worked together as a joint
venture to sell automobile policies to New Mexico
residents” and are “jointly and severally liable
for the acts and resulting damages” alleged in her
Amended Complaint. (Id. at 2 ¶ 10.) Plaintiff
purports to bring this claim on behalf of herself and other
New Mexico insureds “who have been deceived by
Defendants' practices.” (Id. ¶ 3.)
reviewing a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the Court “must accept all the well-pleaded allegations
of the complaint as true and must construe them in the light
most favorable to the plaintiff.” In re Gold Res.
Corp. Sec. Litig., 776 F.3d 1103, 1108 (10th Cir. 2015)
(citation omitted). “To survive a motion to dismiss,
” the complaint does not need to contain
“detailed factual allegations, ” but it
“must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556).
Plausibility does not equate to probability, but there must
be “more than a sheer possibility that a defendant has
acted unlawfully.” Id. (citing
Twombly, 550 U.S. at 556).
ordinarily, a motion to dismiss must be converted to a motion
for summary judgment when the court considers matters outside
the complaint, see Fed. R. Civ. P. 12(d), matters
that are judicially noticeable do not have that effect . . .
.” Genesee Cty. Emps.' Ret. Sys. v. Thornburg
Mortg. Sec. Tr. 2006-3, 825 F.Supp.2d 1082, 1122 (D.N.M.
2011) (citing Duprey v. Twelfth Judicial Dist.
Court, 760 F.Supp.2d 1180, 1192-93 (D.N.M. 2009)
(internal citation omitted)).
Exhibits attached to a complaint are properly treated as part
of the pleadings for purposes of ruling on a motion to
dismiss. . . . [F]acts subject to judicial notice may be
considered in a Rule 12(b)(6) motion without converting the
motion to dismiss into a motion for summary judgment. This
allows the court to take judicial notice of its own files and
records, as well as facts which are a matter of public
record. However, the documents may only be considered to show
their contents, not to prove the truth of matters asserted
Id. at 1122-23 (quoting Tal v. Hogan, 453
F.3d 1244, 1264 n.24 (10th Cir. 2006) (internal quotation
marks, alterations, and citations omitted)). Thus, the Court
may consider the letter and Declarations pages Plaintiff
attached to her Complaint and referenced in her Amended
Complaint. (See Doc. 1-1 at 41-45 (Exs. 1, 2); Am.
Compl. ¶¶ 32-34.)
Court may also consider the insurance policy Young America
attached to its motion to dismiss, as the policy “is
referred to in the complaint and is central to the
plaintiff's claim . . . .” Radian Asset
Assurance Inc. v. Coll. of the Christian Bros. of N.M.,
No. CIV 09-0885 JB/DJS, 2011 WL 10977180, at *17 (D.N.M. Jan.
24, 2011) (quotation and subsequent citations omitted). Young
America submitted a certified copy of Plaintiff's
insurance policy (see Docs. 14 at 2 n.1; 14-A), and
Plaintiff cites to the exhibit without disputing its
authenticity (see Doc. 21 at 16).
Plaintiff fails to state a claim against Loya and EP
contend that because Plaintiff's insurance contract is
solely with Young America and she has not alleged a
relationship with the other two defendants, she has failed to
plead facts sufficient to confer standing to sue Loya or EP
Loya. (Doc. 14 at 12-13.) Plaintiff argues that she has
standing to sue because she alleges that Defendants are
involved in a joint venture. (See Doc. 21 at 14-21.)
New Mexico, a party may be liable for the negligence of its
joint venturers.” MS through Harris v. E.
N.M. Mental Retardation Servs., No. CIV 13-628 RB-GBW,
2015 WL 13662789, at *15 (D.N.M. June 16, 2015) (citing
Schall v. Mondragon, 393 P.2d 457, 460 (N.M. 1964)).
venture exists when two or more parties (1) enter into an
agreement, (2) to combine their money, property or time in
the conduct of some particular business deal, (3) agree to
share in the profits and losses of the venture jointly, and
(4) have the right of mutual control over the subject matter
of the enterprise or over the property.
Wilger Enters., Inc. v. Broadway Vista Partners, 115
P.3d 822, 824-25 (N.M. Ct. App. 2005) (quotation omitted).
summarily concludes in her Amended Complaint that Defendants,
who acknowledge that they are “members of the same
corporate family” (Doc. 14 at 13), “worked together
as a joint venture to sell automobile policies to New Mexico
residents, including” Plaintiff, and thus are
“jointly and severally liable for the acts and
resulting damages” alleged (Am. Compl. ¶ 10). In
her response to Defendants' motion to dismiss, Plaintiff
asserts that while she “does not yet have access to
discovery . . ., a cursory look at [Defendants']
self-promotion indicates that some joint venture does, in
fact, exist between” the three. (Doc. 21 at 15.) She
goes on to describe certain indicators she found on
Defendants' websites that purportedly support her legal
theory, but the facts she discusses in her response are not
detailed in the Amended Complaint. (See Id. at
Rule 12(b)(6) does not require” Plaintiff to establish
each element of her joint venture claim “at this stage
of the litigation, reference to these elements is
‘help[ful] to determine whether [she has] set forth a
plausible claim.'” Hitch Enters., Inc. v.
Cimarex Energy Co., 859 F.Supp.2d 1249, 1266 (W.D. Okla.
2012) (quoting Khalik v. United Air Lines, 671 F.3d
1188, 1192 (10th Cir. 2012) (internal citations omitted)). In
Hitch Enterprises, the district court found that the
plaintiffs had failed to sufficiently plead that the
defendants were engaged in a joint venture where the
complaint alleged that one defendant “receive[d] the
benefit of all of the revenue from its subsidiaries, . . .
and that the defendants together receive[d] revenues and
profits, . . . because they ‘are the type of conclusory
and formulaic recitations disregarded by the [Supreme] Court
in Iqbal.'” Id. (quoting
Khalik, 671 F.3d at 1193 (citing Iqbal, 129
S.Ct. at 1949)).
in MS through Harris, the plaintiff alleged that two
of the defendants (the Spencer Foundation and ENMRSH) shared
“a number of officers and board members[, ] . . . that
the Spencer Foundation's Articles of Incorporation
state[d] that it was organized exclusively for charitable and
educational purposes including . . . the making of
distributions to ENMRSH[, ] . . . that the Spencer Foundation
distributed just $47, 000 to ENMRSH” from 2007-2011,
and that “ENMRSH funneled funds and resources to the
Spencer Foundation.” 2015 WL 13662789, at *15 (internal
quotation marks and citations omitted). Despite these
allegations of “suspicious activity, ...