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Mortensen v. Liberty Mutual Insurance

United States District Court, D. New Mexico

April 11, 2019

KEITH MORTENSEN, Plaintiff,
v.
LIBERTY MUTUAL INSURANCE, Defendant.

          MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

          KIRTAN KHALSA UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court on Defendant's Motion to Dismiss (“Defendant's Motion”), filed December 8, 2018. (Doc. 3.) Plaintiff filed a response in opposition to the motion on December 21, 2018, and Defendant filed a reply in support of it on January 5, 2019. (Docs. 5, 7.) For the reasons discussed below, the Court finds that Defendant's Motion is well taken and shall be granted.

         I. Background

         Defendant Liberty Mutual Insurance[1] was, at all relevant times, Plaintiff Keith Mortensen's automobile insurer pursuant to a binding contract that included an uninsured motorist policy. (Doc. 1-1 at 1.) In relevant part, the policy reads as follows:[2]

         INSURING AGREEMENT

         A. We [the insurer] will pay damages which an “insured” is legally entitled to recover from the owner or operator of an:

1. “Uninsured motor vehicle” or “underinsured motor vehicle” because of “bodily injury”:
a. Sustained by an “insured”; and
b. Caused by an accident; and
2. “Uninsured motor vehicle” or “underinsured motor vehicle” because of “property damage” caused by an accident.
. . . . C. “Property damage” as used in this endorsement means injury to or destruction of the property of an “insured”.

(Doc. 3-1 at 1.)

         Plaintiff's truck was stolen on December 10, 2017. (Doc. 1-1 at 2.) Plaintiff sought compensation from Defendant under the foregoing uninsured motorist policy, claiming that the theft constituted “property damage” and the policy therefore covered it. (Id.) Defendant denied the claim. (Id. at 2-3.)

         Plaintiff filed a two-count Complaint for Declaratory Judgment and Damages in the Second Judicial District Court, County of Bernalillo, State of New Mexico, and Defendant removed the matter to this Court on the basis of diversity jurisdiction. (Docs. 1, 1-1.) In Count 1 of the Complaint, Plaintiff seeks a judgment declaring the parties' respective rights and obligations under the insurance contract and directing their behavior accordingly pursuant to New Mexico's Declaratory Judgment Act, NMSA 1978, Section 44-6-1 through 44-6-15. (Doc. 1-1 at 2.) In Count 2, Plaintiff seeks ...


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