United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER STAYING CASE AND DENYING
MOTION TO CERTIFY TO NEW MEXICO SUPREME COURT
MATTER comes before the Court upon Defendant's Motion to
Certify Questions to the New Mexico Supreme Court, filed
November 30, 2018 (Doc. 37). Having reviewed
the parties' pleadings and the applicable law, the Court
finds that Defendant's Motion to Certify is not
well-taken and, therefore, is DENIED.
putative class action arises out of a dispute over
“underinsured motorist coverage” in an automobile
policy. NMSA § 66-5-301 (“‘underinsured
motorist' means an operator of a motor vehicle with
respect to the ownership, maintenance or use of which the sum
of the limits of liability under all bodily injury liability
insurance applicable at the time of the accident is less than
the limits of liability under the insured's uninsured
motorist coverage.”). Plaintiff alleges that Defendant
misrepresented to her and similarly situated putative class
members the extent of “underinsured motorist”
coverage when purchased at the minimum amount of $25, 000.
She also alleges that underinsured motorist coverage at the
minimum amount is illusory.
Plaintiff was stopped at a red light on Academy Boulevard in
Albuquerque, New Mexico, the tortfeasor attempted to slip
between her and another stopped car, crashing into both. She
received $25, 000 in compensation for bodily injury from the
tortfeasor's minimum liability policy. Because she
alleges her damages were in excess of $25, 000, she allegedly
sought benefits from her own uninsured and underinsured
motorist coverage from her insurance company, Defendant State
Farm. Her policy with Defendant included the statutory
minimum amount of uninsured and underinsured coverage, $25,
000. Defendant allegedly denied coverage according to the
insurance policy and New Mexico law, because the amount
received from tortfeasor's minimum liability insurance
was offset against Plaintiff's $25, 000 underinsured
policy. See generally Schmick v. State Farm Mut. Auto.
Ins. Co., 103 N.M. 216, 704 P.2d 1092 (N.M. 1985)
(explaining statutory offset in NMSA § 66-5-301).
Defendant claims to have paid under the underinsured motorist
provisions for property damage, but Plaintiff alleged that
Defendant denied underinsured motorist coverage for bodily
are now six other putative class actions in this district
asserting similar claims against various insurers.
Martinez et al. v. Progressive Preferred Insurance
Company, 19-cv-04 (Ritter, J.); Palmer v. State Farm
Mutual Automobile Insurance Company et al., 19-cv-301
(Brack, J.); Bhasker v. Kemper, et al., No.
1:17-cv-00260 (Browning, J.); Thaxton v. GEICO et
al., No. 18-cv-306 MV-KK (Vazquez, J.); Apodaca v.
Young America Insurance Co. et al., No.
1:18-cv-00399-RB-JHR (Brack, J.); Crutcher v. Liberty
Mutual Ins. Co. et al., No. 1:18-cv-00412-JCH-KBM
this motion to certify was being briefed, United States
District Judge Judith Herrera in Crutcher v. Liberty Mut.
Ins. Co. et al., 1:18-cv-412 (JCH/KBM) certified, and
the New Mexico Supreme Court accepted, the following
Under N.M. Stat. Ann. § 66-5-301, is underinsured
motorist coverage on a policy that offers only minimum UM/UIM
limits of $25, 000 per person/$50, 000 per accident illusory
for an insured who sustains more than $25, 000 in damages
caused by a minimally insured tortfeasor because of the
offset recognized in Schmick v. State Farm Mutual
Automobile Insurance Company, and, if so, may insurers
charge a premium for that non-accessible underinsured
(the “certified question”). Notably, the
certified question is substantially similar to the question
that Defendant originally sought to certify. Doc.
37. Defendant argued that resolution of this
question - whether underinsured motorist coverage offered at
the minimum level is illusory - would likely resolve many of
legal issues in this case. After certification by Judge
Herrera, however, Defendant sought in its reply brief to
certify two supplemental questions:
Is the UIM component of U Coverage illusory or an unfair or
deceptive practice where: (a) the statutory offset required
by Schmick is disclosed in the U Coverage policy
language and (b) the UIM component is not limited to a
comparison of the coverage limits of the insured and the
tortfeasor, but also looks to the amount actually paid to the
insured by the tortfeasor's insurer?
Doc. 45, at 8.
to certify a question of state law to the state supreme court
is within the discretion of the federal court.”
Armijo v. Ex Cam Inc., 843 F.2d 406, 407 (10th
Cir.1988). The New Mexico Supreme Court “may answer a
question of law certified to it by a court of the United
States ... if the answer may be determinative of an issue in
pending litigation in the certifying court and there is no
controlling appellate decision, constitutional provision or
statute of this state.” N.M. Stat. § 39-7-4. A
federal court “will not trouble our sister state courts
every time an arguably unsettled question of state law comes
across our desks. When we see a reasonably clear and
principled course, we will seek to follow it
ourselves.” Pino v. United States, 507 F.3d
1233, 1236 (10th Cir. 2007). A federal court will certify a
question where it “(1) may be determinative of the case
at hand and (2) is sufficiently novel that [the court]
feel[s] uncomfortable attempting to decide it without further
Question certified by Judge Herrera is likely to resolve
substantial issues in this case.
Mexico Supreme Court's answer to Judge Herrera's
certified question is likely to resolve substantial issues in
this case and provide a clear and principled course for this
Court to ...