United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING USAA'S
MOTION FOR SUMMARY JUDGMENT AND GRANTING BETHANY
CALDERON'S MOTION FOR SUMMARY JUDGMENT
C. YARBROUGH UNITED STATES MAGISTRATE JUDGE.
of this declaratory judgment action turns on the meaning of
“bodily injury” as that term is used in an
automobile insurance policy. Defendant Bethany Calderon
argues that both she and her husband received a bodily injury
when Plaintiff USAA's insured killed her husband in an
automobile accident. Although Ms. Calderon was not herself
involved in the accident, she claims damages for loss of
consortium which, she argues, constitute a separate bodily
injury under the terms of USAA's insurance policy. USAA
disagrees, arguing that only Mr. Calderon received bodily
injuries in the accident and, therefore, the policy limit of
$100, 000 per person applies rather than the policy limit of
$200, 000 per occurrence. Although USAA would have the better
end of the argument under the common definition of
“bodily injury, ” Ms. Calderon's argument
prevails under the definition of “bodily injury”
contained in the policy. Therefore, the Court DENIES
Plaintiff USAA's Motion For Summary Judgment Against
Defendants Calderon (Personally And As Estate Representative)
And Wade, filed January 17, 2019 (Doc. 34); and GRANTS
Defendant And Counter-Plaintiff Bethany Calderon,
Individually And As Personal Representative Of The Estate Of
Sebastian Calderon, Deceased's Motion And Counter For
Summary Judgment, filed February 22, 2019 (Doc.
filed this suit on June 25, 2018 against Timothy Wade, its
insured who drove the other vehicle involved in the accident,
and Ms. Calderon. Doc. 1. USAA filed an Amended Complaint on
June 27, 2018. Doc. 6. Ms. Calderon filed her Answer and
Counterclaim for Declaratory Judgment on September 20, 2018.
Doc. 10. Ms. Calderon also filed an Amended Answer and
Counterclaim for Declaratory Judgment on September 20, 2018.
Doc. 11. Mr. Wade did not file an answer. USAA answered the
Amended Counterclaim on October 9, 2018. Doc. 15. The Amended
Complaint and the Amended Counterclaim both ask the Court to
issue a declaratory judgment on the policy limits of the
insurance policy USAA issued to Mr. Wade. Doc. 6 at 4; Doc.
11 at 6.
September 27, the parties met and conferred. Doc. 19 at 1.
Mr. Wade attended that conference and indicated he was
seeking legal counsel to represent him in the case.
Id. at 2. He did not take a position with respect to
USAA's request for declaratory judgment but reserved the
right to do so. Id. at 4. Mr. Wade electronically
approved the parties' Joint Status Report
(“JSR”). Id. at 9. Magistrate Judge
Kirtan Khalsa held a scheduling conference on November 1,
2018, at which all parties, including Mr. Wade, appeared.
Doc. 22. The parties advised Judge Khalsa that this matter
would likely be resolved on summary judgment and that the
discovery in the case would be limited. Id.
Accordingly, Judge Khalsa entered a discovery order on a
150-day track. Id.; Doc. 23. Judge Khalsa informed
Mr. Wade that he would need to file an Answer, but it appears
from the docket that he never did so. In addition, mail the
Clerk's Office has sent to Mr. Wade apparently is not
reaching him. See Docs. 29-33, 37, 46 & 52
(notification by the Clerk of Court that mail sent to Timothy
Wade has been returned as undeliverable since November 19,
2018). Plaintiff has not filed a request for entry of default
or a motion for default judgment.
and Ms. Calderon filed cross-motions for summary judgment
soon after the scheduling conference. USAA filed its Motion
For Summary Judgment Against Defendants Calderon (Personally
And As Estate Representative) And Wade on January 17, 2019
(“the motion”). Doc. 34. Ms. Calderon filed a
response on February 19, 2019. Doc. 38. USAA filed its Reply
on March 12, 2019. Doc. 42. Meanwhile, Ms. Calderon filed her
Motion And Counter For Summary Judgment on February 22, 2019
(“the counter-motion”). Doc. 40. USAA filed a
response on March 8, 2019. Doc. 41. Ms. Calderon filed a
Reply on April 8, 2019. Doc. 47. Mr. Wade has not filed any
motions or responses. Briefing on both motions is complete
and the motions are ready for decision.
undisputed facts, which are set forth in the motions for
summary judgment as well as the parties' JSR, are as
follows. On August 31, 2016, as Sebastian Calderon (Ms.
Calderon's husband) drove his motorcycle down San Mateo
Blvd NE in Albuquerque, New Mexico, Mr. Wade struck and
killed Mr. Calderon while making a left hand turn in his car.
Doc. 19 at 3. At the time of the accident, USAA insured Mr.
Wade. Id. On January 25, 2018, Ms. Calderon brought
a wrongful death suit in state court on behalf of the Estate
of Sebastian Calderon and on her own behalf for loss of
consortium. Doc. 19 at 3-4. USAA provided a defense to Mr.
Wade in the underlying state court action. Id. at 4.
The parties' settlement talks apparently ran into a road
block when they could not agree on the relevant policy limit.
Doc. 6 ¶ 13.
case, the parties agree that the policy has a limit of $100,
000 per person and $200, 000 per accident. Doc. 34 at 6; Doc.
38 at 2. In its motion for summary judgment, USAA argues that
even though Ms. Calderon asserts claims on behalf of Mr.
Calderon as well as on her own behalf for loss of consortium,
there is physical injury to one person only and so the
per-person coverage limit applies. Doc. 34 at 6-7. In
response, Ms. Calderon asserts that there are two bodily
injuries - hers and her husbands - and so the higher
per-accident limit of liability of $200, 000 applies. Doc. 38
at 3. Ms. Calderon argues that, in addition to her
husband's bodily injury, her own loss of consortium
constitutes a bodily injury because it arises out of the
physical injury to Mr. Calderon. Doc. 38 at 6.
Calderon incorporated the same arguments in her
counter-motion. Doc. 40. USAA incorporated the arguments from
its motion into its response to the counter-motion. Doc. 41.
USAA then filed a reply in support of its motion, Doc. 42,
and Ms. Calderon used her reply in support of her
counter-motion to essentially file a surreply to USAA's
reply, Doc. 47.
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). A dispute about a material fact is
“genuine” if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). In other words, a dispute is genuine
“if there is sufficient evidence on each side so that a
rational trier of fact could resolve the issue either way,
” and it is material “if under the substantive
law it is essential to the proper disposition of the
claim.” Becker v. Bateman, 709 F.3d 1019, 1022
(10th Cir. 2013) (internal quotation marks omitted). In
reviewing a motion for summary judgment, the Court views the
evidence and all reasonable inferences therefrom in the light
most favorable to the non-moving party. S.E.C. v.
Thompson, 732 F.3d 1151, 1156-57 (10th Cir. 2013)
(internal quotation marks omitted). Initially, the party
seeking summary judgment has the burden of showing that there
is no genuine dispute as to any material fact. See
Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033,
1036 (10th Cir. 1993). Once the moving party meets its
burden, the non-moving party must show that genuine issues
remain for trial. Id.
this Court is sitting in diversity jurisdiction, the
substantive law governing this case is that of New Mexico.
Racher v. Westlake Nursing Home Ltd. P'ship, 871
F.3d 1152, 1164 (10th Cir. 2017). New Mexico courts
“resolve questions regarding insurance policies by
interpreting their terms and provisions in accordance with
the same principles which govern the interpretation of all
contracts.” Ponder v. State Farm Mut. Auto. Ins.
Co., 2000-NMSC-033, ¶ 11, 129 N.M. 698, 702
(internal quotation marks omitted). “In order to
determine coverage, [courts] initially look to the language
of the policy itself.” Gonzales v. Allstate Ins.
Co., 1996-NMSC-041, ¶ 12, 122 N.M. 137, 139. New
Mexico courts “interpret unambiguous insurance
contracts in their usual and ordinary sense unless the
language of the policy requires something ...