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USAA Casualty Insurance Co. v. Calderon

United States District Court, D. New Mexico

June 25, 2019

USAA CASUALTY INSURANCE COMPANY, Plaintiff,
v.
BETHANY CALDERON, individually and as Personal Representative of the ESTATE OF SEBASTIAN CALDERON deceased; TIMOTHY WADE, an individual, Defendants. BETHANY CALDERON, Individually and as Personal Representative of the ESTATE OF SEBASTIAN CALDERON, Deceased, Counter-Plaintiff,
v.
USAA CASUALTY INSURANCE COMPANY, Counter-Defendant.

          MEMORANDUM OPINION AND ORDER DENYING USAA'S MOTION FOR SUMMARY JUDGMENT AND GRANTING BETHANY CALDERON'S MOTION FOR SUMMARY JUDGMENT

          STEVEN C. YARBROUGH UNITED STATES MAGISTRATE JUDGE.

         Resolution 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. 40).[1]

         BACKGROUND

         A. Procedural History

         USAA 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.

         On 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.

         USAA 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.

         B. Undisputed Facts

         The 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.

         In this case, the parties[2] 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.

         Ms. 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.

         STANDARD OF REVIEW

         “The 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.

         Because 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 ...


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