United States District Court, D. New Mexico
DIANE MARTINEZ; and ERIN MARTIN, individually and on behalf of other similarly situated individuals. Plaintiffs,
PROGRESSIVE PREFERRED INSURANCE COMPANY; PROGRESSIVE CLASSIC INSURANCE COMPANY; PROGRESSIVE CASUALTY INSURANCE COMPANY; PROGRESSIVE MAX INSURANCE COMPANY; PROGRESSIVE DIRECT INSURANCE COMPANY; PROGRESSIVE ADVANCED INSURANCE COMPANY; PROGRESSIVE SPECIALTY INSURANCE COMPANY; and PROGRESSIVE NORTHERN INSURANCE COMPANY, Defendants.
MEMORANDUM OPINION AND ORDER
H. Ritter, U.S. Magistrate Judge.
matter comes before the Court on Plaintiffs' Opposed
Motion to Stay [Doc. 18], filed February 1, 20');">2019');">19, and
Defendants' 12(b)(6) Motion to Dismiss, Alternative
Motion to Certify Questions to the New Mexico Supreme Court,
and Brief in Support [Doc. 19');">19], filed February 8,
20');">2019');">19. Pursuant to 28 U.S.C. § 636(c) and
Fed.R.Civ.P. 73(b) the parties have consented to the
undersigned magistrate judge to preside over this case and
enter final judgment. [See Docs. 14, 15]. Having
considered the parties' respective response and reply
briefs, as well as the notices of supplemental authority
filed pursuant to Local Rule 7.8 [Docs. 21, 25, 31, 32, 33,
34], the Court grants Plaintiffs' Motion
to Stay these proceedings pending the New Mexico Supreme
Court's decision in Crutcher v. Liberty Mutual
Insurance Company, CV 18-0412 JCH/LF, and
denies Defendants' Motion to Dismiss and
Alternative Motion to Certify, for the reasons set forth
Diane Martinez and Erin Martin were both insured by the
Progressive Defendants during the relevant time period. [Doc.
17, pp. 3');">p. 3, 7]. Ms. Martin's policy provided liability
coverage for one vehicle in the amount of $25, 0000.00 per
person, $50, 000.00 per accident (New Mexico's minimum
required liability insurance limit) and also purportedly
provided uninsured and underinsured motorist coverage in the
amount of up to $25, 000.00 per person, $50, 000.00 per
accident. [Id., p. 3');">p. 3]. Ms. Martinez' policy also
provided for liability coverage in the amount of $25, 000.00
per person, $50, 000.00 per accident, but she has three
vehicles; thus, her policy also provided for uninsured and
underinsured motorist coverage in the amount of $25, 000.00
per person, $50, 000.00 per accident, stackable for total
uninsured and underinsured motorist coverage in the amount of
up to $75, 000.00 per person, $150, 000.00 per accident.
[Id., p. 7].
Plaintiffs were injured in automobile collisions.
[Id., pp. 5, 9]. Neither were determined to be at
fault, [id.], and both were injured by drivers who
maintained New Mexico's minimum required liability
insurance limits of $25, 000.00 per person, $50, 000.00 per
accident. [Id., pp. 6, 10]. Both received $25,
000.00, the full extent of liability coverage, from the
tortfeasors' insurers. [Id.]. However, both
suffered damages in excess of this amount. [Id.].
Accordingly, both then turned to their own insurers - the
Progressive Defendants - for additional compensation.
[Id.]. Both claims were denied as to the first $25,
000.00, because the Progressive Defendants deducted from the
coverage they owed Plaintiffs the amount paid by the
tortfeasors' insurers. [Id., pp. 7, 11]. This
left Ms. Martin, who only had one vehicle insured by the
Progressive Defendants, with nothing other than her recovery
from the tortfeasor, and Ms. Martinez with a total of only
$50, 000.00 in available underinsured motorist benefits.
now bring this putative class action case against the
Progressive Defendants, asserting that the first $25, 000.00
of their purported uninsured motorist benefits were illusory.
[Id.]. They seek to represent the following class:
All persons … who paid a premium for an (sic)
underinsured motorist coverage on a policy that was issued or
renewed in New Mexico by Progressive and that purported to
provide the statutorily require UM/UIM minimum limits of $25,
000 per person/$50, 000 per accident, but which effectively
provides no underinsured motorists (sic) coverage, because of
the statutory offset recognized in Schmick v. State Farm
Mutual Automobile Insurance Company, 704 P.2d 1092
[Id., p. 11].
not the first case of its kind. While the parties were
briefing the instant Motions, District Judge Herrera
certified, and the New Mexico Supreme Court accepted, the
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
See Crutcher v. Liberty Mutual Insurance Company, CV
18-0412 JCH/LF, Doc. 53 (Certification to the New Mexico
Supreme Court), Doc. 55 (Order Accepting Certified Question).
As Judge Herrera explained in her Certification Order, a
series of federal cases have been filed in the wake of
District Judge Browning's decision in Bhasker v.
Kemper Cas. Ins. Co., CV 17-0260 JB/JHR, where the Court
“made an [E]rie judgment that under
New Mexico law Ms. Bhasker plausibly alleged that an insurer
sold her illusory UIM coverage when it sold her UM/UIM
coverage at the minimum level.” CV 18-0412 JCH/LF, Doc.
53, p. 7. Following the New Mexico Supreme Court's
acceptance of the certified question in Crutcher,
District Judge Vazquez subsequently stayed the proceedings in
Thaxton v. GEICO Advantage Ins. Co., CV 18-0306
MV/KK, and concluded that the defendants' motion to
certify in that case was rendered moot. Chief District Judge
Johnson followed suit in Schwartz v. State Farm Mutual
Automobile Ins. Co., CV 18-0328 WJ/SCY, after
determining that the certified question is substantially
similar to the question the defendants in that case sought to
certify. See id., Doc. 55, p. 4. Chief Judge Johnson
also denied additional certification on the grounds that he
would be able to address the second proposed certified
question in that case once the New Mexico Supreme Court
responded to the certified question in Crutcher.
Id., p. 6.
now move the Court to enter a stay in this case until the New
Mexico Supreme Court answers the certified question in
Crutcher. [See generally Doc. 18].
Defendants generally oppose a stay, arguing in their Motion
to Dismiss that this Court should determine that the coverage
they provided to both Plaintiffs was not illusory.
[See Doc. 19');">19, p. 3');">p. 3 (Defendants argue that both
claims are barred, positing that “[t]he numbers are
different, but the methodology is the same. Progressive did
exactly what Schmick instructs, and following the
law cannot be unlawful as Plaintiffs claim.”)]. That
said, in the event that this Court is inclined to stay the
case, Defendants ask the Court to certify two questions to
the New Mexico Supreme Court. As to Ms. Martin, Defendants
ask the Court to certify the following question:
Where a tortfeasor's minimum auto liability insurance
limits are the same as an injured driver's minimum UM/UIM
limits such that the tortfeasor is not
“underinsured” under N.M.S.A. § 66-5-301(B),
does the non-occurrence of the covered risk of being hit by
an “underinsured” driver create
“illusory” UIM coverage even though the risk of
being hit by an “underinsured” driver is covered
when it occurs?
[Doc. 19');">19, p. 2');">p. 25');">p. 2');">p. 25]. Asserting that Ms. Martinez' factual
situation is distinct from Ms. Martin's, Defendants ask
the Court to certify the ...