United States District Court, D. New Mexico
YVONNE APODACA, on behalf of herself and all others similarly situated, Plaintiff,
YOUNG AMERICA INSURANCE COMPANY, LOYA INSURANCE COMPANY, and EP LOYA GROUP, LP, Defendants.
MEMORANDUM OPINION AND ORDER
C. BRACK, SENIOR U.S. DISTRICT JUDGE
MATTER is before the Court on Defendants' Motion to
Dismiss Counts IV and V of Plaintiff's Second Amended
Complaint and all Claims Against Defendants EP Loya Group, LP
and Loya Insurance Company, filed April 5, 2019. (Doc. 33.)
putative class action, Ms. Apodaca (Plaintiff) alleges that
Defendants misrepresented the terms of her underinsured
motorist coverage. Defendants argue that Plaintiff does not
have standing to bring suit against either Loya Insurance
Company (Loya) or EP Loya Group, LP (EP Loya), and that she
has otherwise failed to state a claim as to Counts IV and V.
(Doc. 33.) For the reasons stated below, the Court
GRANTS IN PART Defendants' Motion and
DISMISSES all claims against Loya and EP
Loya. However, the remaining requests for relief by Defendant
Young America Insurance Company (Young America) are
DENIED WITHOUT PREJUDICE. Finally, the Court
sua sponte STAYS this case pending
an answer by the New Mexico Supreme Court to the question
certified in Crutcher v. Liberty Mutual Insurance
Co., 1:18-cv-412 JCH/LF (D.N.M.).
sustained bodily injuries and damages to her car in an
automobile accident with Mr. Ben Shriver. (Doc. 30 ¶
17.) Mr. Shriver was at fault for the accident. (Id.
¶ 19.) Plaintiff was covered by an auto insurance policy
issued by Young America. (Id. ¶ 5.) Plaintiff
carried insurance at New Mexico's minimum amounts, which
provide bodily injury coverage of $25, 000 per person and
$50, 000 per accident. (Id. ¶¶ 26, 27,
32.) She also purchased uninsured/underinsured (UM/UIM)
motorist coverage in the same amounts. (Id. ¶
received the full amount ($25, 000) of liability coverage
carried by Mr. Shriver. (Id. ¶ 26.) Plaintiff
filed a claim with Young America for coverage under her own
UM/UIM policy, but Young America denied her underinsured
motorist claim. (Id. ¶ 43.) Young America
stated that it was entitled to a full offset of Mr.
Shriver's policy payments. (Id. ¶ 47.)
Plaintiff alleges that Young America told her she would
receive a benefit from her underinsured motorist coverage,
but in fact her underinsured coverage was useless or
illusory. (Id. ¶¶ 36, 44, 94.)
filed a motion to dismiss for failure to state a claim. (Doc.
14.) The Court granted the motion in part, dismissing all
claims against EP Loya and Loya, and Counts IV and V against
Young America. (Doc. 27.) However, the Court granted
Plaintiff leave to amend her complaint. (Id. at 17.)
Plaintiff timely filed a Second Amended Complaint. (Doc. 30.)
Defendants now argue that Plaintiff failed to cure the
defects in her complaint and ask the Court to dismiss Counts
IV and V against Young America and all claims against EP Loya
parties proceed under Federal Rule of Civil Procedure
12(b)(6). In reviewing a motion to dismiss under Rule
12(b)(6), the Court “must accept all the well-pleaded
allegations of the complaint as true and must construe them
in the light most favorable to the plaintiff.” In
re Gold Res. Corp. Sec. Litig., 776 F.3d 1103,
1108 (10th Cir. 2015) (citation omitted). “To survive a
motion to dismiss, ” the complaint does not need to
contain “detailed factual allegations, ” but it
“must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556).
Plausibility does not equate to probability, but there must
be “more than a sheer possibility that a defendant has
acted unlawfully.” Id. (citing
Twombly, 550 U.S. at 556).
Plaintiff fails to state a claim against Loya and EP
argue that Plaintiff lacks standing to sue Loya and EP Loya.
Plaintiff argues that she has standing to sue because
Defendants are involved in a joint venture.
New Mexico, a party may be liable for the negligence of its
joint venturers.” MS through Harris v. E.
N.M. Mental Retardation Servs., No. CIV 13-628 RB-GBW,
2015 WL 13662789, at *15 (D.N.M. June 16, 2015) (citing
Schall v. Mondragon, 393 P.2d 457, 460 (N.M. 1964)).
A joint venture exists when two or more parties (1) enter
into an agreement, (2) to combine their money, property or
time in the conduct of some particular business deal, (3)
agree to share in the profits and losses of the venture
jointly, and (4) have the right of mutual ...