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Bhasker v. Financial Indemnity Co.

United States District Court, D. New Mexico

January 10, 2020

HELEN BHASKER, on behalf of herself and all others similarly situated, Plaintiff,
v.
FINANCIAL INDEMNITY COMPANY, Defendant.

          MEMORANDUM OPINION AND ORDER

          KEA W. RIGGS, UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on Defendant's Motion to Stay filed March 22, 2019 (Doc. 113). In this putative class action, Plaintiff alleges that Defendant misrepresented the terms of her underinsured motorist coverage and that the coverage it sold her is illusory. For the reasons stated below, the Court GRANTS Plaintiff's Motion to Stay 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.). Moreover, the pending Motion to Certify Class Action (Doc. 128) and Motion for Summary Judgment (Docs. 134 and 135) are DENIED WITHOUT PREJUDICE. The parties may refile these motions, if appropriate, after the New Mexico Supreme Court answers the certified question and the stay is lifted.

         I. Background

         Plaintiff alleges she was injured in a June 24, 2015 accident with an underinsured motorist. Plaintiff was covered by an auto insurance policy issued by Defendant. Plaintiff carried insurance at New Mexico's minimum amounts, which provide bodily injury coverage of $25, 000 per person and $50, 000 per accident. She also purchased uninsured/underinsured (UM/UIM) motorist coverage in the same amounts.

         She received the full extent of the at-fault driver's liability coverage, $25, 000. She sought coverage under her own minimum-level uninsured/underinsured motorist coverage. Defendant denied coverage, because it offset the $25, 000 she received from the at-fault driver against her underinsured motorist coverage of $25, 000. (Doc. 12, ¶ 44).

         Plaintiff alleges that Defendant misled her or failed to inform her that underinsured motorist coverage, when purchased at the minimum level, is “illusory.” She alleges that “a purchase of 25/50 underinsured coverage, when triggered by a crash with a tortfeasor who has 25/50 bodily injury liability limits, will result in a payment of premium for which no payment of benefits will ever occur and therefore violated plaintiff and other insureds reasonable expectations of benefiting from underinsured coverage.” (Doc. 12, ¶ 48.).

         In her First Amended Complaint (Doc. 12), Plaintiff asserted the following claims:

Count I: Negligence;
Count II: Violation of the New Mexico Unfair Trade Practices Act;
Count III: Violation of the New Mexico Unfair Insurance Practices Act;
Count IV: Breach of Contract and Claim for Underinsured Motorists Coverage;
Count V: Breach of the Covenant of Good Faith and Fair Dealing;
Count VI: Injunctive Relief;
Count VII: Declaratory ...

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