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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMCA-051

Filing Date: April 4, 2011 

Docket No. 29,537

FARMERS INSURANCE COMPANY

OF ARIZONA,

Plaintiff-Appellee,

v.

CHRISTINE SANDOVAL

and MELISSA CARTER,

Defendants-Appellants.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Theresa M. Baca, District Judge

O’Brien & Ulibarri, P.C.

Daniel J. O’Brien

Albuquerque, NM

for Appellee

Whitener Law Firm, P.A.

Thomas M. Allison

Albuquerque, NM 

for Appellants

OPINION

WECHSLER, Judge.

{1} In this appeal, we must determine whether an insurer is entitled to offset an injured

insured’s award of underinsured motorist (UIM) benefits by a tortfeasor’s liability policy

limits when the insured receives an amount less than policy limits due to a contractual

exclusion for punitive damages. In light of the remedial purpose of NMSA 1978, Section

66-5-301 (1983), we conclude that the insurer’s offset is limited to the amount of money
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actually received by the insured from the tortfeasor. Accordingly, we reverse the judgment

of the district court.

BACKGROUND

{2} The facts are undisputed. On March 19, 2006, Christine Sandoval and Melissa Carter

(collectively, Defendants) were involved in an automobile accident with Shawna Chavez,

who was driving while intoxicated. As a result of the accident, Sandoval incurred medical

expenses in the amount of $2194.74, lost wages in the amount of $444.48, and pain and

suffering. Carter incurred medical expenses in the amount of $2213, lost wages in the

amount of $1000, and pain and suffering.

{3} Defendants sought compensatory and punitive damages from Mid-Century Insurance

Company (Mid-Century), which insured Chavez’s vehicle for liability coverage in the

amount of $25,000 per person and $50,000 per accident. However, the Mid-Century policy

explicitly excluded punitive damages from liability coverage. Because Defendants’

compensatory damages are less than $25,000 each, it is anticipated that they will settle their

claims against Mid-Century for an amount less than policy limits.

{4} Defendants filed a UIM claim against Farmers Insurance Company of Arizona

(Farmers), which insured Carter’s vehicle for $30,000 per person and $60,000 per accident.

Defendants each sought $30,000 in punitive damages, alleging that Chavez was underinsured

with respect to punitive damages. Farmers determined that Defendants were entitled to UIM

benefits in the amount of $5000 each, which it calculated by offsetting the policy limits of

Defendants’ UIM coverage ($30,000) by the policy limits of the Mid-Century policy

($25,000). Defendants did not dispute that Farmers was entitled to an offset, but claimed

that this offset must be based on the amount of money actually received by Defendants in

settlement of their claims, rather than the liability limits of the Mid-Century policy.

{5} Farmers filed a declaratory judgment action in district court to determine the amount

of its offset under Section 66-5-301 and the UIM policy. Farmers and Defendants each

moved for summary judgment. The district court granted Farmers’ motion and denied

Defendants’ motion. Defendants appeal, claiming that an insurer’s offset is “limited to the

amount of liability proceeds actually available to the injured insureds when that amount is

less than the amount of [UIM] coverage.”

STANDARD OF REVIEW

{6} “Summary judgment is proper when the material facts are undisputed and the only

remaining issues are questions of law.” Bird v. State Farm Mut. Auto. Ins. Co.,

2007-NMCA-088, ¶ 7, 142 N.M. 346, 165 P.3d 343. We review a district court’s grant of

summary judgment de novo. Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126

N.M. 396, 970 P.2d 582.
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STATUTORY OFFSET

{7} We begin our analysis with Section 66-5-301(B), which was “designed to expand

insurance coverage to protect the public from damage or injury caused by other motorists

who were not insured [or were underinsured] and could not make the impaired party whole.”

Marckstadt v. Lockheed Martin Corp., 2010-NMSC-001, ¶ 15, 147 N.M. 678, 228 P.3d 462

(internal quotation marks and citation omitted). “Because we liberally interpret the statute

in order to implement its remedial purpose, language in the statute that provides for an

exception to uninsured coverage should be construed strictly to protect the insured.” Romero

v. Dairyland Ins. Co., 111 N.M. 154, 156, 803 P.2d 243, 245 (1990) (citation omitted). “To

that end, the only limitations on protection are those specifically set out in the statute itself:

that the insured be legally entitled to recover damages and that the negligent driver be

uninsured” or underinsured. Schmick v. State Farm Mut. Auto. Ins. Co., 103 N.M. 216, 219,

704 P.2d 1092, 1095 (1985).

{8} Given the remedial purpose of the statute, our Supreme Court has held that

“uninsured motorist coverage includes coverage for punitive damages.” Stewart v. State

Farm Mut. Auto. Ins. Co., 104 N.M. 744, 746, 726 P.2d 1374, 1376 (1986). Punitive

damages, which derive from actual damages, “‘are as much a part of the potential award

under the uninsured motorist statute as damages for bodily injury, and therefore they cannot

be contracted away.’” Manzanares v. Allstate Ins. Co., 2006-NMCA-104, ¶ 5, 140 N.M.

227, 141 P.3d 1281 (quoting Stinbrink v. Farmers Ins. Co., 111 N.M. 179, 180, 803 P.2d

664, 665 (1990)). Accordingly, “an insured may recover punitive damages from his insurer

if he would be legally entitled to recover them from the uninsured tortfeasor.” Stewart, 104

N.M. at 747, 726 P.2d at 1377.

{9} However, the amount of punitive damages recovered through an insured’s UIM

carrier may not be commensurate with the amount of punitive damages for which a tortfeasor

is liable. This is so because “the Legislature, in defining [a UIM], set the . . . maximum on

the amount an insured can collect from his [UIM] carrier.” Schmick, 103 N.M. at 222, 704

P.2d at 1098. Specifically, an insured’s recovery is limited to the aggregate amount of

uninsured motorist coverage purchased for the insured’s benefit reduced by the statutory

offset inherent in Section 66-5-301. See Schmick, 103 N.M. at 223, 704 P.2d at 1099;

Manzanares, 2006-NMCA-104, ¶ 9 (holding that an insured cannot recover punitive

damages in excess of UIM coverage minus the insurer’s offset).

{10} In this case, we must determine the amount of Farmers’ statutory offset. In Schmick

and its progeny, the insureds actually received an amount equal to the liability limits of the

tortfeasor and, therefore, the courts did not directly address the question before us. See, e.g.,

Am. States Ins. Co. v. Frost, 110 N.M. 188, 189, 793 P.2d 1341, 1342 (1990); Fasulo v. State

Farm Mut. Auto. Ins. Co., 108 N.M. 807, 808, 780 P.2d 633, 634 (1989); Schmick, 103 N.M.

at 218, 704 P.2d at 1094; State Farm Mut. Auto. Ins. Co. v. Jones, 2006-NMCA-060, ¶ 2,

139 N.M. 558, 135 P.3d 1277; Manzanares, 2006-NMCA-104, ¶ 2; Martinez v. Allstate Ins.

Co., 1997-NMCA-100, ¶ 3, 124 N.M. 36, 946 P.2d 240. Accordingly, language in those
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We note that the amount of punitive damages to which Defendants are entitled has

not yet been determined. For the purposes of this appeal, we assume that Defendants are

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cases stating that an insurer’s offset should be measured by the tortfeasor’s “liability

coverage” or, alternately, by the “liability proceeds” received by the insured, is not

dispositive. See Fernandez v. Farmers Ins. Co. of Ariz., 115 N.M. 622, 627, 857 P.2d 22,

27 (1993) (“The general rule is that cases are not authority for propositions not considered.”

(internal quotation marks and citation omitted)).

{11} Section 66-5-301(B) provides that “uninsured motorist coverage . . . shall include

underinsured motorist coverage.” Under the statute, an “underinsured motorist” is “an

operator of a motor vehicle with respect to the ownership, maintenance or use of which the

sum of the limits of liability under all bodily injury liability insurance applicable at the time

of the accident is less than the limits of liability under the insured’s [UIM] coverage.” Id.

Farmers claims that the statute “creates and defines UIM insurance in terms of the

tortfeasor’s full liability coverage only,” and, therefore, “UIM payments must be offset by

the full liability limits of the tortfeasor’s policy.” Defendants respond that, to effectuate the

remedial purpose of the statute, the insurer’s offset must be limited to the amount of liability

proceeds actually received by the insured.

{12} Because it is unclear whether a valid contractual exclusion for punitive damages,

such as the one at issue in this case, reduces the “limits of liability” under the tortfeasor’s

policy under Section 66-5-301(B), we consider the statute to be ambiguous. We thus turn

to the purpose of the statute in order to discern the Legislature’s intent. See Wilson v.

Denver, 1998-NMSC-016, ¶ 36, 125 N.M. 308, 961 P.2d 153 (“In order to discern the intent

of the Legislature when interpreting an ambiguous statute, we resort to well-accepted rules

of statutory construction, always striving to select the rationale that most likely accomplishes

the legislative purpose[,]or best fills a void not addressed by the Legislature.” (internal

quotation marks and citation omitted)).

{13} As previously explained, the purpose of Section 66-5-301

is to assure that, in the event of an accident with an underinsured vehicle, an

insured motorist entitled to compensation will receive at least the sum certain

in underinsurance coverage purchased for his or her benefit. To the extent

the amount of other available insurance proceeds from responsible

underinsured tortfeasors does not equal or exceed the amount of coverage

purchased, the UIM carrier must satisfy the difference.

Fasulo, 108 N.M. at 811, 780 P.2d at 637. In this case, $30,000 in UIM coverage has been

purchased for each Defendant’s benefit. To assure that Defendants receive at least this sum

certain in coverage, we conclude that Farmers’ offset is limited to the amount of liability

proceeds actually received by Defendants from Mid-Century.1
entitled to recover at least $30,000 in punitive damages. See Schmick, 103 N.M. at 222, 704

P.2d at 1098 (noting that an insured cannot recover more than his total damages in UIM

benefits).

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{14} We find support for our conclusion in Gonzales v. Millers Casualty Insurance Co.

of Texas, 923 F.2d 1417 (10th Cir. 1991), and State Farm Mutual Automobile Insurance Co.

v. Valencia, 120 N.M. 662, 905 P.2d 202 (Ct. App. 1995), which considered whether the

UIM benefits of multiple claimants whose total damages exceeded the liability coverage of

the tortfeasor’s policy should be calculated based on the tortfeasor’s policy limits, or the

amount of liability proceeds actually received by the claimants. The Tenth Circuit Court of

Appeals and this Court both concluded “that New Mexico’s uninsured/underinsured motorist

statute should be liberally construed to implement the purpose of the statute” and that

“restricting an insured to the policy limits of the tort-feasor’s liability coverage, ‘rather than

the liability proceeds actually available to a given insured [under his or her own policy]

would tend to produce the illogical . . . situation the legislators sought to avoid.’” Valencia,

120 N.M. at 665, 905 P.2d at 205 (quoting Gonzales, 923 F.2d at 1422) (alterations in

original). As a result,

in multiple-claimant situations, insured motorists who are covered under an

uninsured/underinsured motorist policy and who suffer from injuries

resulting from an automobile accident are entitled to collect up to the limit

of their underinsurance policy to the extent that their damages exceed the

amounts that the tort-feasor’s insurer has previously paid to them.

Id.

{15} In oral argument before this Court, Farmers argued that Gonzales and Valencia are

factually distinguishable from this case because Defendants seek punitive damages, which

“generally evoke less compelling concerns” than compensatory damages. Manzanares,

2006-NMCA-104, ¶ 10. In Manzanares, the plaintiff received a “total recovery of $60,000”

for bodily injuries sustained in an automobile accident. Id. ¶ 2. The tortfeasors’ policies

excluded recovery for punitive damages and, therefore, the plaintiff submitted a claim to her

own insurer for UIM benefits. Id. ¶¶ 2-3. The limit of the plaintiff’s UIM coverage was

$30,000, but the plaintiff argued that “the tortfeasors should be deemed ‘uninsured’ or

‘partially uninsured’ [rather than] ‘underinsured’[] for purposes of punitive damages.” Id.

¶¶ 3, 6.

{16} We rejected the plaintiff’s invitation to draw a distinction between punitive damages

and compensatory damages in Manzanares, noting that “New Mexico has characterized

punitive damages as deriving from actual damages.” Id. ¶ 5. Indeed, a claimant “is

generally entitled to recover punitive damages under [the claimant’s] UIM coverage”

precisely “because they are a part of [the claimant’s] bodily injury claim.” Id. Accordingly,

we held that the plaintiff’s UIM carrier was entitled to an offset in the amount of $60,000,
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regardless of whether the tortfeasors were uninsured or underinsured, or whether the

tortfeasors’ policies excluded payment for punitive damages. Id. ¶ 9. To the extent that the

plaintiff asked this Court to create “a special exception” to the offset provisions for punitive

damages, we rejected her claim. Id. ¶ 10. We observed that it would be “illogical to create

a special rule that allows offset of UIM coverage for bodily injury damages, but does not

allow offset for punitive damages,” because “punitive damages generally evoke less

compelling concerns.” Id.

{17} Farmers’ reliance on Manzanares does not translate to this case. In Manzanares, we

expressly refused to distinguish between punitive damages and compensatory damages in

the context of a UIM claim because punitive damages “stem from bodily injury damages.”

Id. Although we noted that “punitive damages generally evoke less compelling concerns[,]”

we did so in response to the plaintiff’s request to make a special exception to the offset

provision for punitive damages only. Id. As in Manzanares, we refuse to formulate a

special rule in this case simply because Defendants seek to recover punitive damages, rather

than compensatory damages, under their UIM policy.

{18} Moreover, “[w]e must take care to avoid adoption of a construction that would render

the statute’s application absurd or unreasonable or lead to injustice or contradiction.” State

v. Nick R., 2009-NMSC-050, ¶ 11, 147 N.M. 182, 218 P.3d 868 (internal quotation marks

and citation omitted). If we were to construe Section 66-5-301 to permit an offset in the

amount of a tortfeasor’s policy limits, even though the injured insured recovered less than

policy limits, it would lead to an anomalous result. Specifically, an injured insured would

be entitled to a greater recovery if he or she was in an automobile accident with a totally

uninsured driver, rather than an underinsured driver. “We doubt the [L]egislature intended

such a result when it enacted the U[I]M statute, and we doubt that our case law interpreting

the statute anticipated or would allow such an anomaly.” Jones, 2006-NMCA-060, ¶ 29

(refusing to allow a UIM carrier a contractual offset because the injured insured would be

entitled to a greater recovery if she had been hit by an uninsured driver, rather than an

underinsured driver); see Schmick, 103 N.M. at 221, 704 P.2d at 1097 (declaring a

contractual exclusion void because the injured insured would be entitled to a greater

recovery of UIM benefits if she had been hit by an uninsured driver, rather than an

underinsured driver). Accordingly, we decline to construe the statute in such an absurd

manner.

CONTRACTUAL OFFSET

{19} Farmers next claims that it is entitled to a contractual offset in the amount of the

tortfeasor’s liability limits under the plain language of the UIM policy, which provides that

“[t]he amount of [u]ninsured [m]otorist [c]overage we will pay . . . shall be reduced by the

amount of any other bodily injury coverage available to any party held to be liable for the

accident.” (Emphasis omitted.) Farmers argues that $25,000 in liability coverage was

“available” under the Mid-Century policy and, therefore, Defendants’ UIM benefits may be

reduced by this amount. Defendants respond that coverage for punitive damages was not
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“available” under the Mid-Century policy, only coverage for compensatory damages.

Alternatively, Defendants claim that the contractual offset is void because it violates the

remedial legislative policy underlying Section 66-5-301.

{20} “Once uninsured motorist coverage is purchased, the insurance consumer is entitled

to secure the full extent of the benefit which the law requires to be offered. Attempts by

insurers to reduce this benefit by exclusion clauses are repugnant to the public policy of

protecting persons injured in automobile accidents.” Boradiansky v. State Farm Mut. Auto.

Ins. Co., 2007-NMSC-015, ¶ 10, 141 N.M. 387, 156 P.3d 25 (internal quotation marks and

citation omitted). Thus, contractual exclusions that conflict with the mandatory requirements

of Section 66-5-301 are void. Boradiansky, 2007-NMSC-015, ¶ 10; see Schmick, 103 N.M.

at 218, 704 P.2d at 1093 (holding that Section 66-5-301 “will be read into the [insurance]

policies and, to the extent that the policy provisions conflict with the statute, the statute

prevails”).

{21} Under Section 66-5-301, an injured insured whose total damages exceed the liability

proceeds received from the tortfeasor is entitled to recover the difference from the insured’s

UIM carrier, at least up to the limits of his UIM coverage. Accordingly, Farmers’

contractual offset is void to the extent that it purports to limit Defendants’ recovery of UIM

benefits to an amount less than the limits of their UIM coverage ($30,000 each), minus an

offset in the amount of the liability proceeds actually received by Defendants under the MidCentury policy.

CONCLUSION

{22} We conclude that Farmers’ offset is limited to the amount of liability proceeds

actually received by Defendants under the Mid-Century policy. Accordingly, we reverse the

judgment of the district court granting Farmers’ motion for summary judgment.

{23} IT IS SO ORDERED.

______________________________________

JAMES J. WECHSLER, Judge

WE CONCUR:

______________________________________

CELIA FOY CASTILLO, Chief Judge

______________________________________

MICHAEL D. BUSTAMANTE, Judge

Topic Index for Farmers Ins. Co. of Ariz. v. Sandoval, Docket No. 29,537
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AE APPEAL AN ERROR

AE-SR Standard of Review

IN INSURANCE

IN-ID Insurance Code

IN-IC Insurance Contract

IN-UM Uninsured or Underinsured Motorist

RE REMEDIES

RE-CO Credits and Offsets

RE-ID Indemnification

RE-PU Punitive Damages

ST STATUTES

ST-IP Interpretation

ST-LI Legislative Intent

ST-RC Rules of Construction