This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 PROGRESSIVE CASUALTY 7 INSURANCE COMPANY, 8 Plaintiff-Appellee, 9 v. NO. 28,023, 10 NO. 28,393 11 NANCY COLLEEN VIGIL consolidated 12 and MARTIN VIGIL, 13 Defendants-Appellants. 14 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 15 Richard J. Knowles, District Judge 16 O’Brien & Ulibarri, P. C. 17 Daniel J. O’Brien 18 Albuquerque, NM 19 for Appellee 20 Janet Santillanes 21 Olivia Neidhardt 22 James T. Roach 23 Albuquerque, NM 24 for Appellants 25 MEMORANDUM OPINION 26 GARCIA, Judge. 272 Nancy Vigil and her son, Martin Vigil, (the Vigils) appeal from a partial 1 summary judgment decision in favor of Progressive Casualty Insurance Company 2 (Progressive). We must decide whether th e district court properly awarded partial 3 summary judgment to Progressive based upon the court’s determination that the 4 underlying insurance policy provided no coverage on the day of Martin Vigil’s car 5 accident. We hold that partial summary judgment should not have been granted. 6 Therefore, we reverse and remand for fu rther proceedings regarding the coverage 7 issue. Reversal of the district court’ s partial granting of summary judgment also 8 requires us to vacate the reimbursement dama ge award in favor of Progressive and the 9 award of costs by the district court. 10 STANDARD OF REVIEW 11 We review the granting of summary judgment de novo. Self v. United Parcel 12 Serv., Inc. , 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “Summary judgment 13 is appropriate where there are no genuine i ssues of material fact and the movant is 14 entitled to judgment as a matter of law.” Id. We use the remedy of summary 15 judgment with caution. See Rummel v. Lexington Ins. Co. , 1997-NMSC-041, ¶¶ 15- 16 16, 123 N.M. 752, 945 P.2d 970. Because resolution on the merits is favored, we 17 must “view the facts in a light most favorable to the party opposing the motion and 18 draw all reasonable inferences in support of a trial on the merits.” Handmaker v. 193 Henney , 1999-NMSC-043, ¶ 18, 128 N.M. 328, 992 P. 2d 879. Our description of the 1 underlying facts conforms to this standard. 2

BACKGROUND 3 In the early hours of November 4, 2002, Martin Vigil was involved in a car 4 accident. One of the passengers in the vehi cle was killed, and others were seriously 5 injured. The day of the accident, Nanc y Vigil reported the accident to their 6 automobile insurance carrier, Progressive. The Vigils had been Progressive customers 7 for a couple of years prior to the time of the accident. Their insurance policy had 8 covered three vehicles, including the vehicle involved in the accident, with liability 9 limits of $100,000 per person and $300,000 per accident. 10 The dispute in this case relates to the effective dates of the Vigils’ policy. Both 11 the declarations page and the routine billi ng statements specified that the policy was 12 effective from May 3 through November 3, 2002. However, subsequent events 13 clouded the issue. 14 In late September 2002, Nancy Vigil contacted Progre ssive in order to modify 15 their coverage, to reflect that one vehi cle had been sold and another purchased. 16 Several days later, on Oct ober 3, 2002, Nancy Vigil called to make the monthly 17 premium payment. Progressive utilized both an automated system and customer 18 service representatives to address billi ng and other policy questions. During this 194 October 3 call, Nancy Vigil spoke with a customer service representative who 1 indicated that the change in vehicles resu lted in an increase in the monthly premium 2 and that the date would change from the third to the fift eenth of each month. Nancy 3 Vigil fully paid the new premium amount, $456. 03, at that time. The Vigils later 4 received a billing statement from Progressive , indicating that a premium payment was 5 due by October 15, 2002, in the precise amount that Nancy Vigil had paid during the 6 telephone call on October 3. One or two w eeks later, the Vigils received another 7 billing statement, indicating that a premium of $401.96 was due by November 3. On 8 October 16, Nancy Vigil called to inquire about the billing statements because the 9 customer service representative had previous ly indicated that the policy date would 10 change to mid-month and because she had recently received a billing statement 11 indicating that her payment had been due on October 15. Progressive’s automated 12 system indicated that the next premium was not due until November 15, 2002. 13 On November 4, 2002, Nancy Vigil called Progressive to report the accident 14 and to seek assurance that their policy re mained in effect. The customer service 15 representatives with whom she spoke reiterated that the next premium was not due 16 until November 15, 2002. The representative also confirmed that there had been no 17 lapse in coverage. Nancy Vigil then statedthat she wanted to pay the next premium 18 at that time, even though the payment would be early. Not long thereafter, the Vigils 195 received new insurance cards and policy documents, reflecting a policy period from 1 November 15, 2002 through May 15, 2003. 2 After the accident, Progressive changed its position with respect to coverage. 3 Based principally on the effective dates refl ected in the declarations page and billing 4 statements, as well as two notices sent to the Vigils in late October specifying that 5 further payment was due on or before November 3 in order to renew the policy, 6 Progressive asserted that the Vigils’ po licy had lapsed prior to the accident on 7 November 4. The Vigils disagreed withProgressive’s revised position regarding 8 coverage. The Vigils asserted that they were entitled to coverage primarily because 9 the billing statements reflected premium due dates of October 15 and November 15 10 and because Progressive te lephonically represented that no further payment was due 11 until November 15 and that the policy had not lapsed. 12 When lawsuits were filed against the Vigils by the estate of one of the 13 passengers and by another passenger who was seriously injured, Progressive elected 14 to settle for the maximum allowable amount, paying $100,000 to each claimant. 15 Progressive made these settlement s under a reservation of rights. 16 Progressive filed the underlying action agai nst the Vigils seeking a declaratory 17 judgment ruling to establish that the policy had lapsed and that there was no coverage 18 for the accident on November 4, 2002. Progressive also sought reimbursement from 19 the Vigils for the $200,000 that it had paid insettlement. The Vigils filed a counter- 206 claim for declaratory judgment and also advanced a number of tort theories and claims 1 under the Insurance Code and the Unfair Practices Act. 2 On the parties’ cross-motions for summary judgment, the district court held as 3 a matter of law that the Progressive policy had lapsed, and that there was no coverage 4 for the November 4 accident. The court denied summary judgment with respect to 5 Progressive’s reimbursement claim, as well as the Vigils’ remaining tort and statutory 6 claims. 7 After a jury trial, Progressive wa s awarded the $200,000 that it sought in 8 reimbursement and costs. The Vigils’ vari ous claims were rejected. This appeal 9 followed. 10 DISCUSSION 11 The critical issue is determining whether insurance coverage was in effect on 12 November 4, 2002. The Vig ils claim that Progressive’s conduct, specifically the 13 billing statements reflecting mid-month duedates and the telephonic representations 14 that coverage remained in effect and further payment was not due until November 15, 15 was sufficient to give rise to a genuine issu e as to the existence of coverage. Thus, 16 they argue, the issue should have been pres ented to the jury, and the district court 17 erred in granting summary judgment. 18 Although the district court did not state with particularity the basis for its award 19 of partial summary judgment to Progressi ve on the coverage issue, the arguments 207 advanced in support of the mo tion were based principally on the clarity of the policy 1 term. Progressive argues that the unamb iguous policy provision reflecting a term of 2 May 3 through November 3, 2002, which was reiterated on the monthly billing 3 statements and two renewal notices, toge ther with the Vigils’ acknowledged failure 4 to pay the renewal premium by November 3, eliminated any question of fact or law 5 as to the existence of coverage at the time of the accident on November 4. 6 Progressive’s argument would be more pers uasive if the analysis of the policy 7 coverage was strictly confined to the policy language. However, when confronted 8 with questions of contract interpretation relating to the applicability of insurance 9 coverage, the courts of this State are “ no longer restricted . . . to language found 10 within the four corners of an insurance policy.” Ponder v. State Farm Mut. Auto. Ins. 11
Co. , 2000-NMSC-033, ¶ 13, 129 N.M. 698, 12 P.3d 960 (holding th at in order to 12 determine whether an ambiguity exists in a contract, the courts can look to extrinsic 13 evidence such as “premiums paid for insurance coverage, the circumstances 14 surrounding the agreement, the conduct of the parties, and oral expressions of the 15 parties’ intentions”). “In abandoning re liance only on the four-corners approach, 16 courts are now allowed to consider extrinsic evidence in determining whether an 17 ambiguity exists in the first instance, or to resolve any ambiguities that a court may 18 discover.” Id. 198 In this case, the extrinsic evidence re vealed an ambiguity regarding coverage 1 under the Vigils’ policy. The declarations page and billing statements reflected a 2 policy term ending on November 3, 2002, and Progressive mailed renewal notices 3 indicating that payment was due by November 3. However, in the course of telephone 4 calls to the automated system and to cu stomer service representatives, Progressive 5 represented to Nancy Vigil that no further payment was due until November 15, 2002. 6 In addition, Progressive sent billing statements indicating that the premium payments 7 were due on October 15 and November 15. Progressive also mailed the Vigils’ 8 insurance cards stating that their polic y was effective from November 15, 2002 until 9 May 15, 2003. Nancy Vigil therefore expected continuous coverage through 10 November 15. Throughout her years as a Progressive customer, the payment of a 11 monthly premium by its due datehad resulted in the conti nuation of coverage for the 12 next full month. As two expert witnesse s explained in depositions, this relationship 13 between payment and coveragewould comport with historical and industry practices. 14 Although we do not deem this evidence essential, we note that expert testimony of this 15 nature is admissible, notwithst anding Progressive’s protests. See G & G Servs., Inc. 16 v. Agora Syndicate, Inc. , 2000-NMCA-003, ¶ 46, 128 N.M 434, 993 P.2d 751 17 (observing that while an expert may not testify generally concerning insurance law, 18 expert testimony about insurance industry standards and practices may properly be 19 admitted). Because the information supplie d by Progressive in its mailings and in 209 response to Nancy Vigil’s telephonic inquiries was conflicting, an ambiguity existed. 1 This ambiguity directly bears upon the legal issue of the coverage period for the 2 Vigils’ policy. 3 “When interpreting insuran ce policies, as a matter of public policy, ambiguities 4 are generally construed in favor of the insu red and against the insurer. Thus, where 5 the policy is found to be unclear and ambiguous, the court’s construction of an 6 insurance policy will be guided by the reasonable expectations of the insured.” 7 Ponder , 2000-NMSC-033, ¶ 26 (internal quotation marks and citation omitted). 8 Although these principles suggest that the policy should be cons trued to uphold the 9 Vigils’ expectation of continuous coverage through November 15, 2002, we conclude 10 that the coverage issue should not be resolv ed as a matter of law. Our determination 11 in this regard is based principally on the existence of a dispute about the underlying 12 facts. While Nancy Vigil has consistentlyasserted that the automated system and 13 customer service representatives informed her that no further payment was due until 14 November 15, Progressi ve has taken the position that representations of this nature 15 were not made. Because the information provided by the automated system and by 16 the customer service representatives is re levant to ascertaining what the reasonable 17 expectations of the insured would have been , a jury should be permitted to resolve this 18 factual dispute. See Rummel , 1997-NMSC-041, ¶ 15 (“If we find a genuine 19 controversy as to any material fact, su mmary judgment will be reversed and the 2010 disputed facts will be argued at trial.”); see also C.R. Anthony Co. v. Loretto Mall 1
Partners , 112 N.M. 504, 509, 817 P.2d 238, 243 ( 1991) (stating that an initial 2 determination of whether an ambiguity in a contract exists is a question of law and 3 that resolving contractual ambiguities is a question of fact for the jury). 4 Even if the policy contained no am biguity, the evidence is capable of 5 supporting the Vigils’ alternative theory by which coverage would be extended to the 6 accident of November 4, 2002. “[C]ontr acts for temporary insurance may be made 7 by an agent orally,” NMSA 1978, § 59A-18- 22(A) (1984), and “[s]uch a contract for 8 temporary insurance may vary or even contradict” written language found elsewhere 9 among policy documents. Ellingwood v. N.N. Invest. Life Ins. Co. , 111 N.M. 301, 10 307, 805 P.2d 70, 76 (1991). This principle is based on “the realitie s of the insurance 11 business,” in which “it is to be expectedthat the average person will depend upon the 12 agent to explain everything.” Id. Accordingly, the courts “will not simply and 13 mechanically charge the insured with th e duty of reading and understanding insurance 14 documents and then bar . . . recovery by a literal application of the terms and 15 provisions of those documents.” Id. If there is “evidence thatthe agreement of the 16 parties is not integrated” in such documents, “but rather is the product of the 17 representations of the agent that reas onably have been relied upon and accepted” by 18 the insured, that evidence may be submitted to a jury notwithstanding conflicting 19 written provisions. Id. 2011 In this case, the evidence of the re presentations regarding the change in 1 coverage to delete one vehicle and add another, followed by the repeated 2 representations by the automated system and the customer service representatives 3 about the November 15 premium date must beaddressed at trial to determine whether 4 the facts support a temporary contract of insurances, notwithstanding the existence of 5 prior unambiguous policy language reflec ting an end date of November 3, 2002. 6 However, the ultimate success of such a claim depends upon apparent authority, a 7 question which must be factually established by the Vigils and where disputed facts 8 exist, must also be resolved by a jury. See id. at 306, 805 P.2d at 75. 9 Progressive makes several additional arguments on appeal. Progressive argues 10 that none of the extrinsic evidence presented by the Vigils can be relied upon, either 11 to establish ambiguity as to the policy term or to create a temporary contract of 12 insurance, because that evid ence related exclusively to th e question of policy renewal. 13 Progressive’s renewal theory may be viable, but it is also plausi ble that the evidence, 14 including the representations of the auto mated system and th e customer service 15 representatives, as well as the billing st atements reflecting premium due-dates on 16 October 15 and November 15, reflected an extension of coverage under the original 17 policy. This is ultimately a question for the jury to resolve. 18 Progressive also argues that the extrinsic evidence should not be relied upon as 19 a basis for reversing the district court’s award of partial summary judgement because 2012 the jury considered and ultimately rejected that evidence in connection with the 1 Vigils’ other claims. We are unpersuaded. Although Progressive asserts that the jury 2 found Nancy Vigil not to be credible, we cannot speculate about the basis for the 3 jury’s verdict. See generally State v. Wildgrube , 2003-NMCA-108, ¶ 18, 134 N.M. 4 262, 75 P.3d 862 (“A reviewing court does not speculate about how the jury arrived 5 at its verdict.”). Furthermore, the Vigils ’ statutory and tort claims are analytically 6 distinct from, and alternative to, the Vigils’ coverage claim. This is illustrated by the 7 court’s specific instructions to the jury, wh ich described the Vigils’ alternative claims 8 while simultaneously indicating that the Progressive policy pr ovided no coverage. Cf. 9 Benavidez v. City of Gallup , 2007-NMSC-026, ¶ 19, 141 N.M. 808, 161 P.3d 853 (“A 10 party is entitled to instructions on all of his or her correct legal theories of the case if 11 there is evidence in the record to support the theories.”). Du e to the analytical 12 distinction, the jury’s rejection of the Vi gils’ alternative theori es cannot be regarded 13 as a rejection of their coverage claim. 14 For the reasons previously stated, a ju ry after hearing all the evidence could 15 reasonably and properly conclude that the Vi gils were entitled to coverage under their 16 policy. Therefore, the issue should have gone to the jury. See Mark V., Inc. v. 17 Mellekas , 114 N.M. 778, 781, 845 P.2d 1232, 1235 (1993) (“[I]f the proffered 18 evidence of surrounding facts and circumstan ces is in dispute, turns on witness 19 credibility, or is susceptible of conflicting inferences, the meaning must be resolved 2013 by the appropriate fact finder.”). The award of partial summary judgment must be 1 overturned. 2 The Vigils make several arguments thatProgressive did not have a cause of 3 action against them for the claim of re imbursement. Because the Vigils’ arguments 4 will be moot if the jury finds there was insurance coveragefor the accident, we decline 5 to address the Vigils’ arguments at this time. 6 CONCLUSION 7 For the foregoing reasons, we reverse th e award of partial summary judgment 8 with respect to the Vigils’ claim to enfo rce the contract of the insurance and the 9 related claim of bad faith fo r failure to provide insuran ce coverage. Because a finding 10 of coverage would be inc onsistent with the award of reimbursement and costs to 11 Progressive, we vacate those awards as well. The uncontested jury verdict regarding 12 the Vigils’ claims for negligent misrepre sentation, promissory estoppel, bad faith 13 failure to conduct an investigation or evaluation of the claim, violation of the Unfair 14 Practices Act, and violation of the Insurance Practices Act are affirmed. We remand 15 for further proceedings and a new trial on the insurance covera ge and reimbursement 16 claims consistent with this opinion. 17 IT IS SO ORDERED. 18

___________________________________ 19 TIMOTHY L. GARCIA, Judge 2014 WE CONCUR: 1

________________________________ 2 CYNTHIA A. FRY, Chief Judge 3

________________________________ 4 MICHAEL E. VIGIL, Judge 5