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Certiorari Granted, August 24, 2017, No. S-1-SC-36580

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2017-NMCA-071

Filing Date: June 28, 2017

Docket No. A-1-CA-34897

BETTY E. ULLMAN, for herself and

others similarly situated,

Plaintiff-Appellee,

v.

SAFEWAY INSURANCE COMPANY,

Defendant-Appellant,

and

RICHARD BAILEY,

Defendant.

INTERLOCUTORY APPEAL FROM THE DISTRICT COURT OF SANTA FE

COUNTY

Francis J. Mathew, District Judge

Law Offices of Geoffrey R. Romero

Geoffrey R. Romero

Albuquerque, NM

Garcia Ives Nowara, LLC

Matthew L. Garcia

Albuquerque, NM

Freedman, Boyd, Hollander, Goldberg, Urias & Ward, P.A.

Joseph Goldberg

David A. Freedman

Vincent J. Ward

Albuquerque, NM
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Vargas Law Firm, LLC

Ray M. Vargas, II

Albuquerque, NM

O’Connell Law LLC

Erin B. O’Connell

Albuquerque, NM

for Appellees

Butt, Thornton & Baehr, P.C.

Rheba Rutkowski

James H. Johansen

Albuquerque, NM

for Appellant

OPINION

SUTIN, Judge.

{1} This matter comes to us on interlocutory appeal from the denial of Safeway Insurance

Company’s motion for summary judgment seeking dismissal of class action claims. Safeway

sought to prove that its insurance documents were legally adequate to support its rejections

of claims of class members to uninsured and underinsured motorist (UM/UIM) benefits. The

district court certified that the case involved “a controlling question of law as to which there

is [a] substantial . . . difference of opinion and that an immediate appeal . . . may materially

advance the ultimate termination of the litigation.” The court identified that controlling

question as “whether Safeway has complied with New Mexico law in obtaining waivers of

[UM/UIM] coverage insurance, including stacked coverage, from its insureds.”

{2} Safeway asks this Court to (1) rule that Safeway obtained valid rejections of

UM/UIM coverage in compliance with New Mexico law; (2) reverse the order denying

Safeway’s class-related motion for summary judgment; and (3) remand with instructions to

dismiss the class claims with prejudice and de-certify the class because “a ruling on the

certified question in Safeway’s favor means that the alleged violation of law that grounds

the class definition and class claims does not exist, leaving no common question appropriate

for class litigation.” We hold that Safeway obtained valid rejections of UM/UIM coverage

in compliance with New Mexico law. We further hold that, on remand, the district court is

to address any remaining class-related issues or concerns.

I. THE CLASS

{3} In pursuit of class certification in an action against Safeway, Plaintiff Betty E.
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Ullman stated the certified class to be:

All New Mexico residents, who are all Safeway policyholders or insureds

under any Safeway policy issued, or reissued, in New Mexico where that

Safeway policy did not provide the maximum amount of [UM/UIM]

coverage allowed by law and for which Safeway did not obtain a valid

waiver/rejection of UM/UIM coverage with limits equal to the limits of

liability coverage. An invalid waiver/rejection of UM/UIM coverage is one

which did not include an offer of UM/UIM limits up to the liability limits and

a disclosure of premium amount for each available level of coverage,

including stacked coverage. 

Ullman’s claims and the class membership are based on Ullman’s assertion of legally

inadequate Safeway UM/UIM documentation affecting all policyholders in the class.

II. STANDARD OF REVIEW

{4} In the district court, Ullman argued that the issue was whether Safeway’s uniform

documentary language complied with New Mexico law, and for that reason, the particular

circumstances surrounding an ultimate rejection, including the means in which the rejection

was obtained, were immaterial. Whether the documents met the legal requirements for

offering and obtaining waivers of UM/UIM coverage and for stacking of benefits is a legal

question resolved by interpretation of applicable statutory, regulatory, and case law, calling

for de novo review. See Marckstadt v. Lockheed Martin Corp., 2010-NMSC-001, ¶ 13, 147

N.M. 678, 228 P.3d 462; Wilkeson v. State Farm Mut. Auto Ins. Co., 2014-NMCA-077, ¶ 6,

329 P.3d 749.

{5} The question whether language in a document meaningfully informs a customer

regarding the insurance offered requires this Court “to consider legal concepts in the mix of

fact and law and to exercise judgment about the values that animate legal principles[.]” State

v. Attaway, 1994-NMSC-011, ¶ 6, 117 N.M. 141, 870 P.2d 103 (internal quotation marks

and citation omitted). Like the concept of reasonableness, the concept of meaningful

involves the exercise of reasoned and evaluative judgment as to concepts inherently factual

yet in need of appellate court de novo review. See id. ¶ 9 (discussing “rules and tests, based

as they are on careful balancing of the underlying constitutional values,” serving as “a proxy

for reasonableness, generally applicable, but inherently factual[,]” yet “extend[ing] beyond

fact-finding and implicat[ing] an assessment of broader legal policies . . . entrust[ed] to the

reasoned judgment of the appellate courts of this state”); Randall H. Warner, All Mixed Up

About Mixed Questions, 7 J. App. Prac. & Process, No. 1, at 129 (Spring 2005)

(“[E]valuative determinations involve the judging of a person’s conduct or belief. This is

typically done by applying a standard like ‘reasonable’ or ‘fair’ that conveys to the decisionmaker that he or she is judging according to a community standard.”). In such instances,

appellate courts are free to conclude that, as a matter of policy, the issue should be reviewed

de novo in the interests of judicial administration. Attaway, 1994-NMSC-011, ¶¶ 6-8;
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Warner, supra, at 109-12, 118, 130-31. Thus, it is for this Court to determine whether the

documents were legally adequate to meaningfully inform Ullman of required insurance

information. For the purposes of our de novo review, it is to be understood that Ullman

received the critical documents.

III. THE LEGAL REQUIREMENTS

A. UM/UIM Coverage and Rejection of Coverage

{6} UM/UIM coverage and rejection of coverage are subjects of NMSA 1978, Section

66-5-301 (1983), and its implementing regulation, 13.12.3.9 NMAC. Section 66-5-301

reads:

A. No motor vehicle or automobile liability policy insuring

against loss resulting from liability imposed by law for bodily injury or death

suffered by any person and for injury to or destruction of property of others

arising out of the ownership, maintenance or use of a motor vehicle shall be

delivered or issued for delivery in New Mexico with respect to any motor

vehicle registered or principally garaged in New Mexico unless coverage is

provided therein or supplemental thereto in minimum limits for bodily injury

or death and for injury to or destruction of property as set forth in Section

66-5-215 NMSA 1978 and such higher limits as may be desired by the

insured, but up to the limits of liability specified in bodily injury and property

damage liability provisions of the insured’s policy, for the protection of

persons insured thereunder who are legally entitled to recover damages from

owners or operators of uninsured motor vehicles because of bodily injury,

sickness or disease, including death, and for injury to or destruction of

property resulting therefrom, according to the rules and regulations

promulgated by, and under provisions filed with and approved by, the

superintendent of insurance.

B. The uninsured motorist coverage described in Subsection A

of this section shall include underinsured motorist coverage for persons

protected by an insured’s policy. For the purposes of this subsection,

“underinsured motorist” means 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 uninsured

motorist coverage. . . .

C. The uninsured motorist coverage shall provide an exclusion

of not more than the first two hundred fifty dollars ($250) of loss resulting

from injury to or destruction of property of the insured in any one accident.

The named insured shall have the right to reject uninsured motorist coverage
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as described in Subsections A and B of this section; provided that unless the

named insured requests such coverage in writing, such coverage need not be

provided in or supplemental to a renewal policy where the named insured has

rejected the coverage in connection with a policy previously issued to him by

the same insurer.

The regulation states: “The rejection of the provisions covering damage caused by an

uninsured . . . motor vehicle as required in writing by the provisions of Section 66-5-301 . . .

must be endorsed, attached, stamped or otherwise made a part of the policy of bodily injury

and property damage insurance.” 13.12.3.9 NMAC; see Romero v. Dairyland Ins. Co., 1990-

NMSC-111, ¶ 8, 111 N.M. 154, 803 P.2d 243 (“An insured may reject [UM] coverage, but

the rejection must satisfy the regulations promulgated by the superintendent of insurance.”).

{7} In Montano v. Allstate Indemnity Co., 2004-NMSC-020, ¶¶ 17, 20, 135 N.M. 681,

92 P.3d 1255, our Supreme Court charted a “new course” in UM/UIM law, which, among

other rulings, required insurers in multiple-vehicle policies to “declare the premium charge

for each of the . . . coverages” as a means of ensuring that consumers get what they pay for.

In Progressive Northwestern Insurance Co. v. Weed Warrior Services, 2010-NMSC-050,

¶¶ 8, 14-15, 149 N.M. 157, 245 P.3d 1209, our Supreme Court required that insurers offer

UM/UIM coverage that includes “the maximum amount statutorily available” equal “to the

liability limits of the policy[.]” Further, the Court explained the insured’s choice to purchase

any lower amount functions as a rejection of that maximum amount of coverage statutorily

possible. Id. ¶ 14.

{8} With respect to obtaining valid rejections of UM/UIM coverage, several New Mexico

Supreme Court cases have stated what constitutes compliance, starting with Romero, 1990-

NMSC-111, and then later Marckstadt, 2010-NMSC-001, and Jordan v. Allstate Insurance

Co., 2010-NMSC-051, 149 N.M. 162, 245 P.3d 1214. Romero explained that “[t]he rejection

must be made a part of the policy by endorsement on the declarations sheet, by attachment

of the written rejection to the policy, or by some other means that makes the rejection a part

of the policy so as to clearly and unambiguously call to the attention of the insured the fact

that such coverage has been waived.” 1990-NMSC-111, ¶ 8. Further, under Romero,

“[p]roviding affirmative evidence of the rejection of the coverage comports with a policy

that any rejection of the coverage be knowingly and intelligently made.” Id. ¶ 9. And

UM/UIM coverage will be read into the policy “when a rejection of such coverage does not

comply with [the] regulation[].” Id.

{9} In Marckstadt, our Supreme Court clarified that “an insurer must obtain a written

rejection of UM/UIM coverage . . . in order to exclude it[,]” but that “neither the statute nor

the regulation requires that the insured’s written rejection be signed[,]” and “the written

rejection itself need not be made part of the policy.” 2010-NMSC-001, ¶ 4; see id. ¶¶ 23-26,

32. The Court further clarified that “the rejection which the regulation requires to be in

writing must be the act of rejection described in the statute and not the evidence of that act

mandated by the regulation itself.” Id. ¶ 22. Marckstadt explained that this requirement
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assures “that the insured is sufficiently informed before rejecting coverage, alerting the

insured to the importance of the decision, and providing clear evidence of a decision to

reject[.]” Id. ¶ 21. The Marckstadt Court stated, “[W]e cannot hold that the regulation may

only be satisfied by the attachment of the written rejection provided to the insurer by the

insured[,]” id. ¶ 25, and that “other forms of notification could function equally well to

clearly and unambiguously call to the attention of the insured the fact that such coverage has

been waived.” Id. (internal quotation marks and citation omitted). In sum, under Marckstadt,

“the insurer must obtain a written rejection from the insured, . . . the written rejection need

not be signed or attached to the policy[,]” and the regulation “requires that some evidence

of the insured’s written rejection of UM/UIM coverage must be made part of the policy by

endorsement, attachment, or some other means that calls the insured’s attention to the fact

that such coverage has been waived.” Id. ¶ 26.

{10} Almost a year after Marckstadt, Jordan decided that the “Court’s repeated

pronouncements” in Marckstadt and Romero, “indicate[d] that insurers continue[d] to offer

UM/UIM coverage in ways that are not conducive to allowing the insured to make a

realistically informed choice.” Jordan, 2010-NMSC-051, ¶ 20. The Court therefore

proceeded to “prescribe workable requirements for a valid and meaningful rejection of

UM/UIM coverage in amounts authorized by statute.” Id. The Court stated:

When issuing an insurance policy, an insurer must inform the insured

that he or she is entitled to purchase UM/UIM coverage in an amount equal

to the policy’s liability limits and must also provide the corresponding

premium charge for that maximum amount of UM/UIM coverage. The

premium cost for the minimum amount of UM/UIM coverage allowed by

Section 66-5-301(A) must also be provided, as well as the relative costs for

any other levels of UM/UIM coverage offered to the insured. The insured

must be informed that he or she has a right to reject UM/UIM coverage

altogether. Providing the insured with a menu of coverage options and

corresponding premium costs will enable the insured to make an informed

decision about the level of UM/UIM coverage he or she wants to purchase

and can afford and will minimize uncertainty and litigation with regard to the

coverage that the insured has obtained.

Id. ¶ 21. More recently, in Whelan v. State Farm Mutual Automobile Insurance Co., 2014-

NMSC-021, ¶ 25, 329 P.3d 646, our Supreme Court confirmed Montano’s having imposed

a requirement “that insurers disclose the premium costs for each available level of stacked

coverage as a means of guaranteeing that consumers can knowingly exercise their statutory

rights to UM/UIM coverage.” And Whelan further confirmed that “Jordan followed

Montano by requiring similar premium disclosure as to the premium charges corresponding

to each available [UM/UIM] option[.]” Whelan, 2014-NMSC-021, ¶ 25 (internal quotation

marks and citation omitted).

{11} Jordan sets out the consequences stemming from an insurer’s failure to abide by the
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requirements.

If an insurer does not (1) offer the insured UM/UIM coverage equal to his or

her liability limits, (2) inform the insured about premium costs corresponding

to the available levels of coverage, (3) obtain a written rejection of UM/UIM

coverage equal to the liability limits, and (4) incorporate that rejection into

the policy in a way that affords the insured a fair opportunity to reconsider

the decision to reject, the policy will be reformed to provide UM/UIM

coverage equal to the liability limits.

Jordan, 2010-NMSC-051, ¶ 22.

B. Stacking

{12} Stacking rules were substantially clarified in Montano, 2004-NMSC-020, and were

also discussed in Jordan, 2010-NMSC-051. Montano addressed “whether an insurance

company effectively precluded its insured from stacking the policy limits of all of his

vehicles insured under the policy for his [UM] claim[,]” where the plaintiff insured four

vehicles under a policy, paid a single premium for UM coverage, and limited stacking to two

coverage limits. 2004-NMSC-020, ¶¶ 1, 3-4, 6. The plaintiff asked the Court to declare all

anti-stacking clauses void as against public policy, and alternatively, that he be permitted to

stack four coverage limits under the circumstances. Id. ¶ 7. Our Supreme Court did not

expand its public policy favoring stacking to require stacking in all cases, stating, “[w]e have

always understood stacking to be the remedy for an ambiguous contract or the charging of

multiple premiums.” Id. ¶ 9. And after reviewing prior cases, the Court stated that it had

“never held that anti-stacking clauses violate public policy when unambiguous and when

only one premium has been charged for the coverage.” Id. ¶ 15. The Court explained that to

declare all anti-stacking clauses void as against public policy

would expand the public policy in favor of stacking beyond what [the] earlier

cases have declared it to be. Our public policy in support of stacking, rather,

has always been tied to the notion that it is unfair not to allow stacking when

multiple premiums are paid or when the policy is otherwise ambiguous. It

would thus be an expansion of that policy to also require stacking when the

policy clearly only charges a single premium and unambiguously precludes

stacking. We decline to modify our case law in order to expand our

expression of the public policy underlying stacking.

. . . Further, requiring stacking in all cases on a take-it-or-leave-it basis would

reduce the freedom of the parties to contract for less coverage and thus their

freedom to decide how much coverage they can afford. This could frustrate,

rather than advance, the legislative intent behind the UM statute. . . . [and]

. . . result in some lower-income insureds who own multiple vehicles being

effectively “priced out” of UM coverage.
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Id. ¶¶ 15-16.

{13} Stacking is not a statutorily mandated UM coverage level but “a judicially-created

doctrine[.]” Id. ¶ 17; Wilkeson, 2014-NMCA-077, ¶ 8 (“In New Mexico, stacking is ‘a

judicially-created doctrine’ that has arisen in cases in which our Supreme Court has needed

to determine whether insurance policy limitations of liability provisions restrict or permit

stacking.” (quoting Montano, 2004-NMSC-020, ¶ 17). Because the “traditional case-by-case

ambiguity analysis has proved unworkable” and “[b]earing in mind that [stacking] is a

judicial doctrine,” the Montano Court determined that a “new approach” was needed “to

protect the reasonable expectations of insureds and to ensure that they get what they pay

for.” 2004-NMSC-020, ¶ 17. Taking “guidance” from a concurrence in an out-of-state

decision stating that stacking should be treated as “extra coverage for which the parties have

contracted,” and also from Section 66-5-301(A) and (C), the Court “discern[ed] a solution

to the seemingly inherent ambiguities in anti-stacking clauses: an insurance company should

obtain written rejections of stacking in order to limit its liability based on an anti-stacking

provision.” Montano, 2004-NMSC-020, ¶¶ 18-19 (internal quotation marks and citation

omitted); see also Whelan, 2014-NMSC-021, ¶ 1 (confirming Montano as requiring insurers

to “obtain explicit written rejections of stacking in order to limit their statutory obligations”).

{14} The Court in Montano illustrated its holding:

[I]n a multiple-vehicle policy insuring three cars, the insurer shall declare the

premium charge for each of the three UM coverages and allow the insured

to reject, in writing, all or some of the offered coverages. Thus,

hypothetically, in the case of a $25,000 policy, if the premium for one UM

coverage is $65, two coverages is an additional $60, and three coverages $57

more, the insured who paid all three (for a total premium of $182) would be

covered up to $75,000 in UM bodily injury coverage. However, the insured

may reject, in writing, the third available coverage and pay $125 for $50,000

of UM coverage; or the insured may reject, in writing, the second and third

coverages and pay $65 for $25,000 of UM coverage; or the insured may

reject all three UM coverages. In any event, the coverage would not depend

on which vehicle, if any, was occupied at the time of the injury. Thus, the

insured’s expectations will be clear, and an insured will only receive what he

or she has paid for.

2004-NMSC-020, ¶ 20. The Court followed with: “In all future cases, an insurance policy

that complies with this requirement will avoid the conclusion we now draw from the history

of stacking litigation in this State, namely, that anti-stacking clauses are almost inherently

ambiguous and are no longer effective at precluding stacking. With written waivers, insureds

will know exactly what coverage they are receiving and for what cost[.]” Id. ¶ 21. Having

“set forth the policy language requirements for future stacking cases,” the Court relied on

its “traditional ambiguity analysis” to resolve the case, reasoning that “it would be

inequitable to apply [the new requirements] against [the insurer] before it has had an
1

 This Court’s opinion in Arias v. Phoenix Indemnity Insurance Co., 2014-NMCA027, ___P.3d___, appears to discuss rejection of coverage and rejection of stacking as two

different concepts, but the Court ultimately and correctly concluded that absent a valid

rejection of UM/UIM coverage as to multiple vehicles, the law “demands stacking of

coverage[.]” Id. ¶ 15. We stated:

Having extended . . . the availability of UM/UIM coverage as a matter of

law, we also include per-vehicle stacking. We believe that, in the absence of

a rejection of coverage altogether, the coverage that must be extended is the

full measure accorded [the plaintiff] by the default positions afforded by law.

This includes UM/UIM coverage generally, specifically to be stacked as to

each of [the] insured vehicles.

Id. 

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opportunity to alter its policy language[.]” Id. ¶ 22. Applying that analysis, the Court held

that the plaintiff was “entitled to stack his four coverages” because the policy did not meet

the requirements “for a truly unambiguous policy[.]” Id. ¶¶ 27-28.

{15} In regard to the phrase “rejections of stacking” in Montano, as we state later in this

opinion, because an insurer has no duty to offer or explain stacking to a customer, we

construe the phrase “rejections of stacking” to mean rejection of UM/UIM coverage which,

if valid, necessarily precludes court-imposed stacking.1 Id. ¶ 19. Thus, where stacking is not

otherwise lawfully precluded, UM/UIM coverages that have not been rejected can be

stacked. There exists no required express stacking rejection independent of coverage

rejection.

IV. SAFEWAY’S DOCUMENTS RELATING TO UM/UIM COVERAGES AND

REJECTION OF COVERAGES

{16} Several documents used in Ullman’s insurance purchase appear in the record.

Safeway’s documents include the following forms: Application, Selection/Rejection,

Endorsement Page, Declarations Page, and the standard form policy. Also in the record are

insurance agency forms used by the insurance agency in the process of contracting for the

insurance with Ullman. The parties agree that the critical and operative documents on the

issue of legal adequacy are the Safeway documents and that the agency’s documents are not

relevant on the issue of legal adequacy. We nevertheless set out the agency’s documents that

were signed by Ullman so that the reader has a full understanding of what Ullman had before

her.

A. New Mexico Automobile Insurance Application

{17} Ullman signed a New Mexico Automobile Insurance Application form on November
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12, 2011. The application asks the insured to “please read” certain matters set out in the

application, one of which reads, in part, “I understand that I have only the coverages

indicated in Section 5. All of the coverages shown in Section 5 have been explained. I

understand the various coverages and that I have only those coverage [sic] which have been

completed. I have rejected all coverages not completed in Section 5.” Under Section 5,

“Coverages,” the document states, “No coverage unless checked or premium shown[.]” The

application shows bodily injury limits of $25,000/$50,000 for each insured vehicle, listing

the premium amount of $79.00 for each. And the application has a location for the limits and

premiums for UM/UIM coverage, as to which each vehicle shows “rejected.” Ullman signed

the completed application on November 12, 2011.

B. UM/UIM Coverage Selection/Rejection Form 

{18} Ullman signed an “Uninsured/Underinsured Motorist Coverage Selection/Rejection

Form” on November 12, 2011. This selection/rejection form at the outset informs the insured

of the following:

New Mexico [l]aw requires that all policies provide [UM/UIM] Coverage of

at least $25,000 per person, $50,000 per accident, and [UM] Property

Damages . . . limits of at least $10,000 unless you specifically reject such

coverage in writing. [UM] Coverage provides that if you suffer bodily injury

or sickness including death, resulting from an accident with a person who

does not carry liability insurance, and that driver is at fault, you may make

a claim against your own insurance company for general and special

damages. [UIM] Coverage protects you from a driver who has insurance, but

in an amount less than your [UM] Coverage.

You have a right to purchase [UM/UIM] coverage in an amount up to your

policy’s liability limit, or you may reject the coverage entirely. The limit may

not exceed your liability coverage limits. If you make no UM/UIM choices

below, you will receive UM/UIM at the liability limits shown on your policy

declarations.

The selection/rejection form gave Ullman the opportunity to purchase UM/UIM coverage

at the bodily injury limits or to reject that coverage. The document has blank spaces for

selection of bodily injury limits in a certain coverage amount that correlate with the available

UM/UIM coverage option for a particular total premium cost per vehicle. That is,

immediately below the first two advisory provisions, the form has a place for insertion of the

bodily injury limits chosen by the insured, with an additional location for insertion of the

corresponding available UM/UIM coverage option chosen for the policy, including the total

premium cost per vehicle. The bodily injury limit chosen by Ullman was shown to be

$25,000/$50,000, and the available UM/UIM coverage option was shown to be

$25,000/$50,000 per person/per occurrence, with a total premium cost for the UM/UIM

available option of $52.00, or $0.29 per day, per vehicle.
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{19} Different, separate options then appear on the selection/rejection form in regard to

UM/UIM coverage for the insured to consider and choose by marking the choice with an

“X” on a blank line. Those options relating to each insured vehicle are:

I wish to purchase UM/UIM Coverage in the amount of $25,000/50,000.

. . . .

I wish to REJECT UM/UIM . . . Coverage[] entirely and understand that my policy

will not contain [this] Coverage[].

The first option set out above has no “X” placed in the blank spaces for her two vehicles.

Instead, an “X” appears for each of Ullman’s vehicles with respect to her “wish to REJECT

UM/UIM . . . Coverage[] entirely and understand[ing] that [her] policy will not contain [that]

Coverage[].”

{20} The selection/rejection form ends just before the signature line with the following:

I understand and agree that selection of any of the options indicated above

shall apply on this policy and on all future renewals of such policy, and on

all endorsements because of a change in vehicle or coverage, or because of

an interruption of coverage. If I decide to select another option at some future

time, I must notify the Company in writing.

MUST BE SIGNED. DO NOT SIGN UNTIL YOU HAVE READ AND

UNDERSTOOD YOUR SELECTIONS.

Ullman signed this completed form on November 12, 2011.

C. Declaration Page/Renewal Certificate

{21} A Declaration Page/Renewal Certificate form shows that it was processed on

November 12, 2011. This declaration page has a location to show the insured’s bodily injury

limits and premiums for each insured vehicle, as well as spacing for the insured’s limits and

premiums for UM coverage if that coverage were selected for either vehicle. The form also

tells the insured to “[k]eep [the form] in your car at all times as proof of your insurance.”

The declaration page shows “rejected” under UM bodily injury coverage. This information

is preceded by the statement, “Coverage is provided where a Limit of Liability and a

Premium are indicated.” The form states that “THE ENTIRE POLICY CONTRACT

INCLUDES THIS DOCUMENT, THE APPLICATION, THE POLICY AND ANY

ENDORSEMENTS.”

D. Endorsement Page of Personal Automobile Insurance Policy
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{22} The effective date of the Endorsement Page of Personal Automobile Insurance Policy

is shown as January 4, 2012. This endorsement page is virtually identical to the declarations

page. It states that it is “[a]ttached to and forming part of [the Ullman] policy[.]” Different

from the declarations page, the bodily injury premiums are not shown, and nothing is shown

in the UM bodily injury coverage for either vehicle. The form also states that “THE ENTIRE

POLICY CONTRACT INCLUDES THIS DOCUMENT, THE APPLICATION, THE

POLICY AND ANY ENDORSEMENTS.”

E. New Mexico Automobile Policy

{23} The New Mexico Automobile Policy indicates that it is an April 1, 2009 form. The

policy states that its provisions “WITH THE APPLICATION, DECLARATIONS PAGE

AND ENDORSEMENTS, IF ANY, ISSUED TO FORM A PART THEREOF, COMPLETE

THIS POLICY.” Under “INSURING AGREEMENT,” the policy states: 

For the policyholder’s payment of premiums and fees in amounts we require

and subject to all of the terms and conditions of this policy, we agree to

provide the coverages the policyholder has selected. These selections are

shown in the enclosed Declarations, which are a part of this policy contract.

The selected coverages in this policy apply only to occurrences while this

policy is in force. Renewal premiums must be paid in advance.

The policy has a section titled “UNINSURED MOTORISTS” that sets out the parties’

“Coverage Agreement.” Under “Limits and Conditions of Payment Amounts Payable for

Uninsured Motorists Losses,” the policy states, “Our obligation to pay Uninsured

Motorists—Bodily Injury losses is limited to the amounts per person and per occurrence

in the Declarations.”

V. THE AGENCY’S DOCUMENTS

A. Automobile Coverage Form

{24} An “Automobile Coverage Form” provides for bodily injury liability insurance and

UM/UIM insurance limits selected or not selected by the insured. This form shows the

liability limits choices of “BI–$25k/50k, $50k/100k, $100k/300k, Other” and separately lists

the same choices for UM limits. Liability limits designated “BI–$25k/50k” is circled, and

nothing is circled for UM limits. Ullman signed this document on November 12, 2011.

B. Albuquerque Insurance World, Inc. “Dear Customer” Reminder

{25} An Albuquerque Insurance World, Inc. “Dear Customer” form instructs the insured

to “carefully” review the form, “ask questions on anything” the insured does not “completely

understand,” and then sign. The document states the following as two of sixteen items the

insured is to read: “3. IS THE COVERAGE WHAT YOU ORDERED AND IN THE
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AMOUNTS YOU ORDERED?” and “4. IF YOU REJECTED [UM] COVERAGE, ARE

YOU CLEAR ON HOW THE COVERAGE WOULD HAVE BENEFITED YOU? WE

STRONGLY RECOMMEND THIS COVERAGE.” Above the signature, the form states, “I

HAVE READ EACH ITEM ABOVE AND UNDERSTAND HOW EACH ONE AFFECTS

ME. I AM ALSO RECEIVING A COPY OF THIS FORM FOR MY RECORDS.” Ullman

signed this document on November 12, 2011.

C. “Dear Insured” Reminder

{26} A “Dear Insured” form tells the insured, among other things, that “It is important that

you obtain your policy in the mail and review it to be sure all drivers, vehicles, and

coverages that you desire to be included on your policy are included. If you do not receive

your policy please call us.” Ullman signed this document on November 12, 2011.

VI. ULLMAN’S VIEWS

A. Contentions as to Genuine Issues of Material Fact

{27} Ullman contends in her answer brief that, in denying Safeway’s motion for summary

judgment, the district court did not decide whether the forms were legal but instead denied

the motion for summary judgment because of genuine issues of material fact. She further

states that a factual basis existed for a jury to find that Safeway did not properly inform

insureds about premium costs corresponding to available levels of coverage, did not assess

whether Safeway advised Ullman and similarly situated insureds of the maximum UM/UIM

coverage available, and did not properly incorporate rejection of UM/UIM coverage into her

policy. And she explains that “a jury has not rendered any factual findings as to whether

Safeway violated its legal obligations to its insureds.” Ullman further points out that

discovery should be allowed to proceed in the district court as to what documents Ullman

received or did not receive. And she raises the question whether rejection was called to the

attention of the insured, citing Arias v. Phoenix Indemnity Insurance Co., 2009-NMCA-100,

¶ 13, 147 N.M. 14, 216 P.3d 264, which cites to Romero, 1990-NMSC-111, ¶ 8, as having

emphasized an insurer’s need to clearly and unambiguously call the rejection to the insured’s

attention.

B. Contentions as to UM/UIM Coverages

{28} In her answer brief, Ullman argues: (1) that Safeway’s policy had no language

advising her of the “full range of options in purchasing UM/UIM coverage and the

corresponding costs associated with each option”; (2) that Safeway’s “rejection form and

endorsements did not advise an insured of the extent or maximum amount of UM/UIM

coverage being offered, and did not advise of the costs corresponding to the available

coverages”; (3) that Safeway’s “purported rejection was not attached, endorsed, stamped or

otherwise made a part of the policy, as required by law, where the endorsement does not

advise the insured that UM/UIM coverage has been rejected”; (4) that Ullman’s purported
14

rejection was not incorporated into her policy “in a manner that called attention to the fact

that she was not receiving the benefits of UM/UIM coverage”; (5) that no evidence was

provided to Ullman of a “rejection by endorsement, attachment, or some other means that

calls the insured’s attention to the fact that UM/UIM coverage has been waived”; and

(6) that Safeway’s endorsement page and policy booklet, which consisted of the “limited

information . . . provided to . . . Ullman, . . . say[] nothing as to whether . . . Ullman was

offered or rejected any UM/UIM coverage.”

C. Contentions as to Stacking

{29} Ullman contends in her answer brief that Safeway’s “policy language provided [her]

with no meaningful explanation that in purchasing liability coverage she was entitled to

purchase stacked (or aggregated) coverage[,]” and “[t]o the contrary, and contrary to New

Mexico law, [Safeway’s] policy specifically advises insureds that stacking of UM/UIM

coverage is never available regardless of the number of vehicles insured.” She argues that,

under Montano, insurers cannot exclude stacked UM/UIM coverage from a policy unless the

insurer obtains a written waiver/rejection of stacking.

{30} Ullman states that the New Mexico-specific application Safeway provides to its

insureds states that if the insured selected UM/UIM coverage “there will be no stacking or

combining of coverage afforded to more than one auto under [the] policy[,]” specifically

quoting a form that does not appear to be one that was used in Ullman’s purchase. Ullman

further states that the policy booklet misrepresents stacked coverage by asserting that stacked

UM/UIM coverage is never available on a multi-vehicle policy.

{31} Ullman argues that Safeway “exacerbates” the stacking-related deficiency by its

general failure “to provide any information regarding the maximum amount of UM/UIM

coverage available on the two vehicles under her policy.” She spends a significant part of

her answer brief discussing stacking, as though it is her primary contention.

VII. SAFEWAY’S VIEWS

{32} In showing that its documentation complies with New Mexico law, Safeway takes

pains to set out what each document states. Having set out earlier in this opinion what the

relevant documents show and state, we see no reason to further discuss Safeway’s

descriptions. Stacking, however, needs to be discussed.

{33} Safeway asserts that Montano “plainly did not declare anti-stacking language illegal,

let alone even suggest that insureds have a right to stack coverages in every circumstance.”

See Rodriguez v. Windsor Ins. Co., 1994-NMSC-075, ¶ 21, 118 N.M. 127, 879 P.2d 759

(“We do not declare that it is impossible for an insurance company to issue [UM] coverage

that is immune to stacking.”), modified on other grounds by Montano, 2004-NMSC-020, ¶ 1.

Safeway states that there exists “no requirement to explain stacking law, much less advise

the insured of a per se entitlement to stack separate coverages in every circumstance.”
2

 “Unpublished decisions are not precedential, but may be cited for their persuasive

value.” 10th Cir. R. 32.1(A); Fed. R. App. P. 32.1.

15

Safeway adds the following:

Jordan adopted Montano’s “menu” in its requirements for offering

and obtaining waivers of UM coverage. [Jordan,] 2010-NMSC-051, ¶ 24.

But it required no more than that the insurer declare each level of statutorily

available UM coverage and corresponding premium. Id. ¶ 2 (requiring “a

rejection of UM/UIM coverage equal to the liability limits” and that “insurers

must provide the insured with the premium charges corresponding to each

available option for UM/UIM coverage so that the insured can make a

knowing and intelligent decision to receive or reject the full amount of

coverage to which the insured is statutorily entitled”); id. ¶ 20 (stating

“workable requirements for a valid and meaningful rejection of UM/UIM

coverage in amounts authorized by statute”); id. ¶ 21 (“[A]n insurer must

inform the insured that he or she is entitled to purchase UM/UIM coverage

in an amount equal to the policy’s liability limits and must also provide the

corresponding premium charge for that maximum amount of UM/UIM

coverage”); id.[] ¶ 22 (“[I]nsurers have statutory obligations to offer

UM/UIM coverage up to the liability limits of the policy”); id. ¶¶ 25, 30; see

Progressive, 2010-NMSC-050, ¶¶ 8, 14-15.

{34} Safeway finds support in holdings in the United States District Court for the District

of New Mexico and the Tenth Circuit Court of Appeals rejecting the argument such as that

made by Ullman “that a rejection of UM coverage is invalid under New Mexico law unless

the rejection form contains an explanation of stacking and a calculation of total coverage

amounts if statutorily available UM coverage levels were stacked.” See Jaramillo v. Gov’t

Emps. Ins. Co., No. 12-2108, 573 F. App’x 733 (10th Cir. 2014) (non-precedential).2

{35} Safeway points out that the Jaramillo complaint was filed as a putative class action,

with allegations substantially similar to those made here. See id. at 737. The insurers moved

for summary judgment, arguing that the insureds’ written rejection of UM/UIM coverage

complied with New Mexico law, and because all of the claims “stemmed from an allegedly

improper denial of UM/UIM benefits, the complaint was not viable.” Id. (emphasis omitted).

The district court granted the insurers’ motion. Id. The court determined that the rejection

form “clearly offered the opportunity to select UM/UIM coverage in an amount equal to or

lower than those selected bodily injury liability limits while also providing premium costs

corresponding to each level of coverage” and that the insurers had incorporated the rejection

into the policy. Id. (internal quotation marks and citation omitted). In denying the insureds’

motion to reconsider, the district court reaffirmed its view that the insurers’ form complied

with New Mexico law as articulated in Jordan. Jaramillo, 573 F. App’x at 737-38.
16

{36} The plaintiffs argued on appeal to the Tenth Circuit Court of Appeals that the

insurers’ “offer of UM/UIM coverage was invalid for failure to make clear the amount of

stacked UM/UIM coverage available . . . or the corresponding cost of such coverage.” Id.

at 739 (omission in original) (internal quotation marks omitted). The Tenth Circuit saw this

argument as dovetailing into the question “whether the district court erred in holding that

under New Mexico law, an insurer is not required to inform the insured about premium costs

corresponding to each available level of stacked UM/UIM coverage.” Id. (alteration, internal

quotations marks, and citation omitted). Addressing whether the insurance form was “invalid

as a matter of law because it lacks a discussion or explanation of stacked UM/UIM

coverage[,]” the Tenth Circuit affirmed the district court’s conclusion that the form and

coverage rejection satisfied New Mexico law. Id.

{37} Further, the Tenth Circuit rejected the insureds’ argument that the insurers’ “Option

Form” was invalid “because it does not flesh out the nuances of stacked UM/UIM coverage”

as a “strained reading” of Jordan and Montano, neither of which required that UM/UIM

rejection forms must explain stacking. Jaramillo, 573 F. App’x at 741-42, n.7. Jaramillo

explained that Montano’s “core holding” was that “ ‘an insurance company should obtain

written rejections of stacking in order to limit its liability based on an anti-stacking

provision’ in a policy.” Jaramillo, 573 F. App’x at 742 (quoting Montano, 2004-NMSC-020,

¶ 19). And Jaramillo stated that Jordan “did not comment on the question of stacking, and

it did not explicitly forge a nexus between the new standard that it announced and the

concept of stacking.” Jaramillo, 573 F. App’x at 743. Thus, rejecting the insureds’ treatment

of “maximum amount of coverage” and “maximum stacked amount of coverage” as

“fungible concepts,” Jaramillo explained that “Jordan makes clear that the ‘maximum

amount’ contemplated is simply an amount equal to the policy’s liability limits,” and the

court declined “to graft the crucial word ‘stacked’ onto its holding.” Jaramillo, 573 F. App’x

at 744 n.9 (citing Jordan, 2010-NMSC-051, ¶ 21).

{38} Jaramillo further explained that Jordan required insurers to provide only the

“ ‘premium charge for the maximum amount of UM/UIM coverage’ (the maximum amount

being ‘an amount equal to the policy’s liability limits’) as well as the ‘premium cost for the

minimum amount of UM/UIM coverage allowed by Section 66-5-301(A),’ and ‘the relative

costs for any other levels of UM/UIM coverage offered to the insured’—viz., the costs for

a range of coverage between the minimum and maximum amounts.” Jaramillo, 573 F.

App’x at 744 (alteration and footnote omitted) (quoting Jordan, 2010-NMSC-051, ¶ 21).

Jaramillo concluded that “Montano does not stand for the proposition that the Option Form

could only have been valid under New Mexico law if it had specifically mentioned the

concept and effect of stacking coverage[,]” and further that “Jordan does not

mandate—either explicitly or implicitly—that a rejection of UM/UIM coverage equal to a

policy’s liability limits is invalid without a ‘discussion’ or ‘explanation’ of stacking

principles.” Jaramillo, 573 F. App’x at 746-47. Jaramillo also concluded that the insureds’

“rejection of UM/UIM insurance could not have been invalid under New Mexico law simply

because the Option Form did not tally up the stacked coverage amounts for the [insureds’]

four vehicles—in other words, because it did not multiply each available level of coverage
17

by four.” Id. at 748.

VIII. SETTING UM/UIM REQUIREMENTS AGAINST THE DOCUMENTS

{39} This discussion sets the New Mexico legal requirements relating to UM/UIM

coverage and rejection against Safeway’s documents.

A. Requirements: An Insurer Must Inform Its Insured That the Insured Is Entitled

to Purchase the Maximum Amount of UM/UIM Coverage Statutorily Available;

An Insurer Must Meaningfully Offer Its Insured the Same

{40} In Progressive, our Supreme Court required that insurers: (1) “ ‘meaningfully offer’

the maximum amount of UM/UIM coverage permitted by the statute, e.g., the liability limits

of the policy”; (2) offer UM/UIM coverage that includes “the maximum amount statutorily

available . . . [in an amount equal] to the liability limits of the policy”; and (3) after such an

offer is made, the insured’s choice “to purchase any lower amount functions as a rejection

of that maximum amount of coverage statutorily possible.” 2010-NMSC-050, ¶¶ 8, 14-15.

{41} Further, Jordan’s prescribed “workable requirements” set out earlier in this opinion

are to be repeated, with emphasis on particular language. See 2010-NMSC-051, ¶ 20.

When issuing an insurance policy, an insurer must inform the insured

that he or she is entitled to purchase UM/UIM coverage in an amount equal

to the policy’s liability limits and must also provide the corresponding

premium charge for that maximum amount of UM/UIM coverage. The

premium cost for the minimum amount of UM/UIM coverage allowed by

Section 66-5-301(A) must also be provided, as well as the relative costs for

any other levels of UM/UIM coverage offered to the insured. The insured

must be informed that he or she has a right to reject UM/UIM coverage

altogether. Providing the insured with a menu of coverage options and

corresponding premium costs will enable the insured to make an informed

decision about the level of UM/UIM coverage he or she wants to purchase

and can afford and will minimize uncertainty and litigation with regard to the

coverage that the insured has obtained.

Id. ¶ 21 (emphasis added).

{42} Ullman interprets “maximum amount” in stacking terms, that is, Ullman argues that

Safeway “exacerbates” the stacking-related deficiency by its general failure to provide

meaningful information “regarding the maximum amount of UM/UIM coverage available

on the two vehicles under her policy.” Ullman complains that she is unable to “understand

that if she chooses UM/UIM coverage in the amount of $25,000 per person and $50,000 per

accident on each of her two vehicles[,]” under stacking, she would have “$50,000 per person

and $100,000 per accident in available UM/UIM coverage.” We reject Ullman’s
18

interpretation as not in accord with Jordan’s prescription.

{43} We agree with the analysis in Jaramillo that “Jordan makes clear that the maximum

amount contemplated is simply an amount equal to the policy’s liability limits.” Jaramillo,

573 F. App’x at 744 n.9 (internal quotation marks omitted) (citing Jordan, 2010-NMSC-051,

¶ 21). Further, we agree with Jaramillo that Jordan requires insurers to provide only the

“ ‘premium charge of the maximum amount of UM/UIM coverage’ (the maximum amount

being ‘an amount equal to the policy’s liability limits’)”; “the ‘premium cost for the

minimum amount of UM/UIM coverage allowed by Section 66-5-301(A)’ ”; and “ ‘the

relative costs for any other levels of UM/UIM coverage offered to the insured’—viz., the

costs for a range of coverage between the minimum and maximum amounts.” Jaramillo, 573

F. App’x at 744 (footnote omitted) (quoting Jordan, 2010-NMSC-051, ¶ 21). As highlighted

by Safeway, Ullman misreads Jaramillo’s (and thus Jordan’s) wording of “that maximum

amount” by stating “the maximum amount.” “[T]hat maximum amount” plainly refers to

“UM/UIM coverage in an amount equal to the policy’s liability limits[.]” Jordan, 2010-

NMSC-051, ¶ 21; see Jaramillo, 573 F. App’x at 744 & n.9. As in Jaramillo, we will not

graft stacking onto our view of Jordan.

{44} After setting out the New Mexico requirement that insurers offer UM/UIM coverage,

the selection/rejection form explains to the insured: “You have a right to purchase

[UM/UIM] coverage in an amount up to your policy’s liability limit, or you may reject the

coverage entirely. The limit may not exceed your liability coverage limits. If you make no

UM/UIM choices below, you will receive UM/UIM at the liability limits shown on your

policy declarations.” The declaration page shows the bodily injury limits Ullman chose and

the premiums for those limits as to each insured vehicle. It further shows that Ullman

rejected UM coverage. We hold that Safeway complied with the UM/UIM legal requirement

as to maximum insurance. Ullman was sufficiently made aware of the maximum amount

statutorily available.

B. Requirements: An Insurer Must Inform Its Insured About the Premium Costs

Corresponding to All Available Levels of Coverage; An Insurer Must Provide

Its Insured With a Menu of Options and Corresponding Premium Costs That

Will Enable the Insured to Make an Informed Decision About the Level of

UM/UIM Coverage the Insured Wants to Purchase and Can Afford

{45} The Safeway documents show that Ullman chose a $25,000/50,000 level of bodily

injury coverage, thereby limiting her to a $25,000/50,000 level of UM/UIM coverage.

Safeway was obligated to provide the premium cost for these levels of coverage. See Jordan,

2010-NMSC-051, ¶¶ 21-22. The premium cost for the bodily injury level of coverage

appeared in the application and the declaration page. The premium cost for the UM/UIM

coverage appeared in the selection/rejection form. We hold that Safeway was in compliance

with the Jordan requirements.

{46} Although not briefed, in oral argument before this Court, Ullman argued that the
19

selection/rejection form was ambiguous with respect to the information in regard to the

UM/UIM premium cost. Ullman asserted that only by adding language to the statement of

the premium cost could the ambiguity be cleared up for legal adequacy. Thus, Ullman argued

that the statement would have to read: “Based on your Bodily Injury Limit of:

$25,000/50,000 the available UM/UIM Coverage option(s) for this policy are:

$25,000/50,000 (per person/per occurance [sic]) with a total premium cost of $52.00, or

$0.29 per day,” on each vehicle for which you have selected UM/UIM coverage.

{47} Further, Ullman argued that, because there existed language in the standard form

policy that can be read to be an anti-stacking clause, an inconsistency or ambiguity existed

as to whether Ullman could receive the full benefit of the UM/UIM offered in the

selection/rejection form. We reject the contentions as a basis on which to reform Safeway’s

documents to require UM/UIM coverage and benefits. 

C. Requirements: An Insurer Must Inform Its Insured of the Insured’s Right to

Reject the UM/UIM Coverage; An Insurer Must Obtain a Written Rejection;

The Act of Rejection Must Assure That the Insured Is Sufficiently Informed of

the Importance of the Decision, and There Is Clear Evidence of a Decision to

Reject

{48} The selection/rejection form states, “You have a right to purchase [UM/UIM]

coverage in an amount up to your policy’s liability limit, or you may reject the coverage

entirely. The limit may not exceed your liability coverage limits. If you make no UM/UIM

choices below, you will receive UM/UIM at the liability limits shown on your policy

declarations.” The selection/rejection form also contains language that permits the insured

to reject UM/UIM coverage. See Jordan, 2010-NMSC-051, ¶ 21. That part states, “I wish

to REJECT UM/UIM . . . Coverages entirely and understand that my policy will not contain

these Coverages” and contains places in which an “X” is to be placed if the insured rejects

coverages. Ullman’s completed form contains an “X” for rejection of UM/UIM coverage for

each vehicle. See Jordan, 2010-NMSC-051, ¶ 22; Marckstadt, 2010-NMSC-001, ¶¶ 4, 21-

26.

{49} Furthermore, the application and the declaration page show that Ullman rejected the

coverage. And the selection/rejection form contains other options that show UM/UIM

coverage that can be selected by the insured. The form states, “An ‘X’ indicates your current

UM/UIM . . . selection(s).” The selection/rejection form contains a place for the insured’s

signature. Ullman signed the form, constituting a written act of rejecting the UM/UIM

coverage. See Jordan, 2010-NMSC-051, ¶ 22; Marckstadt, 2010-NMSC-001, ¶ 21.

{50} Further, the selection/rejection form contains the bodily injury limits that the insured

has chosen and matches that with the available UM/UIM coverage along with the “total

premium cost . . . per vehicle.” Ullman’s form shows that, based on her chosen limits of

“$25,000/50,000 the available UM/UIM coverage option for this policy” are

“$25,000/50,000 (per person/per occurrence) with a total premium cost of $52.00, or $0.29
20

per day, per vehicle.”

{51} In addition, the selection/rejection form contains at the outset the following

informational material for the insured:

New Mexico Law requires that all policies provide [UM/UIM] Coverage of

at least $25,000 per person, $50,000 per accident . . . unless you specifically

reject such coverage in writing. [UM] Coverage provides that if you suffer

bodily injury or sickness including death, resulting from an accident with a

person who does not carry liability insurance, and that driver is at fault, you

may make a claim against your own insurance company for general and

special damages. [UIM] Coverage protects you from a driver who has

insurance, but in an amount less than your [UM] Coverage.

{52} As well, the application specifically evidences rejection of UM/UIM coverage. Under

Section 5 of this document, it states, “No coverage unless checked or premium shown.” The

document has space for bodily injury limits and premium, as well as limits and premiums

for UM coverage, for each insured vehicle. Ullman signed the application. The form in

Section 5 contains the bodily injury liability limits of $25,000/50,000, and the premium

amount for that coverage for each insured vehicle, and shows “rejected” under the UM

coverage for each. Above Ullman’s signature, the application asks the insured to read certain

matters set out in the application, two of which read in part:

I understand that I have only coverages indicated in Section 5. All of the

coverages shown in Section 5 have been explained. I understand the various

coverages and that I have only those coverage [sic] which have been

completed. I have rejected all coverages not completed in Section 5. . . .

. . . .

I hereby acknowledge that I have received a completed copy of this

application, the [UM/UIM] Coverage Selection/Rejection form, the policy,

the declarations page and any endorsements, and I understand the coverage

selections that I have made. I further understand that the entire policy

contract includes this application, the policy, declarations page and any

endorsements.

We hold that Safeway was in compliance with the aforementioned requirements.

D. Requirement: The Written Rejection Must Be Made a Part of the Policy By

Endorsement on the Declarations Page; Attachment to the Policy or By Some

Other Means That Makes the Rejection a Part of the Policy so as to Clearly and

Unambiguously Call to the Attention of the Insured the Fact That Such

Coverage Has Been Waived
21

{53} The document constituting the act of rejection need not be made a part of the policy,

and it need not be attached to the policy. See Marckstadt, 2010-NMSC-001, ¶ 4. The insurer

must “incorporate [the] rejection into the policy in a way that affords the insured a fair

opportunity to reconsider the decision to reject[.]” Jordan, 2010-NMSC-051, ¶ 22 (emphasis

added); Romero, 1990-NMSC-111, ¶ 8.

{54} The application, under “Fraud Statement,” states above the signature line: 

I hereby acknowledge that I have received a completed copy of this

application, the [UM/UIM] Coverage Selection/Rejection form, the policy,

the declarations page and any endorsements, and I understand the coverage

selections that I have made. I further understand that the entire policy

contract includes this application, the policy, declarations page and any

endorsements.

Ullman signed this document.

{55} The declaration page and the endorsement page each state “THE ENTIRE POLICY

CONTRACT INCLUDES THIS DOCUMENT, THE APPLICATION, THE POLICY AND

ANY ENDORSEMENTS.” The endorsement page, which is virtually identical to the

declaration page, states that it is “[a]ttached to and forming part of [the Ullman] policy.” The

policy states that its provisions “WITH THE APPLICATION, DECLARATIONS PAGE

AND ENDORSEMENTS, IF ANY, ISSUED TO FORM A PART THEREOF, COMPLETE

THIS POLICY.” We hold that Safeway complied with the aforementioned requirement.

IX. NO FACTUAL ISSUES EXIST

{56} The district court did not deny Safeway’s class summary judgment motion on the

basis of the existence of genuine issues of material fact. The court instead ruled against

Safeway on a controlling issue of law that the court certified to this Court—whether

Safeway’s uniform documentation complied with New Mexico law in obtaining waivers of

UM/UIM coverage, including stacked coverage. The court determined that there existed a

substantial ground for difference of opinion. Ullman’s attempt to recharacterize issues of law

into issues of fact fails on the merits and cannot overcome the legal nature of our inquiry.

Indeed, Ullman’s class definition reflects her primary contention, and she pursued that

contention in the district court. Also noteworthy is Ullman’s statement in a document that

she filed following this Court’s grant of Safeway’s application for an interlocutory appeal

in which Ullman stated that the “critical determination” was “whether Safeway’s standard

policy documents and UM/UIM forms comply with New Mexico law,” and further, that

“[t]he fact-specific circumstances surrounding any particular rejection are immaterial.” As

well, in her answer brief, Ullman has not denied that she is seeking relief on the ground that

Safeway’s documents were legally inadequate.

X. THE STATUS OF CLASS ACTION CERTIFICATION
22

{57} Safeway sought summary judgment seeking to dismiss the class action on the ground

that its uniform documents were valid and legal as to all class member-insureds. The district

court determined that “there [was] at least one issue common to all persons affected dealing

with the application of New Mexico law to the uniform policy language Safeway uses in

insurance contracts with New Mexico residents.” Commonality can exist when alleged legal

deficiencies in uniform documents are common to the defined class. In considering

predominance under Rule 1-023(B)(3) NMRA, the district court stated:

Liability issues raised by this litigation are common to the class, and these

common questions predominate over individual questions. The sole focus of

the liability inquiry in this case is whether Safeway acted in accordance with

its obligations pursuant to New Mexico law requiring insurers to obtain valid

waivers of UM/UIM coverage, including stacked coverage. This question

predominates over any other issue raised in this litigation. . . . All members

of the class own standard Safeway automobile insurance policies in which

the operative language is uniform.

{58} Thus, in certifying the class, the district court presumably determined that the class

was appropriate because the documents were the same or essentially the same for all classmember insureds. Our determination in this appeal that the uniform documents are legal and

valid as a matter of law and in compliance with New Mexico law would appear to constitute

a determination common to and predominating the class. Based on the foregoing, Safeway

asks us to overturn the district court’s certification of the class. We leave that issue for the

district court on remand.

XI. CONCLUSION

{59} We hold that Safeway’s forms complied with New Mexico law in all respects as to

what is required for a valid rejection of UM/UIM coverage, including stacking. We reverse

the district court’s determination to the contrary and remand to the district court for whatever

further proceedings may be required.

{60} IT IS SO ORDERED.

____________________________________

JONATHAN B. SUTIN, Judge

WE CONCUR:

____________________________________

JAMES J. WECHSLER, Judge

____________________________________

J. MILES HANISEE, Judge