This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 DONALD ROMERO and THERESA ROMERO, 2 Plaintiffs-Appellees, 3 No. 31,549 4 PROGRESSIVE NORTHWESTERN 5 INSURANCE COMPANY, 6 Defendant-Appellant. 7

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 8 Barbara J. Vigil, District Judge 9 O’Friel & Levy, P.C. 10 Daniel J. O’Friel 11 Aimee Bevan 12 Santa Fe, NM 13 for Appellees 14 Simone, Roberts & Weiss, P.A. 15 Meena H. Allen 16 Albuquerque, NM 17 for Appellant 18

MEMORANDUM OPINION 19 BUSTAMANTE, Judge. 201 As used in this Opinion, “UM” includes both uninsured and underinsured 18 motorists. See Brooks v. State Farm Ins. Co. , 2007-NMCA-033, ¶ 3, 141 N.M. 322, 19 154 P.3d 697. 20 2 {1} The district court ordered Defendant -Appellant Progressive Northwestern 1 Insurance Company (Progressive) to pay pre-judgment interest calculated from the 2 date of an automobile accident involving an uninsured motorist in which its insured, 3 Plaintiff-Appellant Donald Romero (Romero), was injured. It also awarded attorney 4 fees to Romero based on its determination th at Progressive’s deni al of coverage was 5 unreasonable. Concluding that the district court did not err in determining that pre6 judgment interest and attorney fees werewarranted, we affirm those decisions. 7 However, because we disagree with the way the district court calculated both pre8 judgment interest and attorney fees, wevacate the amounts awarded and remand for 9 recalculation of both. 10 BACKGROUND 11
{2} Romero was seriously injured in an accident with an uninsured motorist on 12 September 23, 2006. After multiple surgeries and rehabilitation, Romero is 13 permanently disabled. Romero carried in surance with Allstate Insurance Company 14 (Allstate) (primary insurer) and Progressive (secondary insurer). The Allstate policy 15 covered four vehicles and had liability limits of $100,000 per vehicle and uninsured 16 motorist (UM) 1 limits of $25,000 per vehicle. Th e Progressive polic y covered three 172Romero v. Progressive Nw. Ins. Co. , 2010-NMCA-024, 148 N.M. 97, 230 P.3d 16 844, aff’d sub nom. Jordan , 2010-NMSC-051 was consolidated in the Supreme Court 17 with Jordan v. Allstate Ins. Co. , 28,638, 2009 WL 6634039 (N.M . Ct. App. Oct. 29, 18 2009), aff’d 2010-NMSC-051, and Lucero v. Trujillo , 29,859, 2010 WL 3968651 19 (N.M. Ct. App. Jan. 7, 2010), aff’d sub nom. Jordan , 2010-NMSC-051. See Jordan , 20 2010-NMSC-051, ¶ 13. 21 3 vehicles and had liability limits of $100,000 per vehicle and UM limits of $50,000 per 1 vehicle. Allstate paid Romero $100,000, the result of stacking the undisputed UM 2 coverage of $25,000 per vehicle and Progressive paidRomero $150,000, the result of 3 stacking the undisputed UM coverage of $50, 000 per vehicle. Romero, together with 4 Tracey and Rosemary Jordan, filed suit agai nst Allstate, arguing that Allstate owed 5 him UM coverage equal to his liabilitycoverage of $100,000 per vehicle because 6 Allstate had “failed to obtain a valid rejec tion of [UM] coverage equal to the limits of 7 liability.” Jordan v. Allstate Ins. Co. , 2010-NMSC-051, ¶ 13, 149 N.M. 162, 245 P.3d 8 1214. Alleging a similar failure by Progressive, Romero filed a declaratory judgment 9 action against Progressive on the issue of whether the UM c overage was $100,000 per 10 vehicle rather than $50,000 per vehicle. Ro mero was successful in both suits in the 11 district court, Court of Appeals, and Supreme Court. 2 12
{3} After the Jordandecision was filed and medical bills provided to Progressive, 13 Progressive paid Romero an additional $150, 000. Romero then filed a motion for pre14 judgment interest and attorney fees, which was granted. Progressive was ordered to 154 pay $96,404.96 in pre-judgment interest pursuant to NMSA 1978, Section 56-8-3 1 (1983) and $129,825 in attorney fees pursu ant to NMSA 1978, Section 39-2-1 (1977), 2 as well as post-judgment interest at a rateof eight and three-quarters percent per 3 annum pursuant to NMSA 1978, Section 56-8-4(A) (2004), until paid in full. 4 Progressive appeals. 5 DISCUSSION 6
{4} Progressive argues that the district c ourt erred in awarding both pre- and post7 judgment interest and attorney fees. We address these arguments in turn. 8 Pre- and Post-Judgment Interest 9
{5} “Pre[-]judgment interest is awarded as a matter of right only when a party has 10 breached a duty to pay a definite sum of money or the amount due under the contract 11 can be ascertained with reasonable certaintyby a mathematical standard fixed in the 12 contract or by established market prices.” Sunwest Bank of Albuquerque, N.A. v. 13 Colucci , 117 N.M. 373, 378, 872 P.2d 346, 351 (1994) (internal quotation marks and 14 citation omitted). When pre-judgment interest is a matter of right, we examine the 15 district court’s findings to determine if they are supported by substantial evidence. 16 See Kueffer v. Kueffer , 110 N.M. 10, 12, 791 P.2d 461, 463 (1990). 17
{6} Here, the district court found that “[p]re -judgment interest is due as a matter of 18 right since the amount due under the contractwas ascertainable from the day of the 195 accident.” Thus, its decision was based on the ascertainability of the amount owed, 1 not on whether Progressive breached a duty to pay a definite sum. Nevertheless, 2 Progressive argues that pre-judgment interest was inappropriate because either (1) its 3 position that UM c overage was limited to $150,000 was reasonable based on pre4 Jordancase law and, therefore, it did not breachthe contract when it denied that UM 5 coverage was equal to the liability limits or (2) the am ount owed to Romero was not 6 ascertainable on September 23, 2006. 7
{7} We first examine whether Progressive’s denial of equalized coverage was a 8 breach of the contract. In Jordan , the Supreme Court “h[e]ld that a rejection of [UM] 9 coverage equal to the liability limits in anautomobile insurance policy must be made 10 in writing and must be made a part of the insurance policy that is delivered to the 11 insured.” Jordan , 2010-NMSC-051, ¶ 2. It affirmed this Court’s holding that the 12 “proper remedy . . . [for a failure to meet these requirements] is reformation of 13 [Romero’s] automobile liability policies to provide [UM] coverage equal to the 14 liability limits.” Id. ¶ 36. 15
{8} The JordanCourt took pains to make clear that its holding was not new. See 16 id. ¶ 27. In analyzing whether the holding s hould be retroactive or prospective, the 17 Court stated that its decision did not “e stablish a new principle of law, either by 18 overruling clear past precedent on which litigants may have relied, or by deciding an 196 issue of first impression whose resolution was not clearly foreshadowed.” Id. (internal 1 quotation marks and citation omitted). It al so stated that “[its] holding [wa]s based 2 on settled principles articulated in twen ty years of [UM] jurisprudence.” Id. Finally, 3 it stated that insurers’ “historical” understanding of regulations related to UM 4 coverage was “unreasonable in light of the plain language of [NMSA 1978,] Section 5 66-5-301 [(1983)] and 13.12.3.9 NMAC [(5/14/04)].” Id. Regulation 13.12.3.9 6 requires that “[t]he rejection of th e provisions covering damage caused by an 7 uninsured or unknown motor vehicle as required in writing by the provisions of 8 Section 66-5-301 . . . must be endorsed, attached, stamped or otherwise made a part 9 of the policy of bodily injury and property damage insurance.” It is evident from the 10 Court’s language that it wa s clear—even before the Jordancase—that proper rejection 11 of UM coverage requires an explicit rejection in writing that is “made a part of the 12 policy that is delivered to the insured.” Jordan , 2010-NMSC-051, ¶ 19. 13
{9} We disagree with Progressive’s argument that Jordan ’s holding rested on the 14 holding in Progressive Northwestern Insurance Company v. Weed Warrior Services , 15 2010-NMSC-050, 149 N.M. 157, 245 P.3d 1209—which was decided the same 16 day—and, therefore, the law on UM c overage was not “we ll settled.” In Weed 17 Warrior , the Court construed Section 66-5-301 as a matter of first impression. Id. 18 ¶¶ 4, 5. It determined “that Section 66-5-301 requires an insurer to offer UM[] 197 coverage in an amount equal to the liability limits of the policy and that the choice of 1 the insured to purchase any lower amount f unctions as a rejection of that maximum 2 amount of coverage statutorily possible.” Id. ¶ 15. The Court’ s use of the phrase 3 “first impression” in this context means only that it was the first opportunity for the 4 Court to construe the statute, not that its interpretation of the statute was itself a new 5 rule. See id. ¶ 4. Construction of statutory language is by definition an exercise in 6 determining what the Legislature intende d at the time the statute was enacted or 7 amended; thus, a Court’s construction reso lves disputes over what the statutory 8 language has alwaysmeant. See Key v. Chrysler Motors Corp. , 1996-NMSC-038, 121 9 N.M. 764, 768-69, 918 P.2d 350, 354-55 (“In interpreting statutes, we seek to give 10 effect to the Legislature’s intent, and indetermining intent we look to the language 11 used and consider the statute’s history and background.”). In addition, because the 12 Court did not indicate otherwise, we presume that the Weed Warrior holding applies 13 retroactively. See Beavers v. Johnson Contro ls World Servs., Inc. , 118 N.M. 391, 398, 14 881 P.2d 1376, 1383 (1994). 15
{10} We conclude that both Weed Warrior and Jordan rested on existing law that 16 should have put Progressive on notice of the requirements fo r rejection of UM 17 coverage equal to the liab ility limits of the policy. See Jordan , 2010-NMSC-051, 18 ¶ 27. Failure to meet these requirement s requires reformation of the contract to 198 provide UM coverage equal to the liability limits. Id. ¶ 36. Progressive’s denial of 1 the equalized coverage, therefore, was a breach of the contract. 2
{11} Progressive’s reliance on State Farm Mutual Automobile Insurance Company 3 v. Barker , 2004-NMCA-105, ¶ 13, 136 N.M. 211, 96 P.3d 336 is misplaced. 4 Progressive argues that like that case, it wa s not obligated to pay Romero’s claim for 5 $300,000 until Romero demonstrated that hewas “legally entitled to recover” that 6 amount and consequently, there was no breach of the contract when it refused to pay. 7 In Barker , the Court held that State Farm did not breach its contr act when it refused 8 to pay Barker’s claim until after the partie s’ dispute over the amount of the damages 9 was arbitrated pursuant to an arb itration clause in the contract. Id. ¶ 12. The issue 10 before the arbitrator was whether a stroke suffered several days after an auto accident 11 with an uninsured motorist was proximatelycaused by the accident and, therefore, fell 12 within the insurer’s coverage of the accident. Id. Thus, the issue there was whether 13 Barker was “legally entitled to recover” fro m the uninsured motorist, i.e., was the 14 uninsured motorist liable for his injuries? Id. ¶ 13 (stating that “legally entitled to 15 recover” means there is a “determination of liability . . . made by legal means” 16 (internal quotation marks and citation omitted)). Here, Progressive does not dispute 17 that the uninsured motorist caused the acci dent leading to Romero’s injuries. We 18 conclude that Barker is inapposite to this case. 199 {12} We also conclude that two other cases on which Progressive relies, Bird v. State 1 Farm Mutual Automobile Insurance Co. , 2007-NMCA-088, 142 N.M. 346, 165 P.3d 2 343 and Abeita v. Northern Rio Arriba Electric Cooperative , 1997-NMCA-097, 124 3 N.M. 97, 946 P.2d 1108, are unavailing not leas t because they address pre-judgment 4 interest under Section 56-8-4, which “allows pre[-]judgment interest in the discretion 5 of the court after the court considers, among other things, whether the plaintiff was the 6 cause of unreasonable delay in the adjudicati on of his or her claims and whether the 7 defendant had previously made a reasonable and timely offer of settlement.” Colucci , 8 117 N.M. at 377, 872 P.2d at 350. The district court here awarded pre-judgment 9 interest under Section 56-8-3 as a matter of right, not pursuant to Section 56-8-4. In 10 addition, although Progressive argues that “the same logic [applied in those cases] 11 should apply here” because those cases “pre sented legal issues which were a matter 12 of first impression in New Mexico[,]” we disagree. Even if those cases dealt with 13 novel legal issues, we have determined that the legal issues here were clear before the 14 accident. Bird and Abeitaare not applicable to this case. {13} Progressive’s second 15 argument is that the district court erred in its finding that “the amount due under the 16 contract was ascertainable from the day of the accident.” Based on this finding, the 17 district court ordered Progressive to pay pre-judgment interest beginning on the day 18 of the accident. Progressive does not app ear to challenge the finding that the amount 1910 due was ascertainable. This position is cons istent with Progressive’s payment of the 1 second $150,000 “[o]nce Progressive received the medical records and bills following 2 the . . . Jordan[decision].” Instead, it argues that “there was no evidence that 3 $300,000 was due to [Romero] that day.” We understand this argument to mean that 4 pre-judgment interest, if awarded, should have dated from the date Progressive was 5 obligated to pay Romero’s claim, rather th an the date of the acci dent. We agree with 6 Progressive that calculation of pre-judgment interest from the date of the accident was 7 error in these circumstances. 8
{14} Pre-judgment interest is calculated be ginning when the “claim[] accrued.” 9 Gilmore v. Duderstadt , 1998-NMCA-086, ¶ 39, 125 N.M. 330, 961 P.2d 175. 10 Romero argues that his “claim accrued on the date it became reasonably clear that 11 benefits were due under the c ontract” and that “Progressivehad a duty to investigate 12 the claim and make prompt payment of amounts due.” We are not persuaded. We 13 interpret use of the word “claim” in this c ontext to mean a cause of action, not a claim 14 for benefits. See Brooks , 2007-NMCA-033, ¶ 10 (“We conclude . . . that the ‘claim 15 being asserted’ is the right to sue for breach of contract, not the right to make a claim 16 under the contract.”). Unless th ere is a specific date in the contract, “a cause of action 17 for [UM] coverage begins to accrue whenthe insurance contr act is breached.” Id. 18 The contract is breached when a claim fo r benefits is erroneously or wrongfully 1911 denied. Id. ¶ 9 (including denial of a claim as a trigger for a cause of action); 1 Grynberg v. Roberts , 102 N.M. 560, 563, 698 P.2d 430, 433 (1985) (stating that pre2 judgment interest accrued from the dates th at the defendants failed to pay amounts 3 owed under contract) ; Hillelson v. Republic Ins. Co. , 96 N.M. 36, 37, 627 P.2d 878, 4 879 (1981) (“Th[e] interest should have accrued from the date [the insurer] denied 5 liability.”); Cf. Coseboom v. Marshall Trust , 67 N.M. 405, 412-13, 356 P.2d 117, 121- 6 22 (1960) (stating that when payer stops payment on a check, pre-judgment interest 7 beginning on the “the date of the refusal of payment on the check” was appropriate). 8 Here, the contract was breached when Progressive denied Romero’s claim for UM 9 coverage up to $300,000 contraryto law. Accordingly, the district court erred in 10 awarding pre-judgment interest from the date of the accident. 11
{15} To the extent that Progressive argues that it could not have breached the 12 contract before the Allstate coverage was exhaus ted, we conclude that under the facts 13 of this case Progressive’s status as secondary insurer is immaterial. See State Farm 14 Mut. Auto. Ins. Co. v. Safeco Ins. Co. , 2013-NMSC-006, ¶ 11, 298 P.3d 452 (“The 15 status of a [UM] insurer as primary or secondary determines which insurer must be 16 the first to pay [UM] benefits. . . . [W]e [h ave] held that the primary [UM] insurer had 17 to pay its policy limits before secondary [U M] insurers have to pay.”). Progressive 18 paid Romero $150,000 on March 30, 2007, after Allstate had paid $100,000 in 1912 undisputed stacked UM coverage of $25,000 per vehicle. In its communication on 1 March 30, 2007, Progressive stated, “It is Progressive’s position that there are no 2 additional funds available under the policy.” Thus, Progressive did not assert that it 3 was not obligated to pay until after the Allstate policy was exhausted. Rather, it 4 denied any further liability under the polic y. As discussed above, this position was 5 incorrect. 6
{16} In conclusion, the district court did not err in awarding Romero pre-judgment 7 interest, but we remand for recalculation of the pre-judgment interest beginning on the 8 date Progressive denied equalized UM coverage rather than the date of the accident. 9 We find no error in the award of post-judgmen t interest consistent with Section 56-8- 10 4(A). Colucci , 117 N.M. at 379, 872 P.2d at 352 (“Post[-]judgment interest on 11 judgments and decrees for payment of money is mandatory and accrues at the 12 statutory rate from the date of entry of judgment[.]”). 13 Attorney Fees 14
{17} Under the “American rule,” the parties to a lawsuit are responsible for their own 15 legal fees and costs. N.M. Right to Choose/NARAL v. Johnson , 1999-NMSC-028, ¶ 16 9, 127 N.M. 654, 986 P.2d 450. One party may be required to pay the attorney fees 17 and costs of another if agreed to by th e parties or provided for by statute. Id. In New 18 Mexico, Section 39-2-1 provides for attorney fees when the insured prevails in an 1913 action based on any type of firs t party coverage against an in surer. It states, “In any 1 action where an insured prevails against an insurer who has not paid a claim on any 2 type of first party coverage, the insured person may beawarded reasonable attorney 3 fees and costs of the action upon a findi ng by the court that the insurer acted 4 unreasonably in failing to pay the claim.” Id. This provision encompasses three 5 analyses: whether the insured prevailed in an action against the insurer, whether the 6 insurer acted unreasonably, and what amount of attorney fees is reasonable. We 7 review the district court’s award of atto rney fees for an abuse of discretion. Bird , 8 2007-NMCA-088, ¶ 27. 9
{18} Progressive concedes that Romero prevailed in an action against Progressive, 10 but argues that “there was no finding by th e district court that Progressive acted 11 unreasonably in failing to pay the disputed $150,000.” We disagree. Although the 12 district court’s findings do not use the word“unreasonable,” it is clear that it analyzed 13 the reasonableness of Progressive’s conduct and found it lacking. The district court 14 found that “[t]he law in the area was well- settled[;] [Romero was] forced to litigate 15 this matter for over four (4) years[;] [R omero] prevailed at every level[; and] 16 [Progressive’s] decision to challenge [Romero’s] entitlement was taken at its risk.” 17 Given the Supreme Court’s holding in Jordanthat the law of UM coverage was well18 settled at the time of the accident, the district court’s conclusion that Progressive’s 1914 conduct was unreasonable was not error. Cf. Jordan , 2010-NMSC-051, ¶ 27 1 (characterizing Progressive’s understanding th at regulations requiring rejection of UM 2 coverage in writing were inapplicable to UM coverage in less than maximum amounts 3 as “unreasonable”). 4
{19} Nevertheless, we remand for recalculati on of attorney fees. Section 39-2-1 5 permits the award of “reasonable” attorney fees. Romero requested attorney fees 6 equal to the amount he had agreed to inthe contingency fee agreement with his 7 attorney: forty percent of the total amount recovered. The district court granted 8 Romero’s request for forty percent of $300, 000 plus interest, or $129,825, stating in 9 its findings that the requested amount was “reasonable.” Other than the motion and 10 contingency fee agreement, the record is devoid of evidence related to the attorney 11 fees request. 12
{20} We have recognized two methods for the calculation of attorney fees: the 13 percentage of recovery (POR) me thod and the lodestar method. See Atherton v. 14 Gopin , 2012-NMCA-023, ¶ 7, 272 P.3d 700. The lodestar method, which “is 15 ordinarily used in statutory fee-shifting cases because it provides adequate fees to 16 attorneys who undertake litigation that is soci ally beneficial,” is based on “a fee that 17 approximates a reasonable hourly rate mu ltiplied by the number of hours reasonably 18 incurred in the representation.” Id. (internal quotation marks and citation omitted). 1915 “This value serves as a starting point fo r the calculation of a reasonable fee.” Id. 1 Whatever method is used, “the district c ourt must assure that the fee awarded is 2 reasonable . . . . by applying the . . . factors found in Rule 16-105 [NMRA].” Rivera3 Platte v. First Colony Life Ins. Co. , 2007-NMCA-158, ¶ 83, 143 N.M. 158, 173 P.3d 4 765 (citation omitted); see Rule 16-105 cmt. 3 (“Continge nt fees, like any other fees, 5 are subject to the reasonableness standard of Paragraph A of this ru le. In determining 6 whether a particular contingent fee is reas onable, . . . a lawyer must consider the 7 factors that are relevant under the circum stances.”). These factors include, among 8 others, 9 the time and labor required, the nove lty and difficulty of the questions 10 involved, and the skill requisite to perform the legal service 11 properly; . . . the fee cu stomarily charged in the locality for similar legal 12 services; the amount involved and the results obtained; . . . the 13 experience, reputation, and ability of the lawyer or lawyers performing 14 the services; [and] whether the fee is fixed or contingent. 15 Rule 16-105. It appears from the record that the district court applied the POR 16 method, since Romero presented no data th at would support the lodestar method. It 17 is unclear, however, how the district court applied that method. For instance, the 18 district court did not articulate how it determined that the amount of the recovery on 19 which the fees were based should be the total value of the UM coverage ($300,000), 20 rather than the disputed amount over wh ich the suit was filed ($150,000) nor did it 21 indicate that it assessed any of the f actors for reasonability in Rule 16-105. 2216 “Meaningful review of the reasonableness of the present attorney fee award is not 1 possible on the record and findings before us.” Rivera-Platte , 2007-NMCA-158, ¶ 83. 2 Finally, “[b]ecause award of attorney fees is properly a f unction of the district court 3 rather than an appellate court, we dec line to express an opinion as to the proper 4 amount of attorney fees.” Id. ¶ 82. We remand for reconsideration of attorney fees. 5 CONCLUSION 6
{21} We affirm the district court’s determin ation that Romero is entitled to pre-and 7 post-judgment interest and attorney fees, but remand for recalculation of pre-judgment 8 interest and reconsideration of attorney fees. 9
{22} IT IS SO ORDERED. 10

11 MICHAEL D. BUSTAMANTE, Judge 12 WE CONCUR: 13

_________________________________ 14 MICHAEL E. VIGIL, Judge 15

_________________________________ 16 J. MILES HANISEE, Judge 17