Lewis v. XL Catlin
MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera denying 38 Plaintiff Jennifer Lewis's Motion for Partial Summary Judgment, granting 39 Defendant XL Catlin aka Greenwich Insurance Company's Motion for Summary Judgment, and denying 50 Plaintiff's request for a hearing. (baw)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
Plaintiff and Counterdefendant,
No. 20-cv-705 JCH/KRS
Defendant and Counterclaimant.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff Jennifer Lewis’s Motion for Partial Summary
Judgment (Doc. 38, filed January 12, 2021) (“Lewis Motion”), and Defendant XL Catlin, a/k/a
Greenwich Insurance Company’s Motion for Summary Judgment (Doc. 39, filed January 12,
2021) (“Greenwich Motion”). The Motions are fully briefed.2
These Motions arise out of a denied claim for underinsured motorist insurance (“UIM”)
benefits that Plaintiff made after being allegedly hit by an underinsured motorist in Roswell, New
The Complaint, filed in state court, named XL Catlin as the Defendant in this case. In its Notice of Removal [Doc.
1], Defendant kept the name XL Catlin in the caption but noted that XL Catlin is merely a trade name used
occasionally for Greenwich Insurance Company and that XL Catlin is not a legal entity. The Defendant further
asserted that as the real party in interest, Greenwich Insurance Company had the right to remove the action. After
removal, the litigation continued with no apparent dispute between the parties that Defendant should have been
named as Greenwich Insurance Company instead of XL Catlin. However, because the case was filed in this Court
with XL Catlin in the caption and no motion to amend the caption was ever filed, the Court retains the nomenclature
used in the Notice of Removal. However, that fact does nothing to alter the legal effect of this Memorandum
Opinion and Order. Throughout this document, the Court refers to the Defendant as Greenwich Insurance Company.
See Docs. 44 (Greenwich Response to Lewis Motion), 46 (Plaintiff’s Response to Greenwich Motion), 47
(Greenwich Reply). The Court notes that Plaintiff did not reply to the Lewis Motion and the time for doing so has
passed. The Court also notes that Plaintiff requests a hearing on the Motions (Doc. 50), even after failing to Reply to
the Lewis Motion and almost two months after the Greenwich Motion was fully briefed. Given that Plaintiff declined
to further inform the Court of her position in reply to her own brief, and that a hearing will not assist the Court in its
resolution of the two Motions, the Court will DENY Plaintiff’s request (Doc. 50).
Mexico, while she was driving a vehicle for her then employer, The Hershey Company
(“Hershey”) of Hershey, Pennsylvania. See Doc. 1, Ex. A (“Complaint”) ¶ 6. Plaintiff argues in
the Lewis Motion that Defendant, the UIM carrier for Hershey, breached the insurance contract
when it declined to pay her UIM benefits. Specifically, Plaintiff alleges that the insurance contract
was reformed to provide coverage because Defendant failed to comply with Jordan v. Allstate Ins.
Co., 2010-NMSC-051, 245 P.3d 1214 (N.M. 2010), which delineates the requirements that an
insurer (Defendant) must follow when obtaining a valid UM/UIM waiver from the insured
(Hershey) under New Mexico’s statutory framework, N.M. Stat. Ann. § 66–5–301 and N.M.
Admin. Code § 13.12.3. Lewis Mot. 3–5. Those requirements are: “(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, 245 P.3d at 1221.
Defendant’s Motion is plain: New Mexico law does not apply to Hershey’s UM/UIM
waiver, therefore Plaintiff’s claims fail as a matter of law. Greenwich Mot., passim. Defendant’s
position is grounded in the text of N.M. Stat. Ann. § 66–5–301, which provides that “[n]o motor
vehicle or automobile liability policy insuring against loss resulting from liability . . . shall be
delivered or issued for delivery in New Mexico with respect to any motor vehicle registered or
principally garaged in New Mexico . . . .” § 66–5–301 (emphasis added).3 Defendant argues that
the Policy was not “delivered or issued for delivery in New Mexico,” thus New Mexico’s UM/UIM
Defendant also relies on N.M. Admin. Code § 13.12.2, which limits the scope of § 13.12.3, New Mexico’s Uninsured
and Unknown Motorist Coverage regulation: “This rule [§ 13.12.3] shall govern the delivery or the issuance for
delivery of any motor vehicle or automobile policy in this state . . . .” § 13.12.2 (emphasis added).
statutory framework and Jordan, the seminal New Mexico case interpreting that framework, does
not apply to the Policy. The Court agrees.
As an initial matter, the Court will summarily DENY the five-page Lewis Motion pursuant
to Local Rule 56.1, which requires the party moving for summary judgment to “refer with
particularity to those portions of the record upon which the movant relies.” D.N.M.LR-Civ. 56.1.
Out of Plaintiff’s seventeen proffered undisputed material facts, she cites to the record for only
two of them. Nonetheless, the issues presented in the Lewis Motion, i.e., whether Defendant was
required to comply with New Mexico law, will be fully addressed in the Court’s resolution of the
Plaintiff “does not dispute any of Defendant’s Statement of Material Facts with
Defendant’s Motion.” Pl.’s Resp. 1. Therefore, the Court recites those facts in full.
A. The Policy
Greenwich issued Commercial Lines Policy number RAD943773303 (“the Policy”) to
Hershey at 100 Crystal A Drive, Hershey, Pennsylvania, for the January 1, 2018, to January 1,
2019, policy period. Doc. 40, Ex. D. Greenwich first issued a commercial automobile policy to
Hershey beginning on January 1, 2015, in response to a request for proposals by Hershey’s
insurance broker, Aon Risk Services Central, Inc. of Philadelphia, Pennsylvania. Doc. 39–1
(Declaration of Elizabeth Juarez) ¶ 3. Successive policies were issued annually thereafter on
substantially the same terms. Id.
On or about October 26, 2017, Aon’s Philadelphia office provided to Greenwich a Global
Casualty Renewal Submission (“the 2018 Submission”) for the policy term January 1, 2018 to
January 1, 2019, for Hershey’s casualty insurance program, including commercial auto liability,
commercial general liability, and workers’ compensation insurance. Id. ¶ 4; see also Doc. 40–1 at
3–58 (Ex. A) (2018 Submission). In the 2018 Submission, Aon, on behalf of Hershey, requested
“Symbol 6” coverage for uninsured and underinsured motorists coverage. Ex. A at 42. Consistent
with its expectation that the Hershey auto policy would be renewed on terms similar to the expiring
policy, Greenwich sent UM/UIM rejection forms for New Mexico and other states to Kymberly
Saif of Aon on September 7, 2017, for presentation to Hershey and, if Hershey wished, execution
by Hershey. Juarez Dec. ¶ 6. Ms. Saif returned the signed rejection forms to Greenwich on
November 10, 2017. Id.
All of the rejection forms were signed on November 9, 2017, by Ryan J. McGuinness,
Manager, Risk and Insurance, for The Hershey Company in Hershey, Pennsylvania. Id.; see also
Ex. B (Docs. 39–1 at 7–80 (part 1), 39–2 at 1–56 (part 2)). Among the forms signed by Mr.
McGuinness was a form entitled, “New Mexico – Selection or Rejection of Uninsured Motorists
Coverage” (“the Rejection Form”), which provides:
The New Mexico Laws (Section 66-5-301), amended, permit you, the insured
named in the policy, to reject the Uninsured Motorists Coverage or to select a limit
of liability higher than the minimum financial responsibility limit but not more than
the limit of Liability Coverage in the policy. Uninsured Motorists Coverage
provides insurance for the protection of persons insured under the policy 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.
Uninsured Motorists Coverage includes Underinsured Motorists Coverage. An
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 limit of liability under the Underinsured Motorists Coverage of your policy.
In accordance with the New Mexico Laws (Section 66-5-301), amended, the
undersigned insured (and each of them) –
(Applicable item marked “X”)
Ex. B pt. 2 at 7. Mr. McGuinness marked the item stating “rejects uninsured motorists coverage
(including underinsured motorists coverages) in its entirety.” Id.
Greenwich responded to the 2018 Submission with a proposal dated November 30, 2017.
Juarez Dec. ¶ 7; Doc. 40–2 (Ex. C). With respect to automobile liability, Greenwich offered
UM/UIM coverage pursuant to “Symbol 6,” and with respect to “Limit,” stated “Reject where
allowable, Statutory Minimum all other.” Ex. C at 24. The Policy was issued effective January 1,
2018. Doc. 40–3 at 28 (Ex. D pt. 1). In the Business Auto Declarations, the Hershey auto policy
afforded a number of coverages for the covered autos identified in Item Two – Schedule of
Coverages and Covered Autos of the Declarations, including Uninsured Motorists (UM) and
Underinsured Motorists (UIM) (when not included in UM coverage) for vehicles identified with
Symbol 06. Per Item Two, the “coverages will apply only to those ‘autos’ shown as covered
Per the Policy’s Business Auto Coverage Form, CA 00 01 10 13, Symbol 6 is described as
“Owned ‘Autos’ Subject To A Compulsory Uninsured Motorists Law,” which means “[o]nly those
‘autos’ you own that because of the law in the state where they are licensed or principally garaged
are required to have and cannot reject Uninsured Motorists Coverage. Doc. 40–4 at 13 (Ex. D pt.
2). This includes those ‘autos’ you acquire ownership of after the policy begins provided, they are
subject to the same state uninsured motorists requirement.” Id.
Consistent with the Rejection Form, the Hershey auto policy does not contain any
endorsements that afford either UM or UIM coverage under New Mexico law. Doc. 39–2 at 7.
Consistent with the Rejection Form, and the identification of only “Symbol 6” vehicles as covered
autos for UM/UIM coverage, the Hershey auto policy’s Forms Schedule indicates that UM/UIM
coverage endorsements are only included for the states of Connecticut, Illinois, Kansas, Maine,
Maryland, Minnesota, Missouri, Nebraska, New Jersey, New York, North Carolina, North Dakota,
Oregon, Rhode Island, South Carolina, South Dakota, Vermont, Virginia, West Virginia, and
Wisconsin. No New Mexico UM/UIM coverage endorsement is included in the Hershey auto
policy, because New Mexico law allows rejection of UM/UIM coverage, and Hershey rejected
UM/UIM coverage for New Mexico. Doc. 40–3 at 32–33 (Ex. D pt. 1).
Greenwich delivered the Hershey auto policy to Hershey’s broker, Aon Risk Services
Central, Inc., on February 14, 2018, via email with a file-sharing link. The office location of the
Aon recipient was One Liberty Place, 1650 Market Street, Suite 1000, Philadelphia, PA 19103.
Juarez Dec., ¶ 9, Ex. E.
B. The Accident and Plaintiff’s Claim
On or about March 14, 2018, Lewis reported to Greenwich that she had been involved in a
collision while driving a company car provided to her by her employer, Hershey. She reported that
while she was in line at a gas station in a shopping center parking lot, another vehicle tried to turn
in front of her and collided with the left front portion of her car. Doc. 39–3 (Waterman Declaration)
¶ 3. Lewis submitted a workers’ compensation claim for injuries suffered in the March 14, 2018
accident and has received workers’ compensation benefits under a workers’ compensation policy
issued to Hershey by Greenwich. Id. ¶ 4.
On or about April 18, 2020, Lewis, through her counsel, notified Greenwich that she also
was making a claim for UIM benefits under the Hershey auto policy with respect to the March 14,
2018 auto accident. Id. ¶ 5; Id. at 13–21 (Ex. G). On April 28, 2020, after determining that the
Hershey auto policy did not provide New Mexico UIM coverage, Greenwich, through its third
party claims administrator, Sedgwick Claims Management Services, Inc., sent a letter to Lewis’s
attorney advising that coverage was denied as the applicable policy afforded no UM/UIM
coverage. Waterman Dec. ¶ 6; Id. at 23 (Ex. H).
Summary judgment is warranted “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986). A fact is considered
material if it “might affect the outcome of the suit under the governing law.” Anderson, 477 U.S.
at 248–50. An issue is “genuine” if the evidence is such that it might lead a reasonable jury to
return a verdict for the nonmoving party. See Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir.
2013). “The nonmoving party is entitled to all reasonable inferences from the record; but if the
nonmovant bears the burden of persuasion on a claim at trial, summary judgment may be warranted
if the movant points out a lack of evidence to support an essential element of that claim and the
nonmovant cannot identify specific facts that would create a genuine issue.” Water Pik, Inc. v.
Med-Systems, Inc., 726 F.3d 1136, 1143-44 (10th Cir. 2013). “At the summary judgment stage,
non-movants ... are given wide berth to prove a factual controversy exists.” Sierra Club v. El Paso
Gold Mines, Inc., 421 F.3d 1133, 1150 (10th Cir. 2005) (citation and quotation marks omitted).
If the moving party bears the burden of proof on its claims at trial, it must first affirmatively
show that, on all the essential elements of his claims, no reasonable jury could find for the
nonmovant. See Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986) (Brennan, J. dissenting).
“Summary judgment in favor of the party with the burden of persuasion . . . is inappropriate when
the evidence is susceptible of different interpretations or inferences by the trier of fact.” Leone v.
Owsley, 810 F.3d 1149, 1153 (10th Cir. 2015) (quoting Hunt v. Cromartie, 526 U.S. 541, 553
(1999)). “In other words, the evidence in the movant's favor must be so powerful that no reasonable
jury would be free to disbelieve it. Anything less should result in denial of summary judgment.”
Leone, 810 F.3d at 1153 (citation and quotations omitted). The district court's role is to “assess
whether the evidence presents a sufficient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of law.” El Paso Gold Mines, Inc., 421
F.3d at 1150.
In analyzing cross-motions for summary judgment, a court “must view each motion
separately, in the light most favorable to the non-moving party, and draw all reasonable inferences
in that party’s favor.” United States v. Supreme Court of New Mexico, 839 F.3d 888, 906–07 (10th
Cir. 2016). “Cross motions for summary judgment are to be treated separately; the denial of one
does not require the grant of another.” Christian Heritage Acad. v. Okla. Secondary Sch. Activities
Ass’n, 483 F.3d 1025, 1030 (10th Cir. 2007).
A. Count I –Breach of Contract
1. Parties’ Arguments
Defendant’s argument that it did not breach the Policy and that Plaintiff is not entitled to
reformation under Jordan is twofold: (1) “this Court held on very similar facts in Delgado v.
Liberty Mut. Fire Ins. Co., No. 15-CV-196 JCH/GJF, 2017 WL 6375623 (D.N.M. Dec. 13, 2017)
. . . [that] New Mexico law does not apply to determine the validity of Hershey’s rejection of
UM/UIM coverage, because the Hershey auto policy was neither delivered nor issued for delivery
in New Mexico,” Greenwich Mot. 8 (emphasis added), and (2) “[u]nder Pennsylvania law,
UM/UIM coverage must be offered, but the coverage is optional; a waiver of UM/UIM coverage
must be signed and dated, but there is no requirement that the waiver be attached to the policy in
order to be effective” nor is there a “statutory provision concerning vehicles registered or
principally garaged outside of Pennsylvania.” Id. at 13–14 (citing 75 Pa. C. S. § 1731).
For her part, Plaintiff proffers a United States District Court case out of Pennsylvania,
Douglas v. Discover Prop. & Cas. Ins. Co., 810 F. Supp. 2d 724, 726 (M.D. Pa. 2011), for the
proposition that the Policy was issued and delivered in New Mexico. Pl.’s Resp. 2. Plaintiff further
argues that if the “Court were to [follow the choice of law doctrine] lex loci contractus and apply
Pennsylvania law . . . Douglas would control.” Id. at 4.
At the outset, Plaintiff’s reliance on Douglas as controlling is misplaced. Another district
court’s decision, whether it sits in Pennsylvania or New Mexico, no matter what law it applies,
does not control this Court’s analysis, or bind this Court. But more importantly, as further
discussed below, in Delgado this Court already addressed under similar circumstances that New
Mexico law/Jordan did not apply and will not deviate from that jurisprudence.
2. New Mexico Law Does Not Apply
The undisputed material facts establish that Pennsylvania law governs the Policy. See
Delgado, 2017 WL 6375623, at *6 (under New Mexico Choice of law rules Georgia law governed
a UPS policy when the insurer sent the “[p]olicy to UPS Supply in Georgia; that the [p]olicy
applies to UPS Freight; and that UPS’s staff in Georgia had authority to enter into contracts on
behalf of UPS Freight.” (relying on Wilkeson v. State Farm Mut. Auto. Ins. Co., 2014-NMCA-077,
329 P.3d 749, 750 (N.M. Ct. App. 2014))). Here, the Policy was issued to Hershey, a Pennsylvania
company; the Policy was delivered to Hershey’s broker, Aon Risk Services Central, Inc., which is
located in Philadelphia; and the UM/UIM rejection forms were signed in Pennsylvania by the
manager of Hershey’s Risk and Insurance division.
Now, given that Pennsylvania law controls, under a straightforward application of
Delgado, New Mexico’s UM/UIM coverage and rejection statute cannot apply. See 2017 WL
6375623, at *7 (“New Mexico’s UM/UIM coverage and rejection statute, NMSA 1978, § 66-5-
301, did not apply because the “[p]olicy was not delivered or issued for delivery in New Mexico”
nor was the vehicle at issue “registered or principally garaged in New Mexico.”). Nonetheless,
Plaintiff attempts, albeit briefly, to derail this application of Delgado. According to Plaintiff,
Delgado is inapposite to the instant facts because (1) “th[at] vehicle  was a tractor-trailer
registered in Georgia” and (2) “the phrase ‘delivered or issued for delivery’ was not an issue in
that case, and was not briefed in that case.” Pl.’s Resp. 5–6. The Court is not persuaded.
As for the former argument, that the vehicle here was registered in New Mexico is not
dispositive. Section 66-5-301 states, in relevant part: “[n]o motor vehicle or automobile liability
policy . . . 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 . . . for injury
to or destruction of property as” as described further in the statute. As this Court alluded to in
Delgado, for § 66-5-301 to apply the policy must be delivered or issued in New Mexico in addition
to the registration/garaging requirement, i.e., the statute is conjunctive rather than disjunctive. And
this view accords with a majority of courts who have analyzed similar UM/UIM statutes. See
McGoff v. Acadia Ins. Co., 2011 VT 102, ¶ 8, 190 Vt. 612, 615, 30 A.3d 680, 683 (2011) (“The
two key phrases are connected by the term “with respect to” and thus are conjunctive rather than
disjunctive, thereby requiring both elements to be satisfied for the statute to apply.”).4
See, e.g., Cherokee Ins. Co. v. Sanches, 975 So.2d 287, 293 (Ala.2007) (declining to apply Alabama UM statute to
fleet policy “issued and delivered in Tennessee” even though “undisputed evidence” indicated that vehicle was
operated, maintained, and “principally garaged” in Alabama); Gilbert v. Hodgkins, No. CIV.A. CV-05-149, 2006 WL
1545532, at *2 (Me. Super. Ct. Mar. 16, 2006) (because “Maine’s UIM requirement reaches only insurance contracts
issued in the state of Maine, with respect to vehicles registered in or principally garaged in Maine,” the state “only has
an interest in implementing its policy with respect to UIM recovery where the injured party is covered by a UIM
contract issued in Maine”); Central Transport, Inc. v. Blake, 985 S.W.2d 805, 809–10 (Mo. Ct. App. 1998) (Missouri
statute did not apply because, even though vehicle was garaged in Missouri, policy was issued and delivered in
Michigan); Insurance Co. of Pa. v. Hampton, 441 Pa .Super. 382, 657 A.2d 976, 978–79 (1995) (declining to apply
Pennsylvania statute where vehicle was frequently garaged in Pennsylvania, but policy was issued, and vehicle
registered, in Delaware); Burns v. Aetna Cas. & Sur. Co., 741 S.W.2d 318, 322 (Tenn. 1987) (statute did not apply to
fleet insurance policy issued in Connecticut and delivered in Rhode Island, even though vehicle was principally
garaged in Tennessee).
As for the latter, Plaintiff misses the mark. This Court, on almost identical facts, explicitly
held in Delgado that a policy “was not delivered or issued for delivery in New Mexico” because
the insurer sent the policy to a Georgia company (UPS Supply), the policy applied to the subsidiary
employer (UPS Freight), and the staff of UPS Supply had authority to bind UPS freight in contract.
To recite the facts of this case, the Policy was issued to Hershey, a Pennsylvania company, was
delivered to Hershey’s broker in Philadelphia, and the UM/UIM rejection forms were signed by a
Hershey senior/executive level manager in Pennsylvania. Accordingly, the Policy was delivered
or issued for delivery in Pennsylvania.
Plaintiff’s proffered case, Douglas, does not change this. The Douglas court concluded that
an insurer delivered or issued for delivery a policy in Pennsylvania because (1) that “policy [was]
replete with references to Pennsylvania law and clearly evinces that it has been created to insure
vehicles operating in Pennsylvania” and (2) failing “to find that th[e] policy is not within the
purview of [the Pennsylvania statute] . . . would allow corporations to evade Pennsylvania law
based merely on a self-serving ‘delivery’ location.” 810 F. Supp. 2d at 731. If this Court accepts
that reasoning, an insurer could be deemed to have issued an insurance policy in all fifty states
simply because the policy includes UM/UIM waivers that reference all fifty states. Moreover,
instead of exploring the meaning of delivery and issuance, the Douglas court essentially accused
the insurer of attempting to “evade Pennsylvania law based  on a self-serving ‘delivery’ location”
argument. Id. The Court will not do the same and therefore declines to follow Douglas.
The undisputed facts of this case establish that the Policy was delivered or issued for
delivery in Pennsylvania and not New Mexico. Consequently, New Mexico’s UM/UIM statute
does not apply, and the Court will not reform the Policy pursuant to Jordan.5 Defendant is entitled
to judgment as a matter of law on Count I.
B. Counts II-IV
Plaintiff failed to respond to Defendant’s request for summary judgment on Counts II-IV.
Aside from Plaintiff now waiving the ability to do so,6 Defendant is entitled to judgment on these
counts as a matter of law, irrespective of whether New Mexico or Pennsylvania law applies.
1. Count II—Bad Faith
Defendant is entitled to summary judgment on Count II “because it had no contractual duty
to pay [Plaintiff] UM coverage under the Policy.” Delgado v. Liberty Mut. Fire Ins. Co., 2017
WL 6375623, at *9 (D.N.M. Dec. 13, 2017). “[T]he concept of bad faith failure to pay in the
insurance context does not arise unless there is a contractual duty to pay under the policy.” Id.
(quoting Charter Serv., Inc. v. Principal Mut. Life Ins. Co., 1994-NMCA-007, 868 P.2d 1307,
1313 (N.M. Ct. App. 1994)); see also Frog, Switch & Mfg. Co. v. Travelers Ins. Co., 193 F.3d
742, 751 n.9 (3d Cir. 1999) ((rejecting a bad faith claim because “bad faith claims cannot survive
a determination that there was no duty to defend . . . .”).7 Thus, Count II fails as a matter of law.
The Court declines to explore whether Defendant complied with Pennsylvania’s UM/UIM statute under Count I.
Plaintiff explicitly constrained her breach of contract theory to NMSA § 66-5-301 and NRMA § 220.127.116.11. Plaintiff
also has not made any arguments under Pennsylvania’s statute.
The Court’s Local Rules provide that “[t]he failure of a party to file and serve a response in opposition to a motion
within the time prescribed for doing so constitutes consent to grant the motion.” D.N.M.LR-Civ 7.1(b). Implicit in
that rule is that the failure to respond to an argument raised in a motion constitutes consent to grant the motion to the
extent associated with that particular argument. Furthermore, under Tenth Circuit law, failing to respond constitutes
waiver. See, e.g., Cole v. New Mexico, 58 F. App’x 825, 829 (10th Cir. Feb. 6, 2003) (unpublished) (argument waived
when not raised in initial response to motion to dismiss); Hinsdale v. City of Liberal, Kan., 19 F. App’x 749, 768 (10th
Cir. Aug. 28, 2001) (unpublished) (plaintiff abandoned claim when failed to respond to arguments made in support of
Under Pennsylvania law, “[t]here are two separate ‘bad faith’ claims that an insured can bring against an insurer: a
contract claim for breach of the implied contractual duty to act in good faith, and a statutory bad faith tort claim under
42 Pa. Cons. Stat. Ann. Section 8371.” Westport Ins. Corp. v. McClellan, 493 F. Supp. 3d 315, 330–31 (E.D. Pa.
2020) (citation omitted). Plaintiff makes no mention of the Pennsylvania statute, the Court therefore declines explore
that line of claims.
2. Count III—Unfair Insurance Practices Act8
An insurer violates New Mexico law if it knowingly “fail[s] to promptly provide an insured
a reasonable explanation of the basis relied on in the policy in relation to the facts or applicable
law for denial of a claim or for the offer of a compromise settlement.” N.M. Stat. Ann. § 59A-1620(N). Plaintiff believes Defendant’s rejection of benefits caused violence to this provision. See
Comp. ¶ 29. But the undisputed material facts demonstrate otherwise.
That is, on April 18, 2020, Plaintiff’s counsel notified Defendant of the UM/UIM claim.
Doc. 39–3 (Declaration of William Waterman) ¶ 5, Ex. G (pg. 13-21). On April 27, 2020,
Defendant’s claims administrator, Sedgwick Claims Management Services, (1) notified Plaintiff’s
counsel in writing that Defendant had “completed [its] coverage investigation and  determined
that [Hershey] did not elect to carry UM/UIM coverage on their policy” and (2) included “a copy
of the endorsement signature pages for [Plaintiff’s] reference.” Id. ¶ 6, Ex. H (pg. 22-23). Clearly,
these facts establish that no unfair or deceptive practice occurred by any stretch of the imagination.
Or put another way, Defendant’s explanation, which clearly indicates why it denied coverage,
coupled with the attached proof of endorsement signature pages, delivered just nine days after the
claim was filed, can only be described as reasonable. Defendant is entitled to judgment as a matter
of law on Count III.
3. Count IV—Punitive Damages
Lastly, Plaintiff alleges that “Defendant’s actions were meant to not only delay but
ultimately to refuse to pay a fair settlement under the insurance contract of the amount actually
due.” Compl. ¶ 33. In fact, Plaintiff believes that “Defendant’s conduct and actions . . . were so
The Court will not address Pennsylvania’s Unfair Practices Act because Plaintiff did not plead it in Count III, nor
argue it in briefing. Under Count III, Plaintiff alleges violations of only New Mexico’s Unfair Practices Act.
willful, wanton, reckless, grossly negligent, or without due regard for the rights of Plaintiff that
Plaintiff is entitled to recover punitive damages.” Id. ¶ 34.
Unfortunately, “[p]unitive damages may not be awarded unless there is an underlying
award of compensation for damages.” Gonzales v. Surgidev Corp., 1995-NMSC-047, 899 P.2d
594, 597 (N.M. 1995) (citing N.M. Rules Ann. Civ. UJI 13-1827); see also DiGregorio v. Keystone
Health Plan E., 2003 PA Super 509, ¶ 29, 840 A.2d 361, 370 (2003) (“It is settled law that one
cannot recover punitive damages independently from an underlying cause of action.” (citing
Hilbert v. Roth, 395 Pa. 270, 149 A.2d 648 (1959))). According, the Court will grant summary
judgment in favor of Defendant on Count IV because Plaintiff’s underlying claims fail as a matter
C. Defendant’s Counterclaim for Declaratory Relief
Defendant “desires a judicial determination of its rights and duties under the [Policy] with
respect to Lewis’s claim for underinsured-motorists benefits under New Mexico law.” Doc. 10
(Answer and Counterclaim) at 11. Defendant believes that “[a] judicial determination is necessary
and appropriate at this time under the circumstances in order that the parties may ascertain their
rights and duties” because “[s]aid controversy is incapable of resolution without judicial
adjudication” and “Greenwich has no plain, speedy and adequate remedy at law[.]” Id.
Although the Court believes that a declaration at this point amounts to nothing more than
gilding the lily, it will nevertheless grant summary judgment in favor of Defendant here.
Specifically, the Court concludes “that by reason of the terms, definitions, conditions, exclusions,
limitations, and endorsements of the [Policy], Greenwich has no duty to pay Lewis’s claim for
underinsured-motorists benefits under New Mexico law, because the [Policy] does not provide
coverage for those benefits.” Id.
For the foregoing reasons, Plaintiff Jennifer Lewis’s Motion for Partial Summary Judgment
(Doc. 38) is DENIED and Defendant Greenwich Insurance Company’s Motion for Summary
Judgment (Doc. 39) is GRANTED. Plaintiff’s request for a hearing (Doc. 50) is also DENIED.
SENIOR UNITED STATES DISTRICT JUDGE
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