{ "id": 1594988, "name": "Ernesto Quinones GAMBOA, Jr., by Personal Representative Ernesto GAMBOA, Sr., Plaintiff-Appellee, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellant", "name_abbreviation": "Gamboa ex rel. Gamboa v. Allstate Insurance", "decision_date": "1986-10-30", "docket_number": "No. 15998", "first_page": "756", "last_page": "760", "citations": [ { "type": "official", "cite": "104 N.M. 756" }, { "type": "parallel", "cite": "726 P.2d 1386" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "245 S.C. 472", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 2110648 ], "weight": 2, "year": 1965, "pin_cites": [ { "page": "478" }, { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/sc/245/0472-01" ] }, { "cite": "373 So.2d 267", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9574077 ], "pin_cites": [ { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/so2d/373/0267-01" ] }, { "cite": "620 P.2d 1005", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1980, "pin_cites": [ { "page": "1006" } ], "opinion_index": 0 }, { "cite": "27 Wash.App. 726", "category": "reporters:state", "reporter": "Wash. App.", "case_ids": [ 1831287 ], "year": 1980, "pin_cites": [ { "page": "728" } ], "opinion_index": 0, "case_paths": [ "/wash-app/27/0726-01" ] }, { "cite": "376 So.2d 579", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9613630 ], "pin_cites": [ { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/so2d/376/0579-01" ] }, { "cite": "80 N.M. 224", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358560 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0224-01" ] }, { "cite": "93 N.M. 398", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568673 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/93/0398-01" ] }, { "cite": "174 N.E.2d 7", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "30 Ill.App.2d 132", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5790551 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/ill-app-2d/30/0132-01" ] }, { "cite": "90 N.M. 516", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2874921 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "520" }, { "page": "1037" } ], "opinion_index": 0, "case_paths": [ "/nm/90/0516-01" ] }, { "cite": "10 Kan. App.2d 494", "category": "reporters:state", "reporter": "Kan. App. 2d", "case_ids": [ 403434 ], "weight": 4, "year": 1985, "pin_cites": [ { "page": "495" }, { "page": "390", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/kan-app-2d/10/0494-01" ] }, { "cite": "339 So.2d 731", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9685174 ], "weight": 2, "pin_cites": [ { "page": "733" }, { "page": "733" } ], "opinion_index": 0, "case_paths": [ "/so2d/339/0731-01" ] }, { "cite": "86 N.M. 65", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2827850 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/nm/86/0065-01" ] }, { "cite": "7 Kan.App.2d 705", "category": "reporters:state", "reporter": "Kan. App. 2d", "case_ids": [ 384609 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/kan-app-2d/7/0705-01" ] }, { "cite": "331 So.2d 260", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9640939 ], "pin_cites": [ { "page": "263" } ], "opinion_index": 0, "case_paths": [ "/so2d/331/0260-01" ] }, { "cite": "695 P.2d 1340", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10428193 ], "weight": 3, "pin_cites": [ { "page": "1342" }, { "page": "1343" } ], "opinion_index": 0, "case_paths": [ "/p2d/695/1340-01" ] }, { "cite": "660 P.2d 307", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "312" }, { "page": "313" } ], "opinion_index": 0 }, { "cite": "34 Wash.App. 151", "category": "reporters:state", "reporter": "Wash. App.", "case_ids": [ 1817340 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "159" }, { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/wash-app/34/0151-01" ] }, { "cite": "392 So.2d 1348", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9615253 ], "opinion_index": 0, "case_paths": [ "/so2d/392/1348-01" ] }, { "cite": "376 So.2d 690", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9618560 ], "opinion_index": 0, "case_paths": [ "/so2d/376/0690-01" ] }, { "cite": "203 Kan. 783", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 550107 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/kan/203/0783-01" ] }, { "cite": "87 N.M. 327", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2832613 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/87/0327-01" ] }, { "cite": "98 N.M. 166", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582455 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/nm/98/0166-01" ] } ], "analysis": { "cardinality": 664, "char_count": 15382, "ocr_confidence": 0.776, "pagerank": { "raw": 2.3260143031057946e-07, "percentile": 0.7905569011938534 }, "sha256": "a592b9315df2b42da7b2709c0723d2c279d5a57ceffd4d26fa164688486c0027", "simhash": "1:2ac3e252045c2549", "word_count": 2389 }, "last_updated": "2023-07-14T22:33:25.530063+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "STOWERS and WALTERS, JJ., concur." ], "parties": [ "Ernesto Quinones GAMBOA, Jr., by Personal Representative Ernesto GAMBOA, Sr., Plaintiff-Appellee, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nSOSA, Senior Justice.\nPlaintiff Ernesto Gamboa, Sr., representative of the estate of Ernesto Quinones Gamboa, Jr., brought a declaratory judgment action in Dona Ana District Court, seeking interpretation and construction of an insurance policy defendant Allstate Insurance Company (Allstate) issued to Wilfred Trujillo. More specifically, plaintiff seeks to determine whether decedent Gamboa is entitled to protection as an \u201cinsured\u201d under the uninsured motorist coverage provision of the policy. Both parties filed motions for summary judgment. After a hearing, the trial court entered an order on June 19, 1985, for summary judgment in plaintiff\u2019s favor. Allstate appeals and we now reverse the trial court.\nFACTS:\nOn April 28, 1984, the decedent, Ernesto Gamboa, was a passenger in his father\u2019s 1978 Chevrolet automobile. The driver, Andrew Trujillo, was also killed when their vehicle was struck \u201chead on\u201d by another vehicle. The other vehicle involved was a 1979 Ford operated by Edward Segovia, an uninsured motorist. At the time of the accident, American Fidelity Insurance Company (American) insured the Chevrolet, providing uninsured motorist coverage in the amount of $15,000 per person limits. The estates of both decedents, Trujillo and Gamboa, filed claims against American and recovered payments under the uninsured motorist coverage provision. In addition, Andrew Trujillo\u2019s father, Wilfred Trujillo, also had a policy in effect at the time of the accident issued by Allstate covering a 1978 Ford owned by him. This automobile was not involved in the accident. The uninsured motorist coverage provided under this policy was limited to $25,000 per person.\nThe plaintiff claims that Allstate is obligated under its policy to Trujillo on the Ford to pay, within policy limits, any judgment rendered against Segovia in favor of plaintiff.\nAllstate denies liability, alleging that plaintiff\u2019s decedent was not an \u201cinsured\u201d within the uninsured motorist coverage of its policy. The trial court, granting summary judgment in favor of plaintiff, found that Gamboa was an \u201cinsured\u201d under Allstate\u2019s policy and should be entitled to benefits under the uninsured motorist coverage provision.\nThe sole issue on appeal is whether plaintiff\u2019s decedent, an insured under American\u2019s policy, is also an \u201cinsured\u201d under Allstate\u2019s uninsured motorist coverage and thus allowed to \u201cstack\u201d both coverages.\nStacking refers to an insured\u2019s attempted recovery of damages by aggregating the coverage under more than one policy or under one policy covering more than one automobile. Lopez v. Foundation Reserve Insurance Co., 98 N.M. 166, 646 P.2d 1230 (1982). In the instant case, plaintiff is attempting to interpolicy stack the uninsured motorist coverages under both American\u2019s and Allstate\u2019s policies. Allstate, relying on the underlying rationale of Lopez, argues that plaintiff should not be allowed to \u201cstack\u201d the uninsured motorist coverage under its policy because decedent Gamboa is limited to the coverage on the vehicle occupied, the 1978 Chevrolet insured by American. In Lopez, this Court held that an insured who had been paying multiple premiums under one policy was entitled to intrapolicy stacking of uninsured motorist coverage purchased for two automobiles. More importantly, this Court also held that an occupant involved in an accident who is entitled to uninsured motorist coverage solely because of his status as a passenger may not \u201cstack\u201d uninsured motorist coverage. In so holding, this Court recognized the difference in status between a first class insured and a second class insured. First class insureds are covered by policies no matter where they are or in what circumstances they may be; coverage is not limited to a particular vehicle. Chavez v. State Farm Mutual Automobile Insurance Co., 87 N.M. 327, 533 P.2d 100 (1975). On the other hand, second class insureds are covered only because they occupy an insured vehicle. Several other jurisdictions have recognized the difference between the two classes of insureds. See Sturdy v. Allied Mutual Insurance Co., 203 Kan. 783, 457 P.2d 34 (1969); Holloway v. Nationwide Mutual Insurance Co., 376 So.2d 690 (Ala.1979); Florida Insurance Guaranty Association v. Johnson, 392 So.2d 1348 (Fla.App.1980); Thompson v. Grange Insurance Association, 34 Wash.App. 151, 660 P.2d 307 (1983); Babcock v. Adkins, 695 P.2d 1340 (Okl.1984).\nThe prevailing rationale in permitting first class insureds to \u201cstack\u201d coverages under multi-vehicle policies is because they have paid separate premiums and therefore reasonably expect the fulfillment of the terms of those policies purchased. E.g., Lambert v. Liberty Mutual Insurance Co., 331 So.2d 260, 263 (Ala.1976); Babcock v. Adkins, 695 P.2d at 1342. This rationale is not applicable to an insured by virtue of vehicle occupancy. The additional uninsured motorist coverage premium paid covering insureds of the second class gives them the coverage they otherwise would not have had. Thompson v. Grange Insurance Association, 34 Wash.App. at 159, 660 P.2d at 312. \u201cNeither the passenger nor the purchaser of the policy would have any legitimate contractual expectation that one insured solely by reason of his presence in a vehicle would be entitled to a recovery under other policies belonging to the named insured covering vehicles which were not involved in the accident.\u201d Babcock, 695 P.2d at 1343. As the trial court noted here, \u201c[t]he troublesome aspect of this case is that plaintiff did not contract with defendant for coverage, did not pay a premium and claims coverage from the fortuitous circumstance that plaintiffs decedent was occupying a vehicle operated by defendant\u2019s insured.\u201d\nPlaintiff argues that Lopez, involving intrapolicy stacking, is distinguishable on its facts and not controlling because the Court did not determine whether the passenger there was in fact defined as an \u201cinsured\u201d under that policy. Plaintiff maintains that a passenger is not limited to the coverage on the vehicle occupied if another policy under which additional recovery is sought also defines the passenger as an \u201cinsured.\u201d The plaintiff relies on Merritt v. Farmers Insurance Co., 7 Kan.App.2d 705, 647 P.2d 1355 (1982), and Sloan v. Dairyland Insurance Co., 86 N.M. 65, 519 P.2d 301 (1974). In both cases, passenger-plaintiffs were allowed to \u201cstack\u201d uninsured motorist coverages under policies covering non-involved vehicles because plaintiffs were defined as \u201cinsureds\u201d under those policies. Therefore, the \u201cstacking\u201d issue arises only when it is determined that the person seeking to cumulate benefits on two or more uninsured motorist coverages is an insured under those policies. Seaton v. Kelly, 339 So.2d 731, 733 (La.1976). Accordingly, Allstate contends that decedent Gamboa is not an \u201cinsured\u201d under its policy language and therefore not entitled to coverage. We agree.\nWhether plaintiff\u2019s decedent was covered by the uninsured motorist clause of Allstate\u2019s policy when riding in the 1978 Chevrolet is a question of law for the courts to decide. See Sears v. Wilson, 10 Kan. App.2d 494, 704 P.2d 389 (1985). \u201cIn deciding this question, this court must look to the provisions of the policy; if the terms of the policy are not ambiguous, the language used must be given its natural and ordinary meaning.\u201d Id. at 495, 704 P.2d at 390 (citations omitted); Safeco Insurance Co. of America, Inc. v. McKenna, 90 N.M. 516, 520, 565 P.2d 1033, 1037 (1977).\nThe 1978 Ford policy provides in pertinent part:\nSECTION II PROTECTION AGAINST BODILY INJURY AND PROPERTY DAMAGE BY UNINSURED MOTOR VEHICLES\n\u2018Insured\u2019 means:\n(a) the named insured as stated in the policy and, while residents of the same household, the spouse of any such named insured and relatives of either;\n(b) any other person while occupying an insured motor vehicle; and\n(c) any person with respect to damages he is entitled to recover because of bodily injury to which this coverage applies sustained by an insured under (a)or (b) above; * * *.\n\u2018Insured Motor Vehicle\u2019 means a motor vehicle:\n(a) described in the declarations as an insured motor vehicle to which the bodily injury and property damage liability coverages of the policy apply;\n(b) while temporarily used as a substitute for an insured motor vehicle as described in subparagraph (a) above, when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction;\n(c) while being operated by the named insured or by his spouse if a resident of the same household; * * *.\nThe trial court, without considering the above definition of insured motor vehicle, found this provision of the policy ambiguous, and more specifically subparagraph (c) which plaintiff relies on under the definition \u201cinsured.\u201d The trial court resorted to \u201cSECTION IV MEDICAL EXPENSE, DEATH INDEMNITY AND DISABILITY INCOME PROTECTION\u201d of the policy to help in its construction of the term \u201cinsured.\u201d That portion of the policy provides in pertinent part:\nThe following persons are insured under this Part\n* * * * * *\n2. Any other person who sustains bodily injury while occupying:\n* * * # * *\n(b) a non-owned automobile if the injury results from:\n* * * * * *\n(2) its operation ... by a relative if such automobile is a private passenger automobile or trailer, provided the use thereof is with the permission ... of the owner and is within the scope of such permission. [Emphasis added].\nThe court found under this provision that \u201cany injured person is covered if occupying a non-owned automobile if it was being operated by a relative of the named insured with the permission of the owner.\u201d The court concluded that the named insured should have expected that any person occupying a non-owned automobile operated by a relative residing in his household would be protected under the uninsured motorist coverage provision of the policy. This provision relied upon by the trial court in its construction of the term \u201cinsured\u201d does not relate to the uninsured motorist coverage. Recovery under the uninsured motorist protection should not be likened to medical payments protection. Remsen v. Midway Liquors, Inc., 30 Ill.App.2d 132, 174 N.E.2d 7 (1961). Furthermore, the issue here is not whether the plaintiff is entitled to the benefit of the medical expense coverage of Allstate\u2019s policy, but whether he is entitled as an \u201cinsured\u201d to the benefits of the uninsured motorist coverage. The courts should not resort to a strained construction of the policy for purposes of creating an ambiguity when no ambiguity in fact exists. Atlas Assurance Co. Ltd. v. General Builders, Inc., 93 N.M. 398, 600 P.2d 850 (Ct.App.1979). An insurance policy can be construed only when the language of the policy is equivocal, indefinite, or ambiguous. 44 C.J.S. Insurance \u00a7 290 at 1139 (1945). If the language is clear or unequivocal, construction is unnecessary. Ivy Nel son Grain Co. v. Commercial Union Insurance Co., 80 N.M. 224, 453 P.2d 587 (1969).\nConsidering the contract as a whole, we find the policy language unambiguous. Other courts interpreting the same or similar language in Section II above, defining \u201cinsured,\u201d have found no ambiguity. See Seaton v. Kelly, 339 So.2d at 733; Schmidt v. Estate of Choron, 376 So.2d 579, 580 (La.App.1979); Continental Casualty Co. v. Darch, 27 Wash.App. 726, 728, 620 P.2d 1005, 1006 (1980).\nAllstate\u2019s uninsured motorist coverage clearly refers to three classes of insureds: the first class insured includes the named insured, his spouse, and relatives in the same household; the second class insured is any other person while occupying an insured motor vehicle; and the third class encompasses those persons entitled to recover because of bodily injury sustained by an insured as defined under the first and second instance. Plaintiff does not rely on subparagraphs (a) or (b) for his position, but argues that he is any person, a third class of insured, entitled to recover under subparagraph (c). We disagree.\nThe language under subparagraph (c), \u201cdamages he is entitled to recover,\u201d refers to a right arising under the applicable law of torts. Thompson, 34 Wash.App. at 160, 660 P.2d at 313; Pearthree v. Hartford Accident & Indemnity Co., 373 So.2d 267, 271 (Miss.1979). Perhaps plaintiff would be entitled to recover under subparagraph (c) if decedent Gamboa was an \u201cinsured\u201d under subparagraphs (a) or (b). Plaintiff\u2019s right to recovery is contingent upon \u201cbodily injury ... sustained by an insured under (a) or (b).\u201d Therefore, we must examine subparagraphs (a) and (b) to determine whether decedent Gamboa is an \u201cinsured.\u201d Plaintiff\u2019s decedent is not a first class insured, being neither a named insured nor a relative of Trujillo residing in Trujillo\u2019s household. Furthermore, plaintiff\u2019s decedent is not a second class insured because he did not occupy an insured motor vehicle to which the Ford policy applied. Plaintiff\u2019s decedent occupied the 1978 Chevrolet, not the vehicle described in the declarations of the policy, nor was the Chevrolet a temporary substitute for the insured motor vehicle, nor was it being operated by the named insured or spouse. Thus, plaintiff is not entitled to recover under subparagraphs (a), (b), or (c). The policy does not define decedent Gamboa as an \u201cinsured.\u201d\nPlaintiff would have us find that Allstate\u2019s policy language is similar to the defendant\u2019s policy in Merritt in which a passenger was permitted to recover under the driver\u2019s uninsured motorist coverage, although the driver\u2019s automobile was not the vehicle occupied. In Merritt, the defendant\u2019s policy defined \u201cinsured motor vehicle\u201d as a non-owned automobile with permission of the owner and then defined \u201cinsured\u201d as including any other person while occupying an \u201cinsured motor vehicle.\u201d In that case defendant's policy defined plaintiff Merritt as an insured in clear and unambiguous language. Conversely, in the present case, the plaintiff\u2019s decedent was not occupying the insured motor vehicle described in the policy for which a specific premium charge was paid, and by the clear terms of the policy, no coverage was afforded. Plaintiff also relies on Sloan which is distinguishable because there the plaintiff-passenger was covered as a named insured under her own policy and as a passenger under the driver\u2019s policy because she occupied the vehicle insured under that policy. Thus, the court permitted the plaintiff to \u201cstack\u201d both coverages.\nHere, plaintiff\u2019s decedent, by contrast, is not a member of either class and therefore is not entitled to coverage. See Davidson v. Eastern Fire & Casualty Insurance Co., 245 S.C. 472, 478, 141 S.E.2d 135, 138 (1965). Allstate has not written its policy defining plaintiff's decedent as an \u201cinsured.\u201d Therefore, the trial court erred in allowing plaintiff to \u201cstack\u201d Allstate\u2019s uninsured motorist coverage. The trial court\u2019s judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion.\nSTOWERS and WALTERS, JJ., concur.", "type": "majority", "author": "SOSA, Senior Justice." } ], "attorneys": [ "Farlow, Simone, Roberts & Weiss, Norman F. Weiss, LeRoi Farlow, Stephen M. Simone, Albuquerque, for defendant-appellant.", "John E. Keithly, Anthony, for plaintiffappellee." ], "corrections": "", "head_matter": "726 P.2d 1386\nErnesto Quinones GAMBOA, Jr., by Personal Representative Ernesto GAMBOA, Sr., Plaintiff-Appellee, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellant.\nNo. 15998.\nSupreme Court of New Mexico.\nOct. 30, 1986.\nFarlow, Simone, Roberts & Weiss, Norman F. Weiss, LeRoi Farlow, Stephen M. Simone, Albuquerque, for defendant-appellant.\nJohn E. Keithly, Anthony, for plaintiffappellee." }, "file_name": "0756-01", "first_page_order": 790, "last_page_order": 794 }