{ "id": 723303, "name": "Dianna LEWIS, Personal Representative of the Estate of Thomas F. Lewis, Deceased, and Dianna Lewis, conservator of the Estate of Thomas J.B. Lewis, Christie Anna F.J. Lewis, and Faith M.A. Lewis, all minors, Plaintiffs-Appellants, v. DAIRYLAND INSURANCE COMPANY, a foreign corporation, and American Reliable Insurance Company, a foreign corporation, Defendants-Appellees", "name_abbreviation": "Lewis ex rel. Estate of Lewis v. Dairyland Insurance", "decision_date": "1992-05-15", "docket_number": "No. 19721", "first_page": "686", "last_page": "689", "citations": [ { "type": "official", "cite": "113 N.M. 686" }, { "type": "parallel", "cite": "831 P.2d 985" } ], "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": "110 N.M. 188", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716963 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "190" }, { "page": "1343" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0188-01" ] }, { "cite": "111 N.M. 179", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715104 ], "weight": 5, "year": 1990, "pin_cites": [ { "page": "180" }, { "page": "665" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0179-01" ] }, { "cite": "526 N.E.2d 1089", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1988, "pin_cites": [ { "page": "1094" }, { "page": "1092" } ], "opinion_index": 0 }, { "cite": "38 Ohio St.3d 86", "category": "reporters:state", "reporter": "Ohio St. 3d", "case_ids": [ 1411991 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ohio-st-3d/38/0086-01" ] }, { "cite": "716 S.W.2d 455", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9974302 ], "pin_cites": [ { "page": "457" } ], "opinion_index": 0, "case_paths": [ "/sw2d/716/0455-01" ] }, { "cite": "81 N.M. 348", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358503 ], "weight": 4, "year": 1970, "pin_cites": [ { "page": "17" } ], "opinion_index": 0, "case_paths": [ "/nm/81/0348-01" ] }, { "cite": "81 N.M. 69", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5362374 ], "weight": 3, "pin_cites": [ { "page": "77" }, { "page": "53" }, { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/nm/81/0069-01" ] }, { "cite": "733 P.2d 869", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1987, "opinion_index": 0 }, { "cite": "105 N.M. 421", "category": "reporters:state", "reporter": "N.M.", "year": 1987, "opinion_index": 0 }, { "cite": "105 N.M. 444", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1599003 ], "weight": 2, "pin_cites": [ { "page": "446" }, { "page": "1329" } ], "opinion_index": 0, "case_paths": [ "/nm/105/0444-01" ] }, { "cite": "83 N.M. 715", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5340539 ], "weight": 2, "pin_cites": [ { "page": "716" }, { "page": "1112" } ], "opinion_index": 0, "case_paths": [ "/nm/83/0715-01" ] } ], "analysis": { "cardinality": 524, "char_count": 10131, "ocr_confidence": 0.77, "pagerank": { "raw": 8.083271924781753e-08, "percentile": 0.4671029083162764 }, "sha256": "11400cb93f11de8b342a3fe45e1f803d3b3b4a483912ca808b202133834232b9", "simhash": "1:1500d73026ec0b3b", "word_count": 1578 }, "last_updated": "2023-07-14T16:27:24.348281+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "RANSOM, C.J., and MONTGOMERY, J., concur." ], "parties": [ "Dianna LEWIS, Personal Representative of the Estate of Thomas F. Lewis, Deceased, and Dianna Lewis, conservator of the Estate of Thomas J.B. Lewis, Christie Anna F.J. Lewis, and Faith M.A. Lewis, all minors, Plaintiffs-Appellants, v. DAIRYLAND INSURANCE COMPANY, a foreign corporation, and American Reliable Insurance Company, a foreign corporation, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nFROST, Justice.\nThe issue that we address in this case is whether the several statutory beneficiaries in a wrongful death action are entitled to recover pursuant to underinsured motorist insurance policies the per-person or per-accident limits of coverage. In granting summary judgment to the insurers, the trial court held that recovery could be had only for the per-person coverage. We affirm.\nIn September 1988, Thomas F. Lewis was killed when his motorcycle collided with an underinsured automobile in Otero County, New Mexico. At the time of his death, decedent insured his motorcycle with Dairyland Insurance Company and also insured a second vehicle with American Reliable Insurance Company. Each policy provided split uninsured motorist coverage of $25,000 for each person and $50,000 for each accident.\nPlaintiff, decedent\u2019s widow, was appointed personal representative of the estate and conservator of the estates of three surviving minor children, all statutory beneficiaries under New Mexico\u2019s wrongful death provisions, NMSA 1978, Sections 41-2-1, -3 (Repl.Pamp.1989). With the consent of Dairyland and American Reliable, plaintiff settled with the tortfeasor\u2019s insurance carrier for the liability policy limit of $25,000. Dairyland and American Reliable each paid the $25,000 per-person limit, less the respective setoffs from the negligent driver\u2019s liability payment, and denied plaintiff\u2019s claim for benefits up to the $50,000 per-accident limit. In a complaint for declaratory judgment, plaintiff sought to recover the per-accident limit by urging that, under the wrongful death statutes, each beneficiary was entitled to assert separate claims against decedent\u2019s underinsured motorist coverage. All parties moved for summary judgment, with the district court granting the insurers\u2019 motions. In reviewing the summary judgment, we consider only the undisputed facts and determine whether, under those facts, summary judgment was proper as a matter of law. Fleming v. Phelps-Dodge Corp., 83 N.M. 715, 716, 496 P.2d 1111, 1112 (Ct.App.1972).\nThe dispositive issue is whether the trial court erred in concluding as a matter of law that the beneficiaries identified in the wrongful death statutes have one collective right of action, rather than separate, divisible rights of action as urged by plaintiff. The insurers submit that a wrongful death gives rise to one indivisible claim that is, in this case, subject to the per-person limit of liability. We agree and hold that our wrongful death statutes permit only one claim for damages for the death of one person.\nSection 41-2-1 states:\nWhenever the death of a person shall be caused by the wrongful act, neglect or default of another, * * * and the act, or neglect, or default, is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then * * * the person who * * * would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured.\n(Emphasis added.) Section 41-2-3 states:\nEvery such action * * * shall be brought by and in the name or names of the personal representative or representatives of such deceased person * * *. The proceeds of any judgment obtained in any such action shall not be liable for any debt of the deceased: provided, he or she shall have left a husband, wife, child, father, mother, brother, sister or child or children of the deceased child * * *.\nWe have no quarrel with plaintiffs contention that she and the surviving children are entitled to damages under the wrongful death statutes. Plaintiff\u2019s premise, however, that each beneficiary has a separate, divisible claim, is faulty. Beneficiaries are not the proper plaintiffs. Moncor Trust Co. v. Feil, 105 N.M. 444, 446, 733 P.2d 1327, 1329 (Ct.App.), cert. denied, 105 N.M. 421, 733 P.2d 869 (1987). The personal representative is entitled to recover damages on behalf of the statutory beneficiaries. Stang v. Hertz Corp., 81 N.M. 69, 77, 463 P.2d 45, 53 (Ct.App.1969), aff'd, 81 N.M. 348, 467 P.2d 14 (1970). The right of action depends \u201cupon the right of the person injured, had he [or she] not died as a consequence of [the] injury, to maintain an action for personal injuries.\u201d Id. 81 N.M. at 351, 467 P.2d at 17. Here, as a result of the accident, Section 41-2-1 preserved decedent\u2019s right to claim underinsured motorist benefits provided by Dairyland and American Reliable and transmitted it to the personal representative. See id. at 79, 463 P.2d at 55; see also Lumley v. Farmers Ins. Co., 716 S.W.2d 455, 457 (Mo.Ct.App.1986) (wrongful death statutes provide for one indivisible claim for death of one person, which remains the same whether enforced by the surviving spouse, minor children, or others named in the statute).\nPlaintiff urges this court to invalidate on public policy grounds any limitation on wrongful death beneficiaries to single per-person recovery. Plaintiff relies on the Ohio Supreme Court case of Wood v. Shepard, 38 Ohio St.3d 86, 526 N.E.2d 1089 (1988), which held that \u201ceach person entitled to recover damages pursuant to [Ohio\u2019s wrongful death statute] for wrongful death, and who is an insured under an underinsured motorist provision of an insurance policy, has a separate claim and such separate claims may not be made subject to the single person limit of liability in the underinsured motorist provision.\u201d Id. 526 N.E.2d at 1094.\nThe Wood court based its holding on the language in Ohio\u2019s wrongful death statute \u201cthat the surviving spouse, the children, and the parents of the decedent are \u2018all ... rebuttably presumed to have suffered damages by reason of the wrongful death.\u2019 \u201d Id. at 1092 (quoting Ohio Rev.Code Ann. \u00a7 2125.02 (Baldwin 1987)). Our statutes do not create such a presumption. Section 41-2-3 reserves for the fact finder the determination of damages \u201ctaking into consideration the pecuniary injury or injuries resulting from such death to the surviving party or parties * * * and also having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default.\u201d\nFurthermore, the coverage provided by the policy in Wood was more inclusive than the coverage provided by decedent\u2019s policies. The policy in Wood allowed recovery \u201cfor all damages resulting from any one accident.\u201d Id. at 1091 n. 2. Here, each policy limits damages in clear and unambiguous language. The American Reliable policy states that \u201c[t]he Bodily Injury limit for each person is the most we will pay for Bodily Injury suffered by any one person in any one accident.\u201d The Dairyland policy states that \u201c[t]he limit for \u2018each person\u2019 is the limit for all claims by all persons for damages from bodily injury to one person\u201d and \u201c[t]he maximum amount we\u2019ll pay * * * to any one person is the limit of Uninsured Motorist Insurance for \u2018each person.\u2019 \u201d Under both policies, the per-accident limit applies only when bodily injury or death of two or more persons occurs in one accident.\nFinally, plaintiff asserts that a restriction on uninsured motorist coverage, such as the per-person limit for one wrongful death, violates the policy behind the uninsured motorist statute. Plaintiff suggests we borrow the analysis set out in Stinbrink v. Farmers Insurance Co. of Arizona, 111 N.M. 179, 803 P.2d 664 (1990), which addressed whether punitive damages are included in damages one is \u201clegally entitled to recover\u201d as that phrase is used in the uninsured motorist statute. Id. at 180, 803 P.2d at 665. Plaintiff contends that by merely substituting the words \u201cdamages up to the per-occurrence limit of liability\u201d for \u201cpunitive damages,\u201d the per-occurrence limit should be recoverable since such damages were not unambiguously excluded in the policy. Stinbrink, however, fails to support plaintiff\u2019s argument since only the personal representative has a cause of action to recover damages. The case presents no issue whether the policy attempts to exclude any entitlement the personal representative might have under the wrongful death provisions. Further, plaintiff\u2019s contention lacks merit in light of the public policy supporting \u201cthe right of the parties to freely contract within the context of an insurance policy.\u201d Id. We will not rewrite the parties\u2019 contract.\nDecedent and his spouse purchased $25,-000 per-person uninsured/underinsured motorist coverage under each policy in the event of the death of an insured. Given these amounts of coverage, along with our holding concerning the wrongful death claim, plaintiff, as the personal representative, is entitled to recover only the per-person limit under each policy. The district court\u2019s ruling to limit coverage to the per-person amount is consistent with the policy underlying our statutes requiring uninsured/underinsured motorist insurance and is correct as a matter of law. Our holding eliminates the need to address the issue raised by plaintiff on whether the policy was ambiguous in limiting damages to the named insured and his spouse.\nBased upon the above, the summary judgment is affirmed.\nIT IS SO ORDERED.\nRANSOM, C.J., and MONTGOMERY, J., concur.\n. Our uninsured motorist statute, NMSA 1978, Section 66-5-301(B) (Repl.Pamp.1989), includes underinsured motorist coverage as part of the uninsured coverage. American States Ins. Co. v. Frost, 110 N.M. 188, 190, 793 P.2d 1341, 1343 (1990).", "type": "majority", "author": "FROST, Justice." } ], "attorneys": [ "Wilson & Rank, Frank K. Wilson, Rory L. Rank, Alamogordo, for appellants.", "Miller, Stratvert, Torgerson, & Schlenker, P.A., Mick I.R. Gutierrez, Las Cruces, for appellee Dairyland Ins.", "Flecan, Childress & Huling, Mark J. Flecan, Albuquerque, for appellee American Reliable." ], "corrections": "", "head_matter": "831 P.2d 985\nDianna LEWIS, Personal Representative of the Estate of Thomas F. Lewis, Deceased, and Dianna Lewis, conservator of the Estate of Thomas J.B. Lewis, Christie Anna F.J. Lewis, and Faith M.A. Lewis, all minors, Plaintiffs-Appellants, v. DAIRYLAND INSURANCE COMPANY, a foreign corporation, and American Reliable Insurance Company, a foreign corporation, Defendants-Appellees.\nNo. 19721.\nSupreme Court of New Mexico.\nMay 15, 1992.\nWilson & Rank, Frank K. Wilson, Rory L. Rank, Alamogordo, for appellants.\nMiller, Stratvert, Torgerson, & Schlenker, P.A., Mick I.R. Gutierrez, Las Cruces, for appellee Dairyland Ins.\nFlecan, Childress & Huling, Mark J. Flecan, Albuquerque, for appellee American Reliable." }, "file_name": "0686-01", "first_page_order": 724, "last_page_order": 727 }