{ "id": 106489, "name": "Fremont F. ELLIS, Plaintiff-Appellant, v. CIGNA PROPERTY & CASUALTY COMPANIES, Defendant-Appellee", "name_abbreviation": "Ellis v. Cigna Property & Casualty Companies", "decision_date": "1999-09-01", "docket_number": "No. 24801", "first_page": "54", "last_page": "56", "citations": [ { "type": "official", "cite": "128 N.M. 54" }, { "type": "parallel", "cite": "1999-NMSC-034" }, { "type": "parallel", "cite": "989 P.2d 429" } ], "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": "492 N.E.2d 386", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "pin_cites": [ { "page": "389", "parenthetical": "articulating the general rule that a cause of action arises, and the statute of limitations begins to run, \"when all of the facts necessary to the cause of action have occurred so that a party would be entitled to obtain relief in court\"" } ], "opinion_index": 0 }, { "cite": "501 N.Y.S.2d 313", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1986, "pin_cites": [ { "parenthetical": "articulating the general rule that a cause of action arises, and the statute of limitations begins to run, \"when all of the facts necessary to the cause of action have occurred so that a party would be entitled to obtain relief in court\"" } ], "opinion_index": 0 }, { "cite": "67 N.Y.2d 169", "category": "reporters:state", "reporter": "N.Y.2d", "case_ids": [ 4402760 ], "year": 1986, "pin_cites": [ { "parenthetical": "articulating the general rule that a cause of action arises, and the statute of limitations begins to run, \"when all of the facts necessary to the cause of action have occurred so that a party would be entitled to obtain relief in court\"" } ], "opinion_index": 0, "case_paths": [ "/ny-2d/67/0169-01" ] }, { "cite": "113 N.M. 387", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723197 ], "weight": 2, "year": 1992, "pin_cites": [ { "parenthetical": "noting that \"a statute of limitations begins to run when a plaintiffs cause of action accrues or is discovered\"" }, { "parenthetical": "noting that \"a statute of limitations begins to run when a plaintiffs cause of action accrues or is discovered\"" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0387-01" ] }, { "cite": "1998-NMCA-007", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 17722 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0472-01" ] }, { "cite": "664 N.E.2d 1188", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "collecting cases" } ], "opinion_index": 0 }, { "cite": "422 Mass. 659", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 890319 ], "year": 1996, "pin_cites": [ { "parenthetical": "collecting cases" } ], "opinion_index": 0, "case_paths": [ "/mass/422/0659-01" ] }, { "cite": "157 Misc.2d 721", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 912697 ], "weight": 2, "pin_cites": [ { "page": "686-87" } ], "opinion_index": 0, "case_paths": [ "/misc2d/157/0721-01" ] }, { "cite": "283 N.Y.S.2d 466", "category": "reporters:state", "reporter": "N.Y.S.2d", "weight": 2, "pin_cites": [ { "page": "467", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "54 Misc.2d 808", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 1184159 ], "opinion_index": 0, "case_paths": [ "/misc2d/54/0808-01" ] }, { "cite": "445 So.2d 224", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7618800, 7618873 ], "year": 1984, "pin_cites": [ { "page": "226" } ], "opinion_index": 0, "case_paths": [ "/so2d/445/0224-01", "/so2d/445/0224-02" ] }, { "cite": "144 N.J. 344", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 820715 ], "weight": 2, "year": 1996, "pin_cites": [ { "parenthetical": "disagreeing with the reasoning in Kilbreath, but reaching same result" }, { "page": "1078-80", "parenthetical": "disagreeing with the reasoning in Kilbreath, but reaching same result" } ], "opinion_index": 0, "case_paths": [ "/nj/144/0344-01" ] }, { "cite": "419 So.2d 632", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9540149 ], "year": 1982, "pin_cites": [ { "page": "633" } ], "opinion_index": 0, "case_paths": [ "/so2d/419/0632-01" ] }, { "cite": "28 A.L.R.3d 580", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "pin_cites": [ { "page": "\u00a7 3" } ], "opinion_index": 0 }, { "cite": "91 N.M. 705", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571169 ], "weight": 4, "pin_cites": [ { "page": "708" }, { "page": "134" }, { "page": "711" }, { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/nm/91/0705-01" ] } ], "analysis": { "cardinality": 589, "char_count": 9930, "ocr_confidence": 0.656, "pagerank": { "raw": 1.4041352438729213e-07, "percentile": 0.645307892467862 }, "sha256": "1f94d8f662e44ac0e25c14ff660cc2c8d5fcd5a873477977f66967ea49003ba1", "simhash": "1:d94f7ea030fbbce2", "word_count": 1609 }, "last_updated": "2023-07-14T19:01:18.689942+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MINZNER, C.J., BACA and SERNA, JJ., concur." ], "parties": [ "Fremont F. ELLIS, Plaintiff-Appellant, v. CIGNA PROPERTY & CASUALTY COMPANIES, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nFRANCHINI, Justice.\n{1} In this case, certified to us by the Court of Appeals, we affirm the district court\u2019s determination that the applicable statute of limitations for a cause of action under an uninsured motorist policy is six years on a written contract. See NMSA 1978, \u00a7 37-l-3(A) (1975). However, we disagree with the district court that the limitation period necessarily began to run from the date of the auto incident sued upon by Plaintiff (Ellis). Rather, as Ellis argues, his cause of action against Defendant (Cigna) may have accrued at a later date under the terms of his uninsured motorist policy (the UM Policy). Because neither party entered the UM Policy into the record before the district court dismissed this action, we are unable to decide this issue at this time. However, since it is possible that the later date is the correct one, we reverse the district court\u2019s dismissal of Ellis\u2019s complaint for failure to bring suit within the six-year limitation period. We remand for further proceedings consistent with this opinion.\nFACTS AND PROCEDURAL POSTURE\n{2} The facts relevant to this appeal are extensive but straightforward. On April 12, 1987, Ellis was a passenger in a Hyundai that was owned by one third party and driven by another. The Hyundai was fired upon without warning by the occupants of a pickup truck. Ellis exited his vehicle to get the license plate of the pickup and was shot in the leg while returning to the Hyundai.\n{3} Subsequently, Ellis sued the pickup driver and passenger. Apparently, judgment was obtained against them sometime in July of 1988, but it seems that neither defendant carried automobile or other insurance. Nor was the pickup truck an insured vehicle.\n{4} Ellis then made demand against the insurance company providing the uninsured motorist coverage for the Hyundai. When his demand was denied, Ellis filed suit seeking to compel arbitration or, in the alternative, a declaration that his claim was compensable under the Hyundai\u2019s policy. The district court granted summary judgment to Ellis on September 3, 1991. However, on August 24, 1992, this Court reversed and entered judgment for the insurer in an unpublished decision, holding that Ellis did not \u201coccupy\u201d the vehicle for purposes of coverage.\n{5} On April 11, 1994, Ellis filed the instant suit against his own insurance company, Cigna. Ellis\u2019s complaint states that \u201cPlaintiff has pursued his uninsured and underinsured coverage on his policies with Cigna, but believes, based upon information and belief, that there is additional uninsured/underinsured coverage.\u201d Cigna filed a motion to dismiss for failure to state a claim upon which relief could be granted, on the grounds that the limitation period in the applicable statute of limitations had expired. Following submission of briefs by the parties and a hearing, the district court granted Cigna\u2019s motion. Ellis appealed, and we now affirm in part, reverse in part, and remand. DISCUSSION\n{6} We affirm the district court\u2019s judgment that the limitation period for contract actions applies to this case. In Sandoval v. Valdez, 91 N.M. 705, 708, 580 P.2d 131, 134 (Ct.App.1978), the court did not reach the issue of whether the period for contract actions or the shorter tort limitation period applied in New Mexico for actions on an uninsured motorist policy, since the plaintiff had met both. However, Judge Sutin\u2019s special concurrence noted that the longer period was favored by a majority of the jurisdictions that had considered the issue. See id. at 711, 580 P.2d at 137. In the years since Sandoval, an overwhelming number of courts have joined the majority position. See A.S. Klein, Annotation, Automobile Insurance: Time Limitations as to Claims Based on Uninsured Motorist Clause, 28 A.L.R.3d 580, at \u00a7 3 (1969 & Supp.1999); see also 1-Alan I. Widiss, Uninsured and Underinsured Motorist Insurance \u00a7 7.12, at 292 (2d ed.1990) (noting \u201cthe almost uniform view among the applicable judicial precedents that uninsured motorist insurance claims are subject to the contract statute of limitations\u201d). We now expressly join the majority position, being persuaded that since the insurance contract is a necessary predicate \u201con which the liability of the insurer depends, ... the contract limitation period therefore controls.\u201d Klein, supra, at 585.\n{7} The more difficult question is when the limitation period begins to run. While the date is specified in the uninsured motorist statute in some states, see id. at \u00a7 4, in New Mexico it is not. See NMSA 1978, \u00a7 66-5-301 (1983). In such circumstances, the matter must be decided by the courts, and there appear to be at least four possibilities; First, a few courts have held that the date of the accident with an allegedly uninsured motorist commences the limitation period. See State Farm Mut. Auto. Ins. Co. v. Kilbreath, 419 So.2d 632, 633 (Fla. 1982); see also Green v. Selective Ins. Co., 144 N.J. 344, 676 A.2d 1074, 1078-80 (1996) (disagreeing with the reasoning in Kilbreath, but reaching same result). Second, other courts hold that the tortfeasor must be adjudged uninsured or underinsured before the period begins to run on .the plaintiffs claim against his or her own insurance company for coverage. See, e.g., Vaughn v. State Farm Mut. Auto. Ins. Co., 445 So.2d 224, 226 (Miss. 1984). Third, some courts have addressed situations where specific contractual terms in the insurance policy determine when the plaintiff may bring suit for uninsured motorist coverage. See Butler v. Hartford Accident & Indem. Co., 54 Misc.2d 808, 283 N.Y.S.2d 466 (Sup.Ct.1967) (staying plaintiffs claim against excess carrier until plaintiff met policy requirement to first arbitrate claim against primary carrier); see also Westchester Fire Ins. Co. v. Imperiale, 157 Misc.2d 721, 598 N.Y.S.2d 685, 686-87 (Sup.Ct.1993) (holding exhaustion of liability to be a contractual condition precedent to plaintiffs claim for underinsured motorist coverage against his own carrier, such that cause of action did not accrue until date of settlement with tortfeasor). Fourth and finally, a growing number of courts, perhaps a majority, hold that the limitation period does not begin to run until the insurer refuses to arbitrate the plaintiffs claim, denies the claim outright, or otherwise \u201cviolates\u201d the insurance contract. See, e.g., Berkshire Mut. Ins. Co. v. Burbank, 422 Mass. 659, 664 N.E.2d 1188, 1191 n. 5 (1996) (collecting cases). Since neither Ellis nor Cigna assert that the second or fourth possibilities are applicable here, we do not consider those issues.\n{8} Cigna argues that the statute of limitations began to run when Ellis was shot in the leg while he was returning to the Hyundai. Ellis argues that under his UM Policy with Cigna, as a passenger in the Hyundai he was only secondarily insured by Cigna, and therefore he could not sue Cigna until he had first sought uninsured motorist coverage from the company insuring the Hyundai. We are persuaded that Ellis\u2019s argument is sufficient to withstand Cigna\u2019s motion to dismiss. See Cypress Gardens, Ltd. v. Platt, 1998-NMCA-007, \u00b6 6, 124 N.M. 472, 952 P.2d 467 (\u201cA motion to dismiss ... is properly granted only when it appears that the plaintiff cannot recover or be entitled to relief under any state of facts provable under the claim.\u201d).\n{9} In Butler, the policy issued therein stated that \u201cthe coverage to the claimant \u2018while occupying an automobile not owned by the named insured ... shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance.\u2019\u201d 283 N.Y.S.2d at 467 (emphasis added). If, as Ellis has alleged, a similar provision exists in the UM Policy here, then Ellis\u2019s claim against Cigna would not have arisen until Ellis\u2019s claim against the Hyundai\u2019s insurer was finally adjudicated. See 2 Eugene R. Anderson et al., Insurance Coverage Litigation \u00a7 13.4, at 106 (1997) (\u201cExcess coverage attaches only after the primary coverage has been paid out or exhausted.\u201d). To hold otherwise would be to say that the statute of limitations on Ellis\u2019s claim against Cigna as his excess insurer began to run before Ellis had an excess insurance claim against Cigna. See Saiz v. Belen Sch. Dist., 113 N.M. 387, 401 n. 12, 827 P.2d 102, 116 n. 12 (1992) (noting that \u201ca statute of limitations begins to run when a plaintiffs cause of action accrues or is discovered\u201d); see also Aetna Life & Cas. Co. v. Nelson, 67 N.Y.2d 169, 501 N.Y.S.2d 313, 492 N.E.2d 386, 389 (1986) (articulating the general rule that a cause of action arises, and the statute of limitations begins to run, \u201cwhen all of the facts necessary to the cause of action have occurred so that a party would be entitled to obtain relief in court\u201d).\nCONCLUSION\n{10} For the foregoing reasons, we affirm the district court\u2019s determination that the limitation period of six years for contract actions applies in this case. Since the UM Policy may show that Ellis\u2019s claim against Cigna arose within the six-year limitation period, we reverse the judgment of the district court holding that the statute of limitations began to run from the date Ellis was shot. Therefore, we also reverse the district court\u2019s dismissal of Ellis\u2019s suit for failure to state a claim upon which relief can be granted. This action is remanded to the district court for further proceedings consistent with this opinion, including consideration of the actual UM Policy issued by Cigna to Ellis.\n{11} IT IS SO ORDERED.\nMINZNER, C.J., BACA and SERNA, JJ., concur.", "type": "majority", "author": "FRANCHINI, Justice." } ], "attorneys": [ "Roth, VanAmberg, Rogers, Ortiz & Fairbanks, LLP, Ronald J. VanAmberg, Santa Fe, for Appellant.", "Law Offices of Jay R. Hone, K. Stephen Royce, Albuquerque, for Appellee." ], "corrections": "", "head_matter": "1999-NMSC-034\n989 P.2d 429\nFremont F. ELLIS, Plaintiff-Appellant, v. CIGNA PROPERTY & CASUALTY COMPANIES, Defendant-Appellee.\nNo. 24801.\nSupreme Court of New Mexico.\nSept. 1, 1999.\nRoth, VanAmberg, Rogers, Ortiz & Fairbanks, LLP, Ronald J. VanAmberg, Santa Fe, for Appellant.\nLaw Offices of Jay R. Hone, K. Stephen Royce, Albuquerque, for Appellee." }, "file_name": "0054-01", "first_page_order": 92, "last_page_order": 94 }