{ "id": 3671073, "name": "Robert DAVIS, Individually and as a Representative of a class of persons within the State of New Mexico, Plaintiff-Appellant, v. FARMERS INSURANCE COMPANY OF ARIZONA, and each affiliate within Farmers Insurance Group, a joint venture, Defendants-Appellees", "name_abbreviation": "Davis v. Farmers Insurance Co. of Arizona", "decision_date": "2006-06-13", "docket_number": "No. 25,312", "first_page": "249", "last_page": "257", "citations": [ { "type": "official", "cite": "140 N.M. 249" }, { "type": "parallel", "cite": "142 P.3d 17" }, { "type": "parallel", "cite": "2006-NMCA-099" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "1998-NMCA-112", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 834175 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 38" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0748-01" ] }, { "cite": "100 N.M. 506", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588678 ], "weight": 5, "pin_cites": [ { "page": "511" }, { "page": "1142" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0506-01" ] }, { "cite": "2003-NMCA-062", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15664 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 49" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0669-01" ] }, { "cite": "400 S.W.2d 685", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10139657 ], "pin_cites": [ { "page": "686-87" } ], "opinion_index": 0, "case_paths": [ "/sw2d/400/0685-01" ] }, { "cite": "20 P.3d 1222", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 11117411 ], "weight": 2, "pin_cites": [ { "page": "1225", "parenthetical": "allowing recovery for diminished market value because there is \"and\" between \"like kind and quality,\" instead of \"or\"" } ], "opinion_index": 0, "case_paths": [ "/p3d/20/1222-01" ] }, { "cite": "143 S.E.2d 903", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "905" } ], "opinion_index": 0 }, { "cite": "206 Va. 419", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 4200018 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/va/206/0419-01" ] }, { "cite": "246 Cal.Rptr. 593", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1988, "pin_cites": [ { "page": "595" } ], "opinion_index": 0 }, { "cite": "200 Cal.App.3d 1411", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 6038632 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/cal-app-3d/200/1411-01" ] }, { "cite": "274 Ga. 498", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1067725 ], "weight": 3, "year": 2001, "pin_cites": [ { "parenthetical": "allowing recovery for diminished market value because of 75 years of Georgia precedent that incorporates a value element into \"repair\" so \"that the insured will be made whole\" (internal quotation marks and citation omitted)" }, { "page": "120-22", "parenthetical": "allowing recovery for diminished market value because of 75 years of Georgia precedent that incorporates a value element into \"repair\" so \"that the insured will be made whole\" (internal quotation marks and citation omitted)" }, { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/ga/274/0498-01" ] }, { "cite": "704 N.W.2d 287", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 8914778 ], "weight": 4, "pin_cites": [ { "page": "295" }, { "page": "298-99" }, { "page": "297" }, { "page": "296" } ], "opinion_index": 0, "case_paths": [ "/nw2d/704/0287-01" ] }, { "cite": "353 S.C. 491", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 711188 ], "weight": 2, "year": 2003, "pin_cites": [ { "parenthetical": "\"There is no concept of value in the ordinary meaning of' the words \"repair\" or \"replace.\"" }, { "page": "135", "parenthetical": "\"There is no concept of value in the ordinary meaning of' the words \"repair\" or \"replace.\"" } ], "opinion_index": 0, "case_paths": [ "/sc/353/0491-01" ] }, { "cite": "70 S.W.3d 16", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 9505768 ], "weight": 3, "pin_cites": [ { "page": "22" }, { "page": "19, 23", "parenthetical": "same" }, { "page": "22" } ], "opinion_index": 0, "case_paths": [ "/sw3d/70/0016-01" ] }, { "cite": "796 N.E.2d 1275", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 2003, "pin_cites": [ { "page": "1280", "parenthetical": "\"There is nothing exotic about the words 'repair or replace' as used in the standard policy - both words, in their ordinary usage, refer to the remedying of tangible, physical damage.\"" }, { "page": "1280", "parenthetical": "'We will not torture the plain meaning of the terms 'repair' and 'replace' to encompass 'repair' or 'replace[ment]' of damage caused by stigma, a form of damage that, by definition, defies remedy by way of 'repair' or 'replace[ment].' \" (alterations in original)" }, { "page": "1278-79" }, { "page": "1277", "parenthetical": "disallowing recovery of diminished market value where the insurer's liability was limited to \"never pay[ing] more than what it would cost to repair or replace the damaged property\" (internal quotation marks omitted)" } ], "opinion_index": 0 }, { "cite": "440 Mass. 207", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 1346354 ], "year": 2003, "pin_cites": [ { "parenthetical": "\"There is nothing exotic about the words 'repair or replace' as used in the standard policy - both words, in their ordinary usage, refer to the remedying of tangible, physical damage.\"" } ], "opinion_index": 0, "case_paths": [ "/mass/440/0207-01" ] }, { "cite": "801 A.2d 993", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 9411121 ], "weight": 2, "pin_cites": [ { "page": "995" }, { "page": "996" } ], "opinion_index": 0, "case_paths": [ "/a2d/801/0993-01" ] }, { "cite": "822 So.2d 617", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 11454652 ], "pin_cites": [ { "page": "627" } ], "opinion_index": 0, "case_paths": [ "/so2d/822/0617-01" ] }, { "cite": "819 So.2d 732", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9419554 ], "weight": 5, "pin_cites": [ { "page": "736" }, { "page": "736", "parenthetical": "interpreting \"like kind and quality\" to \"require that the insurer place the insured in possession of a car 'the same or nearly the same' as the damaged auto, in terms of the 'fundamental nature' and 'degree of excellence' of the automobile\" (citation omitted)" }, { "page": "740", "parenthetical": "holding that \"the existence or nonexistence of an exclusionary provision in an insurance contract is not at all relevant until it has been concluded that the policy provides coverage for the insured's claimed loss\"" }, { "page": "740" }, { "page": "739", "parenthetical": "stating that including diminished value in the coverage under the policy \"would negate the insurer's choice of remedy explicitly contained in the contractual text\"" } ], "opinion_index": 0, "case_paths": [ "/so2d/819/0732-01" ] }, { "cite": "785 A.2d 281", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 9457709 ], "weight": 2, "pin_cites": [ { "page": "290" }, { "page": "290-91" } ], "opinion_index": 0, "case_paths": [ "/a2d/785/0281-01" ] }, { "cite": "834 So.2d 785", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9350019 ], "pin_cites": [ { "page": "791" } ], "opinion_index": 0, "case_paths": [ "/so2d/834/0785-01" ] }, { "cite": "124 S.W.3d 154", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 9291627 ], "weight": 4, "pin_cites": [ { "page": "160" }, { "page": "158-59" }, { "page": "160" }, { "page": "160", "parenthetical": "noting that, where an obligation to pay for diminished value is not included in the policy's language, the lack of an exclusion \"cannot confer coverage\"" } ], "opinion_index": 0, "case_paths": [ "/sw3d/124/0154-01" ] }, { "cite": "2000-NMSC-033", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1217135 ], "weight": 9, "pin_cites": [ { "page": "\u00b6 11" }, { "page": "\u00b6 11" }, { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0698-01" ] }, { "cite": "119 P.3d 1267", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "138 N.M. 330", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "2005-NMCA-112", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2550154 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0289-01" ] }, { "cite": "2002-NMSC-020", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 260754 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 16" }, { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0382-01" ] }, { "cite": "836 N.E.2d 243", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 8894096, 8894133 ], "weight": 5, "pin_cites": [ { "page": "248" }, { "page": "247" }, { "page": "247-48" }, { "page": "247-48" }, { "page": "248", "parenthetical": "noting that including an obligation to pay for diminished value in addition to the cost of repairs would render the language in the liability limitation section meaningless" } ], "opinion_index": 0, "case_paths": [ "/ne2d/836/0243-01", "/ne2d/836/0243-02" ] }, { "cite": "2006-NMSC-004", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2545208 ], "weight": 9, "pin_cites": [ { "page": "\u00b6 8" }, { "page": "\u00b6 17" }, { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0024-01" ] }, { "cite": "1997-NMSC-041", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 142266 ], "weight": 9, "pin_cites": [ { "page": "\u00b6\u00b6 19-20" }, { "page": "\u00b6 20" }, { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0752-01" ] }, { "cite": "1998-NMSC-046", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827320 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0396-01" ] } ], "analysis": { "cardinality": 1114, "char_count": 28967, "ocr_confidence": 0.66, "pagerank": { "raw": 7.481694234772761e-08, "percentile": 0.44563370296878313 }, "sha256": "0b7b8680ce7a1d3f7b24ce4d4e7286e84caad38e47a2881f3ae8316f50863f26", "simhash": "1:59c07e81860cbaed", "word_count": 4697 }, "last_updated": "2023-07-14T22:21:44.975087+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: LYNN PICKARD and CELIA FOY CASTILLO, Judges." ], "parties": [ "Robert DAVIS, Individually and as a Representative of a class of persons within the State of New Mexico, Plaintiff-Appellant, v. FARMERS INSURANCE COMPANY OF ARIZONA, and each affiliate within Farmers Insurance Group, a joint venture, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nKENNEDY, Judge.\n{1} The dispute in this case concerns coverage under an automobile insurance policy. The question in this appeal is whether, under Plaintiffs collision coverage, Farmers Insurance Company (Farmers) must pay for the vehicle\u2019s loss of market value on top of adequately repairing the damaged vehicle. The trial court granted summary judgment in favor of Farmers and Plaintiff appeals.\n{2} This is an issue of first impression in New Mexico. There is a nationwide split in authority on whether, under policies like Plaintiffs, insureds can recover the diminished market value of their vehicle after having the vehicle fully and adequately repaired. While this question must always depend upon the actual language of the insurance policy, the language in certain coverage provisions has been analyzed extensively in other jurisdictions. Today, we choose to follow the majority trend towards disallowing recovery for the diminished market value under the terms of Plaintiffs insurance policy. We affirm.\nBACKGROUND AND FACTS\n{3} Two months after buying a new truck, Plaintiff wrecked it. He was insured by Farmers, who adequately repaired the truck. After the repairs were completed, Plaintiff traded his truck in for another new one. Plaintiff accepted as a trade-in value $15,000 less than he estimated his old truck was worth before it was wrecked. Plaintiff then claimed that he was entitled to payment for this \u201closs in market value\u201d under his insurance policy. Farmers disagreed, and refused to pay this claim.\n{4} Part IV of Plaintiffs insurance policy stated that Farmers would \u201cpay for loss to your insured ear caused by collision.\u201d This section defined \u201closs\u201d as the \u201cdirect and accidental loss of or damage to your insured car, including its equipment.\u201d In the \u201cLimits of Liability\u201d section, the policy stated that Farmers\u2019 \u201climits of liability for loss shall not exceed ... [t]he amount which it would cost to repair or replace damaged ... property with other of like kind and quality; or with new property less an adjustment for physical deterioration and/or depreciation.\u201d In the \u201cPayment of Loss\u201d section, Farmers stated that it would \u201cpay the loss in money or repair or replace damaged ... property.\u201d\n{5} Plaintiff filed a complaint against Farmers claiming: (1) breach of contract, (2) violation of the covenant of good faith and fair dealing, (3) violation of the New Mexico Insurance Code, (4) violation of the New Mexico Unfair Practices Act, and (5) breach of fiduciary duty. Farmers moved to dismiss the complaint and Plaintiff moved for summary judgment. The trial court denied Plaintiffs motion for summary judgment and granted summary judgment in favor of Farmers. Plaintiff appeals and we affirm.\nDISCUSSION\nStandards of Review and Policy Interpretation\n{6} \u201cSummary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.\u201d Self v. United Parcel Serv., Inc., 1998-NMSC-046, \u00b6 6, 126 N.M. 396, 970 P.2d 582. Where issues on appeal involve only questions of law, we review those questions de novo. Id.\n{7} The issue in this ease concerns the interpretation of Plaintiffs insurance policy. We construe the insurance policy as a whole and determine whether ambiguities exist in the language of the contract. See Rummel v. Lexington Ins. Co., 1997-NMSC-041, \u00b6\u00b6 19-20, 123 N.M. 752, 945 P.2d 970. When a term is undefined in the policy, we may look to that term\u2019s \u201cusual, ordinary, and popular\u201d meaning, such as found in a dictionary. Battishill v. Farmers Alliance Ins. Co., 2006-NMSC-004, \u00b6 8, 139 N.M. 24, 127 P.3d 1111 (internal quotation marks and citation omitted). A split in legal authority may be indicative of an ambiguity in the policy, but does not establish one. Allgood v. Meridian Sec. Ins. Co., 836 N.E.2d 243, 248 (Ind.2005). When, and only when, an ambiguity is found, do we liberally construe the policy in favor of the insured. Battishill, 2006-NMSC-004, \u00b6 17, 139 N.M. 24, 127 P.3d 1111.\n{8} We give the language in the policy its plain and ordinary meaning. Cooper v. Chevron U.S.A., Inc., 2002-NMSC-020, \u00b6 16, 132 N.M. 382, 49 P.3d 61. We do not \u201cstrain or torture\u201d the language in order to \u201ccreate an ambiguity.\u201d State Farm Mut. Auto. Ins. Co. v. Luebbers, 2005-NMCA-112, \u00b6 9, 138 N.M. 289, 119 P.3d 169 (internal quotation marks and citation omitted), cert. granted, 2005-NMCERT-8, 138 N.M. 330, 119 P.3d 1267. \u201c[T]he issue is how a reasonable insured would understand the term at the time of purchase.\u201d Battishill, 2006-NMSC-004, \u00b6 11, 139 N.M. 24, 127 P.3d 1111. If the language in the policy is clear, this Court must then enforce the contract as written. See Ponder v. State Farm Mut. Auto. Ins. Co., 2000-NMSC-033, \u00b6 11, 129 N.M. 698, 12 P.3d 960.\n\u201cLoss\u201d Does Not Include \u201cLoss in Market Value\u201d Under Plaintiffs Policy\n{9} Plaintiffs primary argument is that his policy should be broadly interpreted to include diminished market value plus the cost of repairs. In other words, Plaintiff claims that the phrase \u201cdirect and accidental loss of or damage to your insured car\u201d must be interpreted broadly to include any type of \u201closs,\u201d including the diminished market value of his vehicle. We disagree.\n{10} In the policy, the definitions of \u201closs\u201d were set out in the alternative: loss was either the \u201closs of\u2019 the truck or \u201cdamage to\u201d the truck. The plain meaning of \u201closs of\u2019 a vehicle in a collision is that the vehicle was a complete loss. See 6 John Alan Appleman & Jean Appleman, Insurance Law & Practice \u00a7 3881, at 359 (1972) (stating that the \u201ctotal loss\u201d of a vehicle occurs \u201cwhen the cost of repairs exceeds the value of the vehicle, or where the automobile cannot be restored to the same condition as before the accident\u201d). Here, Plaintiff concedes that there was not a \u201ctotal loss\u201d of his truck. Instead, there was \u201cdamage to\u201d the truck, which was satisfactorily repaired. While the vehicle\u2019s reputation might suffer after a collision, any \u201cdamage to\u201d the truck must be \u201cdirect\u201d under Plaintiffs policy. See Black\u2019s Law Dictionary 964 (8th ed.2004) (defining a \u201cdirect loss\u201d as a \u201closs that results immediately and proximately from an event\u201d and a \u201cconsequential loss\u201d as a \u201closs arising from the results of damage rather than from the damage itself ... [a]lso termed indirect loss\u201d); see also Webster\u2019s Third New International Dictionary (unabridged) 640 (1993) (variously defining \u201cdirect\u201d as \u201cmarked by absence of an intervening agency, instrumentality, or influence: IMMEDIATE,\u201d \u201cstemming immediately from a source,\u201d \u201ccharacterized by or giving evidence of a close esp. logical, causal, or consequential relationship,\u201d and \u201cINEVITABLE\u201d); see also Cooper, 2002-NMSC-020, \u00b6 16, 132 N.M. 382, 49 P.3d 61 (stating that policy language must be given its plain and ordinary meaning).\n{11} Plaintiffs loss of market value cannot be shoe-horned into the coverage for direct damage to his truck. See Ponder, 2000-NMSC-033, \u00b6 11, 129 N.M. 698, 12 P.3d 960. Contrary to Plaintiffs arguments, the policy\u2019s language cannot be interpreted as broad enough to \u201ccover any loss to the pre-collision position of the consumer\u201d and does not contain a promise to compensate the insured with the full panoply of damages available in tort.\nPlaintiff May Not Recover Under the \u201cLimits of Liability\u201d Section of His Policy\n{12} Plaintiff contends that, because neither the \u201cExclusions\u201d portion nor other portions of the policy excludes loss of market value from the broad definition of \u201closs,\u201d the policy must provide coverage for diminished market value. Contrary to Plaintiffs suggestion, it was not necessary for Farmers to specifically exclude a loss in market value unless the insurance policy, when read as a whole, actually includes such coverage. See Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 160 (Tex.2003) (\u201cAbsence of an exclusion cannot confer coverage.\u201d). We have already discussed how such coverage is not included in the \u201cLoss\u201d section of Plaintiffs policy. To read the policy as a whole, we must now consider this provision in relation to the rest of the policy to determine whether the policy extends coverage to include diminution in value following repairs. See Rummel, 1997-NMSC-041, \u00b6 20, 123 N.M. 752, 945 P.2d 970.\n{13} The \u201cLimits of Liability\u201d section of Plaintiffs policy reads:\nOur limits of liability for loss shall not exceed:\n1. The amount which it would cost to repair or replace damaged or stolen property with other of like kind and quality; or with new property less an adjustment for physical deterioration and/or depreciation.\nThis section, set forth in the disjunctive, allows Farmers to repair or replace at its option. It is not contested either that Farmers chose the former option or that this case does not involve repairs that were inadequate or somehow problematic.\n{14} Farmers limited its liability to an amount that would \u201cnot exceed ... [t]he amount which it would cost to repair or replace damaged ... property.\u201d Farmers contends that this language unambiguously does not constitute a promise to pay for diminished market value. We agree.\n{15} The \u201crepair\u201d of a physical thing (like a vehicle) is commonly defined as \u201cto restore by replacing a part or putting together what is torn or broken\u201d and is synonymous with \u201cFIX\u201d and \u201cMEND.\u201d Webster\u2019s New Third International Dictionary, supra, at 1923. \u201cReplace\u201d has two meanings: (1) to restore something or someone \u201cto a former place, position, or condition\u201d and (2) to \u201cprovide a substitute or successor for.\u201d Id. at 1925. The latter definition would apply, since Plaintiffs policy states that replacements are made \u201cwith ... other of like kind and quality.\u201d Since it is uneontested that no \u201csubstitution\u201d is involved in this case, we see harmony in regarding both repair and replacement to encompass restoration of Plaintiffs vehicle from its damaged state.\n{16} The modern majority of cases agree that \u201crepair or replace\u201d unambiguously refers to physical restoration of the vehicle. \u201c[R]epair means to restore something to its former condition, not necessarily to its former value.\u201d See Allgood, 836 N.E.2d at 247; see also Pritchett v. State Farm Mut. Auto. Ins. Co., 834 So.2d 785, 791 (Ala.Civ.App.2002) (\u201cThe various definitions of repair do not discuss the concept of value. We do not believe that in its common usage, the term \u2018repair\u2019 is understood to encompass the concept of value or require a restoration of value.\u201d); O\u2019Brien v. Progressive N. Ins. Co., 785 A.2d 281, 290 (Del.2001) (holding that the \u201crepair or replace\u201d language in the plaintiffs policy was \u201cnot ambiguous and that this language does not contemplate payment for diminution of value. In the common usage, the word \u2018repair\u2019 means to fix by replacing or putting together what is broken, or ... to bring back to good or useable condition.\u201d (internal quotation marks and citation omitted)); Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 736 (Fla.2002) (holding that the insurer\u2019s obligation to \u201crepair or replace\u201d the vehicle \u201cis limited to the amount necessary to return the car to substantially the same condition as before the loss. Nowhere does that obligation include liability for loss due to a stigma on resale resulting from market psychology\u201d (internal quotation marks and citation omitted)); Campbell v. Market Am. Ins. Co., 822 So.2d 617, 627 (La.Ct.App.2001) (\u201c[T]he better view of the \u2018repair or replace\u2019 limitation is that it caps [the insurer\u2019s] liability at the cost of returning the damaged [vehicle] to substantially the same physical, mechanical, and cosmetic condition as existed before the loss. There is no concept of \u2018value\u2019 in the ordinary meaning of the word \u2018repair.\u2019 To ascribe to the words \u2018repair or replace\u2019 an obligation to compensate the insured for things that, by their very nature, cannot be \u2018repaired\u2019 or \u2018replaced\u2019 would violate the most fundamental rules of contract construction.\u201d); Hall v. Acadia Ins. Co., 801 A.2d 993, 995 (Me.2002) (\u201cThe act of repairing an object typically focuses upon restoring the object\u2019s function and purpose, and not upon returning the object to its earlier worth or value.\u201d); Given v. Commerce Ins. Co., 440 Mass. 207, 796 N.E.2d 1275, 1280 (2003) (\u201cThere is nothing exotic about the words \u2018repair or replace\u2019 as used in the standard policy \u2014 both words, in their ordinary usage, refer to the remedying of tangible, physical damage.\u201d); Lupo v. Shelter Mut. Ins. Co., 70 S.W.3d 16, 22 (Mo.Ct.App.2002) (\u201cThere is no concept of \u2018value\u2019 in the ordinary meaning of the word repair.\u201d); Schulmeyer v. State Farm Fire & Cas. Co., 353 S.C. 491, 579 S.E.2d 132, 135 (2003) (\u201cThere is no concept of value in the ordinary meaning of\u2019 the words \u201crepair\u201d or \u201creplace.\u201d); Culhane v. W. Nat\u2019l Mut. Ins. Co., 704 N.W.2d 287, 295 (S.D.2005) (\u201c[T]he ordinary meaning of the words \u2018repair\u2019 and \u2018replace\u2019 indicate [sic] something physical and tangible.\u201d); Schaefer, 124 S.W.3d at 158-59 (\u201cThe concept of \u2018repair\u2019 with regard to a vehicle connotes something tangible, like removing dents or fixing parts. We do not believe that the ordinary or generally accepted meaning of the word \u2018repair\u2019 connotes compensating for the market\u2019s perception that a damaged but fully and adequately repaired vehicle has an intrinsic value less than that of a never-damaged car.\u201d (citations omitted)). But see State Farm Mut. Auto. Ins. Co. v. Mabry, 274 Ga. 498, 556 S.E.2d 114, 120-22 (2001) (allowing recovery for diminished market value because of 75 years of Georgia precedent that incorporates a value element into \u201crepair\u201d so \u201cthat the insured will be made whole\u201d (internal quotation marks and citation omitted)). We agree with the majority of authorities that a promise to compensate the insured for diminished market value is not included within the notion of fixing a vehicle. See Culhane, 704 N.W.2d at 298-99. A reasonable insured would not read these phrases any other way, because diminished market value following a collision cannot be repaired, fixed, or mended as we understand those terms. See O\u2019Brien, 785 A.2d at 290-91; Allgood, 836 N.E.2d at 247-48; Hall, 801 A.2d at 996; Given, 796 N.E.2d at 1280 (\u2018We will not torture the plain meaning of the terms \u2018repair\u2019 and \u2018replace\u2019 to encompass \u2018repair\u2019 or \u2018replace[ment]\u2019 of damage caused by stigma, a form of damage that, by definition, defies remedy by way of \u2018repair\u2019 or \u2018replace[ment].\u2019 \u201d (alterations in original)).\n{17} We therefore hold that the \u201crepair or replace\u201d language in Plaintiffs policy does not intimate a promise to Plaintiff to pay for diminished market value. We believe that cases to the contrary, like Mabry, incorporate the tort concept of making the injured whole into the idea of \u201crepair.\u201d See Mabry, 556 S.E.2d at 121. This measure of damages does not belong in our interpretation of an insurance policy. See, e.g., Ray v. Farmers Ins. Exch., 200 Cal.App.3d 1411, 246 Cal.Rptr. 593, 595 (1988); Given, 796 N.E.2d at 1278-79; Culhane, 704 N.W.2d at 297; Bickel v. Nationwide Mut. Ins. Co., 206 Va. 419, 143 S.E.2d 903, 905 (1965).\n{18} Plaintiffs policy caps Farmers\u2019 liability to what it would cost to \u201crepair or replace damaged or stolen property with other of like kind and quality.\u201d (Emphasis added). Plaintiff argues that the phrase \u201clike kind and quality\u201d would give a reasonable insured the expectation that diminished market value was covered under his or her policy. We disagree.\n{19} When the property here (Plaintiffs truck) was physically repaired, it was necessary that any replacements be \u201cof like kind and quality.\u201d The phrase \u201crepair ... with other of like kind and quality\u201d is nonsensical, indicating that \u201clike kind and quality\u201d was not meant to modify \u201crepair.\u201d\n[T]his contract makes clear that \u201clike kind and quality\u201d refers to \u201creplace,\u201d not \u201crepair\u201d which encompasses the notion of restoring property to its former condition. Only to the extent parts are replaced does a \u201crepair\u201d entail \u201cproperty of like kind or quality.\u201d To say one would repair an item with goods of like kind or quality is simply not correct English. An item of property (or a part of that item) is \u201creplaced\u201d with other property, but it is \u201crepaired\u201d with tools and labor. We therefore conclude that \u201clike kind and quality\u201d unambiguously refers only to replacement, not to repairsf.]\nAllgood, 836 N.E.2d at 247-48.\n{20} Even to the extent that a reasonable insured might misinterpret \u201cwith other of like kind and quality\u201d as pertaining to \u201crepair,\u201d to then interpret these phrases to encompass diminished market value would not be reasonable. \u201cLike\u201d in this context means \u201cthe same or nearly the same (as in nature, appearance, or quantity).\u201d Webster\u2019s Third New International Dictionary, supra, at 1310. \u201cKind\u201d in this context refers to \u201ca specific variety: TYPE, BRAND.\u201d Id. at 1243. \u201cQuality\u201d variously refers to \u201cdegree of excellence: GRADE, CALIBER\u201d and \u201cdegree of conformance to a standard (as of a product or workmanship).\u201d Id. at 1858. While these definitions, separated from their context, might support Plaintiffs argument, putting these ideas back into context defeats it. We believe that\nwhether or not intrinsic value generally inheres in the word \u201cquality,\u201d and assuming without deciding that the phrase \u201cof like kind and quality\u201d modifies both \u201crepair\u201d and \u201creplace,\u201d we must look to the ordinary meaning of the words that are modified. We have said that the words \u201crepair\u201d and \u201creplace,\u201d with regard to a vehicle, connote something tangible, like removing dents, fixing parts, or replacing the vehicle with a comparable substitute. Thus, if an insurer elects to repair a vehicle and must replace parts in doing so, it must use parts \u201cof like kind and quality.\u201d Likewise, if an insurer elects to replace the vehicle, it must do so with a vehicle \u201cof like kind and quality.\u201d\nSchaefer, 124 S.W.3d at 160; see also Siegle, 819 So.2d at 736 (interpreting \u201clike kind and quality\u201d to \u201crequire that the insurer place the insured in possession of a car \u2018the same or nearly the same\u2019 as the damaged auto, in terms of the \u2018fundamental nature\u2019 and \u2018degree of excellence\u2019 of the automobile\u201d (citation omitted)).\n{21} Therefore, while we agree that the meanings of \u201clike,\u201d \u201ckind,\u201d and \u201cquality,\u201d may include a value element, that element is lost when these words are put into the context of Plaintiffs policy as a whole. See Rummel, 1997-NMSC-041, \u00b6 20, 123 N.M. 752, 945 P.2d 970. We thus disagree with cases like Hyden v. Farmers Insurance Exchange, 20 P.3d 1222 (Colo.Ct.App.2000), which found ambiguity in the phrase \u201clike kind and quality\u201d without grounding those few words in the rest of the policy, or even the remainder of the sentence. See id. at 1225 (allowing recovery for diminished market value because there is \u201cand\u201d between \u201clike kind and quality,\u201d instead of \u201cor\u201d). We hold that a reasonable insured could not read \u201cdiminished market value\u201d into the phrase \u201clike kind and quality\u201d in the context of Plaintiffs policy.\nPayment of Loss\n{22} In the \u201cPayment of Loss\u201d section of Plaintiffs policy, Farmers stated that it would \u201cpay the loss in money or repair or replace damaged ... property.\u201d Farmers contends that no reasonable insured could read an additional payment for diminished market value into this provision. We agree.\n{23} This provision clearly sets forth three options in the disjunctive: money payment, repair, or replacement. This language does not contain words like \u201cand\u201d or phrases like \u201cin addition to.\u201d This provision does not contemplate a cash payment for diminished market in addition to repairs.\n\u201cLesser Of\u2019 Compared to \u201cShall Not Exceed\u201d\n{24} Plaintiff contends that cases that have disallowed diminished market value are \u201centirely useless to this appeal\u201d because they analyzed policies that limited the insurer\u2019s liability to the \u201clesser of\u2019 the available options. In his policy there is no such language. He therefore argues that the policy language in this case that Farmers\u2019 liability \u201cshall not exceed\u201d the repair or replacement of damaged property \u201cwith other of like kind and quality\u201d means that Farmers will \u201cpay no more than a \u2018ceiling\u2019 as the highest cost of its loss,\u201d whereas policies that use \u201clesser of\u2019 language obligate the insurer to pay no more than required by the lowest-cost alternative. We disagree with this interpretation. Plaintiff is essentially arguing that, if a policy includes \u201clesser of\u2019 or \u201clower of\u2019 language, the insurer has a choice, but if the policy uses \u201cshall not exceed\u201d language, the insurer must pay the highest-cost alternative.\n{25} This trivial difference in language has no impact on our analysis. We have relied on the above cases only to the extent that they analyze language in Plaintiffs policy. Furthermore, there are a number of cases that have disallowed diminished market value where the policies contained the same or similar \u201cwill not exceed\u201d language that is in Plaintiffs policy. See, e.g., Gen. Accident Fire & Life Assurance Corp. v. Judd, 400 S.W.2d 685, 686-87 (Ky.1966) (disallowing recovery of diminished market value where the plaintiffs policy stated that the insurer\u2019s liability would \u201cnot exceed the actual cash value ... nor what it would then cost to repair or replace the property\u201d); Given, 796 N.E.2d at 1277 (disallowing recovery of diminished market value where the insurer\u2019s liability was limited to \u201cnever pay[ing] more than what it would cost to repair or replace the damaged property\u201d (internal quotation marks omitted)); Lupo, 70 S.W.3d at 19, 23 (same).\nAmbiguity and the Lack of a Specific Exclusion\n{26} Plaintiff contends that the policy is ambiguous because it has \u201celusive remedial alternatives,\u201d suffers from a \u201clack of narrowness and preciseness\u201d in its limits of liability, and does not specifically exclude diminished market value. We disagree. As explained above, the options that Farmers had under the policy were clear: cash payment, repair, or replacement. Farmers clearly limited its liability to one of these three options, and a combination of these options is not implied. We hold that Plaintiffs policy, when read as a whole, unambiguously did not provide coverage for diminished market value in addition to adequate repairs. See Ponder, 2000-NMSC-033, \u00b6 11, 129 N.M. 698, 12 P.3d 960 (stating that where the policy is clear, we enforce it as written). There was no need for Farmers to specifically exclude what was not covered under the policy. See Siegle, 819 So.2d at 740 (holding that \u201cthe existence or nonexistence of an exclusionary provision in an insurance contract is not at all relevant until it has been concluded that the policy provides coverage for the insured\u2019s claimed loss\u201d); Schaefer, 124 S.W.3d at 160 (noting that, where an obligation to pay for diminished value is not included in the policy\u2019s language, the lack of an exclusion \u201ccannot confer coverage\u201d).\nThe Matter of Choice, Good Faith, and Fair Dealing\n{27} The true issue in Plaintiffs brief is the matter of choice under his insurance policy. As explained above, Farmers\u2019 liability was limited to either physically repairing or replacing Plaintiffs damaged vehicle. Farmers could then pay for this loss in one of three ways: repairing or replacing the vehicle, or a cash payment. Farmers had options, and it obviously chose the least expensive to itself. Plaintiffs remaining element of loss does not transform his policy into a promise to pay for losses not covered by the policy. See Siegle, 819 So.2d at 740; see also Culhane, 704 N.W.2d at 296 (\u201cWhile one may debate whether it is rational to only insure part of a loss, that debate is irrelevant because [the insurer\u2019s] indemnification obligation is governed by the terms of its contract. Stated in other words, the contractual indemnification obligation is not governed by [the plaintiffs] post-loss feeling of what should be reasonably or rationally covered.\u201d). To interpret Plaintiffs policy as including diminished market value would violate the plain language of Plaintiffs policy and negate the insurer\u2019s options. See Siegle, 819 So.2d at 739 (stating that including diminished value in the coverage under the policy \u201cwould negate the insurer\u2019s choice of remedy explicitly contained in the contractual text\u201d); Allgood, 836 N.E.2d at 248 (noting that including an obligation to pay for diminished value in addition to the cost of repairs would render the language in the liability limitation section meaningless); Lupo, 70 S.W.3d at 22 (holding that interpretation of the contract\u2019s terms to include diminution in value \u201cwould go beyond the phrase\u2019s common prevailing meaning of which an ordinary insured would reasonably understand the phrase to mean,\u201d and would \u201crender meaningless\u201d the insurer\u2019s right to make a choice as expressed in the contract). We only reiterate what the plain language of the policy states: Farmers had three clear options, and paying diminished market value cannot be read into those options where Farmers has exercised the option to repair, and done so adequately.\n{28} Yet Plaintiff argues that Farmers\u2019 decision to choose the least expensive alternative under the policy, and its failure to explain the legal uncertainty to him, was a breach of Farmers\u2019 duties of good faith and fair dealing. Where an insurer acts in accordance with the express language and obligations under an insurance policy, there is no violation of an implied covenant of good faith and fair dealing. See Azar v. Prudential Ins. Co. of Am., 2003-NMCA-062, \u00b6 49, 133 N.M. 669, 68 P.3d 909. As discussed in this opinion, Farmers complied with the express terms of the insurance policy in this case. Therefore, Farmers did not violate its duties to Plaintiff.\n{29} Plaintiff, citing to Hendren v. Allstate Insurance Co., 100 N.M. 506, 672 P.2d 1137 (Ct.App.1983), claims that Farmers was required to \u201cexplain uncertainties in the law\u201d that would affect the limits of Farmers\u2019 liability under Plaintiffs insurance policy. As we explained in Hendren, an insurer is not required to take such affirmative action as informing an insured of all \u201cpossible legal interpretations and judicial decisions\u201d that might affect coverage. Id. at 511, 672 P.2d at 1142. However, an insurer that \u201ctakes it upon itself to offer advice\u201d to an insured must \u201ccorrectly state policy limits and uncertainties.\u201d Id. There is no suggestion that the insurer in this case acted in the same way as the insurer in Hendren. The holding in Hendren did not require Farmers to \u201cexplain uncertainties in the law\u201d to Plaintiff.\n{30} Farmers notes that Plaintiff appears to raise the new theory on appeal that his vehicle should have been declared a total loss and replaced. Plaintiff insists that he has all along argued that Farmers was required to act in good faith, and that the \u201cmost appropriate\u201d remedy for Plaintiffs claim under the policy would have been \u201creplacement with a deduction for depreciation of the wrecked vehicle.\u201d To the extent that Plaintiff is now claiming that his vehicle should have been declared a total loss, that argument was not brought to the attention of the trial court. See Diversey Corp. v. Chem-Source Corp., 1998-NMCA-112, \u00b6 38, 125 N.M. 748, 965 P.2d 332 (holding that preservation serves the purposes of allowing the trial court an opportunity to correct any errors, thereby avoiding the need for appeal, and creating a record from which the appellate court can make informed decisions). Below, Plaintiff consistently argued that he was entitled to payment for the diminished market value of his vehicle, but did not argue that he was entitled to have his vehicle declared a total loss and replaced. Therefore, we do not address this argument.\nCONCLUSION\n{31} We hold that Plaintiffs insurance policy was unambiguous in not providing coverage for the diminished market value of his truck following a collision, where his truck was adequately repaired. We hold that Farmers did not breach its duty of good faith and fair dealing when it did not explain this possibility to Plaintiff, or when it chose the least expensive of its options under the policy. We hold that Plaintiff did not preserve his argument that Farmers was obligated to replace his vehicle. We therefore affirm.\n{32} IT IS SO ORDERED.\nWE CONCUR: LYNN PICKARD and CELIA FOY CASTILLO, Judges.", "type": "majority", "author": "KENNEDY, Judge." } ], "attorneys": [ "Morgan Law Office, Limited, Ron Morgan, Whitney Buchanan, P.C., Whitney Buchanan, Albuquerque, NM, for Appellant.", "Rodey, Dickason, Sloan, Akin & Robb, P.A., Andrew G. Schultz, Albuquerque, NM, Jackson Walker, L.L.P., Thomas T. Rogers, Mark L. Walters, Austin, TX, for Appellees." ], "corrections": "", "head_matter": "2006-NMCA-099 142 P.3d 17\nRobert DAVIS, Individually and as a Representative of a class of persons within the State of New Mexico, Plaintiff-Appellant, v. FARMERS INSURANCE COMPANY OF ARIZONA, and each affiliate within Farmers Insurance Group, a joint venture, Defendants-Appellees.\nNo. 25,312.\nCourt of Appeals of New Mexico.\nJune 13, 2006.\nCertiorari Granted, No. 29,895, Sept. 13, 2006.\nAs Revised Sept. 13, 2006.\nMorgan Law Office, Limited, Ron Morgan, Whitney Buchanan, P.C., Whitney Buchanan, Albuquerque, NM, for Appellant.\nRodey, Dickason, Sloan, Akin & Robb, P.A., Andrew G. Schultz, Albuquerque, NM, Jackson Walker, L.L.P., Thomas T. Rogers, Mark L. Walters, Austin, TX, for Appellees." }, "file_name": "0249-01", "first_page_order": 285, "last_page_order": 293 }