{ "id": 1568656, "name": "Paul A. PHILLIPS and Estelle S. Phillips, husband and wife, Plaintiffs-Appellants, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee", "name_abbreviation": "Phillips v. Allstate Insurance", "decision_date": "1979-11-08", "docket_number": "No. 3735", "first_page": "648", "last_page": "651", "citations": [ { "type": "official", "cite": "93 N.M. 648" }, { "type": "parallel", "cite": "603 P.2d 1105" } ], "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": "92 N.M. 106", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557070 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/nm/92/0106-01" ] }, { "cite": "435 P.2d 1009", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 5325873, 5324604, 5320681 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0627-03", "/nm/78/0627-02", "/nm/78/0627-01" ] }, { "cite": "78 N.M. 627", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5320681, 5324604, 5325873 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0627-01", "/nm/78/0627-02", "/nm/78/0627-03" ] }, { "cite": "78 N.M. 548", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5322021 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/78/0548-01" ] }, { "cite": "218 Kan. 653", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 556980 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/kan/218/0653-01" ] }, { "cite": "543 P.2d 1356", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1975, "opinion_index": 0 }, { "cite": "56 Haw. 522", "category": "reporters:state", "reporter": "Haw.", "case_ids": [ 8828873 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/haw/56/0522-01" ] }, { "cite": "95 Idaho 881", "category": "reporters:state", "reporter": "Idaho", "case_ids": [ 4423149 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/idaho/95/0881-01" ] }, { "cite": "427 P.2d 79", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1967, "opinion_index": 0 }, { "cite": "49 Haw. 675", "category": "reporters:state", "reporter": "Haw.", "case_ids": [ 1449790 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/haw/49/0675-01" ] }, { "cite": "85 N.M. 86", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2771032, 2770090, 2773051 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/85/0086-02", "/nm/85/0086-01", "/nm/85/0086-03" ] }, { "cite": "85 N.M. 94", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2777372 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/85/0094-01" ] }, { "cite": "91 Idaho 885", "category": "reporters:state", "reporter": "Idaho", "case_ids": [ 8586144 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/idaho/91/0885-01" ] }, { "cite": "239 A.2d 553", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1967, "opinion_index": 0 } ], "analysis": { "cardinality": 524, "char_count": 7320, "ocr_confidence": 0.773, "pagerank": { "raw": 1.9808989825776665e-07, "percentile": 0.7405759949711354 }, "sha256": "089957e45898a2e3286abfa0895d966e9adbdbcdf33e0426c71fa3d93b27f6b1", "simhash": "1:7c6f5bc21684e555", "word_count": 1201 }, "last_updated": "2023-07-14T15:53:36.909287+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and WALTERS, JJ., concur." ], "parties": [ "Paul A. PHILLIPS and Estelle S. Phillips, husband and wife, Plaintiffs-Appellants, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nHERNANDEZ, Judge.\nPlaintiffs appeal from the granting of summary judgment in favor of defendant.\nWe reverse and remand for further proceedings.\nPlaintiffs had been insured by defendant for automobile liability and collision from 1957 on. Defendant had renewed plaintiffs\u2019 coverage on a yearly basis since that time. On July 29, 1976 defendant mailed a letter to plaintiffs, the pertinent part of which reads as follows:\nYour auto insurance has been continued and we appreciate the opportunity to serve you. The protection you have for the coming year and the cost is shown on the enclosed premium statement.\nIf you wish to use a payment plan, your payment notice shows the amount of your first payment and when it is due. Or, you can pay the total amount. Either way, please be sure to send your payment on time. Then you won\u2019t risk being without insurance. [Emphasis added.]\nAttached to this letter were two documents. One was the payment statement, which reads in part:\nUSE THE PAY PLAN YOU PREFER\n3-PAY PLAN (SEE BACK).............40 PERCENT DUE $217.25\nMULTI-PAYMENT PLAN ................AMOUNT DUE 54.85\nPAY-IN-FULL ..........................AMOUNT DUE 536.00\nThe other document recites in part as follows:\nDECLARATIONS\nALLSTATE INSURANCE COMPANY\nISSUED JUL 29. 1976\n1. Policy number 0 20 856215 08/31\n2. Name of PAUL A & E PHILLIPS Insured\n3. Address 9800 CHAPALA N E ALBUQUERQUE NM 87111\nSUPPLEMENT PAGE 1\nPolicy Period\nBEGINS ON AUG 81, 1976\nWITH NO FIXED DATE OF EXP.\n12:01 A.M. Standard Time\n(See reverse side for additional Policy Provisions.)\n4.The insurance afforded, including that with respect to each described vehicle, is only for each such coverage, including the limit(s) applicable thereto, as is set forth below, subject, however, to all the applicable provisions of the policy, (if the word \u201camended\u201d, followed by a date, appears above, the insurance applies only prospectively from such date.) [Emphasis added.]\nOn August 2, 1976 defendant mailed another letter which reads in pertinent part as follows:\nIn reply please refer to\nAugust 2, 1976\nPolicy Number: 20 856 215\nType of Policy: Auto\nExpiration Date: Aug. 31, 1976\nRefund: If any, will follow\nPaul A. & E. Phillips\n9800 Chapala NE\nAlbuquerque, NM 87111\nDear Mr. & Mrs. Phillips:\nWe\u2019re sorry we are unable to renew your insurance protection under the policy listed above. Your insurance will expire at 12:01 A.M. (at your address) on the expiration date shown above. Of course, your protection will continue until then. [Emphasis added.]\nPlaintiffs in their first cause of action alleged that:\n3. On or about July 29, 1976, the Defendant agreed to and contracted to renew Plaintiffs\u2019 auto insurance coverage from August 31, 1976 to August 31,1977. This was done by letter and enclosure copies of which are annexed hereto as Exhibit A. The premium for the renewal of such insurance was approximately $536.00. Thereafter, on or about August 2, 1976, Defendant ALLSTATE, in a letter to the Plaintiffs, copy of which is annexed hereto as Exhibit B, purported to refuse to renew Plaintiffs\u2019 automobile insurance coverage.\n4. Defendant\u2019s purporting to refuse to renew Plaintiffs\u2019 insurance constituted a breach of the contract created by its letter of July 29, 1976, and its actions over a period of nineteen years of insurance coverage.\nPlaintiffs in their second cause of action alleged that:\n6. By reason of the Defendant\u2019s arbitrary and capricious and unreasonable refusal to perform its contract and to continue its course of dealing with the Plaintiffs, Plaintiffs\u2019 reputation as an insurance risk was severely damaged and in the course of years to come will constantly be required to pay higher premiums than if the Defendant had performed its contract.\nDefendant denied all of these allegations.\nAn examination of the plaintiffs\u2019 complaint and the exhibits and the denials in defendant\u2019s answer immediately raises several very material issues of fact.\nPlaintiff alleged in his complaint that his prior course of dealings with defendant spanned a period of eighteen years. The facts surrounding prior renewals present material questions concerning the nature of those dealings, and plaintiff should have had the opportunity to present evidence on that matter unless we can say that, as a matter of law, they would have no bearing on the question of renewal. In view of defendant\u2019s unambiguous and declaratory statements in the documents mailed July 29th, we are of the opinion that, depending upon what the evidence of prior conduct shows, defendant may well have extended an irrevocable offer to plaintiff (See Corbin on Contracts, \u00a7\u00a7 43 \u2014 44), or plaintiff may have accepted the offer by his silence (ibid., \u00a7 75), or this letter may have constituted an automatic renewal or continuation of the existing contract of insurance between the parties. In this regard, we note that the policies referred to in the letter of July 29th and the letter of August 2nd are the same \u2014 policy number 20 856 215. See, also, Small Agency, Inc. v. Dugay, 4 Conn.Cir. 710, 239 A.2d 553 (1967).\nMartin v. Argonaut Insurance Company, 91 Idaho 885, 434 P.2d 103 (1967) states:\n[A] course of conduct by the insurer which automatically renews policies over a period of years may require an actual notice to the insured of intent not to renew.\n17 Couch on Insurance 2d at \u00a7 61:11 states:\nThe refusal to renew a policy can of course have no effect upon rights which have already vested.\nFurthermore, a claim of defamation, like other tort claims, raises questions of fact which generally preclude summary judgment adjudication. This case is no exception. See Salazar v. Bjork, 85 N.M. 94, 509 P.2d 569 (Ct.App.1973), cert. denied, 85 N.M. 86, 509 P.2d 561 (1973); Tagawa v. Maui Publishing Company, 49 Haw. 675, 427 P.2d 79 (1967); Barlow v. International Harvester Company, 95 Idaho 881, 522 P.2d 1102 (1974); Cahill v. Hawaiian Paradise Park Corporation, 56 Haw. 522, 543 P.2d 1356 (1975); Schulze v. Coykendall, 218 Kan. 653, 545 P.2d 392 (1976).\nIt is firmly established in this jurisdiction that summary judgment is properly granted only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. [Emphasis added.] Archie v. Smith, 78 N.M. 548, 434 P.2d 73 (Ct.App.1967), cert. denied, 78 N.M. 627, 435 P.2d 1009 (1967).\nThe defendant did not submit any affidavits or other documents in support of its motion for summary judgment. Defendant\u2019s counsel filed a memorandum brief. The arguments of counsel, no matter how erudite, are not evidence.\n[T]he burden rests upon the party moving for summary judgment to show that there is no genuine issue of material fact to submit to the court before summary judgment may properly be granted. Fidelity Nat. Bank v. Tommy L. Goff, 92 N.M. 106, 583 P.2d 470 (1978).\nIt is our opinion that the defendant failed to carry this burden.\nIT IS SO ORDERED.\nHENDLEY and WALTERS, JJ., concur.\nA PARTIAL PAYMENT FEE OF $12.50 IS INCLUDED.", "type": "majority", "author": "HERNANDEZ, Judge." } ], "attorneys": [ "Paul A. Phillips, pro se.", "LeRoi Farlow, Gordon J. McCulloch, Far-low & Bradley, Albuquerque, for defendant-appellee." ], "corrections": "", "head_matter": "603 P.2d 1105\nPaul A. PHILLIPS and Estelle S. Phillips, husband and wife, Plaintiffs-Appellants, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee.\nNo. 3735.\nCourt of Appeals of New Mexico.\nNov. 8, 1979.\nPaul A. Phillips, pro se.\nLeRoi Farlow, Gordon J. McCulloch, Far-low & Bradley, Albuquerque, for defendant-appellee." }, "file_name": "0648-01", "first_page_order": 694, "last_page_order": 697 }