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Romero v. Dairyland Insurance Co.12/12/1990
In this case we address the effect of a regulation of the New Mexico Department of Insurance regarding the rejection of uninsured motorist coverage. Josie Romero, the insured of Dairyland Insurance Company, claims that her written rejection of such coverage at the time of her application for automobile insurance was invalid. We agree. Applicable regulations of the superintendent of insurance require that a rejection of uninsured motorist coverage be attached to, or otherwise made a part of, the policy. We hold that unless the named insured rejects such coverage in a manner consistent with the requirements imposed by the superintendent of insurance, uninsured motorist coverage will be read into the insured's automobile liability insurance policy regardless of the intent of the parties or the fact that a premium has not been paid.
Josie Romero was seriously injured while riding as a passenger in a vehicle struck by an uninsured motorist. Dairyland denied uninsured motorist coverage. Romero sued Dairyland and its agent, Mitch Melnick, claiming in her suit against the latter that he was guilty of misrepresentation and breach of a fiduciary duty with respect to the signing of a rejection of uninsured motorist coverage in her application for insurance. Romero appeals from a summary judgment entered in favor of defendants.
Romero does not dispute that she signed the following rejection form at the time she applied for insurance.
UNINSURED MOTORISTS REJECTION
I have had Uninsured Motorists Coverage explained to me and fully understand it. I hereby reject such coverage and understand that my policy will not contain this coverage when issued or renewed. I also understand that I may add this coverage to my policy at any future date.
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Signature
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Date
However, the rejection form admittedly was not attached to the liability policy that the company subsequently issued. The uninsured motorist statute of the Motor Vehicle Code provides that no automobile liability policy shall be delivered unless uninsured motorist coverage is provided therein according to the rules and regulations promulgated by the superintendent of insurance, and under provisions filed with and approved by the superintendent. NMSA 1978, §66-5-301(A) (Repl. Pamp. 1989). Subsection (C) of the uninsured motorist statute gives the named insured the right to reject uninsured motorist coverage. No particular manner of rejection is specified. In this regard the superintendent of insurance promulgated the following regulation:
Rejection of Uninsured Motorist Coverage. The rejection of the provisions covering damage caused by an uninsured or unknown motor vehicle as required in writing by the provisions of Section §66-5-301 New Mexico Statutes Annotated, 1978 Compilation, must be endorsed, attached, stamped or otherwise made a part of the policy of bodily injury and property damage insurance.
Regulations of the New Mexico Department of Insurance, Art 5, Part 4, Chp. 66, Rule 1, §5-1-4 (undated).
In addition to arguing that the rejection of uninsured motorist coverage did not comply with the regulations of the superintendent of insurance, because it was not made a part of the policy, Romero argues that her testimony establishes a triable issue
of fact on whether uninsured motorist coverage was explained to her, and whether she fully understood such coverage despite the express language to that effect in the application. Romero claims that she had no understandin
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