[00:00:00] Speaker 03:
25-2059 Hollis versus Farm Bureau property Mr.. Vargas The district court in this case mistakenly held that the relevant and necessary information Needed by Mr.. Hollis to be alerted to the fact that he might have a claim was available to him in 2013 It was not

[00:00:27] Speaker 01:
Council we did not hear your client if he had all the information he needed he did not hear 2013 he did not your head He knew he had not bought static and He knew what?

[00:00:45] Speaker 01:
the premium was for the car and

[00:00:49] Speaker 03:
What he did not know and the operative facts is he did not know that Farm Bureau was actually charging a per vehicle premium because the documents that were relied upon at the trial court and the documents that he was provided in 2013, 2017, and 2020 clearly showed that he was being charged a per policy premium

[00:01:13] Speaker 03:
And in fact, you don't have to take my word for it, because when Farm Bureau moved to dismiss our complaint, they filed a 12b6 motion.

[00:01:22] Speaker 03:
They did not assert a statute of limitations.

[00:01:25] Speaker 03:
But you'll find this in the appendix at page 56.

[00:01:28] Speaker 03:
They made this statement in distinguishing their case from the Garcia versus Allstate case.

[00:01:33] Speaker 03:
They said, unlike the Garcia declarations page,

[00:01:37] Speaker 03:
The declarations page in this case does not list separate UM UIM premiums for separate vehicles.

[00:01:45] Speaker 03:
The declarations page here does not even contain the premium column that caused the ambiguity problems in Garcia.

[00:01:53] Speaker 05:
But I thought your papers said that you could tell from the face of the policy documents that there was this

[00:02:05] Speaker 05:
premium discrepancy.

[00:02:07] Speaker 05:
Isn't that the way the complaint structure?

[00:02:08] Speaker 03:
That is actually a mischaracterization of the allegations in the complaint.

[00:02:13] Speaker 03:
If you read the complaint, what we said was we are alleging that it is invalid, but we did not say it had the information needed.

[00:02:21] Speaker 03:
In fact, on several occasions, and I can point you where in the record,

[00:02:24] Speaker 03:
We said they withheld the information and concealed it.

[00:02:28] Speaker 03:
You can find it in the complaint at Appendix page 9, 10, 11, 12, and 15.

[00:02:33] Speaker 05:
But wasn't the basis for your allegation is because of the language in the policy?

[00:02:40] Speaker 03:
Well, no, actually the basis for it was that the language in the policy did not inform you of a fact that was learned in 2022 in a separate piece of litigation.

[00:02:52] Speaker 05:
Yeah, but you didn't allege in your complaint anything about the 2022 deposition or the separate litigation problem We had with that your honors in that case Farm Bureau obtained a confidentiality order and it only allowed us But we're here on the 12b6 aren't we we are your honor so you can't point to stuff outside of your complaint to support

[00:03:11] Speaker 05:
An ambiguity can you?

[00:03:13] Speaker 03:
But we allege in the complaint that they withheld information.

[00:03:16] Speaker 03:
We could not share what that specific information was or where we obtained it at the time.

[00:03:20] Speaker 03:
But we allege that specifically in those pages that I just cited to you.

[00:03:24] Speaker 03:
And the Farm Bureau does eventually admit that, yeah, we allocate separate, we charge separate premiums on a per vehicle basis.

[00:03:34] Speaker 03:
But they don't want to share that with their insurance.

[00:03:36] Speaker 03:
Judge Harts.

[00:03:37] Speaker 03:
Let me back up a bit.

[00:03:40] Speaker 04:
I looked, I don't think I ever sat on a stacking case.

[00:03:45] Speaker 03:
You probably looked too.

[00:03:46] Speaker 03:
I checked too, Your Honor.

[00:03:47] Speaker 04:
You did not.

[00:03:48] Speaker 04:
I was surprised because I've been here.

[00:03:50] Speaker 03:
You had a lot of insurance cases.

[00:03:51] Speaker 04:
So correct me if I'm misstating the rationale behind stacking.

[00:03:57] Speaker 04:
As I understand it, when you get, I'll just say uninsured motorist.

[00:04:00] Speaker 04:
I won't say uninsured or underinsured.

[00:04:02] Speaker 04:
Uninsured motorist policy, they cover the insured.

[00:04:08] Speaker 04:
no matter what vehicle the insured is in.

[00:04:11] Speaker 04:
Correct.

[00:04:12] Speaker 04:
So it doesn't make any sense to have that same coverage if you have multiple vehicles to have it on each vehicle.

[00:04:22] Speaker 04:
You could get the exact same, if it's not stacked and you have $50,000 of uninsured motorists,

[00:04:32] Speaker 04:
If it's not stacked, then all you need is one uninsured motorist provision and one policy to get it.

[00:04:39] Speaker 03:
That is absolutely a correct statement of New Mexico law.

[00:04:42] Speaker 03:
And it's also why our appellate courts say that if you charge a premium on any of the subsequent vehicles, whether it's two, three, or four.

[00:04:50] Speaker 04:
But the rationale is that you're paying for something, if it's not stacked, you're paying for something that has no value.

[00:04:59] Speaker 04:
It's illusory.

[00:05:00] Speaker 03:
No, you're actually paying for the stated coverage, which on one vehicle... We're not talking about in general.

[00:05:08] Speaker 04:
The reason it's stacked is if it's not stacked, then if you had four vehicles, the premium you're paying for uninsured motorist on three of those vehicles doesn't give you any additional coverage, so it's illusory.

[00:05:19] Speaker 03:
It's zero.

[00:05:20] Speaker 03:
Okay.

[00:05:21] Speaker 04:
So your issue here, the gist of your complaint would have to be that in some way,

[00:05:30] Speaker 04:
the insured in this case could have gotten the exact same coverage for less money.

[00:05:38] Speaker 04:
Correct.

[00:05:39] Speaker 04:
And I don't see how you've shown that.

[00:05:44] Speaker 04:
This relates to whether the information that came out of this deposition was material or not, whether Farm Bureau withheld material information.

[00:05:55] Speaker 04:
From all I can tell from the complaint, at least,

[00:05:57] Speaker 04:
is the Farm Bureau representative said, you know, these are some figures we use to calculate the premium.

[00:06:07] Speaker 04:
Apparently some of that's for uninsured property damage, which doesn't stack because it's only damage to the car that's insured.

[00:06:16] Speaker 04:
And then I can't tell whether what they did is they, for each vehicle, they computed what the uninsured property damage would be and then split the rest of the

[00:06:30] Speaker 04:
the bodily injury to split it evenly among the cars.

[00:06:35] Speaker 04:
You can't tell that.

[00:06:36] Speaker 04:
Don't you have to show that to prevail, don't you have to show that there's part of this premium that's being paid that was unnecessary.

[00:06:50] Speaker 04:
They could have gotten the same coverage for less.

[00:06:52] Speaker 04:
Correct.

[00:06:53] Speaker 04:
And therefore,

[00:06:55] Speaker 04:
to overcome the statute of limitations, you have to show that there wasn't disclosure of that fact in some way.

[00:07:04] Speaker 04:
when the policy was acquired.

[00:07:07] Speaker 04:
I hope I'm intelligent.

[00:07:08] Speaker 04:
Sure.

[00:07:08] Speaker 03:
And as you know, Judge Hartz, from your review of New Mexico law, it doesn't matter how much a premium is, but our courts have found that if there is payment of any uninsured motorist bodily injury premium on an additional vehicle, then you stack, even if it's a reduced premium, because it would be, quote, repugnant to not allow stacking when there's charging of a premium.

[00:07:31] Speaker 03:
And in this case, the documents that Mr. Hollis was provided, the documents that the district court relied upon, said it's not stacking and we're only charging one premium for the whole policy.

[00:07:43] Speaker 04:
But then what we've learned is... But it's a substantially lower premium than if you stacked.

[00:07:49] Speaker 03:
That's what they offer.

[00:07:50] Speaker 04:
That's what they describe.

[00:07:51] Speaker 04:
But... So don't you have to... I don't really care how they computed what the...

[00:08:00] Speaker 04:
what the unstacked premium would be as long as you couldn't get the same coverage for less money by just insuring one of your vehicles or something like that.

[00:08:11] Speaker 04:
And that's what I don't see present here.

[00:08:16] Speaker 03:
I disagree, Your Honor, because under New Mexico law, once it is learned that they actually did charge a premium on that vehicle, New Mexico law would reform the policy to make it a stacked policy.

[00:08:29] Speaker 04:
Well, that's not obvious to me, because that's not required by what I understand to be the principle behind requiring stacking.

[00:08:41] Speaker 04:
The principle behind stacking is you're charging

[00:08:46] Speaker 04:
a premium for something that gives you no value.

[00:08:49] Speaker 04:
And how the insurance, I don't know what the person who testified is called, but he's the representative of Farm Bureau.

[00:09:01] Speaker 04:
What he wrote down is something that's for internal purposes.

[00:09:06] Speaker 04:
And if it is for internal purposes, does it show that

[00:09:11] Speaker 04:
He should not have included anything for the fourth and fifth vehicles or something like that.

[00:09:17] Speaker 03:
That's what's missing.

[00:09:18] Speaker 03:
And if we're given the opportunity to get into the merits of the case, that is what it will show.

[00:09:22] Speaker 03:
But we were not given the opportunity because they said, well, you had all the information you needed.

[00:09:27] Speaker 03:
Had you just exercised reasonable diligence, and reasonable diligence, by the way, as defined by the district court,

[00:09:32] Speaker 03:
was extreme diligence because they said, you should have taken your policy to a lawyer immediately.

[00:09:37] Speaker 03:
But even had Mr. Hollis done that, had he brought it to me, who's been practicing insurance law for 27 years, I would not have gotten that they are charging a separate premium from those documents.

[00:09:47] Speaker 03:
It's only within Farm Bureau.

[00:09:49] Speaker 03:
But here's our problem.

[00:09:51] Speaker 04:
There's something that you learned at this deposition.

[00:09:56] Speaker 04:
We don't know exactly what it was.

[00:09:58] Speaker 04:
That's a problem.

[00:09:59] Speaker 04:
But more important,

[00:10:00] Speaker 04:
equally important, I can't tell if it's material.

[00:10:04] Speaker 04:
And if it wasn't material, then there was no fraudulent concealment, and the statute of limitations isn't extended.

[00:10:11] Speaker 03:
I can give you an example to explain how it's material.

[00:10:13] Speaker 03:
Okay.

[00:10:14] Speaker 03:
At least with the information we have, we know they are charging an amount per vehicle.

[00:10:19] Speaker 03:
So if Mr. Hollis had four vehicles, let's say, for example, the premium only for UM, UIM coverage, is $1,000.

[00:10:27] Speaker 03:
If he deletes a vehicle, that goes down to $750.

[00:10:30] Speaker 03:
If he deletes another vehicle, it goes down to $500.

[00:10:35] Speaker 03:
So it's not illusory in that instance because he's paying a premium for each vehicle he has on the policy.

[00:10:43] Speaker 03:
They're just calling it a single premium, but when they do their underwriting, they're changing it up and charging more money, but they're not giving the coverage that they're charging for.

[00:10:52] Speaker 04:
What if, and I don't know,

[00:10:55] Speaker 04:
What if the representative had explained that the way we do it for each vehicle is we prorate among the six vehicles, I think it was, or five, the uninsured bodily injury, and we add to that what each vehicle would be charged for the uninsured property damage?

[00:11:17] Speaker 04:
How do we know that that's not what he said?

[00:11:19] Speaker 04:
That was not the testimony, but also... See, we don't know that.

[00:11:22] Speaker 03:
Also, and again,

[00:11:24] Speaker 03:
That's information that they conceal.

[00:11:26] Speaker 03:
There's nothing in the documents.

[00:11:29] Speaker 03:
But what they conceal is of no importance legally.

[00:11:32] Speaker 03:
Except that they're selling coverage and not providing it.

[00:11:36] Speaker 03:
So it is of legal importance.

[00:11:39] Speaker 04:
And unfortunately, we're getting into the merits of the case when really what we should be focusing on is... I was concerned about that because I am talking about merits issues.

[00:11:46] Speaker 04:
But how do I know that a fact is material if I don't know your theory of recovery?

[00:11:53] Speaker 03:
Yeah, absolutely.

[00:11:55] Speaker 04:
Our theory is clear.

[00:11:59] Speaker 03:
But it's clear that that information was never disclosed to anybody.

[00:12:03] Speaker 03:
But it's a practice that is occurring.

[00:12:05] Speaker 03:
It's happening.

[00:12:06] Speaker 03:
They're charging a premium for coverage, but they're telling you you can't stack.

[00:12:10] Speaker 03:
And I understand the confusion about, well, they charge a higher premium for stacking.

[00:12:14] Speaker 03:
They charge an excessively higher premium for stacking because they want to discourage people from buying stacking because it exacerbates their liability.

[00:12:21] Speaker 05:
I did have one confusion on that.

[00:12:23] Speaker 05:
It seemed like your client, when he was exploring the coverage to purchase, the insurance agent would say, non-stacking, $200.

[00:12:36] Speaker 05:
But if you want stacking, $250.

[00:12:39] Speaker 05:
Those are the premium differences.

[00:12:41] Speaker 05:
So he says, OK, I want stacking.

[00:12:44] Speaker 05:
won't he get an invoice for $250 and be clear and it's and It would be clear that he bought that coverage.

[00:12:53] Speaker 05:
Yes, and if he got a bill for $200 he would know that they under build him or Can you clarify my concern and I guess the issue is I?

[00:13:04] Speaker 03:
not the amount necessarily, but the fact that they're actually charging it on a per-vehicle basis.

[00:13:09] Speaker 03:
The New Mexico law has always been very clear that charging on a per-vehicle basis results in stacking no matter what.

[00:13:15] Speaker 05:
Wouldn't you know that from the face of the policy?

[00:13:17] Speaker 03:
You really wouldn't.

[00:13:18] Speaker 03:
You'd have to, again, the face of the policy simply tells you,

[00:13:22] Speaker 03:
You don't have stack coverage.

[00:13:23] Speaker 03:
It's a per policy premium.

[00:13:26] Speaker 03:
It's one premium.

[00:13:27] Speaker 03:
And as they admitted at the appendix of page 56, we don't disclose the premium on each individual UM coverage.

[00:13:34] Speaker 03:
We tell them in the deck sheet,

[00:13:37] Speaker 03:
On each car, you have UM coverage.

[00:13:40] Speaker 03:
So unlike your hypothetical, Judge Hartz, they don't delete UM coverage from cars 2, 3, and 4.

[00:13:45] Speaker 03:
They actually, on the deck sheet, show that there is coverage, but then they don't disclose that they're charging a premium for that coverage, and there is the issue.

[00:13:53] Speaker 03:
May I switch to another point?

[00:13:56] Speaker 04:
Now, Mr. Hollis's daughter has pursued litigation involving the identical policy, is that correct?

[00:14:06] Speaker 04:
Correct.

[00:14:08] Speaker 04:
that litigation, the court said we have to stack and you're entitled to more coverage under an insured motorist.

[00:14:16] Speaker 04:
Correct.

[00:14:17] Speaker 04:
And that's the same policy as this.

[00:14:19] Speaker 04:
It is.

[00:14:20] Speaker 04:
So, one insured can get what you think should have been allowed to everybody.

[00:14:31] Speaker 04:
But if Mr. Hollis is never injured, he gets a refund.

[00:14:36] Speaker 04:
So if someone's injured, then you get stacking.

[00:14:40] Speaker 04:
If they're not injured, they get a refund because they paid for stacking.

[00:14:45] Speaker 04:
But if the daughter's result is confirmed in the New Mexico courts,

[00:14:52] Speaker 04:
then the coverage by this Farm Bureau policy would have been stacking as a matter of law.

[00:15:00] Speaker 04:
So why should there be a refund?

[00:15:02] Speaker 04:
Because the policy

[00:15:05] Speaker 04:
gave you more than what it said it did, it gave you what it should have under New Mexico law.

[00:15:11] Speaker 03:
For the 12 years, the 12 policy periods that he paid those premiums, he should absolutely get refunded because no claims were made in those policy periods.

[00:15:18] Speaker 04:
But if he had made a claim, he would have gotten stacked coverage.

[00:15:21] Speaker 04:
So it's not in the policy, but it's in New Mexico law.

[00:15:25] Speaker 03:
He would have gotten litigation, is what he would have gotten.

[00:15:28] Speaker 03:
Whether he would have gotten stacking, I think, would depend on who was representing him,

[00:15:32] Speaker 03:
What court they were in front of etc.

[00:15:34] Speaker 04:
We can't assume everyone gets someone of your quality I appreciate that judge.

[00:15:38] Speaker 03:
Thank you.

[00:15:38] Speaker 03:
I see that I'm out of time I respectfully requested the court find that this was timely filed and remand for further proceedings Thank you from the other side Mr.. Zimmerman Good morning your honors and may it please the court I

[00:16:00] Speaker 00:
My name is Kevin Zimmerman on behalf of Farm Bureau Property and Casualty Insurance Company.

[00:16:05] Speaker 00:
Your Honors, the factual allegations in plaintiff's complaint make clear that his claims stem from the face of policy documents he first received from an insurance insurer in 2013.

[00:16:16] Speaker 00:
According to plaintiff, those documents were unlawful and ambiguous in some way and therefore entitled him to stack coverage.

[00:16:24] Speaker 00:
The key issue for the statute of limitations on this appeal

[00:16:27] Speaker 00:
is that the plaintiff does not allege any changes in his coverage, any changes in his policy documents, or any material facts that changed between 2013 when he first received those policy documents and 2024 when he filed this lawsuit.

[00:16:43] Speaker 00:
The district court therefore correctly concluded that the statute of limitations bars plaintiff's claims.

[00:16:49] Speaker 04:
Now, plaintiffs rely... One thing that troubles me about this case is

[00:16:57] Speaker 04:
You don't have to plead that you're not barred by the statute of limitations in your complaint.

[00:17:05] Speaker 04:
To resolve that on 12b6, based on the complaint, strikes me as very unusual.

[00:17:10] Speaker 04:
It may have been waived by the way the parties proceeded in this case.

[00:17:15] Speaker 04:
They said, plaintiff said, we've adequately alleged it already, so that should be assumed as true for purposes of statute of limitations.

[00:17:27] Speaker 04:
Some of this is outside the complaint.

[00:17:30] Speaker 04:
And I would think ordinarily, it would be something the district court should consider in resolving the statute of limitations issue.

[00:17:40] Speaker 00:
So I think that the- Can you explain what happened here?

[00:17:42] Speaker 00:
I think what happened here is the complaint was originally filed attached to the 2020 documents, the sort of more recent documents he received, which were materially identical to the 2013 documents.

[00:17:54] Speaker 00:
But the plaintiff pled in the complaint

[00:17:57] Speaker 00:
you know, I've had this coverage, these same documents back to 2013.

[00:18:00] Speaker 00:
So Farm Bureau responding on a 12b6 couldn't point to the documents that weren't attached to the complaints.

[00:18:08] Speaker 00:
But the court in looking at that said, look, you know, the district court said, look, these 2013 documents, I'm going to consider as incorporated by reference.

[00:18:16] Speaker 00:
And plaintiff doesn't challenge that on appeal.

[00:18:18] Speaker 00:
So then with those 2013 documents incorporated by reference, it did become a pleading issue because those documents are now sort of part of the complaint.

[00:18:26] Speaker 00:
And those 2013 documents make clear that plaintiff first rejected stack coverage all the way back to 2013, and that all of plaintiff's theories as to why the policy documents should be read to provide stack coverage, those facts were available as far back as 2013.

[00:18:42] Speaker 01:
I think Judge Kelly has a question.

[00:18:47] Speaker 01:
And there seems to be a conflict between what the appellant says and what the appellee says.

[00:18:58] Speaker 01:
And I was under the impression that the only argument made to the district court was for equitable tolling, and that the plaintiff admitted that

[00:19:18] Speaker 01:
pursue but for equitable tolling.

[00:19:23] Speaker 01:
Am I misreading everything?

[00:19:25] Speaker 00:
No, I think that's correct, Your Honor.

[00:19:27] Speaker 00:
The only argument, the only sort of tolling argument presented to the district court is the doctrine of equitable tolling.

[00:19:37] Speaker 00:
Plaintiff did not raise the continuing wrong doctrine except sort of saying those words without arguments, and plaintiff did not raise equitable estoppel.

[00:19:45] Speaker 00:
And as the Jurisdiction Court correctly recognized, plaintiffs' claims do accrue from the 2013 policy documents.

[00:19:53] Speaker 04:
Well, what if, well, I thought they're claiming, maybe you're saying they didn't make this argument, but I thought they made the argument that the time to sue was told because they had not been given, because Farm Bureau had fraudulently concealed important information

[00:20:14] Speaker 04:
that would enable them to pursue this claim.

[00:20:18] Speaker 00:
That's the argument, but that's not supported by the actual contentions in the complaint.

[00:20:23] Speaker 00:
And that's what matters here.

[00:20:24] Speaker 00:
The contentions in the complaint, and I'm glad opposing counsel mentioned Garcia v. Allstate, because it really gives light to what the claims in the complaint were.

[00:20:33] Speaker 00:
The claims in the complaint were based on how you listed things on the declarations page and based on the things you said in the rejection form,

[00:20:41] Speaker 00:
These documents are ambiguous and therefore provide stacked coverage.

[00:20:45] Speaker 00:
And the Garcia of the Allstate case that he mentioned from the New Mexico Court of Appeals, which has actually been subsequently reversed,

[00:20:51] Speaker 00:
But the appellate case, which was the operative case at the time, it was about exactly that.

[00:20:56] Speaker 00:
The court looked at the face of policy documents and said, look, based on how things are sort of laid out and written out in these documents, I'm going to find that this is ambiguous as to whether or not you're charging multiple premiums, and therefore I'm going to provide stack coverage.

[00:21:10] Speaker 00:
And that, if you look at the Merits Motion to Dismiss briefing here,

[00:21:14] Speaker 00:
The parties briefed the applicability of Garcia v. Allstate heavily because what plaintiff's complaint in the district court was, was based on the face of the policy documents.

[00:21:25] Speaker 00:
It was based on the fact that if you look at the declarations page, plaintiff said, hey, look, you're listing uninsured motorist vehicle premium and underinsured motorist vehicle premium separately above this

[00:21:35] Speaker 00:
sort of separate premium.

[00:21:37] Speaker 00:
So it's ambiguous as to whether or not you're charging multiple premiums.

[00:21:41] Speaker 00:
And the importance of this for the statute of limitations is that all of these claims arise from the face of the policy documents.

[00:21:49] Speaker 00:
So as soon as plaintiff received those documents in 2013, he had all of the facts necessary to pursue his causes of action.

[00:21:56] Speaker 00:
OK, so if I'm understanding you correctly, then.

[00:22:02] Speaker 04:
The claim was that there was ambiguity in the documents.

[00:22:07] Speaker 04:
And because of that ambiguity, under the case you're citing, because of that ambiguity, the insurer is entitled to stack.

[00:22:17] Speaker 04:
That is plaintiffs are.

[00:22:19] Speaker 04:
And what plaintiff discovered

[00:22:21] Speaker 04:
in a deposition of someone from Farm Bureau, and that's for various reasons apparently that was not provided in the appellate record.

[00:22:37] Speaker 04:
What the Farm Bureau representative did was perhaps resolve that ambiguity in a way that favors the plaintiff.

[00:22:46] Speaker 04:
You probably disagree with that, but that's his argument, and you're saying

[00:22:51] Speaker 04:
that the complaint doesn't allege that the situation described by the Farm Bureau representative, it was based simply on the fact that the policy was ambiguous.

[00:23:07] Speaker 00:
So a few points in response to sort of this deposition testimony.

[00:23:11] Speaker 00:
So first, your honors are absolutely correct.

[00:23:14] Speaker 00:
This deposition testimony is nowhere in the record.

[00:23:16] Speaker 00:
And plaintiff's complaint doesn't cite this Nestor case.

[00:23:19] Speaker 04:
But you knew what it was, because it

[00:23:22] Speaker 04:
It was your representative who was deposed.

[00:23:24] Speaker 00:
I personally don't know what it was.

[00:23:28] Speaker 00:
But for purposes of a 12 v 6 motion, there's no reference to Nestor.

[00:23:32] Speaker 00:
There's no reference to this case's case.

[00:23:34] Speaker 00:
There's no reference to any deposition testimony in the complaint.

[00:23:37] Speaker 00:
This is just sort of a post hoc argument that plaintiff has created to try to avoid the statute limitations here.

[00:23:44] Speaker 00:
And I think nothing makes this clearer than the fact that one of the two depositions where plaintiff allegedly uncovered this material occurred after the complaint in this case was filed.

[00:23:53] Speaker 00:
The 2024 deposition occurred on August 2nd, 2024, plaintiff says.

[00:23:58] Speaker 00:
But plaintiff's complaint was filed on July 12, 2024.

[00:24:00] Speaker 00:
But one deposition was before it was filed.

[00:24:03] Speaker 00:
So the only thing we have in the record as to sort of what was discussed in that 2020 deposition is plaintiff's description of it.

[00:24:12] Speaker 00:
And this is at page 180 of the appendix.

[00:24:14] Speaker 00:
And I just want to read it for you, and apologize for just reading from the appendix.

[00:24:18] Speaker 00:
But this is page 180 of the appendix, plaintiff's statute of limitations briefed to the district court.

[00:24:22] Speaker 00:
Here's what plaintiff says.

[00:24:24] Speaker 00:
While Farm Bureau represents and maintains that it charges a single UM UIM premium at the policy level, the details uncovered in this deposition demonstrate that Farm Bureau actually charges multiple UM UIM premiums on each vehicle in the multi-vehicle policy.

[00:24:39] Speaker 00:
Farm Bureau argues to courts that UM UIM premium is charged on a policy level, not a per vehicle level, but lists a per vehicle premium on the declarations page that includes the UM UIM premium as a per vehicle charge.

[00:24:54] Speaker 00:
So even as plaintiff tells it in the briefing of the district court, all that was allegedly uncovered is just how things are listed on the declarations page.

[00:25:03] Speaker 00:
So that brings us back to the original points.

[00:25:06] Speaker 04:
The complaint didn't attach the declarations page?

[00:25:10] Speaker 00:
The complaint did attach the declarations page.

[00:25:12] Speaker 00:
It did.

[00:25:12] Speaker 00:
But it's not listed per vehicle in the... So the declarations page, what it does is the UMUIM selection rejection form lists

[00:25:21] Speaker 00:
Here's for the separate levels of coverage.

[00:25:25] Speaker 00:
Here's what the premium would be if you buy stacked coverage.

[00:25:27] Speaker 00:
Here's what the premium would be if you buy unstacked coverage.

[00:25:29] Speaker 00:
Stacked is obviously higher, because if you're in an accident, you're entitled to more money for that.

[00:25:34] Speaker 00:
What the declarations page does is you can look at the declarations page, and for each of the vehicles there, it lists a separate premium on each of those vehicles.

[00:25:43] Speaker 00:
And then it tells you, here's your total policy premium.

[00:25:47] Speaker 00:
I didn't see that in the record.

[00:25:50] Speaker 04:
What page shows?

[00:25:52] Speaker 04:
that there's a separate premium for each vehicle.

[00:25:56] Speaker 00:
So I'll pull up the... I apologize for missing that.

[00:26:01] Speaker 00:
No, no problem.

[00:26:02] Speaker 00:
I'm looking at document 1.1, page 37.

[00:26:06] Speaker 00:
And this is one of the attachments to the complaint.

[00:26:08] Speaker 00:
And again, the attachments to the complaint are the 2020 policy forms.

[00:26:12] Speaker 04:
So it's document 1.1.

[00:26:13] Speaker 00:
1-1 at 37.

[00:26:14] Speaker 00:
And what page of the appendix is that?

[00:26:21] Speaker 00:
I don't have that readily handy.

[00:26:23] Speaker 00:
I'm not sure that's in the appendix, is it?

[00:26:26] Speaker 00:
This is attached to plaintiff's complaint.

[00:26:29] Speaker 00:
It should be in the appendix.

[00:26:31] Speaker 00:
It should be in the appendix.

[00:26:31] Speaker 00:
I apologize if it's not between the two of us.

[00:26:34] Speaker 04:
I kept looking at the document that showed each vehicle, but now I know where to find it.

[00:26:41] Speaker 05:
Well, I think I'm looking at at least one of them for the Toyota Tacoma, and it goes through the coverage.

[00:26:50] Speaker 05:
And it states stacking rejected.

[00:26:54] Speaker 05:
And then it gives annual vehicle premium.

[00:26:58] Speaker 05:
Are you saying that there's going to be four of those?

[00:27:01] Speaker 05:
There's about seven or eight, actually.

[00:27:02] Speaker 05:
OK, seven or eight.

[00:27:03] Speaker 05:
How many cars were insured?

[00:27:05] Speaker 05:
Correct, Your Honor, correct.

[00:27:08] Speaker 05:
So you're saying the premium there was $376.

[00:27:11] Speaker 05:
There's going to be seven or eight of those that show that premium?

[00:27:16] Speaker 00:
That's correct, Your Honor.

[00:27:17] Speaker 00:
And you can find the 2020 version of the deck page, as I mentioned, at Doc 1.1 attached to the complaint.

[00:27:24] Speaker 00:
The 2013 version of the deck pages, those were attached to our statute of limitations briefing after the district court said, essentially, you can attach these things.

[00:27:33] Speaker 05:
And why is that relevant to the fraudulent concealment?

[00:27:36] Speaker 00:
So what's relevant here is the basis of plaintiff's claims are two sort of disclosure things in these documents.

[00:27:44] Speaker 00:
One, plaintiff says, oh, look, you're charging separate premiums for each of these vehicles.

[00:27:49] Speaker 00:
To the extent that was sort of discernible from the face of the complaint, or from the face of the documents, which is what is alleged in the complaint, plaintiff had all of the facts necessary to pursue that.

[00:28:01] Speaker 04:
Here's where I got confused.

[00:28:05] Speaker 04:
I thought they were alleging for the uninsured motorist protection.

[00:28:09] Speaker 04:
It was separately charged for each vehicle.

[00:28:13] Speaker 04:
What is there is the total for each vehicle, but not by coverage.

[00:28:18] Speaker 04:
So wouldn't that make a difference if you knew that the uninsured motorist protection was charged independently in each vehicle?

[00:28:27] Speaker 00:
So that is what they allege in the complaint.

[00:28:29] Speaker 00:
In their briefing before the appellate court, they sort of argue about separate premiums per vehicle, so it's a little bit confused.

[00:28:35] Speaker 00:
But I agree, Your Honor.

[00:28:36] Speaker 00:
Paragraphs 21 through 23 of their complaint.

[00:28:39] Speaker 00:
This is where they really highlight sort of the basis of this multiple vehicle premium theory.

[00:28:44] Speaker 00:
And what they say there is, hey, look, if you look at these policy documents, it lists one premium for the vehicle.

[00:28:50] Speaker 00:
But above that are separate lines for auto uninsured motor vehicle and auto underinsured motor vehicle.

[00:28:56] Speaker 00:
And when the parties briefed this on the merits to the district court, the briefing was about essentially, hey, under Garcia, does this make this ambiguous or not?

[00:29:05] Speaker 00:
And so the critical issue for the statute of limitations

[00:29:08] Speaker 00:
is this all just comes from the face of the policy documents.

[00:29:11] Speaker 00:
New Mexico law is clear that what matters for the statute of limitations is the availability of the facts underlying the cause of action, not the legal implications.

[00:29:19] Speaker 04:
You seem to be saying their theory of recovery has changed.

[00:29:24] Speaker 04:
The theory in the complaint was ambiguity, which should be resolved against the Farm Bureau so they get stack coverage.

[00:29:33] Speaker 04:
Now they're saying, or at some point, they were saying, well, we learned something in this deposition of the Farm Bureau representative.

[00:29:42] Speaker 04:
And that shows that the uninsured motorist protection for each vehicle was calculated independently.

[00:29:49] Speaker 04:
That resolves the ambiguity in our favor, so we should win.

[00:29:54] Speaker 04:
But that was not what was alleged in the complaint as their cause of action.

[00:29:57] Speaker 04:
Is that what you're saying?

[00:29:58] Speaker 00:
That was not what was alleged in the complaints of the cause of action.

[00:30:01] Speaker 00:
And part of what may have caused some of the transition here, there have been two New Mexico Supreme Court opinions that have sort of resolved some of the issues as originally alleged in the complaint.

[00:30:14] Speaker 00:
The reversal of the Garcia v. Allstate case

[00:30:16] Speaker 00:
and Kiley and V. Dido, it's 2025 New Mexico Supreme Court 038.

[00:30:22] Speaker 00:
This resolved another one of the theories in plaintiff's complaint, which was about offering coverage on a per-vehicle basis.

[00:30:29] Speaker 00:
But what matters here is if you actually look at the allegations in the complaint.

[00:30:33] Speaker 00:
If you look at paragraphs 21 through 23, which talk about the multiple premiums,

[00:30:38] Speaker 00:
Paragraph 16 and 17, which talk about the statement in the deck pages or the statement on the rejection form that stacking has been explained to insurers.

[00:30:49] Speaker 00:
Paragraph 40, it talks about the complaint does not provide a menu of coverage options.

[00:30:53] Speaker 00:
All of the allegations in the complaint, all of the actual claims in the complaint are about the face of the policy documents.

[00:31:00] Speaker 00:
And that's what matters for the purposes of statute of limitations.

[00:31:03] Speaker 05:
I know your time's up, but could you just quickly respond to why

[00:31:07] Speaker 05:
our 10th Circuit Aldridge case, which states that it's discouraged to review statute of limitations fraudulent concealment at the motion to dismiss stage.

[00:31:21] Speaker 00:
So the Aldridge case did also say, expressly said, that the statute of limitations can be resolved on a 12b6 motion.

[00:31:29] Speaker 00:
That case involved allegations of affirmative conduct to conceal the fraud.

[00:31:35] Speaker 00:
which were sufficient to invoke the doctrine of equitable estoppel.

[00:31:37] Speaker 00:
And the court statement there is that sort of based on that record, it couldn't be resolved as a matter of law.

[00:31:43] Speaker 00:
But the court also expressly stated in the Aldrich case that if the situation presented itself like the situation does here, the statute of limitations can be resolved on a 12b6 motion.

[00:31:57] Speaker 04:
Thank you, counsel.

[00:31:58] Speaker 00:
Thank you, your honor.

[00:31:58] Speaker 00:
I appreciate your time.

[00:32:01] Speaker 04:
Mr. Vargas, your time is up, but I want to make sure we get this resolved.

[00:32:04] Speaker 04:
So I'd like to give you a chance to respond to what I think I figured out from the argument.

[00:32:13] Speaker 04:
Excuse me, Judge Kelly.

[00:32:18] Speaker 04:
And that is my understanding now is that your original complaint said you're entitled to stacking because the policy was ambiguous.

[00:32:27] Speaker 03:
That was one of the bases.

[00:32:30] Speaker 04:
OK.

[00:32:30] Speaker 04:
was supported by a case that was later revised, at least by the Supreme Court.

[00:32:36] Speaker 04:
But then, in arguing fraudulent concealment and therefore equitable tolling, you're relying on additional information at this deposition that resolved the ambiguity in your favor.

[00:32:52] Speaker 04:
But my understanding is you hadn't pleaded that

[00:33:00] Speaker 04:
there was a resolved ambiguity.

[00:33:03] Speaker 03:
We didn't plead specifically fraudulent concealment because, as you pointed out, at the pleading stage, nobody pleads statute of limitations in their complaint.

[00:33:11] Speaker 03:
But tellingly, the Farm Bureau just told you, hey, everything you need to know is up to paragraph 23 in the complaint.

[00:33:17] Speaker 03:
But if you review paragraph 23, 24, 27, 29, 30, 31, 33, 39, and 58, you will see that we are alleging that they are concealing information from their insurance.

[00:33:30] Speaker 03:
that they have a practice of doing so, and that their insurers cannot make a knowing and intelligent decision to reject the coverage based on that concealment.

[00:33:38] Speaker 03:
Thank you.

[00:33:39] Speaker 03:
Thank you, Your Honor.

[00:33:42] Speaker 04:
OK.

[00:33:42] Speaker 04:
Thank you, gentlemen.

[00:33:44] Speaker 04:
Cases submitted.

[00:33:47] Speaker 04:
Counselor excused.