NM insurance cases lacking precedent

Anybody who lives in Albuquerque knows (or will soon find out) about the thieves who roam the city after midnight burglarizing vehicles.

It’s not enough to lock your car 364 nights in a year. If you forget even once, you’re likely to find it ransacked by morning.

If the thieves spot something valuable inside a locked vehicle, they’ll break a window to get it. That’s why you so frequently see shattered glass on our quiet residential streets.

And that’s what happened at the William McKinley house in Four Hills around 4 a.m. on the day after Christmas, 2015.

The thieves were Tyler Hernandez and Craig Whited. They parked Whited’s Jeep at the bottom of McKinley’s driveway, then smashed the window of McKinley’s truck to get at the tools inside.

McKinley rushed out of the house to protect his property.

Whited later gave a statement to police, summarized in a Journal article, in which he claimed he was already busy burglarizing another car next door when he realized Hernandez and McKinley were fighting in the driveway.

Struggling for possession of the tools, they ended up inside Whited’s Jeep, where Hernandez produced a knife and stabbed McKinley.

McKinley died. The two criminals were quickly caught. Whited pled guilty to larceny and related charges while Hernandez was convicted of murder.

Longtime readers may have guessed by now that this is another column about automobile insurance.

Less than three years ago, I wrote about a newly decided case in which a man was shot inside an uninsured car, then claimed uninsured motorist benefits from his own insurance company.

The McKinley family similarly claimed uninsured motorist benefits because William was stabbed inside a vehicle that was either uninsured or “minimally insured” (the recent Court of Appeals opinion says both things).

The fact that our Court of Appeals had to devote resources to two cases with such similar facts within such a short time frame flags a problem in the law.

New Mexico’s appellate courts issue few decisions in civil cases because most cases settle. They settle because it’s generally too expensive and too risky to pursue an appeal to the end.

In New Mexico, the appellate process is agonizingly slow, which imposes costs in itself, both direct (the accrual of interest) and indirect (carrying debt on the books).

The pressure to settle is increased by the shortage of precedent. We just don’t have many business law cases on our books. That makes it difficult for lawyers to extrapolate from past practice to predict how the courts will rule in the future.

The lack of precedent creates a climate of uncertainty that discourages civil litigants from pursuing the appeals that would set guidepost precedents. And so the vicious circle keeps spinning.

Compounding the uncertainty is the low respect for precedent that characterizes New Mexico’s judicial culture. Waiting for a New Mexico appellate court to rule is like placing a bet on a roll of dice.

That kind of bet makes business sense for one type of company. Insurers need to know what the law requires of them in order to calculate an appropriate premium. Moreover, as large national

corporations, they have the resources to wait out the protracted appellate process.

Twice in recent years insurance companies have asked New Mexico’s appellate courts to explain whether intentional violent acts committed inside an uninsured vehicle are covered by uninsured motorist policies. Twice New Mexico’s courts have answered, “Well, it depends.”

McKinley’s uninsured motorist policy, like most such policies, covered “accidents” arising from another person’s use of an uninsured or underinsured vehicle.

By ordinary definition, a shooting or stabbing is the opposite of an accident, as conveyed by the familiar phrase, “That was no accident!”

But in another usage, “accident” can mean any unexpected event, as in the phrase, “We met by accident.” From the victim’s point of view, being stabbed or shot is always unexpected. Thus an intentional attack is an accident. Right?

The argument is mere wordplay, but it’s been accepted by numerous courts around the country, including the New Mexico Supreme Court in 1995.

By indulging in word games, the Supreme Court needlessly complicated a straightforward inquiry. The result is a series of cases raising similar but not quite identical claims, which must be litigated one by one.

Starting from the premise that the stabbing of William McKinley qualified as an “accident,” our Court of Appeals held that coverage depended on whether use of the uninsured car caused it. The court held that, on the contrary, the cause was Hernandez’s intentional act of stabbing his victim.

With this roundabout rationale, our court denied coverage. The “accident,” you see, wasn’t accidental.