March 23, 2026- Clay P. Lindstrom v. Progressive Direct Insurance Company, No. A-1-CA-42510

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico Filed 3/23/2026 8:18 AM
Mark Reynolds
Filing Date: March 23, 2026 No. A-1-CA-42510
CLAY P. LINDSTROM,
Plaintiff-Appellee,
PROGRESSIVE DIRECT INSURANCE COMPANY,
Defendant-Appellant,
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Daniel E. Ramczyk, District Court Judge
Valle, O'Cleireachain, Zamora & Harris Andrea D. Harris Albuquerque, NM
Romero, Harada & Winters, LLC
Nikko Harada
Christopher P. Winters
Albuquerque, NM
1 2 Opinion Number: 3 4 5 6 7 v. 8 9 10 11 and 12 JOHN DOE, 13 Defendant. 14 15 16 17 18 19 20 Geoffrey R. Romero
21 22 23 24 for Appellee

Cuddy & McCarthy, LLP
Scott P. Hatcher

Robert A. Corchine
Santa Fe, NM

for Appellant

OPINION	1
MEDINA, Chief Judge.	2
{1} 	In 	this 	interlocutory 	appeal, 	Appellee 	Clay 	Lindstrom 	and 	Appellant	3
Progressive Direct Insurance Company (Progressive) ask us to resolve whether	4
Appellee 	is 	entitled 	to 	recover 	punitive 	damages 	under 	his 	uninsured 	and	5
underinsured (UM/UIM) policy when the tortfeasor is unknown. Determining that	6
Appellee is not entitled to recover punitive damages, we reverse.	7
BACKGROUND	8
{2} 	Appellee was the victim of a hit-and-run while operating his vehicle. Appellee	9
alleges that Defendant John Doe violently collided with his vehicle, but instead of	10
remaining at the scene and identifying himself, Defendant Doe fled. Appellee	11
brought negligence and negligence per se claims against Defendant Doe, seeking to	12
recover compensatory and punitive damages. At the time of the accident, Appellee	13
had 	UM/UIM 	coverage 	through 	Progressive. 	Appellee 	argued 	entitlement 	to	14
compensatory and punitive damages from Progressive based on Defendant Doe’s	15
conduct. Progressive paid Appellee’s compensatory property damages claim but	16
denied his punitive damages claim.	17
{3} 	During motions practice, the parties litigated whether Appellee was entitled	18
to recover punitive damages from Progressive based on Defendant Doe’s conduct.	19
The district court—having already determined Defendant Doe’s liability for the	20

2
damage to Appellee’s property—granted Appellee’s motion for partial summary	1
judgment as to Progressive’s punitive damages liability, and denied Progressive’s	2
opposing motion for summary judgment. In its order, the district court determined	3
that Progressive owes “a contractual duty to pay damages that the insured is legally	4
entitled to recover against Defendant . . . Doe, including any award of punitive	5
damages that may be entered against Defendant . . . Doe.” The district court certified	6
for interlocutory appeal the questions of “whether punitive damages can be awarded	7
against an unknown driver, and whether an insurer is obligated to cover punitive	8
damages 	awarded 	against 	an 	unknown 	tortfeasor.” 	The 	parties 	filed 	a 	joint	9
interlocutory appeal application, which this Court granted.	10
DISCUSSION	11
{4} 	Interpretation of New Mexico’s UM/UIM statute, NMSA 1978, § 66-5-301	12
(1983), in order to determine whether punitive damages can be awarded against an	13
unknown driver, and whether an insurer is obligated to cover punitive damages	14
awarded against an unknown tortfeasor, is a question of law subject to de novo	15
review. See Jordan v. Allstate Ins. Co., 2010-NMSC-051, ¶ 14, 149 N.M. 162, 245	16
P.3d 1214. We also review a district court’s grant of summary judgment de novo.	17
Kileen v. Didio, 2025-NMSC-038, ¶ 9, 578 P.3d 1180.	18
{5} 	Progressive argues that the district court erred in ruling that punitive damages	19
may be recovered under a UM policy where the tortfeasor is unknown. In support of	20

3
its position, Progressive contends that such an award undermines the rationale for	1
punitive damages, frustrates the limited purpose of punitive damages, and would	2
contravene existing New Mexico precedent. Appellee disagrees and argues that he	3
is legally entitled to punitive damages under Section 66-5-301, New Mexico’s	4
UM/UIM statute, and that the absence of a known tortfeasor cannot abridge the	5
availability of any category of damages codified by the UM/UIM statute.	6
{6} 	The purpose of New Mexico’s UM/UIM statute is “to encourage insureds to	7
purchase such coverage,” Kileen, 2025-NMSC-038, ¶ 12 (internal quotation marks	8
and citation omitted), and to “place the insured in the same position as to the	9
recovery of damages that [they] would have been in had the tort[]feasor had liability	10
insurance.” State Farm Mut. Auto. Ins. Co. v. Maidment, 1988-NMCA-060, ¶ 18,	11
107 N.M. 568, 761 P.2d 446 (citing Wood v. Millers Nat’l Ins. Co., 1981-NMSC-	12
086, ¶ 10, 96 N.M. 525, 632 P.2d 1163; Gantt v. L & G Air Conditioning, 1983-	13
NMCA-083, ¶ 20, 101 N.M. 208, 680 P.2d 348 (same), superseded by statute as	14
stated in Mountain States Mut. Cas. Co. v. Vigil, 1996-NMCA-062, ¶ 11, 121 N.M.	15
812, 918 P.2d 728. This is achieved by requiring insurers to offer UM coverage so	16
that “an injured insured is compensated for injuries even when the tortfeasor is	17
financially irresponsible.” Jaramillo v. Providence Wash. Ins. Co., 1994-NMSC-	18
018, ¶ 24, 117 N.M. 337, 871 P.2d 1343. This coverage includes coverage for	19
punitive damages. See Stewart v. State Farm Mut. Auto. Ins. Co., 1986-NMSC-073,	20

4
¶ 9, 104 N.M. 744, 726 P.2d 1374. Indeed, “punitive damages are as much a part of	1
the potential award under the uninsured motorist statute as damages for bodily	2
injury.” Stinbrink v. Farmers Ins. Co. of Ariz., 1990-NMSC-108, ¶ 5, 111 N.M. 179,	3
803 P.2d 664. As Appellee acknowledges, however, recovery of punitive damages	4
is not absolute.	5
{7} 	Relevant to this appeal, and heavily relied on by Progressive, our Supreme	6
Court has barred recovery of punitive damages against a deceased tortfeasor’s estate,	7
despite the UM/UIM statute’s purpose of placing an insured in the same position as	8
to the recovery of damages that they would have been in had the tortfeasor had	9
liability insurance. See Jaramillo, 1994-NMSC-018, ¶¶ 24-26; see also Maidment,	10
1988-NMCA-060, ¶ 18 (noting that the UM/UIM statute’s purpose is to “place the	11
insured in the same position as to the recovery of damages that [they]would have	12
been in had the tort[]feasor had liability insurance”). Maidment held both that	13
“punitive damages may not be awarded against the estate of a deceased tort[]feasor,”	14
1988-NMCA-060, ¶ 14, and that “the insurer may assert the death of the uninsured	15
motorist as a bar to recovery of punitive damages,” id. ¶ 25.	16
{8} 	In 	Jaramillo, our Supreme Court indicated that an insurer’s ability to	17
subrogate was an important factor in determining that insurance policies may cover	18
punitive damages; otherwise, the purpose of punitive damages would be “diluted.”	19
1994-NMSC-018, ¶ 24. The Court also reasoned that the purpose of awarding	20

5
punitive damages—to punish and deter—is not achieved when the tortfeasor has	1
died. Id. ¶ 26. This is because, “[w]hen the tortfeasor cannot be punished for [their]	2
culpable behavior, punitive damages no longer have the desired effect and, therefore,	3
the victim loses the legal entitlement to recover those damages.” Id. ¶ 24.	4
{9} 	Appellee contends that Jaramillo is readily distinguishable from this case.	5
Appellee argues that he is legally entitled to recover punitive damages because a	6
deceased tortfeasor is unlike an unknown tortfeasor because an unknown tortfeasor	7
may be discovered. An unknown tortfeasor could therefore be punished if they are	8
later identified, which may deter others from engaging in similar conduct. As such,	9
the purpose of punitive damages can be accomplished by awarding punitive damages	10
against an unknown tortfeasor. Progressive, on the other hand, cites cases to support	11
its argument that punitive damages should be unavailable against an unknown	12
tortfeasor.	13
{10} 	Appellee 	cites 	no 	controlling 	authority 	from 	any 	jurisdiction, 	without	14
statutory authority or a more expansive view of the role of punitive damages, holding	15
that punitive damages are available against an unknown tortfeasor, nor have we	16
found any such cases in our own research.1 Instead, Appellee contends that he is	17
1Appellee relies on four New Mexico state district court cases to support his
claim that punitive damages are recoverable against an unknown tortfeasor. Plaintiff,
however, ignores that our district courts also reach the opposite conclusion. See, e.g.,
Order on Defendants’ Motion for Partial Summary Judgment at 1, Luchini v.
Braswell, No. D-202-CV-2019-09476 (2d Jud. Dist. Ct. June 23, 2020) (determining

6
legally entitled to recover punitive damages in this case because punitive damages	1
are only barred in cases brought against the government and those brought against a	2
deceased tortfeasor. Appellee argues that it “makes sense” that punitive damages	3
cannot be recovered against the government and a deceased tortfeasor because their	4
status is not subject to change. This is unlike an unknown tortfeasor whose status	5
would change if they are later identified. We are unpersuaded that the unchanging	6
status of the tortfeasor is dispositive in determining whether a plaintiff is legally	7
entitled to recover punitive damages. As our Supreme Court has acknowledged,	8
“The phrase ‘legally entitled to recover’ seems something of a chameleon, varying	9
with the facts and procedural context in which the need to define the phrase arises.”	10
Boradiansky v. State Farm Mut. Auto. Ins. Co., 2007-NMSC-015, ¶ 13, 141 N.M.	11
387, 156 P.3d 25. Indeed, our courts have been inconsistent and unclear in how to	12
define this phrase. Id. ¶ 12. What is clear, however, is that punitive damages are	13
unavailable against the government because they penalize the innocent taxpayers,	14
see, e.g., 	Faber v. King, 2015-NMSC-015, ¶¶ 22-26, 348 P.3d 173, and, are	15
unavailable against a deceased tortfeasor because they fail to accomplish the purpose	16
of punitive damages, Jaramillo, 1994-NMSC-018, ¶ 26. Given our Supreme Court’s	17
reasoning in these cases, we conclude that Appellee is not legally entitled to recover	18
that “[u]nder the current state of the law in New Mexico, [the p]laintiff is not legally
entitled to recover punitive damages for actions of an unknown tortfeasor under the
uninsured motorist coverage of [their insurance] policy”).

7
punitive 	damages 	because 	the 	purpose 	of 	punitive 	damages 	would 	not 	be	1
accomplished and the insureds would likely incur increased premiums.2
2
{11} 	Moreover, although there is a dearth of case law directly on point, we are	3
persuaded by the cases that preclude punitive damages against an unknown	4
tortfeasor. In State Farm Mutual Insurance Co. v. Kuharik, the Georgia Court of	5
Appeals reversed a district court’s decision allowing for punitive damages against	6
an unknown tortfeasor who allegedly drove in a reckless and wanton manner in	7
causing a collision before unlawfully leaving the scene. 3 347 S.E.2d 281, 282	8
(Ga. Ct. App. 1986). The court explained that “to award punitive damages against	9
an unknown tortfeasor for the purpose of deterring [them] from repeating [their]	10
alleged misconduct would be nonsensical.” Kuharik, 347 S.E.2d at 282. In coming	11
to this conclusion, the Court of Appeals for Georgia analogized allowing a punitive	12
2Increased premiums would likely discourage the purchase of UM coverage,
contrary to the purpose of the UM/UIM statute. See Kileen, 2025-NMSC-038, ¶ 12
(stating that the purpose of the UM/UIM statute is to encourage insureds to purchase
UM coverage).
3 When the Georgia Court of Appeals decided Kuharik, it was unsettled
whether Georgia’s UM/UIM statute allowed for punitive damages—regardless of
whether the tortfeasor was known or not. See, e.g., Roman v. Terrell, 393 S.E.2d 83,
84 (Ga. Ct. App. 1990). In 1990, however, the Supreme Court of Georgia determined
that “an insurance company is not liable to its insureds for punitive damages under
uninsured motorist coverage.” State Farm Mut. Auto Ins. Co. v. Weathers, 392
S.E.2d 1 (Ga. 1990).

8
damages award against an unknown tortfeasor to that of a deceased tortfeasor—	1
which, like New Mexico, Georgia prohibits.4 See Kuharik, 347 S.E.2d at 282.	2
{12} 	There are also at least three published New Mexico federal district court cases	3
reaching the same conclusion. See Ammons v. Sentry Ins. Co., 431 F. Supp. 3d 1280	4
(D.N.M. 2019); Dockery v. Allstate Ins. Co., 491 F. Supp. 3d 980 (D.N.M. 2020);	5
Padilla v. Doe, 781 F. Supp. 3d 1205 (D.N.M. 2025). And while “we are not bound	6
by federal court decisions purporting to interpret New Mexico state common or	7
statutory law,” Hovey-Jaramillo v. Liberty Mut. Ins., 2023-NMCA-068, ¶ 18, 535	8
P.3d 747, such opinions, “particularly of courts of our own [c]ircuit, are entitled to	9
special consideration.” Sanchez v. Cont. Trucking Co., 1941-NMSC-049, ¶ 8, 45	10
N.M. 506, 117 P.2d 815. In doing so, “we accord them the deference they merit	11
based on our view of the correctness of their analysis of our law.” Hovey-Jaramillo,	12
2023-NMCA-068, ¶ 18.	13
4We also note that Georgia’s UM/UIM statute shares a similar purpose to New
Mexico’s UM/UIM statute: to expand insurance coverage to protect the public from
irresponsible uninsured motorists. Compare Progressive Nw. Ins. Co. v. Weed
Warrior Servs., 2010-NMSC-050, ¶ 5, 149 N.M. 157, 245 P.3d 1209 (“The
UM/UIM statute is intended to expand insurance coverage and to protect individual
members of the public against the hazard of culpable uninsured motorists.” (internal
quotation marks and citation omitted)), with Smith v. Com. Union Assurance Co.,
268 S.E.2d 632, 634 (Ga. 1980) (“The purpose of uninsured motorist legislation is
. . . to facilitate indemnification for injuries to a person who is legally entitled to
recover damages from an uninsured motorist, and thereby to protect innocent victims
from the negligence of irresponsible drivers.” (internal quotation marks and citation
omitted)).

9
{13} 	In both Ammons and Dockery, plaintiffs sought punitive damages under their	1
UM policy based on their vehicle being stolen and damaged by unknown tortfeasors.	2
See Ammons, 431 F. Supp. 3d at 1284; Dockery, 491 F. Supp. 3d at 983. In Padilla,	3
a plaintiff sought punitive damages under her UM policy based on an automobile	4
accident with an unknown tortfeasor. 781 F. Supp. 3d at 1206-07. Because both	5
Dockery and Padilla applied the reasoning articulated in Ammons to preclude a	6
punitive 	damages 	award 	against 	an 	unknown 	tortfeasor, 	see 	Dockery, 	491	7
F. Supp. 3d at 988-89; Padilla, 781 F. Supp. 3d at 1210-13, our discussion will focus	8
on the analysis presented in Ammons.	9
{14} 	In Ammons, the district court applied Jaramillo’s reasoning to conclude that	10
punitive damages were unavailable against an unknown tortfeasor. Ammons, 431	11
F. Supp. 3d at 1296-98. The court arrived at this conclusion despite acknowledging	12
that “‘punitive damages are as much a part of the potential award under the uninsured	13
motorist statute as damages for bodily injury.’” Id. at 1297 (quoting Stinbrink, 1990-	14
NMSC-108, ¶ 5. This is because the district court found that under Jaramillo’s	15
reasoning, the purpose of punitive damages would not be achieved by allowing such	16
an award against an unknown tortfeasor. See Ammons, 431 F. Supp. 3d at 1296-97	17
(“‘Such additional damages are awarded for the limited purposes of punishment and	18
to deter others from the commission of like offenses.’” (quoting Jaramillo, 1994-	19
NMSC-018, ¶ 26)).	20

10
{15} 	The court in Ammons also determined that a punitive damages award would	1
not further the UM/UIM statute’s goal of “covering the gap in compensation caused	2
by 	an 	irresponsible 	tortfeasor 	who 	does 	not 	have 	legally 	mandated 	liability	3
insurance.” Id. at 1297. As the court noted, “‘The purpose of requiring an insurer to	4
provide UM coverage is to be sure that an injured insured is compensated for injuries	5
even when the tortfeasor is financially irresponsible.’” Id. at 1296 (emphasis added)	6
(quoting Jaramillo, 1994-NMSC-018, ¶ 24). And the “goal of punitive damages is	7
not compensation.” Id. at 1297 (citing Madrid v. Marquez, 2001-NMCA-087, ¶ 4,	8
131 N.M. 132, 33 P.3d 683). We find this analysis persuasive.	9
{16} 	In keeping with Jaramillo, we are convinced that the purpose of punitive	10
damages would not be fulfilled by allowing such an award against an unknown	11
tortfeasor in hit-and-run accidents. See Jaramillo, 1994-NMSC-018, ¶ 26. The	12
punishment an unknown tortfeasor might face is far too attenuated to hold otherwise.	13
We also doubt that any hit-and-run driver would be deterred from fleeing the scene	14
if an insurance company was responsible for paying punitive damages. See, e.g.,	15
Braley v. Berkshire Mut. Ins. Co., 440 A.2d 359, 363 (Me. 1982) (“[N]o deterrent	16
effect can be anticipated from an award of punitive damages against an insurance	17
company under an uninsured motorist provision.”). And although not dispositive,	18
allowing for punitive damages in a situation where the tortfeasor is unknown would	19

11
undoubtedly “dilute” the purpose of punitive damages because an insurer would be	1
unable to subrogate.5 See Jaramillo, 1994-NMSC-018, ¶ 24.	2
{17} 	Our holding is also guided by common sense. A contrary conclusion would	3
almost certainly result in increased litigation. Instead of incentivizing speedy	4
settlements on compensatory damages claims, individuals who suffer hit-and-run	5
injuries might be more likely to litigate their claims in hope of a punitive damages	6
award. Furthermore, determining a punitive damages award is often a fact-intensive	7
inquiry based on reason and justice. Our jury instructions state that the “amount of	8
punitive damages must be based on reason and justice taking into account all the	9
circumstances, including the nature and enormity of the wrong and such aggravating	10
and mitigating circumstances.” UJI 13-1827 NMRA. Additionally, the “property or	11
wealth of the defendant is a legitimate factor” to consider. Id. As a result, we	12
question the prudence or possibility of appropriately assessing reasonable and just	13
punitive damages against an unknown tortfeasor.	14
{18} 	To be clear, we sympathize with Appellee—and all the victims of hit-and-run	15
collisions—and acknowledge that important policy objectives might be furthered by	16
allowing an injured insured to recover punitive damages in such situations. Indeed,	17
5We also question what would happen in those cases where punitive damages
were awarded against an unknown tortfeasor that is later identified but has since
died. Under our case law, an insurer would undoubtedly be barred from recovering
these damages against the decedent’s estate.

12
there is great public benefit in incentivizing individuals who cause an accident to	1
remain at the scene, it is not at all clear that this policy would provide such an	2
incentive. And while awarding punitive damages in these situations would likely	3
provide additional incentive for insurers to locate the responsible driver, that is not	4
the purpose of punitive damages in New Mexico.	5
{19} 	As Appellee notes, the Legislature has already conferred a duty upon insurers	6
to investigate claims. Specifically, insurers must “adopt and implement reasonable	7
standards for the prompt investigation and processing of insureds’ claims.” NMSA	8
1978, § 59A-16-20(C) (1997, amended 2025). Appellee cites no authority to suggest	9
that an insurer must identify an unknown tortfeasor or face the threat of paying a	10
punitive damages award. Of course, insurers cannot avoid their statutory obligation	11
to reasonably and promptly investigate claims. See id. But appropriate remedies	12
already exist for such a violation. See, e.g., NMSA 1978, § 59A-16-30 (1990).	13
{20} 	Finally, we arrive at our conclusion that punitive damages are unavailable	14
against an unknown tortfeasor with full acknowledgment that the UM/UIM statute	15
is a remedial statute. 	See Progressive Nw. Ins. Co., 	2010-NMSC-050, ¶ 14.	16
Consequently, we interpret the UM/UIM statute liberally “to implement the purpose	17
of compensating those injured through no fault of their own,” and strictly construe	18
any 	exceptions. 	Kileen, 	2025-NMSC-038, 	¶ 12 	(emphasis 	added) 	(alteration,	19
internal quotation marks, and citation omitted). We are unpersuaded, however, that	20

13
a liberal interpretation of the statute directs us to a different conclusion. We are also	1
unpersuaded that our determination conflicts with the remedial nature of the statute.	2
{21} 	Our 	holding 	aligns 	with 	the 	UM/UIM 	statute’s 	remedial 	purpose 	to	3
compensate injured insureds when the tortfeasor is underinsured, uninsured, or	4
unknown 	because 	compensatory 	and 	punitive 	damages 	are 	distinct. 	Punitive	5
damages are intended to punish wrongdoers and deter others from engaging in	6
similar conduct. Jaramillo, 1994-NMSC-018, ¶ 26. They are not intended to	7
compensate an individual insured who suffers an injury. See Madrid, 2001-NMCA-	8
087, ¶ 4; see also Manzanares v. Allstate Ins. Co., 2006-NMCA-104, ¶ 10, 140 N.M.	9
227, 141 P.3d 1281 (noting that “while under our case law punitive damages are a	10
part of UIM coverage, we have also recognized that punitive damages generally	11
evoke less compelling concerns”); State ex rel. N.M. State Highway & Transp. Dep’t	12
v. Baca, 1995-NMSC-033, ¶ 22, 120 N.M. 1, 896 P.2d 1148 (“By their nature,	13
punitive 	damages 	confer 	a 	windfall 	upon 	an 	otherwise 	fully-compensated	14
plaintiff.”). Because neither punishment nor deterrence would be achieved by	15
making punitive damages available against an unknown tortfeasor, we do not believe	16
that a punitive award would protect the car-owning, insured public in a case such as	17
this. And, as we have noted, our conclusion is consistent with the heavy balance of	18
authority on this issue.	19

14
CONCLUSION	1
{22} 	For the foregoing reasons, we conclude that punitive damages, in a case such	2
as this, are unavailable against an unknown tortfeasor. As a result, Appellee may not	3
recover punitive damages from Progressive, his insurer, under his UM policy. We	4
therefore reverse the district court’s grant of Appellee’s motion for partial summary	5
as to Progressive’s punitive damages liability, and reverse the district court’s denial	6
of Progressive’s motion for summary judgment as to punitive damages liability. We	7
remand the case to the district court for further proceedings consistent with this	8
opinion.	9
{23} 	IT IS SO ORDERED.	10
____________________________________	11
JACQUELINE R. MEDINA, Chief Judge	12
I CONCUR:	13
___________________________	14
J. MILES HANISEE, Judge	15
JANE B. YOHALEM, Judge (dissenting).	16

15
YOHALEM, Judge (dissenting).	1
{24} 	I respectfully dissent from the majority’s conclusion that an insured motorist	2
is not entitled to recover punitive damages from their insurance company under the	3
UM/UIM statute when the tortfeasor is an unknown motorist. I believe that the	4
answer to the question before this Court about UM/UIM coverage for punitive	5
damages is controlled by the plain language of the UM/UIM statute and by existing	6
precedent in this Court and in our Supreme Court construing the UM/UIM statute. I	7
agree with the district court’s conclusion that under New Mexico’s UM/UIM statute,	8
Progressive owes “a contractual duty to pay damages that the insured is legally	9
entitled to recover against Defendant . . . Doe, including any award of punitive	10
damages that may be entered against Defendant . . . Doe.”	11
{25} 	The UM/UIM statute requires, in relevant part, that insurance coverage be	12
provided “for the protection of persons insured thereunder who are legally entitled	13
to recover damages from owners or operators of uninsured motor vehicles.” Section	14
66-5-301(A). The title of the UM/UIM statute is “Insurance against uninsured and	15
unknown motorists.” (Emphasis added.) The title of the statute has assisted both the	16
public and the courts, including the parties in this case, in uniformly construing the	17
statutory phrase “owners or operators of uninsured motor vehicles,” see id., as used	18
in the UM/UIM statute as a reference to both uninsured and unknown motorists. See	19
Lerma v. State, 2025-NMSC-033, ¶ 29, 578 P.3d 1111 (concluding that in discerning	20

16
legislative intent, “we must construe the parts of [a statute] harmoniously, including	1
the [statute’s] title . . . if [it is] necessary to its construction” (internal quotation	2
marks and citation omitted)).6 By discussing these two types of motorists together,	3
without any distinction between them in the statutory language, the plain language	4
of the UM/UIM statute suggests that our Legislature intended to treat uninsured and	5
unknown motorists identically. Finding no authority to the contrary, I begin by	6
assuming that the construction given the UM/UIM statute by our appellate courts is	7
intended to apply equally to uninsured and unknown motorists alike, absent some	8
compelling reason to treat them differently. See Sandoval v. Valdez, 1978-NMCA-	9
016, ¶ 16, 91 N.M. 705, 580 P.2d 131 (concluding that the Legislature’s intent is the	10
same whether the motorist is uninsured or unknown).	11
{26} 	This construction of the plain language of the UM/UIM statute informs my	12
reading of the precedent from our Supreme Court and from this Court relevant to an	13
insured’s entitlement to punitive damages under the UM/UIM statute. In Stewart,	14
our Supreme Court examined the language of the UM/UIM statute and held that “an	15
6 Although the UM/UIM statute was enacted before the effective date of
NMSA 1978, Section 12-2A-13 (1997), we note that reliance on the title of the
UM/UIM statute in its construction complies with that section, which states,
“Headings and titles may not be used in construing a statute or rule unless they are
contained in the enrolled and engrossed bill or rule as adopted.” House Bill 112, 33d
Leg., 2nd Reg. Sess., and Chapter 35, Section 325 of New Mexico Laws of 1978,
adopting that bill, include the title, “Insurance Against Uninsured and Unknown
Motorists.”

17
insured may recover punitive damages from [an] insurer if [they] would be legally	1
entitled to recover [punitive damages] from the uninsured tortfeasor.” 1986-NMSC-	2
073, ¶ 13. See § 66-5-301(A) (mandating insurance coverage for bodily injury or	3
destruction of property “for the protection of persons insured thereunder who are	4
legally entitled to recover damages from owners or operators of uninsured motor	5
vehicles”). In addition to relying on the plain language of the UM/UIM statute in	6
concluding 	that 	uninsured 	motorist 	coverage 	includes 	punitive 	damages, 	our	7
Supreme Court in Stewart relied on the legislative purpose, explaining that the	8
UM/UIM 	statute 	is 	intended 	“to 	protect 	the 	insured 	against 	the 	financially	9
unresponsible motorist, not to protect the insurance company.” 1986-NMSC-073,	10
¶ 9 (internal quotation marks and citation omitted); see Stinbrink, 1990-NMSC-108,	11
¶ 5 (“[P]unitive damages are as much a part of the potential award under the	12
uninsured motorist statute as damages for bodily injury.”).	13
{27} 	The controversy in this appeal focuses on Stewart’s holding that “under our	14
uninsured motorist law, an insured may recover punitive damages from [their]	15
insurer if [they] would be legally entitled to recover them from the uninsured	16
tortfeasor.” 1986-NMSC-073, ¶ 13 (emphasis added). Progressive argues that when	17
its insured is injured by an unknown motorist, rather than by an uninsured motorist,	18
the insured is not “legally entitled to recover [punitive damages]” from the unknown	19
tortfeasor. See id. Progressive claims that our Supreme Court’s holding in Stewart	20

18
as to an injury caused by an uninsured motorist is not controlling when the injury is	1
caused by an unknown motorist. Progressive’s argument turns on its contention that	2
an unknown tortfeasor is the same, under the law, as a deceased tortfeasor, pointing	3
to our Supreme Court’s holding in 	Jaramillo 	that punitive damages are not	4
recoverable under the UM/UIM statute from a deceased tortfeasor as the controlling	5
authority. See 1994-NMSC-018, ¶ 21. Progressive argues that an unknown tortfeasor	6
must be treated the same as a deceased tortfeasor for purposes of a punitive damages	7
award under the UM/UIM statute. According to Progressive, even when an insured	8
is entitled to punitive damages under tort law principles, if the tortfeasor is unknown,	9
punitive damages are not recoverable because their purpose—punishment and	10
deterrence—cannot be served. Progressive equates this policy argument with a lack	11
of a “legal entitlement” to punitive damages.	12
{28} 	In my view, the distinction argued by Progressive, and adopted by the	13
majority, between unknown motorists and uninsured motorists as to recovery of	14
punitive damages under the UM/UIM statute is not supported by analogizing an	15
unknown tortfeasor to a tortfeasor who dies prior to payment. Our Supreme Court’s	16
decision in Jaramillo and this Court’s decision in Maidment, which Jaramillo	17
approved, see 1994-NMSC-018, ¶ 26 (adopting Maidment), apply the principle	18
taken directly from the plain language of the UM/UIM statute that “an insured may	19
recover punitive damages . . . if [they] would be legally entitled to recover them from	20

19
the uninsured tortfeasor.” Jaramillo, 1994-NMSC-018, ¶ 23 (emphasis added)	1
(internal quotation marks and citation omitted). Maidment explains that the phrase	2
“legally entitled to recover damages” in the UM/UIM statute “requires that the	3
injured person prove the elements necessary to establish an action in negligence:	4
duty, breach, proximate cause, and loss or damages” that entitle them under the	5
common law of torts to recover either compensatory damages, or both compensatory	6
and punitive damages. 1988-NMCA-060, ¶ 19 (internal quotation marks omitted).	7
Where the conduct of the tortfeasor supports an award of punitive damages under	8
the common law, Jaramillo and Maidment agree that punitive damages are damages	9
that the insured is “legally entitled to recover” absent some other traditional common	10
law defense that would be available to the tortfeasor. See Maidment, 1988-NMCA-	11
060, ¶¶ 21-23, 25 (internal quotation marks and citation omitted).	12
{29} 	Jaramillo and Maidment both examine whether an injured motorist would be	13
“legally entitled to recover [punitive damages] from the uninsured tortfeasor” when	14
the tortfeasor is deceased. Maidment, 1988-NMCA-060, ¶ 7; Jaramillo, 1994-	15
NMSC-018, ¶ 23. They conclude that the death of the tortfeasor before payment of	16
the punitive damages is a common law defense to punitive damages. The common	17
law prohibits recovery of punitive damages from the estate of a deceased tortfeasor.	18
Maidment, 1988-NMCA-060, ¶ 7; Jaramillo, 1994-NMSC-018, ¶ 23. Because an	19
insured motorist cannot obtain damages from their insurer that they are not “legally	20

20
entitled to recover” from the uninsured tortfeasor, both courts hold that punitive	1
damages cannot be recovered when the uninsured motorist is deceased. Maidment,	2
1988-NMCA-060, ¶ 7; Jaramillo, 1994-NMSC-018, ¶ 23.	3
{30} 	Although both 	Jaramillo 	and 	Maidment 	discuss the policy behind the	4
common law rule that recovery cannot be had from the estate of a deceased	5
tortfeasor, noting that neither punishment nor deterrence are able to be achieved	6
when the tortfeasor is dead, the basis of both decisions is not the policy, but the	7
statutory language limiting recovery to damages that the insured is “legally entitled	8
to recover from owners or operators of uninsured motor vehicles because of bodily	9
injury, . . . and for injury to or destruction of property.” NMSA 1978, § 66-5-301(A).	10
{31} 	I am not persuaded by Progressive’s argument that an unknown motorist is	11
the same as a deceased motorist under the law. Nor am I persuaded by its policy	12
argument that allowing recovery from an unknown motorist would subvert the	13
purposes of punitive damages. Our Supreme Court rejected this policy argument in	14
Stewart as to uninsured motorists, holding that its decision did not subvert the policy	15
behind punitive damages because punitive damages were still the responsibility of	16
the uninsured motorist: the Court stated that it was merely shifting the burden of	17
recovering from the insured to the insurer.	18
{32} 	I do not find Progressive’s arguments that it is as impossible for an insurer to	19
recover in subrogation from an unknown motorist as it is to recover from a deceased	20

21
motorist, and that requiring an insurance company to pay punitive damages to its	1
insured under these circumstances subverts the policy of punishment and deterrence	2
served by punitive damages, persuasive. Our Supreme Court considered and rejected	3
these arguments in Stewart, noting (in the context of an uninsured motorist) that	4
because the insurance company could seek subrogation from the tortfeasor, the	5
Court’s holding “merely shifts the burden of filing suit against an uninsured	6
tortfeasor for the payment of punitive damages from the insured to the insurer.”	7
Stewart, 1986-NMSC-073, ¶ 14. I see no reason to assume a different legislative	8
intent concerning placing the burden on the insurance company of investigating a	9
hit-and-run injury, finding the motorist, and seeking subrogation. Merely hiding	10
one’s identity at the time of the tort does not have the finality of death.	11
{33} 	Finally, contrary to the majority, I do not see a danger of spiraling insurance	12
premiums from allowing recovery for punitive damages against both unknown and	13
uninsured motorists. Payment under an uninsured motorist policy cannot exceed the	14
policy limit set by the insurance contact. See id. ¶ 18 (“[T]he total amount of	15
damages for which [the insurer] can be held liable should not exceed the policy	16
limits.”). There is no statutory requirement to pay the insured the full amount of	17
compensatory damages incurred by the insured, let alone the full amount of punitive	18
damages awarded, if that amount exceeds the policy limits. The liability of the	19
insurance company is thus controlled by its contract.	20

22
{34} 	Though the majority ably presents a policy argument to the contrary, I believe	1
that the plain language of the UM/UIM statute and the decisions of our Supreme	2
Court construing that language require Progressive to pay the punitive damages its	3
insured is legally entitled to receive from the tortfeasor, despite the status of the	4
tortfeasor as an unknown motorist. The majority having concluded otherwise, I	5
respectfully dissent.	6
____________________________________	7
JANE B. YOHALEM, Judge, dissenting	8