The indemnity policy at offspring in this lawsuit appears in the record as Exhibit 6 to Defendant ‘s exhibits in support of its motion for summary judgment [ Doc. 237 ], and, with the accession of the declarations page, as exhibit A to Plaintiffs ‘ movement for fond summary judgment [ Doc. 8 ]. For comfort of reference, it will be cited just as the “ policy ” in this Memorandum Opinion and Order. The policy states that it does not cover “ loss for custom parts or equipment unless the being of those custom-made parts or equipment has been previously reported to us and an endorsement to the policy has been added. ” [ Policy, New Mexico Amendment at 2. ] Plaintiffs ‘ policy does not contain such an sanction, nor does it contain or refer to an policy application or other document reporting the universe of any custom parts or equipment. [ Doc. 237, Ex. 6 ; Doc. 8, Ex. A. ] The policy provides that the trace conditions apply to the physical damage coverage noted above. First, “ [ a ] s soon as potential after the loss, written detect must be given by or on behalf of the insure to us or our authorize agent submit : ( a ) the identity of the see ; ( bacillus ) a description of the car or preview ; ( degree centigrade ) the clock time, place and details of the personnel casualty ; and ( five hundred ) the names and addresses of any witnesses. ” Second, “ [ one ] north case of larceny, the cover must promptly notify the police. ” Third, the policy requires the insure to “ cooperate and assist ” the insurance company, if requested, “ in the investigation of the passing, ” “ in guarantee and giving testify, ” and “ by obtaining the attendance of witnesses. ” [ Policy, at 9. ] In addition, the general conditions at the goal of the policy submit that : “ The insured or any early person seeking coverage under this policy must submit to examination under oath by any other person named by us when and adenine often as we may require. ” Further, “ [ c ] overage is not provided to any person who knowingly conceals or misrepresents any fabric fact or circumstance refer to this indemnity. .. at the time the application is made, ” or “ at any time during the policy period, ” or “ in association with the presentation or settlement of a claim. ” [ Policy, at 15. ] The evidence of Plaintiffs ‘ submission with these conditions is as follows. On the good afternoon of May 13, 2004, an adjuster for Defendant named Robin Stevenson conducted a record interview of Plaintiff David Stephens. During that interview, Mr. Stephens identified himself, stated that he had been living in Gallup, New Mexico since December 1, 2003, and that he was employed by “ On Sat and Network Communications ” as an “ Installations Manager. ” [ Doc. 237, Ex. B to Stevenson Aff. ] Mr. Stephens besides provided a description of the 1994 Toyota Supra car that he was reporting as steal. He stated that the cable car was a turbo-charged “ GT model ” with a six-speed transmittance and approximately 66,650 miles on it that he purchased for $ 31,000 about three weeks earlier from a acquaintance named Christopher Chase. Mr. Stephens explained how he paid for the cable car as follows : “ I paid with my own money [ ; ] I had fifteen thousand I took out of an account in Texas and then another [ sixteen ] thousand fair out of personal money I have. ” Ms. Stevenson responded that : “ I will need proof of that, ” to which Mr. Stephens replied, “ O.K. That ‘s finely. ” [ Doc. 237, Ex. B to Stevenson Aff. ] As far justification for the price of the car, Mr. Stephens told Ms. Stevenson that : “ It ‘s a identical rare car. They do n’t make them anymore. ” He besides stated that : “ I have the upgrades that were done to the car over twenty dollar bill thousand and I do have receipts for that excessively. ” Ms. Stevenson then asked whether Mr. Stephens had informed Defendant of “ all this employment ” when he got coverage, and Mr. Stephens answered, “ No, I did n’t. ” [ Doc. 237, Ex. B to Stevenson Aff. ] During the consultation, Mr. Stephens besides provided the follow information about the time, place, and details of the loss. According to Mr. Stephens, the final prison term he saw the car was on Saturday, May 8, 2004, between 8:30 and 9:00 post meridiem, when the car was parked in a park draw west of the Marriott Hotel near the intersection of Louisiana Boulevard and Interstate 40 in Albuquerque, New Mexico. Mr. Stephens drove from Gallup to Albuquerque that day to visit some friends and “ take care of some personal stuff. ” According to Mr. Stephens, he arrived in Albuquerque “ around noon ” and went to a car workshop named “ Dyno Edge, ” to see if they could check his car to see “ how much horsepower it has. ” He did not have an appointment at the car shop, however, and they were unable to fit him in that day. After his inflict to the car denounce, Mr. Stephens stated that he went to the home of his acquaintance, Mr. Chase, from whom he had purchased the cable car a few weeks early. [ Doc. 237, Ex. B to Stevenson Aff. ] Mr. Stephens explained that his wife, Plaintiff Stacey Stephens, recently had a child, and that she drove in a divide fomite from Gallup to Albuquerque with the pamper late that day and met up with him at Mr. Chase ‘s house around 5 post meridiem After he and his wife visited at the Chase residence for about an hour and a half, they went to dinner at “ Rudy ‘s B.B.Q. ” in Albuquerque. After dinner, Mr. Stephens and his wife drove their offprint vehicles to the parking lot of the Marriott Hotel, where they had planned to check in and spend the nox. [ Doc. 237, Ex. B to Stevenson Aff. ] Upon arriving at the parking distribute, however, Mr. Stephens explained that his wife changed her mind about staying the night at the hotel and alternatively wanted to drive back to Gallup because “ she realized she ‘d forgotten a few things that the baby would need, ” namely “ baby wipes ” and some over-the-counter “ liquid acetaminophen for babies, ” both of which they “ credibly could of bought. .. at a memory. ” Mr. Stephens offered no explanation of why Plaintiffs did not just purchase the necessary items at a local anesthetic store rather of driving all the way back to Gallup, nor did he explain why they did not park the car at the home plate of their friend, Mr. Chase, rather of leaving it in the hotel parking lot for several days. [ Doc. 237, Ex. B to Stevenson Aff. ] In any event, Mr. Stephens stated that after his wife changed her mind about staying at the hotel, the couple drove back to Gallup with the baby in her car, leaving the 1994 Toyota Supra parked in the park bunch of the Marriott Hotel for several days. He did not tell anyone at the Marriott Hotel that he was leaving his car in the hotel park draw during that time period. He stated that his plan was to return to Albuquerque the surveil Wednesday to pick up his mother-in-law from the airport, and that he was going to retrieve the 1994 Toyota Supra from the Marriott parking fortune during that travel. According to Mr. Stephens, he returned to the Marriott park draw with his mother-in-law as planned on May 12, 2004, only to discover that the car was missing. He contacted hotel security to find out if the car had been towed. After being informed that it had not, he contacted the patrol and then notified Defendant of the loss. [ Doc. 237, Ex. B to Stevenson Dep. ] After obtaining this data from Mr. Stephens, Ms. Stevenson explained Defendant ‘s claims process to him as follows :
I will be sending out a theft questioneer [sic] that needs to be filled out along with a[n] affidavit of total loss that needs to be filled out completely and notarized.. .. I will request a copy of the police report also our special investigating unit will be in touch with you[;] they will give a face to face interview with you, your wife, Ms. Chase, and your mother-in-law.. .. And once we get all our information in and review everything then I will be in touch with you to let you know [inaudible].. .. Now this will be filed under your comprehensive coverage[;] under that coverage you have a thousand dollars deductible that will apply[;] you will be responsible for the first thousand and GEICO pays anything after that.. . .
[ Doc. 237, Ex. B to Stevenson Aff. ] Ms. Stevenson then sent Plaintiff Stacey Stephens a letter dated May 13, 2004, attaching the forms referenced in the dowry of the interview quoted above. Ms. Stevenson ‘s letter besides requested that in addition to completing these forms, Plaintiffs should include “ a copy of the placard of sale or front and second of your title, ” “ [ r ] ecent receipts for any upgrades or add ons to your car, ” and a “ copy of the police report. ” [ Doc. 237, Ex. C to Stevenson Aff. ] In his subsequent deposition testimony, Mr. Stephens admitted receiving Ms. Stevenson ‘s letter of May 13, 2005. He estimated that it took him “ about two months ” to compile information in reply to her letter and send it to her. [ Doc. 237, David Stephens Dep. at 86-87. ] According to the date tender imprinted on the completed questionnaire and affidavit, it appears that Defendant received these documents from Plaintiffs on or about June 11, 2005. [ Doc. 189, Ex. CC, DD ; Stevenson Dep. at 94-95. ] There remained other issues, such as determining whether the car had a salvage title, that were not resolved until after the date stamped on the larceny questionnaire. [ Doc. 11, Ex. 2, at 79-80 ; Ex. 6. ] On July 7, 2004, Ms. Stevenson ran a “ CCC Valuescope Claims Services Market Report, ” which gave a local commercialize rate of $ 17,000 for Plaintiffs ‘ 1994 Toyota Supra. After subtracting the $ 1,000 deductible indicated on the declarations page for Plaintiffs ‘ policy and adding taxes and title fees, Ms. Stevenson calculated $ 16,535 as the amount collectible to Plaintiffs under their policy. [ Doc. 237, Stevenson Aff. ¶ 7, Ex. D. ] On July 8, 2004, Ms. Stevenson offered Mr. Stephens this sum to settle Plaintiffs ‘ claim, and he declined her offer. [ Doc. 237, David Stephens Dep. at 92, Stevenson Dep. at 34 ; Doc. 202, Stevenson Dep. at 100 ; Doc. 205. ] Ms. Stevenson ‘s initial volunteer was based on the respect of a 1994 Toyota Supra with nameless mileage. [ Doc. 237, Ex. D to Stevenson Aff. ; Stevenson Dep. at 35. ] After farther discussion with Mr. Stephens about the car ‘s mileage, Ms. Stevenson ran another “ CCC Valuescope Claims Services Market Report ” reflecting mileage of 68,000, which gave a local grocery store rate of $ 20,831. [ Doc. 237, Stevenson Aff. ¶ 8, Ex. E ; Stevenson Dep. at 36 ; David Stephens Dep. at 92-93. ] After subtracting the $ 1,000 deductible and adding tax and style fees, Ms. Stevenson made a irregular offer in the sum of $ 20,480.93 on July 13, 2004. [ Doc. 237, Stephenson Aff. ¶ 8, Ex. E ; Stevenson Dep. at 36. ] Mr. Stephens did not accept the second offer. [ Doc. 237, Stevenson Dep. at 37 ; David Stephens Dep. at 93. ] The discussions between Mr. Stephens and Ms. Stevenson then turned to whether there was any more concrete information in the charge which could support a higher valuation, and Mr. Stephens referred Ms. Stevenson to the receipts for the after-market parts that had been added to the cable car. [ Doc. 237, Stevenson Dep. at 37. ] Upon reviewing the receipts which Defendant had gathered as of July 15, 2004, however, Ms. Stevenson noted that there was a discrepancy : some of the receipts were dated during a period when the car was reported stolen by the previous owner, Mr. Chase. [ Doc. 237, Stevenson Dep. at 37 ; Stevenson Aff. ¶¶ 9, 10, Ex. G, H ; Doc. 205, Stevenson Dep. at 14-15. ] The fact that the car had been reported stolen by Mr. Chase was documented on an “ ISO Report ” that Ms. Stevenson printed on July 15, 2004. [ Doc. 237, Stevenson Aff. ¶ 9, Ex. G. ] After noting this discrepancy between the receipts and the ISO report, Ms. Stevenson wrote a letter to Plaintiffs dated July 15, 2004, in which she stated that she was retracting the previous settlement offers in arrange to far investigate the larceny. [ Doc. 237, Stevenson Aff. ¶ 11, Ex. I. ] Plaintiffs received this letter. [ Doc. 237, David Stephens Dep. at 93. ] Defendant ‘s future significant footfall in the probe of Plaintiffs ‘ larceny claim was to attempt to schedule an examen under oath ( EUO ). This try was undertaken by Attorney David Rosales, whom Defendant had retained for this aim. [ Doc. 237, Rosales Aff. ¶ 2. ] Mr. Rosales sent a letter to Plaintiffs dated July 30, 2004, confirming that he had scheduled an examination under oath with them for August 16, 2004. Mr. Rosales ‘ letter of July 30, 2004, besides contained an across-the-board list of documents and early items ( such as the keys to the vehicle ) that he asked Plaintiffs to bring to their examination. In addition, the letter encouraged Plaintiffs to bring “ any other documents which you feel are relevant or significant to your claim, ” noting that : “ An examination under oath is your opportunity to put your best foot fore in presenting your claim to the insurance company. ” Plaintiffs besides were advised that they could, at their own expense, have rede present with them at the interrogation under oath. [ Doc. 237, Rosales Aff. ¶ 4 ; Ex. B. ] plaintiff David Stephens received Mr. Rosales ‘ letter and appeared at the examination under oath on August 16, 2004. Mr. Stephens did not bring any documents with him, and he besides forgot to bring the keys for the vehicle. [ Doc. 237, Ex. 3, at 10, David Stephens Dep. at 108-09 ; Doc. 11, Ex. 1, at 11-1. ] He did, however, answer some questions at the examination under oath on that date. For example, he explained that he owned respective vehicles and was making payments on loans with great balances totaling about $ 75,000. He was behind on some of these payments in the end year. [ Doc. 11, Ex. 1, at 35-37 ; see besides Doc. 237, Stacey Stephens Dep. at 13. ] Although Mr. Stephens stated that he was standing by the representations he made to Ms. Stevenson in the record interview on May 13, 2005 [ Doc. 237, Ex. 3, at 39 ], some of Mr. Stephens answers at the examination under curse on August 16, 2004, were not reproducible with information he previously provided. For example, he admitted that he had been collecting unemployment indemnity from June to December 2003, even though his car indemnity application dated September 12, 2003, stated that he was employed as an “ installations director ” during that menstruation. [ Doc. 237, Ex. 3, at 9 ; Ex. 1A to Garay Aff ; David Stephens Dep. at 23. ] In addition, Mr. Stephens admitted that he had no bank accounts in Texas in the by three years, even though his previous recorded affirmation to Ms. Stevenson was that $ 15,000 of the money he had paid for the car in April 2004 he “ took out of an account in Texas. ” [ Doc. 237, Ex. 3, at 29-30 ; Ex. B to Stevenson Aff ; David Stephens Dep. at 22-23, 29, 40. ] furthermore, Mr. Stephens contradicted his earlier argument that he had paid for the car himself, as indicated in the record interview on May 13, 2004. alternatively, he admitted at the interrogation under oath on August 16, 2004, that his brother, Jay Stephens, invested in the car with him by paying $ 15,000 of the purchase price. [ Doc. 11, Ex. 1, at 24-25. ] Mr. Stephens far explained that he kept relatively big amounts of cash on pass because he was in the march of buying and selling versatile automobiles. [ Doc. 11, Ex. 1, at 25-26, 35-38. ] Because Plaintiffs did not bring any documents or car keys to the interrogation under oath on August 16, 2004, Mr. Rosales decided to continue that examination until another date. [ Doc. 237, Ex. 3, at 39-42. ] Mr. Rosales then wrote another letter to Plaintiffs dated August 30, 2004, in which he reiterated his requests for the documents and early items listed in his previous letter of July 30, 2004, and repeated much of the advice contained in that previous letter. [ Doc. 237, Rosales Aff. ¶ 5, Ex. C. ] On September 14, 2004, while Mr. Rosales ‘ requests were still pending, Plaintiffs David Stephens and Stacey Stephens filed a civil legal action in state court asserting claims against Defendant for irreverence of New Mexico ‘s Unfair Claims Settlement Practices Act ( UCSPA ), transgress of an imply covenant of dependable faith and fair deal, and rupture of contract. [ Doc. 1. ] Plaintiffs ‘ rede besides sent a letter to Mr. Rosales on that date advising him that Plaintiffs were represented by advocate. [ Doc. 237, Rosales Aff. ¶ 6, Ex. D. ] Further symmetry ensued between the attorneys regarding the reschedule of Plaintiff David Stephens ‘ examen under oath and the production of the documents that Mr. Rosales had previously requested. [ Doc. 237, Rosales Aff. ¶ 7, Ex. E, F, G ; Doc. 189, Ex. HH. ] defendant later removed the action to the United States District Court for the District of New Mexico on October 14, 2004. [ Doc. 1. ] In this correspondence, Plaintiffs ‘ advocate besides requested a certify copy of the policy policy. [ Doc. 189, Ex. HH. ] Mr. Rosales acknowledged receipt of this request on September 20, 2004, and sent what he believed to be a certify copy of the correct policy on September 28, 2004. [ Doc. 205, Rosales Aff. ¶¶ 6, 7 ; Ex. C, D. ] It turned out that this policy contained an wrong cover page listing another of Defendant ‘s insureds alternatively of Plaintiffs. Plaintiffs ‘ rede inaugural informed Mr. Rosales of this fact and renewed his request for a imitate of the decline policy in a letter dated November 1, 2004. [ Doc. 205, Rosales Aff. ¶ 8 ; Ex. E. ] finally, the examen under curse was rescheduled for November 3, 2004, and Plaintiffs provided Defendant with the car key and some of the early documents previously requested in Mr. Rosales ‘ letters on that date. [ Rosales Aff. ¶¶ 10-11, Ex. H, I ; Doc. 11, Ex. 2, at 49-54. ] Although Plaintiffs did not produce any documentation to account for $ 16,000 of the $ 31,000 purchase price for the car, Mr. Stephens explained to Mr. Rosales how he came up with that total to purchase the car from Mr. Chase, and he listed in greater detail the aftermarket parts that were installed on the vehicle. [ Doc. 11, Ex. 2, at 60-61, 73-74. ] Mr. Stephens besides discussed a conversation he had with the former owner of the fomite, Mr. Chase, in which Mr. Chase had acknowledged reporting the fomite as stolen during the meter that Mr. Chase owned it. Mr. Stephens estimated that this conversation with Mr. Chase occurred around the time that he was attempting to resolve the question whether the cable car had a salvage title. [ Doc. 11, Ex. 2, at 80-82. ] The documents turned over to Mr. Rosales as a result of the examination under oath revealed extra information about Plaintiffs ‘ fiscal condition at the time the larceny was reported. Their bank instruction for the period ending May 13, 2004, had overdrafts. [ Doc. 237, Rosales Aff. ¶ 3, Ex. A. ] Ms. Stephens had a tax spleen filed against her that she was paying at the time the car larceny claim was submitted to Defendant. [ Doc. 237, Stacey Stephens Dep. at 13-14. ] After the interrogation under oath concluded, Mr. Rosales obtained the correct, certified original of Plaintiffs ‘ policy policy and sent it to Plaintiffs ‘ guidance in a letter dated November 17, 2004, which besides addressed a number of other concerns that Plaintiffs ‘ advocate had raised about the interrogation under curse. [ Doc. 205, Rosales Aff. ¶ 10 ; Ex. F ; Doc. 189, Ex. II. ] then, in a letter dated December 20, 2004, Mr. Rosales conveyed an offer to Plaintiffs ‘ guidance under which Defendant would agree to settle Plaintiffs ‘ car larceny claim for $ 31,000, an sum equivalent to what Mr. Stephens had claimed he paid for the vehicle when he purchased it from Mr. Chase. [ Doc. 205, Rosales Aff. ¶ 11 ; Doc. 11, Ex. 4. ] At the time Mr. Rosales conveyed this propose, Plaintiffs’ Motion for Partial Summary Judgment [ Doc. 8 ] was pending in this Court. In their reply abbreviated regarding that motion, which was filed on January 7, 2005, Plaintiffs asserted that the settlement offer conveyed by Mr. Rosales on December 20, 2004, constituted an admission of Defendant ‘s indebtedness, and that Defendant had breached the indemnity contract because Defendant had not so far paid the claim despite this admission. [ Doc. 12. ] The Court subsequently denied Plaintiffs ‘ motion in the Memorandum Opinion and Order [ Doc. No. 101 ] filed on May 20, 2005. At the time of that regnant, the requital of the $ 31,000 and counsels ‘ January 2005 letters concerning that payment were not part of the record presented to the Court. Plaintiffs ‘ reply brief did not inform the Court, however, that Plaintiffs ‘ guidance had written a letter to Mr. Rosales three days earlier on January 4, 2005, stating that Plaintiffs “ agree that $ 31,000 represents the fair market value at the time of the passing for their 1994 Toyota Supra. ” [ Doc. 237, Rosales Aff. ¶ 13, Ex. K. ] In a subsequent letter to Mr. Rosales dated January 10, 2005, Plaintiffs ‘ advocate clarified that : “ My clients do not consider the sum of $ 31,000 to be a `compromised liquidation ‘ of their claim with GEICO. ” alternatively Plaintiffs only agreed that “ the sum represents the fair market value of the vehicle at the time of the loss. What GEICO chooses to do with that information is up to GEICO and GEICO alone. ” [ Doc. 189, Ex. GG. ] Defendant subsequently issued a check to Plaintiffs ‘ guidance in the amount of $ 31,000 on January 20, 2005. [ Doc. 189, Ex. FF. ] As indicated in their guidance ‘s letter of January 10, 2005, Plaintiffs did not agree to dismiss their lawsuit in commute for this requital. rather, they elected to pursue extra compensatory damages in the measure of $ 11,127.70, which represented Plaintiffs ‘ lawyer fees and costs, plus $ 750,000 in punitive damages. [ Doc. 237, Ex. 15, at 12-13. ] A series of discovery disputes then ensued. finally, depositions were taken of Plaintiffs, the parties ‘ experts, and a number of Defendant ‘s employees involved in the auto-theft investigation and claims-handling process. For the most part, the testimony gleaned from these depositions just confirmed or added detail to the chronology of events described above. There were, however, some extra facts that appear in the criminal record for the first base fourth dimension in the excerpts of deposition transcripts and affidavits attached to the parties ‘ dispositive motions filed in August 2005. Both parties ‘ experts agreed with the basic proposal that the National Insurance Crime Bureau ( NICB ) is regarded in the indemnity diligence as a authentic source of information concern procedures for investigating policy imposter. [ Doc. 237, Partlow Dep. at 92-96 ; Zalma Aff. ¶ 3. ] The NICB has published a bulletin entitled “ Indicators of Vehicle Theft Fraud, ” which lists a number of “ crimson flags ” which indicate possible fraud and deservingness closer scrutiny of an car larceny claim. [ Doc. 237, Zalma Aff. ¶ 3, Ex. A. ] This tilt includes the following “ red flags, ” at least some of which were salute during the initial report and investigation of Plaintiffs ‘ car larceny claim from May 2004 to July 2004 :
[Insured] [h]as lived at current address less than six months.
[The vehicle] [w]as purchased for cash with no bill of sale or proof of ownership.
recently purchased new/old exemplary with no lien holder. . .. Is customized, classical and/or antique. . .. Purchase price was exceptionally high or broken. . .. Has larceny and/or salvage history. . ..
Is older model with exceptionally low mileage, i.e., odometer rollover or roll-back.
Is older or inexpensive model and insured indicates it was equipped with expensive accessories which cannot be substantiated with receipts.
Loss occurs within one month of issue or expiration of policy.
[ Doc. 237, Zalma Aff. ¶¶ 3-4, Ex. A ; Ex. B, G to Stevenson Dep. ] After withdrawing its initial offers and further investigating the claim from July 2004 until the $ 31,000 crack was made in December 2004, the come extra “ red flags ” listed on the NICB bulletin became apparent :
Have recent or current marital and/or financial problems.
. .. Income not compatible with value of guarantee vehicle. . ..
Is behind in loan payments on vehicle and/or financial obligations.
[ Doc. 237, Zalma Aff. ¶¶ 3-4 ; Ex. A ; Partlow Dep. at 97-113. ] An insured ‘s cancellation or delay in providing statements and/or examinations under oath is besides a “ red flag ” indicator according to the NICB bulletin. [ Doc. 237, Zalma Aff. ¶¶ 3-4, Ex. A. ] This “ crimson flag ” may have applied during the period between the initial examination under oath on August 16, 2004, and its reschedule on November 3, 2004, adenine well as the period attributable to Plaintiffs ‘ delays in completing their depositions during this litigation. [ Doc. 70, 71, 90, 105, 129, 137. ] When his deposition was ultimately taken on July 25, 2005, Mr. Stephens admitted that he has a anterior felony conviction arising from his burglary of several automobiles on May 10, 1993. His criminal history besides includes a probation misdemeanor and a guilty plea to a federal conspiracy blame relating to a serial of events that occurred while Mr. Stephens was working at a car franchise. According to Mr. Stephens ‘ guilty plea, he conspired with a group of car thieves by providing them with the keys and newspaper licenses to new vehicles at the car franchise, and then his co-conspirators used the keys and licenses to steal the vehicles from the franchise and transport them across state lines. [ David Stephens Dep. at 129-37. ] With its summary judgment gesticulate, Defendant included a copy of a judgment from a Texas state of matter motor hotel which was referenced at Mr. Stephens ‘ deposit and which far documents his criminal history. [ Doc. 237, Ex. 16. ] This public record regarding Mr. Stephens ‘ criminal history predates the car larceny claim at issue in this litigation. At his deposition on July 25, 2005, Mr. Stephens gave an extra or alternate reason why he and his spouse allegedly decided to leave the 1994 Toyota Supra in the hotel parking lot and drive back to Gallup rather of spending the night in Albuquerque. According to Mr. Stephens, a review of the cell telephone records that he provided to Mr. Rosales refreshed his remembrance that the bishop from his church in Gallup had called while he was having dinner in Albuquerque at 7:47 post meridiem on the even of May 8, 2004, and reminded him that he needed to supply the church with flowers the pursuit day, which was Mother ‘s Day. This predict allegedly prompted Mr. Stephens to return to Gallup that evening. [ Doc. 205, David Stephens Dep. at 74-77, with attached telephone record. ]
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But according to the call records and the deposition testimony of Mr. Stephens ‘ spouse, Stacey Stephens, it was she who called Mr. Stephens on his cell call at 7:47 post meridiem that evening when the copulate was allegedly eat dinner together. [ Doc. 205, Stacey Stephens Dep. at 26-27, and attached telephone record. ] To explain this discrepancy, Ms. Stephens stated that she had “ probably ” called Mr. Stephens when the couple first arrived at the restaurant and that “ I fair wanted to know where he was going to park. ” [ Doc. 205, Stacey Stephens Dep. at 27. ] Stacey Stephens ‘ mother, Joanne Lucas, was deposed on July 15, 2005, in order to determine whether she could corroborate Mr. Stephens ‘ fib that he first discovered the 1994 Toyota Supra after picking her up from the airport on May 12, 2004. At her deposition, Ms. Lucas could not recall anything about going to the Marriott Hotel in Albuquerque that good morning, nor could she recall any conversations or events relating to the 1994 Toyota Supra on that date. [ Doc. 237, Lucas Dep. at 23-24. ] Mr. Stephens ‘ telephone records for May 12, 2004, show that he first called the Albuquerque Police Department at 9:30 ante meridiem that morning. [ Doc. 237, Rosales Aff. ¶, Ex. M ; Leal Aff., Ex. 9. ] The time of this call is not consistent with Plaintiffs ‘ deposit testimony, which states that Mr. Stephens was picking up Ms. Lucas from the Albuquerque airport at roughly 9:30 ante meridiem that good morning, and that his first gear call to the Albuquerque police did not occur until a number of early events transpired, including taking Ms. Lucas to a book shop, filling the car he was driving with accelerator, looking for the 1994 Toyota Supra in the hotel parking bunch, and conversing with hotel staff. [ Doc. 237, David Stephens Dep. at 61-65 ; Stacey Stephens Dep. at 63-64. ] As of the date brief was completed on the parties ‘ compendious judgment motions [ Doc. 222, 224 ], Defendant had not yet deposed Christopher Chase, the person who allegedly sold the 1994 Toyota Supra to Mr. Stephens and with whom Mr. Stephens allegedly conversed about the larceny of this vehicle and the details of his policy title. Mr. Chase ‘s deposition apparently has been delayed because he is represented by advocate in other pending litigation. [ Doc. 227, 232, 240. ] specifically, state court records reflect that Mr. Chase is charged in a 32-count indictment with sexually assaulting several women while employed as an Albuquerque police officeholder, adenine well as tampering with evidence. See State v. Chase, No. D-202-CR-200301990 ( N.M. 2d Jud. Dist. Ct. indictment filed June 27, 2003 ). In addition, Mr. Chase is a defendant in respective civil actions in federal court in which he is accused of violating the civil rights of Albuquerque citizens during his former employment as a police officer. See Seeley v. Chase, No. CIV 04-0118 JC/LFG ( D.N.M. Feb. 16, 2005 ) ( $ 943,380.00 judgment in favor of a citizen whom Mr. Chase sexually assaulted in the back of his police car ) ; Edwell v. Chase, No. CIV 05-0019 MV/WDS ( D.N.M. complaint filed Jan. 10, 2005 ) ; Ham v. Chase, No. CIV 05-0034 JB/RHS ( D.N.M. complaint filed Jan. 12, 2005 ) ; Gallegos v. Chase, No. CIV 05-0043 BB/RHS ( D.N.M. ailment filed Jan. 13, 2005 ). The relevance, if any, of the pending charges filed against Mr. Chase in 2003 and the termination of his employment as an Albuquerque police policeman has even to be explored and is not considered in this Memorandum Opinion and Order. II. ANALYSIS A. Standard of Review Under Fed.R.Civ.P. 56 ( vitamin c ), the Court may enter drumhead sagacity when the apparent motion papers, affidavits, and early evidence submitted by the parties show that no genuine issue exists as to any material fact, and that the moving party is entitled to judgment as a matter of law. A “ genuine publish ” exists where the attest before the Court is of such a nature that a fair jury could return a verdict in privilege of the non-moving party as to that exit. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-52 ( 1986 ). A fact is “ fabric ” if it might affect the result of the encase. See idaho. at 248. When the movant is besides the party bearing the burden of opinion on the claim for which he or she is seeking summary judgment, the movant must show that the record as a wholly satisfies each all-important element of his or her case and negates any affirmative defenses in such a way that no rational trier of fact could find for the non-moving party. See 19 Solid Waste Dep’t Mechanics v. City of Albuquerque, 156 F.3d 1068, 1071 ( 10th Cir. 1998 ) ; Newell v. Oxford Mgmt., Inc., 912 F.2d 793, 795 ( 5th Cir. 1990 ) ; United Missouri Bank of Kansas City, N.A. v. Gagel, 815 F. Supp. 387, 391 ( D. Kan. 1993 ). But when the movant does not bear the load of proof as to the claim or defense at issue in the motion, then judgment is appropriate “ as a matter of law ” if the nonmoving party has failed to make an adequate show on an essential element of its case, as to which it has the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 ( 1986 ) ; Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 ( 10th Cir. 1998 ). In order to warrant retainer by the Court, the factual materials accompanying a gesture for drumhead judgment must be admissible or functional at test ( although they do not inevitably need to be presented in a form admissible at trial ). See Celotex, 477 U.S. at 324. “ To survive compendious opinion, `nonmovant ‘s affidavits must be based upon personal cognition and set away facts that would be admissible in evidence ; conclusory and self-serving affidavits are not sufficient. ‘ ” Murray v. City of Sapulpa, 45 F.3d 1417, 1422 ( 10th Cir. 1995 ) ( quoting Hall v. Bellmon, 935 F.2d 1106, 1111 ( 10th Cir. 1991 ) ). frankincense, “ [ h ] earsay testimony can not be considered ” in ruling on a summary-judgment apparent motion. Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541 ( 10th Cir. 1995 ) ; see besides Starr v. Pearle Vision, Inc., 54 F.3d 1548, 1555 ( 10th Cir. 1995 ) ( applying this rule to inadmissible hearsay testimony in depositions ). In accession, the Court may disregard an affidavit that contradicts the affiant ‘s own sworn deposit testimony if the Court finds that such an affidavit constitutes an attack to create a “ fake fact return. “ Burns v. Bd. of County Comm’rs., 330 F.3d 1275, 1282 ( 10th Cir. 2003 ) ; Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1223 n. 2 ( 10th Cir. 2000 ) ; Franks v. Nimmo, 796 F.2d 1230, 1237 ( 10th Cir. 1986 ). In this case, the parties have submitted exhibits and deposition testimony that contain hearsay and hearsay within rumor. In reviewing these materials to determine whether a party is entitled to compendious judgment, the Court does not consider statements that affiants or deponents attribute to others for the purpose of proving the accuracy of the matters asserted therein, except for admissions by a party opponent ( or agent thereof ) which the affiant or testifier witnessed. See Fed.R.Evid. 801 ( five hundred ) ( 2 ) ; Pastran v. K-Mart Corp., 210 F.3d 1201, 1203 n. 1 ( 10th Cir. 2000 ). The Court does, however, consider statements attributed to third parties for other admissible purposes. In especial, such statements may be considered for the restrict function of showing their effect on the hearer or the declarant ‘s state of mind. See Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419, 1434 ( 10th Cir. 1993 ) ( impression on the hearer ) ; Wright v. Southland Corp., 187 F.3d 1287, 1304 n. 21 ( 11th Cir. 1999 ) ( declarant ‘s state of take care ) ; Pastran, 210 F.3d at 1203 n. 1 ( like ). They besides may be considered as verbal acts or operative facts when legal consequences flow from the utterance of the statements. See by and large Echo Acceptance Corp. v. Household Retail Servs., Inc., 267 F.3d 1068, 1087 ( 10th Cir. 2001 ). apart from such limitations imposed by the Federal Rules of Evidence, it is not the Court ‘s function to weigh the evidence, assess the credibility of witnesses, or make factual findings in ruling on a gesture for compendious judgment. Rather, the court assumes the testify of the non-moving party to be true, resolves all doubts against the moving party, construes all attest in the light most friendly to the non-moving party, and draws all fair inferences in the non-moving party ‘s privilege. See Hunt v. Cromartie, 526 U.S. 541, 551-52 ( 1999 ). Both parties have filed summary-judgment motions in this case. Plaintiffs seek partial compendious judgment or, in the alternate, judgment on the pleadings with respect to Defendant ‘s affirmative defenses. [ Doc. 189. ] As previously noted in the Memorandum Opinion and Order [ Doc. 101 ] filed on May 20, 2005, it is generally an approving defensive structure under New Mexico police for an insurance company to assert that it is entitled to deny an indemnity claim in its entirety and refuse to pay any amount to the insured for a know loss on the grounds that the see has failed to comply with the terms and conditions of the indemnity policy. See, e.g., Foundation Reserve Ins. Co. v. Esquibel, 94 N.M. 132, 134, 607 P.2d 1150, 1152 ( 1980 ) ; Green v. General Accident Ins. Co. of Am., 106 N.M. 523, 525, 746 P.2d 152, 154 ( 1987 ). In other words, if defendant wishes to invoke the general conditions of the policy which allow them to wholly deny coverage based on fraud or falsification by the insure [ policy, at 15 ], then Defendant bears the burden of proving that such conditions apply. Under the current adjective position of this font, however, it is unnecessary for the Court to determine in the first example whether Defendant properly raised such affirmative defenses in its pleadings, or whether such affirmative defenses are sufficient to survive Plaintiffs ‘ motion for compendious sagacity or, in the alternative, opinion on the pleadings. The parties do not dispute that on January 20, 2005, Defendant tendered a requital to Plaintiffs ‘ rede in the total of $ 31,000, and Plaintiffs ‘ have admitted that this amount is equal to the fair market value of the 1994 Toyota Supra that is the capable of their car larceny claim. therefore, Defendant is not in the stead of denying the claim in its entirety based on the type of affirmative defense noted above. Rather, the question is whether Plaintiffs are entitled to extra damages above and beyond the $ 31,000 already paid. In order to withstand Defendant ‘s movement for drumhead judgment, it is Plaintiffs ‘ charge to present admissible evidence which would support a reasonable inference that they suffered such extra damages as a consequence of Defendant ‘s bad religion, rape of New Mexico policy jurisprudence, breach of the insurance contract, or breach of an incriminate covenant of good religion and carnival dealing. I conclude that Plaintiffs have not done therefore for the reasons set forth below. B. Plaintiffs’ Contract Claim New Mexico courts recognize the general rationale that “ the plaintiff in a contract legal action must prove his or her damages by a preponderance of the evidence in ordering to be entitled to compensation for them. ” Servants of the Paraclete, Inc. v. Great Am. Ins. Co., 866 F. Supp. 1560, 1578 ( D.N.M. 1994 ) ( citingMitchell v. Lovato, 97 N.M. 425, 427, 640 P.2d 925, 927 ( 1982 ), and Stevens v. Mitchell, 51 N.M. 411, 414, 186 P.2d 386, 389 ( 1947 ) ). “ The govern appears to be no different for insurance contracts than for other types of contracts. ” Id. at 1578-79 ( citing and quoting 19 Ronald A. Anderson Mark S. Rhodes, Couch Cyclopedia of Ins. Law § 79:367, at 318 ( 1983 ) ). The terminus ad quem of Defendant ‘s indebtedness on the policy at emergence here “ is the actual cash prize of the property at the time of the loss. ” [ policy at 9. ] Thus, for purposes of their breach-of-contract claim, Plaintiffs bear the charge of proving the actual cash value of the stolen car at the time of the personnel casualty. Because Plaintiffs admit the $ 31,000 requital that Defendant tendered on January 20, 2005, is peer to the actual cash respect of the property at the time of the loss, Defendant already has paid an measure equal to the limit of its liability on the policy. consequently, Plaintiffs can not meet their burden of proving damages for purposes of their compress claim, and Defendant is entitled to compendious judgment on this claim. C. Plaintiffs’ Bad-Faith Claim I note that the $ 31,000 payment does not account for the $ 1,000 deductible provided in the policy, nor does it reflect whether there are any taxes or championship fees to be added or subtracted. As Plaintiffs have not presented admissible testify that these factors would result in a net payment greater than the $ 31,000 already paid, Defendant is entitled to drumhead opinion on this claim. Defendant ‘s $ 31,000 payment to Plaintiffs does not end the matter because Plaintiffs did not agree to dismiss this lawsuit in exchange for this requital, and New Mexico courts have recognized that an insurance company ‘s claims-handling procedures may be undertaken in bad religion or in rape of statutory requirements even when the insurance company does not breach the contract by refusing to pay the full sum requested by the insured. See O’Neel v. USAA Ins. Co., 2002-NMCA-028, ¶¶ 7-11, 131 N.M. 630, 41 P.3d 356. In this regard, Plaintiffs contend that even if their car larceny claim was not denied in rape of the terms of the policy policy, Defendant caused an excessive delay in their reception of the $ 31,000 payment to which they were entitled under the policy. To support this contention, Plaintiffs allege that Defendant engaged in delay tactics such as “ lowballing ” Plaintiffs in negotiating settlement of their claim, relying on fabricated datum to determine the value of Plaintiffs ‘ steal vehicle, making excessive demands on Plaintiffs, and changing the party ‘s situation on the title without justification. Plaintiffs farther allege that this unnecessary delay breached the imply covenant of adept faith and average dealing implicit in in every policy contract. In response to these allegations, Defendant asserts that it was justified in delaying requital during the probe of Plaintiffs ‘ claim, and that its timely performance of the contract was frustrated by Plaintiffs ‘ failure to cooperate. To support this assertion, Defendant cites the general principle of New Mexico law that a party to a narrow can not recover damages if that party ‘s own act or failure to act prevented the other party from performing its obligations under the contract. See Gibbs v. Whelan, 56 N.M. 38, 41-42, 239 P.2d 727, 730 ( 1952 ) ; UJI 13-841 NMRA 2005. Defendant besides cites the principle that : “ The obligation to deal fairly and honestly rests evenly upon the insurance company and the insured. ” Am. Employers Ins. Co. v. Crawford, 87 N.M. 375, 379, 533 P.2d 1203, 1207 ( 1975 ). In accordance with these general principles, New Mexico courts have held that notice and charge of validation of personnel casualty with the insurance company is by and large a condition case law to an insurance company ‘s indebtedness under a abridge. See Zengerle v. Commonwealth Ins. Co., 63 N.M. 454, 455, 321 P.2d 636, 637 ( 1958 ). While such requirements can be waived, the insure bears the effect of proving a valid release. See id. at 455-56, 321 P.2d at 637 Plaintiffs attempt to counter this argument by citing the proposal that an insurance company can not rely on limitations or exclusions in an policy policy as a basis for denying coverage or liability when the insurance company has not provided the see with a copy of the policy ( or some other document that provides equivalent notice of the limit or exception at write out ). While Plaintiffs cite authority from other states to support this proposition, there are reported opinions from New Mexico courts suggesting that it applies in this state as well under principles of release and estoppel. See, e.g., Homestead Investments, Inc. v. Foundations Reserve Ins. Co., 83 N.M. 242, 245, 490 P.2d 959, 962 ( 1971 ) ; Willey v. United Mercantile Life Ins. Co., 1999-NMCA-137, ¶¶ 18-19, 128 N.M. 98, 990 P.2d 211. But cystic fibrosis. Young v. Seven Bar Flying Serv., Inc., 101 N.M. 545, 548, 685 P.2d 953, 956 ( 1984 ) ( noting that “ failure of an insurance company to provide an person with a transcript of an applicable indemnity policy will not, in every character, release the individual from the [ limitations or exclusions ]. .. in the policy ” ). These authorities are unavailing under the current carriage of this case, however, because Defendant has not denied Plaintiffs ‘ title on the footing of an undisclosed limitation or excommunication in the policy. Rather, Defendant paid Plaintiffs ‘ call for the vehicle ‘s insist measure of $ 31,000, and the remaining wonder is whether the delay in Plaintiffs ‘ acknowledge of this payment was caused by a miss of good-faith on the part of Defendant. In early words, even if Defendant ultimately did not deny coverage based on the assertion that Plaintiffs failed to cooperate or engaged in fraud or falsification, was it excessive for Defendant to delay payment on the claim while awaiting the results of its investigation or far cooperation from Plaintiffs ? To answer this interrogate, Plaintiffs do not cite a particular statutory or contractual prison term limit for investigating and paying an car larceny claim in New Mexico that would provide a date certain on which the call should have been paid, nor do they cite to any authority establishing the permissible scope of the information an insurance company may request when investigating or evaluating such a title. Rather, they appear to rely on the general standard of unreasonableness that New Mexico courts apply in policy bad-faith cases. See Sloan v. State Farm Mut. Auto. Ins. Co., 2004-NMSC-004, ¶¶ 18-19, 135 N.M. 106, 85 P.3d 230 ( recognizing a lawsuit of natural process for policy bad faith where a stay in requital is caused by excessive demeanor on the part of the insurance company ). To prove that Defendant ‘s delay in paying their title was unreasonable in this event, Plaintiffs trust in part on deposition testimony from Defendant ‘s adjusters to the effect that thirty days is by and large considered a fair time period of time for settling a normal, total-loss larceny claim. [ Doc. 202, Stevenson Dep. at 105, Shook Dep. at 23. ] This deposition testimony does not create a genuine issue of material fact concerning the unreasonableness of the stay because it is taken out of context. When Defendant ‘s adjusters estimated that 30 days would be considered a reasonable come of clock to settle a claim, they were not referring to Plaintiffs ‘ claim. Rather, they qualified their answers by stating that the total of time would depend on whether they were presented with a “ normal claim, ” [ Doc. 202, Stevenson Dep. at 105 ], i.e., “ an car larceny claim in general ” where “ everything comes back and everything looks houseclean and everything looks reasonably clear. ” [ Doc. 202, Shook Dep. at 23. ] The evidence of record does not provide any fair footing to support the decision that Plaintiffs ‘ claim was a convention claim in which everything comes back and everything looks clean and clear. rather, the lone reasonable conclusion that can be drawn from this tell is that there were several discrepancies or difficulties with Plaintiffs ‘ claim that warranted promote probe and evaluation. To begin with, Mr. Stephens admitted in his deposit testimony that it took him “ about two months ” to compile and send the basic information requested in Ms. Stevenson ‘s initial letter of May 13, 2004. [ Doc. 237, David Stephens Dep. at 86-87. ] According to the date cast imprinted on Plaintiffs ‘ larceny questionnaire and affidavit, it appears that Defendant received these two documents from Plaintiffs on or about June 11, 2005. [ Doc. 189, Ex. CC, DD ; Stevenson Dep. at 94-95. ] There remained other issues, such as determining whether the car had a salvage style, that were not resolved until after the go steady stamped on the larceny questionnaire. [ Doc. 11, Ex. 2, at 79-80 ; Ex. 6. ] Plaintiffs have not shown that the initial delay associated with gather this preliminary information ( which ran until approximately the center of July 2004 ) was unreasonable. Based on the preliminary information that Defendant initially had gathered from Plaintiff and other sources as of mid-july 2004, Plaintiffs ‘ claim presented respective “ red flags ” or indicators of potential insurance fraud. In particular, Ms. Stevenson noted the fact that some of the receipts for aftermarket equipment allegedly installed by the previous owner were dated during the meter period that the vehicle was reported as stolen by that previous owner. [ Doc. 237, Stevenson Dep. at 37 ; Stevenson Aff. ¶¶ 9, 10, Ex. G, H ; Doc. 205, Stevenson Dep. at 14-15. ] furthermore, the deposition testimony of both parties ‘ experts refers to an NICB issue entitled “ Indicators of Vehicle Theft Fraud, ” which lists a count of “ red flags ” applicable to Plaintiffs ‘ auto-theft claim that indicate potential imposter and deserve close examination. [ Doc. 237, Partlow Dep. at 92-103 ; Zalma Aff. ¶ 3, Ex. A. ] While such industry standards or customs codified in the NICB publication are “ `not conclusive, ‘ ” they may serve as “ `evidence of commodity or bad religion. ‘ ” Sloan, 2004-NMSC-004, ¶ 14, 135 N.M. 106, 85 P.3d 230 ( quoting Allsups Convenience Stores, Inc. v. North River Ins. Co., 1999-NMSC-006, ¶ 44, 127 N.M. 1, 976 P.2d 1, and citing NMUJI 13-1705 1998 ). To counter this evidence that the extra delay dating from mid-july 2004 was occasioned by Defendant ‘s indemnity fraud probe, and that such an probe was in accord with industry standards and customs, Plaintiffs distributor point to the preliminary report of their proposed expert witness, John W. Partlow, dated April 18, 2005. [ Doc. 202, Ex. H. ] Mr. Partlow ‘s preliminary report, however, does not create a actual consequence of material fact as to the unreasonableness of this extra period of check for the follow reasons. first, Mr. Partlow ‘s preliminary report appears to consist of unsworn statements. such unsworn statements by a party ‘s proposed technical “ `do not meet the requirements of Fed. Rule Civ. Proc. 56 ( einsteinium ) ‘ and can not be considered by a zone court in ruling on a compendious judgment motion. ” Carr v. Tatangelo, 338 F.3d 1259, 1273 n. 26 ( 11th Cir. 2003 ) ( quoting Adickes v. S.J. Kress Co., 398 U.S. 144, 158 n. 17 ( 1970 ) ) ; harmonize Fowle v. C C Cola, 868 F.2d 59, 67 ( 3d Cir. 1989 ) ; see Sofford v. Schindler Elevator Corp., 954 F. Supp. 1459, 1462-63 ( D. Colo. 1997 ) ( collecting cases ). second, Mr. Partlow ‘s preliminary report predates his deposition testimony of July 13, 2005, in which he admitted that the NICB is a authentic authority in the indemnity diligence and that several of the “ red flags ” listed in the NICB publication on “ Indicators of Vehicle Theft Fraud ” applied to the data Defendant had obtained regarding Plaintiffs ‘ claim. [ Doc. 237, Partlow Dep. at 89-113, 132-33, 142. ] Given that Mr. Partlow ‘s preliminary report expressly states that it is based on his “ review of the documents received to date ” and that he will “ update his opinions if necessary ” as “ discovery continues, ” the merely reasonable inference is that his subsequent deposition testimony supersedes his preliminary report to the extent there is any incompatibility between the two. Under these circumstances, the law does not permit Plaintiffs to use Mr. Partlow ‘s preliminary report card to create a “ assumed fact issue ” that contradicts his swear deposition testimony. Burns, 330 F.3d at 1282. even if Mr. Partlow ‘s preliminary composition were to be considered independently from his subsequent deposition testimony, I would conclude in the option that the opinions stated therein are inadmissible because they do not come cheeseparing to meeting the standards of dependability and relevance required under Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 ( 1999 ), and Daubert v. Merrell-Dow Pharm., Inc., 509 U.S. 579, 592-93 ( 1993 ). Rather than basing his opinions on any objective or peer-reviewed methodology or specific standards such as the NICB publication referenced above, Mr. Partlow ‘s preliminary report consists about wholly of his own generalized and subjective assessment of what the law requires and which witnesses he believes are more credible. It is not the character of an technical witness to usurp the jury ‘s undertaking of determining the credibility of witnesses or other evidence, see United States v. Adams, 271 F.3d 1236, 1245-46 ( 10th Cir. 2001 ), nor is it the role of an adept spectator to usurp the Court ‘s job of determining what the jurisprudence requires, see Specht v. Jensen, 853 F.2d 805, 807-09 ( 10th Cir. 1988 ). therefore, the opinions of a offer technical concerning issues of witness credibility or broad principles of law are of little or no relevance in determining whether a party is entitled to summary judgment. The opinions in Mr. Partlow ‘s preliminary report card besides fail to meet the dependability prong of the Daubert/Kumho test. “ Although it is not constantly a straightforward practice to disaggregate method acting and conclusion, when the conclusion simply does not follow from the data, a district woo is free to determine that an impermissible analytic gap exists between premises and termination. ” Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1233 ( 10th Cir. 2004 ) ( citing General Elec. Co. v. Joiner, 522 U.S. 136, 146 ( 1997 ) ). Such an analytic gap is show in Mr. Partlow ‘s preliminary report because it does not lay out the intercede steps in his intelligent that lead him to conclude the stay in payment was attributable to Defendant ‘s bad religion preferably than some early, legitimate component. In particular, the preliminary report does not identify any objective, peer-reviewed methodology or specific industry standards ( such as the NICB publication ) on which his opinions are based. Without such methodology or standards, there is no objective manner to test whether this check could be sanely attributed to other factors ( such as a legitimate motivation for an insurance-fraud probe, or a lack of cooperation by Plaintiffs ). This analytic opening is widened not lone by the preliminary nature of Mr. Partlow ‘s report, but besides by its incompleteness. For exercise, the report attached to Plaintiffs ‘ response brief does not include the list of the specific documents Mr. Partlow reviewed in reaching his preliminary opinions ( referenced in the composition as Exhibit “ B ” ). Without this number, it is not potential to determine whether Mr. Partlow reviewed the NICB standards noted above in preparing his preliminary report, and there is no explanation in the body of the report itself as to how these standards were discounted in reaching his opinions. For all of the above reasons, I conclude that Mr. Partlow ‘s preliminary report falls so abruptly of what is required of adept opinions under the Federal Rules of Evidence that it can not be used to create a actual consequence of substantial fact in response to Defendant ‘s summary-judgment motion. It follows that there is no admissible evidence in the record to support the conclusion that Defendant behaved unreasonably or in badly religion by deferring its decision about whether to pay Plaintiffs ‘ claim in mid-july 2004 pending completion of an insurance-fraud investigation or the collection of promote attest regarding the vehicle ‘s measure. The interview remains whether, at the adjacent stagecoach of its investigation, Defendant behaved unreasonably by requiring Mr. Stephens to submit to an examination under curse and to provide an across-the-board array of personal information at that examination. Although the parties do not cite New Mexico authorities that are directly on charge, the weight of authority from other jurisdictions firm supports the conclusion that an insure ‘s failure or stay in submitting relevant information to the insurance company in an examination under oath or by other means will preclude a claim that the insurance company did not comply with the time limits for fulfilling its obligations under an insurance policy.See generally 232 Broadway Corp. v. Calvert Ins. Co., 540 N.Y.S.2d 324, 325 ( App.Div. 1989 ) ( collecting New York cases ) ; Cal. Fair Plan Ass’n v. Superior Ct., 8 Cal. Rptr. 3d 746, 748-50 ( Ct.App. 2004 ) ( collecting California cases ) ; see, e.g., Suggs v. State Farm Fire and Cas. Co., 833 F.2d 883, 890-91 ( 10th Cir. 1987 ) ( interpreting New Mexico law ) ; Jacobson v. State Farm Mut. Auto. Ins. Co., 30 P.3d 949, 951-52 ( Idaho 2001 ) ( interpreting Idaho law ). Under these authorities,
The right to require the insured to submit to an examination under oath concerning all proper subjects of inquiry is reasonable as a matter of law. The contractual duty to pay policy proceeds did not arise until plaintiffs provided the information necessary to allow [insurer] to determine whether the accident. .. was covered under the terms of the policy.. .. There can be no `unreasonable delay’ until the insurer receives adequate information to process the claim and reach an agreement with the insureds.
Globe Indemnity Co. v. Superior Court, accord 14 Lee R. Russ Thomas F. Segalla, Couch on Insurance § 204:114 (3d ed. 2005) (“[T]here can be no unreasonable delay until after [the] insurer receives adequate information.”). 8 Cal.Rptr.2d 251, 255 (Ct.App. 1992);14 Lee R. Russ Thomas F. Segalla,§ 204:114 (3d ed. 2005) (“[T]here can be no unreasonable delay until after [the] insurer receives adequate information.”). The requirement that insureds collaborate with the insurance company ‘s probe in this manner is, of path, limited to situations where “ the insurance company ‘s requests for data ” are “ material to the circumstances giving emanation to indebtedness on its part. ” Tran v. State Farm Fire and Cas. Co., 961 P.2d 358, 363 ( Wash. 1998 ) ( citing Pilgrim v. State Farm Fire Cas. Ins. Co., 950 P.2d 479, 483 ( Wash. 1997 ) ) ; californium. O’Neel, 2002-NMCA-028, ¶¶ 9, 131 N.M. 630, 41 P.3d 356 ( concluding that a jury could have reasonably inferred that an insurance company acted in bad faith by asking “ excessive and unnecessarily invasive ” questions that did not relate to the property covered by the policy policy ). “ Information is corporeal when it `concerns a subject relevant and germane to the insurance company ‘s investigation as it was then proceeding ‘ at the time the question was made. ” Tran, 961 P.2d at 363 ( quoting Fine v. Bellefonte Underwriters Ins. Co., 725 F.2d 179, 183 ( 2d Cir. 1984 ) ). When, as here, the cover presents a claim that raises a total of “ red flags ” indicative of likely policy imposter under aim industry standards, then the guarantee ‘s fiscal records become relevant and substantial to the insurance company ‘s consideration of the title insofar as they provide a mechanism for confirming or dispelling the insurance company ‘s suspicions about whether the insured has a fiscal motif to submit a deceitful claim. See id. at 364 ; Rymsha v. Trust Ins. Co., 746 N.E.2d 561, 563-64 ( Mass.App.Ct. 2001 ) ( collecting cases ). fiscal records documenting the exact measure the insured pay to purchase the fomite in question besides are relevant to determining the vehicle ‘s value when, as here, the insured alleges that the vehicle is a rare or customized model which was purchased with cash concisely before it was stolen. Cf. Winters v. Transamerica Ins. Co., 194 F.3d 1321, 1999 WL 699835, at *4 -*5 ( 10th Cir. 1999 ) ( unpublished disposal affirming summary judgment on a New Mexico bad-faith claim where “ the coverage issues were unmanageable and debatable ” ). The insurance company ‘s actions in requesting such information do not become excessive or in bad faith just because at a late time the insurance company receives extra information dispelling its suspicions and pays the insured for the disputed value of the claim. See Suggs, 833 F.2d at 891. In this gaze, it bears repeating that the facts of this case are distinguishable from those in which an insurance company completely denies an insure ‘s title and refuses to pay any sum based on the assertion that the cover failed to cooperate, engaged in fraud or misrepresentation, or otherwise violated the terms of the policy during the probe of the claim. This case besides is distinct from those in which an insurance company refuses to pay a claim flush after the insured has promptly and well complied with the insurance company ‘s requests for information. here it is undisputed that Plaintiffs waited until November 3, 2004, to supply some of the most basic items that Mr. Rosales requested in his letter of July 30, 2004, such as the keys to the stolen vehicle which Mr. Stephens had in his possession. With obedience to the purchase price of the vehicle, the most that Plaintiffs always provided was software documentation of a wire transfer from Mr. Stephens ‘ brother in Texas in the amount of $ 16,000 and an oral explanation of how Mr. Stephens came up with the remaining $ 15,000 in cash that he allegedly paid to Mr. Chase. Plaintiffs claim that such information was unnecessary because Defendant could have already determined that the vehicle ‘s value was at least $ 31,000 from other sources available in mid-july 2004, such as an on-line avail called “ Auto Trader. ” Again there is an analytic col between Plaintiffs ‘ premise, i.e., the being of on-line markets such as “ Auto Trader, ” and the stopping point they wish to draw from this premise, i.e., that their 1994 Toyota Supra was worth $ 31,000 in May 2004. The printout from “ Auto Trader ” attached to Plaintiffs ‘ response brief only lists an “ advertise monetary value range ” of $ 18,000 to $ 35,000 for 1994 Toyota Supra models ; it does not contain any proof of the actual sell monetary value of such vehicles, nor does it contain any authentication or explanation as to the setting or cogency of the search result indicated on the printout. [ Doc. 202, Ex. G. ] The “ Auto Trader ” printout besides does not account for Defendant ‘s legitimate want to verify which finical aftermarket parts, if any, were installed on Plaintiffs ‘ vehicle — a matter of meaning refer given the discrepancy between the dates of the alleged receipts for such aftermarket parts and the dates when the vehicle was reported stolen by the previous owner. Plaintiffs contend that any deficiencies in the “ Auto Trader ” printout should be overlooked because Defendant besides did not base its initial offers on actual sales data for comparable vehicles. To support this competition, Plaintiffs trust on hearsay that Mr. Stephens attributed to an car salesperson at a franchise in Farmington to which Ms. Stevenson allegedly referred when making her initial offer of $ 16,000. According to Mr. Stephens ‘ deposition testimony, the salesperson denied always selling ( or offering to sell ) a 1994 Toyota Supra for this total, and this abnegation contradicted the information he received from Ms. Stevenson. [ Doc. 202, David Stephens Dep. at 119-21. ] The statements that Mr. Stephens attribute to the car salesperson in Farmington do not create a genuine issue of material fact because they are rumor and, as such, can not be considered in ruling on a summary-judgment movement. See Gross, 53 F.3d at 1541 ; Starr, 54 F.3d at 1555. To the extent that Plaintiffs challenge Defendant ‘s methodology for determining the prize of the steal 1994 Toyota Supra by other means, they besides have failed to present admissible tell in support of this challenge. Plaintiffs ‘ proposed expert witness, Mr. Partlow, admitted during his deposition testimony that he did not have any speciate feel in determining the market value of a vehicle and had not been retained to opine on the fair commercialize respect of Plaintiffs ‘ 1994 Toyota Supra. Rather, his opinion on this subject was merely based on “ the reports that I read. ” [ Doc. 237, Partlow Dep. at 114. ] Again, such an opinion does not come close to meeting the standards of reliance or relevance required for the entree of adept testimony under Fed.R.Evid. 702. Because Plaintiffs have failed to present admissible attest that a reasonable insurance company would have known by mid-july 2004 that their 1994 Toyota Supra was deserving $ 31,000, they have failed to meet their load of proving that Defendant acted unreasonably by requiring them to submit extra information after that date to substantiate their claim. And even if the rate of the vehicle could have been determined by that date, the undisputed facts and testify of record silent do not support a fair inference that Defendant acted unreasonably by deferring requital on this claim pending completion of an insurance-fraud investigation. For these reasons, Defendant is entitled to compendious judgment on Plaintiffs ‘ bad-faith call and their claim that Defendant violated an incriminate covenant of good religion and carnival deal. As Plaintiffs have failed to show the doorway floor of unreasonableness necessary to support an insurance bad-faith claim for compensatory damages in excess of the $ 31,000 they already received from Defendant, it follows that Plaintiffs besides fail to show the higher level of blameworthiness required to support an award of punitive damages. See Sloan, 2004-NMSC-004, ¶¶ 23-24, 135 N.M. 106, 85 P.3d 230. defendant is consequently entitled to summary judgment on Plaintiffs ‘ claim for punitive damages adenine well. D. Plaintiffs’ Statutory Claims I next change by reversal to Plaintiffs ‘ statutory claims under New Mexico ‘s Unfair Claims Settlement Practices Act ( UCSPA ), N.M. Stat. Ann. § 59A-16-20 ( Michie 2004 ). In order to plead and prove a viable claim under this legislative act, Plaintiffs must specifically identify which of its fifteen provisions Defendant is alleged to have violated. See Yumukoglu v. Provident Life Accident Ins. Co., 131 F. Supp. 2d 1215, 1228 ( D.N.M. 2001 ), aff ‘d 36 Fed. Appx. 378 ( 10th Cir. 2002 ) ( unpublished disposal ). Plaintiffs ‘ Complaint alleges that Defendant violated Subsections ( B ), ( C ), ( D ), ( E ), and ( G ) of the UCSPA, which prohibits insurers from ( 1 ) “ failing to acknowledge and act reasonably promptly upon communications with respect to claims from insureds arising under policies, ” ( 2 ) “ failing to adopt and implement reasonable standards for the prompt probe and action of insureds ‘ claims arising under policies, ” ( 3 ) “ failing to affirm or deny coverage of claims of insureds within a fair time after proof of loss requirements under the policy have been completed and submitted by the insure, ” ( 4 ) “ not attempting in commodity faith to effectuate immediate, fair and equitable settlements of an insured ‘s claims in which indebtedness has become reasonably clear, ” and ( 5 ) “ compelling insureds to institute litigation to recover amounts due under policy by offering substantially less than the amounts ultimately recovered in actions brought by such insureds when such insureds have made claims for amounts sanely exchangeable to amounts ultimately recovered. ” N.M. Stat. Ann. §§ 59A-16-20 ( B ), ( C ), ( D ), ( E ), ( G ). [ Doc. 1, Complaint at ¶ 22. ] In response to Defendant ‘s summary-judgment gesticulate, Plaintiffs besides claim that Defendant violated Subsection ( N ) of the UCSPA, which prohibits insurers from “ failing to promptly provide an guarantee a reasonable explanation of the basis relied on in the policy in relative to the facts or applicable law for denial of a claim or for the crack of a compromise liquidation. ” N.M. Stat. Ann. § 59A-16-20 ( N ). [ Doc. 202. ] To support these allegations, Plaintiffs cite the letter authored by Ms. Stevenson dated July 15, 2004, which states that : “ I have made two offers to settle the larceny call on your 1994 Toyota Supra Turbo Sport. .. and you refused both. We are retracting the offers at this prison term to further the investigation of said larceny. ” [ Doc. 237, Stevenson Aff. ¶ 1, Ex. I. ] Plaintiffs besides cite the letter authored by Mr. Rosales dated December 20, 2004, in which Defendant offered to settle Plaintiffs ‘ insurance call for $ 31,000.00. [ Doc. 237, Rosales Aff. ¶ 12, Ex. J. ] According to Plaintiffs, the letter of July 15, 2004, evinces a bankruptcy to affirm or deny coverage within a reasonable time as required under Subsection ( D ) of the UCSPA, and neither letter provides the reasonable explanation required under Subsection ( N ) of the legislative act. [ Doc. 202. ] Plaintiffs besides cite the time of this lawsuit as testify that Defendant compelled them to institute litigation to recover the come due to them under their policy, contrary to Subsection ( G ) of the UCSPA. I conclude that tied when the evidence of record is viewed in the light most favorable to Plaintiffs, their UCSPA claims fail for well the same reasons articulated above with respect to their bad-faith claims. The preliminary report of Plaintiffs ‘ proposed adept witness, Mr. Partlow, does not meet the dependability or relevance requirements for admissibility under Fed.R.Evid. 702 and is superseded in large contribution by Mr. Partlow ‘s deposit testimony. In accession, Plaintiffs ‘ interpretation of events is not supported by the evidence of read, and the few portions of the record that Plaintiffs do cite in support of their UCSPA claims are taken out of context. The record reflects that Ms. Stevenson informed Mr. Stephens of Defendant ‘s investigation during their initial recorded conversation on May 13, 2004. [ Doc. 237, Stevenson Aff. ¶¶ 3, 4, 5, Ex. B. ] then, after Ms. Stevenson sent her letter of July 15, 2004, explaining that Defendant ‘s offers were retracted to further that probe, Mr. Rosales sent another letter to Plaintiffs dated July 30, 2004, explaining in greater detail the oscilloscope and purpose of Defendant ‘s probe ( including the examination under oath ). In especial, Mr. Rosales explained that his letter was not intended “ as a defense or admission of liability or coverage ” and requested Plaintiffs ‘ “ wide cooperation so that the cogency and sum of [ their ] claims can be determined at the earliest potential date. ” [ Doc. 237, Rosales Aff. ¶ 4, Ex. B. ] Mr. Rosales ‘ subsequent letter of December 20, 2004, besides explained that he had undertaken, among other things, “ a recapitulation of Mr. Stephens ‘ examination under oath testimony and documentation recently submitted ” — information which Plaintiffs had not supplied at the time of the earlier settlement offers in July 2004. [ Doc. 237, Rosales Aff. ¶ 12, Ex. J. ] A rational jury could not ignore the portions of the record cited above and rely entirely on the stray remarks that Plaintiffs cite out of context in their reply brief in club to reach the conclusion that Defendant ‘s communications with Plaintiffs failed to provide a reasonable explanation for its actions, failed to affirm or deny coverage within a reasonable time, or violated other provisions of the UCSPA. In his deposition testimony and in his examination under curse, Mr. Stephens did not present evidence to dispute the accuracy of the information obtained or conveyed by Ms. Stevenson during the consultation conducted on May 13, 2004. [ Doc. 237, Ex. 3, at 39 ; David Stephens Dep. at 21-23, 83-84, 86. ] He besides acknowledged that he received Mr. Rosales ‘ letter of July 30, 2004. [ Doc. 237, Ex. 3, at 40-41 ; David Stephens Dep. at 107-09. ] Plaintiffs ‘ rede admits receiving Mr. Rosales ‘ subsequent letter of December 20, 2004. [ Doc. 12, citing Doc. 11, Ex. 4. ] The content of these letters and interviews speaks for itself with esteem to the degree of notice and explanation Defendant provided to Plaintiffs. The fact that Plaintiffs instituted litigation before Defendant paid them $ 31,000 besides does not support a fair inference that Defendant violated Subsection ( G ) of the UCSPA because this provision of the legislative act only applies to amounts “ ultimately recovered in actions brought by [ the ] insureds when such insureds have made claims for amounts sanely exchangeable to amounts ultimately recovered. ” N.M. Stat. Ann. § 59A-16-20 ( G ). The $ 31,000 in doubt was not “ ultimately recover ” in this lawsuit, as there is no judgment or colonization agreement requiring Defendant to pay this amount or prohibiting the ship’s company from continuing to investigate the validity or come of Plaintiffs ‘ claim after this payment was made. Plaintiffs ask the Court to construe Subsection ( G ) as imposing liability on an insurance company whenever an see commences litigation before the insurance company pays a claim, even when such litigation is commenced before the insurance company has received the information necessary to determine the cogency and sum of the claim. The New Mexico Supreme Court has not construed the codified so broadly. “ [ T ] he Insurance Code does not impose a duty to settle in all instances, nor does it require insurers to settle cases they reasonably believe to be without deservingness or overvalued. ” Hovet v. Allstate Ins. Co., 2004-NMSC-010, ¶ 29, 135 N.M. 397, 89 P.3d 69. “ any insurance company that objectively exercises good faith and reasonably attempts to settle its cases on a reasonable basis and in a timely manner need not fear liability under the Code. ” Id. In reaching these conclusions, the New Mexico Supreme Court noted that the provisions of the UCSPA cited above must be read in concurrence with other provisions of the Insurance Code that are intended to discourage frivolous litigation. See id. ( citing N.M. Stat. Ann. § 59A-16-30 ( Michie 2004 ) ). Applying the principle that “ all provisions of a [ statutory scheme ], together with other statutes in pari materia, must be read together to ascertain legislative intent, ” Roth v. Thompson, 113 N.M. 331, 334, 825 P.2d 1241, 1244 ( 1992 ), it follows that the requirements of the UCSPA besides must be read in conjunction with provisions of the Insurance Fraud Act ( IFA ), N.M. Stat. Ann. § 59A-16C-1 to -16 ( Michie 2004 ). The IFA provides immunity from civil indebtedness to persons furnishing information to “ the anti-fraud unit of an insurance company, ” N.M. Stat. Ann. § 59A-16C-7, and requires insurers to prepare and implement an “ anti-fraud design that is sanely calculated to detect, prosecute and prevent indemnity fraud, ” N.M. Stat. Ann. § 59A-16C-10. These requirements are based on legislative findings that the State must “ aggressively confront ” and “ stem ” the problem of indemnity fraud. N.M. Stat. Ann. § 59A-16C-2. The New Mexico Supreme Court has stated that it “ will not construe statutes to achieve an absurd resultant role or to defeat the mean object of the legislature. ” State v. Herrera, 86 N.M. 224, 226, 522 P.2d 76, 78 ( 1974 ). Such an absurd result would occur if the Court were to require insurers to choose between violating the IFA by foregoing aggressive efforts to combat insurance imposter, or violating the UCSPA by failing to immediately pay an insured who threatens litigation regarding a potentially deceitful claim. In ordering to efficaciously carry out the purposes of both statutes, the requirements for immediate payment of a claim under the USCPA must be compromising enough to accommodate an insurance company ‘s fact-finding duties under the IFA when, as here, the insurance company has objective information which gives rise to a fair suspicion of insurance fraud or overvaluation based on recognized industry standards. For these reasons, I conclude that Defendant besides is entitled to drumhead judgment on Plaintiffs ‘ statutory claims under the UCSPA. As Plaintiffs have not shown that Defendant acted unreasonably or that they were required to commence litigation in rate to receive the requital of $ 31,000 that Defendant offered in December 2004, it follows that Plaintiffs are not entitled to an award of lawyer fees under N.M. Stat. Ann. § 39-2-1 ( Michie 2004 ) or any provision of the Insurance Code. New Mexico ‘s fee-shifting codified “ is not aimed at holding out the threat of an award of lawyer ‘s fees any fourth dimension an insurance company challenges any issue ” regarding an objectively difficult or arguable claim. Amica Mut. Ins. Co. v. Maloney, 120 N.M. 523, 531, 903 P.2d 834, 842 ( 1995 ) ; accord Suggs, 833 F.2d at 893. In this case, the $ 31,000 requital did not result from a judgment or as region of a colony agreement, and this Memorandum Opinion and Order should not be construed as precluding Defendant from continuing its investigation of the validity or total of Plaintiffs ‘ claim after the date on which this payment was made. III. CONCLUSION For the predate reasons, Plaintiffs have not come ahead with admissible testify to support each necessity component of their claims, and consequently Defendant is entitled to drumhead judgment. Because Defendant is entitled to compendious judgment on these grounds entirely without reliance on any affirmative defenses, Plaintiffs ‘ apparent motion for fond summary judgment is denied as moot.
IT IS, THEREFORE, ORDERED that Defendant’s Motion for Summary Judgment [ Doc. No. 191 ] is GRANTED. IT IS FURTHER ORDERED that Plaintiffs ‘ Opposed Motion for Judgment on the Pleadings or, in the Alternative, for Summary Judgment on GEICO’s Affirmative Defenses and Memorandum in Support [ Doc. No. 189 ] is DENIED AS MOOT. IT IS FURTHER ORDERED that this carry through is DISMISSED WITH PREJUDICE as to all claims. IT IS FURTHER ORDERED that the PRETRIAL CONFERENCE set for TUESDAY, January 17, 2006, at 9:00 ante meridiem, the CALL OF THE CALENDAR set for THURSDAY, February 9, 2006, at 9:00 ante meridiem, and the JURY SELECTION/TRIAL fixed for TUESDAY, February 14, 2006, at 9:00 ante meridiem are hereby VACATED.