Arnold v. Farmers Insurance (760 F. Supp. 2d 1272, 2010)

MEMORANDUM OPINION AND ORDER

JAMES 0. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Plaintiffs’ Motion for Summary Judgment Declaring Uninsured Motorist Property Damage Coverage is Applicable to the Plaintiffs’ Losses, filed April 2, 2010 (Doc. 57); and (ii) the Defendants’ Opposition to Plaintiffs’ Summary Judgment & Cross-Motion for Summary Judgment, filed April 29, 2010 (Doc. 64)(“Cross-Mo-tion”). The Court held a hearing on August 17, 2010. The primary issues are: (i) whether the phrase “injury to or destruction of property” in the Uninsured Motorist Act, NMSA 1978, § 66-5-301 (“UMA”), requires coverage for loss-of-use of-property claims; (ii) whether, if the UMA requires coverage for loss-of-use claims, theft of property would constitute property damage; and (iii) whether, if the UMA requires coverage for loss-of-use claims, an insured can bring a loss-of-use claim without an accompanying claim for physical damage. The Court concludes that the phrase “injury to or destruction of property” in the UMA does not require coverage for loss of use, because the New Mexico Legislature’s omission of loss of use language in the UMA indicates that the Legislature intended the omission, and even though New Mexico courts liberally construe the UMA, the Court declines to disregard the statute’s plain language. The Court also believes, based on its review of New Mexico law and law from other jurisdictions, that even if the UMA requires coverage for loss of use, there is a strong argument that the UMA would not require coverage for theft or for loss-of-use damages without accompanying physical damage, but because the Court may make its determination on the statutory language itself, the Court need not decide this issue. Because the Court finds that the UMA does not require coverage for the Plaintiffs’ loss-of-use claims, the Court will grant summary judgment on the Plaintiffs’ claims. The Court therefore need not inquire into whether each Plaintiffs’ claims for loss of use arose from the ownership, maintenance, or use of a motor vehicle, and whether each Plaintiff is legally entitled to recover damages from the owners or operators of the uninsured motor vehicles.

FACTUAL BACKGROUND

The Plaintiffs are suing for the Defendants’ uninsured-motorist-property-damage benefits under their automobile insurance policies with Farmers Insurance Company of Arizona (“Farmers”) relating to stolen personal property. Plaintiffs’ insurance policies define uninsured motorist property damage as: “[D]amage to or destruction of [the insured’s] insured car including personal property contained in [the insured’s] insured car at the time of the accident. This does not include the loss of use of damaged or destroyed property.” Farmers Declarations at 7, filed April 29, 2010 (Doc. 64-10). Defense witnesses testified that, if there is damage or destruction to property that arises out of ownership, maintenance, or use—i.e., property damage—Farmers will pay for loss of use resulting from that property damage in certain circumstances. See, e.g., Deposition of Daniel J. O’Brien at 51:16-52:19 (taken February 24, 2010), filed April 29, 2010 (Doc. 64-13); Cross-Motion ¶ 42, at 8 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 14, at 5 (admitting this fact). The Plaintiffs’ auto insurance policies provided coverage for “theft” of their insured automobiles under the policies’ coverage provisions. Farmers Declarations at 10 (“We will pay for loss to your insured car caused by any accidental means except collision, ... Loss caused by missiles, falling objections, fire, theft or larceny ... is not deemed loss caused by collision.”). G. Wise previously submitted a theft claim for his insured automobile, and his insurer paid the theft claim. See Deposition of Shirley Wise at 32:18-33:10 (taken August 26, 2009), filed April 29, 2010 (Doc. 64-2). Each Plaintiff could have purchased separate coverage for their allegedly stolen property. See, e.g., Deposition of Gary Wise at 10:14-11:6 (taken August 27, 2009), filed April 29, 2010 (Doc. 64-1); Deposition of Sonny Jaramillo at 43:10-44:5 (taken August 25, 2009), filed April 29, 2010 (Doc. 64-8).

1. Undisputed Facts Relating to the Circumstances of J. Jaramillo’s Claim.

The Plaintiffs allege that, on or about February 6, 2005, a flat-bed trailer and a bobcat tractor that Plaintiff Jimmy Jaramillo’s father, Sonny Jaramillo, used in his landscaping business were stolen. See, e.g., Amended Class Action Complaint for Breach of Statutory, Common Law, and Contractual Duties ¶ 14, at 3, filed July 24, 2009 (Doc. 21)(“Amended Complaint”); Cross-Motion ¶ 21, at 6 (setting forth this fact); Plaintiffs Reply and Response ¶4, at 3 (admitting this fact). S. Jaramillo is not a plaintiff in this case. See, e.g., S. Jaramillo Depo. at 99:15-25; Doc. 21; Cross-Motion ¶ 23, at 6 (setting forth this fact); Plaintiffs’ Reply and Response ¶4, at 3 (admitting this fact). At the time of the alleged theft, both J. Jaramillo and S. Jaramillo had auto insurance policies with Farmers. See, e.g., S. Jaramillo Depo. at 43:22-44:5; Amended Complaint ¶ 16, at 3; Cross-Motion ¶ 22, at 6 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 4, at 3 (admitting this fact); Answer to Amended Complaint ¶¶ 16, 23, at 3^4, filed July 31, 2009 (Doc. 23)(“Answer”); Plaintiffs’ Memorandum in Support of Their Motion for Summary Judgment Regarding Coverage ¶ 16, at 5, filed April 2, 2010 (Doc. 58)(stating that, at the time of the theft, J. Jaramillo had a motor-vehicle insurance policy issued by Farmers, which included uninsured motorists property damage)(“Memorandum”); Cross-Motion at 9 (not controverting this fact).

S. Jaramillo’s landscaping business, called Sonny’s Trees, is a sole proprietorship and S. Jaramillo is the sole owner. See Deposition of Jimmy Jaramillo at 12:1— 13:23 (taken February 1, 2010), filed April 29, 2010 (Doc. 64-9). J. Jaramillo does not have an ownership or partnership interest in Sonny’s Trees; he has never invested money in Sonny’s business with the expectation of receiving a profit, and he has never received any investment income from Sonny’s Trees. See J. Jaramillo Depo. at 13:15-23, 14:10-21. The Federal Bureau of Investigation employs J. Jaramillo. See, e.g., J. Jaramillo Depo. at 15-16:2; Cross-Motion ¶ 25, at 6 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 4, at 3 (admitting this fact). Nevertheless, on occasion, J. Jaramillo helped S. Jaramillo with landscaping jobs. See, e.g., J. Jaramillo Depo. at 13:1-9; id. at 16:8-17:9; Cross-Motion ¶ 25, at 6 (setting forth this fact); Plaintiffs’ Reply and Response ¶4, at 3 (admitting this fact). S. Jaramillo would compensate J. Jaramillo for his labor like any day laborer. See, e.g., J. Jaramillo Depo. at 17:4-9; Cross-Motion ¶ 25, at 6 (setting forth this fact); Plaintiffs Reply and Response ¶ 4, at 3 (admitting this fact). After the FBI promoted J. Jaramillo in 2003, he rarely was able to assist S. Jaramillo on landscaping jobs. See, e.g., J. Jaramillo Depo. at 15:1-17; Cross-Motion ¶ 25, at 6 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 4, at 3 (admitting this fact).

J. Jaramillo bought the bobcat tractor under his name for use by Sonny’s Trees. See J. Jaramillo Depo. at 58:7-11; S. Jaramillo Depo. at 149:1-2. Sometimes J. Jaramillo assisted his father with the installment payments for the bobcat. See, e.g., J. Jaramillo Depo. at 22:21-24; Cross-Motion ¶ 28, at 7 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 4, at 3 (admitting this fact). J. Jaramillo’s payments were in the nature of gifts, and he never expected to be repaid for any of the payments. See, e.g., J. Jaramillo Depo. at 22:25-23:6; Cross-Motion ¶ 28, at 7 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 4, at 3 (admitting this fact). Had S. Jaramillo sold the bobcat, J. Jaramillo would not have expected to be reimbursed for any payments he made on the bobcat. See, e.g., J. Jaramillo Depo. at 23:4-11; Cross-Motion ¶ 28, at 7 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 4, at 3 (admitting this fact).

The bobcat used a universal key to operate. See, e.g., S. Jaramillo Depo. at 75:14-15; Cross-Motion ¶ 30, at 7 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 4, at 3 (admitting this fact). ‘You can go anywhere in town and the same Bobcat key will work on any [Bobcat].” S. Jaramillo Depo. at 75:15-16. See Cross-Motion ¶ 30, at 7 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 4, at 3 (admitting this fact).

On February 6, 2005, the bobcat, which was parked and secured on top of the trailer, which was hitched to S. Jaramillo’s pickup truck, was stolen from a parking lot at a local hotel where S. Jaramillo lived. See S. Jaramillo Depo. at 62:6-24. The trailer had to be disconnected from S. Jaramillo’s pickup truck and then connected to another truck before the theft could have taken place. See, e.g., id. at 62:6-24; Cross-Motion ¶ 34, at 7 (setting forth this fact); Plaintiffs’ Reply and Response at 3-4 (not controverting this fact). Neither J. Jaramillo nor S. Jaramillo witnessed the alleged theft; S. Jaramillo was out of town at the time. See, e.g., S. Jaramillo Depo. at 100:1-101:10; Cross-Motion ¶ 35, at 7 (setting forth this fact); Plaintiffs’ Reply and Response ¶4, at 3 (admitting this fact). The bobcat was eventually recovered from a field adjacent to a landscaping company. See, e.g., S. Jaramillo Depo. at 96:19-98:14; Cross-Motion ¶ 36, at 7 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 4, at 3 (admitting this fact). The bobcat was damaged. See, e.g., S. Jaramillo Depo. at 92:12-18, 96:19-98:14; Cross-Motion ¶ 36, at 7 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 4, at 3 (admitting this fact).

Improper use of the bobcat after it was stolen, not a motor vehicle, caused the damage to the bobcat. See, e.g., S. Jaramillo Depo. at 127:7-128:1; Cross-Motion ¶ 37, at 8 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 10, at 4 (admitting “that the physical damage to the Bobcat was not caused by a motor vehicle”). J. Jaramillo did not incur out-of-pocket expenses from the theft of the bobcat, but he suffered losses from the theft of the bobcat See J. Jaramillo Depo. at 29:12-22.

The bobcat was not insured separately with Farmers. See, e.g., S. Jaramillo Depo. at 43:22-44:5; Cross-Motion ¶ 39, at 8 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 4, at 3 (admitting this fact). Farmers offered to arbitrate whether theft or misuse caused the physical damage to the bobcat. See, e.g., Letter from Daniel O’Brien to Geoffrey Romero at 4 (dated December 5, 2005), filed April 2, 2010 (Doc. 58-5); Cross-Motion ¶ 40, at 8 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 12, at 5 (“Plaintiffs affirmatively state that Defendants offered to arbitrate whether or not the physical damage to the Jaramillo property was caused by use of a vehicle or misuse.”). Instead of arbitration, J. Jaramillo joined the other Plaintiffs in filing suit. See Amended Complaint.

2. Undisputed Facts Relating to the Circumstances of Arnold’s Claim.

Arnold owned an ATV—a four-wheel vehicle. See, e.g., Deposition of Howard Arnold at 26:18-22, 29:12-14 (taken August 26, 2009), filed April 2, 2010 (Doc. 58-6); Memorandum ¶ 19, at 5 (setting forth this fact); Cross-Motion at 9 (not controverting this fact). The Plaintiffs allege that, on December 5, 2005, Arnold’s ATV was stolen from the bed of his pickup truck. See, e.g., Amended Complaint ¶ 10, at 2; Cross-Motion ¶ 14, at 4 (setting forth this fact); Plaintiffs’ Reply and Response ¶3, at 3 (admitting this fact). At the time, Arnold had automobile and homeowner insurance policies with Farmers. See, e.g., Deposition of Howard Arnold at 18:25-19:3 (taken August 26, 2009), filed April 29, 2010 (Doc. 64-5); Cross-Motion ¶ 15, at 5 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 3, at 3 (admitting this fact). Arnold’s ATV was not separately insured with Farmers. See, e.g., Arnold Depo. at 23:1-25; Cross-Motion ¶ 20, at 5 (setting forth this fact); Plaintiffs’ Reply and Response ¶3, at 3 (admitting this fact). Arnold testified that his ATV was easier to hotwire than a car, and could be pushed or rolled. See, e.g., Arnold Depo. at 45:11-46:16; Cross-Motion ¶ 19, at 5 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 3, at 3 (admitting this fact).

On December 5, 2005, Arnold was transporting his ATV in the bed of his pickup truck as he returned from a hunting trip. See, e.g., Arnold Depo. at 46:20-47:18; Memorandum ¶ 20, at 5 (setting forth this fact); Cross-Motion at 9 (not controverting this fact). Arnold stopped at a local tavern and parked his truck in the parking lot. See, e.g., Arnold Depo. at 46:23 - 47:18; Memorandum ¶ 21, at 5 (setting forth this fact); Cross-Motion at 9 (not controverting this fact). While Arnold did not witness the alleged theft, two patrons who were in the tavern, Constantine Argyres and Robert Deal, witnessed portions of the theft on a television monitor that displayed video-footage from the tavern’s rotating security cameras. See, e.g., Deposition of Constantine Argyres at 15:8-24, 20:8-11 (taken September 22, 2010), filed April 29, 2010 (Doe. 64-6); Cross-Motion ¶ 16, at 5 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 3, at 3 (admitting this fact); Memorandum ¶ 22, at 5 (setting forth this fact); Cross-Motion at 9 (not controverting this fact). Neither witness saw the entire theft from start to finish, because the security camera rotated to a new angle in the middle of the theft. See, e.g., Deposition of Robert A. Deal at 11:20-12:17 (taken September 22, 2010), filed April 29, 2010 (Doc. 64-7); Cross-Motion ¶ 16, at 5 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 3, at 3 (admitting this fact).

Argyres testified that he saw a red pickup truck back up to Arnold’s pickup truck. See, e.g., Argyres Depo. at 21:4-25:24; Cross-Motion ¶ 17, at 5 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 3, at 3 (admitting this fact); Memorandum ¶¶ 22-23, at 5 (setting forth this fact); Cross-Motion at 9 (not controverting this fact). Argyres observed two people drop the tail gates for each truck and roll the ATV from Arnold’s pickup into the red pickup. See, e.g., Argyres Depo. at 25:24-26:24; Cross-Motion ¶ 17, at 5 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 3, at 3 (admitting this fact); Memorandum ¶¶ 22-23, at 5 (setting forth this fact); Cross-Motion at 9 (not controverting this fact). Argyres did not see what happened after that scene, nor does he know whether the driver of the red pickup was one of the two people he saw rolling the ATV or whether the person who backed up the pickup to Arnold’s truck was the same person who drove off with the ATV. See, e.g., Argyres Depo. at 24:2-15, 27:16-25; Cross-Motion ¶ 17, at 5 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 3, at 3 (admitting this fact).

Deal testified that he saw a man standing near Arnold’s pickup truck who looked out of place. See, e.g., Deal Depo. at 19:20-20:9; Cross-Motion ¶ 18, at 5 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 3, at 3 (admitting this fact). The video camera then cut away to another location and the next thing he saw was a red pickup truck driving away with Arnold’s ATV in the back. See, e.g., Deal Depo. at 20:8-21:17; Cross-Motion ¶ 18, at 5 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 3, at 3 (admitting this fact); Memorandum ¶ 24, at 6 (setting forth this fact); Cross-Motion at 9 (not controverting this fact). Deal did not see any of the occupants in the red pickup truck; he does not know how many people were in the red pickup truck, whether the driver was a man or a woman, whether the person he saw standing at the back of Arnold’s truck was the red pickup’s driver, or whether the red pickup’s driver was involved with the person he saw standing next to Arnold’s truck. See, e.g., Cross-Motion ¶ 18, at 5 (setting forth this fact); Plaintiffs’ Reply and Response ¶3, at 3 (admitting this fact). The identity of the operator of the motor vehicle who negligently or intentionally caused the loss of property to Arnold remains unknown, and the property has not been recovered. See, e.g., Memorandum ¶ 25, at 6 (setting forth this fact); Cross-Motion at 9 (not controverting this fact).

3. Undisputed Facts Relating to the Circumstances of G. Wise’s Claim.

G. Wise owned an all-terrain vehicle— an ATV. See Deposition of Gary Wise at 12:21-13:13 (taken August 27, 2009), filed April 2, 2010 (Doc. 58-1). On December 16, 2004, G. Wise’s ATV was stolen from his backyard. See, e.g., Amended Complaint ¶ 18, at 3; Cross-Motion ¶ 1, at 3 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 1, at 2 (admitting this fact). At the time, G. Wise had automobile and homeowner insurance policies with Farmers. See, e.g., S. Wise Depo. at 12:2— 14:1; Cross-Motion ¶ 2, at 3 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 1, at 2 (admitting this fact). G. Wise’s motor vehicle insurance policy with Farmers provided coverage for uninsured-motorist property damage. See Answer to Amended Complaint ¶¶ 21-23, at 3, filed July 31, 2008 (Doc. 23). His ATV was not separately insured with Farmers. See G. Wise Depo. at 10:14-11:6; Cross-Motion ¶ 3, at 3 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 1, at 2 (admitting this fact). G. Wise testified that a person could move the ATV without starting it if the person rolled, pushed, or hotwired the ATV. See G. Wise Depo. at 14:15-16:20; Cross-Motion ¶ 6, at 4 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 1, at 2 (admitting this fact).

On December 16, 2004, G. Wise’s ATV was parked on the rear porch of his home. See G. Wise Depo. at 18:4-6; Memorandum ¶ 2, at 3 (setting forth this fact); Cross-Motion at 9 (not controverting this fact). At approximately 7:00 a.m., G. Wise returned home from work. See G. Wise Depo. at 18:7-21:25; Memorandum ¶ 3, at 3 (setting forth this fact); Cross-Motion at 9 (not controverting this fact). G. Wise noticed that one of the gates in his backyard was open. See, e.g., G. Wise Depo. at 21:15-16; Cross-Motion ¶ 4, at 3 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 1, at 2 (admitting this fact). The gate opened directly onto a drive-way that led to the street. See G. Wise Depo. at 24:2-4; Cross-Motion ¶ 4, at 3 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 1, at 2 (admitting this fact). After G. Wise discovered that the gate was open, he noticed that his ATV was missing. See G. Wise Depo. at 21:16-17; Cross-Motion ¶ 4, at 3 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 1, at 2 (admitting this fact).

G. Wise noticed ATV tire tracks heading from the back patio to the open gate. See G. Wise Depo. at 15:20-23; id. at 25:9-27:18; Cross-Motion ¶ 5, at 3 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 1, at 2 (admitting this fact); Memorandum ¶ 4, at 3 (setting forth this fact); Cross-Motion at 9 (not controverting this fact). G. Wise also saw ATV tire tracks on the concrete driveway outside the gate and on the asphalt in the street for a short distance. See G. Wise Depo. at 27:19-28:23; Cross-Motion ¶ 5, at 3-4 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 1, at 2 (admitting this fact). G. Wise noticed another set of tire tracks in the blown sand on the street near his driveway and gate. See G. Wise Depo. at 30:1-31:22; Cross-Motion ¶ 7, at 4 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 1, at 2 (admitting this fact). G. Wise believed those tire tracks were left by a truck and a trailer. See G. Wise Depo. at 30:1-37:25; Cross-Motion ¶ 7, at 4 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 1, at 2 (admitting this fact); Memorandum ¶ 5, at 3 (setting forth this fact); Cross-Motion at 9 (not controverting this fact).

Although there were no witnesses to the theft, G. Wise believes that his ATV was stolen by one or more persons who jumped the wall of his backyard, opened the gate, pushed the ATV down the driveway, and loaded the ATV onto a vehicle towing a trailer. See G. Wise Depo. at 35:2-36:23; id. at 41:16-23; id. at 45:13-23; Cross-Motion ¶ 8, at 4 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 1, at 2 (admitting this fact). G. Wise reported the theft to the police, but the police report does not make reference to a vehicle or trailer being involved in the theft. See, e.g., State of New Mexico Uniform Incident Report (dated December 16, 2004), filed April 29, 2010 (Doc. 64-3); Cross-Motion ¶ 9, at 4 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 1, at 2 (admitting this fact). G. Wise’s theory of the theft is that a roofer noticed the ATV parked in his backyard and proceeded to steal it. See, e.g., G. Wise Depo. at 46:8-17; Cross-Motion ¶ 10, at 4 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 1, at 2 (admitting this fact). Other than this theory, G. Wise does not know how his ATV was stolen; he does not know how many people participated in the alleged theft, when the theft occurred, what the people looked like, or whether the driver of the vehicle participated in the theft. See G. Wise Depo. 41:20-20; id. at 68:13-11.

The police officer who responded to G. Wise’s telephone call about the theft testified that G. Wise did not know any details about the actual theft. See Deposition of Shawn Christopher Benavidez at 18:1— 21:22 (taken February 1, 2010), filed April 29, 2010 (Doc. 64^1); Cross-Motion ¶ 12, at 4 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 1, at 2 (admitting this fact). G. Wise’s ATV was never recovered. See G. Wise Depo. at 68:25-69:6; Cross-Motion ¶ 13, at 4 (setting forth this fact); Plaintiffs’ Reply and Response ¶ 1, at 2 (admitting this fact).

After the theft, G. Wise submitted a claim for damages under the uninsured motorist property damage provisions of his policy. See Answer to Amended Complaint ¶ 21, at 3. Farmers denied coverage. See Letter from Karen Ginsberg to Geoffrey Romero at 1 (dated September 6, 2006), filed April 2, 2010 (Doc. 58-2)(“Let-ter Regarding G. Wise’s Claim”); Memorandum ¶ 10, at 4 (setting forth this fact); Cross-Motion at 9 (not controverting this fact). One of the bases for Farmer’s denial of coverage was that the tortfeasors’ conduct was intentional. See, e.g., Letter Regarding G. Wise’s Claim at 3; Memorandum ¶ 27, at 6 (setting forth this fact); Cross-Motion at 9 (not controverting this fact).

PROCEDURAL BACKGROUND

On February 5, 2009, Arnold, J. Jaramillo, and G. Wise filed a Complaint for themselves and all others similarly situated in the Second Judicial District of New Mexico, alleging breach of statutory, common-law, and contractual duties. See Class Action Complaint for Breach of Statutory, Common Law, and Contractual Duties, filed April 2, 2009 (Doc. 1-2). The Defendants removed the action, alleging that the Court had original jurisdiction under 28 U.S.C. § 1332(a) and (d), because there is complete diversity of citizenship and the matter is a class action in which the amount in controversy exceeds $5,000,000.00. See Notice of Removal at 1, filed April 2, 2009 (Doc. 1).

The Plaintiffs now move the Court for entry of summary judgment declaring that the uninsured-motorist property-damage coverage of the Plaintiffs’ policies was in effect for the property damage losses of which they complained. See Motion for Summary Judgment Declaring Uninsured Motorist Property Damage Coverage is Applicable to the Plaintiffs’ Losses, filed April 2, 2010 (Doe. 57). The Plaintiffs submitted a memorandum in support of their motion. See Plaintiffs’ Memorandum in Support of Their Motion for Summary Judgment Regarding Coverage, filed April 2, 2010 (Doc. 58)(“Memorandum”). The Plaintiffs argue that two questions are at issue in their motion: (i) whether the UMA requires an insurance carrier to provide coverage for loss of or damage to property, including loss of use, that an unknown motorist using a motor vehicle to commit a theft causes; and (ii) whether, if the UMA requires coverage of the Plaintiffs’ claims, Farmers improperly denied Plaintiffs’ claims for uninsured motorist property damage benefits. See Memorandum at 2. The Plaintiffs argue that the UMA requires coverage of their claims for loss of property, because New Mexico courts liberally interpret the UMA, and because similar statutes include loss of use as a damage. See Memorandum at 11-15.

The Defendants oppose the Plaintiffs’ motion for summary judgment, and filed a cross-motion for summary judgment. See Opposition to Plaintiffs’ Summary Judgment Motion & Cross-Motion for Summary Judgment, filed April 29, 2010 (Doc. 64). The Defendants recognize that, as a threshold matter, the Plaintiffs must demonstrate that the UMA requires auto insurers to pay uninsured motorist property damage for theft of personal property. See Cross-Motion at 1. The Defendants contend that the UMA’s plain language says nothing about loss of property, loss of use, or theft; instead, it provides coverage only for destruction of property. See Cross-Motion at 2. The Defendants thus ask the Court to deny the Plaintiffs’ summary judgment motion, and to grant them motion for summary judgment on Arnold’s and G. Wise’s claims. See Cross-Motion at 18. The Defendants further argue that the Court should grant summary judgment on J. Jaramillo’s claims, because he has no insurable interest, did not suffer damages, and lacks standing. See Cross-Motion at 18. The Defendants also argue that, assuming the UMA covers theft, all the Plaintiffs’ claims fail as a matter of law, because they cannot prove the required elements of uninsured-motorist property-damage coverage. See Cross-Motion at 2. The Defendants contend that none of the Plaintiffs can prove that their particular theft arose out of the ownership, maintenance, or use of a motor vehicle, or that owners or operators of uninsured motor vehicles from whom each Plaintiff is legally entitled to recover damages caused the theft. See Cross-Motion at 3. The Defendants contend that, at a minimum, these elements of proof involve disputed fact issues and inferences that defeat the Plaintiffs’ motion and require three separate trials. See Cross-Motion at 3.

In the Plaintiffs’ Reply and Response, the Plaintiffs contend that J. Jaramillo has standing. See Plaintiffs’ Reply and Response at 20. The Plaintiffs also contend that:

Of the five grounds previously relied upon by Farmers to deny coverage, Defendants now abandon all but one. In doing so, Farmers apparently concedes that four of the five reasons it relied in denying coverage to Plaintiffs were unfounded, unreasonable, and in violation of public policy. In an effort to distance themselves from these wrongful denials of coverage, Defendants now contend that the same are moot. They are moot only in so far as Defendants no longer relies upon these basis [sic] for denial of coverage.

See Plaintiffs’ Reply and Response at 34. The Plaintiffs argue that their damages arose out of the ownership, maintenance, or use of a motor vehicle. See Plaintiffs Reply and Response at 24. In the Plaintiffs’ response to the Defendants’ asserted undisputed facts, J. Jaramillo admits that the physical damage to the bobcat was not caused by a motor vehicle, and withdraws his claim relating to the trailer. See Plaintiffs’ Reply and Response at ¶ 10, at 4.

In their Reply, the Defendants stated:

One clarification relates to Plaintiffs’ assertion that we somehow conceded that the bases Farmers Arizona gave during the claims process for not paying Plaintiffs’ claims were “unfounded, unreasonable, and in violation of public policy.” (Dkt. #76 at 34) We did not. There was (and is) no reason for us to debate Farmers Arizona’s bases for not paying Plaintiffs’ pre-litigation claims because the cross motions are about coverage. Whether coverage exists is a present-tense issue and requires an analysis of the scope of the UMA, or alternatively the facts of each theft, without regard to the specific positions either side took during the claims handling process.

Reply at 18 n. 6. The Defendants allege that, because J. Jaramillo has withdrawn his claim for the trailer and his claim for physical damage to the bobcat, all of the Plaintiffs now assert only loss-of-use claims, and the Court should dismiss all the Plaintiffs’ claims if it finds that the UMA does not provide coverage for loss of use. See Reply at 14. The Defendants also argue that, if the Court finds that the UMA covers loss of use, the Defendants are entitled to summary judgment, because J. Jaramillo lacks standing and does not have an insurable interest, and because the thefts of the Plaintiffs’ property did not arise out of the ownership, maintenance or use of a motor vehicle. See Reply at 14-17.

At the hearing, the Court asked Geoffrey Romero, the Plaintiffs’ counsel, whether he was arguing that Farmers’ policy was broader than what the UMA requires. See Tr. at 26:18-20 (Court). Mr. Romero stated that he was not. See id. at 26:22-25 (Romero). The Court asked whether it should deal with the intricacies of Farmers’ policy or whether it should decide only what the UMA requires. See Tr. at 27:8-11 (Court). Mr. Romero stated that he believes the Court should decide what the UMA requires. See Tr. at 27:12-15. Emily Cates, the Defendants’ counsel, stated that the Court should focus on what the statute requires, not on the Farmers’ policy, because the Defendants’ position is that the UMA does not afford coverage. See Tr. at 34:1-7 (Court, Cates). Ms. Cates stated that Farmers’ policy is irrelevant for purposes of determination of the cross motions. See Tr. at 34:18-19. The Court also asked Mr. Romero about the Defendants’ position that J. Jaramillo withdrew his property claim. See Tr. at 40:15-19 (Court). Mr. Romero stated that J. Jaramillo withdrew his claim relating to the trailer. See Tr. at 41:2-19 (Romero). Mr. Romero did not discuss J. Jaramillo’s claim for physical damage to the bobcat, but in the pleadings, J. Jaramillo admitted that a motor vehicle did not cause the physical damage to the bobcat. It therefore appears that J. Jaramillo alleges only a claim for loss of use of the bobcat.

RELEVANT LAW REGARDING THE UMA

The UMA states:

A. No motor vehicle or automobile liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person and for injury to or destruction of property of others arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in New Mexico with respect to any motor vehicle registered or principally garaged in New Mexico unless coverage is provided therein or supplemental thereto in minimum limits for bodily injury or death and for injury to or destruction of property as set forth in Section 66-5-215 NMSA 1978 and such higher limits as may be desired by the insured, but up to the limits of liability specified in bodily injury and property damage liability provisions of the insured’s policy, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, and for injury to or destruction of property resulting therefrom, according to the rules and regulations promulgated by, and under provisions filed with and approved by, the superintendent of insurance.

NMSA 1978, § 66-5-301A (emphasis added). This statute “embodies a public policy of New Mexico to make uninsured motorist coverage a part of every automobile liability insurance policy issued in this state, with certain limited exceptions.” Romero v. Dairyland Ins. Co., 111 N.M. 154, 156, 803 P.2d 243, 245 (1990).

The purpose of compulsory uninsured motorist insurance is

to protect persons injured in automobile accidents from losses which, because of the tortfeasor’s lack of liability coverage, would otherwise go uncompensated. In other words, the legislative purpose in creating compulsory uninsured motorist coverage was to place the injured policyholder in the same position, with regard to the recovery of damages, that he would have been in if the tortfeasor had possessed liability insurance.

Chavez v. State Farm Mut. Auto. Ins. Co., 87 N.M. 327, 329, 533 P.2d 100, 102 (1975) (internal quotation marks and citations omitted). See Romero v. Dairyland Ins. Co., 111 N.M. at 156, 803 P.2d at 245 (citations omitted)(stating that the purpose of the statute is “to expand insurance coverage and to protect individual members of the public against the hazard of culpable uninsured motorists”). New Mexico courts interpret the UMA liberally to implement its remedial purpose; therefore, any provision that allows for “an exception to uninsured coverage is strictly construed to protect the insured.” Phoenix Indem. Ins. Co. v. Pulis, 129 N.M. 395, 398, 9 P.3d 639, 642 (2000) (citation omitted).

New Mexico case law dictates that “the only limitations on protection are those specifically set out in the statute itself: that the insured be legally entitled to recover damages and that the negligent driver be uninsured.” State Farm Mutual Auto. Ins. Co. v. Luebbers, 138 N.M. 289, 295, 119 P.3d 169, 175 (Ct.App.2005) (citation omitted). “Only where the exclusions can be construed to be within the legislature’s intent, ... or where a claim is not completely precluded and the limit simply implicates policy limits ... will an exclusion on uninsured motorist coverage be considered valid.” 138 N.M. at 295-96, 119 P.3d at 174-75. New Mexico courts have invalidated policy provisions that exclude all government-owned vehicles from the definition of an uninsured motor vehicle and that exclude coverage when the insured was, at the time of the injury, occupying an uninsured motor vehicle, because reading the UMA to permit these exclusions would create the impermissible gap in coverage that the Legislature sought to avoid. See Boradiansky v. State Farm Mutual Auto. Ins. Co., 141 N.M. 387, 388, 156 P.3d 25, 26 (N.M.2007); Chavez v. State Farm Mut. Auto. Ins. Co., 87 N.M. 327, 328-29, 533 P.2d 100, 101-02 (N.M.1975). In Boradiansky v. State Farm Mutual Auto Ins. Co., the Supreme Court of New Mexico stated:

[I]t is not the intent of the statute to limit coverage for an insured to a particular location or a particular vehicle. The main focus behind the Uninsured Motorist Act was to allow for coverage to be provided for innocent motorists injured through the fault of uninsured or underinsured motorists in New Mexico. It seems counterintuitive to suggest that the Legislature intended to create a gap in coverage by permitting a contractual exclusion of government-owned vehicles from uninsured or underinsured motorist claims. It also seems inconsistent with our concern for excluding coverage for discrete groups. If coverage is intended to be broad, then the exclusion of discrete groups of defendants seems as anomalous as discrete groups of plaintiffs.

141 N.M. at 389, 156 P.3d at 27 (internal quotation marks and citation omitted).

RELEVANT LAW REGARDING MANDATORY FINANCIAL RESPONSIBILITY ACT

The New Mexico Legislature enacted the Mandatory Financial Responsibility Act, NMSA 1978, §§ 66-5-201 to -239 (“MFRA”), “to require residents of New Mexico who own and operate motor vehicles upon the highways of the state either to have the ability to respond in damages to accidents arising out of the use and operation of a motor vehicle or to obtain a motor vehicle insurance policy.” NMSA 1978, § 66-5-201. The MFRA states that no owner shall permit operation of an uninsured motor vehicle, and no driver shall drive an uninsured motor vehicle, unless the vehicle or driver is exempted from the MFRA’s provisions. See NMSA 1978, § 66-5-205A-B. The MFRA defines

“Judgment,” as used in the Mandatory Financial Responsibility Act, [as] any judgment which becomes final by expiration without appeal of the time within which an appeal might have been perfected or by final affirmation on appeal rendered by a court of competent jurisdiction of any state or of the United States, upon a cause of action arising out of the ownership, maintenance or use of any motor vehicle of a type subject to registration under the laws of New Mexico, for damages, including damages for care and loss of services, because of bodily injury to or death of any person or for damages because of injury to or destruction of property, including the loss of use thereof, or upon a cause of action on an agreement of settlement for such damages.

NMSA 1978, § 66-5-209 (emphasis added). MFRA sets forth the payments that are sufficient to satisfy the requirements in the MFRA. The statute states:

A. Judgments herein referred to shall, for the purpose of the Mandatory Financial Responsibility Act only, be deemed satisfied when:

(1) twenty-five thousand dollars ($25,-000) has been credited upon any judgment or judgments rendered in excess of that amount because of bodily injury to or death of one person as the result of any one accident;

(2) subject to the limit of twenty-five thousand dollars ($25,000) because of bodily injury to or death of one person, the sum of fifty thousand dollars ($50,-000) has been credited upon any judgment or judgments rendered in excess of that amount because of bodily injury to or death of two or more persons as the result of any one accident; or

(3) ten thousand dollars ($10,000) has been credited upon any judgment or judgments rendered in excess of that amount because of injury to or destruction of property of others as a result of any one accident.

NMSA 1978, § 66-5-215. The MFRA allows for persons to give evidence of financial responsibility, when required under MFRA, in several ways—specifically, by filing: (i) evidence of a motor vehicle insurance policy; (ii) a surety bond; or (iii) a certificate of deposit of money. See NMSA 1978, § 66-5-218. The certificate of deposit of money certifies that the person named in the certificate has deposited $60,000.00 in cash with the state treasurer. See NMSA 1978, § 66-5-226. This cash deposit

shall be held by the state treasurer to satisfy, in accordance with the provisions of the Mandatory Financial Responsibility Act, any execution on a judgment issued against the person making the deposit, for damages, including damages for care and loss of services because of bodily injury to or death of any person or for damages because of injury to or destruction of property, including the loss of use thereof, resulting from the ownership, maintenance, use or operation of a motor vehicle of a type subject to registration under the laws of New Mexico after the deposit was made.

NMSA 1978, § 66-5-277 (emphasis added).

RELEVANT LAW REGARDING THE NEW MEXICO INSURANCE CODE

The New Mexico Insurance Code sets forth different categories of insurance. The Insurance Code defines property insurance as “insurance of real or personal property ... against loss or damage from any and all hazards or causes, and against loss consequential upon such loss or damage,” and “insurance against the liability of the insured for loss or damage to the property or property interests of another from any cause for which the insured’s property involved in such loss or damage is insured by the same insurer.” NMSA 1978, § 59A-7-4. The Insurance Code defines vehicle insurance as insurance that covers:

A. Physical Damage. Insurance against loss of or damage to any land vehicle or aircraft or any draft or riding animal resulting from or incident to ownership, maintenance or use of any such vehicle, aircraft or animal;

B. Public Liability and Property Damage. Insurance against any hazard or cause, and against any loss, liability or expense resulting from or incident to ownership, maintenance or use of any such vehicle, aircraft or animal;

C. Cargo. Insurance against loss of or damage to property contained in a vehicle or being loaded or unloaded therein or therefrom or incident to the ownership, maintenance or use of any such vehicle, aircraft or animal; and

D. Medical Payments. Insurance for payment on behalf of the injured party or for reimbursement of the insured for payment, irrespective of legal liability of the insured, of medical, hospital, surgical and disability benefits, to persons injured and funeral and death benefits to dependents, beneficiaries or personal representatives of persons killed as the result of an accident, resulting from or incident to ownership, maintenance or use of any such vehicle, aircraft or animal. Such coverage shall not be deemed to be “health” insurance for purposes of the Insurance Code.

NMSA 1978, § 59A-7-7 (emphasis added). The Court has been unable to find any cases that discuss recovery for loss of use in the context of the New Mexico Insurance Code.

RELEVANT NEW MEXICO LAW REGARDING STATUTORY INTERPRETATION

A court’s central concern, in construing a particular statute, “is to determine and give effect to the intent of the legislature,” State ex rel. Klineline v. Blackhurst, 106 N.M. 732, 735, 749 P.2d 1111, 1114 (1988) (citation omitted), “using the plain language of the statute as the primary indicator of its intent,” City of Santa Fe v. Travelers Cas. & Sur. Co., 147 N.M. 699, 702, 228 P.3d 483, 486 (2010). Courts give “the words used in the statute their ordinary meaning unless the legislature indicates a different intent.” State ex rel. Klineline v. Blackhurst, 106 N.M. at 735, 749 P.2d at 1114 (citation omitted). Courts “construe the entire statute as a whole so that all the provisions will be considered in relation to one another.” Regents of Univ. of N.M. v. N.M. Fed’n of Teachers, 125 N.M. 401, 411, 962 P.2d 1236, 1246 (1998) (citing N.M. Pharmaceutical Ass’n v. State, 106 N.M. 73, 738 P.2d 1318 (1987) (“In interpreting statutes, we should read the entire statute as a whole so that each provision may be considered in relation to every other part.”) (citation omitted)). A court must construe a statute “so that no part of the statute is rendered surplusage or superfluous.” Matter of Rehabilitation of W. Investors Life Ins. Co., 100 N.M. 370, 373, 671 P.2d 31, 34 (1983) (citations omitted). New Mexico courts will not, however, “read into a statute or ordinance language which is not there, particularly if it makes sense as written.” Regents of Univ. of N.M. v. N.M. Fed’n of Teachers, 125 N.M. at 411, 962 P.2d at 1246 (quoting Burroughs v. Bd. of Cnty. Com’rs of Bernalillo Cnty., 88 N.M. 303, 306, 540 P.2d 233, 236 (1975))(internal quotation marks omitted). New Mexico courts also will “not depart from the plain wording of a statute, unless it is necessary to resolve an ambiguity, correct a mistake or an absurdity that the Legislature could not have intended, or to deal with an irreconcilable conflict among statutory provisions.” Regents of Univ. of N.M. v. N.M. Fed’n of Teachers, 125 N.M. at 411, 962 P.2d at 1246 (citation omitted).

New Mexico courts presume that the New Mexico Legislature knows of the existing law when it enacts legislation. See Herrera v. Quality Imports, 128 N.M. 300, 302-03, 992 P.2d 313, 315-16 (Ct.App. 1999). New Mexico courts therefore presume that, where the New Mexico Legislature has included language in one statute but not in another statute, it is “compelling evidence that the legislature” intended to exclude the language. Hanson v. Turney, 136 N.M. 1, 4, 94 P.3d 1, 4 (Ct.App.2004). See State v. Jade G, 141 N.M. 284, 290, 154 P.3d 659, 665 (2007) (stating that, when the legislature provided exceptions in one portion of the statute, but not another portion, the court “must presume these omissions were intentional”).

New Mexico courts have declined to construe statutes more broadly than the plain language of the statute allows, even when the statute is one which they liberally interpret. See Krahling v. First Trust Nat’l Ass’n, 123 N.M. 685, 689-90, 944 P.2d 914, 918-19 (Ct.App.1997). In Krahling v. First Trust Nat’l Ass’n, the Court of Appeals of New Mexico stated:

Finally, Honeywell argues generally that the purpose of the Guaranty Association is to protect New Mexico residents. As such, Honeywell urges us to liberally construe the Guaranty Law because of its humanitarian policy and to enforce coverage in this instance. We decline to give the Guaranty Law any construction but a reasonable one. since the language of the statute is clear as applied to the GICs in this case. See United Water N.M. Inc. v. New Mexico Pub. Util. Comm’n, 121 N.M. 272, 276, 910 P.2d 906, 910 (1996) (statute should be given reasonable interpretation in accordance with the Legislature’s apparent purpose); see also Unisys Corp. [v. Texas Life, Acc., Health & Hosp.], 943 S.W.2d [133] at 140 [ (1997) ] (even though Texas Guaranty Act provided for liberal construction, court was not permitted to ignore statutory language excluding coverage of certain unallocated annuity contracts). We therefore decline to construe the Guaranty Law more broadly than its plain language allows.

Krahling v. First Trust Nat’l Ass’n, 123 N.M. at 689-90, 944 P.2d at 918-19.

Similarly, in the workers’ compensation context, New Mexico courts have stated that they will not use the cannon of liberal construction of a statute as a justification for disregarding the statute’s plain language. See Garcia v. N.M. State Highway Dept., 61 N.M. 156, 163, 296 P.2d 759, 763 (1956) (“[W]e cannot close our eyes [to the statute’s language] even under the canon of liberal construction of the compensation act to effect its remedial purposes.”). In Varela v. Mounho, 92 N.M. 147, 584 P.2d 194 (Ct.App.1978), the Court of Appeals of New Mexico addressed whether the Workmen’s Compensation Act should apply to a farm laborer employed at a commercial dairy who was injured by a cow. See 92 N.M. at 148-49, 584 P.2d at 195-96. The Act provided that it did not apply to employers of farm laborers. See 92 N.M. at 149, 584 P.2d at 196. The plaintiff contended that the farm labor exclusion was outdated and had been criticized by legal writers, and that New Mexico decisions hinted that the exclusion would not apply where the employer’s activity was a commercial enterprise. See 92 N.M. at 149, 584 P.2d at 196. The Court of Appeals stated that the plaintiff

asserts that unless we hold that commercial dairies do not come within [Section] 59-10-4(A), ... our decision would be contrary to the purposes of the Workmen’s Compensation Act which is “to provide a humanitarian and economical system of compensation for injured workmen”, [sic] Graham v. Wheeler, [77 N.M. 455, 423 P.2d 980 (1967)]. To achieve that purpose, plaintiff asserts the statute must be liberally construed in his favor. See Schiller v. Southwest Air Rangers, Inc., 87 N.M. 476, 535 P.2d 1327 (1975). Plaintiff also asserts there must be liberal construction in order to obtain fundamental fairness. See Transport Indemnity Company v. Garcia, 89 N.M. 342, 552 P.2d 473 (Ct.App. 1976). Our answer is that the provisions of the Workmen’s Compensation Act “may not be disregarded in the name of liberal construction.” Graham v. Wheeler, supra. The asserted unfairness to farm laborers “is a matter of legislative policy, and we are bound to interpret and apply the law as it is given us.” Koger v. A.T. Woods, Inc., [38 N.M. 241, 31 P.2d 255 (1934) ].

92 N.M. at 149-50, 584 P.2d at 196-97.

RELEVANT LAW REGARDING WHETHER THEFT OR LOSS OF PROPERTY CONSTITUTES PROPERTY DAMAGE

Several courts have held that theft or loss of property does not constitute property damage, as defined in the applicable insurance policy. See Travelers Ins. Companies v. P.C. Quote, Inc., 211 Ill.App.3d 719, 156 Ill.Dec. 138, 570 N.E.2d 614, 616-18 (Ill.App.Ct.1991)(stating that the “loss of computers” is not property damage, and distinguishing “damage to property and loss of property”); General Ins. Co. of Am. v. Palmetto Bank, 268 S.C. 355, 233 S.E.2d 699, 701-02 (1977)(finding that the loss of use of the property was not “property damage” under the terms of the liability insurance policy'—which defined property damage as “injury to or destruction of tangible property”—because the only damage alleged was “wrongful deprivation of property, not physical injury to property”).

In Harry Winston, Inc. v. Travelers Indem. Co., 366 F.Supp. 988 (E.D.Mo.1973), the United States District Court for the Eastern District of Missouri addressed whether the plaintiff could recover $18,200.00 from Travelers Indemnity Company under the insured’s homeowners policy after the plaintiff never received the jewelry that the insured allegedly mailed to the plaintiff. See 366 F.Supp. at 989. The policy stated that the insurer would pay on behalf of the insured all sums the insured was legally obligated to pay as damages because of property damage, and defined property damage as “injury to or destruction of property, including loss of use thereof.” 366 F.Supp. at 989-90. The district court addressed whether the loss of jewelry in the mails was covered within the language of the policy’s liability section—in other words, whether the loss of jewelry was property damage as defined in the policy. See 366 F.Supp. at 990. The district court believed that the loss of the jewelry was not a loss covered within the meaning of the policy’s definition of property damage. See 366 F.Supp. at 989-90. The court found that, given the plain meaning of the policy’s language, there was no injury to or destruction of the jewelry; therefore, there was no property damage within the meaning of the policy— the jewelry was rather lost or stolen in some manner. See 366 F.Supp. at 990.

In State v. Glens Falls Ins. Co., Inc., 132 Vt. 97, 315 A.2d 257 (1974), the Supreme Court of Vermont addressed whether an insurer had an obligation to defend the State in a lawsuit, brought by the owner of transparencies that he had sent to the State, but were never returned. See 315 A.2d at 257. The general liability policy stated that the insurer would pay on behalf of the insured all sums which the insured was legally obligated to pay as damages “because of injury to or destruction of property, including the loss of use thereof.” 315 A.2d at 259. The state argued that the transparencies had, in effect, been destroyed, but the Supreme Court found that, because there was no evidence of actual destruction, the destruction was conjectural. See 315 A.2d at 259. The Supreme Court found that, in such circumstances, “the insurance company has no obligation to defend.” Id. at 259.

Other courts have held that theft or loss of property constitutes property damage, as defined under the applicable insurance policies. In U.S. Fidelity & Guaranty Co. v. Mayor’s Jewelers of Pompano, Inc., 384 So.2d 256 (Fla.Dist.Ct.App.1980), the District Court of Appeal of Florida found that the applicable insurance policy covered theft of jewelry. See 384 So.2d at 257, 259. The insurance policy provided coverage for bodily injury or property damage, and defined property damage as “injury to or destruction of tangible property.” Id. at 257. The insurer argued that theft of jewelry did not constitute “injury to or destruction of tangible property.” 384 So.2d at 257. The Florida Court of Appeal defined injury as “[a]ny wrong or damage done to another, either in his person, rights, reputation, or property,” and “an act which damages, harms or hurts[,]” and found that the jewelry store suffered “the ultimate injury to its property” when a thief stole the property. Id. at 258 (citation omitted). The Florida Court of Appeal stated that the property was damaged, because the market value of the property to the one who lawfully possessed it was “totally diminished.” Id. at 258. The Florida Court of Appeal therefore found that theft of personal property is “property damage” unless a contrary intent is clearly expressed in the policy. 384 So.2d at 258.

In Hofing GMC Truck, Inc. v. Kay Wheel Sales Co., Inc., 543 F.Supp. 414 (E.D.Pa.1982), the United States District Court for the Eastern District of Pennsylvania addressed a general liability policy’s coverage. See 543 F.Supp. at 416. The policy stated that the insurer would pay all sums that the insured became legally obligated to pay as damages because of bodily injury or property damage, and defined property damage as

physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or ... loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period.

543 F.Supp. at 416-17. The insurance company argued that the policy did not provide coverage for theft of property, because theft of property was not property damage within the meaning of the policy. See 543 F.Supp. at 417. The district court recognized that, arguably, theft of property is not a form of physical injury to or destruction of tangible property. See id. at 418 (citing U.S. Fidelity & Guaranty Co. v. Mayor’s Jewelers of Pompano, Inc., 384 So.2d 256, 258 (Fla.App.1980)). The district court stated, however:

Nevertheless, if property is stolen, the rightful possessor is necessarily no longer able to use that property. Thus, he suffers a “loss of use” in the plain, ordinary sense of those words. Midland’s argument to the contrary is embodied in three conclusionary sentences which fail to suggest any tenable ground for concluding that the phrase “loss of use” has some narrower meaning that would exclude loss of use caused by theft. Accordingly, the Court holds that the theft of Hofing’s tractor from Kay’s premises constituted “property damage” within the meaning of the Midland policy.

543 F.Supp. at 418.

In Collin v. American Empire Ins. Co., 21 Cal.App.4th 787, 26 Cal.Rptr.2d 391 (Cal.Ct.App.1994), the Court of Appeal of California addressed a liability policy practically identical to the policy at issue in Hofing GMC Truck, Inc. v. Kay Wheel Sales Co., Inc. and found that the policy did not cover loss of property. See 26 Cal.Rptr.2d at 408. The insurer’s policy defined property damage as

physical injury to or destruction of tangible property which occurs during the policy period, including loss of use thereof at any time resulting therefrom, or ... loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period.

26 Cal.Rptr.2d at 408. The Court of Appeal distinguished loss of use of property from loss of property in reversing the trial court’s holding that conversion fell within the policy’s definition of property damage because conversion constitutes loss of use of property. See 26 Cal.Rptr.2d at 409. The Court of Appeal held that conversion does not constitute loss of use of property, finding instead that conversion constitutes loss of property. See 26 Cal.Rptr.2d at 409. The Court of Appeal illustrated its distinction between loss of property and loss of use of property through an example, stating that the value of the loss of use of a stolen car is the rental value of a substitute vehicle whereas the value of the loss of the car is its replacement cost. See 26 Cal.Rptr.2d at 409.

The Court is not aware of any New Mexico cases that discuss whether the theft of property or the loss of property constitutes property damage. In Lamb v. Randall, 95 N.M. 35, 618 P.2d 379 (Ct. App.1980), however, the Court of Appeals of New Mexico interpreted a parental liability statute to determine the liability of parents of a child who burglarized the plaintiffs home and took the plaintiffs jewelry, which the plaintiff never recovered. See 95 N.M. at 36, 618 P.2d at 380. The statute stated that a person “may recover damages ... from the parent ... of a child when the child has maliciously or willfully injured a person or damaged or destroyed property, real or personal, belonging to the person bringing the action.” 95 N.M. at 36, 618 P.2d at 380. The Court of Appeals recognized that the plaintiffs property was pawned for money “but [was] not physically mutilated or destroyed.” 95 N.M. at 37, 618 P.2d at 381. The Court of Appeals stated: “There being no evidence that the property was damaged or destroyed, the parents are not liable ... for the value of the property.” 95 N.M. at 37, 618 P.2d at 381.

RELEVANT LAW REGARDING WHETHER LOSS-OF-USE DAMAGES ARE RECOVERABLE WITHOUT ACCOMPANYING PHYSICAL DAMAGE

Several courts have found that, without “physical damage or destruction to tangible property, one cannot recover damages for loss of use to tangible property.” Coulter v. CIGNA Property & Cas. Companies, 934 F.Supp. 1101, 1119 (N.D.Iowa 1996). See Sadler v. Pacific Indemnity Co., CIV 08-0670 RLP/LFG, Memorandum Opinion and Order at 4, 9 (D.N.M. Mar. 24, 2009) (Puglisi, J.) (finding that, when the personal liability policy defined property damage as “physical injury to or destruction of tangible property, including the loss of its use[,]” New Mexico courts would find that the policy language means “that the ‘loss of use’ must be accompanied by physical damage”), aff'd, 363 Fed.Appx. 560 (10th Cir.2010); Mutlu v. State Farm Fire and Cas. Co., 337 Ill.App.3d 420, 271 Ill.Dec. 757, 785 N.E.2d 951, 954, 960 (Ill. App.Ct.2003) (stating that the analysis in Coulter v. CIGNA Property & Cas. Companies and Ehlers v. Johnson, 164 Wis.2d 560, 476 N.W.2d 291 (Wis.App.1991), is sound and logical in a grammatical sense, and holding that there can be no coverage for the loss of use of tangible property unaccompanied by physical damage or destruction when the condominium unit owners insurance policy defines property damage as physical damage to or destruction of tangible property, including loss of use); Ehlers v. Johnson, 476 N.W.2d at 293 (“The only reasonable meaning of the clause [defining property damage as physical injury to or destruction of tangible property, including loss of use of this property] is that it defines property damage to include loss of use damage that accompanies physical injury or destruction.”). The Court of Appeals of Wisconsin has analyzed the phrase “physical injury to or destruction of tangible property, including loss of use of this property” in a homeowners’ insurance policy to determine its meaning. See 476 N.W.2d at 293.

The loss of use clause is introduced by the verb “including.” The dictionary defines “including” as “to take in or comprise as part of a whole.... ” The Mirriam-Webster Dictionary 358 (1974). The loss of use clause is thus introduced as a subset of “physical injury to or physical destruction of tangible property.” If the loss of use clause were interpreted as the Frisches would have it, i.e., as any nonphysical injury to tangible property, the definition of property damage would effectively read: “physical injury to ... tangible property, including non-physical injury.” We reject such a contradictory reading.

476 N.W.2d at 293.

In contrast, several courts have allowed loss-of-use claims to proceed without property damage. See Gibson v. Farm Family Mut. Ins. Co., 673 A.2d 1350, 1353 (Me.1996)(stating that the court interprets a “standard policy of insurance ... ‘most strongly1 against the insurer[;] [thus] ‘[p]roperty damage’”—which was defined as physical injury to or destruction of tangible property in the insurance policy— “includes loss of use of tangible property with no accompanying physical injury to that property”). In American Home Assurance Co. v. Libbey-Owens-Ford Co., 786 F.2d 22 (1st Cir.1986), the United States Court of Appeals for the First Circuit found that a general liability policy “did not require tangible pro