STATE OF NEW MEXICO

COUNTY OF SANTA FE
FIRST JUDICIAL DISTRICT COURT

TOM GENTNER and CELIA CORTEZ,

Plaintiffs,

v. CASE NO.:

METROPOLITAN PROPERTY AND

CASUALTY INSURANCE COMPANY,

Defendant.

COMPLAINT TO RECOVER DAMAGES FOR PERSONAL INJURIES,

TO RECOVER UIM BENEFITS FOR PERSONAL INJURIES,
BREACH OF CONTRACT AND BAD FAITH

Plaintiffs Tom Gentner and Celia Cortez, through counsel, Hunt & Marshall (Lee R.

Hunt, Esq.), for their Complaint to Recover Damages for Personal Injuries hereby state as

follows:

1. Tom Gentner and Celia Cortez are married residents of Santa Fe, New Mexico.

2. Metropolitan Property and Casualty Insurance Company (MetLife) is a liability

insurance company that insured the Gentners’ vehicles and provided underinsured motorist

coverage to Mr. Gentner and Ms. Cortez.

3. MetLife may be served with process by delivery of a summons and a true and

accurate copy of this Complaint to the Office of Superintendent of Insurance, P. O. Box 1689,

Santa Fe, NM 87504-1689.

4. Venue is appropriate in Santa Fe as Plaintiffs are residents of Santa Fe County.

FACTUAL SUMMARY

5. On October 27, 2015, Mr. Gentner, a United States Postal worker, was driving a

postal truck in Los Alamos, New Mexico.

 6. At, or around the same time, Jezika Borrego, a 15-year-old, unlicensed driver was

using her parents’ car to “waste time” after a dental appointment. Ms. Borrego made a left turn

onto westbound Central Avenue. Ms. Borrego was speeding, was not paying attention to the

roadway and was driving illegally. She lost control of her vehicle, left her lane of travel and

crashed head-on into the vehicle being driven by Mr. Gentner.

7. Ms. Borrego stated she lost control of her vehicle because she sneezed; however,

more likely than not, Ms. Borrego was engaged in distracted driving.

8. At impact, Mr. Gentner’s body was catapulted forward and was restrained by his

lap belt. As a result, he fractured a bone in his neck. His right shoulder hit and broke the window

on the right side of the vehicle, and his head followed immediately thereafter. His head struck the

front windshield and shattered the windshield glass.

9. The force of the impact caused him to suffer a tear in the rotator cuff of his right

shoulder. In addition, he placed his left hand on a 30- to 50-pound tray of mail in an attempt to

prevent it from sliding forward during the crash. This caused his arm to shoot forward during

impact and strike the windshield. As a result, he tore his left shoulder and suffered a tendon injury

and deep laceration to his left pinky finger. These are injuries that will affect him for the rest of his

life.

10. Ms. Borrego had a total of $50,000 in insurance. This is not enough insurance

coverage to fully compensate Mr. Gentner and Ms. Cortez for their injuries. Ms. Borrego was

underinsured for this crash.

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 11. At the time of the collision, the Gentner household maintained auto insurance

with MetLife, including underinsured motorist coverage. The Gentner household insured four

vehicles, the underinsured motorist coverage of the vehicles totals $1,000,000. This amount is

undisputed.

12. MetLife does not dispute that Ms. Borrego is 100% responsible for the crash.

13. After the crash, Mr. Gentner made a claim against State Farm, Ms. Borrego’s

insurance company. State Farm immediately offered the $50,000 liability limit to settle the

claim.

14. MetLife approved the settlement with Ms. Borrego.

15. Mr. Gentner made a claim for UIM benefits with MetLife.

16. After the crash, Tom Gentner had cervical spine surgery to repair the fractured

vertebrae caused in the crash. Due to a previous neck injury, Mr. Gentner required a multiple-

level fusion in the cervical spine and now suffers from significant pain, fatigue and lack of

strength in his neck.

17. Mr. Gentner also had surgery on both his right and left shoulders due to injuries

from the crash. Mr. Gentner is constantly in pain, has limited neck and shoulder range of motion

and is unable to enjoy many of the activities that he enjoyed before the crash.

18. Due to his injuries, Mr. Gentner suffered lost wages and lost earning capacity.

19. The crash and the effects on Mr. Gentner have adversely affected the marital

relationship between Mr. Gentner and his wife, Celia Cortez.

20. Despite the clear and significant injuries, including over $285,000 in medical

expenses and $122,000 in lost wages, MetLife has treated Mr. Gentner as if he was an adverse

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party. MetLife has failed to take Mr. Gentner’s interests into account when evaluating or

handling this claim.

21. MetLife has refused to make timely and reasonable settlement offers. MetLife’s

conduct includes forcing Mr. Gentner to file a lawsuit, which it knows will cause extensive

delay.

22. Mr. Gentner cooperated with MetLife, provided MetLife with a medical

authorization, with medical records and with the full opportunity to evaluate the claim.

23. MetLife took nearly nine months to ‘investigate’ Mr. Gentner. When it finally

responded, MetLife offered Mr. Gentner far less than the available policy limits and made an

unreasonable final offer.

24. Instead of talking to Mr. Gentner’s medical providers, or even talking to Mr.

Gentner directly, MetLife hired the most renowned insurance doctor in New Mexico, Dr. Ted

Davis. MetLife’s insurance doctor performed a paper review of Mr. Gentner’s medical records

and was paid to say that Mr. Gentner was not as injured as he claims. Dr. Davis only works for

the defense and has been paid millions from the insurance industry in the last 30 years to testify

against people who have been hurt. MetLife’s choice to hire a defense-only insurance doctor

before it even spoke to Mr. Gentner or his doctors is evidence that MetLife has treated Mr.

Gentner as an adversary from the very beginning of his claim process.

25. MetLife has continually refused to pay the full benefits owed to Mr. Gentner.

26. After nearly nine months of investigation, MetLife offered less than half of the

available amount on the policy.

27. As a direct and proximate result of Ms. Borrego’s negligence, Mr. Gentner has

suffered damages, including medical expenses, mental and physical impairments, pain and

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suffering, loss of enjoyment of life, lost wages, lost earning capacity and all other damages

allowable under New Mexico law. Ms. Cortez has suffered loss of consortium damages. Mr.

Gentner will continue to incur future damages as may be proven at trial. The value of Mr.

Gentner’s claim exceeds the available insurance.

CLAIM I: UIM COVERAGE FROM METLIFE

28. Plaintiffs hereby incorporate all prior allegations as if set forth in full herein.

29. Mr. Gentner seeks, by this action, to recover the full extent of the

uninsured/underinsured motorist benefits issued by MetLife and which might be otherwise

available to Plaintiffs as a result of the injuries and damages sustained in the subject collision.

30. Mr. Gentner seeks recovery for lost wages; lost earning capacity; medical

expenses; future medical expenses; nature, extent and duration of his injuries; permanent

disfigurement and lost enjoyment of life due to his injuries. Additionally, Celia Cortez seeks

recovery for loss of consortium damages.

31. Ms. Borrego’s and her family’s conduct was reckless and wanton and should

result in punitive damages. She was 15 years old, unlicensed and was given the car by her

parents. In addition, she was speeding, and witnesses reported to the police that she was “driving

like a bat out of hell.” By allowing their unlicensed, 15-year-old daughter to drive unsupervised,

the Borrego family put its own interests ahead of the safety of the public, including Mr. Gentner.

32. As a result of the reckless conduct of the Borrego family, Plaintiffs seek punitive

damages. Punitive damages are appropriate especially in light of the fact that Ms. Borrego drove

into oncoming traffic at a high rate of speed and then attempted to lie about it claiming she

sneezed. The far more likely explanation is that she was texting on her phone and was

distracted. Punitive damages are warranted and will be paid by MetLife.

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 33. As part of the UIM benefits owed to Plaintiffs, loss of consortium damages are

owed to Celia Cortez, Mr. Gentner’s wife.

34. As a result of Mr. Gentner’s injuries, Celia Cortez has suffered injuries in the

form of loss of consortium damages. These damages include the loss of the society, guidance

and companionship resulting from Mr. Gentner’s injuries.

35. At the time of the collision, which is the subject of this litigation, Plaintiffs were

insured under a MetLife automobile insurance policy providing uninsured/underinsured motorist

coverage.

36. After the off-set for Ms. Borrego’s insurance, MetLife has $950,000 available

under its policy. MetLife has paid a portion of the amount owed to Mr. Gentner.

37. Plaintiffs seek, by this action, to recover the full amount of the available policy

limits from the uninsured/underinsured motorist policy issued by MetLife and which might be

available to Plaintiffs as a result of the injuries and damages sustained on October 27, 2015.

38. Plaintiffs have fully and completely complied with all applicable terms and

conditions contained in the MetLife insurance policies at issue in this litigation.

CLAIM II: BREACH OF CONTRACT

39. Plaintiffs hereby incorporate all prior allegations as if set forth in full herein.

40. Plaintiffs purchased, and/or were insured by, auto insurance coverage from

MetLife which included underinsured motorist coverage.

41. MetLife breached its contractual obligations to Plaintiffs by wrongfully denying

the full amount of UM/UIM coverage available to Plaintiffs.

42. Plaintiffs seek to recover damages covered by the contracts, as well as damages

for breach of the contract.

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 CLAIM III: INSURANCE BAD FAITH

43. Plaintiffs hereby incorporate all prior allegations as if set forth in full herein.

44. MetLife had the duty to act in good faith and deal fairly with its insureds.

45. New Mexico law provides that “[t]here is implied in every insurance policy a duty

on the part of the insurance company to deal fairly with the policyholder.” UJI 13-1701 NMRA.

46. As is relevant here, “[f]air dealing means to act honestly and in good faith in the

performance of the [insurance] contract” and that “[t]he insurance company must give equal

consideration to its own interests and the interests of the policyholder.” Id.; Sloan v. State Farm

Mut. Auto. Ins. Co., 2004-NMSC-004, 85 P.3d 230; Dairyland Ins. Co. v. Herman, 1998-NMSC-

005, ¶12, 954 P.2d 56.

47. New Mexico law governing claims for common law, bad-faith failure to

settle provides that “[a] liability insurance company has a duty to timely investigate and fairly

evaluate the claim against its insured, and to accept reasonable settlement offers within policy

limits” and that “[a]n insurance company’s failure to conduct a competent investigation of the

claim and to honestly and fairly balance its own interests and the interests of the insured

in rejecting a settlement offer within policy limits is bad faith.” UJI 13-1704 NMRA.

48. MetLife failed to fairly and timely investigate Mr. Gentner’s claim causing Mr.

Gentner to suffer from MetLife’s refusal to pay the fair amount due.

49. MetLife willfully, recklessly and without regard for the rights of Plaintiffs

breached the duty of good faith and fair dealing owed to Plaintiffs by knowingly committing the

following acts:

a. Failing to adopt and implement reasonable standards for the prompt investigation
and processing of insureds’ claims arising under policies;

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 b. Not attempting in good faith to effectuate a prompt, fair and equitable settlement
of the claims of Plaintiffs in which liability has become reasonably clear;

c. Compelling Plaintiffs to institute litigation to recover amounts due under the

policy by offering substantially less than the amounts reasonably due to Plaintiffs
when Plaintiffs made claims for amounts within policy limits;

d. By retaining a well-known defense expert to purportedly review Mr. Gentner’s

medical records, when its real intent was to get opinions favorable to a defense of
Mr. Gentner’s claim, instead of to fairly and objectively evaluate the claim;

e. Failing to promptly provide Plaintiffs a reasonable explanation of the basis relied

on in the policy in relation to the facts or applicable law for the offer of a
compromised settlement; and

f. Placing its interest over its insureds’ interest by offering an amount substantially
less than the amount reasonably due.

50. As a direct and proximate result of MetLife’s negligent, malicious, wanton,

willful, intentional, and reckless acts, Plaintiffs have been injured and damaged.

51. The monetary value of Plaintiffs’ injuries and damages should be determined by a

jury. By refusing to pay Plaintiffs in a timely manner, MetLife is responsible for the full amount

of any jury verdict, plus additional amounts for bad faith.

52. Plaintiffs are entitled to recover attorney fees and costs in pursuing this action

pursuant to NMSA 1978, §39-2-1.

CLAIM IV: VIOLATION OF UNFAIR CLAIMS

PRACTICES ACT AS TO METLIFE

53. Plaintiffs hereby incorporate all prior allegations as if set forth in full herein.

54. At all times material, there was in the State of New Mexico a statute NMSA,

§59A-16-20, (1997) (hereinafter the “Unfair Claims Practices Act”) defining and prohibiting

certain unfair and deceptive insurance practices.

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 55. MetLife failed to properly, fairly and timely investigate the basis of the claim by

Mr. Gentner. Moreover, MetLife failed to timely pay amounts that it knew were owed to Mr.

Gentner.

56. The actions of MetLife, its agents and employees as set forth above constitute

unfair insurance trade practices prohibited by NMSA, §59A-16-1 through §59A-16-30.

57. MetLife breached the Unfair Claims Practices Act by knowingly committing the

following acts:

a. Not attempting in good faith to effectuate a prompt, fair and equitable settlement
of the claims of Plaintiffs in which liability has become reasonably clear;

b. Compelling Plaintiffs to institute litigation to recover amounts due under the

policy by offering substantially less than the amounts reasonably owed to
Plaintiffs when Plaintiffs made claims for reasonable amount;

c. Relying on biased witnesses and one-sided reviews when evaluating Plaintiffs’

claim; and

d. Failing to take the insureds’ interest equal to its own interest and failing to
maintain its fiduciary duty to Plaintiffs by treating them as adversaries.

58. As a direct and proximate result of MetLife’s breach, Plaintiffs have been injured

and damaged.

59. The monetary value of Plaintiffs’ injuries and damages should be determined by a

jury.

60. Plaintiffs are entitled to recover attorney fees and costs in pursuing this action

pursuant to NMSA 1978, §39-2-1 (1953).

61. Plaintiffs are entitled to recover attorney fees and costs in pursuing this action

pursuant to NMSA 1978, §59A-16-30.

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 CLAIM V: PUNITIVE DAMAGES

62. Plaintiffs hereby incorporate all prior allegations as if set forth in full herein.

63. MetLife’s actions and behavior was intentional, willful, wanton, reckless, and/or

grossly negligent.

64. MetLife’s actions and behavior was to such a degree that it entitles Plaintiffs to an

award of punitive damages.

PLAINTIFFS’ INJURIES AND DAMAGES

65. Plaintiffs hereby incorporate all prior allegations as if set forth in full herein.

66. As a direct and proximate result of the negligent and careless acts of the

Defendant, Plaintiffs have been injured and damaged.

67. Plaintiffs’ injuries and damages may include, but may not specifically be limited

to, the following:

a. Medical bills and related expenses, past, present, and future;

b. Lost wages and impairment of earning capacity;

c. Physical pain and mental suffering, past, present, and future;

d. Loss of enjoyment of life;

e. Loss of consortium;

f. Punitive damages;

g. Treble damages; and

h. Miscellaneous inconvenience and expense, past, present, and future.

Plaintiffs seek, by this action, to recover the full monetary value of their injuries and

damages together with attorney fees and costs, bad faith, statutory, treble, punitive and related

damages, and all available interest at the maximum legal rate.

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WHEREFORE, Plaintiffs respectfully ask this Court for relief as follows:

a. For judgment as against MetLife, together with all available interest at the

maximum legal rate;

b. For costs incurred in pursuit of this action including attorney’s fees to the

extent permitted by law; and

c. For any and all relief to which it may appear the Plaintiffs are entitled

including trial by jury, declaratory and injunctive relief.

Respectfully submitted,

HUNT & MARSHALL, LLC

By: /s/ Lee R. Hunt

Lee R. Hunt, Esq.
Stephen R. Marshall, Esq.
518 Old Santa Fe Trail, #501
Santa Fe, NM 87505
P: (505) 954-4868
F: (505) 819-0022
lee@huntandmarshall.com
steve@huntandmarshall.com
Attorneys for Plaintiffs

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