New Mexico Injury Attorney Blog

As another oil rig burns in the Gulf of Mexico, BP is attempting to extort new Gulf leases with suggestions or perhaps threats that without these new leases it cannot or will not pay the damages for the disaster it has caused in the Gulf.

A new bill working its way through Congress would bar any company from receiving deep water drilling permits if it has had more than 10 fatalities on its rigs or has been penalized with fines of more than $10 million under the Clean Air or Clean Water Act. The bill does not mention BP by name but oddly BP is the only company with this track record.

Of course the bill will likely never pass anyway. Remember "drill baby drill." It's still the mantra of the Republican party. It is just whispered now rather than being plastered on t-shirts and posters at campaign rallies. The Right is not concerned with the disaster(s) in the Gulf. It is easier to blame the Democrats and Obama. Instead, in the midst of the crisis they attack Obama for not stopping the horrible and uncontrollable spill that 30 years of oil deregulation has caused. They publicly criticize Obama for not doing more to stop the spill while they continued to fight any meaningful regulation of the oil industry that would stop future spills, and perhaps a few regulations that might help to prevent rigs from exploding, like the one that blew up yesterday.

Oddly, the Right goes the other direction than common sense might dictate. Rather than legislation and regulation to increase the safety of rigs to protect the Gulf and the workers on those rigs (do not forget 11 men died in the BP disaster), the Right will continue to fight for deregulation. It's just what they do and who they are. They can't help it.

But there is more to it than safety of offshore rigs. The deregulation craze has spilled into all other areas of energy production. There are hundreds of contaminated water suits that have been filed against Massey Energy for vast contamination of drinking water in the areas in which they operate. The natural gas industry, the purportedly clean energy alternative, is following suit. Natural gas does indeed burn clean, however, the extraction process has devastating impacts on water supplies around the wells. Like the coal slurry contamination, the chemicals used to extract the gas from the ground seep into the drinking water of nearby residents rendering the water toxic. Yet, there is little regulation over the extraction process or the chemicals that are pumped into the ground.

In the end, thousands upon thousands more will be injured as a result of deregulation of the oil and energy sectors. There will be promises of clean methods. And when mistakes or disasters occur, there will be promises of absolute responsibility. Then there will be back pedaling as with the extortionate threats of BP over regulation of deepwater drilling permits. It will be quite dramatic as legislation quietly dies in Congress and business continues as usual. The only thing left will be the lawsuits to compensate the victims for their damages. Naturally, the Right will then chime in attacking the lawyers that attempt to help those victims and the victims themselves for their opportunistic greed. And BP and friends will skip along their merry way as taxpayers pay for their mistakes.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

Immediately following any personal injury accident, it is important to document all of the particulars surrounding the event, as well as preserve any evidence that can support your claim. Time has a way of eroding these details if left to memory several weeks later, so write down the details at your first opportunity. If you are unable to preserve this evidence due to the extent of your injuries, obtain the help of a family member or friend.

Transport by ambulance or other emergency medical personal will create a good record of medical treatment related to the accident. However, if you were not taken by ambulance, be sure to follow up with your health care provider as soon as possible. This will insure formal documentation of your injuries by a third party. Be sure to photograph any visible injuries without delay, as they can change quickly over time.

Revisit the scene of the accident as soon as practical. In the case of an automobile accident, it would be helpful to visit the scene at the same time of day on the same day of the week as when the accident occurred. Make note of the traffic conditions, traffic controls and road conditions. Take photographs of the area for those who may not visit the scene in person.

In the case of a slip and fall or other liability type claim, return to the scene as soon as you are able. Repairs or improvements are typically made quickly to prevent further liability. In addition, other conditions can change rapidly such as icy or slippery walkways. If possible, photograph the areas, dangerous conditions or obstacles that caused the accident.

Identify any witnesses to the accident at the time of the accident particulaly those that were not included in a police report or when a police report was not prepared. They may have seen or heard things that escaped your attention. In addition, their testimony carries far more weight than yours in case there are disputed facts. You will want to contact witnesses promptly, as memories have a tendency to fade and people frequently move.

Continue to take notes as you recover. These notes can include the effects the accident has had on your daily life, as well as the pain and limitations you have had to face. You may also want to document your mood, including any anxiety or depression issues, and sleep disturbances.

Good record keeping will ease some of the stress you feel when working through a personal injury claim to its resolution. Taking the steps necessary to preserve evidence and document your injuries and damages is key to a successful outcome in your personal injury claim.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

The Dodd-Frank Act was passed earlier this summer to reign in Wall Street abuses that very nearly led to collapse of our economy. The rights of corporations to do whatever they want whenever they want has even been couched in terms of civil rights. It is funny how the loss of over $11 trillion in wealth in 2008, over $5 trillion in the last 3 months alone, has taken a back seat to a cynical and fairly disgusting reinvention of civil rights arguments to promote corporate profits. The two are not unrelated.

How so you ask?

1. The right is fighting against Wall Street and financial reform in the midst of the worst recession since the great depression.
2. The right is fighting against regulation of off shore drilling in the midst of the worst environmental disaster in history.
3. The right has fought successfully to allow credit card companies to jack interest rates for no reason other than the need to beef up profits while consumers are buried in already high interest debt.
4. The right is fighting to limit liability for BP and its partners for damages to thousands of businesses and millions of taxpayers along the Gulf Coast while seeking tax credits for the oil industry.
5. The right is fighting for the repeal of healthcare reform to maintain the profits of health insurance companies while suggesting that cheap healthcare is somehow bad for the poor and middle class.
6. The right is fighting for the repeal of various inconvenient constitutional amendments such as the 14th amendment civil rights protections.
7. The right is fighting for the right of businesses to discriminate as they please against both employees and consumers calling our government fascist for reaching out to workers, the poor, the sick, the little guy.
8. The right is fighting for unencumbered police power to stop and question citizens upon the most trivial suspicion of illegal immigration status while again calling our government fascist for tax breaks for the middle class at the expense of the top 1% and affordable healthcare at the expense of the health insurance industry's record profits.
9. The right fights to prevent medical malpractice lawsuits despite the fact that the Institute of Medicine estimates that up to 98,000 people, typically the little guys, die each year from medical negligence.
10. The right fights for the insurance industry rights to inflate the medical malpractice insurance costs for doctors while the number of medical malpractice lawsuits has steeply declined over the last 10 years, Strangely, even doctors have now dropped in status to the little guy. Ask any doctor and he or she will tell you..

Finally, the right is fighting against trial lawyers who after all the above proves successful will be the last possible outlet for individuals to protect their rights, their freedoms, their jobs, their families, their homes, their health and their financial security. The right will not hesitate to take up a corporate cause and corporate profits. Who will fight for you when the right achieves their goals? Like it or not, it will be trial lawyers who have always stepped up to protect the little guy particularly when as now our elected officials are prevented from doing so by those same corporate interests.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

The Institute for Legal Reform, an admitted national campaign from the U.S. Chamber of Commerce, is circulating emails to gain support from the public for tort reform. The email captioned "Does America Need More Jobs -- Or More Lawsuits?" calls for an end to "lawsuit abuse." What it really calls for is corporate immunity for reckless and dangerous corporate behavior that harms consumers, workers, the environment and every other corner of our society.

It is odd timing that the email comes out in the midst of the worst corporate disaster in our nation's history. It is the predictable opening salvo in the inevitable U.S. Chamber and right wing efforts to shield BP, its partners, and other like-minded corporations, from responsibility for the harm their negligence and recklessness cause society.

The email suggests a fictional $1.6 billion tax break for trial lawyers. Of course, the email does not mention the subsidy that taxpayers will provide to BP, Halliburton, Transocean and Cameron for the massive damages caused by the BP spill. Nor does it mention the billions in tax credits awarded to the oil industry each year or the billions more in environmental damage that the oil and gas industry cause each year. It fails to mention that it is the taxpayers that pick up these costs. Most of all, the Chamber fails to mention the thousands of businesses and hundreds of thousands of residents along the Gulf Coast who have suffered permanent and devastating financial and emotional harm from the BP disaster.

Make no mistake, the Chamber will speak up once those harmed by the spill take legal action beyond the wholly inadequate $20 billion that BP has dedicated to cover the harm it has caused. There will be thousands that accept very small settlements out of economic desperation. Others are completely barred from the funds because they are not close enough to the coast to qualify for compensation. Instead, very strict rules on compensation along caps on damages have been set up to protect BP, not those that were harmed.

Those that refuse to accept less than they are owed and take up legal action will face years of expensive and stressful litigation. In the meantime, many have lost their financial livelihood and way of life. If they are compensated at all for their losses, it will be years as with the 20+ year litigation of the Exxon Valdez.

Yet it is not BP that the Chamber points out as a drain on society, it is trial lawyers. These are the very same trial lawyers that worked for over 20 years to compensate the victims of the Exxon Valdez. And it is same lawyers that will be seeking compensation from BP. It is the same lawyers that will greatly reduce the costs to taxpayers by avoiding what would otherwise be public assistance to pick up the uncompensated losses to those harmed by the BP spill.

It is these same lawyers that finance this litigation at their own costs and do not get paid a dime unless their clients recover that the Chamber fears will bring down our economy. The Chamber calls these lawyers opportunistic. I am not sure what to call the Chamber's behavior. Maybe, we can ask the thousands upon thousands of workers who have lost their jobs as a result of BP what they need most, jobs or lawsuits. Unfortunately, due to the negligence of BP, the answer is they need both.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

When facing the uncertainties of a personal injury accident, it is important to know that your personal health information is protected by federal law. As a result, your medical care providers and insurers are required to safeguard your personal health information. Thus, anyone requesting your personal medical information must comply with both the Privacy Rule and the Security Rule found in the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

The HIPAA was created to increase the efficiencies of the health care system, by creating national standards which protect "individually identifiable health information". This information includes your current and/or prior medical history, as well as anything that would specifically identify you, such as a social security number or birth date.

Within HIPAA is the Privacy Rule, which gives you rights over your personal health information in any form, whether verbal, written or electronic. Protected information includes the written information that is in your physical medical chart, as well as electronic data kept on your health care provider's computer system. Protected information also includes conversations you've had with these providers and your personal financial information used for billing purposes. It even includes information about you kept by health insurance companies, including Medicare and Medicaid.

The Privacy Rule provides a method for disclosing this protected information to others, but does set limitations. In the case of a personal injury claim, there may be insurance companies, governmental agencies, law firms, medical experts and others enlisted to defend against your claims. Your health care providers can only release your personal medical information to these entities after receiving your signed authorization, which specifies to whom the information will be sent along with the scope and date ranges for the medical records to be released.

Your personal medical information can be released by court order, but the information requested must be specifically identified, and only this information will be released. Subpoenas for your personal medical information are not the same as a court order unless issued by and upon the order of the Court. Subpoenas are typically issued directly by lawyers, who must comply with the Privacy Rule as well. They must either notify you of the request, so that you have an opportunity to object, or they must seek a "qualified protective order" through the court. A subpoena alone without the order of the court is not sufficient for the defense to obtain your medical records.

Though HIPAA laws will protect against unauthorized release of medical information to the defense, the discovery rules are fairly liberal. The defense will typically be able to obtain almost all medical records for seven to ten years prior to any accident or injury claimed in a personal injury lawsuit. Any records beyond that may be protected. And HIPAA will most definitely prevent the release of records without proper legal releases or court orders.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

When President Obama first called for $20 billion to be set aside by BP for the Deepwater Horizon disaster, some on the right called it a shakedown, extortion, anti-American, socialist and so on. The fact is if BP gets out of its liability for a mere $20 billion, then it is the people and businesses on the Gulf Coast that have been shaken down. And it is the American taxpayer that will eat the difference.

The settlement terms first and foremost protect BP and its partners, Halliburton, Transocean and Cameron International from full exposure for the damage the spill has caused. A settlement from the fund will bar injured individuals and businesses from making any claims against BP's partners despite their clear liability for portions of the damages. In turn, a settlement with Transocean by the employees injured or killed by the explosion will bar additional claims by those workers against BP or the other partners. In short, the $20 billion fund was established to protect BP, Halliburton, Transocean and Cameron International, the oil industry. It was not ever intended nor will it come close to fully compensating the victims of spill.

The limitations on claims are pretty strict with compensability based largely on geographic proximity to the spill. Not surprisingly, despite its constant refrain that it will take full responsibility for the disaster, BP has lobbied and continues to lobby to exclude inland businesses directly affected by the spill. Of course this would exclude much of the tourism industry that supports the Gulf Coast such as gas stations, restaurants, tackle shops, restaurant supplies, seafood distributors, gift shops, beer distributors and on and on. It would almost certainly exclude claims by those outside the region that supply goods and services to the tourism and fishing industry along the Gulf Coast.

The settlement rules will even prohibit claims by property owners for the loss of value of their property. This in fact could be a very large figure that will go uncompensated. After all, beach front property on toxic waters has limited sales appeal. Interestingly, real estate brokers and agents will have $70 million set aside to compensate them for their losses. It is clear the real estate industry has much stronger lobby than simple homeowners again bringing home the political realities of the $20 billion fund. Other industry lobbies will likely come forward in the future to have portions set aside for their own losses. Bank of America, Citibank, Goldman must be hurting terribly from the loss of loan activity in the region so they most certainly should be compensated.

The fund protects BP, Halliburton, Transocean, Cameron and even has a measure of protection for the real estate industry while leaving small business, homeowners, and thousands of workers who have lost their jobs to fend for themselves. After all, this is America where personal responsibility is king. Corporate responsibility is an entirely different matter. Good money is paid to keep it that way.

And wait for it! When those opportunistic individuals, workers, small businesses left out in the cold are forced to seek recovery on their own, the tort reformers and the right will waste no time in attacking the villainous and greedy trial attorneys that would dare take on their cause. The same interests that have worked to minimize the liability of BP and its partners will then try to convince us that it is BP, its partners, the oil industry, capitalism and America itself that is being victimized by the trial lawyers who seek to bring compensation to the true victims of the spill.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

In case of an uninsured/underinsured motorist claim on an automobile accident in New Mexico, the law requires that an insured party notify their insurance company of the uninsured/underinsured claim "as soon as practicable."

The requirement is a little bit vague but what it means in practice is that you must notify your carrier of an uninsured/underinsured motorist claim as soon as it becomes evident that the insurance coverage of the other driver is inadequate to compensate you for your injuries and damages.

This determination may take some time since insurance companies are not always willing to turn over insurance policy limits information on their drivers. Often times, insurance companies will turn over policy limits information only when a demand in excess of insurance policy limits is made and the insurance company feels that legitimate claims may be made in excess of policy limits.

This information may come well into the personal injury claims process. In fact, it may well be that the policy limits are not known until formal discovery is conducted in the litigation process. As such, "as soon as practicable" could be weeks, months or years after the accident has occurred. Only once an insured driver knows of a possible uninsured/underinsured motorist claim must the driver notify his or her insurance company of the claim.

The statute of limitations, always something to watch closely in every personal injury matter, is less of a concern in uninsured/underinsured motorist claims. Personal injury claims, including auto accidents, have a 3 year statute of limitation. The limitation period is shortened to 2 years in case of governmental defendants. However, the statute of limitations on a uninsured/underinsured motorist claims is 6 years. An uninsured/underinsured motorist claim is contractual in nature and disputes on written contracts have a 6 year statute of limitations.

Keep in mind that the statute of limitations is not the same as the notice requirement. The notice to a driver's insurance company must be made once the uninsured/underinsured claim is known. Of course, if this comes years after the accident, the longer statute of limitations on uninsured/underinsured claims provides the driver with added protection.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

The New Mexico Court of Appeals addressed the exclusivity provisions of the Workers' Compensation Act in Sarah Quintero v. State of New Mexico Department of Transportation. The case presented an interesting issue of first impression of whether the New Mexico Workers' Compensation Act provides the exclusive remedy in the case of a worker employed by one agency of the State who was injured as a result of the negligence of another separate agency. The Court ruled that it did not.

The facts are pretty straightforward. Sarah Quintero worked for the Department of Public Safety. Her job required no travel. She used the State's public transportation system, provided by the Department of Transportation, for commuting to work. She was injured at a Park and Ride facility when she stepped into an unmarked, unlit, unprotected hole in the facility's parking lot. She suffered a compound fracture to her leg as a result of the accident. The Department of Public Safety terminated her employment and refused worker's compensation coverage for her injuries arguing that they were not work related.

This position did not stop the State from later arguing that workers' compensation was the exclusive remedy when Ms. Quintero sued the State of New Mexico and the Department of Transportation for personal injuries in a premises liability action. The State argued for dismissal of her claims on the basis of workers' compensation exclusivity. The case illustrates the lengths to which employers, including the State of New Mexico, will go to avoid the fair compensation of their employees by invoking the protection of the Workers' Compensation Act. This case is particularly egregious since the State denied workers' compensation on one end, and attempted to enlist its protection on the other. Fortunately, the Court of Appeals was not inclined to adopt their abusive and opportunistic position.

The ruling rested primarily on two grounds. First, there is a general exception to workers' compensation coverage for travel to and from work known at the "going and coming rule." In fact, the rule is regularly invoked by employers to avoid workers' compensation coverage for workers' injured in route to or from work. Clearly, in this case, Ms. Quintero was en route to work which served the basis for the initial finding by her employer that her injuries were not work related.

Perhaps more importantly, the Court addressed the unfairness of a rule that would deny rights to all state or municipal employees who suffer injuries en route to work as a result of the negligence of the transportation or transit systems on which they travel. Clearly, a clerical worker traveling to work by road, bus or train is not doing so as part of their employment any more than any other citizen. Moreover, allowing such a broad interpretation of workers' compensation exclusivity would lead to the complete denial of a state employee's rights when dealing with any state agency. The outcome would be both absurd and profoundly unjust.

However, there are cases in New Mexico which have come to precisely that conclusion. So it may be expected that the State will appeal this ruling to the New Mexico Supreme Court. The dissenting opinion in the case has lit the way. In light of the lengths to which the courts and the legislature will go to protect employers against their own negligence toward their employees, it will not be at all surprising if this case is reversed.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

The 10th Circuit Court of Appeals addressed the scope of agency and respondeat superior under New Mexico law in Frederick v. Swift Transportation. The case addressed these issues in the context of a trucking accident involving a truck driver who had ingested methamphetamine.

At trial, the jury awarded the plaintiff $23,500,000. The court reduced the judgment to $15,275,000 based upon the plaintiff's comparative negligence in the accident. Swift Transportation appealed on several grounds including the court's ruling that the driver acted within the course and scope of employment as a matter of law. Based upon this ruling, the court issued a jury instruction that Swift was liable for the negligence of its driver.

Swift argued that the driver was outside the course and scope of employment due to the driver's consumption of methamphetamine. In part, Swift argued that it was a disputed fact whether the meth was ingested prior to or after the accident.

The 10th Circuit relied on New Mexico law citing Ovecka v. Burlington Northern as follows, "whether an employee was acting within the scope of his employment is [generally] a question of fact for the jury." However, the court cited Ovecka further, "when no facts are in dispute and the undisputed facts lend themselves to only one conclusion, the issue may properly be decided as a matter of law."

The Court cited New Mexico's uniform jury instructions which state that an employee is acting within the scope of employment when:

1. It was something fairly and naturally incidental to the employer's business assigned to the employee, and
2. It was done while the employee was engaged in the employer's business with the view of furthering the employer's interest and did not arise entirely from some external, independent and personal motive on the part of the employee.

The Court found that it was undisputed that the driver was acting within the course and scope of employment as set forth under New Mexico law. The Court ruled further that the ingestion of meth did not remove the driver from the course and scope of employment no matter when the meth was ingested. The Court was careful to state that the ingestion of drugs might remove an employee from the course and scope of employment depending on the circumstances. However, in this case, the driver was clearly pursuing the interests of the employer and the use of meth did not meet the exception.

Interestingly, the Court did not mention the widespread use of meth among truck drivers due to the demands of the job. However, it is certainly something to keep in mind for those injured in a trucking accident since it is clear from Frederick v. Swift that the employer is held responsible for this on the job drug usage which in turn may be factored into an award of punitive damages.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

Slip and fall accidents are fairly common. Those injured in a slip and fall accident often have unrealistic expectations of financial recovery and often assume that there is liability simply by virtue of the accident. In doing so, they may fail to recognize their shared responsibility for the accident and the injuries. Premises liability is not absolute. New Mexico follows principles of comparative negligence which may and often does greatly diminish or destroy a slip and fall claim.

In New Mexico, every person has a duty to exercise reasonable care to protect themselves from harm. This includes protecting themselves from slip and fall accidents on the premises of another, whether on business or personal property. As a result, individuals are imputed knowledge of obvious dangers and failure to avoid those dangers may be considered the sole or partial cause of the slip and fall accident.

This issue comes up frequently in cases of ice and snow. Falling on fresh ice or snow is a far different matter than falling on ice that is unexpected and not apparent to the eye. For example, falling in a parking lot on ice immediately following a snow storm will likely be found to be the sole responsibility of the injured person due to the assumption of risk in knowingly walking on ice and snow. In addition, property owners will not be held responsible for those conditions that they cannot control. On the other hand, if a person falls several days after a snow storm and the property owner had time to remove the ice and snow and should have known of the danger, then it is far less likely that the injured person would be attributed comparative negligence. In other words, the liability and fault would fall strictly on the property owner.

These principles carry across a wide array of slip and fall accidents. Comparative negligence and the duty of reasonable care will often completely destroy a slip and fall claim. When someone has suffered serious injuries, this is a difficult conversation to have with the injured person. Unfortunately, all accidents are not compensable in personal injury litigation. Sometimes accidents just happen and there is no liability or fault on which to bring a claim.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

KOAT News recently reported that teen suicide rates were rising in Rio Rancho. In 2008, Rio Rancho recorded 10 suicides, while in 2009, the rate jumped to 18. So far in 2010, there have been 5. The New Mexico Suicide Prevention Coalition claims that New Mexico steadily ranks in the top five states in the nation for suicides. Consequently, suicide is the number two killer of individuals aged 15-24 in New Mexico.

It is very important to know the risks and signs of suicide. It is not always easy to tell. Some categories are easier to detect than others. Those who exhibit or have been diagnosed with mental health disorders are at a high risk for suicidal behavior, as are those who have substance abuse problems. Family history may be a risk factor particularly cases involving a history of trauma or abuse. A lack of social support or feelings of isolation can spur relationship difficulties along with suicidal thinking.

One very important influence that seems to be at play with teen suicide is media coverage. Public attention, particularly media coverage, can and often does result in copycat behavior. In fact, there is a name for it, the Werther Effect, named for the novel The Sorrows of Young Werther by Johann Wolfgang von Goethe in which young Werther ultimately commits suicide. Following the release of the novel, there was a rash of copycat suicides, among the first documented instances of the phenomenon.

Studies show that public attention has a direct bearing on copycat suicides with greater numbers associated with greater attention. Thus significant media coverage can have tragic and unintended consequences. The effect seems to have an inordinate effect on teens as may be reflected in the Rio Rancho numbers, as well as the numbers that occur on the reservations and other communities that suffer sudden and unexplained rise in suicide rates. This is something that all parents should take extremely seriously where there has been a suicide in the community.

The following warning signs should raise concern for parents, particularly following another suicide in the community:

1) depression, including loss of interest in daily activities,
2) withdrawal from friends and/or family,
3) change in sleep, as well as anxiety or fatigue,
4) change in weight or appetite,
5) feelings of guilt, hopelessness or worthlessness,
6) thoughts of death or wishes to be dead,
7) looking for ways to kill oneself, including reckless or risky behavior,
8) increased substance use,
9) giving away treasured belongings, and
10) irritability, anger or rage

Yet, there are also factors that can help a person get past suicidal thoughts. These include the effective treatment of mental or substance abuse disorders, deep family and relational connections, skill building in conflict resolution and problem solving, cultural, community and religious ties, and counseling.

If you or someone you know may be considering suicide, please contact the New Mexico Suicide Prevention Coalition at 505-401-9382. Additional resources are available through The New Mexico Suicide & Crisis Hotline at 1-800-SUICIDE and the National Suicide Prevention Lifeline at 1-800-273-TALK.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

The Tort Reform movement paints every personal injury claim as an assault on small business, doctors, health care, the public, the very American way of life. Every jury verdict is claimed as a victory of greedy trial lawyers and opportunistic plaintiffs who are just trying to profit at the expense of America. The tort reformers are not subtle in their claims. Unfortunately, their claims are completely false directed toward the protection of insurance industry profits.

This truth is born out in court every day, in every state, in every personal injury case. The mention of insurance coverage in personal injury actions is strictly prohibited. It is argued that jurors would unfairly factor the coverage into their decision-making. What escapes reason and discussion in the Tort Reform error is that jurors routinely and erroneously factor into their decisions the possibility that a large verdict would unduly harm the defendant whether it be a doctor, small business, large business, or individual.

In fact, this lie underlies the entire Tort Reform campaign which relies on the fact that the jury and the public are never told the truth behind each and every personal injury case. That truth is that personal injury cases are rarely filed at all unless there is insurance coverage. Insurance is called upon to reimburse plaintiffs for their injuries. In most cases, there is no point in filing against an uninsured defendant. Most uninsured individuals or businesses have no assets either. One of the first things anyone does upon the acquisition of wealth or assets is to obtain insurance to protect them. Where the defendant is uninsured, which is quite typical in auto accidents in New Mexico, the typical best case outcome is a large but uncollectable verdict. Few lawyers would put their clients or themselves through such a futile endeavor.

The truth is that the insurance industry, which records obscene earnings and profits each year, relies on the jury's lack of knowledge to protect not the doctor, the small business or the public but to protect its own profits. In the end, due to the huge success the lies of Tort Reform have in had on swaying juries against injured plaintiffs and effectively passing on the insurance industry's liability, it is both the public and the plaintiff who are harmed.

The Tort Reform movement in its successful campaigns for the protection of the insurance industry effectively shifts the costs of the insurance industry to the injured plaintiff and the public. After all, who pays when a plaintiff is horribly injured, forced to endure a lifetime of medical treatment and often unable to work? Medicare, Medicaid and Social Security then pick up the tab for what was contractually the responsibility of an insurance company. These costs are of course passed on to the public through taxes and debt.

Keep this in mind the next time you hear that personal injury suits harm the public. It is not the personal injury suit, the attorneys, or the plaintiff that hurt the public, it is the passing on of insurance coverage responsibilities from the ever successful and profitable insurance industry to the public health and welfare agencies that causes the true harm to the public.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

A recent incident in Albuquerque points out the dangers of leaving children unattended in cars. The incident involved a bus driver for a non-profit that provides low income child care to Albuquerque residents. The bus driver had made his rounds dropping off kids at their homes. He forgot about two toddlers, ages 7 months and 1 year old, who were lying quietly in their car seats. He finished his rounds, returned the van to Peanut Butter and Jelly Family Services, locked the doors and went home. Fortunately for all, the children suffered only dehydration and diaper rash. The outcome is often times far worse.

Anyone reading about the incident would be very unsympathetic to the bus driver. His negligence is unacceptable. Surprisingly, this behavior is not all that unusual. Many times, adults leave kids in vehicles for convenience. On occasion, as in this case, the behavior is accidental. About the same time the story arose in Albuquerque, several news outlets carried similar stories. CNN carried one that ended tragically. Basically, the mother and father of two young children changed their normal routine for dropping off the kids at daycare. A toddler was placed in the mom's car in the morning. The dad usually dropped the kids at daycare. As in the case of the Albuquerque bus driver, the toddler lied quietly in his cars seat. The mom in the trance of her daily routine went to work, worked all day, went to pick up her son at the daycare, only then to realize what had happened. The child died.

CNN reports during the same story that 37 children die each year as a result of being left in vehicles. There have already been 20 reported cases through June of this year. It is uncommon that a child would be left in a car all day as occurred in the CNN report. Instead, these tragedies typically happen very quickly. Hyperthermia (heat stroke) can occur rapidly in children in an unattended vehicle. An unattended car can have a temperature 40 degrees higher than the heat outside. In the intense sun of New Mexico, the variance can be much greater. Simple math says it all even in moderate weather. Children in particular are not equipped to endure such heat. Exposure to that kind of heat even briefly can be catastrophic.

Though, the incident with the Albuquerque bus driver ended far better than it might have, the driver is facing two counts of felony child abuse. He, the children, and their parents are lucky the charges are not more serious. More often than not, these incidents lead to death. There is simply no good reason for leaving a child unattended in a vehicle no matter what the circumstances.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

There are many reasons to wear a seatbelt other than the laws requiring it. The top ten reasons for proper seatbelt use are apparent from the following statistics from a study at James Mason University:

1. One in five drivers are involved in an auto accident each year.


2. Auto accidents are the leading cause of death for those under the age of 45.


3. Close to 35,000 people die each year in auto accidents, half of whom would have been saved by the use of seatbelts.


4. For every one percent increase in the use of seatbelts, 172 lives are saved.


5. Seatbelts reduce auto accident fatalities by 60-70 percent.


6. A person is 25 times more likely to die when thrown from a vehicle.


7. Children are often killed by being crushed by unrestrained adults.


8. The most common injuries to children in car accidents are head injuries resulting in brain damage, traumatic brain injury, epilepsy or death.


9. Over 80% of child fatalities in auto accidents would have been prevented by the proper use of seatbelts or car seats. Unfortunately, less than ten percent of children are properly restrained.


10. Seatbelts may provide the greatest and only protection against DWI drivers. This is very important in New Mexico which historically has among the worst DWI problems in the country.

A seatbelt may very well save your life in the case of a car accident. If that is not enough, it may save your child. Just as importantly, it could minimize physical injuries. In New Mexico where drivers are chronically uninsured or underinsured, minimization of physical injuries may very well save you and your family from financial disaster. There many more good reasons for wearing a seatbelt and none that would suggest otherwise.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

Reports in the press show that BP immediately began preparing for litigation following the spill. The company did this as it touted its intention to take full responsibility for the spill. It seems its partners in the Deepwater Horizon well did the same. Unlike BP who downplayed the disaster in the early weeks in efforts to get waivers and settlements on the cheap, its partners have gone the other direction alleging "gross negligence" on the part of BP in the disaster.

Of course, BP's partners, Anadarko Petroleum Corp. and Mitsui Oil Exploration Company of Japan, share BP's motivations. They are attempting to evade their shared responsibility for the disaster as partners in the well. According to the New York Times, BP has made a demand of $272 million on Anadarko for its 25 percent share, and $111 million form Mitsui for its 10 percent share. These demands will clearly go much higher in the coming months and years as the damages and legal claims continue to mount.

The public position taken by Anadarko in claiming gross negligence in order to escape its contractual responsibility is remarkable for a number of reasons. The same is true of Mitsui who has reserved judgment in assessing its contractual responsibilities. First, in its early preparation for litigation, BP apparently snatched up many industry experts. This effectively conflicted many of the experts out of representing plaintiffs. BP will be unable to take the same tact with its own partners since it will be the partners' experts that assess BP's level of negligence. Second, and related to the first, it may be BP's own experts that provide much of the groundwork for the thousands of civil lawsuits that are already in the works, and the many more that are sure to come against BP.

Predictably, BP will fight any claims of gross negligence by both its partners and the many plaintiffs in the civil lawsuits. It is also predictable that Anadarko will reverse position on the issue of gross negligence to avoid punitive damages in the civil lawsuits. It is equally predictable that the Tort Reformers, the right and the oil industry will continue to push for caps on liability both for this disaster and others to come in the future.

Much like Transocean who has pushed for $25 million caps in liability while recovering hundreds of millions of dollars in insurance for the destruction of its rig, BP, Anadarko and Mitsui will waste no time in making claims against one another for their business losses while one and all will join in the refrain to prevent full and fair recovery by the true victims of the BP disaster, the people and businesses along the Gulf Coast. It really its a race to bottom of business, social and community morality.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com