New Mexico Injury Attorney Blog

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