New Mexico Injury Attorney Blog

Shopping can be dangerous sport. Accidents result daily in grocery stores, convenience stores, retail establishments, malls, department stores and so on. The "Spill on Aisle 7" may be you.

In fact, these accidents often result in very serious personal injury. Sometimes, the seriousness of the injuries may not be immediately apparent.

There are many stores that will attempt to take advantage of the fact that the injuries do not immediately appear serious. Some will attempt to get an injured customer to sign a release immediately, even before leaving the store, for a nominal amount of money. It is not uncommon for stores to offer $100 or less for full settlement of claims. Neither is it uncommon for injured customers to take the deal.

Unfortunately, they often soon find that it was not benevolence or good will that dictated the offer of settlement. They will also find that the settlement agreement and release of claims is fully enforceable with few exceptions, no matter how serious the injuries turn out to be.

The lesson is clear! There is no good reason to settle at the time of the accident. There is never any reason to sign a release of claims before you know what claims you may have. In other words, you cannot possibly exercise reasonable judgment in settling claims until you know what your injuries are. You often cannot know the full extent of your injuries without medical attention.

For example, customers often suffer slip and fall accidents. Among the most common injuries suffered in these kinds of accidents are twisted knees. What may seem like simply a sore knee may later turn out to be a torn ACL or MCL. Other injuries may also appear at first less serious than they really are. A sore wrist turns out to be a broken radius. A sore tailbone or lower back is a ruptured or herniated disc. The list goes on.

The stores know this. This is the purpose behind the quick settlement. It is certainly not driven by customer service and appreciation. It is a cynical and profit driven tactic to avoid full responsibility for accidents that occur in their facilities.

If you are injured in an accident like this, take some time to make sure you are o.k. If your pain persists, see a doctor. If your injuries are serious and the store is responsible for the accident, then you may also want to consult an experienced New Mexico personal injury attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

Many times, an injured party is angry and frustrated as a result of an accident. They often call wanting immediately to file their personal injury suit against the responsible party. This may in fact be the natural reaction to an injury, particularly where there are significant damages suffered as a result of the negligence fault of another person.

Filing suit right out of the gate may be appropriate in some cases. However, in most personal injury cases, the more appropriate and prudent course of action would dictate against this. Some folks cannot accept this and their impatience dictates immediately legal action. We typically do not work with these clients.

The fact is the approach that says, "file suit and ask questions later", can make the case much more difficult to resolve. This approach is more likely to delay the resolution of the case than to expedite it. Most importantly for rational plaintiffs, litigation is very expensive. The client bears the costs of litigation. So every dollar spent on litigation is a dollar the client does not receive from the recovery.

It is really not too difficult to understand why this would be so. Once a lawsuit is filed, the case is no longer in the hands of an adjuster but in the hands of a insurance defense attorney. Once the file reaches a defense attorney, depending on the firm, a client may expect full blown litigation. This means at a minimum, discovery, depositions and inevitable motions to dismiss and/or motions for summary judgment. In many cases, it means the necessity of expert witnesses on both sides.

Some clients may think the more experts the defense hires, the better since it costs them money. Unfortunately, it costs the client money as well since a deposition of the defense expert requires that the plaintiff pay for the expert witness' fees as well as the costs of court reporters. This is very expensive, and again, it comes out of the client's recovery if there is any.

Taking a generous view of defense tactics, the defense attorney must as a matter of professionalism and competency jump through all these hoops to fully protect the interests of the insurance company client. Others may take a less generous view in suggesting that protracted litigation and refusal to reasonably settle a claim is dictated more by the need to generate billable hours by the insurance defense attorney than the facts of the case.

No matter what the cause, litigation is expensive. Often times, it is unnecessary and the injured client's interest are far bettered served by pre-litigation resolution and settlement of personal injury claims. Though insurance companies and adjusters often get a bad rap, sometimes deservedly so, most adjusters understand the math as well. Litigation is expensive for both sides and the costs of litigation will be considered by all but the most unreasonable and uneducated adjusters.

Litigation is often necessary for many reasons and an experienced personal injury attorney will know when it is time to file suit. Likewise, the attorney will also understand that the time for filing suit is rarely at the inception of the claim.

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

The valuation of a personal injury claim for injuries suffered in an auto accident can be quite challenging under the best of circumstances. Assuming liability and fault for the accident on the other driver, a person injured in an auto accident is entitled to recovery for a wide range of injuries and damages.

The damages that an injured person may recover in a car accident include recovery for medical expenses, non-medical expenses, lost income, pain and suffering, disfigurement and permanent injuries, aggravation of preexisting injuries, loss of consortium, loss of household services, and in exceptional cases, punitive damages.

In order to recover for these injuries and damages, the person must first prove that the injuries actually exist. They must then prove they were caused by the accident. These first two requirements alone can often be a challenge, particularly in cases where the person has soft tissue injuries or significant preexisting injuries or medical conditions. However, even once past these two seemingly straightforward requirements, the real challenge is in placing a value on each and every injury.

This task is made more difficult when dealing with one of the many insurance companies that use the Colossus program. This software program was designed and licensed for the valuation of claims. Purportedly, it considers a large number of factors in the valuation. Unfortunately, it does not consider circumstances on an individualized basis.

Instead, it treats all injured parties as a homogenized commodity. Every accident and every injured person is treated the same. This is done for the convenience and efficiency of the insurance company. Rest assured, it is not for the benefit of the injured person or, his or her family. The result is that the opening offers are often very low in dealing with companies that use Colossus.

However, having said all that, the opening offers are typically very low in dealing with most insurance companies. This includes those that do not use Colossus. The only real difference is that some adjusters take the Colossus value as gospel and are reluctant for many reasons, including job security, to move off the Colossus figure.

This is why having an car accident attorney experienced in insurance issues such as Colossus is so valuable. The challenge is clearly illustrating to the insurance company the injuries and damages suffered which must include consideration of individual circumstances.

You are not a number. More often than not, the insurance company must be reminded of this whether they use Colossus or not.

Collins & Collins, P.C.
Albuquerque Attorneys

According to the New York Times, bankers are jumping into the personal injury lawsuit business along with hedge funds and private investors. The list of those banking institutions embracing the much maligned personal injury trial lawyers for their own profit is noteworthy, if not surprising.

According to the New York Times, Counsel Financial of Buffalo is the largest such personal injury lawsuit finance company with $200 million in lawsuit financing loans outstanding. Counsel charges annual interest of 18% on the loans. Counsel is financed through Citigroup. Joining the ranks of Citigroup are Credit Suisse and Deutsche Bank among others. It is perhaps safe to assume that each is a card-carrying member of the United States Chamber of Commerce though I could find no membership rolls for the Chamber.

Why is this relevant? The US Chamber is the chief proponent of Tort Reform in the United States. The New York Times article cites Lisa A. Rickard of the Institute for Legal Reform, a creation of the United States Chamber of Commerce for the promotion of Tort Reform, "It sends shivers down the spines of general counsels all across the globe."

Apparently, many companies spurred on by the myths of lawsuit abuse created by the US Chamber and the Tort Reform movement fear that these lenders will go beyond mere financing and begin to solicit lawsuits. And why wouldn't they?

According the New York Times Article, Counsel made a profit of $11 million on a $35 million loan to help finance the ground zero worker lawsuit. With returns like that, more and more banks, many of whom are members of the Chamber and staunch supporters of Tort Reform will jump on the bandwagon.

It is estimated that there are one billion dollars in lawsuit loans outstanding at any given time. Of particular note is investment in medical malpractice cases and class action lawsuits. It is more than ironic following the recent election cycle where the US Chamber, along with its members, have perennially led the drum roll blaming trial lawyers for the strain on businesses of class action lawsuits and the constant harping about the mythological medical malpractice crisis.

In the true spirit of capitalism, Courts have ruled that it is not illegal for these financiers to drum up lawsuits themselves. These courts are not just from liberal jurisdictions like Massachusetts, but from Texas, South Carolina and Ohio who have led the way in medical malpractice limitations and caps among other Tort Reform style initiatives.

Of course, the costs of financing are carried by the plaintiff in the case of a victory at trial, and the lawyers in case of a loss. The creditors get paid either way. Most remarkable, the article cites numbers and cases showing that in many cases, the costs of financing resulted in net losses to the plaintiffs despite trial victories. In other cases where the cases were lost, lawyers were forced into bankruptcy.

The logic is clear. So long banks get paid, all is well in the world of Tort Reform. It seems almost inevitable that there will soon be attacks on the trial lawyers fees despite the high risks of litigation and their liability on the loans despite the outcome. This has already begun with attorneys being forced to carry the costs of the financing in the Ground Zero litigation. Rest assured, there will be no similar movement to limit the interest rates on these loans.

Read the story at New York Times

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

A New York jury awarded $18.5 million to a man wrongfully convicted and incarcerated for 12 years. Alan Newton was convicted in 1985 of rape, robbery and assault and was served 21 years prior to exoneration as a result of the work of the Innocence Project.

Newton was convicted based upon identification by the victim. The victim, who was abducted from a convenience store, raped and had her face sliced by a box-cutter, identified Newton from an array of over 200 pictures. She identified him despite the fact that she had never gotten a clear look at him due to darkness.

Newton was convicted despite a strong alibi that he was with his fiancé, her children, and other relatives at a movie at the time of the incident. Newton requested a copy of the rape kit in order to conduct DNA testing. The rape kit was misplaced by NYPD. As such, he was unable to present DNA evidence of his innocence.

Newton repeatedly sought post-conviction relief to obtain the rape kit for DNA testing. The Court repeatedly denied the request stating simply that the rape kit was unavailable, having been misplaced.

Through the efforts of the Innocence Project, the rape kit was finally located in 2005. DNA testing proved that Newton was innocent of the crimes for which he had been convicted.

Upon release, Newton filed a §1983 Civil Rights action against the City of New York. Following years of litigation, a jury awarded Newton $18.5 million for the wrongful conviction and imprisonment.

Newton was hopeful that the case would help others who had been wrongfully convicted. Hopefully, it will also help to avoid future such wrongful convictions. Countless individuals are wrongfully convicted each year throughout the nation. It is hard to imagine a more harrowing experience for anyone.

The Innocence Project is working hard to free those wrongfully convicted while promoting policies and procedures to avoid future wrongful convictions. Once the innocent individuals are exonerated, it is left to the work of trial attorneys, courts and juries to right the wrongs of a flawed criminal justice system.

Read the whole story at NY1

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

Research under the direction of Dr. Philip Stahel, M.D., a surgeon at Denver Health Medical Center, illustrates the magnitude and prevalence of major medical errors. Dr. Stahel and his colleagues analyzed 27,370 medical records drawn from a medical malpractice insurance company's database.

The insurance company from which the data was taken provides insurance for 6000 Colorado doctors. Though the data covered only Colorado medical providers, the findings are consistent with other studies on the issue of medical malpractice.

The study focused primarily on major or catastrophic medical errors defined as patient and/or surgical site mix-ups. The study found that these catastrophic errors constitute .05% of total medical errors. Dr. Stahel stated that the actual numbers are likely much higher.

The report from Dr. Stahel is reported by CNN Health and on Health.com. The CNN Report also quotes Peter Pronovost, MD, professor at Johns Hopkins University School of Medicine in Baltimore, who stated that 98,000 patients die each year in hospitals as a result of medical error and many more suffer lesser preventable harm. Health.com reports one study found that a random sampling of 100 hospital charts would on average find 40 errors.

Though the 98,000 figure relates to hospital deaths, many medical errors (up to one third) result from medical procedures conducted in the doctor's offices. In addition, many major operating room mistakes result from pre-surgical testing errors in the imaging and diagnostic procedures.

In short, medical error and medical malpractice is a very real problem. Not only is it a real problem, it is a pervasive problem potentially affecting each and every patient receiving medical care. This raises the question of why each and every election cycle comes with renewed attacks on trial lawyers and injured patients.

The insurance industry which is well aware of these numbers continues to lobby for caps on liability for medical malpractice. They do this as they continue to raise the malpractice insurance rates on doctors. They do this despite the fact that medical malpractice claims have declined significantly in recent years. The report from Dr. Stahel found that only 22% of the major medical errors found in his study resulted in lawsuits.

The bottom line is that patients harmed by undeniable medical error are barred from compensation while Doctors continue to pay skyrocketing medical malpractice insurance rates on claims that are rarely made. The insurance industry has successfully created a Medical Malpractice Myth that harms both patients and doctors. The insurance industry profits at the expense of both injured patients and doctors, crying foul all the way to the bank.

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

When a person suffers personal injuries in a car accident in New Mexico, there is a pretty good chance that the only insurance coverage available will be from their own uninsured/underinsured coverage (UM/UIM). New Mexico leads the nation in uninsured motorists. Unfortunately, New Mexico drivers are just as likely to carry no uninsured or underinsured motorist coverage.

Often times, drivers do not carry UM/UIM coverage because they carry no insurance at all. In addition, there seemed to be a trend among some, not all, insurance companies encouraging the waiver of UM/UIM coverage. There have been numerous cases addressing the requirements for an insured rejection of uninsured/underinsured motorist coverage.

There is public policy in New Mexico for drivers to carry UM/UIM coverage. As such, the coverage is imputed unless rejected by the insured. For an effective rejection of coverage, the insurance policy must include a written rejection of the coverage to be valid.

The New Mexico Supreme Court has now expanded the scope of the rules for a valid rejection of uninsured/underinsured coverage to an insured driver's election to carry UM/UIM at an amount below the policy's liability limits.

Essentially, the Court held in Progressive Northwestern Insurance Company v. Weed Warriors that an election to carry UM/UIM at levels below liability limits constitutes a rejection of UM/UIM. As a rejection, it must therefore be in writing and attached to the policy.

The Court reiterated the State's public policy of expanding UM/UIM coverage for the State's drivers. The Court flatly rejected any suggestion that a driver must request the coverage. Instead, the coverage must be offered to the insured. The Court stated that coverage cannot be rejected unless it is first offered. This seems obvious to most of us outside those insurance companies that were discouraging UM/UIM coverage. In addition, the Court stressed the fact that the coverage must be offered to promote the public policy toward maximum UM/UIM coverage for all drivers.

In short, Weed Warriors has expanded prior case-law to mandate that drivers be offered UM/UIM coverage to the same level as their liability limits. Though drivers are free to choose lower limits or to reject UM/UIM coverage altogether (a very bad idea), any such rejection must be in writing and attached to the policy.

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

New Mexico's family purpose doctrine arises frequently in car accidents. The situation most frequently arises in personal injury claims where a child or young adult has caused an accident, and the inured party seeks recovery against the parents.

Questions arise frequently on both sides of accident. The person injured as a result of the accident will want to know may be held responsible for the accident. The other side, often the parents, will want to know the extent of their own liability for the accident. The issue is particularly important when the vehicle the child is driving is uninsured or underinsured. In New Mexico which leads the nation in uninsured drivers, this problem arises as often as not.

The law in New Mexico is pretty well established as set forth in the 1987 Supreme Court case of Madrid v. Shryock. The holding in Shryock has been codified in New Mexico Uniform Jury Instruction §13.1210.

Essentially, the law states that if the car was provided for general use for family members and/or was provided for use to the negligent driver for any purpose, then the head of household is liable for any damages caused by the negligent driver. It must be established that the head of household, typically a parent, provided the car to the negligent driver.

Incidentally, the Court in Shryock found that the facts did not meet the family purpose test. The young man who caused the accident actually owned the vehicle. He made all payments for the vehicle, insured the vehicle and paid for maintenance from his own personal funds. The only connection between his parents and the vehicle was the fact that they had co-signed on the financing. The Court found this was insufficient for liability for the parents.

The Court laid out the requirements in terms of control over the use of the vehicle stating:

Nothing was produced to overcome Vincent Madrid's denial of authority to control the use of the vehicle. Steven asserted that only he had such authority and, in fact, only he exercised that control over the use of the vehicle. The mere facts that Steven lived in the family home and that a family member was a passenger in the vehicle at the time of the accident are insufficient to establish a "family purpose."

In this case, the injured party is limited to recovery against the driver and his insurance company. In many cases, the result might be much different turning on the control of the vehicle. Evidence of control would include financial responsibly for car payments, auto insurance and maintenance among other factors. For those parents who do exert control over the vehicle, they would be well advised to carry ample liability coverage.

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