New Mexico Injury Attorney Blog

Many with personal injury claims are very surprised to learn that their medical insurance carrier has asserted a subrogation interest in their personal injury settlement or judgment.

Personal injury victims often are frustrated that they have paid medical insurance premiums for years and now they must reimburse their insurance company for medical benefits related to their injuries. The frustration is understandable but is based on a misunderstanding of the basis for the claimed interest.

In essence, the insurer is asserting a claim against the party responsible for the injuries. The medical carrier is entitled to recover from the person or entity causing the injuries for which medical benefits are necessary. It is really the party responsible for the injuries that is repaying the medical bills. The injured party is really just a conduit through which the bills are reimbursed.

For many, this explanation does little to lessen the frustration. An example can more clearly illustrate the principles of medical insurance subrogation. If a person is injured and requires medical coverage, the medical provider must provide the medical benefits pursuant to the insurance policy. In most cases of injury, there is not a third party to sue. After all, many people are injured through no fault but their. Just as common, there is a third party that caused the injuries who lacks insurance or financial resources to compensate for the injuries.

In these cases, an injured person would owe their insurance company no reimbursement for medical benefits associated with their injuries. However, if there is third party that has insurance or other financial resources to compensate for the injuries, then the insurance company is entitled to recover for medical benefits under the insurance contract. In fact, this is written into every medical insurance policy.

Any settlement or judgment will reflect the medical insurer's lien. In other words, the value of the settlement or judgment accounts for the medical costs and any associated liens. The result is that the settlement or judgment will be considerably higher than the medical costs.

The total settlement or verdict should factor in the medical costs along with all other recoverable damages for injuries suffered in the accident. The goal is to achieve a settlement or judgment that fully compensates the personal injury victim above and beyond the medical costs.

Once personal injury victims understand the basis and rationale for the insurance company's subrogation interest, most can accept the responsibility for repayment of the lien. In those rare cases where an injured person refuses to reimburse the medical insurance carrier that has asserted an interest, they may be facing a lawsuit by the medical carrier for the full value of the lien.

This is a bad spot to be in since most insurance carrier's will reduce their lien even beyond the legally required reduction for attorney's fees if the lien reduction is negotiated in advance of settlement. Most are not as open to negotiation after the fact.

Collins & Collins, P.C.
Albuquerque Attorneys

People are often injured at work. In fact, in 2007 alone, there were almost 4 million work related injuries over 5000 of which were fatal. On many occasions, these injuries are caused by individuals outside the injured worker's employer.

The most immediate question that arises for an injured worker in this situation is who is responsible for his or her injuries. The answer is both the employer and the third party. However, this answer is qualified by the Worker's Compensation Act.

The employer is required by New Mexico law under the Worker's Compensation Act to carry worker's compensation insurance for all work related injuries. Therefore the injured worker can and should make a worker's compensation claim through the employer's insurance.

In return for compliance with the Worker's Compensation Act, the employer is sheltered from personal injury lawsuits by the employee in all but the rarest situations. In fact, the employer's gross negligence is not enough to waive the protections of the Worker's Compensation Act.

In short, the employer will not be liable in tort for any injuries suffered by the worker. The employer's liability and the worker's right to recover against the employer are both limited to recovery under the Worker's Compensation Act.

Unfortunately, the Worker's Compensation coverage is often grossly inadequate to cover the full spectrum of damages in cases of serious or catastrophic work related injuries. Though the Worker's Compensation Act limits the employer's liability, it does not limit the liability of third parties that caused the harm.

There are countless situations where the worker's injuries were caused by third parties. These include injuries caused by contractors, sub-contractors, vendors, customers, visitors, guests and others that come in contact with the worker during the course of a workday. Among the most common are auto accidents.

By way of example, in case of an auto accident, the worker would be limited to recovery against the employer under the Worker's Compensation Act even if the employer were partly responsible for the accident. This would be the case in virtually all cases unless the conduct of the employer met the very employer friendly standards set forth in Delgado v. Phelps Dodge. Though the worker may assert a worker's compensation claim in this case, the worker would be well advised to explore recovery from the other driver.

The same would hold true for any other work related injury caused by a third party. Due to the severe limitations on recovery under the Worker's Compensation Act, it may well be that full recovery for the worker's injuries and damages will come only through the third party.

Collins & Collins, P.C.
Albuquerque Attorneys

With winter storms approaching, so too are the inevitable slip and fall accidents on ice that come with them. These accidents will occur in all manner of situations. They will occur around the home on driveways and sidewalks. They also commonly occur at public facilities such as malls, strip centers, gas stations and every other variety of public space.

The injuries from a slip and fall on ice range from the mundane to the catastrophic. Falls on ice often come with knee, wrist and back injuries. Far too often, they even result in serious traumatic brain injury.

Often the first question the injured person or the injured person's family will have is whether the property owner/manager can be held liable for the injuries. The answer is dependent upon the circumstances of the case. The personal injury cases dealing with ice and snow have been long established in the New Mexico Supreme Court cases of Proctor v. Waxler (1972) and Crenshaw v. Firestone (1963).

Essentially, the court has ruled that snow and ice are such obvious hazards that pedestrians have a duty to protect themselves from harm. In fact, the court has ruled that the property owner/manager has no greater duty to protect the visitor than the visitor has him or herself.

The courts framed the issue in terms of assumption of risks. In other words, the pedestrian should know of the risk of ice and snow and by venturing out into the ice and snow assumes the risks of falls. The court in Crenshaw remarkably ruled that this is the case even if the owner/manager has knowledge of the risks and an opportunity to correct the dangerous conditions.

Both cases involved obvious risks of snow and ice. The accidents occurred soon after a winter storms. Neither addressed the situation of black ice which is clearly the most hazardous condition following a storm.

Under the law, a pedestrian indeed has an equal duty to protect him or herself from known dangers. However, black ice is typically not a known danger to a pedestrian. The essence of black ice is that it is neither apparent nor obvious to the eye.

In cases of black ice, the owner/manager will have a much higher duty. In fact, it is the owner/manager alone who will have knowledge of the propensity for black ice on the property. It is also the owner/manager that is in the best position to both detect and correct the dangerous condition.

Of course, if a pedestrian is aware of the black ice and ventures on to it despite the risks, then again there will be significant issues regarding liability and comparative negligence. In fact, the claim could be barred completely when there is a high level of negligence on the part of the pedestrian. More likely, the fault and liability would be apportioned according the comparative negligence of each. With catastrophic injuries, even a high level of comparative negligence will not completely bar recovery.

There is a widely held misconception that there is strict liability for injuries suffered in a slip and fall accident, particularly when ice is involved. This is not the case. These cases rest on the negligence and comparative negligence of the parties. Both have a duty. And that duty will vary substantially from one case to the next.

Collins & Collins, P.C.
Albuquerque Attorneys

A study from the New England Journal of Medicine shows that hospital safety is not improving. The study was conducted from 2002 to 2007 in North Carolina hospitals. Though limited to North Carolina, it was suggested that the findings were reflective of national trends.

The findings are troubling for a number of reasons. The study is the first large scale study of hospital safety since the 1999 study from the Institute of Medicine that found up to 98,000 deaths and over one million injuries occur each year in the United States as a result of medical errors. Apparently, these numbers have no improved nor have they been widely disputed.

The study was focused on North Carolina due to the state's hospitals high level of involvement in programs designed to improve patient safety compared to hospitals in other states. Despite North Carolina's emphasis on patient safety, the study found that 18% of all hospital patients suffered harm as a result of their medical care. Of those, over 63% were preventable. Many of these errors lead to serious injuries with 2.4% ending in the patient's death. Perhaps in light of North Carolina's emphasis on patient safety which is lacking elsewhere, it is generous to extrapolate the findings to the rest of the nation's hospitals.

Remarkably, the study found that many of the errors were the result of failures to implement proven safety measures, some of which would appear to be obvious. The study is perhaps most troubling in light of the political climate surrounding medical malpractice lawsuits and the continuing myth of the medical malpractice lawsuit crisis. Opportunistic politicians, the insurance industry, many in the medical profession, and of course the Tort Reform movement ignore the reality of medical negligence. Instead there is a continued pressure for caps on medical malpractice awards. There are even those that would ban them completely.

These arguments are meant to protect insurance company profits. They do nothing for the medical profession. After all, is denial of the problem beneficial to the medical community? They certainly do nothing to protect the public.

To put the dangers of medical care in perspective (up to 98,000 American deaths and over a million injuries each year), lets take a look at gun related deaths. During the entire Vietnam War from 1958 to 1973, there were around 58,000 American soldiers killed. Since March of 2003, there have been around 4500 American soldiers killed in Iraq. The Center for Disease Control found that in 2002, there were 30,242 firearm-related deaths in the United States which included 17,108 suicides, 12,129 homicides and 1,005 undetermined/unintentional firearm deaths. The 12,129 homicides included legal intervention and war.

Add it all up with two major wars and one year of all gun related deaths (intentional, military, law enforcement, suicidal, accidental) and hospitals are still more lethal to Americans. Keep these numbers in mind the next time your hear a politician decry the attack of trial lawyers on doctors. You might also keep it in mind before your next hospital visit. Then finally you might ask what kind of greed, cynicism and opportunism would motivate a politician, insurance company or talk show host to argue against the only real protection and compensation afforded patients when they are harmed.

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Supreme Court in Progressive v. Weed Warriors established clearly that acceptance of uninsured/underinsured motorist coverage (UM/UIM) at levels below insurance liability limits constitutes a rejection of coverage. As such, the Court held that a written rejection attached to the policy was required for the rejection of coverage to be binding on the insured driver.

Several auto accident cases involving varying UM/UIM issues were basically on hold awaiting the ruling in Weed Warriors. These cases could not be decided without first having the ruling in Weed Warriors. The New Mexico Supreme Court case of Jordan v. Allstate consolidated these three cases (Jordan v. Allstate, Romero v. Progressive and Lucero v. Trujillo) to address a number of questions left remaining following Weed Warriors.

There were a number of very important issues raised in these cases. As a rejection of coverage per Weed Warriors, the first issue that arises is what form the rejection must take to be valid. Clearly under New Mexico law, a rejection of coverage must be in writing and attached to the policy. Jordan went further to state that the for this requirement to have any meaning insurers must provide premium charges for each level of UM/UIM so that an insured can make an informed decision. Remarkably, this was not the case in the past and insurers had little incentive to quantify the meager savings associated with rejections of UM/UIM coverage.

Though this may seem like little, it is a large stride forward in consumer protection. The insurance companies argued this was a violation of freedom of contract. The Court countered, essentially stating that the essence of freedom of contract is full disclosure. This would of course include pricing.

Perhaps most remarkable in the Jordan case is the fact that the holding was made retroactive. This means that all those rejections of UM/UIM coverage below liability limits back to the date of the statute are invalid in the absence of written waiver, attached to the policy, under full disclosure of UM/UIM costs terms.

It is safe to say that many such rejections were invalid. The insurers argued that this was unfair and would result in unexpected costs to the insurers. The Court responded that the statute requiring written waivers of UM/UIM was clear as to its requirements so that there was no unfairness to the insurance companies. Moreover, the Court stated that the insurance companies should be held to bear the burden of their own misinterpretations of the statute, not the innocent and far less knowledgeable and legally sophisticated insured.

Collins & Collins, P.C.
Albuquerque Attorneys

Among the most common cause of New Mexico slip and fall injuries are spills. Customers are often injured as a result of slipping and falling on these spills. Many assume that the simple act of slipping and falling is enough for a personal injury claim. It is not.

The owner or occupier of a building or business has a duty protect customers and visitors from all foreseeable harm. Spills are certainly a foreseeable harm. So it would stand to reason that a slip and fall on a spill particularly in a grocery store where these occur often provides a clear personal injury claim.

However, New Mexico premises liability law requires a little bit more than that. First, the owner must know or should have known that the spill was present. In other words, the accident must have been avoidable. If the accident was unavoidable then a slip and fall personal injury claim could be difficult.

This raises some immediate and sometimes difficult evidentiary issues. For instance, if the spill just occurred and the injured person immediately slipped on the spill then there would be no knowledge or opportunity for the owner to address the dangerous situation. As such, liability might be a problem unless other circumstances are present.

It is important to show that the spill had been present for some period of time and the store or business should have been aware of the spill. In the alternative, it might be shown that the spill itself was negligent with or without the knowledge of its presence.

In the case of a spill that was left unattended for some period of time, the standard for imputed knowledge will vary depending on the circumstances but there is most definitely a duty on the business owner to discover these conditions in a timely manner. In other words, simply ignoring the problem or more commonly not having some standardized procedures in place for maintaining the safety of the facility is not a defense.

Thus, if the spill has been present for a period of time then there is a duty on the business owner to both discover the spill and take corrective action to protect its customers. As a result, it is extremely important that someone injured in a case like this document the accident carefully. This would include pictures and/or video of the area, statements from witnesses, and at a minimum an incident report with the business.

Due to nature of the evidence in a case like this, waiting to document the accident may prove fatal to a claim. Once the area is cleaned up there is simply no remaining physical evidence. Store clerks, employees, and witnesses move on. In the absence of documentary evidence or witness accounts, it will be exceedingly difficult to establish the elements necessary for a premises liability claim.

Collins & Collins, P.C.
Albuquerque Attorneys

Dram shop liability has been pretty clearly established in New Mexico for quite some time. Under the dram shop laws, a bar or restaurant may be held liable for the over-service of alcohol to a patron who later causes injuries and other damages suffered by innocent third parties.

Often the over-intoxicated patron also suffers injuries and even wrongful death. The injuries to both the innocent third party as well as the over-served patron most frequently occur in car accidents. The question that most often comes up is whether the over-served patron has a claim against the bar or restaurant for its negligent over-service of alcohol.

In the past, and in many states still, the over-served patron would have no claim against the bar or restaurant. Many states follow contributory negligence law in these types of cases. Under contributory negligence, any amount of fault on the part of the injured party will bar a personal injury claim against even a vastly more negligent defendant.

New Mexico on the other hand follows comparative negligence doctrine. Under comparative negligence, an injured party may still bring a claim despite his or her own negligence. However, any recovery for injuries and damages will be reduced proportionately to his or her own negligence or fault.

Even under comparative negligence standards, New Mexico courts were reluctant to allow claims by persons injured as a result of their own intoxication. However, that changed under the2010 New Mexico Court of Appeals ruling in Mendoza v. Tamaya.

Under Mendoza v. Tamaya, no longer is an intoxicated person barred from making claims under dram shop theories of negligence. Instead, the court ruled that the principles of comparative negligence should be applied here as in all other cases of negligence and harm.

The court basically stated that the law prohibiting an intoxicated person from bringing a claim were outdated in light of New Mexico's adoption of comparative negligence. The court did not buy into the defense's tired old argument that the plaintiff would be allowed to prosper his own negligent intoxication. The argument was particularly unpersuasive in that case as in many such cases where the person allegedly prospering from his own negligence was in fact killed in the accident.

Collins & Collins, P.C.
Albuquerque Attorneys

"Hypertexting" and "hypernetworking" are terms coined for excessive behaviors associated with cell phone and social networking activities. Hypertexting is defined as sending more than 120 text messages per day, while hypernetworking is described as spending more than three hours per day on social networking websites. Unfortunately, the excessive amount of time a person engages in this type of activity may not be the only problem.

These types of activities may actually be associated with risky behavior which could lead to health problems among teens, according to a recent study conducted by a team of researchers at Case Western Reserve University School of Medicine. Both activities were the subject of a study involving a sample of 4,200 Midwest high school students, 19.8% of whom were identified as teens that engage in hypertexting and 11.5% of whom were identified as teens who engage in hypernetworking. Approximately 4% of teens were identified as engaging in both activities.

The research team found that teens who fall in the hypertexting category are 40% more likely to have tried alcohol, 41% more likely to have used illegal drugs, 55% more likely to have been involved in physical fights and nearly three and a half times more likely to have had sex. The data for teens who participate in hypernetworking is even higher, with 79% more likely to have tried alcohol, 84% more likely to have used illicit drugs, 94% more likely to have been involved in physical fights and 69% more likely to have had sex.

While the research did not lead to a direct causal link between the activities and risky behavior, it did so a correlation indicating the possibility of a new category of health risks among teens who participate in either hypertexting or hypernetworking. Other factors could be to blame as well, including peer pressure or a lack of parental supervision. Yet, more research will be necessary to determine if there is an actual cause and effect relationship between teens who engage in the excessive use of communication methods and risky behavior leading to health problems. In the meantime, the study results should come as a warning to parents who provide teens with unrestricted access to communication devices.

People are often injured for the intentional torts of others. The most common intentional tort is battery where one person intentionally injures another. We often get calls on these cases. The most immediate question is can the injured person sue for personal injury.

The answer to that question is yes. Perhaps the more critical question is should the person sue? This is the question an experienced personal injury attorney will first ask. The answer will depend on a variety of circumstances, the most important of which is whether or not there is any possibility of recovering money through a lawsuit.

More often than not those individuals prone to commit battery on others are not as prone to carry insurance. And even if they did, most insurance policies will exclude intentional battery that results in injuries. Likewise, there is a high probability that the person will have no assets or financial resources against which to enforce a judgment.

As such, you may have a very good lawsuit on the basis of liability and damages but have little or no chance of recovery through a personal injury lawsuit. In other words, you may be able to clearly prove that you suffered serious injuries and that the other person caused your injuries but there is no money at the end of the "successful litigation." This is what personal injury lawyers refer to as a "judgment proof" defendant.

Unfortunately, though sympathetic to those intentionally injured by others, most lawyers are highly reluctant to sue on principle. As such, the lawyer will be looking for possible sources of recovery.

Depending on the circumstances, there may be a possible recovery from employers on the basis of respondeat superior, negligent hiring, or negligent training. There may also be premises liability actions against property owners or managers for failure to protect tenants or visitors.

There may be other possible means or recovery as well depending on the circumstances. Each case must be carefully evaluated at the outset of the case. Otherwise, the litigation process can be long, expensive and in the end extremely frustrating when the plaintiff is awarded a judgment that cannot be collected.

Collins & Collins, P.C.
Albuquerque Attorneys