New Mexico Injury Attorney Blog

It is well established in New Mexico that a party injured in an auto accident can make a claim against his or her underinsured motorist policy coverage for both compensatory damages and punitive damages. Typically, to get to underinsured coverage, the injured party must recover liability policy limits from the other driver's insurance.

In Farmers v. Sandoval, the New Mexico Court of Appeals addressed this general rule in the case of an injured party with nominal compensatory damage claims and much greater potential punitive damage claims in a DWI related auto accident.

The at fault driver's Mid-Century Insurance Company liability policy excluded coverage for its driver for punitive damage awards which would typically be recovered in a DWI auto accident. This exclusion of punitive damages coverage coupled with the injured party's small compensatory damage claim prevented recovery for the full liability policy limits under the Mid-Century policy.

The injured party then made an underinsured motorist claim against her own Farmer's policy. The injured party sought recovery for the full amount of her underinsured coverage less the actual recovery from Mid-Century. Farmers disputed the claim arguing instead that Farmers was entitled to an offset for the full amount of the Mid-Century liability limits and not lessor recovery due to the punitive damages exclusion. In essence, Farmers was attempting to piggyback the punitive damage exclusion under the Mid-Century policy.

The Court of Appeals disagreed with Farmers on a number of grounds. First, the Court cited the purpose of underinsured coverage which is to protect the New Mexico driving public from uninsured and underinsured drivers. The underlying objective of uninsured/underinsured motorist coverage (UM/UIM) is to make the injured party whole, at least to the degree made possible by the underinsured coverage.

Clearly, injured parties have the right to make a punitive damages claim against their UM/UIM policy. This right should not be constrained by the contractual abrogation of duty on the part of the opposing insurance company. The Court of Appeals recognized that to allow Farmers argument would result in an injured party recovering less in an accident involving an underinsured driver than an accident with a driver that had no insurance at all. The Court stated that this clearly defeated the remedial purpose of UM/UIM coverage.

In short, the Court ruled that that "Farmers' offset is limited to the amount of liability proceeds actually received by Defendants under the Mid-Century policy" and not the full amount of the Mid-Century liability limits. This once again reaffirms New Mexico's commitment to protecting the public against uninsured and underinsured drivers as evidenced by a steady stream of appellate court cases over the last couple of years aggressively enforcing UM/UIM recovery rights.

Collins & Collins, P.C.
Albuquerque Attorneys

When bringing a personal injury claim against another and seeking damages for some harm caused, the mitigation of damages doctrine is an important factor in the outcome of the legal claim. In personal injury claims, the injured person must make a reasonable effort to avoid additional damages and to minimize the damages that they suffer or incur.

If a claimant fails to mitigate his damages, his or her recovery may be reduced. One example that is common in a personal injury case involves medical treatment amount and sometimes, type. Generally at some point after medical treatment begins, the injured person recovers or at least recovers as much as he or she will recover. If the injured party continues to seek treatment that will not improve his condition, the expenses incurred are considered unnecessary and will not be included when determining the value of the claim. Similarly, if a person seeks some sort of alternative medicine treatment that is not orthodox for treatment of the injury, that treatment may not be considered reasonable and the expense for the treatment be disputed in the calculation of damages.

A claimant must mitigate his economic damages. Lost income due to an injury is a compensable element of damages in a personal injury case. Oftentimes, a doctor will direct the party not to work, but then release the party to return to work at some point of medical improvement. Lost wages for time off from work when a doctor has advised it is safe to return to work will not be compensated.

Sometimes an injured party may be physically fit to perform some employment, but not the job the person did before the injury, such as heavy physical work. In that case, the person must still mitigate his economic damages by attempting to find work that he or she can perform considering the physical limitations.

In opposition to excessive and unnecessary treatment is the case in which the injured party fails to seek appropriate medical attention promptly and that failure causes an increase in the injured party's damages. For example, a person injured in an automobile accident suffers a broken bone. The person knowingly refuses to seek treatment and that failure leads to the development of infection and unnecessary complications related thereto. Absent a reasonable explanation, the damages due to the initial broken bone will be considered, but the enhanced damages due to the failure of the injured person to act reasonably, and seek treatment, will not be compensated. Of course, in today's climate, the failure to treat may very well be related to lack of medical insurance or other financial considerations which would at least partially offset the failure to mitigate argument.

An injured person who claims another is responsible for his damages has a duty under the law to act reasonably to minimize his damages. The issue can be complicated and certainly there are exceptions. It is advisable to the guidance of an experienced personal injury attorney to determine your mitigation obligations. Failure to mitigate can be extremely costly to your claims.

Collins & Collins, P.C.
Albuquerque Attorneys

With graduation season fast approaching, would be graduation party hosts should keep in mind all the costs of being the "cool parents." In addition to exposure to very serious felony charges for service of alcohol to minors, there is potentially devastating liability for personal injuries and damages associated with DWI related auto accidents.

New Mexico's Liquor Liability Act, often referred to as dram shop laws, imposes a duty and corresponding liability on all social hosts. This includes parents who host a graduation party. In fact, the Act was perhaps geared most to this kind of negligent behavior.

The Liquor Liability Act established varying levels of duties and liability for different situations. At the high end of the spectrum are restaurants and bars who over serve patrons. For these situations, an injured person need only show negligence.

There is a lessor standard for social hosts. In these actions, because the alcohol was not served for financial gain, it must be shown that the social host was "reckless." This is a much higher burden of proof than simple negligence. The standard is long established and most recently set forth in Delfino v. Griffo wherein it was stated, "For a suit against a gratuitous provider, or social host, the plaintiff must show that the host provided alcoholic beverages "recklessly in disregard of the rights of others, including the social guest."

Though a showing of recklessness is a fairly significant hurdle, serving alcohol to minors will most definitely meet that hurdle. The liability runs not only to innocent third parties, but to the minor as well.

In the case of a DWI auto accident, the injuries and damages can be catastrophic including the possible wrongful death of innocent third parties, passengers, and the minor him or herself. The liability for the social host likewise can be catastrophic. It is hardly worth the fleeting moments where the drunken child and his or her teen friends believe the parent to be cool.

Collins & Collins, P.C.
Albuquerque Attorneys

Businesses often wine and dine clients and potential clients for business development and marketing. The wining part of the equation will on occasion lead to some pretty disastrous consequences. The recent New Mexico Supreme Court case of Delfino v. Griffo addressed the responsibility for these consequences under the state's liquor liability laws (otherwise known as dram shop laws).

New Mexico's dram shop liability laws have been long established. Under the dram shop provisions of the Liquor Liability Act, restaurants, bars, hotels and the like have routinely been held responsible for injuries and other damages resulting from over serving patrons whuch often come in the form of DWI auto accidents. The Act also addresses social hosts such as individuals serving alcohol in their homes. The Delfino case stretched the definition of "social host" to include businesses that entertain clients or associates with alcohol.

Delfino involved several pharmaceutical representatives who wined and dined Alicia Gonzales, a female employee of doctor's office, for 8 hours jumping from one bar and restaurant to the next as the Ms. Gonzales became more and more intoxicated. In the end, they gave her a pat on the back, put her in her car and sent her off to collide with a family resulting in the wrongful death of a seven year old boy and badly injuring the other occupants in the car.

The defendant pharmaceutical companies and their employees all claimed and successfully argued at the district court level that the definition of "social host" applied only to the service of alcohol in private settings. The district court agreed that "social host" could not apply to alcohol served in a liquor establishment. Effectively, the district court would have limited liability to the bars and servers of alcohol despite the true source and purpose of the alcohol.

The New Mexico Supreme Court disagreed following the law in numerous other states that hold liable not only the server of alcohol but also the person or in this case the company representatives who purchase the alcohol. The Court stated "We conclude that the Liquor Liability Act permits a cause of action against a social host who recklessly provides alcohol to a guest when the alcohol is consumed in a licensed establishment."

The Court agreed with the plaintiff's argument that these settings give "special control over their target business related guest..." In other words, the whole point of the exercise is to get the person intoxicated which in this case was quite successful. Ms. Gonzales got in her car over twice the legal limit of alcohol and 14 minutes later killed a young child.

The Delfino case is remarkable as much for the ruling that holds businesses and corporations responsible for long established and dangerous marketing practices as for the fact that each and every one of the three corporate pharmaceutical companies and their employees attempted and were first successful at evading completely their responsibility for the tragedy caused by those practices.

This evasion of responsibility for harms to the innocent is repeated time and time again by corporations each and every day, and as often as not, they are successful. And for holding them responsible, New Mexico has been labeled a judicial hellhole by the U.S. Chamber of Commerce and the American Tort Reform Association. That should tell you all you need to know about corporate responsibility.

Collins & Collins, P.C.
Albuquerque Attorneys

Plaintiffs in personal injury cases, like anyone else, sometimes come with some baggage. On occasion, a plaintiff has been convicted of criminal offenses in the past. The question that most plaintiffs in this situation will want to know is whether these past legal transgressions can be held against them in their personal injury case.

Most plaintiffs in this position would rightly argue that a criminal conviction in the past has nothing to do with an auto accident today. They are partly right. The past criminal conviction is not particularly relevant to the determination of liability and/or damages in a personal injury action.

However, a past conviction though seemingly unrelated to the accident may come up with issues of credibility. For instance, if liability or damages are disputed, and a case goes to trial, a jury is basically asked to make determinations of credibility. In other words, who should the jury believe, the plaintiff or the defendant?

The rules of evidence regarding impeachment address these issues. Rule 609 of both the Federal and New Mexico Rules of Evidence address the admission of convictions for the impeachment of witnesses at trial. In other words, the rule addresses whether evidence of conviction is fair game for showing or more accurately suggesting a witness is lying. The rules apply to all witnesses including the plaintiff and the defendant.

Rule 609 provides that evidence of convictions can be admitted to attack the credibility of a witness was convicted of a felony or a crime of dishonesty if the court finds that its probative value is not outweighed by its prejudicial effect. Notably, evidence of a felony is more likely to be excluded than a misdemeanor crime of dishonesty.

To the chagrin of many witnesses, including plaintiffs in a personal injury case, crimes of dishonesty cover a lot of ground and include some seemingly innocuous offenses. Certainly, "crime of dishonesty" would encompass fraud, forgery, theft, burglary, perjury, false tax returns and so on. It also includes petty shoplifting among other petty offenses.

Many plaintiffs do not particularly want to share these embarrassing details with their lawyers. Any plaintiff would be well advised to assume that the defense attorney is going to do a thorough background check and will discover any and all past criminal convictions. The only thing worse than having this evidence admitted against a plaintiff is having the defendant show to the jury through cross examination that the plaintiff has lied about the past convictions. Now the plaintiff is both a crook and a liar in the eyes of the jury.

The best approach is typically for the plaintiff's attorney to address these issues with the jury from the start. It allows the evidence to be presented in the best light to the plaintiff. Most importantly, it takes the wind out of what will surely be penetrating cross examination and a blustery closing argument impugning the honesty of the plaintiff.

Collins & Collins, P.C.
Albuquerque Attorneys

In litigation of any kind, often the most time-consuming, expensive and frustrating task is discovery. Many times, parties and or their attorneys simply will not cooperate in the discovery process. The 10th Circuit Court of Appeals in Lee v. Max International has ruled that failure to abide by the rules of discovery can result in the dismissal of a claim.

In the Max International case, the plaintiff failed to provide lawful discovery. Some of the missing discovery items were tax returns which are readily available and easy to provide. The defendant was forced to file several Motions to Compel Discovery, each time resulting in an order from the district court directing plaintiff to provide the discovery. In fact, there were two such orders both of which the plaintiff failed to follow. The district court dismissed the plaintiff's claims.

The 10th Circuit affirmed the dismissal stating that "Our justice system has a strong preference for resolving cases on their merits whenever possible, but no one, we hold, should count on more than three chances to make good a discovery obligation."

The plaintiff did not deny that it had failed to abide by the court's orders. In fact, the plaintiff had issued a certificate stating that all discoveries had been provided. The 10th Circuit Court of Appeals took particular exception to the false certificate filed by the plaintiff.

The Court further ruled that the district court will be allowed considerable discretion in the issuance of discovery sanctions, including the rather extraordinary sanction of dismissal. Citing Charles Alan Wright in support of the district court's broad discretion, the Court stated "the district courts must have latitude to use severe sanctions for purposes of general deterrence."

The Federal Rules of Procedure are intended to ensure "the just, speedy, and inexpensive determination of every action." The Court recognized that this is far from the reality but recognized also that allowing parties to repeatedly violate orders from the court would most assuredly defeat those purposes.

Max International will certainly not stop discovery abuses. However, the Court's suggestion that the district courts have wide discretion in doling out even extreme sanctions for discovery abuse should at least cause some pause for those parties and attorneys that engage in such practices.

Collins & Collins, P.C.
Albuquerque Attorneys

In drunken driving auto accidents, liability for the injuries and damages to innocent drivers and/or pedestrians may be spread across several different parties. Some liability is pretty clear under the dram shop liability laws and standard theories of negligence. Other possible avenues for compensation have been made more evident in recent criminal case developments.

Under common law negligence, the drunken driver is obviously liable for injuries and damages caused in a DWI car accident. In fact, the drunken driver may be held liable for punitive damages above and beyond compensatory damages.

Under dram shop laws in New Mexico, it is also clear that the bar or other provider of alcohol may be held liable for injuries and damages suffered as a result of an auto accident involving a drunken patron or guest. Dram shop liability may be imposed on a variety of providers of alcohol including bars, restaurants, retail liquor establishments, social hosts, and even airlines.

These bases for liability have been long and well established in New Mexico. One less common and less clear basis of liability that has arisen recently in criminal DWI vehicular homicide cases is passenger liability. In the case of State v. Marquez, a passenger was convicted of vehicular homicide along with the driver of the vehicle. The facts of the case were rather extraordinary with clearly reckless and dangerous behavior on the part of both the driver and the passenger.

Not every case will involve the level of recklessness and comparative negligence on the part of the passenger as involved in State v. Marquez. However, the question of possible passenger liability under comparative and contributory negligence theories should be addressed in every DWI auto accident. Not all passengers will be held responsible for the acts of a drunken driver.

There are those cases where the passenger may be held partially or even equally liable. After all, it may very well be the passenger that put the driver behind the wheel knowing full well of the dangers to innocent drivers and pedestrians. Liability of passengers for DWI car accidents will be determined on a case by case basis so injured parties should be aware of and explore these possible claims.

Collins & Collins, P.C.
Albuquerque Attorneys