New Mexico Injury Attorney Blog

If you have been in an automobile accident and the other party involved is at fault, the first question you probably have is how to get the other party's or your own insurance company to pay your damages.

Once a report is made and the accident is turned over to the adjuster, adjuster may request a statement from you. A couple of things will happen whether or not you give a statement, which in cases involving significant injuries and damages may not be advisable without the guidance of an experienced personal injury attorney.

First, with regard to your property damages, the insurance company will send an adjuster to look at your vehicle to determine the amount of damage due to the accident. Sometimes the adjuster will provide you with a check at the time of the vehicle inspection. Other times a check will be sent to you. Upon receipt of the check, you can take your car to the repair shop of your choice. If the repair shop determines that additional repairs are needed, a representative of the shop will contact the adjuster directly to provide an explanation and hopefully, obtain additional funds for the necessary repairs. If the repairs needed are clearly related to the accident, there usually is no problem obtaining supplemental repair damages.

The second item concerns your damages for personal injuries. The adjuster will want to know if you were injured in the accident and if so, what sort of medical treatment was obtained. The adjuster will want copies of medical records and medical bills. If you have minimal treatment and are able to provide documentation quickly to the insurance adjuster, you may be able to obtain a settlement and resolve your personal injury claim within a reasonably short amount of time.

However, if you have a more extensive injury that requires months of medical treatment, the process may take some time. In cases involving serious injuries and significant medical treatment, there are numerous complexities that may necessitate the assistance of an attorney. In any event, at this point most claimants obtain an attorney because the process is too aggravating to a person not familiar with the insurance or legal system.

With or without a lawyer, certain tasks must be accomplished to obtain a satisfactory personal injury settlement. The most important task is to obtain objective evidence of your damages and to provide that information to the adjuster. This evidence includes medical records, medical bills, proof of lost income and proof of other expenses that were incurred because of the accident and your injury. Medical records and bills are easily obtained and are easily understood by the adjuster.

Proof of lost wages can be shown by providing copies of pay stubs and time cards to prove your hourly wage and days missed. A letter from your supervisor stating that you missed a particular number of days following the accident can also be helpful. And, if you incurred other damages that are related, such as medications or medical items, provide a receipts that clearly shows the item and cost.

You may wonder, what about pain and suffering? To you, the back or neck pain that prevented you from playing your usual golf game or sleeping soundly through the night is worth a great deal. The worry you faced about your job security when you had to take off time from work over and over for doctor's appointments or simply because you didn't feel well enough to work, is significant and worth money to you.

As important and valuable as these damages are to you, they unfortunately are viewed with skepticism by adjusters. Simply put, to an adjuster, your pain and suffering along with the inconvenience you endured and the mental anguish you faced means little. Certainly there is some consideration of these elements of your damages, but these elements are not nearly as important to the adjuster as the objective documentation of your injury and damages.

The moral of the story is to be prepared to back up your demand for money damages with proof to give to the adjuster or your attorney. Keep every receipt, every pay stub and every bill you receive from the beginning and be prepared to provide it to back up your claim for damages. And keep in mind any claims whose pain and suffering value is out of proportionate to objectively measured damages will be met with significant resistance from the adjuster.

Collins & Collins, P.C.
Albuquerque Attorneys

A recent case from the 10th Circuit Court of Appeals illustrates the importance of full disclosure of preexisting medical conditions in a personal injury case. Failure to fully disclose preexisting conditions can result in serious discovery sanctions including dismissal.

The case of Freddie v. Marten Transport involved a 2006 auto accident. The plaintiff, Jerry Freddie, claimed injuries to his head, neck, back, shoulders, and extremities. He claimed that all of these injuries along with associated fatigue and sleep problems were associated with the 2006 accident.

The defendant requested discovery from Mr. Freddie. Included in the discovery request, as is the case in every personal injury action, was a request for disclosure of preexisting injuries and prior medical records. Mr. Freddie denied any preexisting conditions and failed to provide the lawfully requested prior medical records.

In fact, Mr. Freddie had been in a relatively recent rollover accident in 2003 in which he suffered similar injuries. In addition, it appeared from the medical records that the defendant was able to obtain that Mr. Freddie had not fully recovered from those injuries.

Despite the discovery of the prior auto accident and preexisting injuries, Mr. Freddie persisted in his refusal to provide medical records or even to acknowledge the prior injuries. The district court judge ordered Mr. Freddie on several occasions to provide the records. Mr. Freddie refused and even invoked his 5th Amendment right against self-incrimination when asked about prior chiropractic treatment. Oddly, Mr. Freddie argued that the did not recall the injuries while arguing at the same time that he did not want to implicate himself in insurance fraud through his testimony on the chiropractic treatment.

The district court finally dismissed the lawsuit for Mr. Freddie's ongoing discovery abuse. The 10th Circuit recognized that dismissal is a rather extraordinary sanction stating that "While discovery-related sanctions are generally permissible to protect the integrity of the judicial process, a sanction of dismissal is reserved for violations 'predicated upon willfulness, bad faith, or some fault of [the party] rather than inability to comply.'"

The Court set forth five factors to be considered by a trial court before imposing a sanction of dismissal: (1) actual prejudice to the defendant; (2) level of interference with judicial processes; (3) the culpability of the party; (4) prior warning of possible dismissal for non-compliance; and (5) the efficacy of other lesser sanctions.

Interestingly, the court said that there is no rigid test more of less leaving it to the discretion of the trial judge. In this case, the court more or less ignored the last two factors. The trial court did not warn of dismissal in advance. Rather, the 10th stated "[o]nce a witness swears to give truthful answers, there is no requirement to warn him not to commit perjury or, conversely to direct him to tell the truth." Citing Chavez v. City of Albuquerque, (10th Cir. 2005). Nor did the court set forth any possible alternative sanctions short of dismissal. The court stated instead that dismissal has been affirmed for lessor discovery offenses and that this case fell within the range warranting dismissal.

Preexisting conditions, prior injuries and even prior related accidents can most definitely hurt the value of a personal injury claim. In fact, it should come as no surprise that a defendant should not by virtue of a later accident pay for injuries suffered in a prior accident. It is not uncommon for plaintiffs to hide preexisting conditions from not only the defendant but from their own attorneys. As this case illustrates, concealing preexisting can be disastrous.

As much as you think it might hurt your case, and as much as it might actually hurt your case, concealing preexisting injuries will kill your case. Even if it does not get dismissed outright, juries are not kindly disposed toward dishonest plaintiffs. If you have a personal injury claim and you have preexisting injuries, discuss them with your attorney. An experienced personal injury attorney will address them directly in a way that minimizes the damage to your claims.

Collins & Collins, P.C.
Albuquerque Attorneys

Most consumers purchase automobile insurance to protect themselves or their family in case of an auto accident. Some purchase auto insurance because it is the law, mandated by the state legislature.

In New Mexico, drivers must maintain minimum insurance policy limits of $25,000 per person, $50,000 per occurrence and $10,000 for property damage. This means that if you are in an accident that you cause, an injured party can make a claim against your insurer for a maximum of $25,000 for the individual's injury. The total amount of coverage available is $50,000 per occurrence, meaning that even if there are numerous parties injured, the total paid by your insurance company to all claimants together is $50,000.

States require minimum insurance coverage under a public policy theory that insurance protects motorists for the risk of driving. Insurance coverage protects both those injured in the accident and the person who causes the accident who can be held financially responsible.

However, it is obvious that these minimum amounts do not necessarily protect injured parties when there is significant injury or when there are numerous injured parties. Similarly, minimum liability coverage does not necessarily protect the person at fault for the accident as the person will be held personally responsible for damages incurred by injured parties in excess of his insurance coverage. Consequently, minimum insurance coverage is a benefit in many situations, but certainly not all.

It is also important for consumers to understand what their insurance coverage actually pays for. Liability insurance is insurance paid to a claimant for damages caused by the insured. The insured, if he is injured in an accident for which he is at fault, cannot seek compensation under the liability coverage of his policy. Likewise, without certain elective coverage, he cannot seek any recovery from his own insurance company even when the accident was not his fault. The only coverages that are available in these situations are optional coverages, such as medical payments coverage or uninsured motorist coverage. Without these optional coverages even if the insured is not at fault, he cannot seek money from his insurer to pay for his damages.

A different situation exists with regards to personal injuries suffered by occupants of the insured vehicle. If you are in an accident that you are responsible for, you cannot make a claim for personal injuries against your own insurance policy. If your son and his friend are in the vehicle with you and you cause an accident, your son's friend can obviously make a claim against you under the liability portion of your insurance policy for his personal injuries and damages. However, your son may also make a claim against you, and your insurance company will pay his personal injury claim just as it would his friend's because you are responsible for his damages.

With liability claims comes the risk of future insurance premium increases that follow you well into the future. After a number of years, the increase due to the accident (and liability claim against your insurance company) will be removed and your premium decreased as long as you have not had other accidents for which you are responsible. If there are additional accidents in a matter of a few years, an insurer may cancel insurance coverage due to the perception that the insured is at a high risk of future claims.

Insurance coverage issues can be somewhat confusing. Often times, there is no coverage when one might expect it. On other occasions, an experienced personal injury attorney will be able to identify coverage that you did not know was available. And identification of coverage can be half the battle in a personal injury claim.

Collins & Collins, P.C.
Albuquerque Attorneys

As an insured driver, after paying years of insurance premiums, most expect insurance coverage when they or a member of their family are in an auto accident. However, the determination of whether there is or isn't insurance coverage is an issue that is decided by the insurance company before any payment is made. The determination is based upon fault for causing the accident and insurance coverage purchased. There are a number of optional coverages that are very valuable, but unfortunately are often minimized when a consumer first purchases insurance coverage.

One optional coverage is collision coverage, for payment of car repairs. Collision coverage is generally purchased and may be in varying amounts. This coverage pays for the repair of your vehicle if your are in an accident. Sometimes it is not purchased such as when the value of the vehicle is low and the cost of the coverage is more expensive than the actual benefit that could be realized if the car is damaged and repaired. With collision insurance coverage, even if you caused the accident, your insurance company will pay to fix your car, but you will be required to pay the deductible. The amount that your insurer will pay depends on the amount of collision coverage you purchased. If you did not cause the accident, in some situations your insurer will pay to fix your car and then attempt to collect from the responsible party or their insurer.

Another important optional coverage is medical payments coverage. For medical care due to an accident that you are in, or even one that you caused, your insurance company will pay up to the limits of your medical payment (med pay) coverage. Med pay is a coverage just like property damage that is purchased in different amounts. It is a type of coverage that offers good benefit at a relatively low cost to the purchaser. Consequently, it is often not one of the coverages emphasized by the insurance agent when insurance is being purchased. An insured may purchase med pay in a small amount, sometimes as little as $1000 depending upon the company or much more, typically in increments of $5000. Med pay is an important coverage for you and your family because it will cover your medical bills up to the amount of your coverage amount for you or your family members that arise from use of the insured vehicle, even if you caused the accident. In addition, if you or a family member are involved in an accident in someone else's vehicle, your med pay will, again, cover your medical bills up to the amount of the coverage you purchased. If the vehicle in which you are riding when injured has med pay coverage, that coverage will be primary, meaning that coverage is used first up to that coverage limit, with your med pay coming in second to add to the total coverage up to the amount that you purchased.

Collision coverage and med pay are just two of the many optional insurance coverages. It is important for the insured to consider the benefits of optional insurance coverages when purchasing liability insurance mandated by the state. All types of insurance coverages are available in varying amounts, the difference of course being that the state legislature determines the minimum amount of liability insurance to be purchased and the consumer determines the amount of optional insurance purchased. These insurance issues can be confusing and frustrating, particularly in the midst of an car accident. In addition, some insurance adjusters are anything but helpful. In these cases, where there are significant damages, it is generally advisable to seek the guidance of an experienced personal injury attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

Many personal injury victims are surprised and/or shocked to learn that there are many different lien holders that are going to get a piece of their settlement. On occasion, these liens may prevent a case from settling. On other occasions, the liens and the difficulty settling these liens may deter many attorneys from taking smaller claims at all.

Depending on the nature of the medical care and medical insurance coverage, there could be all manners of medical liens on any recovery, settlement or verdict. The first and easiest to address is private medical insurance. This is often the one that upsets injured parties the most feeling that they should not have to repay medical costs covered by significant insurance premiums often paid for years prior to a claim. As much as it may pain the insured to repay his insurance company, it must be done.

Work related injuries typically will carry workers compensation insurance liens. A work related personal injury claim presumes a third party other than the employer caused the accident and resulting injuries and damages. The workers compensation insurance provider will want to and has every right to recover medical costs necessitated by the third party's negligence.

Private insurance and workers compensation insurance are relatively easy to address. The more difficult liens are those asserted by governmental programs such as Medicare, Medicaid, Indian Health and the Veterans Administration. The end result is often the same with liens being negotiated down on a number of different grounds. However, getting there can be a long, tedious and frustrating process for both the client and the attorney.

Like private medical insurance and workers compensation insurance, the medical costs associated with the accident must be identified. This is typically fairly straightforward, though time-consuming with private insurance and workers compensation insurance. It is a matter of collecting all the medical records and bills associated with the medical care associated with the accident. On occasion, there can be some complications determining what bills and records are associated with the accident and what is related to other treatment and/or prior medical conditions. One advantage of workers compensation insurance is that they generally have done this already as they monitor medical care pretty closely on work related injuries.

On the other hand, in accidents involving coverage under Medicare, Medicaid, Indian Health and the VA, obtaining the medical records and bills can seem like an impossible task. It can take months upon months to obtain the records. And obtaining the records is just the first step. The records and bills must then be closely reviewed to sort out what is and what is not related to the accident. Rest assured, the original records, bills and associated liens will include far more than is actually related to the accident.

Then comes the fun part which is trying to get somebody on the phone at one of these entities with authority to negotiate the bills and liens. This again can be challenging to put it lightly. Again, weeks and months can pass before getting the right person on the phone if you do not know who it is you need to contact. And even when you do, these folks are somewhat overwhelmed and it can be hard getting their attention. It can be equally hard keeping it.

As difficult as the government sometimes makes it to address these liens, they must be addressed. They must be addressed before final settlement. Failure to address these liens before final settlement can have disastrous financial consequences for the client, and the lawyer. The lien settlement process in fact can take as long or longer than the injury settlement process. In fact, the inability to settle these liens in a timely manner may force the filing of an otherwise unnecessary lawsuit to avoid the lapse of the statute of limitations.

If you have a claim with these types of issues involved, it is highly advisable to seek the guidance of an experience personal injury attorney. However, you should also know that these issues make the case much more difficult and time-consuming to resolve. The reality is that many attorneys will shy away from these claims unless there is a significant potential for recovery.

Collins & Collins, P.C.
Albuquerque Attorneys

Premises liability deals with the duty of an owner or occupier of land, such as a homeowner or tenant, to keep his or her premises visitors safe from personal injuries.

A homeowner or renter may be held responsible for his negligence that causes a person to be injured on his property. A common example of negligence that leads to liability for the owner occurs when there is a defect on the property, such as a tripping hazard due to uneven sidewalk leading to the door, that the owner or tenant is aware of but takes no action to warn visitors of the risk.

Another situation that would give rise to liability may relate to repairs or home improvement undertaken by the owner of the property. If the homeowner is repairing the stairway to his deck, and in those repairs has removed the railing so that it may be replaced, he has created an unsafe condition on the property. If he takes no action to either block off the stairs or otherwise warn visitors of the lack of railing and potential hazard, he may be found negligent and held responsible if a visitor falls when descending the stairs because there was no railing to hold onto for stability.

Homeowners insurance will typically cover the damages due to the owner or occupier's negligence. If the owner does something intentionally that causes injury to a visitor, that act is generally not covered by insurance and the homeowner will be held personally responsible. The most common situation that falls into this category is usually related to some home security measure that actually creates a risk of harm. However, most premises liability cases involve some negligence of the homeowner, even if there is some intentional act.

Interestingly, insurance coverage for premises liability often does not extend to household members. Generally the homeowner or tenant cannot be held responsible for negligence due to injuries that involve his immediate family.

Assuming the same stairway railing example, if the son of the homeowner descends the stairs and falls injuring himself, he will likely be unable to bring an action against his father as owner of the property for creating or allowing the existence of an unsafe condition on the property. The reasoning is that the a member of the household should have notice of what another household member is doing in the home so the member should know that his father is repairing the stairs and that he should be especially careful. Many homeowners insurance policies actually have a household members exclusion that specifically excludes household family members from bringing claims against the insured homeowner. This exclusion typically just excludes liability for household members, not non-household family members.

A renter of a property may also be held responsible as if he owned the property for things that are within his control or knowledge. Again, the uneven sidewalk that is a tripping hazard may be a point of liability for the tenant if he fails to take any action to warn visitors of the tripping hazard. In most rental agreements, the tenant is responsible for issues within his control, but the owner of the property is responsible for problems of which he is aware, for structural issues or problems due to mechanical sources such as heaters or stoves. If the tenant has advised the owner of the property of the uneven sidewalk and the tripping hazard, or if the owner is otherwise aware of the problem, the owner may be held responsible for the injury to a visitor of the renter who trips and falls on the uneven walkway. Possibly, the tenant may also be held responsible, but the liability is shared, not attributed solely to one or the other.

Sorting out responsibility and liability for some of these cases can be quite challenging. It is generally advisable to seek the guidance of an experienced personal injury attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico, the law generally calls for joint liability for tortfeasors in personal injury cases. In other words, each of the negligent parties will be responsible for the pro rata or proportional share of injuries and damages caused by his or her individual behavior.

However, there are a occasions when one negligent party is jointly and severally liable for subsequent injuries caused by another negligent party. This means that the first party is responsible for both the original injuries caused by his or her negligent as well as subsequent injuries arising out of the first. The second set of injuries are said to flow naturally from the first.

Though there are many, one fairly common example involves an auto accident followed by negligent medical treatment. In a case like this, the negligent party that caused the accident will be held liable for any damages subsequently caused by negligent medical care. The second set of injuries flow from the original auto accident.

The rationale for providing for joint and several liability on the first tortfeasor is that the later injuries are both predictable and somewhat to be expected. This might seem illogical to some who would argue that it is impossible for the first tortfeasor to predict or anticipate the negligence of a doctor. This argument is particularly misguided when viewing the numbers on medical malpractice. In light of the statistics, not only is the negligence predictable, it could be argued that it is to be expected.

it is estimated that up to 98,000 patients die each year as a result of medical malpractice. Countless others are badly injured. The 98,000 figure is actually an old figure. These figures apparently are growing worse. For instance, hospital infections and medication errors are almost routine these days. A report from Health.com found that a random sampling of 100 hospital charts across the country would on average find 40 errors. That for the mathematically challenged is a 40% error rate. In no other profession would such a high level of error not only be acceptable but be met with arguments for less accountability.

The high levels of medical error coupled with caps on medical malpractice claims indeed validate the logic behind joint and several liability in these cases. Moreover, the constant cries for medical malpractice caps and the push toward banning these suits completely as evidenced by laws such as those in Texas providing immunity to emergency room doctors make it clear that the original tortfeasor may offer the best and sometimes only avenue for recovery.

The issue of joint and several liability for negligent medical care following injuries may come up in wide range of personal injury matters. Many of these cases, such as slip and fall accidents, dog bites, construction accidents and so on, involved medical treatment. Far too many end in trips to the emergency room. Judging by the numbers, this may be the most hazardous part of the accident.

Collins & Collins, P.C.
Albuquerque Attorneys