New Mexico Injury Attorney Blog

A recent Pennsylvania road rage related personal injury action raises some interesting auto insurance coverage issues. The case involved a suit by a young girl against her dad for emotion distress suffered in a road rage incident where the dad was shot 4 times in the presence of the girl.

Road rage is far too common on American roads. The consequences are often severe, leading to auto accidents, physical violence, shootings, and on occasion fatalities. A question that arises is whether injuries resulting from road rage would be covered under auto insurance policies.

Many insurance policies have exclusions for acts that are too unforeseeable to be covered under the policy. Is road rage such an unforeseeable act? Arguably, it is not. In fact, road rage has become almost an accepted and dreaded part of the daily commute. This is true in small cities like Albuquerque and even truer in larger cities. The worse the traffic, the thinner the nerves of drivers. And then of course, there are those drivers that are in rage as soon as they get in their car. This is their driving persona.

It would be very difficult for an insurer to argue exclusions of coverage for road rage related accidents. There might be comparative fault issues as when the injured driver contributed to or fueled the dangerous situation with his or her own behavior. However, with New Mexico's comparative negligence model, even a partially responsible party would not be wholly excluded from making a claim.

The dueling drivers are often not the persons harmed in the road rage encounter. It is often passengers and/or other drivers. These individuals would in no way be prevented from making claims against both drivers. In addition, these individuals would also be fully within their rights to make claims against their own underinsured/underinsured motorist coverage (UIM) in the event that the one or both of the crazed drivers lacked adequate coverage.

The question will arise in these situations as to the foreseeability of these acts. An auto accident involving road rage is certainly foreseeable. But what about physical violence? What about the shootings that occur far too often? Arguably, even a shooting is foreseeable. After all, we live in both a country of road rage and gun rights. So is it really unforeseeable that the two would merge on occasion?

Getting back to the Pennsylvania case, the little girl arguably has a claim against both her dad and the other driver. The more interesting issue that does not appear to be presented in the case is whether the dad could make a auto insurance claim for the shooting. A quick Google search shows that these are far from uncommon and therefore arguably a foreseeable incident of driving.

Road rage is common. Road rage accidents and shootings are fortunately are far less common. Hopefully, neither you or your loved ones will ever be involved in such an incident. But if you are, it would pay to seek the assistance of an experienced personal injury attorney to take a look at the coverage issues. It may be, in the absence of specific exclusions, that auto insurance of one kind or another may be available for your injuries.

Collins & Collins, P.C.
Albuquerque Attorneys

In most cases, when a person suffers personal injuries in an accident, his insurance, either health or automobile, will pay for his medical bills. Although another party is likely responsible for the bills, it is simplest for the injured person to obtain the care needed and have it paid for by his or her own insurer. Then, if and when the injured party recovers money damages from the party who is at fault for causing the injury, the injured party is responsible for reimbursing his insurer for medical benefits paid on his behalf. This payment, or reimbursement, is known as "subrogation." The question many injured parties have is why they must reimburse their insurance company, when they purchased either health insurance or med pay under their auto insurance policy and paid insurance premiums for that coverage month after month?

Usually, the reason is that you agreed to do so when you purchased your insurance. That very long contract of insurance stated what the insurer would do for you, what it wouldn't do, and what you would do for the insurer as part of the deal. The contract you signed most likely included a "subrogation" clause that states that your insurer is subrogated to all rights of recovery that you, the injured party, has against the at fault party for the injuries caused for which bills were paid. By signing the insurance contract and accepting benefits of coverage, you agree that if you were injured due to the fault of another, and obtained money to compensate you for your damages, you will reimburse your health insurer for medical bills paid on your behalf.

Both auto policies and health insurance policies often state that the insured has "assigned" his right to recover against the negligent party to the insurer and that the insured will do whatever is needed to assist the insurer recover. Basically, the insurer can pursue a legal action against the negligent party. In practice, the insurance company usually lets the insured do the work and pursue the claim and waits for reimbursement. If you refuse to pay your insurer and breach the contract, the insurer may sue you for the amount that should have been reimbursed plus, in most cases, attorneys fees and costs incurred in obtaining their rightful payment. Your insurer may also cancel your insurance because you did not abide by your contractual obligations.

If you have an attorney, your attorney has likely been notified of the insurer's payments and is well aware that the insurer is due payment. Generally a health insurer will send a letter to its insured, his attorney and the insurance company of the at-fault party so that all are aware of its subrogation interest. In that situation, the notice basically acts as a lien against the settlement proceeds or trial recovery and your attorney is obligated to pay the lien or he himself may be liable. Even if your attorney has not received a formal letter of subrogation from your insurer, he is aware of your medical care and knows who has paid your bills.

It is very important to notify your attorney of any known liens or subrogation rights. An experienced personal injury attorney will investigate the payments, determine if subrogation is appropriate and then negotiate reimbursement. These liens can typically be negotiated down and often require a statutory reduction in the lien. Perhaps just as importantly, ty taking care of the subrogation, your attorney actually protects you from future problems with your insurer.

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Liquor Liability Act creates different standards of care for dram shop liability depending upon the relationship between the plaintiff and the defendant.

The highest standard of care is imposed in cases of suits by third parties for injuries caused by a drunken patron. In these cases, the plaintiff must simply show negligence on the part of the liquor serving establishment or licensee. A negligence standard means that the plaintiff must only show that it "reasonably apparent" that the person being served was intoxicated.

The standard is higher when a patron himself sues the licensee. In this case, the patron must prove gross negligence and reckless disregard on the part of the server of alcohol. This is a much higher standard requiring that the plaintiff show that the server was grossly negligent and recklessly disregarded the safety of the intoxicated patron.

The standard changes again for gratuitous providers of alcohol such as social hosts. This would include private parties and cases where the one person buys alcohol for another at a bar or restaurant. In this case, the plaintiff must show that the host provided the alcohol "recklessly in disregard of the rights of others, including the social guest." This provision sets a pretty high burden of proof and was intended to provide some measure of protection for social hosts against suits by injured third parties.

IT is important to note that the social hosts provisions in the Liquor Liability Act are not limited to private settings. The extension of liability beyond the private setting was made explicit in Delfino v. Griffo.

It is noteworthy also that though the standard of proof is heightened for certain relationships such as a social host, DWI is treated quite harshly in New Mexico by law enforcement, the Courts and perhaps most importantly for dram shop liability, by juries. One would be hard pressed to find a juror that is unaware of the countless DWI tragedies that occur each year on New Mexico roads. In fact, there is a good chance that there will be some in the jury pool that have had personal experience with DWI tragedy.

This does not bode well for the defendants in these cases as the legal definitions of negligence, gross negligence, reckless are all in the eyes of the beholder. And few jurors these days will be sympathetic to DWI drivers or anyone that put them on the road in a drunken state.

It all sounds pretty straightforward in theory. However, as with all personal injury cases, dram shop suits can become quite complicated and difficult in a hurry. In almost all of these cases, the plaintiff will be dealing with an insurance company. Many of these companies are fair and rational and will attempt to come to a fair resolution of the claims.

Some insurance companies on the other are philosophically and financially opposed to a fair resolution no matter what the circumstances. In either case, it is important to seek the guidance of an experienced personal injury attorney. After all, even the reasonable adjuster is looking after the financial interests of the insurance company and this interest is in direct opposition to the interests of an injured plaintiff.

Collins & Collins, P.C.
Albuquerque Attorneys