New Mexico Injury Attorney Blog

In New Mexico, the Worker's Compensation Act was purportedly enacted to protect workers for on the job injuries. The Act it is said provides certainly to an injured worker who can obtain needed medical care and lost wages for work related injuries. This is partly true.

The Act does provide for medical coverage and a portion of lost wages for injured workers. The lost wages are limited in both time and amount. Typically, the allowable recovery for lost wages leaves the injured worker largely uncompensated. At the rates provided under the Act, lost wages will often leave an injured worker and his or her family in severe financial hardship.

Unfortunately for most injured workers, no matter how serious the injury or how the injury was caused, recovery for personal injuries is limited to medical expense and lost wages as set forth by the Act. This means that workers, except under very rarely circumstances, cannot sue their employer for personal injuries even if the employer caused the injuries.

However, in order to obtain protection under the Workers Compensation Act, the employer must carry workers compensation insurance as mandated under the Act. As a result, those employers who do not comply with the insurance coverage requirements under the Act are fully exposed to personal injury lawsuits for injuries to their workers.

In short, if you are injured on the job, and your employer does not have workers compensation insurance, then you may sue to the employer in tort for personal injuries. Because the uninsured employer is not protected under the Act, the employer is fully liable for all damages recoverable in a personal injury lawsuit.

If you or a loved one have been injured on the job, you should immediately make a worker's compensation claim. We do not handle worker's compensation claims at Collins & Collins, P.C. There are very short and critical deadlines for worker's compensation claims. Therefore you should contact a worker's compensation attorney immediately if you have any questions. There a number of very good worker's compensation attorneys Albuquerque and elsewhere throughout New Mexico.

If your employer does not have worker's compensation insurance and the accident was caused by unsafe working conditions or other negligent actions of your employer, then you should contact an experienced personal injury attorney to evaluate your claims. In the absence of worker's compensation insurance, you may be able to recover through a personal injury lawsuit. In fact, depending on the circumstances, your recovery may be far greater in a personal injury lawsuit than it would have been through worker's compensation.

Collins & Collins, P.C.
Albuquerque Attorneys

The use of social media by jurors has been a hot topic in the courts over the last couple of years. The explosion of smart phones, mobile access to the internet and social media is causing new and unique challenges to the courts, particularly in the case of jury trials.

Over the past year, there have numerous cases challenged and some overturned due to juror use of social media during trial. Juror use of the internet and social media during trial raises a host of problems for both sides of the case. The possibility of undue outside influence on jury verdicts is of great concern to all. Unfortunately, the pace of technology has far exceeded the pace of measures by the courts to protect against it's abuse.

Among the traditional instructions from the court to jurors is that they not discuss the case with others outside the case. This is to protect against improper influence on the juror during a trial. This might arise when the juror has a friend or family member with some experience or expertise with the subject matter in the trial. For instance, a juror might ask an uncle who has retired from the law enforcement or the practice of law about the case. Other times, the juror will call on family members who have engineering expertise or think they do to discuss a products liability claim.

There are countless ways this problem could arise in the past. However, this problem at least would not affect the many trials that lasted only one day, such as most misdemeanor criminal trials and many small civil trials. With the growth of the internet and social media, this too has changed with jurors able to do a little of their own research or even run the case by their Facebook panel of advisors during a break or at lunch. The problem becomes far worse with longer trials and more time to reflect, conduct online research and enlist input from the panel. In short, the problem of outside jury influence has grown exponentially with the growth of mobile technology, the internet and social media. And the problem may be harder to solve than one might think.

Courts have begun to routinely instruct jurors not to do their own research, not to email, text, or post information related to trial during the trial. This has not deterred many. In fact, the problem is so bad that California was compelled to pass a law making it a crime punishable by up to 6 months in jail for using the internet during trial for research or posting trial related topics on any social media site such as Twitter, Facebook, MySpace and LinkedIn. California believed this law necessary due to blatant disregard of judges' instructions by many jurors.

The most obvious question that then arises is whether such laws will prevent jurors from engaging in these prohibited activities during trial. A recent survey points to some challenges the courts will face even with the tool of contempt and jail to deter these practices at their disposal.

Several sources have noted a recent McCann survey of 6000 people aged 16 to 30 found that 53 percent of respondents would rather lose their sense of smell than access to social networking. Perhaps these folks simply do not appreciate the importance of the sense of smell. Or the survey may have had some design issues that would lead to such surprising results. Several sources raise this issue in noting that 67 percent of those in the survey would also give up their genitals for a Klondike bar, also a surprising result in most circles.

Notwithstanding the possible glitches in the survey, the results do not bode well for future jury deliberations. With the rise of texting, smart phones, mobile access to the internet and social networking, one does not need to look far to see the problem ahead. For many parents, one need look no further than the back seat to see the hold that this technology has on society. For everyone else, just take a peek at the driver in the next car.

Collins & Collins, P.C.
Albuquerque Attorneys

Uninsured or Underinsured motorist coverage (UIM) is an important optional coverage offered by insurance companies. UIM provides coverage for an insured when the insured is in an automobile accident that is another party's fault and either the at-fault party has no insurance or does not have sufficient insurance coverage to compensate the insured fairly for his injuries and damages.

Because the insurance policy is a contract, there are terms and conditions that the insured must follow so that the insurer is obligated to meet the terms of the insurance coverage. One term or condition in most every automobile insurance policy is the requirement that the insured obtain approval from his insurer to settle a personal injury claim for damages against an at-fault party IF the insured intends to bring a claim under his own insurance policy, or under a policy that he has coverage, for underinsured motorist coverage benefits.

The reason for this requirement is that when an insured settles a claim against a liable party and signs a release agreement that releases that person from any further liability or claims that arise from the accident, the insured's insurance company cannot bring a claim in the future against the liable party in subrogation of payments the insurance company may pay for its insured. In subrogation claims, the insurer "stands in the shoes" of its insured so that any claims the insured may have, the insurer also has. When the insured releases a negligent party for damages, neither he nor his insurer may bring any further claim for damages or reimbursement, in the case of the insurer.

The 2007 New Mexico Court of Appeals case of Salas v. Mountain States Mutual Cas. Co., reaffirmed past cases that established the insured's duty to obtain permission from its insurer to settle a liability claim when the insured intended to bring an UIM claim. The Court concluded that the insured's settlement of the claim and release of the tortfeasor extinguished the insurer's subrogation rights and triggered a rebuttable presumption of prejudice. "Rebuttable presumption" meaning, that if the insured could demonstrate that the insurer was not prejudiced, the insured's failure to obtain permission would not be a bar to bringing the UIM claim. One situation that would rebut the presumption of prejudice is the situation wherein the tortfeasor is judgment proof and the insurer would not be able to recover any money paid in subrogation even if the insured had not released the at-fault party.

An interesting twist in the Salas v. Mountain States case is that, ultimately, Ms. Salas, a passenger in the insured vehicle and therefore Class 2 insured, was able to bring her UIM claim because she was not aware that there were UIM benefits available. Ms. Salas had made a claim under the Mountain States policy for medical payments coverage, but was not aware that there was also uninsured/underinsured motorist coverage. Because Mountain States had failed to advise her of the availability of UIM benefits, the Supreme Court ruled that under the circumstances of the case, the insurer could not deny Ms. Salas' ability to make the UIM claim.

Auto accidents can raise some confusing and significant insurance issues. There have been numerous developments in the courts over the last few years regarding the obligations of insurers in UIM cases. If you have been involved in a car accident where UIM issues are raised, you should seek the guidance of an experienced personal injury attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

If a minor is injured in an automobile accident or other incident that gives rise to another person's liability, and a claim is brought before the child reaches age 18, the insurance company paying the settlement generally wants a judge to approve the settlement terms. The request is intended to protect the minor, but it also provides protection to the insurer.

The reason that the insurer is protected is because the minor has until one year past his 18th birthday to bring a lawsuit, assuming the statute of limitations period ran when he was a minor. If the minor's parents bring an action while he is a minor, and the court approves the settlement, the minor will have difficulty bringing an action himself after he is 18, because a court has already entered an order that states that the settlement amount is fair.

To obtain court approval, the insurance company, after reaching a settlement agreement with the minors' parents or the minor's attorney, will hire an attorney to seek approval. This involves filing a lawsuit with pleadings that are either a Petition for approval or an actual Complaint for Damages. The pleadings are agreed upon by the parties involved and are not of the usual adversarial nature of a lawsuit. There are many terms for the minor settlement proceedings depending upon the location of the action including "minor settlement", "infant compromise" or "friendly settlement."

The pleadings filed to initiate the lawsuit briefly set forth the facts of the accident, the parties involved and the amount of the settlement. A hearing is requested so that the attorneys may present the facts to the judge so that the judge can determine if the settlement is in the minor's best interest. In addition to the pleadings that petition the court for approval, generally the attorney for the insurer asks for the appointment of a guardian ad litem for the child.

The guardian ad litem (GAL) is an attorney who is retained to review the settlement and to advise the court of the settlement facts which include the minor's injuries, treatment, medical bill amount, whether further treatment is needed and, of special importance, where the money is to be placed until the minor reaches age 18 at which time the minor is legally entitled to receive the funds.

Obviously the judge wants to make sure that the money paid to the parents on behalf of the injured child is held for the child until he reaches age 18. The judge wants to know that if the money is invested, it is done so safely. Consequently, judges generally don't want the money invested in the stock market. They prefer safe, conservative investments such as certificates of deposit or annuities, both of which guarantee a return. Unfortunately, conservative investments with guaranteed returns do not offer a great deal of growth.

Sometimes, if there is a particular need that the minor presently has, such as a computer for school, and the judge believes it is in the minor's best interest, the judge may allow use of a certain amount of the settlement funds immediately. However, the judge will want to make sure that the purchase or use of the funds solely benefits the minor, and is not a purchase for the rest of the family to enjoy. The judge will not allow use of the funds by the parents to satisfy any of the obligations they have as parents to provide care and support for the child such as food, shelter, clothing and basic necessities.

In short, the Courts are very protective of children in personal injury settlements. To insure the protection of the child, if the attorneys do not agree to and appoint a GAL for the child, the Court will make the decision for them appointing an experienced Guardian Ad Litem.

Collins & Collins, P.C.
Albuquerque Attorneys

Many people that suffer personal injuries in an accident come with some baggage. Among the most common are preexisting medical conditions or injuries. Many injured plaintiffs are reluctant to share the preexisting conditions with their lawyers for fear that they will hurt their case.

There are several problems with the failure to disclose preexisting conditions to your lawyer. The problems associated with disclosure are far easier to deal with than problems caused by a failure to disclose. In fact, the preexisting conditions may not hurt your case at all while a failure to disclose them is often very difficult to overcome.

Typically, preexisting injuries that are similar in nature to the injuries suffered in the accident will be examined with a high level of scrutiny. The insurance company will want to know that the injuries were caused by the accident. However, just because they were similar in nature does not mean that they will not be compensated. Likewise, preexisting conditions that make you susceptible to injuries of the kind suffered in the accident, even if completely unexpected, should not be used to devalue your claim.

The age old rule that addresses these situations is the "egg-shell plaintiff" rule. The rule basically states that you take the plaintiff as you find him, no matter how frail or susceptible to injury, even when as delicate as an eggshell. In other words, the defendant and his or her insurance company cannot argue that an average person would not have been hurt or injured in the accident. Neither can they argue that the injuries were too unpredictable due to the plaintiff's susceptibility to injury to merit recovery.

New Mexico, and most states, actually has a jury instruction addressing the "egg-shell" plaintiff. New Mexico Uniform Jury Instruction 13-802 addresses the tension between non-compensable preexisting conditions and those conditions that are worsened or aggravated by the plaintiff's susceptibility to injury as a result of preexisting conditions. UJI 13-1802 states in part:

"...If you find that, before any injury in this case, plaintiff was already impaired by a physical or emotional condition, plaintiff is entitled to compensation for the aggravation or worsening of the condition, but not for elements of damages to the extent they were already being suffered.] [However, damages are to be measured without regard to the fact plaintiff may have been unusually susceptible to injury or likely to be harmed. The defendant is said to "take the plaintiff as he finds [him] [her]," meaning that the defendant, if liable, is responsible for all elements of damages caused by the defendant's conduct even if some of the plaintiff's injury arose because the plaintiff was unusually susceptible to being injured.]"

The cases in New Mexico have consistently found and it is well settled principle of tort law that a defendant is fully liable for all damages caused by his or her conduct even where the injuries are far more severe for the plaintiff than they would have been for an average person.

If you have suffered injuries in an accident and you do have preexisting medical conditions, it is important to address these head-on with an experienced personal injury attorney.
A plaintiff's apprehension about preexisting conditions is understandable. However, failure to disclose these conditions will put your attorney and your case at a severe disadvantage.

Collins & Collins, P.C.
Albuquerque Attorneys