New Mexico Injury Attorney Blog

In many personal injury cases, the issue of preexisting injuries will be front and center in the calculation of damages. Many times, the defendant who is often represented by an insurance company will argue that plaintiff's injuries preexisted the accident and therefore is no the responsibility on the defendant. Liability and damages often turn on the findings surrounding preexisting conditions.

Defendants are not responsible for preexisting conditions. After all, there must be causation of harm to establish liability and causation cannot be shown for preexisting harms. However, defendants are responsible for incremental harm. The law in New Mexico has been long established that a defendant is liable for any harm done even if the injured person was more susceptible to that harm as a result of a preexisting condition.

This rule is often called the eggshell plaintiff rule meaning that if you negligently hit a person in the head that happens to have a exceptionally fragile skull, you are fully responsible for all harm caused by your negligence. This is the case even though you could not possibly have foreseen such a fragile skull or the terrible damages that might result from your negligence. It is often said that the defendant takes the plaintiff as he finds him.

The rule is reflected in New Mexico Uniform Jury Instruction 13-1802 where it 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 possible tension between the parties becomes clear when reading the UJI 13-1802. On the one hand, the defendant will try to show that the injuries were entirely preexisting, and there was no worsening of those injuries by the negligent conduct of the defendant. The plaintiff is generally forced to acknowledge the prior injuries since there is generally no shortage of medical records on point. However, the plaintiff will argue that the injuries were made worse by the accident. Assuming liability has been established, the outcome of these cases depends on how this issue is resolved.

The parties will often find some middle ground through settlement. However, there are cases where there simply is no middle ground due to honest differences of opinion. There are also many cases where one or the other parties simply has taken an unreasonable and unrealistic position. These are the cases that move forward to trial. The risks of a jury trial are great to both sides making careful and intelligent case evaluation extremely important. This means trying to figure out how a jury will see the case which is easier said than done. Miscalculations will and often do result in tremendous costs to one or the other parties.

Related Reading:
Preexisitng Conditions & Eggshell Plaintiff in New Mexico Personal Injury Claim
Steps Necesssary to Prove Your Damages in a New Mexico Personal Injury Case
Pre-Existing Injuries Present Challenges in New Mexico Personal lnjury Claims

Collins & Collins, P.C.
Albuquerque Attorneys

The seminal New Mexico case addressing worker's compensation exclusivity is the 2001 New Mexico Supreme Court case of Delgado v. Phelps Dodge. The case, despite the leap in the protection of workers over prior law, clearly illustrates the marginal protection employees are afforded from the negligent acts of their employers.

The Delgado case involved a fatal incident at a smelting plant where a worker suffering a horrifying death. The term incident is used because it was no accident that Delgado was burned to death. Instead, the facts showed that the employer clearly expected that Delgado would be killed while performing a task that he was grossly unqualified to perform.

The Delgado case illustrates the disdain with which workers are treated under the Worker's Compensation Act. The good and the bad news is that as a result of Delgado, workers enjoy slightly greater protection than in the past. In the past, New Mexico followed the "actual intent test." Delgado set forth the purportedly higher standard of willful and intentional.

The "actual intent test" is most clearly illustrated by the district court's granting of the defendant's motion to dismiss for failure to state a claim. The complaint alleged that the defendants "acted intentionally, with the knowledge that Delgado would be seriously injured and killed as a result of their actions." The district court, following the actual intent requirement, ruled that even if it was true that defendants "did engage in a series of deliberate or intentional acts which they knew or should have known would almost certainly result in serious injury or death to Reynaldo Delgado...the complaint falls short of alleging that [they] actually intended to harm Reynaldo Delgado." In short, the only way an employer could be sued beyond the Worker's Compensation Act was basically if they murdered the worker. How else may this language be read?

The Court in Delgado took the enlightened view that this standard was unacceptable. However, the Court went only slightly further in protecting workers injured as a result of the acts of employers. The Court held instead employers would lose the protection of the Workers Compensation Act only where the "employer willfully or intentionally injures a worker." The Court defined willfulness as follows: "(1) the worker or employer engages in an intentional act or omission, without just cause or excuse, that is reasonably expected to result in the injury suffered by the worker; (2) the worker or employer expects the injury to occur, or has utterly disregarded the consequences of the intentional act or omission; and (3) the intentional act or omission proximately causes the worker's injury."

The new standard is only slightly better than the old. In fact, employers continue to enjoy protection for gross negligence, and arguably for recklessness. Delgado still requires that the act reasonably be expected to lead to the injury of the worker. It further requires that the employer either totally disregarded the possible consequences or fully expected the injuries to occur. This is little better than the "actual intent test" and arguably mere word play. The result is the same, the employer must send a worker into a situation with a reasonable expectation that the worker will be injured or killed. Anything short of that and the employer is protected by the Worker's Compensation Act and the worker (or his survivors) is left to bear the burden of the employer's negligent behavior.

To be expected, the business community reacted with much the same repulsion to the Delgado ruling as did the defendant who warned the Court "that any deviation from the actual intent test will visit an undo hardship upon employers in this State and wreak havoc with New Mexico's workers' compensation system." It truly is tragic that employers can no longer send their employees to certain death. Honestly, what has New Mexico come to when we visit such injustice on our State's businesses?

Related Reading:
Company Liability for Employee Negligence Under Respondeat Superior
Employers Protected from Liability for Gross Negligence Toward Employee Safety
Protections of New Mexico Workers' Compensation Act Waived for Non-Compliant Employers

Collins & Collins, P.C.
Albuquerque Attorneys

Once again, the New Mexico Court of Appeals has reinforced the public policy of making uninsured/underinsured motorist (UM/UIM) coverage a part of every automobile insurance policy issued in New Mexico. Farmers v. Xian Chen stated just that in its ruling further reiterating that alleged waivers of uninsured/underinsured coverage are to be strictly construed against the insurer.

In Xian Chen, the Chens obtained liability coverage in the amount of $100,000 per person, $300,000 per occurrence. Farmers also had the Chens sign an Uninsured Motorist Election in the amount of $30,000 per person and $60,000 per occurrence. The Election stated that the Chens had the option of purchasing greater UM/UIM coverage but the Election was not attached to the policy and was not clear as to the amount of the coverage that the Chens were giving up. Ms. Chen was involved in an accident that killed her and injured her son. The accident was caused by the negligence of an underinsured driver.

Farmers denied the underinsured coverage claims over the reduced $30,000/$60,000 limits. The court in Xian Chen called upon several prior cases in the area in refuting Farmers' position. The court first cited Romero v. Progressive to state that insurers have a duty to offer UM/UIM coverage up to the liability limits of the policy. An election to carry less than liability limits constitutes a rejection of UM/UIM coverage. The court then cited Romero v. Dairyland for the rule that a valid rejection of UM/UIM coverage must clearly and unambiguously alert the insured to the rejection of UM/UIM coverage. The court then moved on to the recent case of Marckstadt v. Lockheed Martin where two essential requirements were set forth for the rejection of UM/UIM coverage; 1) there must be a written rejection of UM/UIM and rejection to be valid must be made knowingly and intelligently, 2) evidence of the rejection must be attached to the policy, and consistent with Romero v. Dairyland, must "clearly and unambiguously call to the attention of the insured that fact that such coverage has been waived."

The Court in Xian Chen found that the Chens had not knowingly and intelligently waived UM/UIM coverage because no single document in the transaction contained all the information necessary for a "knowing and intelligent" waiver. Instead, the waiver language, the liability limits, the UM/UIM limits and the amounts rejected were scattered across several documents. For the same reason, the notification requirement in Marckstadt was not met. Due to the deficiencies in the waiver, the Chens were entitled to the full amount of UM/UIM coverage.

There are a couple of lessons to be learned from this case. First and most important, it is extremely unwise to waive UM/UIM coverage. This case perfectly illustrates the dangers of uninsured/underinsured motorist in New Mexico which has the highest rate of uninsured drivers in the nation. Driving without UM/UIM coverage is often devastating. Realistically, even the higher limits of $100,000/$300,000 did not come close to compensating Mr. Chen and his son for the loss of a wife and mother. Which brings us to the second lesson, get as much UM/UIM as you can. Related to the first two lessons, there are insurers that will do whatever they can to get you to waive UM/UIM coverage completely or take reduced UM/UIM coverage. They may do this by either by hiding the ball as was done in the Xian Chen case or they may take the more common route of just flat out convincing drivers that UM/UIM coverage is a waste of money.

Any driver facing this situation should ask themselves why the state would go through so much trouble to force UM/UIM coverage and more importantly why some insurers go to such lengths to avoid it. This should be a rather quick analytical process. Upon completion, the driver should promptly find a new agent and a new insurance company that is equally concerned with the driver's welfare as it is for its own profits.

Related Reading:
Rejection of UM/UIM Coverage Must be in Writing but Need Not be Signed by Insured??
Statute of Limitations on Past Denial of Uninsured/Underinsured Motorist (UM/UIM) Coverage in New Mexico
Federal Court Forces Insurance Company to Provide Uninsured Motorist Benefits

Collins & Collins, P.C.
Albuquerque Attorneys

The Albuquerque Journal recently reported on a surgical checklist proposed by the World Health Organization to reduce operating room errors. The contents on the list are pretty simple including pre-surgical procedures for verifying the surgical procedure with the surgical team, verifying the identity of the patient before beginning surgery, marking the surgical site with a pen or marker, verifying patient allergies, verifying that all necessary equipment is in the operating room and working properly, verifying all necessary x-rays and other images are in the operating room and at the end of surgery, making sure that all equipment and supplies are accounted for to avoid the embarrassing and often very serious oversight of leaving stuff inside the patient.

The New England Journal of Medicine reported that the checklist was effective in the 8 cities around the world that utilized the list and in those hospitals using the list, post-operative complications, including deaths, fell by 36 percent. The World Health Organization found that inpatient deaths following major operations fell by more than 40%. The Albuquerque Journal reported that Presbyterian Kaseman Hospital alone expects to save 162 lives this year using a version of the checklist.

Oddly, the authors of the New England Journal of Medicine study indicated "Whereas the evidence of improvement in surgical outcomes is substantial and robust, the exact mechanism of improvement is less clear and most likely multifactorial." Most people would go the other direction asking why in the world there has been no such checklist in the past. Most people, including those patients and their families that undergo 234 million surgical procedures each year around the world, probably assumed that there was and always has been such a checklist. People make checklists when they go to the grocery store. Is it really too much to ask that surgical teams exercise the same level of planning?

This report is disturbing on many levels. Is it really to be viewed as a medical breakthrough of sorts that surgical staff would begin to verify the patient, procedure and surgical site prior to operating? It is remarkable that Presbyterian Kaseman, according the Albuquerque Journal, expects to save 162 lives this year through implementation of the checklist. Most would consider failure to perform these basic tasks to be negligent, arguably grossly negligent. And one would be justified in asking, "If 162 lives can be saved through these simple procedures this year, what about those 162 lives lost last year and the year before as result of the failure to implement these seemingly obvious surgical procedures?"

These reports come out in the midst of ongoing Tort Reform battles to limit or bar medical malpractice lawsuits, continued movement for limits on medical malpractice claims, and generally growing and expensive obstacles to such claims by injured patients or their survivors. When hearing this report, the rather unbelievable assertion by the Institute of Medicine that up to 98,000 patients die each year in the United States as a result of medical negligence makes perfect sense. It would also tend to make any reasonable patient nervous about any surgical procedure knowing that very few hospitals have implemented the checklist and that Tort Reformers and medical industry lobbyist are hard at work to limit claims by a patient in the event that he or she is among that 98,000 next year.

Related Reading:
Hospital Survival: The Numbers
Hospital Survival: Essential Strategies
Are Guns Safer than Hospitals?

Collins & Collins, P.C.
Albuquerque Attorneys

There were 11,773 DWI deaths nationally in 2008. These numbers are alarming. It is absolutely unacceptable to allow drivers to endanger the safety of others. A drunk driving death has enormous consequences causing severe and irreparable damages for the family, the children, the friends and loved ones that survive. Those that cause these harms, or even threaten these harms, must be stopped at all costs. And when they do cause harm, they must be held fully accountable in every way. Personal responsibility is the foundation of democracy. Agreed?

Contrast these numbers, the outrage associated with these tragedies and the policies to address them with the myth of the medical malpractice crisis. The Hippocratic Oath states, "FIRST, DO NO HARM." It is hard to explain how this Oath justifies the rabid opposition to compensation of victims of medical negligence. The National Academy of Sciences Institute of Medicine estimates that up to 98,000 people die every year as a result of medical negligence. That is almost 9 times the number of DWI related deaths. Where is the outrage?

When viewed against this backdrop, the Hippocratic Oath is rendered meaningless. It is difficult to explain or justify until you realize what is really behind Tort Reform. There is another and overriding oath decreed by the Insurance Industry, the Hypocritic Oath, which states, "FIRST, SEE NO HARM." This explains why Tort Reformers can continue to rant about the mythical medical malpractice lawsuit crisis while denying the true crisis completely. The Hypocritic Oath explains why worker's compensation laws in every state provide pennies on the dollars for damages suffered by injured or killed workers. It explains why worker's compensation laws are drafted and enacted under the pretext of protecting workers when it is really to protect employers against responsibility from their own negligence, and sometimes recklessness, that leads to the injury or death of workers. It explains why these arguments can be made in the face of the reality that there are well over 5000 work related deaths a year according to the Bureau of Labor Statistics, while thousands more suffer permanent and crippling non-fatal injuries, many of which are the result of unsafe working environments or conditions. It explains how Transocean can fight for liability limits of $27 million for its negligence in the BP spill while collecting hundreds of millions of dollars to compensate for its own losses from the very same spill. And on it goes. The Hypocritic Oath is everywhere you find the insurance industry.

The Hypocritic Oath dictates that the insurance industry, purportedly on behalf o their client corporations, doctors and employers should spend millions upon millions every year on Tort Reform to dodge their responsibilities to individuals and society. It dictates that taxpayers pick up the costs for their harms with Medicaid, Medicare, Social Security, bank bailouts, TARP, disaster relief and assistance, liability caps and limits and countless other governmental measures made necessary by the Hypocritic Oath. Tort reform is not about protecting doctors. It certainly is not about protecting patients, workers, families or society. It is about protecting profits, plain and simple.

Related Reading:
The High Costs of Medical Errors on the Healthcare System
MedMal Cap Protection in New Mexico Protects both Doctors and Medical Corporations
Medical Malpractice Caps and Public Costs, Who Really Pays?

Collins & Collins, P.C.
Albuquerque Attorneys

It is fairly common that those that have been injured in accidents, particularly auto accidents and slip and fall accidents, are receiving Medicare benefits at the time of the accident, or as a result of the accident. What many do not realize is that Medicare has a lien against any personal injury recovery for damages awards or settlements received as a result of the injuries.

It is difficult at times to explain to injured persons the law or the logic behind the liens. In a nutshell, Medicare has the right to recover all Medicare benefits expended to treat the person's injuries. In addition, Medicare can insist on a set aside of personal injury funds for future treatment of those injuries. These liens can be very large in cases of serious personal injuries. On occasion, the size of these liens can render the personal injury recovery process, particularly in complex litigation, futile and a waste of the injured party's time and energy. After all, litigation is extremely stressful and costly. In these cases, the injured person must decide whether he or she wants to work that hard simply to repay Medicare.

The decision to move forward with the personal injury recovery process, and perhaps litigation, is made even more difficult by the fact that recovery itself, and the failure to properly address Medicare liens can result in significant liability, penalties and even forfeiture of future Medicare rights.

Here are the basic ground rules:

• Medicare must be reimbursed within 60 days of the settlement or judgment. This means that the issues must be addressed well in advance of final settlement or judgment to avoid inadvertent violation of the law.
• The defendant, generally the other party's insurance company, must report a possible recovery to Medicare. The defendant is liable to Medicare if the injured party fails to properly address Medicare liens. Consequently, many defendants will make Medicare one of the payees.
• The injured party's attorney is responsible for the full amount of the lien in the event that the injured party does not pay. This means that your attorney will not distribute any funds, yours or theirs, before addressing Medicare.
• The penalties for failure to properly account for Medicare liens are severe. The defendant can be fined $1000 day for failure to notify Medicare of the possible recovery. The injured party and both attorneys, may be all held individually liable for up to double the full amount of Medicare lien.

This all sounds pretty bad. And it gets worse. Medicare is completely non-responsive to attorneys on either side in their attempt to determine the amount of the liens. It can take months to get any response at all from Medicare. The process of negotiating the liens takes even longer. This makes these cases particularly stressful and time-consuming for injured persons. Often, the only thing holding up settlement is the Medicare lien. There are times when the Medicare lien will prevent a settlement. Worse yet, in many of these cases, costly litigation is simply not warranted. The end result is that in some cases the injured party gets nothing, Medicare gets nothing, and the defendant who caused the harm completely escapes accountability. That's Medicare protecting your tax dollars.

Related Reading:
Beware Medicare & Medicaid Liens in Personal Injury Lawsuits
Reduction of Medicare/Medicaid Liens on Personal Injury Funds for Unrelated Medical Expenses
Calculating the Medicare Set-Aside: Start Early!

Collins & Collins, P.C.
Albuquerque Attorneys

Premises liability claims often come in the form of slip and fall cases. These cases typically involve claims for damages against the property owner for injuries suffered while on the subject property. However, there are occasions when a claim may be brought for injuries suffered on adjacent property.

A common example of such a claim involves injuries that occur on sidewalks adjacent to the property in question. For example, a property owner would be liable for drainage of water from its property on to a city sidewalk if that water were to cause an accident. In New Mexico, this is not an uncommon set of circumstances. Often, property owners have sprinklers or other sources of water that drain onto sidewalks or streets causing ice hazards to pedestrian and vehicles alike. There are other occasions where stores, restaurants, or other businesses have water or other liquids that escape from their property on to pedestrian walkways. In these cases, and other cases where a dangerous condition is caused on an adjacent property by the activities of a property owner, the property owner is fully liable for any harm caused by his or her negligence.

The most common situation is codified in New Mexico Uniform Jury Instruction § UJI 13-1316 specifically addresses public sidewalks: "The [owner] [occupant] of property abutting a public sidewalk is under a duty to exercise ordinary care not to create an unsafe condition which would interfere with the customary and regular use of the sidewalk."

If you are injured in such a situation, you or someone on your behalf should immediately collect as much evidence as possible. This would include getting the names, addresses and phone numbers of any witnesses. Even more important, you should get pictures of the accident site as soon after the accident as possible so that you can document the condition of the property at the time of the accident. This would include identifying and documenting the source of the water. As you might imagine, this task is made much more difficult in cases involving ice when pictures are taken later when the ice has already melted.

Failure to document the negligence and liability of the property owner at the time of the accident can make pursuit of these cases substantially more difficult and sometimes impossible due to the lack of evidence to establish the property owner's liability. In addition, public sidewalks may also raise Tort Claims issues against the local government. These claims require that a Tort Claims Notice be sent within 90 days of the accident. Failure to do so will bar the claim.

Due to the many possible complications associated with these types of cases, it is typically advisable to contact a New Mexico Injury Attorney as soon as possible after the accident.

Related Reading:
New Mexico Premises Liability (Slip and Fall) Claims on City Sidewalks
Sorting Out Responsibility in a New Mexico Premises Liability Claim
Possible Premises Liability Even In Cases of Obvious Hazards

Collins & Collins, P.C.
Albuquerque Attorneys

The purported vision of the Tea Party is compelling. The Tea Party would purportedly like to see responsibility and accountability on the part of government, corporations and individuals. In particular, the Tea Party decries the wasteful spending of government. Though they make plenty of noise, the Tea Party remains silent on issues that truly are financially crippling to taxpayers like themselves. They fall victim to the same cynical corporate and insurance industry manipulation that drives Tort Reform.

The true colors of those driving the Tea Party and Tort Reform, and make no mistake these are the same groups, is evident in their opposition to even the hint of true reform. This became evident in the Republican position on financial reform. Out of one side of their mouth they scream abuse and waste in the bailout, while from the other they spew contempt for the very governmental regulations that could have prevented the collapse.

We see it again now with the BP disaster. It is almost too outrageous to believe but Republicans in the midst of what may become the worst environmental disaster in the history of the planet are already fighting for caps on liability for the oil companies that caused the disaster and for those that cause them in the future. The good Senator Murkowski of Alaska says these limits are necessary to protect small business. This is a typical battle cry of the right, "Protect Small Business." Is the constant refrain of Tort Reform. Is this really their concern?

Where is the Tea Party, Tort Reform, Senator Murkowski, and the Republican party when small business, truly small business, is at stake? Take for instance the thousands of small businesses that will be destroyed by the BP disaster. They are not talking about that small business. The small business they want to protect is BP, Halliburton, Transocean, the insurance industry and the many other mom and pop operations involved in the offshore drilling industry. It is more than ironic that Senator Murkowski is seeking to limit liability for these companies while Transocean has already received $401 million in partial payment on its insurance claims for the loss of its rig. Where is the outrage from the Tort Reform movement? Will this not drive up our insurance costs just as when a insurance company must pay a claim for a medical malpractice related death?

And while Transocean has received $401 million in insurance payments, they and their allies on the Right continue to fight to limit their liability to a mere $27 million. It is clear that these groups have no interest in protecting truly American small businesses along the Gulf Coast. But they will spare no expense protecting the small businesses of Dubai (Halliburton), Switzerland by way of the Cayman Islands (Transocean) and the poor and vulnerable insurance industry that really does suffer most in these crisis.

It was easy to predict that BP and their buddies would run for shelter as quickly as possible after first declaring the intention to pay for all damages caused by the BP spill. It was equally predictable that the Republicans would come to their aid. Just as Republicans fight to preserve the very Wall Street practices that very nearly destroyed the world economy, they now fight for limited liability for oil companies that destroy the sacred small businesses that they purportedly champion. The Tea Party, created out of fictional threats dreamt up by the Right, has predictably stayed silent despite the obvious harm to its own interests.

Accountability and responsibility is the fundamental principle underlying American democracy. A true political movement based on individual, corporate and governmental accountability and responsibility would provide a positive role in shaping public policy for the protection of the public. But there is no meat at the Tea Party, just watered down, probably imported tea, with what appears to be some toxic sugar substitute. The very people that purport to care most about American taxpayers will cost those taxpayers most dearly as we the taxpayers continue to bear the costs of financial corruption on Wall Street, predatory credit card companies, a banking system that continues to hoard interest free government loans while refusing loans to small business, an abusive and bloated insurance industry, and oh yeh, the billions that the BP disaster will costs small businesses and their employees along the Gulf Coast, and the taxpayers that must ultimately foot the bill.

Once again, please weigh in with your representatives. This IS important.

Related Reading:
Personal Injury, Insurance Coverage and the Lies of Tort Reform
Cons, Big Cons and Medical Malpractice Reform
Scalding Coffee, Explosive Chicken Sandwiches? Solution Tort Reform!

Collins & Collins, P.C.
Albuquerque Attorneys

The 2005 New Mexico Court of Appeals case of State Farm v. Leubbers points out the extremely broad scope of coverage provided by uninsured/underinsured motorist coverage. The case involved numerous issues surrounding an uninsured/underinsured motorist claim for damages made on behalf of a minor whose father was shot and killed in a drive-by shooting. Each of the issues seemingly weighed against coverage. In fact, the district court dismissed the claims on State Farm's Motion for Summary Judgment. The Court of Appeals reversed suggesting expansive and liberal enforcement of uninsured/underinsured motorist coverage.

The facts get even more interesting than the implication of uninsured/underinsured motorist coverage for a victim of a drive-by shooting. Most would assume that there is no such coverage for such an act. The court almost glossed over this aspect of the case seemingly taking it for granted that the use of the vehicle in the act brought into play uninsured/underinsured motorist coverage. Next, the court had to address the minor child's loss of consortium claims for the loss of his father. And, the child had yet to be born. The mother was only four weeks pregnant with the plaintiff child.

The court found that the child, though unborn at the time, was entitled to make a claim for loss of consortium for the loss of his father. The court rejected State Farm's argument that the loss of consortium was subsumed within the wrongful death action. This ruling was particularly important for the child because there is strict 3 year statute of limitations for wrongful death actions and this period had already run by the time the claims were brought on behalf of the child.

The court further refused State Farm's arguments that the uninsured/underinsured coverage covered only bodily injury. The court stated that such restrictions on coverage would defeat the purposes of the act. The court stated, "The purpose of our uninsured motorist statute is to place insured persons in the same position they would be if the uninsured motorist had had insurance." Clearly, allowing exclusion of coverage in this case would put the child in a far worse position than if coverage was available from the other driver.

The court also pointed out the public policy of protecting and providing for the welfare of New Mexico children. The court addressed the great vulnerability of children who lose a parent and the need to support them. Allowing State Farm to evade the uninsured/underinsured coverage would hoist the responsibility for caring for the injured child on to society. Quoting Professor Prosser from the Restatement of Torts, the court revealed its disdain for the attempted evasion of responsibility, "it is not easy to understand and appreciate this reluctance to compensate the child who has been deprived of the care, companionship and education of his mother, or for that matter his father, through the defendant's negligence."

The Court's ruling suggests a public policy of construing attempted exclusions of uninsured/underinsured coverage against the insurance carrier. Uninsured/underinsured coverage is critical in a state such as New Mexico which suffers the highest rate of uninsured motorist in the nation. The lengths to which the court went to afford coverage for the injured child in this case is quite remarkable illustrating the court's embrace of a public policy that dictates a liberal construction of uninsured/underinsured motorist coverage for the protection of New Mexico's public.

Related Reading:
New Mexico Supreme Court Expands Scope of Law on Rejection of UM/UIM Coverage
Recovery of Punitive Damages Under Uninsured/Underinsured Motorists Coverage
Stacking Uninsured/Underinsured Motorist Coverage in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

The class action lawsuits have begun in the BP spill. The first suit filed by Beasley Allen was filed to recover damages, past and future, suffered by the restaurant owners along the Alabama coast. Further suits can be expected in other Gulf Coast states and from other industries harmed by the spill. The real question is what to expect from BP, Halliburton, Transocean and most of all from Congress.

Alabama alone brings in over $3 billion a year in Gulf Coast tourism. Texas, Louisiana, Mississippi and Florida likely bring in comparable Gulf Coast tourism revenue. The tourism losses will spread beyond restaurants to lodging, shopping, fishing, water sports, travel and so on. The loss in tourism dollars alone is far greater than the $75 million cap on damages for coastal drilling accidents.

There are many other direct costs that may well dwarf the loss in tourism such as the destruction of the fishing industry, the coastal wetlands, the ocean itself, and of course the massive cleanup efforts that will be required for even nominal success in remediation of the areas affected by the spill. The indirect costs could in turn dwarf even these costs. Meat and poultry prices have already begun to rise. Gas prices will surely begin to rise. Groceries across the board will rise in costs as a result of the increased fuel costs associated with getting products to market. The rise in energy costs will affect every area of our economy likely slowing the economic recovery from the recent recession. The unemployment throughout the Gulf Coast and across suppliers of goods and services to Gulf Coast businesses will likely sky-rocket. Then there is the property damage that will be suffered by the plummet in property values across the Gulf Coast. A coastal mansion or resort is probably not as picturesque as it might be with black toxic beaches littered with decaying fish and other wildlife.

All the while the first congressional hearings on the spill saw BP, Halliburton and Transocean all denying responsibility for the spill. This comes on the heels of BP's initial public relations ploy to accept full responsibility for the disaster. BP continues to state that it will cover all "legitimate" losses. This is what comes out of one side of their mouths. The other side continues to try to chip away at their responsibility and the definition of "legitimate." BP, Halliburton and Transocean will continue to cast blame on one another, and eventually they will probably try to blame the Mineral Management Service. They may even try to blame probably Obama which seems to be standard conservative response to every problem and have no doubt that the oil industry is firmly in the conservative camp. In addition to shifting blame, they will seek cover under the $75 million cap on damages. They will dispute every claim. The will dispute the direct losses such as the costs of cleanup and the destruction of the fishing and tourism industries along the coast. They will not even entertain the thought of compensation to the American taxpayers and property owners for the indirect costs. Do we really expect that these costs will be fully compensated when BP, Halliburton and Transocean are already disputing liability and fault?

The real remaining question is whether our leaders in Congress will force full accountability and responsibility for the harm that this spill has caused and will continue to cause our country. Or will they instead relent to the oil industry as they have so many times before. It always come down to the money. The question is whose money our leaders will value most, the taxpayers' money or their own oil industry campaign contributions? It is clear whose money dictated the absurdly low $75 million cap on damages. Whose money will speak moving forward. You do have a say. Let your representatives know whose money they should be watching.

Collins & Collins, P.C.
Albuquerque Attorneys

The recent New Mexico Supreme Court case of Durham v. Guest addressed the claim of malicious abuse of process. The case is remarkable for a number of reasons. In particular, the court ruled that arbitration proceedings constitute judicial processes though it is unnecessary to initiate judicial proceedings for the claim of malicious abuse of process.

The plaintiffs, Jamie and Travis Durham, sued attorney Suzanne Guest for malicious abuse of process for the illegitimate use of subpoenas in an Underinsured/Uninsured Motorist arbitration proceeding. Guest represented the Durham's insurance company, Allstate. The Durhams alleged that the subpoenas were issued in an effort to invade their privacy, ruin their reputations, cause the loss of employment and to inflict upon them emotional distress. They alleged this malicious behavior was the result of the Durham's failure to accept Allstate's offer of settlement. The Durhams also sued Allstate for bad faith insurance practices but the court's ruling addressed only the malicious abuse of process claims.

Defendant Guest answered that malicious abuse of process requires the initiation of judicial proceedings and arbitration did not constitute judicial proceedings. The district court agreed dismissing the Durhams' claims. The Supreme Court disagreed overruling both the district court and the appellate court on both these counts stating that arbitration is indeed a judicial process but that no judicial process is required for the claim of malicious abuse of process.

The court in so ruling restated the essential elements of malicious abuse of process as follows: "(1) the initiation of judicial proceedings against the plaintiff by the defendant; (2) an act by the defendant in the use of process other than such as would be proper in the regular prosecution of the claim; (3) a primary motive by the defendant in misusing the process to accomplish an illegitimate end; and (4)damages."

The case is important for a number of reasons. First, it seems to open up possible claims against insurance companies both in litigation and arbitration for the illegitimate use of subpoenas and perhaps other discovery. Secondly, malicious abuse of process may occur in arbitration proceedings which are commonly used in consumer rights cases such as debt collections and credit card disputes where arbitration is dictated by contract. This should give consumers a pretty good weapon to protect themselves against abuse during these proceedings. Finally, the elements reach a broad spectrum of possible cases. One that comes immediately to mind is a topic that we have been addressing in the past weeks which is the filing of false domestic violence charges.

Durham v. Guest seems to be perfectly situated to address cases of baseless and malicious filing of domestic violence actions. Though prosecutors are generally protected by judicial immunity and spouses enjoy limited protection against suits by their spouses, there is no such protection for boyfriends, girlfriends, ex spouses, or other non-spousal relations that file false claims of domestic violence, whether the false charges are brought civilly or criminally.

Related Reading:
Insurance Company Medical Records Review in Personal Injury Cases
Bad Faith Insurance Verdict - $12 Million Evidentiary Miscalculation
Discovery Abuse May Lead to Dismissal of Claims in the 10th Circuit

Collins & Collins, P.C.
Albuquerque Attorneys

There was a recent New Jersey jury verdict of $18.5 million for a birth injury. The medical malpractice award was reported in The Star Ledger. Essentially, the jury issued the verdict after finding that a delay in a c-section delivery resulted in the child's cerebral palsy.

It is not uncommon to see very large verdicts in birth injury cases. The damages in these cases are significant. The child and the family could face a lifetime of medical expenses, assisted living, rehabilitation and so on. This is not cheap. In addition, the child will one day become an adult with absolutely no possibility of earning income. A lifetime of lost earnings will typically make up a big part of the damages award. Then of course there are damages for pain and suffering. Despite what many believe, these are often a small percentage of the overall award.

Again, the verdict itself is not that surprising in light of the damages. In reading the comments on the article, I was struck by the success of the tort reform movement in programming the public's response. In fact, most jurors come to the jury box with these same prejudices including a strong bias toward protecting the medical profession.

One comment suggested that "Life is never fair. Nothing guarantees a perfect life or entrance into it." Another suggested that these awards are the reason for high health insurance costs. Another suggested that patients buy their own insurance to protect against medical malpractice. Even the one that agreed with the verdict expressed horror that the attorney would be paid a percentage of the recovery.

Yes, life is not fair. But life should not be made dangerous by the acts of others, especially those entrusted with your care. And those that do cause harm should bear responsibility for their actions. Lawsuits are not the reason insurance is so high, insurance companies are the reason insurance is so high. The medical malpractice crisis is a myth. Medical malpractice claims have dropped dramatically over the last 10 years. A study by the Institute of Medicine, a part of the National Academy of Sciences, estimates that up to 98,000 people die each year as a result of medical negligence. The fact is far fewer lawsuits are brought than realistically should be to protect the public against these risks.

Numerous health insurance companies made record or near record profits in 2009. At the same time, many are raising premiums across the board. Think about that. They made record profits during the worst recession since the Great Depression and yet they are still raising rates. Is it really lawsuits that are driving insurance costs? Could it not be corporate greed?

And what about those greedy lawyers? Look again at the actual numbers on medical malpractice claims. There are very few medical malpractice lawsuits being filed just in relation to wrongful deaths associated with medical negligence. This does not even begin to address medical negligence that results in non-fatal injuries and illness, often permanent, caused by medical negligence. The fact is these are extremely hard cases for attorneys. They are extremely expensive to litigate. This is true even in clear cases of negligence where it is often the policy of insurance companies to deny every claim. In addition, these cases are lost at trial more often than they are won due to the benefit of the doubt given doctors. Attorneys that take these cases take on enormous risks. Without the fee in the end, nobody would take these cases. And injured patients and society would be forced to bear the costs of these errors.

To some, as indicated by the comments to the report of the verdict, it is far better for society to allow insurance companies to charge outrageous premiums to protect against a fictitious wave of medical malpractice lawsuits while having the patient bear all the risks. It is far better still that society and taxpayers should bear the costs of a lifetime of care for injured patients through Medicaid, Medicare and Social Security than for insurance companies to cover the losses for which they are paid to cover. The insurance companies after all are the true victims here. We should protect their margins.

Related Reading:
Caps on Medical Malpractice Damages Do Not Lower Insurance Premiums or Healthcare Costs
Are Guns Safer than Hospitals?
Hot Coffee and the Medical Malpractice Myth

Collins & Collins, P.C.
Albuquerque Attorneys

BP is telling everyone that will listen that they are taking responsibility for the disaster they have caused. They will waste no expense getting that message across. But what is the reality?

It has become clear that there is a $75 million cap on the damages that BP can be ordered to pay. BP has stated they will pay all "legitimate" claims. Let's see how their lawyers, their public relations specialists, lobbyist and allies in the conservative media begin to warp the definition of legitimate in the coming weeks, months and years as the full impact of this disaster becomes known.

BP immediately hit the pavement trying to settle claims at $5000 a pop. It is hard to know where to start to describe all the problems of that little move. Fortunately, they were shut down and prohibited from continuing these efforts. Let's see where they go from here.

BP admits that the oil spill could reach 60,000 barrels a day. In the early days of the spill, it was estimated at 150 barrels per day. It is now feared that the oil will make its way up the east coast due to the currents in the Gulf of Mexico. Of course, nobody has even begun to address what the spill will do to Mexico, Central America, South America, the Caribbean... I guess they are on their own. I do not imagine BP will be offering up compensation for these damages as they are already seeking cover under the cap and beginning to throw around the term "legitimate." I trust we will all be just as understanding when an offshore rig blows up off the coast of Venezuela.

BP is now holding town meetings across the affected region. As part of this effort, the New York times reported that the company is trying to enlist and organize volunteers. That's right, they are asking the folks in the region who are now out of work to work for free to clean up the very mess that put them out of work. It's hard not to admire them for their chutzpa. Corporate responsibility and morality is of course another matter entirely.

Then there are the workers who were killed or injured. Can we expect BP to at least take care of their workers and their families. I do not think so. If they are seeking protection under the $75 million cap on damages to the people of the Gulf Coast, it seems a safe bet that they will now take shelter under the protections of worker's compensation to pay their workers pennies on the dollar for their injuries and damages.

So when BP says "We take full responsibility", they don't really mean that. What they mean is that they will pay only those damages that they absolutely cannot wiggle out of. Perhaps, they, their lawyers, their lobbyists, and their media allies bathe in the same oil that is pouring into the Gulf. They are certainly every bit as slippery.

Collins & Collins, P.C.
Albuquerque Attorneys

BP seems to be saying all the right things to the press. They acknowledge full responsibility for the accident and its clean up. They have indicated that they are putting every available corporate resource toward stopping the flow of oil and minimizing its impact on the environment. The company has even been generous enough to begin offering settlement agreements for damages to those harmed by the spill. If this sounds too good to be true coming from an oil company, it most definitely is.

While BP works the media and other public relations angles to project a responsible corporate actor, they have quite cynically, unethically, immorally, and arguably, fraudulently been attempting to extract cheap settlement agreements from fisherman and other businesses that will be harmed by what some are now saying could be an unprecedented environmental disaster. What is BP offering in its fit of generosity? Five thousand dollars in total settlement of all past, present and future claims for what may potentially be catastrophic loss of income to those affected by the spill. These efforts are so outrageous that it is reported that the Louisiana government has directed BP to cease circulating the settlement flyers. All those suffering losses have been advised to seek legal counsel before accepting any settlement offers from BP.

It might be suggested that this is just sound corporate behavior, trying to minimize losses to the company and its shareholders. It is and it points to the conflict between sound corporate policy, and public policy and individual rights. Many of these fisherman have already been shut down. Their loss of income alone may already exceed $5000.00. This does not even begin to reflect the future lost income, loss of way of life, loss of the enjoyment of the Gulf on which they have built their lives and their livelihoods. The effort to extract quick settlements is certainly predatory but by no means an unusual corporate response.

The Tea Party should have something to say here though I trust they will not. Let's say BP pays the full costs of the accident including the environmental cleanup, which is highly doubtful, who pays the other costs of the spill? Who pays for those fisherman, restaurants, tour operators and other businesses shut down by the spill along with all their now unemployed workers? Who pays for the increase in fuel costs, fish prices, other meat prices that will soar as a result of this catastrophe? What about the loss of tourism and related employment in a region still suffering from Katrina?

One way or another, the taxpayers will pay for the great bulk of the costs caused by BP's failures. All the while, BP is out front trying to gain settlements at pennies on the dollar from the immediate victims of the accident. It is very unlikely that BP will offer even a single nickel toward the indirect costs. And, once the lawsuits begin from those most harmed by the spill, they will bring their full corporate might and legal resources to fight every nickel of settlement of the direct harm, complaining all the way of the injustice of the American legal system that allows treacherous and greedy trial lawyers to prey on the vulnerable corporate benefactors of our society. And in a twist of irony or some might say hypocrisy, those most vocal about government spending, social programs, overreaching government regulation and so on will come to their defense.

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Court of Appeals case, Chairez v. James Hamilton Construction Co., discussed in my prior post also addressed issues related to exclusive remedy of worker's compensation for employees injured on the job. Most states have statutes similar to New Mexico limiting an injured worker's claims against a negligent employer to worker's compensation. As was the case in Chairez, there are exceptions for injuries caused as the result of the negligence of a third party.

In Chairez, the deceased plaintiff's estate (plaintiff) sued the manufacturer for a defective rock crusher under product liability law. The defendant's motion for summary judgment due to modification of the equipment by the plaintiff's employer was denied. It was clear that the employer's modification of the rock crusher by removing a critical safety feature was negligent and contributed to the death of the plaintiff.

Due to New Mexico's exclusive worker's compensation remedy against the employer, plaintiff was unable to bring a claim against the employer despite the employer's obvious negligence, and arguable recklessness. The court cited the seminal 2001 New Mexico Supreme Court case on the issue of Delgado v. Phelps Dodge Chino in support of its discussion.

The Court laid out the requirements set forth in Delgado for the waiver of worker's compensation protection by an employer. Delgado holds that an employee can bring an action against the employer for work related injuries in very rare situations. The court in Chairez stated the Delgado factors as; "(1) he or she can establish that the employer engaged in an intentional act or omission without just cause that is reasonably expected to result in the injury to the worker; (2) the employer expected the intentional act or omission to result in the injury; and (3) the intentional act or omission proximately caused the injury."

Thus, the hurdle for getting past worker's compensation exclusivity is very high. In Chairez, the plaintiff was unable to clear this hurdle despite the obvious negligence of the employer in removing the safety features from the rock crusher.

Unfortunately, New Mexico like most states, provides far greater protection for the employer than the injured employee. The statute is drafted as if it is meant to protect employees. In reality, it is there to protect employers. The result is that countless workers each year in New Mexico and in other states are gravely injured or killed by the negligence and/or recklessness of their employers. The root of the behavior is often economic as in Chairez where the safety mechanism was removed so that the rock crusher could be cleaned faster to minimize down time.

Worse still, workers or their surviving families receive only nominal awards from for their damages. They receive pennies on the dollar for their lost wages which may be permanent and total. They receive only trivial awards for the rather cynically and miserly computation of their impairment ratings for permanent injuries. They do receive medical costs, past and future, associated with the injury. If the insurance companies can find a way around this, they do. The injured employee receives no other compensation for pain and suffering, loss of consortium, loss of enjoyment of life, loss of household services or any other losses.

In the end, society pays through Social Security, Medicaid, Medicare and other governmental programs. Thus, taxpayers are left to cover losses that should rightfully be paid by the businesses that caused them.

Related Reading:
Employer Responsibility for Worker Safety? No, But Thanks for Playing.
Employers Protected from Liability for Gross Negligence Toward Employee Safety
Third Party Liability for Work Related Injuries

Collins & Collins, P.C.
Albuquerque Attorneys