New Mexico Injury Attorney Blog

If you are ever in an auto accident, you will soon receive a call from an insurance adjuster. That adjuster will be calling on behalf of the other party's insurance company. The adjuster will ask and sometimes insist that you give a recorded statement regarding the accident.

To get immediately to the point, despite the suggestion by the adjuster to the contrary, a recorded statement is voluntary. You do not have to give one. This leads to point number 2:

What is a recorded statement in an auto accident case? It's a statement to an insurance adjuster in which you give facts about how the accident happened, as well as some personal information about yourself.

Keep in mind that anything you say to the insurance adjuster can later be used against you. The reason you do not give a recorded statement is not because you have anything to hide. It is because the question can be confusing, the adjuster is a professional (and has done this many times before and you have not), the adjuster has no interest in protecting your rights and the adjuster's job is to keep the payments by the insurer to a minimum.

In most cases, there simply is no reason to give a recorded statement. There are exceptions where it might be advisable depending on the case, the insurance company, the particular adjuster and other circumstances. But only an experienced attorney will be able to advise you on when the recorded statement may be to your advantage.

There are a couple of key points to keep in mind when asked for a recorded statement. Never even consider giving a recorded statement until you first speak to an attorney. Until your attorney has advised you otherwise, politely turn down the insurance company's request for the recorded statement. Since your statement can be used against you, you don't want to answer any questions on tape. Your responses can be misconstrued if the adjuster's question is unclear or open-ended.

The recorded statement is voluntary. Don't let the insurance adjuster convince you otherwise. In some cases, an insurance contract can contain a "cooperation clause." This is a provision in an insurance policy that can compel the "insured to assist the insurer in defending claims under that policy." It does not apply to the other party (i.e. you). And even under a cooperation clause for the at-fault driver, a recorded statement remains voluntary. Do not let the insurance adjuster suggest otherwise in order to induce your recorded statement. The adjuster has no duty to you and therefore has no duty to inform you of your rights. And you cannot later complain that you did not understand your right to refuse the recorded statement.

In sum, the insurance adjuster is not your friend no matter how nice or concerned he or she seems. The recorded statement is not for your benefit or protection no matter what may be suggested to the contrary. Anything you say can and will be used against you later. This may sound familiar but there are no Miranda rights in these cases and the adjuster has no duty to protect your interest, his duty is to his insured.

So again, DO NOT GIVE A RECORDED STATEMENT!

Related Reading:
Task Number 1 in an Auto Accident - Prove the Fault of the Other Driver!
Comparative Negligence Decided by Jury in New Mexico Personal Injury Cases

Collins & Collins, P.C.
Albuquerque Attorneys

If you are in a car accident, insurance coverage is critical to recovery on your claims. It is important to understand insurance coverage issues. One such is issue is the availability of stacking of coverage.

To begin, insurance coverage issues generally and dealing with insurance companies more specifically can be complicated and challenging. As such, if you have suffered serious personal injuries in an auto accident, you should consult with an experience personal injury attorney right away to insure that your rights are fully protected.

First, it is important to understand what "stacking" of coverage means. Stacking means that you can combine uninsured/underinsured motorist coverage on your various insured automobiles so that your total available coverage is the combined coverage of all policies. In other words, stacking allows you to add the individual policy limits together to get higher available coverage limits.

For example, if you have 2 cars that are each insured at $25,000, then you would have a total of $50,000 in uninsured/underinsured motorist coverage available. The same would hold true of if you had 3, 4, 5 ... cars. In addition, stacking might allow you to stack policies for other motor vehicles such as trucks and motorcycles. It might even include ATV's.

As you can see, stacking of coverage can result in significant increases to available coverage in the case of an accident as multiple policies can add up quickly. However, stacking is only allowed on some types of coverage. Specifically, in New Mexico, stacking is allowed only on uninsured and underinsured insurance coverage. It is not allowed on liability coverage. Nor is it allowed on medical payment coverage or other coverage.

Many states do not allow stacking at all, even on uninsured and underinsured coverage. Stacking of uninsured and underinsured coverage in our State is very important since New Mexico has a very high rate of uninsured drivers and even higher rate of underinsured drivers. The fact is that if you are in accident in New Mexico, there is a very good chance that the other driver will either be completely uninsured or grossly underinsured in cases of serious personal injury or wrongful death.

For a little perspective, New Mexico is always near the top for uninsured motorists. For those that do have insurance, the minimum liability limits are only $25,000. This means that without uninsured/underinsured coverage and lots of it, you will not come close to being fully compensated for your injuries. Unfortunately, many innocent drivers will also hold minimal limits of $25,000 which means stacking is critically important for any meaningful recovery.

For those that are reading this and it is not too late, get as much uninsured/underinsured coverage as you can. Get it on all your vehicles so you will have the benefit of stacking. It is not only the essential to recovery, you may find it is one of the few good deals in insurance.

Related Reading:
New Mexico Laws on Rejection of Uninsured/Underinsured Motorist Coverage are Retroactive
Don't Get Lured Into Waiver of Uninsured/Underinsured Motorist Coverage
Stacking Uninsured/Underinsured Motorist Coverage in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

A New Mexico news story has been getting a lot of press of late. A man convicted in 2010 of vehicular homicide for a DWI fatality has now filed suit against the bars and restaurants that served him. The man has also filed suit against his drinking buddy on the night of the fatal DWI accident.

As evidenced by all the press the story is getting, this obviously does not sit well with the public and will likely lead to a chorus of protests. Cases like this are easy fodder for tort reform advocates who argue that there is rampant frivolous lawsuit abuse. However, it is a little early to draw any such conclusions from the filing of this case.

In fact, there are a number of precedents set by both the New Mexico civil and criminal courts that lend some credence to the suit. Let's start with the suit against the buddy. Then we can move on to the claims against the bars and restaurants that served the man.

Passenger Criminal Liability for DWI Accidents

It was established in the 2009 New Mexico Court of Appeals case of State v. Marquez that a passenger could be charged with vehicular homicide. That case was pretty remarkable on the facts. The two friends had gone on quite a bender being cut off at several bars whereupon they took their show to the roads purchasing alcohol at several retail outlets along the way. Tragically, in the end, 2 people were killed and 5 injured in a devastating DWI auto accident. With this precedent in place, why would there not be civil liability as well? After all, the standard for civil liability is much less stringent than for a criminal conviction.

Certainly, the person killed would have a claim potentially against those that served the man as well as his buddy. It is not a stretch to get to civil liability for the consequences to the driver no matter how repugnant this may on a gut level. The facts remain to be seen about the buddy's role in the accident and the drinking that led up to it. Once this is heard, and it should be heard, it may well be that the drinking buddy bears responsibility to both the innocent victims and his drunk driving friend.

Dram Shop Liability for the Bars & Restaurants

Civil liability for a drinking buddy to a DWI friend has as far as I can tell yet to go before the higher courts of New Mexico. The liability for the bars and restaurants to the DWI driver/patron has been addressed by the New Mexico Supreme Court in the 2011 case of Mendoza v. Tamaya.

That case involved a suit by estates of two patrons of a resort who were killed in a DWI accident following a wedding reception. The Court in that case clearly established that the estates of the deceased patrons, including the driver, could sue for negligent over-service of alcohol. Therefore, it is clear that the DWI offender could sue for his own physical injuries and wrongful death under a dram shop patron claim.

If that is the case, why should the same patron be prevented from filing suit for other damages for that same negligent over-service of alcohol, namely 42 years in prison in the case at hand? The fact is that there is appears to be no good legal basis for that position.

Liability is Possible Though Perhaps Not in This Particular Case

The facts in State v. Marquez and Mendoza v. Tamaya both involved exceptional facts. Perhaps, the facts of the most recently publicized case will not meet those same standards. Perhaps this is not the case that will establish liability for the DWI driver's own damages under the patron dram shop claim or a DWI buddy claim. But it does not take a great deal of imagination to envision a situation where such liability on both counts would be perfectly in order.

In light of the countless tragic DWI accidents, the outcome of this case could prove to be one more useful tool for fighting DWI in New Mexico. This is one possibility that does not seem to have been addressed yet by the press.

Related Reading:
Drunk Driving Auto Accidents: Scope of Passenger Liability in New Mexico
New Mexico Supreme Court Limits Tribal Sovereign Immunity in Casino Dram Shop Cases

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Supreme Court recently reviewed the New Mexico Department of Transportation's immunity for the design and maintenance of the State's roadways. The court in Martinez v. New Mexico Department of Transportation was called upon to determine the line between immunity for the design of roadways and the potential liability under the New Mexico Tort Claims Act for the failure to maintain the roads in a safe condition.

The case involved a 2004 automobile accident where the first car carrying two occupants (one of which was pregnant) was traveling west on New Mexico Route 502. The second was weaving in and out of traffic, heading in the opposite direction when he lost control and struck the first car. There were no survivors in either vehicle.

Route 502 has sections with and sections without center barriers. The area where the accident occurred did not have a center barrier. Instead, the road had a central "turning lane," which was a two-way, turn-only lane.

As a result of the crash, the parents and grandparents of the westbound car brought a lawsuit against the New Mexico Department of Transportation for wrongful death and loss of the ability to have a relationship with the deceased, also known as loss of consortium. The lawsuit alleges that the Department of Transportation was negligent for failing to place a center barrier on this section of Route 502.

The New Mexico Tort Claims Act covers what is known as state's "sovereign immunity." In short, the Tort Claims Act prevents anyone from bringing lawsuits against the state unless they fall under specific exceptions. The Tort Claims Act includes an exception allowing lawsuits against the government for damages or injuries for failing to maintain highways. However, it also specifically indicates that the state does have immunity for damages caused by planning or design defects. As a result of the Act's exception to immunity for maintenance, but not for planning or design defects, the question in this case became whether the Department of Transportation's decision not to place a center barrier at the accident location should be considered maintenance or design.

On appeal from the trial court, the Court of Appeals used a very narrow definition of the term "maintenance" in finding that the New Mexico Department of Transportation had immunity and could not be sued in this case. However, the New Mexico Supreme Court took a different view.

The Supreme Court took the Court of Appeals to task for focusing too much on how significant an undertaking it would be to erect concrete barriers on this section of highway, instead of looking at all of the options the Department of Transportation had at its disposal to make the highway less dangerous. For example, instead of the difficult and costly concrete barriers, the Supreme Court noted that the Department of Transportation could have erected cable barriers or created a grassy island.

The Department of Transportation's duty to maintain New Mexico's highways includes an inherent duty to correct any dangerous conditions, whether or not they were caused by a design defect. In this case, even though the Department of Transportation cannot be sued for their alleged defective design, they are still responsible for maintaining the highway, including the correction of any safety issues.

It is immaterial whether the Department's correction is a permanent one, like the installation of concrete barriers, or a temporary one, like placing moveable barriers; the Department's maintenance obligation does not change. As a result, the Court of Appeals was reversed and the case was sent back to the district court for a new trial. Evidence to be presented to the jury would include both the knowledge of the Department of Transportation of the dangerous condition along with the reasonableness of remedial measures to make the road more safe.

The case is a good one for New Mexico drivers. It should help to insure that the State continues to improve the safety of its roadways. Potential liability for cases such as these should provide some incentive to correct known dangerous conditions rather than resting in the comfort of immunity for poorly designed roads.

Related Reading:
Tribal Immunity Can Extend to Car Accidents on New Mexico State Roads
Deadlines are Short in Suits Against the Government in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

In order to successfully bring a personal injury action for a car accident, you must first show that the other party was at fault for your injuries. Without the other party's fault, you will not have much of a claim.

The issue of fault actually involves a number of considerations. First, the other party must have caused the car accident. Second, you must show that the party was negligent. Third, you must address any fault that you may have had in the car accident. Finally, you must show that the party's negligence was actually the cause of your injuries.

Each one of these elements of fault can get fairly complicated. You need only ask any first year law student studying tort law to know this. However, at its core, the issue is fairly straightforward no matter how complicated and convoluted the issues may become on deeper study.

Careless or Negligent Behavior Required
The essence is that the other party caused the accident and that he or she was behaving carelessly to some degree or another. This usually speaks for itself in a car accident. For instance there is some behavior that is by definition careless or negligent. This would include speeding, weaving in and out traffic, running a red light, and failure to yield to name only a few. It would also include reckless behavior such as driving under the influence of drugs or alcohol. A relatively recent phenomenon which is causing mayhem on our roads is texting while driving which is also presumptively negligent.

Careless or Negligent Behavior Was the Cause of the Accident
In these cases, the negligence of the other party is clear. However, you must still show the party's negligence was the cause of the accident. There are situations where a party is driving negligently, an accident occurred but the negligence of the other party was not the cause of the accident. The most common example and gets to the third element is your own responsibility for the accident.

Comparative Negligence Standard in New Mexico
This gets to the issue of comparative and contributory negligence. To begin, New Mexico follows the comparative negligence rules. This is very good news for injured drivers since the contributory negligence rules (still followed by a small number of states) would prevent any recovery at all for even the slightest negligence on the part of the injured person.

It is easy to see how contributory negligence would lead to very unjust results. Related to this, it is clear that the negligent driver, or more accurately his or her insurance company, would look for even the smallest error on the part of the injured driver. This would incentivize the insurance company to fight even the most meritorious cases.

Comparative negligence on the other hand apportions negligence. In other words, if you were 50% at fault, then you only get compensated for 50% of your injuries and damages. This is very important because with very serious injuries or death, the damages can be huge meaning that even if you were 80% at fault, the recovery could be significant.

Accident Caused the Injuries (i.e. Argument of Preexisting Injuries)
The last requirement and one that is often hotly contested is that the other party's negligent actually caused your injuries. The insurance company will often argue that your injuries were preexisting and not caused by the accident. This issue must be dealt with head on. After all, just because you had prior injuries or medical conditions does not mean that you were not hurt in this accident. At the very least, your prior conditions may have been made worse for which you can seek compensation.

These issues can become vastly more complicated as one delves deeper into the issues. Rest assured the insurance company will do just that. And that is why you need an attorney on your side that is experienced in dealing with car accident cases.

Related Reading:
Reexamined Duty of Care in New Mexico Personal Injury Lawsuits
Comparative Negligence Decided by Jury in New Mexico Personal Injury Cases
Disclosing Pre-Existing Conditions and Injuries in a Personal Injury Case

Collins & Collins, P.C.
Albuquerque Attorneys

There are a number of very important considerations in a New Mexico car accident. In cases of minor injuries and damages, you may be able to effectively deal with the insurance companies on your own. However, in case of serious personal injuries, it would be perhaps be unwise to proceed without the guidance of an attorney.

The following list is simply a list of items that we see as very important in a car accident claim. Again, there are many other considerations and attorneys are apt to disagree on which are the most important.

Point Number 1: You should obtain a police report. This means insuring that a police report is created at the time of the accident. In other words, call the police to the scene. This is not the occasion to be generous and understanding with the other driver.

Point Number 2: If you are injured, seek medical attention as soon as possible after discovering that you are injured. Delays in treatment on occasion can be explained by delayed onset, lack of access to medical providers or other legitimate reasons. However, a delay will almost always be brought up by the insurance company as suggestive of a lack of injury.

Point Number 3: You must attend medical appointments and otherwise follow the advice of your medical providers. Failure to do so will most defiantly be used against you by the insurance company. After all, if you are hurt, and medical care is available, failure to seek medical care can arguably suggest that your injuries might be overstated at best. In short, gaps in treatment or repeated failures to comply with medical advice without a very good reason for doing so will seriously damage your claims.

Point Number 4: The other driver's insurance company is going to ask you for a recorded statement. You should never provide such a statement without first consulting with an attorney. That statement is recorded meaning that it will absolutely be used against you later if possible. In the best possible light, statements may be honestly misconstrued. However, in dealing with some insurance companies, you are not operating in the best possible light, and the entire purpose of the recorded statement may be to get you to unknowingly make highly damaging statements. In any event, there is no reason to provide such a statement unless at a minimum the other driver will do likewise for your attorney.

Point Number 5: Do not hide prior accidents from your attorney or the insurance company. In the age of the internet, it may best be assumed that your deception will be discovered. Prior accidents and injuries will not prevent you from making a claim. Nor will they typically even harm your claim. Lying and deception will. In fact, such behavior will not only harm your claim but may compel your attorney to withdraw from representation.

Point Number 6: Make sure that you have completed medical treatment, have fully recovered or reached maximum medical improvement prior to discussing settlement of your claims. If you have not fully recovered, then you will need to get permanent impairment ratings which will be used to value your case. In some cases, you may not be fully recovered due to the inability to obtain required treatment such as surgery due to a lack of insurance. In this case, the costs of additional treatment should be factored into the valuation of your case.

Point Number 7: Do not forget to fully document economic damages. There are many elements of economic damages. Often the most important is lost income. Lost income would include all past lost income resulting from the accident as well as future lost income. Future lost income is typically only a consideration in very serious injury cases. However, when it is a consideration, it is often the greatest element of damages. In short, there are some injuries that prevent a person from working in his or her chosen field and other injuries that prevent the person from working at all. In these cases, an expert economist must be enlisted to calculate the loss of earnings or the remainder of the injured person's working life.

There are many other aspects to personal injury cases. These are just a few that clearly call for the guidance of an experienced personal injury attorney.

Related Reading:
Valuation of Personal Injury Claims in an Auto Accident: You are Not Just a Number!
Fair Settlement of Personal Injury Claims is More Math than Wrath!
"Low Impact" Does Not Mean Low Injury in Car Accidents

Collins & Collins, P.C.
Albuquerque Attorneys

Federal and state laws have consistently upheld tribal jurisdiction in a variety of cases concerning Indian self-government within Indian country. Tribal jurisdiction is especially important in New Mexico, since there are 19 Pueblos, two Apache tribes, and the Navajo Nation in the state.

As in all states, the Indian tribes and pueblos in New Mexico retain sovereign immunity whereby generally suits against members of tribes and pueblos for accidents occurring within tribal boundaries, including personal injury and wrongful death claims, must be brought in tribal court. This holds true even in case of an auto accident occurring on state road running through Indian lands.

The New Mexico Court of Appeals in Hinkle v. Abeita recently held that tribal courts have exclusive subject matter jurisdiction over a tort claim against an Indian defendant for an accident occurring on a state highway inside Indian country.

Hinkle v. Abeita involved an accident on a state highway between the plaintiff, a non-Indian, and the defendant, and enrolled member of one of the State's many Pueblos. The plaintiff filed suit for negligence against the Defendant in state district court. The district court, however, granted the Defendant's motion for summary judgment for lack of subject matter jurisdiction. The Plaintiff appealed but the New Mexico Court of Appeals affirmed the lower court's decision.

At the same time, the Court took the opportunity to reiterate that the U.S. Supreme Court's 1981 decision in Hartley v. Baca had not been changed by the line of cases following Montana v. U.S, also a 1981 Supreme Court case. Hartley established the criteria for the "infringement test" developed by earlier cases to determine whether state actions infringed on Indian sovereignty rights. These include (1) whether the parties were Indians, (2) whether the occurrence happened on Indian land, and (3) the interest being protected.

Montana and the cases that followed it dealt instead with Indian jurisdiction matters over non-Indian individuals. Montana curtailed an Indian nation's ability to regulate hunting and fishing on their lands by a non-member. Cases that followed Montana held that tribal courts did not have jurisdiction over cases where two non-members collide on a highway within Indian lands, or against state police officers who executed a search warrant within a reservation. Other cases that cited Montana held that tribes could not tax non-Indian activity on non-Indian fee land within a reservation.

The Court explained that even though Montana and the cases that followed it curtailed tribal authority over non-members, Montana does not replace the "infringement test" in cases like this one. The Court also stated that state courts should not automatically step in and assume jurisdiction where tribal jurisdiction may be questionable or not clearly spelled out.

Moreover, state courts do not have the power to determine issues of tribal jurisdiction and should not engage in these determinations, since that is the role of Congress. Recognizing the heightened interest in protecting tribal sovereignty, the Court refused to read the Montana cases as a repudiation of tribal sovereignty and instead as marking the limits of tribal sovereignty.

In short, an injured plaintiff looking to file suit against a tribal member in an auto accident that occurred within the boundaries of a pueblo or reservation will almost inevitable be facing tribal court. The Court in Abeita made clear that this holds true even where the accident occurs on a state highway running through Indian lands.

Related Reading:
New Mexico Supreme Court Limits Tribal Sovereign Immunity in Casino Dram Shop Cases
Scope of Waiver of Tribal Immunity Under New Mexico Indian Gaming Compact

Collins & Collins, P.C.
Albuquerque Attorneys

An attorney has a lot of leeway in determining the way to proceed during the course of a lawsuit. However, one specific area that an attorney needs authority from his or her client is during negotiations for a settlement. An attorney needs his or her client to specifically approve any settlement offer made or accepted in order for the settlement to be legally binding.

In Gomez v. Jones-Wilson, the New Mexico Court of Appeals dealt with issues resulting from unclear settlement negotiations arising from a car accident. There were multiple defendants. The attorneys for the parties were negotiating settlement of the claims. An oral agreement was reached on settlement. However, it would become clear that the parties and their attorneys disagreed as to which parties the settlement agreement related.

The facts as stated in the Court's opinion are as follows. The defense attorney sent over a settlement agreement with a full release of claims pertaining to all defendants. The plaintiff's attorney immediately contacted the defense attorney expressing disagreement with the release of all parties specifically stated that it was not agreed or anticipated that Jones-Wilson (Defendant) would be released under the settlement agreement.

It appears from the Court's opinion that the plaintiff's attorney communicated to the dense attorney that his client would not sign the release due to the release of Defendant. He expressed to the defense attorney that this had never been part of the negotiation. Because the parties could not agree on the settlement terms, the plaintiff filed suit. After a suit was filed, Defendant filed a motion to enforce the settlement agreement.

The district court judge found that the agreement was enforceable. This is rather surprising in light of the fact that the negotiations were strictly oral in nature and the agreement had not been signed. There seems to be no clearer indication of the absence of an agreement than the absence of a signed agreement. Except here where there was also a clear expression that there was agreement.

The Court of Appeals reversed the district court. When a party wants to enforce a settlement agreement, that party must prove that the opposing party agreed to the settlement. The opposing party is the client in these cases, not the attorney. The client must give his or her or her attorney express permission to settle a claim. In the absence of authority, any settlement that the attorney agrees to is invalid unless the client then subsequently ratifies it through signature of the agreement.

The court further stated that the party seeking to enforce the agreement "has the burden of establishing assent by the opposing party...and that if there is an issue as to whether there was authorization, the party seeking enforcement of an alleged settlement agreement has the burden of establishing authorization."

Since the burden rested with the defendant in this case, he was required to provide evidence that the plaintiff's actions or his attorney's actions would indicate that authority existed to settle the claims against the defendant. In this case, it was found that there was no such evidence and at least in this case the defendant's attorney could not have possessed any information about the plaintiff's wishes or his communications thereon to his attorney.

The Court got to the heart of the matter when it stated:

"Oral settlement negotiations provide fertile ground for miscommunication or misunderstanding, and it is not surprising that two parties to a phone call would have different perceptions of the agreed-upon terms. As a result, it makes sense that the law requires some affirmative indication from each client that his or her attorneys had the appropriate authority to settle before a settlement agreement is enforced."

In fact, it would be an odd outcome to allow parties to be bound strictly by unsubstantiated one-sided assertions of an oral agreement made over the telephone. This would obviously lead to all manners of abuse. Best case, there might be innocent misunderstandings regarding the terms of settlement. Should an innocent misunderstanding committed to writing then be fully enforceable? If the answer is yes, how then does one distinguish between the innocent misunderstanding and the many other varieties?

Related Reading:
Payment of Medical Expense Is Not an Admission of Liability in New Mexico
"Full and Final Settlement" Means Both Full and Final in New Mexico Personal Injury Claims
Personal Injury Judgments: Winning and Collecting Can be Two Very Different Things

Collins & Collins, P.C.
Albuquerque Attorneys

The holiday season is upon us. With it comes celebration. Much of the celebration involves alcohol. As the holiday season approaches, we will be doing a few articles on liquor liability, often referred to as dram shop rules.

To begin, anyone that will be hosting a party should be aware of the possible liability associated with intoxicated guests. This liability can come in many forms from mishaps in the home to DWI auto accidents to good old fashioned holiday brawls to name just a few.

The liability of the homeowner is clear in these cases where the guests are over-served. This can stem from the atmosphere set by the party host in serving shots, serving up beer pong tables (or other drinking games), and of course the annual holiday drinking contest.

However, liability may arise from lesser offenses. For instance, an already intoxicated guest should not continue to be served. This can put the host in a bit of pickle in some cases where the guest takes offense leading to the aforementioned brawl. At the same time, throwing the guest out risks putting a drunken driver on the road leading to the aforementioned DWI auto accident.

Keep in mind too that under New Mexico law, both the over-served guest and any innocent victims the guest may harm may have a claim against the host. There are a number of fairly recent New Mexico cases that establish clear liability for a host that recklessly over-serves his or her guests.

So what should a host do to avoid liability for holiday parties gone awry? First, and most obviously, try to keep the party from going awry to begin with. This can be done by setting a responsible tone for the party. Clearly, the beer pong table is inviting disaster.

Related to this precaution, if you simply cannot host a party without a beer pong table, take the keys from your guests at the beginning of the party. Of course, this will not avoid the fisticuffs that on occasion accompanies beer pong. But it will avoid a DWI accident.

Next, keep an eye on your guests. It is often pretty obvious who has overindulged. Sometimes it is not so you will need to be on your toes. And avoid setting the stage for obvious overdrinking. Once again this relates to shots, beer pong, quarters and other drinking games.

Most importantly, do not allow your guests to drive home drunk. Make sure they have a designated driver. This means a sober driver, not a driver than is less drunk. If there is no designated driver, take their keys if you can.

Giving them a little coffee to sober them up is not good enough. That simply gives them an edge to their intoxication. As such, if you are going to have a drunken fest, be prepared for overnight guests.

Finally, if you intend to host a party with alcohol, you might want to check up on your homeowner's insurance. Even if you take all possible precautions, and even if you act completely responsibly, accidents happen. And even if in the end, you are found completely innocent of wrongdoing, a lawsuit could be financially crippling due to attorney fees. Homeowner's insurance coverage should protect you from this. However, it will not protect you from liability for reckless conduct.

In short, if you are going to have a holiday party, be responsible. To do otherwise, could be extremely costly to you and your family!

Related Reading:
Change In Evidence Requirements For Dram Shop Claims
Dram Shop Liability: Shifting Burden of Proof
Over-Served Intoxicated Patrons May Bring Their Own New Mexico Dram Shop Claims for Injuries

Collins & Collins, P.C.
Albuquerque Attorneys

Say you have been injured in an accident and have settled your claim with the insurance company. Down the road you discover you either still need additional medical care for your injuries, or you discover new injuries you were not aware of at the time of the settlement. Can that settlement agreement be "re-opened" or can you file another lawsuit for additional damages?

The answer is likely an emphatic "No". Prior to settlement, and most definitely prior to issuing you a check, the insurance company or opposing attorney will insist on a settlement agreement. This is typically, in the absence of an agreement to the contrary, an agreement in full and final settlement of claims. It is generally impossible to attempt to collect for additional damages after a settlement agreement has been signed.

The reason for this is that the defendant, usually an insurance company, agreed to settle your claim and make payment to you in exchange for a full release from all past, present and/or future claims stemming from the incident. The settlement agreement you signed most certainly included language similar to the following:

[Y]ou agree to waive your future right to make a claim or sue for any and all claims associated with the incident being settled. This includes claims unknown at the time of the signing, or for the worsening of, or for unknown future medical effect or injuries arising out of the claim or incident.

This binding effect of a settlement agreement is one of the reasons that it can take so long to settle a personal injury claim. Before entering into a settlement agreement it is absolutely essential to completely understand the extent of your injuries, including the need, if any, for future medical care. Any "future medical expenses" must be projected and figured into the settlement amount. This should be done by your treating physician and must include the following:

1. The likelihood that you will need future medical care.

2. A thorough description of the type and extent of the care you will need.

3. An estimate of the cost of the care taking into consideration how long you may need care and your life expectancy if it is believed you will need ongoing care for the remainder of your life.

It may not seem fair that you cannot make additional claims down the road for future medical care or injuries that were unknown at the time you signed the settlement agreement. However, if a settlement agreement could easily be undone by one of the parties months or even years down the road, then the parties could never feel that the claim is truly settled. The incentive for parties to enter into settlement agreements might disappear.

Furthermore, settlement agreements are an essential part of our legal process. Without settlement agreements our court system would be bogged down with all manner of trials, including personal injury lawsuits. For this reason the courts depend on settlement agreements to maintain the integrity and efficiency of the judicial system.

Binding settlement agreements provide benefits to all parties involved. Keep in mind that careful preparation of your case before entering into a settlement agreement, including thorough documentation of all past, present and future damages, is your best insurance against later ending up disappointed with your settlement. An experienced personal injury attorney will be able to walk you through this process to insure a fair settlement of your claims.

Related Reading:
Maximum Medical Improvement and Your New Mexico Personal Injury Settlement
Fair Settlement of Personal Injury Claims is More Math than Wrath!
Medicaid Liens: What is the Obligation in a Personal Injury Settlement?

Collins & Collins, P.C.
Albuquerque Attorneys

Maximum Medical Improvement, commonly referred to as MMI, is a term frequently used in personal injury cases. Maximum Medical Improvement refers to the point in your medical treatment when your doctor determines that further medical treatment will not improve your condition. MMI is therefore, an indicator of the permanency of your injuries. While there may be slight improvements in your condition, it is not expected that further treatment will result in any significant improvements.

Reaching MMI, however, does not necessarily mean that your medical care is complete. Many people require ongoing treatment and medical expenses related thereto, including physical therapy, pain management, or the need for assistive devices in order to maintain their current health and ability to function.

Reaching MMI also does not mean that your condition will not get worse. Many injuries can lead to secondary injuries or conditions. For instance, in many cases the development of arthritis in an injured body part is common. When this happens you may experience a worsening in pain or a loss in ability to perform certain physical activities. Once you have reached MMI your doctor will be best able to determine whether your condition may worsen and the need for future medical care.

Let's look at an example. Say you are injured in a car accident and suffer an injury to a disc in your back. This type of injury is painful and in many cases can cause numbness in your legs. After having surgery to repair the disc, the numbness in your legs improves but you continue to suffer from pain. After undergoing physical therapy and follow up care with your doctor your pain persists. At this point, perhaps six months or a year after your injury, your doctor may conclude that additional surgery would not provide any further benefit and your condition is not likely to improve.

In this situation, your doctor may conclude that you have reached maximum medical improvement. While your condition is not expected to improve your medical care is not complete. You will require continued pain management, which may include pain medication and a regime of exercise. But at this point your doctor is in a position to better evaluate your condition, how it will impact your life, and the need for future medical care.

Keep in mind that in most cases the insurance company will also have you examined by a doctor they hire to evaluate your injuries and testify as an expert witness. These doctors will generally testify that you reached MMI shortly after your accident and that medical bills related to the accident should be cut off at that point.

For this reason when you reach MMI there are several things that your doctor should evaluate and include in his/her medical report. A complete medical report including all of the following will ensure that you receive the full compensation for your injuries.

• Impairment rating, this is a rating reflecting the percentage of disability for injury. There may be full or partial as well as temporary or permanent impairment ratings. In addition, there may be a rating for individual body parts or organs.


• Work restrictions, specifically setting forth what you can and cannot do and whether you can continue in your present occupation or must seek new a new occupation. (Note that if your injuries require you to change occupations you may also need to have a separate evaluation to determine whether additional education or training is necessary for you to return to the work force.)


• Future medical care, including the types of treatment you are expected to need and the cost of such care.

Keep in mind that reaching maximum medical improvement can take time depending on the severity of your injuries. Injuries to several parts of your body will heal at different rates and you will reach MMI for your various injuries at different times. It is important to be sure that you have recovered from all your injuries before being declared to have reached maximum medical improvement.

In short, reaching MMI allows your doctor to predict your future damages, including future medical expenses, lost wages, and pain and suffering. Until you have reached MMI and your damages have been properly evaluated it is nearly impossible to reach a fair settlement or jury verdict for your claim. An experienced personal injury attorney will be able to discuss these issues with you as your case progresses.

Related Reading:
The Limits of Insurance Coverage in a New Mexico Auto Accident
Optional Auto Insurance Coverage Often the Most Beneficial to Your Family
The Importance of MedPay Insurance Coverage in Car Accidents

Collins & Collins, P.C.
Albuquerque Attorneys

Even at low speeds, motor vehicle-pedestrian accidents can result in very serious personal injuries or wrongful death. The National Highway Traffic Safety Administration recently released statistics stating that approximately 64,000 pedestrians are injured by vehicles every year in the United States, and of those injured, approximately 5,000 pedestrians are killed each year.

As in any auto accident, when a pedestrian is injured there are several issues that must be addressed right away. These include liability, comparative fault (if any) of the pedestrian, and the availability of insurance coverage to pay for accident-related damages.

Liability
When it comes to determining liability, New Mexico is a fault-based system. This means that the party at fault for an accident will be responsible for any resulting personal injury and/or property damage he or she causes. New Mexico law also recognizes a principle called comparative negligence. This means that any compensation to the injured party will be reduced to the extent that the injured party's action contributed to the accident. For example, if you are 20% at fault for an accident you will only be compensated for 80% of your injuries.

When it comes to pedestrian accidents, many people believe that because pedestrians have the right of way that the pedestrian can never be at fault for an accident. This simply is not true. Just like a driver, pedestrians have a duty to exercise reasonable care, and failing to do so is considered negligent. Keep in mind that even though there is some negligence on the part of the pedestrian, the pedestrian can still recover damages against the negligent driver. In cases of auto-pedestrian accidents, these recoverable damages can be quite substantial even with the offset for comparative negligence.

Insurance Coverage
If you are injured as a pedestrian by a negligent driver you will likely be able to file a claim with the driver's insurance company to cover the cost of your medical care, lost wages and other damages caused by the accident.

New Mexico law requires that all drivers maintain insurance coverage. Liability coverage provides payment for medical treatment, lost wages and other damages. New Mexico law requires that everyone carry at least $25,000 per person, and $50,000 per accident of bodily injury liability coverage.

Despite the legal requirement that everyone carry certain basic insurance coverage there are times that an injured pedestrian might have to look to other sources of coverage for compensation. This happens when 1) someone doesn't carry the required bodily injury liability coverage, 2) the limits of liability coverage are not enough to cover the damages associated with the injuries, 3) when there is a hit and run accident and the at-fault driver cannot be identified, or 4) when the pedestrian is at fault. In these circumstances some additional coverage options include medical payments coverage, uninsured/underinsured motorist's coverage, or your own health insurance coverage.

Medical Payments Coverage

When necessary you can seek coverage under your own auto insurance policy's medical payments coverage. This is coverage that pays for medical treatment incurred by the insured and any family members resulting from an accident.

Uninsured/Underinsured Motorist Coverage

New Mexico law does not require that you purchase Uninsured/Underinsured Motorist Coverage, but it is generally an inexpensive coverage that can be purchased as supplemental coverage to your liability and collision coverage.

Uninsured/underinsured motorist coverage is meant to protect you if you are in an accident with an at-fault driver that either does not have insurance coverage or whose coverage limits are inadequate to cover your damages. For example, if the at fault driver has the state minimum $25,000 in coverage but your damages are in excess of $40,000 your underinsured motorist coverage will pay the remaining $15,000 dollars.

Pedestrian-auto accidents are typically quite severe. This article is meant only as an overview. If you or a loved one have been injured in such an accident, you should immediately seek the counsel of an experienced personal injury law attorney.

Related Reading:
The Limits of Insurance Coverage in a New Mexico Auto Accident
New Mexico Leads the Nation in Uninsured Motorist
Comparative Negligence Decided by Jury in New Mexico Personal Injury Cases

Collins & Collins, P.C.
Albuquerque Attorneys

Many personal injury cases involve injuries sustained in an automobile accident. Victims of car accidents often find themselves with mounting medical care bills and wonder how to pay them while the case settles.

New Mexico is a "fault" or tort state for liability purposes in car accidents. This means that generally, the person at fault--and that person's insurance--is liable for the personal injury and property damage that results from the accident.

However, even if the other driver is at fault, their insurance company is under no legal duty to advance medical expenses to a third party. Moreover, it is not common for the insurance company of the opposing party to pay medical or any other expenses in advance of settlement. If and until settlement comes, the victim must figure out how to pay for his or her medical expenses.

A person injured in a car accident has several options when seeking payment for medical expenses before settlement. A victim may file with their own insurance if they have no-fault or MedPay coverage, obtain a letter of protection, or file with their own health insurance.

Many automobile insurance policies offer additional no-fault coverage. No-fault coverage, also called personal injury protection, pays the medical expenses of the driver and passengers of the car covered, regardless of fault. No fault insurance usually covers medical expenses and sometimes lost wages, but only up to the limits of each individual policy. Pain and suffering are not recoverable under no-fault insurance.

A popular form of no-fault coverage is Medical Payments Coverage (MedPay). A person with MedPay coverage will have access to payment advances medical treatment. Since MedPay is a type of no-fault coverage, fault does not have to be determined before using the coverage. MedPay covers medical expenses for the insured driver when driving the insured vehicle, when riding as a passenger in another vehicle, or if hit by a car as a pedestrian. It also covers all passengers riding in the insured vehicle, family members driving the insured vehicle, and a family member if struck by a car as a pedestrian. MedPay coverage is optional and can range from $1,000 to $100,000 per person per accident.

Another option is to obtain a treatment letter of protection. A letter of protection is more like a contract than a letter between the victim, his or her attorney, and the medical provider. The letter of protection will allow the victim to obtain the medical care needed in exchange for a promise from the victim and the victim's attorney to pay medical expenses out of the settlement funds. Nevertheless, not all doctors will accept letters of protection.

In many cases, victims have no other option than to use their own health insurance to pay their mounting medical bills. If a victim has no other funds available, it is advisable to use health insurance to avoid having late medical bills sent to collection for non-payment.

Once the case has settled, the insurance company will ask for reimbursement, also called subrogation, for the amount the insurance company actually paid the medical provider. Since most insurance companies get a discounted rate from medical providers, it is likely that the victim will end up with more of their settlement cash than if they had paid for the treatment out of pocket or failed to pay awaiting settlement.

These lien issues can be complicated. As such, if faced with this situation, it highly advisable to seek the guidance of an experienced personal injury attorney.

Related Reading:

Subrogation Rights in a New Mexico Personal Injury Claim

Medical Liens Can be Half the Battle in a New Mexico Personal Injury Case

Medical Insurance Subrogation Interests in New Mexico Personal Injury Cases

Collins & Collins, P.C.
Albuquerque Attorneys

The term "low impact accident" is one coined by insurance companies to describe automobile accidents where there was little or no property damage and usually occur at very low speeds. Insurance companies insist that since there is little property damage there can only be little or no personal injury involved in a low impact car accident. This is often not the case.

In the past, insurance companies defined low impact accidents as those where there was little of no physical damage to the vehicle and where the estimated cost of repair was $50 or less. However, insurance companies set this threshold themselves and have been increasing it through the years. Some companies today consider any accident involving repairs under $5,000 a low impact accident.

However, according to several specialists, there is no correlation between the severity of property damage and the severity of physical injury in car accidents. While an accident with severe property damage can cause little physical injury, one where there was little or no property damage to the vehicle can involve serious physical injury. While vehicles are designed to withstand low velocity impacts between 5 and 10 miles per hour, the human body is not.

Soft tissue injuries are the most common among low impact car accident victims. Most injuries occur to the soft tissue in the neck and back areas. Soft tissues include muscles, ligaments and tendons and lead to injuries like contusions, bruises, strains, and sprains. Whiplash is the most common injury in low impact accidents.

A study commissioned by General Motors (GM) conducted test crashes at speeds of 8 miles per hour or less and found that whiplash does occur during low velocity crashes, a fact that insurance companies have been denying for years. The GM study also found that more than half of all car accident injuries involve whiplash. Depending on the age of the victim and the severity of the injury, whiplash can be permanently disabling. Almost 30% of people with a neck injury reported suffering neck pain three years after the accident.

Whiplash injuries pose a number of challenges to recovery. First, whiplash will often present a delay in the onset of symptoms. Many victims who are later diagnosed with whiplash fail to report having pain at the scene of the accident and many do not report feeling any pain until 24 hours to one week after the accident.

Additionally, many insurance companies assert that it is impossible to get whiplash in a car with a high seat back or head restraint. However, several studies have proven that this assertion is completely false. If not properly positioned for each person, a headrest may act as a fulcrum and cause whiplash or contribute to whiplash injury. A Federal Motor Vehicle Safety study found that only 25% of adjustable head restraints were positioned correctly. This means that in 75% of cases, the head restraint is likely to cause or contribute to whiplash injury, not prevent it.

Unfortunately, there are some insurance companies that routinely deny or trivialize low impact injuries essentially ignoring the established science. An experienced personal injury attorney can in most cases show an adjuster the error of his or her reasoning. If the adjuster will not respond to reason (and there are some insurance companies that apparently take pride this position), then they must respond to litigation.

Related Reading:

• Valuation of Personal Injury Claims Not Always Strictly About the Numbers


• Fair Settlement of Personal Injury Claims is More Math than Wrath!

Collins & Collins, P.C.
Albuquerque Attorneys

Despite interventions put in place to help reduce the number of teen fatalities, car accidents still top the list as the number one cause of death for individuals aged 15 to 20. And not only are teen drivers at risk, it was found that 63% of teen passengers killed in an auto accident, were in a car driven by another teen. And, the risk of crash increases with every teenage passenger in the car.

Ultimately, teen drivers continue to be challenged by their immaturity and lack of driving experience, issues that can only resolve over time. Knowing some of the risks involved in driving, as well as participating in programs that help reduce these risks may better assist teens in meeting the challenges they face on the road.

Male teen drivers face the highest risk of an auto accidents, and are two times more likely to be involved in a crash than their female counterparts. Other high-risk teens include those who just received their licenses and those driving a car with other teen passengers.

High-risk behaviors are also prevalent among teens, which may include avoiding seatbelts, speeding and alcohol consumption. Perhaps the greatest risk, however, is the irresistible urge to to talk and text from their mobile phones. In fact, these practices have been shown to equal or exceed the risk associated with drunk driving. Sadly, teenagers are often prone to both at the same time.

Proven methods do exist in helping to prevent teen fatalities from auto accidents. The Centers for Disease Control states that graduated drivers licensing (GDL) programs can decrease fatalities among 16-year-old drivers as much at 38%. These programs are designed to give teens an opportunity to gain driving experience in a reduced risk setting that typically includes adult supervision. GDL programs may also prohibit cell phone use, restrict certain passengers, and limit nighttime driving, all behaviors that increase the risk of auto accidents.

Parental involvement is another factor in reducing the risks teenage drivers face. Indeed, research indicates teens with involved parents developed better driving habits, like remaining in acceptable speed limits and wearing seatbelts. According to the Research Institute at Children's Hospital of Philadelphia, teens were 30% less likely to use a cell phone while driving, were 70% less likely to drink and drive, and were half as likely to speed when they had parents actively engaged in setting boundaries and monitoring their activities.

There are also various on-line driver resources that can enhance traditional driver's education programs. The National Safety Council has several on-line courses, including "Alive at 25 Parent Program," that helps parents and teens partner in driver safety. The web also has teen-led safety initiatives, like "Keep the Drive," in which teens become the activists who spread the message of driver safety among their peers.

Unfortunately, auto accidents still rank highest in teen fatalities; however, most are preventable through risk awareness, experience, parental involvement, and additional training. In the end, time and experience will bring most teens safely through the precarious years of learning to drive.

Collins & Collins, P.C.
Albuquerque Attorneys