New Mexico Injury Attorney Blog

The Weed Warrior line of cases has opened up a wave of claims against auto insurance companies for the past denial of uninsured/underinsured motorist coverage. As a result of the Weed Warrior and the cases leading up to it, insurance companies and drivers alike are scrambling. One issue that has yet to be resolved entirely is what exactly is the statute of limitations on these claims?

For some background, Weed Warriors and the many other appellate court cases addressing the rights of drivers in UM/UIM coverage situations sets forth the duties of insurance companies in obtaining waivers of UM/UIM coverage. In a nutshell, in order for a waiver to be effective, there are numerous hurdles that auto insurance companies must overcome.

The gist of these cases is that the insured driver must fully understand and agree to the waiver. The reason for this is simple, UM/UIM is about the only bargain that a driver will get when purchasing insurance. In fact, the coverage is both essential in New Mexico which has the highest rate of uninsured drivers in the country and inexpensive. Simply put, it is a better deal for the driver than the insurance company.

These facts have led to many insurance companies duping drivers into waiving this essential and inexpensive coverage. As a result, there has been a wave of cases over the past several years requiring that waivers be in writing, fully disclosed and signed by the insured driver. Weed Warriors took this one step further requiring insurance companies to offer UM/UIM, disclose the costs of UM/UIM coverage and the difference in premium that would result from the waiver. In short, it must be a knowing waiver of coverage.

There is a strong public policy in New Mexico of requiring drivers to carry insurance. There is an equally strong policy in light of the high rate of uninsured drivers of providing UM/UIM in the event that an uninsured or underinsured motorist causes injuries to others. These policies are clear from the recent New Mexico Appellate Court decisions.

Equally clear is that many UM/UIM claims have been wrongfully denied in the past by these high standards. The court decisions make clear that the decisions are retroactive meaning that past wrongful denials must be remedied. This has resulted in thousands upon thousands of letters being sent by highly conscientious insurers to their insured drivers on past auto accidents. These went out pretty early after the Weed Warrior cases. Unfortunately, many less conscientious insurers have failed to do likewise.

This leads to the very important question and the subject of this post (if not yet apparent) of when the statute of limitations will run on these claims. The statute of limitations will be governed by the 6 year statute of limitations applying to contracts. The question becomes when does the 6 years begin to run?

The insurance companies are taking the position that the claims run 6 years from the date of the accident. Plaintiff's attorneys that represent those drivers wrongfully denied UM/UIM take the position that the 6 years begins to run from the date of the wrongful denial. This issue will likely be the subject of the next round of UM/UIM appellate court decision.

The outcome will make a huge difference to both insured drivers and to the insurance companies. The important thing for insured drivers facing this situation to take from this is that whatever the outcome on this dispute, there is a deadline under the statute of limitations. Missing the deadline will result in a denial of claims. It would be most prudent to assume that the deadline will be the shorter of the two beginning from the date of the accident. To assume otherwise may result in a complete bar to past UM/UIM claims.

If you are facing this situation, you should immediately contact a personal injury attorney with experience in insurance and specifically UM/UIM insurance claims. Delay in addressing these matters could be fatal to your claims. Indeed, this is what some insurance companies are no doubt hoping.

Collins & Collins, P.C.
Albuquerque Attorneys

Recently, the United States District Court for the District of New Mexico dealt a harsh blow to automobile insurers when it forced an insurance company to provide uninsured motorist coverage to a woman who had signed a form turning down the coverage.

This decision upheld New Mexico's strict rules addressed in several previous posts requiring specific types of disclosures and notices to be given to anyone who is turning down uninsured/underinsured coverage (UM/UIM coverage). Because in this case the insurer, Nevada General, hadn't complied with all of New Mexico's requirements for waiver of coverage, it was forced to pay the benefits.

The facts of Nevada General v. Encee are pretty straightforward. The insured plaintiff was covered by a Nevada General auto policy that provided only bodily injury liability coverage that would cover her in the event she was negligent and injured someone else. She was then injured in an accident where the other driver had no insurance coverage.

Ms. Encee requested UM/UIM insurance benefits to cover her injuries even though UM/UIM coverage was not in her policy. Nevada General refused to provide coverage because Ms. Encee had refused the coverage in writing and signed a form stating in three different places that she did not want UM/UIM insurance. However, the form did not exactly comply with New Mexico's strict requirements for a "knowing" waiver, as set out in Jordan v. Allstate. Specifically, the form failed to set out the difference in Ms. Encee's premium costs relating to the cost of her insurance with and without UM/UIM coverage, which was required by the New Mexico Supreme Court in Jordan. The federal court forced Nevada General to provide the UM/UIM coverage to Ms. Encee even though she never paid for it.

Nevada General argued that being required to provide UM/UIM insurance coverage to Ms. Encee was unconstitutional. Nevada General claimed that the court's enforcement of the New Mexico UM/UIM waiver requirements imposed an illegal "taking" under the Fifth and Fourteenth Amendments of the United States Constitution and that it violated the "Contract Clause" of the United States Constitution. Both of these arguments were flatly rejected by the federal court.

Although, it may seem extreme, this decision upholds New Mexico common law protection of individuals who are entitled to uninsured motorist coverage when insurance companies do not provide enough information for them to make a decision about whether they want to purchase coverage. All too often, companies play fast and loose with the disclosure requirements and then deny coverage, claiming that the individual never asked for this very important benefit. Many times, people don't realize that they did not have this coverage until it is too late. In New Mexico this can be disastrous in light of the high number of uninsured and underinsured drivers in the state.

If you have been denied coverage for uninsured or underinsured motorist insurance in New Mexico and you believe that you are entitled to it, you very well may have a claim. In fact, even if you settled your claims in the past, were denied uninsured/underinsured coverage, and the claim has long been closed, you may have a claim against your own insurance company for UM/UIM coverage up to the your liability limits.

If you have been denied UM/UIM coverage now or in the past, you should contact at attorney experienced in UM/UIM insurance coverage issues. Collins & Collins is experienced in handling all types of automobile injury cases and is well-informed on the issues relating to UM/UIM coverage.

Collins & Collins, P.C.
Albuquerque Attorneys

The recent explosion of social media (Facebook, Twitter, MySpace, Foursquare, Tumblr, Linked-In, and many others whose numbers grow daily) is creating a number of risks for its users. Some of the perils of social media have already had extremely negative and well publicized consequences for the imprudent user.

These include loss of employment and employment opportunities, criminal charges, loss of all varieties of lawsuits, discovery sanctions, contempt findings, and on and on. These are just the beginning of the hazards that have been laid by the imprudent and often reckless social media practices of its users. The problems are likely to get worse, and certainly more frequent due to the continuing explosive growth of social media.

Just for a quick look at the numbers. Facebook claims in excess of 800 million users. Twitter is somewhere in the vicinity of 200 million. LinkedIn is growing rapidly topping 100 million. MySpace is in decline but still has a huge membership. Then there are new sites that seemingly pop up on a daily basis.

With each, people have often posted some level of private information, some of which can be quite useful in litigation or even just for sizing up potential associates, partners, employees or others in anticipation of a business (or personal) relationship. These uses should be common knowledge by now which suggests the question of why folks continue to post their most intimate, private and sometimes damaging thoughts, actions, behaviors, hobbies, activities, and so on to the world.

One interesting trend to watch is the use of social media by insurance companies. In fact, insurance companies were among the earliest adopters of the opportunities in social media. For instance, many personal injury lawsuits have been completely undermined by ill-advised Facebook posts such as pictures from ski vacations, frolicking on the beach, hiking, working in the yard and so on which make claims of incapacitating physical injuries from a car accident somewhat difficult to support.

The insurance industry is said to now be scouring social media to find indications of deceit on insurance applications. Such deceit may be a basis for denying coverage on claims. It also may form the basis for higher premiums. After all, those pictures of your partying, boozing, smoking, and sky-diving with your friends may put you in another life insurance premium bracket than the non-smoking, non-drinking, conservative you that filled out the application. There are other possible problems as well with such posts that will have already arisen and most certainly will continue at an escalating pace in the very near future.

Now for the bad news. If it is posted, you cannot get rid of it. It is there for eternity. Not only can't you fully delete these damaging posts, the attempt to delete them can result in very serious consequences too numerous and too complex to address here in closing. The bottom line is that your social media posts are permanent. As Joe Friday might caution, "anything you post can and will be used against you in a court of law" and by prosecutors, your employers, your insurer, your spouse (your ex-spouse), your kids, your neighbor, your dog, and anyone else that spots an opportunity to utilize your posts against you.

One last thing, check your privacy settings!!! Honestly, does this still need to be said?

Collins & Collins, P.C.
Albuquerque Attorneys

Most everyone has experienced drunken Santa at a holiday party. It makes for funny stories about the drunken uncle Santa who fell in the punch bowl, passed out in the yard, made some un-Santa like advances toward some of the guests and so on.

It is not as funny when Santa on his sleigh-ride home hurts himself or innocent drivers and their families. And though entertaining, and possibly even worthy of YouTube, it could get very expensive when Santa in a polar rage challenges all comers to a brawl.

The laws in New Mexico are pretty clear regarding liability for setting drunken guests loose on the roads. This applies to Santa as well as any other guests. Here are few things to consider before lining up the tequila shots at your holiday party.

New Mexico's dram shop and social host laws will hold the hosts liable for accidents and personal injuries arising out of the overindulgence of guests at a party. The host is liable to any innocent victims injured by the drunken guest. These injuries are most often associated with DWI accidents. It would also include drunken brawls as noted above along with any other accidents caused by the drunken guest.

The host can also be liable for injuries to the guest himself. This could occur in all manner of situations. It would include a guest sent packing who is clearly intoxicated who is injured or killed in a DWI accident. It might also include the guests who flips his chair due to excessive merriment and suffers a skull fracture. Or maybe, it is the guests who flirts with the wrong guest's wife and takes a beating out in the yard. And then again, there is Santa who proves ill equipped to take on the crowd.

There are too many variations on this theme to count them all. Suffice it to say that over-serving your guests with alcohol is risky business. And unless you know your guests and are paying attention, any alcohol brings some risks.

Holiday parties will have alcohol. And people will drink. This is perhaps unavoidable. However, there is no need or excuse for encouraging guests to overindulge. In addition, there are just some friends and family that you know cannot control themselves around free booze. Keep an eye on them. Better yet, don't invite them. If you must, take their keys early, keep them under control and plan for an overnight guest.

So pay attention, know your guests, put your drunken guests in lockdown, update your homeowner's insurance and be careful to whom you give the Santa suit. Drunken Santa and his elves might be entertaining or even downright hilarious in their holiday antics, but this is one ghost of Christmas that you do not want to visit in the future.

Collins & Collins, P.C.
Albuquerque Attorneys

The $12 million verdict against Progressive Insurance last week in Albuquerque brings up a host of interesting issues. First, it is worth noting that the judgment was on counter-claims following a lawsuit initiated by Progressive against its own insured. Second, the verdict was 9 years in the making and the trial ending last week would not have occurred at all but for the persistence of the defendant/counter-claimant's attorney and the thoughtful analysis of the New Mexico Court of Appeals in its 2009 unpublished opinion Progressive v. Vigil.

The case involved a rollover car accident that resulted in the death of one of the passengers and serious injuries to 5 others. The police first suspected that alcohol was a factor in the crash but the driver later tested 0.0 on his blood alcohol test and the DWI related manslaughter charges were dismissed.

The gist of the case revolves around the bad faith denial of insurance coverage by Progressive Insurance for the passengers injured in the vehicle. Before getting to last week's trial, the case was dismissed on partial summary judgment by the first district court trial judge where the Vigil's claims were essentially dumped out. The judge in the first trial found that the plaintiff had failed to present evidence of coverage. In doing so, the court restricted consideration to the language in the policy itself, excluding from consideration verbal conversations with the agent, numerous automated responses, and subsequent notices indicating that the policy was in good standing.

The Court of Appeals found that this evidence should not have been excluded. Instead, it should have been presented to the jury for the jury to determine whether or not coverage was in place at the time of the accident. The Court stated that in the interpretation of insurance contracts, the courts are not restricted to the policy itself but may look to other evidence beyond the policy. Restriction of consideration to the policy itself is referred to as the "four corners" rule which means that the analysis is restricted to the four corners of the contract.

The Court of Appeals specifically rejected the four corners rule in cases involving consumer insurance contracts. The Court recognized that the great majority of policyholders rely largely or entirely on the representations of their agents. The court tacitly acknowledged that few if any consumers of insurance read the policy cover to cover. As such, the Court ruled that extrinsic evidence outside the contract such as conversations with an agent, automated responses, correspondence, and notices could be considered when ambiguity arises as to the terms of the contract. Specifically, the Court of Appeals stated:

"In this case, the evidence of the representations regarding the change in coverage to delete one vehicle and add another, followed by the repeated representations by the automated system and the customer service representatives about the November 15 premium date must be addressed at trial to determine whether the facts support a temporary contract of insurances, notwithstanding the existence of prior unambiguous policy language reflecting an end date of November 3, 2002." The Court of Appeals therefore reversed the district court's summary judgment on the coverage issue sending the case back to district court for retrial.

The evidence submitted to the jury this time around would have never gotten to the jury if the analysis was restricted solely to the insurance policy itself. Had the analysis been restricted to the policy itself, the jury would not have heard all of the evidence that the premiums were either current or at the very least that the Vigils were led to believe the premiums were current. Instead the jury would have heard only that Progressive made payments on the lapsed policy of a deadbeat client for which it sought reimbursement.

Fortunately, due to the New Mexico Court of Appeals and the persistence of the Vigils and their attorney, the jury did hear the evidence. And the jury spoke loud and clear. Suffice it to say that in light of the evidence formerly excluded by the original trial judge, the jury found Progressive's behavior to be outrageous enough to justify the $12 million verdict. In short, Progressive's miscalculation in filing a lawsuit against its own insured backfired in the worst possible way. We will have to wait to see how this verdict will be spun to paint Progressive and the insurance industry as the victim of greedy trial lawyers and opportunistic plaintiffs.

Collins & Collins, P.C.
Albuquerque Attorneys

Insurance products are intended to help manage risks individuals face from certain unforeseen circumstances. When an insured person is found responsible for damages or injuries caused to another person, a standard homeowners policy or auto liability policy can provide some protection. However, this coverage can be woefully inadequate in case of serious injuries.

For homeowners insurance, there is often only$100,000 worth of liability coverage. For auto liability insurance, the legally required amount is only $25,000. Many will carry coverages well in excess of this coverage but even these larger amounts may be insufficient to cover serious injuries.

When the liability limit is reached, an insured could find themselves personally responsible for the remaining costs. In the face of catastrophic injury, even coverage of $100,000 may not cut it when one considers medical bills, future medical care, rehabilitation and even the loss of a career due to an accident-induced disability.

To help prevent an accident or injury from consuming one's hard-earned financial resources, additional protection can be purchased in the form of a personal liability umbrella policy (PLUP), also known as an excess liability policy. An umbrella policy will take effect once liability coverage has been exhausted. Rates for an umbrella policy can range from $150 to $300 per year for a $1 million policy, which is just a fraction of the premium charged for standard homeowners or auto coverage. Each additional million can range from $50 to $75 per year.

In order to obtain PLUP coverage, an individual must have minimum prior coverage limits. For instance, to qualify for PLUP coverage, a driver must have minimum auto liability coverage limits of $250,000 per person/$500,000 per incident. Assuming one meets these threshold requirements, an umbrella policy should be considered by those who have personal assets higher than their homeowner's liability or auto liability limits. Without this additional coverage, an individual may be forced to liquidate their assets or even have their wages garnished to cover legal judgments.

For those who already have a personal umbrella policy, it might be wise to occasionally reconsider the policy limits to avoid being underinsured. As one's assets grow over time, it is easy to forget that insurance needs grow as well. Personal umbrella coverage can truly live up to its name; providing an extra layer of protection on a day when circumstances not only rain, they pour.

Collins & Collins, P.C.
Albuquerque Attorneys

Companies are not only liable for their own acts that cause injuries to others, but may also be liable for the acts of their employees under the doctrine of respondeat superior. This legal concept is derived from the Latin term meaning "let the master answer." This doctrine imputes civil liability to any employer whose employee negligently causes a personal injury to a third party while acting within the scope of employment. The worker must be both an employee and acting within the scope of employment. As simple as this may seem, neither element is necessarily clear.

In any lawsuit imputing liability to an employer, the court will make two inquiries. First, the court will inquire whether the employee who caused the injury was actually an employee as opposed to an independent contractor. An employer is typically not liable for the acts of independent contractors. However, if the employer exercises significant control over the worker's hours, tasks location, and wages and so on, an employee/employer relationship is likely to be found. In some cases where an independent contractor relationship is suggested, the court may also look to who provides the tools and/or transportation for the worker

Second, the court will inquire whether the employee was acting within the scope of employment when he injured the plaintiff. New Mexico jury instructions require that the employee's acts were both "fairly and naturally incidental to the employer's business assigned to the employee" and the employee was "engaged in the employer's business with the view of furthering the employer's interest." In order to trigger the doctrine of respondeat superior, the employee's conduct must not have arisen from some "external, independent and personal motive." This issue often arises under the "coming and going" rules where employees are not within the scope of employment while in route to or from work.

The determination of an employee relationship is often critical to a personal injury claim. The issue comes up in many different situations. Perhaps the most common are auto accidents. The "coming and going rule" will not hold an employer liable for an auto accident caused by an employee on the way to or from work in most cases. On the other hand, an employee who is clearly within the scope of employment when the accident occurs will trigger liability on the employer.

The difficult areas fall between these two extremes. For instance, an employee may be delivering goods for the employer, take a detour for some personal business or more likely recreation, and while on the detour cause the accident. This can be a difficult issue. In other cases, the employee may be traveling to or from work. Typically, this would be barred by the "coming and going rule." However, there are exceptions that may turn on who provides the transportation, who provides the routes of travel, whether employer tasks are conducted along the way, or the employee is afraid from home on a remote worksite.

In other words, the cases can get a little tricky and will typically suggest the involvement of an experienced personal injury attorney. Why does it matter? Typically, an employee will have far fewer financial resources than an employer. In fact, many employees may simply be judgment proof, meaning there is little to collect even in a successful lawsuit. An injured party's recovery may be entirely dependent upon whether respondeat superior is found.

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys