New Mexico Injury Attorney Blog

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.

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!

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

A claimant bringing a personal injury claim on his own behalf typically has no idea what to expect. In most cases, it is the claimant's first experience with attempting to get payment from an insurer for injuries and other damages that the person has suffered due to the negligence of its insured.

Some claimants are surprised that the insurance adjuster doesn't believe that they are truly injured and accept their word as to the damages incurred and the negative impact that the injury has had on their lives. The reality of the case is that the insurance adjuster is trained to be skeptical and to question every fact. Adjusters receive bonuses based on their level of skepticism and low payments that generally follow their evaluation and negotiation of a claim. Quite frankly, after defending every aspect of his or her treatment, time off work, inability to perform household tasks, the usual claimant tires and just wants to end the process, accepting whatever the adjuster's "final offer" may be.

Many insurance companies utilize a computer program known as "Collosus" that evaluates claims and determines the range of value for a particular claim. The computer program arrives at values for claims by comparing the data input by the adjuster with information relating to similar claims contained in its database. The information contained in the database is largely a summary of settlements and judgments for similar cases in the locale of the claim. It contains information regarding the impact that particular injuries have on an average person taking into consideration the severity of the injury, length of time of the usual recovery and usual cost of medical treatment for the particular injury. The adjusters attempt to resolve claims within the range of value determined by Collosus, preferably at the lower end. If the adjuster wants to exceed the value, most must get approval.

In theory, a program that calculates claims' values based on a significant amount of relevant information for the location in which the claimant resides could be helpful to adjusters. Similarly, both defense and plaintiff attorneys perform research regarding verdicts or settlements involving similar cases, preferably within their state, so as to assist in their own valuation of claims. An essential duty for an attorney is to provide his clients with a realistic outcome so that the client can make an informed decision regarding their case when faced with the question of acceptance or rejection of a settlement offer and whether to proceed to trial or not.

The difficulty with a program such as Collosus is that it does not take into consideration the impact that an injury has on an individual. Injuries affect people differently. One person may be particularly impacted by constant back pain and the limitations placed on their activities, while another person may not be seriously impacted. Some have a higher threshold for pain and some may not care that he or she has restrictions on what he can do physically. However, a person who exercised daily prior to an accident but can no longer go to the gym can be particularly affected, especially when exercise was a source of stress relief and enjoyment. A new mother with a baby is particularly impacted when she can no longer lift or carry her baby because of the aggravation of pain caused in her back.

When faced with an insurer that employs Collosus to value claims, it is extremely important for the claimant or his attorney, to provide information to the insurance adjuster that differentiates his claim from the "norm" and average value. By providing information that adds real value to a claim based on an individual's particular situation, Collosus can't be followed because the claim should no longer fit in the rubric of average. If the adjuster refuses to consider facts that distinguish the claim, the claimant then can choose to move forward with litigation knowing that a judge or jury will consider personal factors that impact an individual.

Every case, every insurer, and every adjuster are different. In all but the simplest and smallest cases, it is important to seek the guidance of an experienced personal injury attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

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