New Mexico Injury Attorney Blog

Immediately following any personal injury accident, it is important to document all of the particulars surrounding the event, as well as preserve any evidence that can support your claim. Time has a way of eroding these details if left to memory several weeks later, so write down the details at your first opportunity. If you are unable to preserve this evidence due to the extent of your injuries, obtain the help of a family member or friend.

Transport by ambulance or other emergency medical personal will create a good record of medical treatment related to the accident. However, if you were not taken by ambulance, be sure to follow up with your health care provider as soon as possible. This will insure formal documentation of your injuries by a third party. Be sure to photograph any visible injuries without delay, as they can change quickly over time.

Revisit the scene of the accident as soon as practical. In the case of an automobile accident, it would be helpful to visit the scene at the same time of day on the same day of the week as when the accident occurred. Make note of the traffic conditions, traffic controls and road conditions. Take photographs of the area for those who may not visit the scene in person.

In the case of a slip and fall or other liability type claim, return to the scene as soon as you are able. Repairs or improvements are typically made quickly to prevent further liability. In addition, other conditions can change rapidly such as icy or slippery walkways. If possible, photograph the areas, dangerous conditions or obstacles that caused the accident.

Identify any witnesses to the accident at the time of the accident particulaly those that were not included in a police report or when a police report was not prepared. They may have seen or heard things that escaped your attention. In addition, their testimony carries far more weight than yours in case there are disputed facts. You will want to contact witnesses promptly, as memories have a tendency to fade and people frequently move.

Continue to take notes as you recover. These notes can include the effects the accident has had on your daily life, as well as the pain and limitations you have had to face. You may also want to document your mood, including any anxiety or depression issues, and sleep disturbances.

Good record keeping will ease some of the stress you feel when working through a personal injury claim to its resolution. Taking the steps necessary to preserve evidence and document your injuries and damages is key to a successful outcome in your personal injury claim.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

In case of an uninsured/underinsured motorist claim on an automobile accident in New Mexico, the law requires that an insured party notify their insurance company of the uninsured/underinsured claim "as soon as practicable."

The requirement is a little bit vague but what it means in practice is that you must notify your carrier of an uninsured/underinsured motorist claim as soon as it becomes evident that the insurance coverage of the other driver is inadequate to compensate you for your injuries and damages.

This determination may take some time since insurance companies are not always willing to turn over insurance policy limits information on their drivers. Often times, insurance companies will turn over policy limits information only when a demand in excess of insurance policy limits is made and the insurance company feels that legitimate claims may be made in excess of policy limits.

This information may come well into the personal injury claims process. In fact, it may well be that the policy limits are not known until formal discovery is conducted in the litigation process. As such, "as soon as practicable" could be weeks, months or years after the accident has occurred. Only once an insured driver knows of a possible uninsured/underinsured motorist claim must the driver notify his or her insurance company of the claim.

The statute of limitations, always something to watch closely in every personal injury matter, is less of a concern in uninsured/underinsured motorist claims. Personal injury claims, including auto accidents, have a 3 year statute of limitation. The limitation period is shortened to 2 years in case of governmental defendants. However, the statute of limitations on a uninsured/underinsured motorist claims is 6 years. An uninsured/underinsured motorist claim is contractual in nature and disputes on written contracts have a 6 year statute of limitations.

Keep in mind that the statute of limitations is not the same as the notice requirement. The notice to a driver's insurance company must be made once the uninsured/underinsured claim is known. Of course, if this comes years after the accident, the longer statute of limitations on uninsured/underinsured claims provides the driver with added protection.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

The Tort Reform movement paints every personal injury claim as an assault on small business, doctors, health care, the public, the very American way of life. Every jury verdict is claimed as a victory of greedy trial lawyers and opportunistic plaintiffs who are just trying to profit at the expense of America. The tort reformers are not subtle in their claims. Unfortunately, their claims are completely false directed toward the protection of insurance industry profits.

This truth is born out in court every day, in every state, in every personal injury case. The mention of insurance coverage in personal injury actions is strictly prohibited. It is argued that jurors would unfairly factor the coverage into their decision-making. What escapes reason and discussion in the Tort Reform error is that jurors routinely and erroneously factor into their decisions the possibility that a large verdict would unduly harm the defendant whether it be a doctor, small business, large business, or individual.

In fact, this lie underlies the entire Tort Reform campaign which relies on the fact that the jury and the public are never told the truth behind each and every personal injury case. That truth is that personal injury cases are rarely filed at all unless there is insurance coverage. Insurance is called upon to reimburse plaintiffs for their injuries. In most cases, there is no point in filing against an uninsured defendant. Most uninsured individuals or businesses have no assets either. One of the first things anyone does upon the acquisition of wealth or assets is to obtain insurance to protect them. Where the defendant is uninsured, which is quite typical in auto accidents in New Mexico, the typical best case outcome is a large but uncollectable verdict. Few lawyers would put their clients or themselves through such a futile endeavor.

The truth is that the insurance industry, which records obscene earnings and profits each year, relies on the jury's lack of knowledge to protect not the doctor, the small business or the public but to protect its own profits. In the end, due to the huge success the lies of Tort Reform have in had on swaying juries against injured plaintiffs and effectively passing on the insurance industry's liability, it is both the public and the plaintiff who are harmed.

The Tort Reform movement in its successful campaigns for the protection of the insurance industry effectively shifts the costs of the insurance industry to the injured plaintiff and the public. After all, who pays when a plaintiff is horribly injured, forced to endure a lifetime of medical treatment and often unable to work? Medicare, Medicaid and Social Security then pick up the tab for what was contractually the responsibility of an insurance company. These costs are of course passed on to the public through taxes and debt.

Keep this in mind the next time you hear that personal injury suits harm the public. It is not the personal injury suit, the attorneys, or the plaintiff that hurt the public, it is the passing on of insurance coverage responsibilities from the ever successful and profitable insurance industry to the public health and welfare agencies that causes the true harm to the public.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

There are many reasons to wear a seatbelt other than the laws requiring it. The top ten reasons for proper seatbelt use are apparent from the following statistics from a study at James Mason University:

1. One in five drivers are involved in an auto accident each year.


2. Auto accidents are the leading cause of death for those under the age of 45.


3. Close to 35,000 people die each year in auto accidents, half of whom would have been saved by the use of seatbelts.


4. For every one percent increase in the use of seatbelts, 172 lives are saved.


5. Seatbelts reduce auto accident fatalities by 60-70 percent.


6. A person is 25 times more likely to die when thrown from a vehicle.


7. Children are often killed by being crushed by unrestrained adults.


8. The most common injuries to children in car accidents are head injuries resulting in brain damage, traumatic brain injury, epilepsy or death.


9. Over 80% of child fatalities in auto accidents would have been prevented by the proper use of seatbelts or car seats. Unfortunately, less than ten percent of children are properly restrained.


10. Seatbelts may provide the greatest and only protection against DWI drivers. This is very important in New Mexico which historically has among the worst DWI problems in the country.

A seatbelt may very well save your life in the case of a car accident. If that is not enough, it may save your child. Just as importantly, it could minimize physical injuries. In New Mexico where drivers are chronically uninsured or underinsured, minimization of physical injuries may very well save you and your family from financial disaster. There many more good reasons for wearing a seatbelt and none that would suggest otherwise.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

In the case of Ovecka v. Burlington Northern Santa Fe Railway Company, the New Mexico Court of Appeals addressed the issue of vicarious employer liability in the context of a wrongful death suffered in a DWI auto accident involving an employee of Burlington Northern. The central issue in the case was whether the drunken employee's actions could be imputed to Burlington Northern.

The employee, Kenneth Long, had a long history of DWI and alcoholism. His job duties carried him around a wide area of New Mexico. Due to the remote locations of the job sites, Burlington Northern employees were often provided lodging near job locations. Kenneth Long often took advantage of the lodging. He utilized his own vehicle in commuting to and from location. After work one day in Rio Puerco, Mr. Long headed to Grants where lodging was provided by the company. However, Mr. Long did not check in. Instead, he picked up a 12 pack of beer and headed to Gallup to visit estranged family members. Mr. Long became extremely intoxicated and headed back toward Grants. At 9:00 PM, well after leaving work that afternoon, he crossed the highway median colliding head-on and killing Angela Ovecka.

Ms. Ovecka's parents brought the suit on behalf of Angela alleging Burlington Northern's vicarious liability under respondeat superior for Mr. Long's actions. They further alleged negligent hiring and supervision. Burlington Northern moved for summary judgment which was granted by the district court and affirmed on appeal by the New Mexico Court of Appeals.

The court set forth well established principles of respondeat superior. In short, the court found that Mr. Long was not acting within the course and scope of employment at the time of the accident. The court stated that an "an employee enroute to, or returning from, his place of employment, using his own vehicle is not within the scope of his employment absent additional circumstances evidencing control by the employer at the time of the negligent act or omission of the employee." Under the facts, the court found that Mr. Long was returning home, well after business hours, and there was no other evidence suggesting control over Mr. Long at the time of the accident.

The court also refused the plaintiff's arguments regarding negligent hiring and supervision. The court stated that negligent hiring and supervision claims require both foreseeability of harm and a duty on the part of the employer. The court determined basically that an accident such as this was not a foreseeable harm arising from the hiring of Mr. Long. In the absence of foreseeability, there could be no duty to prevent the harm.

Naturally, Mr. Long was driving an uninsured vehicle at the time of the accident. The case did not address whether or not Ms. Ovecka carried uninsured/underinsured motorist coverage. In the absence of such coverage, Ms. Ovecka's tragic death likely would have gone completely uncompensated.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

There is a strong public policy for the provision of uninsured/underinsured motorist (UM/UIM) coverage in auto accidents. In New Mexico, this policy dictates a liberal reading of both the statute governing uninsured motorist coverage as well as the auto insurance policies themselves.

An auto insurance policy will be held to provide uninsured coverage to the same degree as the liability coverage unless there is a specific signed rejection of the UM/UIM coverage attached to the policy. In addition, the UM/UIM coverage will have the same geographical coverage as the liability coverage under the policy. Because insurance policy limits are almost always an issue in car accident cases, the laws and cases governing uninsured motorists are critical. The issue can even arise on vacation or other travel abroad.

In the 2001 case of State Farm v. Marquez, the New Mexico Court of Appeals held that UM/UIM coverage in the policy extended to coverage for an automobile accident that occurred in Mexico. The court held this despite the fact that the policy had a specific exclusion of uninsured/underinsured coverage in Mexico.

The court ruled that because the policy provided liability coverage in Mexico, there was UM/UIM coverage as well. The court ruled that the policy behind uninsured/underinsured motorist coverage dictated that the uninsured/underinsured coverage be territorially coextensive with the liability coverage despite the language in the policy excluding uninsured motorist coverage in Mexico.

The court recognized that an insurance policy could exclude both liability and uninsured motorist coverage outside the United States. However, the uninsured coverage would follow the liability coverage. The court expressly refused to address whether or not an insured driver could reject uninsured coverage outside the United States. In light of subsequent case-law, it is clear that a policy holder could waive uninsured coverage outside the U.S. when the rejection is signed and properly attached to the policy.

If you have suffered personal injuries as a result of an automobile accident outside the United States, you would be well advised to have an experienced accident and injury attorney review your policy for possible coverage. Chances are that there is no coverage on the other driver and little chance of direct recovery through a lawsuit against the other driver.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

Medicare/Medicaid will have a lien on all funds from a personal injury settlement or judgment in cases where Medicare/Medicaid benefits were received. Medicare/Medicaid is very aggressive in pursuing these liens. Failure to properly account for and reimburse Medicare/Medicaid for its liens can result in serious penalties for both the personal injury plaintiff and his or her attorney.

Medicare/Medicaid often claims liens on all medical expenses, both past and future. These claims can significantly erode the funds received by the injured plaintiff. This is particularly so in cases where the personal injury plaintiff is seriously injured and there is little or no liability insurance and the defendant has no assets to cover a judgment. This is frequently the case in auto accidents where the at-fault driver is uninsured or underinsured.

Because Medicare/Medicaid typically claims a lien on all medical benefits provided by Medicare/Medicaid, the lien is often overstated, often times greatly overstated. Medicare/Medicaid is not entitled to recover on medical benefits that are not related to the incident that is the subject of the personal injury claims. This is frequently an issue since many of those injured in accidents had previous medical issues for which they were receiving and continue to receive Medicare/Medicaid benefits.

Medicare/Medicaid will often issue a lien that covers all medical benefits received by the plaintiff following the accident. Though the plaintiff may be receiving treatment for the accident related injuries, he or she will still be receiving benefits for other medical conditions during this time period. It is therefore important to go through the lien item by item to insure that Medicare/Medicaid is not claiming a lien on unrelated medical benefits.

Once these unrelated benefits are identified, Medicare/Medicaid will reduce the lien accordingly. In some cases, these unrelated medical expenses may form the bulk of the lien. A careful review of the Medicare/Medicaid lien can result in substantial savings to the plaintiff. In short, a reduction of the Medicare/Medicaid lien results in a dollar for dollar increase in the funds received by the plaintiff from the settlement or verdict. Likewise, each dollar paid to Medicare/Medicaid reduces the amount received by the plaintiff making it very important to carefully review and evaluate every item claimed on the Medicare/Medicaid lien.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

Many drivers that are involved in auto accidents have no medical insurance. As a result, they are often unable to get necessary medical treatment for their injuries. This is especially frustrating when the accident was caused by the negligence of the other driver. As with many insurance issues, the injured driver's rights can be somewhat confusing.

The issue comes up in frequently in auto accidents in New Mexico. Many times, the other party has no insurance or has very little insurance. However, the issue comes up just as often when the other driver does have auto insurance. In fact, this situation is even more frustrating when the other driver has insurance but the insurance company refuses to advance medical expenses despite their insured driver's clear liability for all injuries and recoverable damages including medical expenses suffered as a result of the accident.

Unfortunately, this is the case more often than not. The insurance company for the negligent driver has no duty to advance medical expenses for the innocent driver's injuries. The insurance company has a duty only to its own insured. As a result of the absence of any duty to the injured driver, insurance companies routinely refuse to advance medical expenses. In fact, it is rare that an insurance company would advance medical expenses to an injured driver other than its own policy holder.

New Mexico has the highest rate of uninsured drivers in the nation. Uninsured/Underinsured Motorist (UM/UIM) coverage is critical since the only coverage an innocent driver is likely to have in an auto accident is his or her own insurance. In addition to UM/UIM coverage, all drivers should carry their own MedPay coverage. MedPay (Medical Payments Coverage) provides coverage for just the situations discussed here.

MedPay provides for the advancement of medical expenses for its insured in case of an accident. MedPay is no-fault insurance so it is immaterial whose fault it is. MedPay allows an insured driver to seek immediate medical attention with the insurance company billed directly by the medical provider. An insured can choose the level of MedPay coverage which typically begins at $5000 limits. This means that $5000 in medical expenses will except in rare circumstances be automatically covered for injuries suffered in an auto accident.

Unfortunately, many New Mexicans have no auto insurance. They are equally likely to have no medical insurance. As a result, MedPay may provide the only possible source of funds for medical treatment following an auto accident. As with UM/UIM coverage, drivers are wise to carry as much MedPay as possible. This is particularly true for those without medical insurance since even minor auto accidents can result in medical expenses that far exceed $5000.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

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

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

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

Here are the basic ground rules:

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

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

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

The law in New Mexico regarding the rejection of uninsured/underinsured motorist coverage seems to be turned on its head in the recent New Mexico Supreme Court case of Marckstadt v. Lockheed Martin, consolidated with the 10th Circuit Court of Appeals case of Federated Insurance v. Martinez.

The case involved the purchase automobile insurance for company vehicles. An employee was injured in an auto accident and made a claim against the uninsured/underinsured coverage on the policy. There was no written rejection of the coverage and the rejection was not attached to the policy. However, the employer indicated that it was understood that the coverage was waived. The Court made no indication that its opinion was fact specific. The case should raise concerns for every purchases of insured. I will not even begin to address the problems with the possible complicity between the insurance company and the employer who no doubt saved a few bucks in the denial of its employee's rightful recovery of damages for his injuries.

The law seemed to be well established requiring a written rejection of uninsured/underinsured motorist coverage under New Mexico law to be both signed by the insured and attached to the policy. The case of Arias v. Phoenix Indemnity issued just in July 2009 said as much. So it is surprising that Marckstadt would come so quickly on its heals setting aside what seemed to be both good law and sound public policy.

Instead Marckstadt takes the rather perplexing position that rejection of uninsured/underinsured motorist converge must be written but need neither be signed nor attached to the policy. The court then stated that there should be some evidence that the insured's rejection was "made part of the policy by endorsement, attachment, or some other means that calls the insured's attention to the fact that coverage has been waived."

What in the world does this mean? Can the language be hidden in small print? Can it be written on the hand of the insurance agent? Could it be whispered in the agent's office with failure to acknowledge taken as acquiescence? In fact, it means nothing other than the insurance companies will be allowed every possible avenue for denying coverage to unwary customers. It is just one more accommodation to the insurance industry who will used every advantage to avoid payment of claims to preserve profits.

In the past, I would usually end by saying that when faced with an accident that calls your uninsured/underinsured motorist coverage into question, you would be well advised to seek the advice of a New Mexico Attorney. As the law now stands, you would be well advised to seek that attention when reviewing the insurance policy coverage limits. As a practical matter, since it seems clear that the rejection could be hidden in the vast array of documents involved in the auto insurance policy process, and therefore will be hidden, you would be well advised to write on the face of the application that you are not rejecting uninsured/underinsured coverage which may be the only possible means of recovery for your injuries. Then have your friendly insurance agent initial the statement next to your own.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

Punitive damages are awarded in limited cases for the purposes of punishment of the defendant. Punitive damages also serve to deter similar such behavior by the defendant and others similarly situated. In New Mexico personal injury cases, punitive damages are awarded only when a defendant's behavior is found to be malicious, willful, reckless or wanton.

Many New Mexico personal injury claims assert a claim for punitive damages but the "malicious, willful, reckless or wanton" standard is pretty difficult to meet. In essence, the defendant's behavior must be pretty outrageous in nature to justify a punitive damages jury instruction from the court.

In auto accident cases, the question then arises whether insurance will cover the punitive damages awards. This question actually involves two separate elements. First, will the negligent driver's auto insurance liability limits cover a punitive damage award? Second, assuming that the negligent driver's insurance is inadequate to cover the total damages award, will the innocent driver's uninsured/underinsured motorist coverage cover any part of the punitive damages award? These same issues would arise in a pre-trial or pre-litigation settlement. On the other hand, it is a rare and generous insurance company on either side of the claim that would admit the propriety of punitive damages prior to litigation.

The answer to both questions is yes. Insurance coverage, both liability and uninsured/underinsured motorist coverage, provides coverage for punitive damage awards in a New Mexico auto accidents. The innocent injured driver is entitled to recover for all allowable damages under the New Mexico personal injury law.

The issue will generally not arise in the case of liability coverage since liability coverage in New Mexico auto accidents is generally grossly inadequate. New Mexico carries the highest percentage of uninsured drivers in the nation with many more severely underinsured. Thus, the liability coverage limits will typically not even cover the compensatory damages, much less the punitive damages.

Instead, the issue will more often arise when the innocent driver makes a claim on his or her uninsured/underinsured motorist policy. Some insurance companies will attempt to deny these legal claims. However, the law is clear and has been clear for quite some time since the 1991 New Mexico Supreme Court case of Stinbrink v. Farmers Insurance Company of America. The Court in Stinbrink made clear that uninsured/underinsured coverage does provide coverage for punitive damages.

Even here, however, policy limits often become an issue. New Mexico drivers typically carry inadequate liability limits to cover the harm that they do. Likewise, they generally carry woefully inadequate uninsured/underinsured coverage as well. As such, the findings in Stinbrink are purely academic in most cases as the insurance policy limits will always dictate the coverage in any particular auto accident case.

Insurance issues are confusing. The policies themselves typically provide very little illumination and may leave some even more confused after reading. Thus, it is important to consult with a New Mexico attorney to address the many coverage issues related to a New Mexico personal injury claim.

Alysan Boothe Collins
Albuquerque Lawyer
www.CollinsAttorneys.com

The Albuquerque Journal had an interesting article last week regarding the refusal of some stores to sell alcohol to drivers with interlock licenses. This seems to be an obvious tool for the reduction of DWI/DUI related auto accidents. Though there are a few vendors that have adopted the policy, most have not. The question arises why more do not adopt the policy of refusing the sale of alcohol to DWI/DUI offenders on interlock drivers licenses.

Drivers arrested for DWI/DUI face automatic license revocation by New Mexico Motor Vehicles Division. In addition, the courts impose a separate and independent license revocation following a criminal conviction for DWI/DUI. Drivers with revoked licenses due to DWI/DUI arrests or convictions must obtain a special interlock license and install an ignition interlock device on their vehicle. Driving in violation of these terms carries up to one year in jail.

The owner of Albuquerque's Jubilation Wine & Spirits was quoted in the Albuquerque Journal article as saying that he is refusing the sale of alcohol to those with interlock licenses to do his part in helping to keep drunk drivers off the road. This is certainly admirable on his part and it is unfortunate that more store owners do not take the same position. There is no law that prohibits the sale of alcohol to drivers with interlock licenses. Does the store have a duty to keep drunk drivers off the road despite the lack of law to that effect? It seems that they may under simple dram shop liability theories.

As part of every DWI/DUI charge, there are conditions of release that prohibit drinking and driving. This seems to go without saying. There is also the condition that the defendant consume no alcohol at all while the case is pending. Likewise, upon conviction, the same prohibition against the consumption of alcohol applies throughout probation.

DWI/DUI drivers cannot legally use alcohol so they certainly have no business purchasing it. There is no good reason to allow the sale of alcohol to drivers with interlock licenses. The sale of alcohol to a person known to have a problem with drinking and driving, who clearly as a term of his conditions of release or probation is prohibited by court order from using alcohol, creates a plain threat to the safety of the driving public.

Jubilation is on the right track. Others who fail to follow the lead may do so at their peril. Dram shop liability laws provide a very good model for holding irresponsible store owners liable for damages and harm caused as a result of serving up alcohol to those known to be a threat to the public. A bar cannot sell alcohol to someone that is already intoxicated because this poses a threat to public safety. Does the same rationale not apply to selling alcohol to DWI/DUI offenders currently under driving restrictions due to the danger they pose to the public?

There are two approaches to attacking DWI/DUI. First and most obviously, the drunken drivers must be held accountable. Secondly, the source of the alcohol can be addressed. The State has not seen fit to prohibit the sale of alcohol to DWI/DUI offenders. It seems only a matter of time before personal injury lawsuits are filed against alcohol vendors for these irresponsible and indefensible practices that will inevitably at some point lead to tragedy. Perhaps these lawsuits will help to reduce the number of DWI/DUI drivers on New Mexico roads.

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Uninsured/Underinsured motorist coverage is vitally important to New Mexico drivers. New Mexico has one of the highest uninsured motorist rates in the nation with 29% of its drivers uninsured. Many more are underinsured meaning they carry only minimal liability coverage that will fall well short of covering any injuries they cause in an accident.

Uninsured/Underinsured (UM/UIM) motorist coverage can cause much confusion for motorists. This is particularly so with stacking of UM/UIM coverage. Stacking allows the insured driver to stack the coverage on several vehicles insured under the same policy. Stacking of UM/UIM coverage may be critical to an injured person recovery of damages.

Typically, UM/UIM is covered at the same level as the liability limits on the policy. As such, if a driver carries $25,000 in liability coverage, then the UM/UIM coverage will also be at $25,000. If the driver has 3 vehicles insured at $25,000 limits, then stacking will provide for a total of $75,000 in UM/UIM coverage.

UM/UIM coverage and the stacking of coverage is automatic on auto insurance policies in New Mexico. In order to either waive UM/UIM coverage or the stacking of UM/UIM coverage, the insurance company must obtain a rejection of UM/UIM coverage from the insured driver. Likewise, the insurance company must get an agreement with the insured driver to reject stacking of the coverage on all vehicles covered under the policy. Recent decisions have added some confusion to the issue stating that though the rejection must be made part of the policy, it need not be signed. This is contrary to prior case law.

In cases of serious auto accidents, the injuries can be very severe. Often, the medical costs alone, past and future, will far exceed $25,000 in cases of serious personal injuries. In these situations, stacking of coverage alone will provide the injured person with any reasonable compensation for his or her damages. Even this at times may prove grossly inadequate.

UM/UM is relatively inexpensive to carry. To be expected, because the coverage is such a good deal for its customers, some insurance companies will often try to talk drivers out of it. They will also try to convince the driver to waive stacking coverage.

All that a driver needs to know is that there is no good reason to reject uninsured/underinsured motorist coverage. Neither is there any good reason for waiving stacking of UM/UIM coverage. Such waivers of coverage benefit nobody but the insurance company. The consequences for the driver can be devastating leaving unrecoverable damages such as past and future medical expenses, lost earnings, disfigurement and permanent injuries, pain and suffering and the like.

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