New Mexico Injury Attorney Blog

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

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

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

There are many myths surrounding personal injury claims. One persistent myth is the frivolous lawsuit. Related to the frivolous lawsuit myth is a basic misunderstanding of many concerning the ease of obtaining money from insurance companies. In fact, insurance companies are pretty protective of their funds and do not readily part with them.

There are many including a few inexperienced lawyers that believe that insurance companies will cower at the threat of a lawsuit. Based upon this mistaken belief, they believe that throwing out a high dollar demand under the threat of suit on a trivial or even non-existent claim will intimidate the insurance adjuster into settling for more than the case is worth. In fact, nothing could be further from the truth.

Insurance companies get hundreds or thousands of cases every day. Each and every case will go through a standardized valuation process. These processes may differ in varying degrees between different insurance companies but each insurer will have its own valuation process.

The adjuster will first look at liability to determine if its insured is responsible for the accident. In New Mexico it may have to factor in comparative negligence. If the insurer finds that there is no liability or fault on the part of its insured, it is highly unlikely that it will pay out on a claim. Of course, there are those cases with disputed liability and in New Mexico comparative fault where the valuation process becomes more complex. However, in cases where there was clearly no liability, the insurance company is not going to pay. After all, it seems that insurance companies have a knack for making money unnecessarily paying claims is not in line with their business model.

Once past the liability calculation, the insurer will then attempt to evaluate damages. The valuation will factor in medical costs and treatment both past and future. It will factor in lost income, permanent disability, disfigurement, pain and suffering and other elements of compensatory damages. Then it will determine its exposure for punitive damages, which contrary to common belief are very rare.

Once these potential damages are totaled up, the insurance company will set a range of settlement values within which it will settle. The insurance company will not deviate from those ranges unless there is additional evidence provided to support a higher settlement value. In other words, the plaintiff usually through an attorney will have to provide documentation, medical records, expert reports, economic analysis and so on to support a higher settlement value.

No amount of yelling or threats at the adjusters will move them off their settlement range. The common, "I will see you in court" will be met with a yawn if it warrants even that. One thing that many do not appreciate is that insurance companies have a herd of eager defense lawyers standing by who would like nothing more than to see you in court. In fact, the more they see you in court, the more money they make. So the threats and yelling will do you no good, and are much more likely to make your case more difficult.

Anyone contemplating a personal injury claim should understand that the value of their claim for the insurance company is a relatively straightforward mathematical calculation of liability and damages. There is no room for intimidation in math. It is far more effective to come to the table armed with proof of liability and damages. This proof alone is what will influence an adjuster into a fair settlement. Without it, there simply is no pot of gold waiting at the end of the mythical frivolous lawsuit.

Collins & Collins, P.C.
Albuquerque Attorneys

The holiday season provides ample opportunity for social gatherings that often include pets amid the mix of visitors, food and celebration. A dog may find itself confronting rough handling or even getting tripped over in the midst of the holiday festivities. Regrettably, a dog may bite in reaction to situations that create stress, such as over-excitement or pain.

According to the Centers for Disease Control and Prevention, approximately 2% of the U.S. population, or more than 4.7 million individuals suffers from a dog bite each year. A large majority of the victims are children bitten on the dog owner's property. The Insurance Information Institute estimates that dog bites amount to roughly 1/3 of all insurance liability claims made through homeowners policies.

A basic homeowners policy typically includes liability coverage that provides some protection against injuries to others caused by pets. Additionally, a homeowners policy may provide guest medical coverage which would pay for medical expenses due to dog bites without having to first determine liability. However, both liability and guest medical coverage may fall short if the injury is substantial. As an added layer of protection, extra liability coverage can be purchased for those who have significant assets to protect from legal judgments involving dog bite injuries.

Yet, paying for medical expenses may not end the consequences of owning a dog that bites. Once a biting tendency is known, the insurer of the home may view the dog as an increased risk. This could lead to higher premiums or an exclusion of coverage for damages or injuries caused by pets. State laws may also require the animal be humanely destroyed.

Dog bite prevention is ultimately the best protection for both homeowners and their guests. Proper training and socialization beforehand can help a dog better anticipate the behavior of others. Of course, spaying or neutering has been also shown to reduce aggression. But even these measures may not be enough.

Once a party has commenced, proper supervision of the dog would be best but may not be possible; consequently, keeping the animal separated in another room or outdoors may be the only option.

Knowing how a dog responds to different stimulation can also be a key in anticipating problems. If rough play brings on aggression, guests can be warned to avoid this type of interaction. If kids are present, they cannot realistically be expected not to play with the dog. Small children often play the roughest are most at risk. If the dog has any history or predisposition to aggression in stressful settings, then the dog should be kept away from the guests.

Celebrations often bring many types of personalities together. Pets are no exception. A little planning and awareness will help insure that everyone enjoys their time spent together.

Collins & Collins, P.C.
Albuquerque Attorneys

A home is often the single biggest investment one can make, and there are many types of risks associated with home ownership. The purchase of homeowners insurance can help minimize some risks, and is typically required by most mortgage lenders.

There are varying levels of insurance coverage. The level of coverage is set forth in the insurance policy limits. There will be different limits for different coverages within the same policy. Though it is generally advisable to get as much coverage as financially possible, a basic homeowners insurance policy can be an affordable option for those just starting out or for those needing to cut back on expenses.

A homeowner's policy typically includes two main sections: property and liability coverage. The property section includes coverage for the actual home and detached structures, like garages and sheds. Detached structures are generally insured for approximately 10% of the dwelling limit.

Keep in mind that the dwelling limit does not consider the value of the land the home sits on, so this limit will not reflect the full market value of the home. Nor should the dwelling limit reflect the amount of the mortgage, as this can leave a homeowner either underinsured or paying more for insurance than can be used.

In choosing property coverage limits, the dwelling limit can be considered in terms of "actual cash value" (ACV) or "replacement cost" (RC). ACV considers what it would cost to replace your home, less depreciation. RC reflects what it would cost to repair or rebuild your home without depreciation.

The property section also includes personal property coverage, which is the contents of the home and is usually covered at 50% to 70% of the dwelling limit. This coverage may also include "off-premises" coverage for items that incur loss outside of the home. Personal property coverage can also be considered in ACV or RC terms. RC coverage allows for replacement of an item with a similar type and quality at current prices, while ACV coverage considers depreciation of an item upon loss.

Loss of use, also known as additional living expense, is another coverage outlined in the property section of the basic homeowners policy. This coverage provides for expenses a homeowner incurs when unable to use the home due to a covered loss, and is typically limited to 20% of the dwelling limit. These expenses may involve staying at a hotel or eating at a restaurant while repairs are being made.

The second section of the basic homeowners policy involves liability coverage. This coverage is available when you or a family member has been found legally responsible for causing injury to someone or to someone's property. It helps protect against the financial loss resulting from a lawsuit. The typical limit is $100,000; however, this amount can fall short when a serious injury is involved. Like most insurance, the risk of inadequate insurance depends on your financial circumstances. Likewise, the ability to purchase additional levels of coverage may not be financially possible. But, it is wise to carry as much as possible to cover any potential judgment.

Medical payments coverage, or guest medical, is also found under the liability section and provides for payment of medical expenses incurred by someone who is accidentally injured on your property regardless of legal liability. Limits generally begin at $1,000 per person, per accident. Again, this is generally inadequate and one would be wise to carry greater limits if financially feasible.

The basic homeowners policy can help minimize the risk of typical losses that a homeowner may face. It may not cover every conceivable loss, but it will satisfy the requirements of most mortgage lenders and relieve some of the anxiety of managing one of life's biggest investments.

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

Sitting on a non-profit board can be very rewarding with significant contributions to the community and to causes close to your heart. However, there are a number of potentially very serious financial risks associated with non-profit board participation.

Non-profit does not mean non-accountability. Non-profit board members are largely held to the same levels of responsibility and accountability as other board members. And just like other boards, a board member's private assets may be placed at risk in case of many lawsuits.

So what kind of lawsuits do non-profit board members face? They are the same types of claims that we have all become far too familiar with in the age of Enron, WorldCom, Tyco, Arthur Andersen, and the more recent calamities in the financial industries. They include claims for financial mismanagement, fraud and tax evasion. Though not entirely unique to non-profits, there is particularly acute financial exposure for malfeasance related to fundraising and grant activities.

Perhaps the greatest, but least anticipated hazard for non-profit board members is exposure for employment discrimination lawsuits. When entering a non-profit board, one typically does not consider this risk. However, when you think about it, these types of claims are perhaps more likely in the non-profit world than in the for-profit world. Unlike for-profit institutions, non-profits often have very narrow causes with very precise visions and mission statements with which they expect their employees to agree. Unfortunately, these expectations do not always mesh well with the laws regarding employment discrimination.

A lawsuit does not necessarily mean liability in any of these areas. However, defense of these suits can be astronomically expensive. It is not uncommon for the legal costs associated with an employment case to go well above $100,000. So even if you win in the end, it may be a very hollow and costly victory in the absence of protections.

There are a number of protections that can be put in place in case you are considering going down this road. First of all, the non-profit should have D&O (Directors and Officers) insurance coverage for board members. If it doesn't, you would be wise to think long and hard about sitting on that board. Due to the high number of employment discrimination claims with over 99,000 filed against employers (profit and non-profit) in 2010 alone, you would be wise is at all within the financial means of the organization to insist on Employment Practices Insurance (EPL) as well. In the event, they don't have it or can't afford it, proceed with the greatest of caution.

In addition to D&O and EPL coverage, you might want to also look into PLUP coverage (Personal Liability Umbrella Policy). If you already have a PLUP, you might want to sit down with your agent to evaluate the adequacy of protection for non-profit board activities. A PLUP will under certain circumstances provide some protection for liability while sitting on a non-profit board. Typically, the coverage is available only if the position is unpaid. Again, this is something you would need to discuss with your insurance agent along with additional or alternative coverage.

In addition to the insurance coverages which are a must for anyone embarking on non-profit board participation, you would be wise to look closely at the operations of the non-profit to determine the potential risks. Like any company, some non-profits are just poorly managed. On the one hand, the board may be able to assist in correcting the mismanagement. On the other, there are some levels of mismanagement and/or impropriety that suggest finding another opportunity for non-profit and community service. This is something that you may need to discuss with your CPA, your lawyer, your insurance agent, your financial advisors, and anyone else that may have reservations about participation with a poorly managed non-profit.

Again, keep in mind that employment discrimination suits are a significant risk. So just looking at the books may not be enough to determine your financial risks. You may also need to take a look at the employment and personnel policies and procedures that are in place. If there are none, or they have not been reviewed of late, or they simply are not followed, this again is something you must take into consideration before sitting on that board.

In short, though it is admirable to give back through non-profit board participation, it is a serious commitment with serious potential financial considerations. It should not be taken lightly prior to or after the decision to sit on the board. Gone are the days where board membership is simply a symbol of status, or an exercise in networking or client development. If you are thinking of simply throwing your hat in the ring, you might consider that in this case your hat may contain all your worldly possessions.

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

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

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

In most cases, when a person suffers personal injuries in an accident, his insurance, either health or automobile, will pay for his medical bills. Although another party is likely responsible for the bills, it is simplest for the injured person to obtain the care needed and have it paid for by his or her own insurer. Then, if and when the injured party recovers money damages from the party who is at fault for causing the injury, the injured party is responsible for reimbursing his insurer for medical benefits paid on his behalf. This payment, or reimbursement, is known as "subrogation." The question many injured parties have is why they must reimburse their insurance company, when they purchased either health insurance or med pay under their auto insurance policy and paid insurance premiums for that coverage month after month?

Usually, the reason is that you agreed to do so when you purchased your insurance. That very long contract of insurance stated what the insurer would do for you, what it wouldn't do, and what you would do for the insurer as part of the deal. The contract you signed most likely included a "subrogation" clause that states that your insurer is subrogated to all rights of recovery that you, the injured party, has against the at fault party for the injuries caused for which bills were paid. By signing the insurance contract and accepting benefits of coverage, you agree that if you were injured due to the fault of another, and obtained money to compensate you for your damages, you will reimburse your health insurer for medical bills paid on your behalf.

Both auto policies and health insurance policies often state that the insured has "assigned" his right to recover against the negligent party to the insurer and that the insured will do whatever is needed to assist the insurer recover. Basically, the insurer can pursue a legal action against the negligent party. In practice, the insurance company usually lets the insured do the work and pursue the claim and waits for reimbursement. If you refuse to pay your insurer and breach the contract, the insurer may sue you for the amount that should have been reimbursed plus, in most cases, attorneys fees and costs incurred in obtaining their rightful payment. Your insurer may also cancel your insurance because you did not abide by your contractual obligations.

If you have an attorney, your attorney has likely been notified of the insurer's payments and is well aware that the insurer is due payment. Generally a health insurer will send a letter to its insured, his attorney and the insurance company of the at-fault party so that all are aware of its subrogation interest. In that situation, the notice basically acts as a lien against the settlement proceeds or trial recovery and your attorney is obligated to pay the lien or he himself may be liable. Even if your attorney has not received a formal letter of subrogation from your insurer, he is aware of your medical care and knows who has paid your bills.

It is very important to notify your attorney of any known liens or subrogation rights. An experienced personal injury attorney will investigate the payments, determine if subrogation is appropriate and then negotiate reimbursement. These liens can typically be negotiated down and often require a statutory reduction in the lien. Perhaps just as importantly, ty taking care of the subrogation, your attorney actually protects you from future problems with your insurer.

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Liquor Liability Act creates different standards of care for dram shop liability depending upon the relationship between the plaintiff and the defendant.

The highest standard of care is imposed in cases of suits by third parties for injuries caused by a drunken patron. In these cases, the plaintiff must simply show negligence on the part of the liquor serving establishment or licensee. A negligence standard means that the plaintiff must only show that it "reasonably apparent" that the person being served was intoxicated.

The standard is higher when a patron himself sues the licensee. In this case, the patron must prove gross negligence and reckless disregard on the part of the server of alcohol. This is a much higher standard requiring that the plaintiff show that the server was grossly negligent and recklessly disregarded the safety of the intoxicated patron.

The standard changes again for gratuitous providers of alcohol such as social hosts. This would include private parties and cases where the one person buys alcohol for another at a bar or restaurant. In this case, the plaintiff must show that the host provided the alcohol "recklessly in disregard of the rights of others, including the social guest." This provision sets a pretty high burden of proof and was intended to provide some measure of protection for social hosts against suits by injured third parties.

IT is important to note that the social hosts provisions in the Liquor Liability Act are not limited to private settings. The extension of liability beyond the private setting was made explicit in Delfino v. Griffo.

It is noteworthy also that though the standard of proof is heightened for certain relationships such as a social host, DWI is treated quite harshly in New Mexico by law enforcement, the Courts and perhaps most importantly for dram shop liability, by juries. One would be hard pressed to find a juror that is unaware of the countless DWI tragedies that occur each year on New Mexico roads. In fact, there is a good chance that there will be some in the jury pool that have had personal experience with DWI tragedy.

This does not bode well for the defendants in these cases as the legal definitions of negligence, gross negligence, reckless are all in the eyes of the beholder. And few jurors these days will be sympathetic to DWI drivers or anyone that put them on the road in a drunken state.

It all sounds pretty straightforward in theory. However, as with all personal injury cases, dram shop suits can become quite complicated and difficult in a hurry. In almost all of these cases, the plaintiff will be dealing with an insurance company. Many of these companies are fair and rational and will attempt to come to a fair resolution of the claims.

Some insurance companies on the other are philosophically and financially opposed to a fair resolution no matter what the circumstances. In either case, it is important to seek the guidance of an experienced personal injury attorney. After all, even the reasonable adjuster is looking after the financial interests of the insurance company and this interest is in direct opposition to the interests of an injured plaintiff.

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys