New Mexico Injury Attorney Blog

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

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

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

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

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

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

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

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

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

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

In New Mexico, if you suffer an injury in an accident that is due to someone else's negligence, you can recover damages for your injuries from the defendant or the defendant's insurance company.

A plaintiff can recover damages to reimburse the plaintiff for medical expenses, lost wages, pain and suffering and other damages associated with the injuries. However, if you have a pre-existing condition or injury that becomes aggravated or worsens because of the accident, you must admit the pre-existing condition and injury to the defendant.

Failure to admit a pre-existing condition or injury can seriously harm the person's personal injury claims. In some cases, failure to admit through active concealment can result in sanctions, attorney fees and costs and even dismissal of the lawsuit.

A pre-existing condition is a condition that the plaintiff had prior to the accident like a back or neck injury. An experienced personal injury lawyer would far prefer dealing with these injuries upfront than learning of them later through the personal injury discovery process. In fact, the preexisting injuries do not necessarily harm a personal injury claim. However, deceit and concealment of those same injuries always will when discovered by the opposing insurance company. And it is safe to assume that they will be discovered so it is best to address them early and candidly.

The opposing insurance company will always conduct its own discovery on the personal injury claims. The depth and scope of the discovery will depend on the size of the claim. However, even in minor claims, the insurance company will request medical records. In fact, those related to the accident must be provided by your personal injury attorney along with the demand. The insurance company may very well request more than what is provided. Quite often, the insurance company will request the last 10 years of medical records and these must generally be provided.

The collection of medical records can proceed in one of two ways. The plaintiff gathers and provides them. Or the insurance company simply obtains names and addresses for all medical providers along with HIPPA releases and obtains them directly. In fact, even when the plaintiff does provide them during the settlement process, the insurance company may elect to get the records directly anyway.

As noted, the existence of preexisting injuries or conditions does not necessarily you're your claim. In fact, New Mexico like most states follow the "eggshell plaintiff" doctrine which means that the defendant takes the plaintiff with all his or her frailty, susceptibility to injuries, preexisting conditions, and prior injuries. In short, the defendant will be responsible for the aggravation of or reoccurrence of prior conditions or injuries.

The point is to discuss the matter with your attorney immediately. If you have doubts whether the issues are relevant, err on the side of disclosure. Concealment, even arguably innocent concealment, will do nothing to advance your claims.

• Concealing Preexisting Injuries Can Seriously Harm a New Mexico Personal Injury Claim


• Preexisitng Conditions & Eggshell Plaintiff in New Mexico Personal Injury Claim

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

Related Reading:

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


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

An article in the National Journal last year reported that medical mistakes cost the nation's health care system tens of billions of dollars every year. Unfortunately, instead of getting serious about eliminating those errors, many tort reform advocates continue to argue for a change in personal injury laws, including caps on awards for medical malpractice. Far from offering robust healthcare savings, a look at the numbers and malpractice rates shows that the insurance companies are the only real winners in tort reform.

It is no secret that the healthcare industry spends billions of dollars in medical malpractice suits every year. According to Pamela Villarreal of the National Center for Policy Analysis between 18 to 45 cents of every dollar spent on healthcare in the U.S. is related to a mistake made by a healthcare provider. Jill Van Den Bos and colleagues at Milliman's Denver Health Practice reported that in 2008, cases involving post-surgery infections cost the industry $3.36 billion. In the same year, bedsores, a completely preventable condition, cost the industry $3.27 billion.

Considering the staggering costs to patients and medical providers, one might assume that there would be universal focus on making medical care safer. Not so. Instead, certain interest groups are actually working to reduce the degree to which medical providers are held accountable for their errors. New Mexico, for example, places several limitations on damages in civil cases. Under the Medical Malpractice Act (Act), NMSA 1978, there is a $600,000 cap for damages for medical malpractice. The cap excludes past medical costs and benefits, but the Act prohibits monetary damages for future medical expenses, which are paid as they are incurred. The Act also limits an individual health care provider's (or more accurately his or her insurance company) personal liability to $200,000.

Insurance companies argue that tort reform in general and caps on damages in particular are necessary to reduce healthcare costs, lower insurance premiums for medical professionals, and promote improvement in care so that doctors are not engaging in "defensive medicine." Countless studies show that this is not the case. On the contrary, healthcare costs are rising, healthcare insurance premiums are higher, and there is little progress in preventing medical mistakes and malpractice. This is all in spite, or maybe because of, caps on damages.

There is ample evidence to support the proposition that medical malpractice caps have little to no impact on healthcare costs. A 2010 Robert Wood Johnson Study revealed that medical malpractice insurance premiums account for less than 2% of all healthcare costs. According to the same study, there would be very little impact on healthcare costs even if the most stringent tort reform measures were put in place. The 2011 report by Public Citizen, "A Failed Experiment," which studied the effect of Texas' $250,000 cap on non-economic damages, revealed that since the cap has been law, Medicare costs have risen faster in Texas than in the rest of the country and health insurance premiums have risen above the national average.

Similarly, damage caps have not lowered insurance premiums for medical professionals. A National Center for Policy Analysis study was unable to find a correlation between damage caps and malpractice insurance premiums. Other studies have found that premiums rise in response to a broad range of economic factors, not the amount of malpractice payments. Yet others have shown that insurance premiums rise at a higher rate in states with caps than in states without caps. What all of this research shows is that if anything, caps have a negative effect on the cost of insurance premiums for malpractice coverage.

What may be even more frightening is that caps on damages may eliminate the incentive to improve health care in general. There are several studies of hospitals and healthcare centers that have instituted successful prevention programs after being forced to pay out a large malpractice suit. The possibility of an expensive medical malpractice suit has incentivized providers to invest in programs that eliminate errors. Without this incentive, medical providers will have fewer reasons to seek to improve quality and avoid mistakes, resulting in an increased number of deaths and injuries that could have been avoided. As it stands now, it is estimated that up to 98,000 patients each year die as a result of medical malpractice.

As states continue to enact caps on medical malpractice damages, the returns are meager. Contrary to what tort reformers promise, healthcare is getting costlier and less safe for the average person. The only real winners in all of this are the insurance companies.

Related Reading:

• Emergency Room & Emergency Responder Immunity: Safe Haven for Negligence and Incompetence?


• Medical Malpractice Reform Harms Patients and the Taxpaying Public


• The Myth of the Frivolous Medical Malpractice Lawsuit




Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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