New Mexico Injury Attorney Blog

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 recent case from the New Mexico Court of Appeals is good reading for both merchants and shoppers with the coming holiday shopping season. The case of Holguin v. Sally Beauty Supply illustrates some basic "do's and don'ts" of holiday shopping.

The case stemmed from the use of one of the "eco-friendly" bags that have become so popular these days. Ms. Holguin was shopping at Sally Beauty Supply with her eco-friendly bag. While doing so, she put merchandize in the bag and headed to the counter to ask some questions. Before she could get there, the assistant manager stopped her, accused her of shoplifting, and detained her until the police arrived. Upon refusal to sign a "no trespass" statement and admit guilt, Ms. Holguin was arrested.

It is not clear from the record, but apparently the criminal shoplifting charges were never filed or the charges were dismissed resulting in a personal injury lawsuit against Sally Beauty Supply for "false imprisonment, false accusation of shoplifting, and false and malicious abuse of prosecution."

The district court judge dismissed the action on the grounds that merchants have a qualified privilege to detain a shopper when they believe the shopper willfully concealed merchandise under NMSA §30-16-23 and therefore were immune from suit.

The New Mexico Court of Appeals framed the issues as follows:

"(1) whether a customer who places merchandise into a reusable, personal canvas shopping bag, without more, has "willfully concealed" merchandise; and (2) whether a statutory presumption of intent applicable to a criminal prosecution for shoplifting also applies to the merchant's conditional privilege."

Unlike the district court, the Court of Appeals answered in the negative to both these questions resulting in a reversal of the district court's grant of summary judgment. The case was then appealed to the New Mexico Supreme Court where certiorari was denied making this case the law for now.

The statute in question, NMSA § 30-16-23 states that if merchant has:

"probable cause for believing that a person has willfully taken possession of any merchandise with the intention of converting it without paying for it, or has willfully concealed merchandise... the merchant may...take the person into custody ...Such taking into custody or detention shall not subject...merchant to any criminal or civil liability."

The Court engaged in a lengthy discussion on the meaning of the terms probable cause, intent to convert (steal), and willfully conceal. The Court stated plainly that the burden is on the merchant to show probable cause at the time of the customer was detained.

The Court recognized that in self-serve stores as most stores are today, there are countless situations where merchandise might be concealed without the intent to steal. As such, simple concealment is not enough. The burden is also on the merchant to show the person concealed the merchandise with the intent to steal it.

The Court acknowledged that under the criminal law of shoplifting, there is a presumption of intent to steal once the merchandise is concealed. However, this is a mere presumption and it is left for the jury to decide. In any event the Court ruled that the statutory presumption of intent under the criminal shoplifting statute did not apply to a merchant's qualified privilege and immunity under NMSA §30-16-23.

The Court stated that whether the merchant has met the burden of proving probable cause is determined by the totality of the circumstances. In this particular case, the totality of the circumstances did not suggest that requisite intent to support summary judgment. The court basically said that this issue should be decided by a jury and not by the court on summary judgment.

In light of the prevalence of eco-friendly shopping bags, which presumably are for shopping, there are likely to be a number of such encounters during the holiday season. Both merchants and shoppers should proceed with due care in light of this decision. After all, there are significant risks for both.

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

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

One headline last week seemed pretty outrageous. The headlines from the New York Daily read, "Admitted Drug Dealer Sues Doctor Who Prescribed Painkillers." However, the article brings up some very interesting issues.

That case involved a convicted drug dealer, Lionel Sease, who was sentenced to 6 to 16 years for possession with intent to distribute. Sease led investigators to his doctor who had over-prescribed various painkillers to Sease which were the drugs for which Mr. Sease was charged and convicted. The doctor was charged and convicted for Medicaid fraud and illegally dispensing drugs. Sease has now filed a personal injury suit against the doctor for $35 million in punitive damages and $8 million in compensatory damages for the over-prescription of Vicodin, Percocet and Oxycontin which led to Sease's addiction.

This at first may seem outrageous and frivolous. On the other hand, abuse of painkillers such as those prescribed to Sease has reached near epidemic levels. The problem is particularly acute among teenagers and young adults. The courts are overrun with these cases. So too are rehab facilities and the morgues.

How much responsibility should be placed on the medical professionals that over-prescribe these drugs? These drugs clearly have therapeutic benefits. They are necessary for pain management in many cases including injuries or other conditions causing chronic pain. When does the responsibility pass from the patient to the doctor? Certainly, the patient must share responsibility for overuse and consequent over-prescription of these powerful painkillers.

On the other hand, isn't this the essence of addiction, an inability to moderate use of these drugs? In the case of Mr. Sease, there may be little sympathy from a jury. But one does not need to look far to see the catastrophic consequences of the over-prescription of painkillers. Where should the line is drawn on causation which is a necessary element to any personal injury lawsuit?

The problem and consequences of pain killer addiction has taken on added interest and urgency across the country, including Albuquerque, with a growing trend of pain killer abuse and addiction among youth and young adults. Often, painkiller abuse begins with legitimate usage even among high school and college aged kids.

Youth and young adults are generally more susceptible to injury from a variety of youthful activities,. High school athletes are particularly prone to injury sometimes very serious requiring painkillers. Who then is responsible for over prescription, unnecessary duration, and unjustified refills? Is it the parents, the doctor, the kid? These are very difficult questions and these questions haunt many parents who have seen their children go down this road.

Perhaps most troubling of all is the rising use of heroin among youth and young adults. The headlines in Albuquerque have tragically reported a number of heroin related deaths of high school kids and recent graduates over the last year. Why is this of interest here? As opioids, the physical effects of oxycodone and oxycontin mimic that of heroin. There appears to be a relationship between addiction to these drugs and later heroin use. The problem is likely to grow worse since heroin is now cheaper, and apparently easier to get for high school and college kids than these painkillers.

There is an indisputable relationship between drug addiction and crime. There is a clear relationship between drug addiction and criminal convictions. The overcrowded prisons are a testament to that relationship. In the case of painkiller addiction that begins with a doctor's negligent, reckless or willful over-prescription, is it so hard to draw the line of causation.

Is Mr. Sease's lawsuit really all that outrageous? And what of the high school athletes or other young people who have seen their futures ruined as a result of painkiller addiction? What should a jury say to a parent who has lost a child to overdose from painkillers (the death rate from opioid use tripled from 1999 to 2007 according to the Center for Disease Control). And what of the parent who has lost a child to heroin, jail or prison arising out of an addiction developed initially through an over-prescription of painkillers?

Responsibility is an elusive question in these cases but it seems there is plenty to go around. Mr. Sease's suit will put a spotlight on how much of the responsibility the doctor should bear.

Collins & Collins, P.C.
Albuquerque Attorneys

The law regarding a failed tubal ligation continues to evolve in New Mexico with the recent case new Mexico Supreme Court case of Provencio v. Wenrich. New Mexico was among the earliest, and remains among the few states, that recognize a claim for wrongful birth of a child following a failed sterilization procedure.

New Mexico first recognized the claim in the 1991 New Mexico Supreme Court Case of Lovelace v. Mendez. In that case, the sterilization procedure failed as a result of medical negligence. The negligence was magnified by the doctor's deliberate failure to notify the patient of the failure. As a result, the patient believed that she was infertile and took no measure to protect against unwanted pregnancy. She became pregnant giving birth to a healthy child.

The plaintiff in Mendez brought a wrongful conception claim against the doctor requesting a number of damages most significant of which was the future costs of raising the child. New Mexico recognized the claim for wrongful conception for the failed sterilization procedure. However, the duties and causal connections were much more straightforward in that case than in Provencio v. Wenrich.

Provencio involved a failed tubal ligation surgery following the birth of the plaintiff's fourth child. However, unlike the Mendez case, the doctor immediately informed the plaintiff at the first follow-up appointment that the procedure had failed. The plaintiff chose not to have a corrective procedure. The plaintiff later became pregnant and gave birth to a healthy child. The plaintiff then sued for wrongful conception and battery. Though other damages such as the costs of the corrective procedure along with pain and suffering were available, the plaintiff chose only to pursue the costs of raising the child along with punitive damages.

Again, it was undisputed at trial or throughout the appellate process that the plaintiff was aware of the failed sterilization and chose not to take corrective action. On the one hand, the Supreme Court found that the New Mexico Court of Appeals properly rejected the defendants argument of independent intervening cause, "Because the independent intervening-cause doctrine does not apply to a plaintiff's own negligence." On the other hand, the Supreme Court disagreed with the New Mexico Court of Appeals finding that the doctor's notice to the plaintiff was merely a factor to be considered by the jury in the apportionment of fault.

The Court of Appeals saw the case as a comparative negligence case while the Supreme Court viewed it strictly in terms of legal duty. The Court in Mendez did not have to address the issue of legal duty since it was undisputed that the doctor failed to notify the patient of the failed procedure. In Provencio, the Court found that the doctor though negligent fully met his duty to inform.

The failure to inform was the basis for holding the doctor in Mendez responsible for the full costs of future care of the child. The Supreme Court in Provencio refused to allow these extraordinary damages on public policy grounds. The Court set forth a hypothetical where a patient knew of the failed procedure yet gave birth to multiple children over time, each time seeking damages for the costs of raising each child as a result based upon the original failed procedure.

The Court refused to there. This was not a comparative negligence case for the Court but more akin to an assumption of the responsibility. Though other damages were available, the plaintiff assumed the responsibility for raising the child when she knowingly failed to correct the failed sterilization.

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico, the Worker's Compensation Act was purportedly enacted to protect workers for on the job injuries. The Act it is said provides certainly to an injured worker who can obtain needed medical care and lost wages for work related injuries. This is partly true.

The Act does provide for medical coverage and a portion of lost wages for injured workers. The lost wages are limited in both time and amount. Typically, the allowable recovery for lost wages leaves the injured worker largely uncompensated. At the rates provided under the Act, lost wages will often leave an injured worker and his or her family in severe financial hardship.

Unfortunately for most injured workers, no matter how serious the injury or how the injury was caused, recovery for personal injuries is limited to medical expense and lost wages as set forth by the Act. This means that workers, except under very rarely circumstances, cannot sue their employer for personal injuries even if the employer caused the injuries.

However, in order to obtain protection under the Workers Compensation Act, the employer must carry workers compensation insurance as mandated under the Act. As a result, those employers who do not comply with the insurance coverage requirements under the Act are fully exposed to personal injury lawsuits for injuries to their workers.

In short, if you are injured on the job, and your employer does not have workers compensation insurance, then you may sue to the employer in tort for personal injuries. Because the uninsured employer is not protected under the Act, the employer is fully liable for all damages recoverable in a personal injury lawsuit.

If you or a loved one have been injured on the job, you should immediately make a worker's compensation claim. We do not handle worker's compensation claims at Collins & Collins, P.C. There are very short and critical deadlines for worker's compensation claims. Therefore you should contact a worker's compensation attorney immediately if you have any questions. There a number of very good worker's compensation attorneys Albuquerque and elsewhere throughout New Mexico.

If your employer does not have worker's compensation insurance and the accident was caused by unsafe working conditions or other negligent actions of your employer, then you should contact an experienced personal injury attorney to evaluate your claims. In the absence of worker's compensation insurance, you may be able to recover through a personal injury lawsuit. In fact, depending on the circumstances, your recovery may be far greater in a personal injury lawsuit than it would have been through worker's compensation.

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

Premises liability deals with the duty of an owner or occupier of land, such as a homeowner or tenant, to keep his or her premises visitors safe from personal injuries.

A homeowner or renter may be held responsible for his negligence that causes a person to be injured on his property. A common example of negligence that leads to liability for the owner occurs when there is a defect on the property, such as a tripping hazard due to uneven sidewalk leading to the door, that the owner or tenant is aware of but takes no action to warn visitors of the risk.

Another situation that would give rise to liability may relate to repairs or home improvement undertaken by the owner of the property. If the homeowner is repairing the stairway to his deck, and in those repairs has removed the railing so that it may be replaced, he has created an unsafe condition on the property. If he takes no action to either block off the stairs or otherwise warn visitors of the lack of railing and potential hazard, he may be found negligent and held responsible if a visitor falls when descending the stairs because there was no railing to hold onto for stability.

Homeowners insurance will typically cover the damages due to the owner or occupier's negligence. If the owner does something intentionally that causes injury to a visitor, that act is generally not covered by insurance and the homeowner will be held personally responsible. The most common situation that falls into this category is usually related to some home security measure that actually creates a risk of harm. However, most premises liability cases involve some negligence of the homeowner, even if there is some intentional act.

Interestingly, insurance coverage for premises liability often does not extend to household members. Generally the homeowner or tenant cannot be held responsible for negligence due to injuries that involve his immediate family.

Assuming the same stairway railing example, if the son of the homeowner descends the stairs and falls injuring himself, he will likely be unable to bring an action against his father as owner of the property for creating or allowing the existence of an unsafe condition on the property. The reasoning is that the a member of the household should have notice of what another household member is doing in the home so the member should know that his father is repairing the stairs and that he should be especially careful. Many homeowners insurance policies actually have a household members exclusion that specifically excludes household family members from bringing claims against the insured homeowner. This exclusion typically just excludes liability for household members, not non-household family members.

A renter of a property may also be held responsible as if he owned the property for things that are within his control or knowledge. Again, the uneven sidewalk that is a tripping hazard may be a point of liability for the tenant if he fails to take any action to warn visitors of the tripping hazard. In most rental agreements, the tenant is responsible for issues within his control, but the owner of the property is responsible for problems of which he is aware, for structural issues or problems due to mechanical sources such as heaters or stoves. If the tenant has advised the owner of the property of the uneven sidewalk and the tripping hazard, or if the owner is otherwise aware of the problem, the owner may be held responsible for the injury to a visitor of the renter who trips and falls on the uneven walkway. Possibly, the tenant may also be held responsible, but the liability is shared, not attributed solely to one or the other.

Sorting out responsibility and liability for some of these cases can be quite challenging. It is generally advisable to seek the guidance of an experienced personal injury attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys