New Mexico Injury Attorney Blog

As another oil rig burns in the Gulf of Mexico, BP is attempting to extort new Gulf leases with suggestions or perhaps threats that without these new leases it cannot or will not pay the damages for the disaster it has caused in the Gulf.

A new bill working its way through Congress would bar any company from receiving deep water drilling permits if it has had more than 10 fatalities on its rigs or has been penalized with fines of more than $10 million under the Clean Air or Clean Water Act. The bill does not mention BP by name but oddly BP is the only company with this track record.

Of course the bill will likely never pass anyway. Remember "drill baby drill." It's still the mantra of the Republican party. It is just whispered now rather than being plastered on t-shirts and posters at campaign rallies. The Right is not concerned with the disaster(s) in the Gulf. It is easier to blame the Democrats and Obama. Instead, in the midst of the crisis they attack Obama for not stopping the horrible and uncontrollable spill that 30 years of oil deregulation has caused. They publicly criticize Obama for not doing more to stop the spill while they continued to fight any meaningful regulation of the oil industry that would stop future spills, and perhaps a few regulations that might help to prevent rigs from exploding, like the one that blew up yesterday.

Oddly, the Right goes the other direction than common sense might dictate. Rather than legislation and regulation to increase the safety of rigs to protect the Gulf and the workers on those rigs (do not forget 11 men died in the BP disaster), the Right will continue to fight for deregulation. It's just what they do and who they are. They can't help it.

But there is more to it than safety of offshore rigs. The deregulation craze has spilled into all other areas of energy production. There are hundreds of contaminated water suits that have been filed against Massey Energy for vast contamination of drinking water in the areas in which they operate. The natural gas industry, the purportedly clean energy alternative, is following suit. Natural gas does indeed burn clean, however, the extraction process has devastating impacts on water supplies around the wells. Like the coal slurry contamination, the chemicals used to extract the gas from the ground seep into the drinking water of nearby residents rendering the water toxic. Yet, there is little regulation over the extraction process or the chemicals that are pumped into the ground.

In the end, thousands upon thousands more will be injured as a result of deregulation of the oil and energy sectors. There will be promises of clean methods. And when mistakes or disasters occur, there will be promises of absolute responsibility. Then there will be back pedaling as with the extortionate threats of BP over regulation of deepwater drilling permits. It will be quite dramatic as legislation quietly dies in Congress and business continues as usual. The only thing left will be the lawsuits to compensate the victims for their damages. Naturally, the Right will then chime in attacking the lawyers that attempt to help those victims and the victims themselves for their opportunistic greed. And BP and friends will skip along their merry way as taxpayers pay for their mistakes.

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

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

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

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

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

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

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

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

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

When President Obama first called for $20 billion to be set aside by BP for the Deepwater Horizon disaster, some on the right called it a shakedown, extortion, anti-American, socialist and so on. The fact is if BP gets out of its liability for a mere $20 billion, then it is the people and businesses on the Gulf Coast that have been shaken down. And it is the American taxpayer that will eat the difference.

The settlement terms first and foremost protect BP and its partners, Halliburton, Transocean and Cameron International from full exposure for the damage the spill has caused. A settlement from the fund will bar injured individuals and businesses from making any claims against BP's partners despite their clear liability for portions of the damages. In turn, a settlement with Transocean by the employees injured or killed by the explosion will bar additional claims by those workers against BP or the other partners. In short, the $20 billion fund was established to protect BP, Halliburton, Transocean and Cameron International, the oil industry. It was not ever intended nor will it come close to fully compensating the victims of spill.

The limitations on claims are pretty strict with compensability based largely on geographic proximity to the spill. Not surprisingly, despite its constant refrain that it will take full responsibility for the disaster, BP has lobbied and continues to lobby to exclude inland businesses directly affected by the spill. Of course this would exclude much of the tourism industry that supports the Gulf Coast such as gas stations, restaurants, tackle shops, restaurant supplies, seafood distributors, gift shops, beer distributors and on and on. It would almost certainly exclude claims by those outside the region that supply goods and services to the tourism and fishing industry along the Gulf Coast.

The settlement rules will even prohibit claims by property owners for the loss of value of their property. This in fact could be a very large figure that will go uncompensated. After all, beach front property on toxic waters has limited sales appeal. Interestingly, real estate brokers and agents will have $70 million set aside to compensate them for their losses. It is clear the real estate industry has much stronger lobby than simple homeowners again bringing home the political realities of the $20 billion fund. Other industry lobbies will likely come forward in the future to have portions set aside for their own losses. Bank of America, Citibank, Goldman must be hurting terribly from the loss of loan activity in the region so they most certainly should be compensated.

The fund protects BP, Halliburton, Transocean, Cameron and even has a measure of protection for the real estate industry while leaving small business, homeowners, and thousands of workers who have lost their jobs to fend for themselves. After all, this is America where personal responsibility is king. Corporate responsibility is an entirely different matter. Good money is paid to keep it that way.

And wait for it! When those opportunistic individuals, workers, small businesses left out in the cold are forced to seek recovery on their own, the tort reformers and the right will waste no time in attacking the villainous and greedy trial attorneys that would dare take on their cause. The same interests that have worked to minimize the liability of BP and its partners will then try to convince us that it is BP, its partners, the oil industry, capitalism and America itself that is being victimized by the trial lawyers who seek to bring compensation to the true victims of the spill.

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

The New Mexico Court of Appeals addressed the exclusivity provisions of the Workers' Compensation Act in Sarah Quintero v. State of New Mexico Department of Transportation. The case presented an interesting issue of first impression of whether the New Mexico Workers' Compensation Act provides the exclusive remedy in the case of a worker employed by one agency of the State who was injured as a result of the negligence of another separate agency. The Court ruled that it did not.

The facts are pretty straightforward. Sarah Quintero worked for the Department of Public Safety. Her job required no travel. She used the State's public transportation system, provided by the Department of Transportation, for commuting to work. She was injured at a Park and Ride facility when she stepped into an unmarked, unlit, unprotected hole in the facility's parking lot. She suffered a compound fracture to her leg as a result of the accident. The Department of Public Safety terminated her employment and refused worker's compensation coverage for her injuries arguing that they were not work related.

This position did not stop the State from later arguing that workers' compensation was the exclusive remedy when Ms. Quintero sued the State of New Mexico and the Department of Transportation for personal injuries in a premises liability action. The State argued for dismissal of her claims on the basis of workers' compensation exclusivity. The case illustrates the lengths to which employers, including the State of New Mexico, will go to avoid the fair compensation of their employees by invoking the protection of the Workers' Compensation Act. This case is particularly egregious since the State denied workers' compensation on one end, and attempted to enlist its protection on the other. Fortunately, the Court of Appeals was not inclined to adopt their abusive and opportunistic position.

The ruling rested primarily on two grounds. First, there is a general exception to workers' compensation coverage for travel to and from work known at the "going and coming rule." In fact, the rule is regularly invoked by employers to avoid workers' compensation coverage for workers' injured in route to or from work. Clearly, in this case, Ms. Quintero was en route to work which served the basis for the initial finding by her employer that her injuries were not work related.

Perhaps more importantly, the Court addressed the unfairness of a rule that would deny rights to all state or municipal employees who suffer injuries en route to work as a result of the negligence of the transportation or transit systems on which they travel. Clearly, a clerical worker traveling to work by road, bus or train is not doing so as part of their employment any more than any other citizen. Moreover, allowing such a broad interpretation of workers' compensation exclusivity would lead to the complete denial of a state employee's rights when dealing with any state agency. The outcome would be both absurd and profoundly unjust.

However, there are cases in New Mexico which have come to precisely that conclusion. So it may be expected that the State will appeal this ruling to the New Mexico Supreme Court. The dissenting opinion in the case has lit the way. In light of the lengths to which the courts and the legislature will go to protect employers against their own negligence toward their employees, it will not be at all surprising if this case is reversed.

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

The 10th Circuit Court of Appeals addressed the scope of agency and respondeat superior under New Mexico law in Frederick v. Swift Transportation. The case addressed these issues in the context of a trucking accident involving a truck driver who had ingested methamphetamine.

At trial, the jury awarded the plaintiff $23,500,000. The court reduced the judgment to $15,275,000 based upon the plaintiff's comparative negligence in the accident. Swift Transportation appealed on several grounds including the court's ruling that the driver acted within the course and scope of employment as a matter of law. Based upon this ruling, the court issued a jury instruction that Swift was liable for the negligence of its driver.

Swift argued that the driver was outside the course and scope of employment due to the driver's consumption of methamphetamine. In part, Swift argued that it was a disputed fact whether the meth was ingested prior to or after the accident.

The 10th Circuit relied on New Mexico law citing Ovecka v. Burlington Northern as follows, "whether an employee was acting within the scope of his employment is [generally] a question of fact for the jury." However, the court cited Ovecka further, "when no facts are in dispute and the undisputed facts lend themselves to only one conclusion, the issue may properly be decided as a matter of law."

The Court cited New Mexico's uniform jury instructions which state that an employee is acting within the scope of employment when:

1. It was something fairly and naturally incidental to the employer's business assigned to the employee, and
2. It was done while the employee was engaged in the employer's business with the view of furthering the employer's interest and did not arise entirely from some external, independent and personal motive on the part of the employee.

The Court found that it was undisputed that the driver was acting within the course and scope of employment as set forth under New Mexico law. The Court ruled further that the ingestion of meth did not remove the driver from the course and scope of employment no matter when the meth was ingested. The Court was careful to state that the ingestion of drugs might remove an employee from the course and scope of employment depending on the circumstances. However, in this case, the driver was clearly pursuing the interests of the employer and the use of meth did not meet the exception.

Interestingly, the Court did not mention the widespread use of meth among truck drivers due to the demands of the job. However, it is certainly something to keep in mind for those injured in a trucking accident since it is clear from Frederick v. Swift that the employer is held responsible for this on the job drug usage which in turn may be factored into an award of punitive damages.

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

Slip and fall accidents are fairly common. Those injured in a slip and fall accident often have unrealistic expectations of financial recovery and often assume that there is liability simply by virtue of the accident. In doing so, they may fail to recognize their shared responsibility for the accident and the injuries. Premises liability is not absolute. New Mexico follows principles of comparative negligence which may and often does greatly diminish or destroy a slip and fall claim.

In New Mexico, every person has a duty to exercise reasonable care to protect themselves from harm. This includes protecting themselves from slip and fall accidents on the premises of another, whether on business or personal property. As a result, individuals are imputed knowledge of obvious dangers and failure to avoid those dangers may be considered the sole or partial cause of the slip and fall accident.

This issue comes up frequently in cases of ice and snow. Falling on fresh ice or snow is a far different matter than falling on ice that is unexpected and not apparent to the eye. For example, falling in a parking lot on ice immediately following a snow storm will likely be found to be the sole responsibility of the injured person due to the assumption of risk in knowingly walking on ice and snow. In addition, property owners will not be held responsible for those conditions that they cannot control. On the other hand, if a person falls several days after a snow storm and the property owner had time to remove the ice and snow and should have known of the danger, then it is far less likely that the injured person would be attributed comparative negligence. In other words, the liability and fault would fall strictly on the property owner.

These principles carry across a wide array of slip and fall accidents. Comparative negligence and the duty of reasonable care will often completely destroy a slip and fall claim. When someone has suffered serious injuries, this is a difficult conversation to have with the injured person. Unfortunately, all accidents are not compensable in personal injury litigation. Sometimes accidents just happen and there is no liability or fault on which to bring a claim.

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

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

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

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

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

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

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

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

Reports in the press show that BP immediately began preparing for litigation following the spill. The company did this as it touted its intention to take full responsibility for the spill. It seems its partners in the Deepwater Horizon well did the same. Unlike BP who downplayed the disaster in the early weeks in efforts to get waivers and settlements on the cheap, its partners have gone the other direction alleging "gross negligence" on the part of BP in the disaster.

Of course, BP's partners, Anadarko Petroleum Corp. and Mitsui Oil Exploration Company of Japan, share BP's motivations. They are attempting to evade their shared responsibility for the disaster as partners in the well. According to the New York Times, BP has made a demand of $272 million on Anadarko for its 25 percent share, and $111 million form Mitsui for its 10 percent share. These demands will clearly go much higher in the coming months and years as the damages and legal claims continue to mount.

The public position taken by Anadarko in claiming gross negligence in order to escape its contractual responsibility is remarkable for a number of reasons. The same is true of Mitsui who has reserved judgment in assessing its contractual responsibilities. First, in its early preparation for litigation, BP apparently snatched up many industry experts. This effectively conflicted many of the experts out of representing plaintiffs. BP will be unable to take the same tact with its own partners since it will be the partners' experts that assess BP's level of negligence. Second, and related to the first, it may be BP's own experts that provide much of the groundwork for the thousands of civil lawsuits that are already in the works, and the many more that are sure to come against BP.

Predictably, BP will fight any claims of gross negligence by both its partners and the many plaintiffs in the civil lawsuits. It is also predictable that Anadarko will reverse position on the issue of gross negligence to avoid punitive damages in the civil lawsuits. It is equally predictable that the Tort Reformers, the right and the oil industry will continue to push for caps on liability both for this disaster and others to come in the future.

Much like Transocean who has pushed for $25 million caps in liability while recovering hundreds of millions of dollars in insurance for the destruction of its rig, BP, Anadarko and Mitsui will waste no time in making claims against one another for their business losses while one and all will join in the refrain to prevent full and fair recovery by the true victims of the BP disaster, the people and businesses along the Gulf Coast. It really its a race to bottom of business, social and community morality.

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

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

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

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

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

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

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

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

In many personal injury cases, the issue of preexisting injuries will be front and center in the calculation of damages. Many times, the defendant who is often represented by an insurance company will argue that plaintiff's injuries preexisted the accident and therefore is no the responsibility on the defendant. Liability and damages often turn on the findings surrounding preexisting conditions.

Defendants are not responsible for preexisting conditions. After all, there must be causation of harm to establish liability and causation cannot be shown for preexisting harms. However, defendants are responsible for incremental harm. The law in New Mexico has been long established that a defendant is liable for any harm done even if the injured person was more susceptible to that harm as a result of a preexisting condition.

This rule is often called the eggshell plaintiff rule meaning that if you negligently hit a person in the head that happens to have a exceptionally fragile skull, you are fully responsible for all harm caused by your negligence. This is the case even though you could not possibly have foreseen such a fragile skull or the terrible damages that might result from your negligence. It is often said that the defendant takes the plaintiff as he finds him.

The rule is reflected in New Mexico Uniform Jury Instruction 13-1802 where it states in part:

If you find that, before any injury in this case, plaintiff was already impaired by a physical or emotional condition, plaintiff is entitled to compensation for the aggravation or worsening of the condition, but not for elements of damages to the extent they were already being suffered. However, damages are to be measured without regard to the fact plaintiff may have been unusually susceptible to injury or likely to be harmed. The defendant is said to "take the plaintiff as he finds [him] [her]," meaning that the defendant, if liable, is responsible for all elements of damages caused by the defendant's conduct even if some of the plaintiff's injury arose because the plaintiff was unusually susceptible to being injured.

The possible tension between the parties becomes clear when reading the UJI 13-1802. On the one hand, the defendant will try to show that the injuries were entirely preexisting, and there was no worsening of those injuries by the negligent conduct of the defendant. The plaintiff is generally forced to acknowledge the prior injuries since there is generally no shortage of medical records on point. However, the plaintiff will argue that the injuries were made worse by the accident. Assuming liability has been established, the outcome of these cases depends on how this issue is resolved.

The parties will often find some middle ground through settlement. However, there are cases where there simply is no middle ground due to honest differences of opinion. There are also many cases where one or the other parties simply has taken an unreasonable and unrealistic position. These are the cases that move forward to trial. The risks of a jury trial are great to both sides making careful and intelligent case evaluation extremely important. This means trying to figure out how a jury will see the case which is easier said than done. Miscalculations will and often do result in tremendous costs to one or the other parties.

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

The seminal New Mexico case addressing worker's compensation exclusivity is the 2001 New Mexico Supreme Court case of Delgado v. Phelps Dodge. The case, despite the leap in the protection of workers over prior law, clearly illustrates the marginal protection employees are afforded from the negligent acts of their employers.

The Delgado case involved a fatal incident at a smelting plant where a worker suffering a horrifying death. The term incident is used because it was no accident that Delgado was burned to death. Instead, the facts showed that the employer clearly expected that Delgado would be killed while performing a task that he was grossly unqualified to perform.

The Delgado case illustrates the disdain with which workers are treated under the Worker's Compensation Act. The good and the bad news is that as a result of Delgado, workers enjoy slightly greater protection than in the past. In the past, New Mexico followed the "actual intent test." Delgado set forth the purportedly higher standard of willful and intentional.

The "actual intent test" is most clearly illustrated by the district court's granting of the defendant's motion to dismiss for failure to state a claim. The complaint alleged that the defendants "acted intentionally, with the knowledge that Delgado would be seriously injured and killed as a result of their actions." The district court, following the actual intent requirement, ruled that even if it was true that defendants "did engage in a series of deliberate or intentional acts which they knew or should have known would almost certainly result in serious injury or death to Reynaldo Delgado...the complaint falls short of alleging that [they] actually intended to harm Reynaldo Delgado." In short, the only way an employer could be sued beyond the Worker's Compensation Act was basically if they murdered the worker. How else may this language be read?

The Court in Delgado took the enlightened view that this standard was unacceptable. However, the Court went only slightly further in protecting workers injured as a result of the acts of employers. The Court held instead employers would lose the protection of the Workers Compensation Act only where the "employer willfully or intentionally injures a worker." The Court defined willfulness as follows: "(1) the worker or employer engages in an intentional act or omission, without just cause or excuse, that is reasonably expected to result in the injury suffered by the worker; (2) the worker or employer expects the injury to occur, or has utterly disregarded the consequences of the intentional act or omission; and (3) the intentional act or omission proximately causes the worker's injury."

The new standard is only slightly better than the old. In fact, employers continue to enjoy protection for gross negligence, and arguably for recklessness. Delgado still requires that the act reasonably be expected to lead to the injury of the worker. It further requires that the employer either totally disregarded the possible consequences or fully expected the injuries to occur. This is little better than the "actual intent test" and arguably mere word play. The result is the same, the employer must send a worker into a situation with a reasonable expectation that the worker will be injured or killed. Anything short of that and the employer is protected by the Worker's Compensation Act and the worker (or his survivors) is left to bear the burden of the employer's negligent behavior.

To be expected, the business community reacted with much the same repulsion to the Delgado ruling as did the defendant who warned the Court "that any deviation from the actual intent test will visit an undo hardship upon employers in this State and wreak havoc with New Mexico's workers' compensation system." It truly is tragic that employers can no longer send their employees to certain death. Honestly, what has New Mexico come to when we visit such injustice on our State's businesses?

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

There were 11,773 DWI deaths nationally in 2008. These numbers are alarming. It is absolutely unacceptable to allow drivers to endanger the safety of others. A drunk driving death has enormous consequences causing severe and irreparable damages for the family, the children, the friends and loved ones that survive. Those that cause these harms, or even threaten these harms, must be stopped at all costs. And when they do cause harm, they must be held fully accountable in every way. Personal responsibility is the foundation of democracy. Agreed?

Contrast these numbers, the outrage associated with these tragedies and the policies to address them with the myth of the medical malpractice crisis. The Hippocratic Oath states, "FIRST, DO NO HARM." It is hard to explain how this Oath justifies the rabid opposition to compensation of victims of medical negligence. The National Academy of Sciences Institute of Medicine estimates that up to 98,000 people die every year as a result of medical negligence. That is almost 9 times the number of DWI related deaths. Where is the outrage?

When viewed against this backdrop, the Hippocratic Oath is rendered meaningless. It is difficult to explain or justify until you realize what is really behind Tort Reform. There is another and overriding oath decreed by the Insurance Industry, the Hypocritic Oath, which states, "FIRST, SEE NO HARM." This explains why Tort Reformers can continue to rant about the mythical medical malpractice lawsuit crisis while denying the true crisis completely. The Hypocritic Oath explains why worker's compensation laws in every state provide pennies on the dollars for damages suffered by injured or killed workers. It explains why worker's compensation laws are drafted and enacted under the pretext of protecting workers when it is really to protect employers against responsibility from their own negligence, and sometimes recklessness, that leads to the injury or death of workers. It explains why these arguments can be made in the face of the reality that there are well over 5000 work related deaths a year according to the Bureau of Labor Statistics, while thousands more suffer permanent and crippling non-fatal injuries, many of which are the result of unsafe working environments or conditions. It explains how Transocean can fight for liability limits of $27 million for its negligence in the BP spill while collecting hundreds of millions of dollars to compensate for its own losses from the very same spill. And on it goes. The Hypocritic Oath is everywhere you find the insurance industry.

The Hypocritic Oath dictates that the insurance industry, purportedly on behalf o their client corporations, doctors and employers should spend millions upon millions every year on Tort Reform to dodge their responsibilities to individuals and society. It dictates that taxpayers pick up the costs for their harms with Medicaid, Medicare, Social Security, bank bailouts, TARP, disaster relief and assistance, liability caps and limits and countless other governmental measures made necessary by the Hypocritic Oath. Tort reform is not about protecting doctors. It certainly is not about protecting patients, workers, families or society. It is about protecting profits, plain and simple.

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

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

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

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

Here are the basic ground rules:

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

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

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

Premises liability claims often come in the form of slip and fall cases. These cases typically involve claims for damages against the property owner for injuries suffered while on the subject property. However, there are occasions when a claim may be brought for injuries suffered on adjacent property.

A common example of such a claim involves injuries that occur on sidewalks adjacent to the property in question. For example, a property owner would be liable for drainage of water from its property on to a city sidewalk if that water were to cause an accident. In New Mexico, this is not an uncommon set of circumstances. Often, property owners have sprinklers or other sources of water that drain onto sidewalks or streets causing ice hazards to pedestrian and vehicles alike. There are other occasions where stores, restaurants, or other businesses have water or other liquids that escape from their property on to pedestrian walkways. In these cases, and other cases where a dangerous condition is caused on an adjacent property by the activities of a property owner, the property owner is fully liable for any harm caused by his or her negligence.

The most common situation is codified in New Mexico Uniform Jury Instruction § UJI 13-1316 specifically addresses public sidewalks: "The [owner] [occupant] of property abutting a public sidewalk is under a duty to exercise ordinary care not to create an unsafe condition which would interfere with the customary and regular use of the sidewalk."

If you are injured in such a situation, you or someone on your behalf should immediately collect as much evidence as possible. This would include getting the names, addresses and phone numbers of any witnesses. Even more important, you should get pictures of the accident site as soon after the accident as possible so that you can document the condition of the property at the time of the accident. This would include identifying and documenting the source of the water. As you might imagine, this task is made much more difficult in cases involving ice when pictures are taken later when the ice has already melted.

Failure to document the negligence and liability of the property owner at the time of the accident can make pursuit of these cases substantially more difficult and sometimes impossible due to the lack of evidence to establish the property owner's liability. In addition, public sidewalks may also raise Tort Claims issues against the local government. These claims require that a Tort Claims Notice be sent within 90 days of the accident. Failure to do so will bar the claim.

Due to the many possible complications associated with these types of cases, it is typically advisable to contact a New Mexico Injury Attorney as soon as possible after the accident.

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

The class action lawsuits have begun in the BP spill. The first suit filed by Beasley Allen was filed to recover damages, past and future, suffered by the restaurant owners along the Alabama coast. Further suits can be expected in other Gulf Coast states and from other industries harmed by the spill. The real question is what to expect from BP, Halliburton, Transocean and most of all from Congress.

Alabama alone brings in over $3 billion a year in Gulf Coast tourism. Texas, Louisiana, Mississippi and Florida likely bring in comparable Gulf Coast tourism revenue. The tourism losses will spread beyond restaurants to lodging, shopping, fishing, water sports, travel and so on. The loss in tourism dollars alone is far greater than the $75 million cap on damages for coastal drilling accidents.

There are many other direct costs that may well dwarf the loss in tourism such as the destruction of the fishing industry, the coastal wetlands, the ocean itself, and of course the massive cleanup efforts that will be required for even nominal success in remediation of the areas affected by the spill. The indirect costs could in turn dwarf even these costs. Meat and poultry prices have already begun to rise. Gas prices will surely begin to rise. Groceries across the board will rise in costs as a result of the increased fuel costs associated with getting products to market. The rise in energy costs will affect every area of our economy likely slowing the economic recovery from the recent recession. The unemployment throughout the Gulf Coast and across suppliers of goods and services to Gulf Coast businesses will likely sky-rocket. Then there is the property damage that will be suffered by the plummet in property values across the Gulf Coast. A coastal mansion or resort is probably not as picturesque as it might be with black toxic beaches littered with decaying fish and other wildlife.

All the while the first congressional hearings on the spill saw BP, Halliburton and Transocean all denying responsibility for the spill. This comes on the heels of BP's initial public relations ploy to accept full responsibility for the disaster. BP continues to state that it will cover all "legitimate" losses. This is what comes out of one side of their mouths. The other side continues to try to chip away at their responsibility and the definition of "legitimate." BP, Halliburton and Transocean will continue to cast blame on one another, and eventually they will probably try to blame the Mineral Management Service. They may even try to blame probably Obama which seems to be standard conservative response to every problem and have no doubt that the oil industry is firmly in the conservative camp. In addition to shifting blame, they will seek cover under the $75 million cap on damages. They will dispute every claim. The will dispute the direct losses such as the costs of cleanup and the destruction of the fishing and tourism industries along the coast. They will not even entertain the thought of compensation to the American taxpayers and property owners for the indirect costs. Do we really expect that these costs will be fully compensated when BP, Halliburton and Transocean are already disputing liability and fault?

The real remaining question is whether our leaders in Congress will force full accountability and responsibility for the harm that this spill has caused and will continue to cause our country. Or will they instead relent to the oil industry as they have so many times before. It always come down to the money. The question is whose money our leaders will value most, the taxpayers' money or their own oil industry campaign contributions? It is clear whose money dictated the absurdly low $75 million cap on damages. Whose money will speak moving forward. You do have a say. Let your representatives know whose money they should be watching.

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