New Mexico Injury Attorney Blog

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

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

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

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

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

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

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

New Mexico Uniform Jury Instruction 13-1810A allows for the recovery of damages by the plaintiff's children or spouse for loss of consortium which is defined as the "loss of the society, guidance, companionship and sexual relations resulting from the plaintiff's injuries."

The allowance of damages for the loss of sexual relations is most closely identified with a loss of consortium action. And it is this element that is most prone to invasive and embarrassing discovery by the defendant's attorneys.

The claim implies strong emotional bonds and active sexual relations between the plaintiff and his or her spouse. The defense attorneys will go to great lengths to tear down any suggestion by the plaintiff's spouse that any such emotional bonds or regular sexual activity was present in the relationship.

To do this, the defendant's attorneys will often hire private investigators to pry into every detail of the relationship or lack of relationship between the plaintiff and his or her spouse. They will try to find any indication of strain on the relationship to show that there was no true loss. As you might imagine, what they most hope to find is infidelity. They will try to find both present and past infidelity. The goal is to tear down the relationship and the credibility of the parties in the eyes of the jury.

Discovery, and especially depositions, on loss of consortium claims can be brutal, embarrassing and even humiliating. The scope of discovery is very broad allowing the defense attorney to ask almost any question no matter how invasive or seemingly irrelevant. Depositions questions need not be relevant to be asked. It is only necessary that the question could possibly lead to the discovery of other admissible evidence.

The broad scope of discovery opens up questioning about the plaintiff and his or her spouse's sexual histories. This includes questioning about every conceivable topic related to sex including sexually transmitted diseases, unplanned extramarital pregnancies, birth control practices, sexual activities and virtually every other issue concerning the pre-marital and extramarital sexual practices of the Plaintiff and his or her spouse. If that is not enough, the attorneys can ask some rather explicit questions about the current sexual activities inside the marital relationship.

The findings from discovery and depositions can be both embarrassing and extremely harmful to the loss of consortium claims. In addition, juries can be pretty unforgiving, somewhat puritan and often hypocritical so that the evidence raised on the loss of consortium claims harms the primary personal injury claims made by the plaintiff.

Before pursuing loss of consortium claims, every plaintiff must honestly assess his or her situation. What will the defense find? How will a jury view that evidence? How would the most sexually conservative, self-righteous, moralistic, judgmental person in a sexually conservative, self-righteous, moralistic, and judgmental community view the evidence? That person is quite likely on the jury and he or she is absolutely unforgiving of the plaintiff's transgressions.

www.CollinsAttorneys.com

Often personal injury claims in New Mexico present the possibility of bringing a loss of consortium claim. This is particularly so in cases of serious personal injury. A loss of consortium claim is brought on behalf of spouse or child of the injured person.

New Mexico law specifically allows for an award of damages for loss of consortium. New Mexico Uniform Jury Instruction 13-1810A provides for recovery by plaintiff's spouse or child for the "loss of the society, guidance, companionship and sexual relations resulting from the plaintiff's injuries." Essentially, the spouse or child is awarded damages for their own emotional stress and loss associated with the plaintiff's injuries.

In a wrongful death case, the losses can be devastating to a surviving child and spouse. Loss of consortium claims and damages awards can be very large in wrongful death lawsuits. In the case of the wrongful death of a loved one, there is no question that a loss of consortium claim should be included in the wrongful death lawsuit.

Fortunately, only a very small percentage of personal injury claims involve death. Most personal injury claims involve some level of damages for physical injury along with the pain and suffering that goes with those injuries. In most cases, loss of consortium claims arise from a disruption of the relationship between the plaintiff and his or her family as a result of the physical injuries. Often physical injures do cause significant pain and suffering which impacts the daily activities of the plaintiff, including familial activities of every sort. In cases of serious injuries, the plaintiff may also suffer emotional damages such as depression and acute anxiety related to the injuries. These too disrupt the relationship between the plaintiff and his or her family.

The loss of consortium claims has come to be most closely identified with a loss of sexual relations between the plaintiff and his or her spouse. This loss can be significant. Even with moderate soft tissue back injuries, physical activity including sexual relations can become very uncomfortable. There is no question that the disruption of sexual relations presents very real losses often with significant emotional consequences for the relationship.

That being said, the emotional costs of bringing the loss of consortium claim may outweigh any recovery. These costs should be weighed carefully before jumping into a loss of consortium claim.

A loss of consortium claims implies strong emotional bonds and active sexual relations between the plaintiff and his or her spouse. The discovery process on these matters can be burdensome, invasive and embarrassing. Discovery is very broad in a personal injury lawsuit. There are few topics that are off limits particularly when the issue is raised by the plaintiff. The defendant's attorneys will pry into every corner of the relationship between plaintiff and his or her spouse. It takes little imagination to figure out where the investigation will lead.

The question every plaintiff and his or her spouse must ask is whether the loss of consortium claim is worth the emotional stress of opening up these private matters. The answer may very well be yes, but it is important to weigh these considerations before moving forward with the claim.

www.CollinsAttorneys.com