New Mexico Injury Attorney Blog

Few recent technological advancements have affected the legal process the way that social media has. Social media is often a gold mine of information on the parties to a lawsuit. Though the issues apply across the board in all litigation, the focus here will be primarily on personal injury claims. More specifically, it will apply to the discovery process in a personal injury case.

To begin, let's start with those folks, surprisingly large in numbers that have yet to recognize the lack of privacy on social media. Amazingly, there are many in the midst of all varieties of litigation that have no privacy settings on their social media accounts. In other words, the world is free to browse around on their account. There is little to be said here since the social media histories may be readily obtainable with or without court involvement.

However, even for those who have set their security settings at their highest, there are still very real risks that those posts will end up in discovery, and if possible, used against them in court. For those that have no privacy settings, it is often possible to get all that is needed or available through informal discovery (i.e. just looking around). For those who think that their posts are protected from prying eyes due to their high privacy settings, they need to think again.

Simply put, for litigation purposes, these posts are public no matter what the privacy settings. There simply is no Facebook-client privilege. Worse yet, the attorney-client privilege can be waived by posting information about discussions with one's attorney. No kidding, it happens! So even though the posts are private (i.e. shared only with your closets 1000 friends), the information may be obtained through the discovery process during litigation. This means that the court can order you to turn over this information.

The Courts have taken various positions on the discoverability of this information. There have been cases where judges have simply required parties to turn over their passwords to their accounts (including Facebook) to the other side. This is the most extreme position since it has the potential of revealing very embarrassing but irrelevant information to the other side.

Other courts have required a party to provide archives from their social media accounts. Though this might seem somewhat less invasive since passwords are not turned over, it is no less intrusive and no less prone to abuse by hostile opposition parties.

Other more thoughtful judges have instead requested the information for in camera review. This means that the judge review the information in order to determine the scope of the discoverability limiting the information to that which is relevant to the case. This same objective might be achieved through the appointment of a Special Master that works to manage and supervise the discovery process.

There are numerous variations on these approaches. Moreover, discovery in the age of social media will continues to evolve quite rapidly. However, there is one thing that should be kept in mind and that is that no matter how the courts evolve on this issue, your social media to a large degree will be discoverable.

The rule on discovery is "relevance" not admissibility. Relevance allows discovery of anything that might lead to admissible evidence and this is a very broad swath across your social media universe. The evidence revealed on social media need not be admissible itself. It just has to be relevant and relevance is a fairly broad concept. Moreover, the rules of discovery dictate that courts err on the side of discoverability.

In a nutshell, whatever you post can and will be used against you! So think before you post. Once posted, it is too late. Social media is permanent. And attempts to delete or hide it give rise to all kinds of other problems (think sanctions, adverse inferences, contempt...).

If you find yourself in this situation and you have a personal injury claim, it is important to speak with an experienced personal injury attorney before taking any rash and potentially irreversibly harmful action on your own.

Related Reading:
Social Media Puts Courts Behind Technology
Growing Perils of Social Media - Your Insurer is Watching!
Divorce & Social Media - A Toxic Mix

Collins & Collins, P.C.
Attorneys at Law

The recent New Mexico Court of Appeals case of Badilla v. Walmart addressed the appropriate statute of limitations to apply to a personal injury case where the case is brought under a different theory of law.

Specifically, this case involved a claim for personal injuries that was filed as a breach of warranty claim. Personal injury claims have a 3 year statute of limitations in New Mexico. Breach of warranty claims under the Uniform Commercial Code have a 4 year statute.

The suit was filed as a breach of warranty claim to gain advantage of the longer statute of limitations. As an aside, the plaintiff had apparently successfully filed a worker's compensation claim. There is no indication of third party liability that would have allowed the plaintiff to escape the exclusivity provisions of the New Mexico Worker Compensation Act. As such, it is not clear there was a personal injury claim at all which may also help to explain why it was filed as a breach of warranty claim.

The facts of the purchase, subsequent accident and claim are remarkable to say the least. The fact that the case was taken all the way to the Court of Appeals is more surprising still. According to the Court, the plaintiff purchased a pair of boots from WalMart and then wore them daily for 8 to 12 hours a day, 6 days a week for nine months. After all this, he was injured when he tripped while lifting a large log.The plaintiff apparently admitted he never tried to return the shoes nor was he aware of any defect in the boot that made them dangerous

No kidding! This is what the Court stated as the facts of the case. Upon these facts, the plaintiff brought the case as a breach of express and implied warranty of merchantability and fitness.

He did suffer pretty serious back injuries including two ruptured or bulging discs. However, there is nothing in the opinion suggesting anybody else was responsible. In fact, it is hard reading the case to ascertain how it was the boots were at fault at all. The District Court dismissed the case on summary judgment on the statute of limitations though it seems that the case could have equally been dismissed for failure to state a claim.

In any event, the Court of Appeals ruled that the 3 year statute of limitation on personal injury law matters governed the case. The Court stated what appears obvious from a reading of the opinion (though perhaps/hopefully there was more to it that went unstated) that the essence of the case was personal injury. Simply calling it by another name would not relieve the plaintiff of the statute of limitations.

It appears that in cases of personal injury claims, the old saying of a Rose is a Rose...applies with full force here. It seems so obvious that perhaps he question has not been addressed with sufficient rigor in the past. However, it seems clear moving forward that the courts will not allow a re-characterization of the essence of a claim in order to avoid the statute of limitations. Presumably, the same would hold true for any other motives for attempting to redefine the nature of a claim.

Though this case is fairly remarkable and likewise pretty rare, it does point to the importance of knowing and meeting the statute of limitations on your personal injury claims. Though there a were a number of obvious problems with this case, the one that got it dismissed was the statute of limitations. Missing a statute of limitations with very few and rare exceptions is an absolute bar to personal injury claims.

Related Reading:
New Mexico Statute of Limitations & Exceptions -- Time is Always of the Essence!
Tolling of Statute of Limitations is Rare
Extension of Statute of Limitations in New Mexico for Cases Originally Filed in the Wrong Court

Collins & Collins, P.C.
Albuquerque Attorneys

Please feel free to contact our law firm by phone or by email for a free case evaluation. We can be reached by phone at (505) 242-5958 or through our email contact form by clicking here!

One of the many considerations in a personal injury lawsuit is whether the defendant owed a duty of care to those that are injured. A duty of care is a requirement that a person proceed in a reasonable manner while performing any acts that could possibly harm others. Generally, the defendant's behavior is measured against a reasonable person's behavior, which varies based on the facts of the case. In other words, the jury will ask: would a reasonable person have acted like the defendant did?

For liability and recovery in a personal injury lawsuit, there must first (with rare exceptions) be a finding of negligence. For a finding of negligence and consequent liability, there must first be a duty of care. The New Mexico Court of Appeals recently issued a decision reviewing the duty of care owed by a shopping center to protect its inhabitants from automobiles.

In Rodriguez v. Del Sol Shopping Center, a driver, who had been forbidden from driving by her doctor due to a seizure disorder, was driving her pick-up truck which had mechanical problems in the Del Sol Shopping Center parking lot. While traveling the truck's accelerator became stuck while depressed and the brakes failed. Simultaneously, the driver experienced a "baby seizure," which caused her to pass out. The pick-up truck continued to accelerate, crossing the ten-foot wide pedestrian sidewalk, snapping a metal handrail, and crashing through the shopping center's floor-to-ceiling glass wall. Tragically, three people were struck and killed and an additional six sustained serious injuries. The estates of the deceased and the injured patrons filed lawsuits against the shopping center alleging that the defendant failed to protect them from the pick-up truck accident by posting traffic signs and placing additional barriers between the parking lot and the medical center.

Typically, the owner or occupier of a property owes a general duty of ordinary care to keep those that he or she invites onto the property safe. Ordinary care is the care a reasonable person would use when acting in the same way. Ordinary care can even include protecting persons on the property from the actions of a third party where they owner or occupier knows or should know of a specific danger. In a case like this one, it is clear that the defendant owed a general duty of care, because they owned the property. However, the court had to examine whether the defendant owed the inhabitants of the buildings a duty to protect them from vehicles straying from the parking lot.

The unlikelihood of these circumstances, a defective vehicle with an inept driver striking a building, showed that the defendant could not have foreseen the danger that caused the plaintiffs' harm. After all, there is no apparent risk of being struck by a car while inside a building. With statistics showing that it was highly unlikely that a vehicle would strike a building and cause harm to those inside, the defendant could not be expected to foresee the danger. In other words, you cannot prevent what you cannot foresee and if you can't prevent it, then there is generally no duty to protect against it.

Similarly, the defendant did not fail to meet generally accepted safety customs. Neither the layout, surface, use, signage or nature of the surrounding businesses could have prevented the unfortunate incident. While the erection of barriers or bollards could have prevented the vehicle from striking the building, their use is above and beyond what is normally required for safety reasons, so the defendant could not have been expected to use them here.

While this decision was unfortunate for those affected by the vehicle crash, it does not mean that they were not able to bring other lawsuits against other responsible parties. It is important to discuss any situation where your injury was caused by another with an experienced injury attorney to see if you are entitled to a recovery.

Related Reading:
Sorting Out Responsibility in a New Mexico Premises Liability Claim
Comparative Negligence Decided by Jury in New Mexico Personal Injury Cases
Dangerous Recreational Activities and Assumption of Risk

Collins & Collins, P.C.
Albuquerque Attorneys

A question that we get often is whether a parent can be liable for damages caused by the actions of his or her child. The answer is yes, a parent can be held liable. However, if you are a parent and reading this, don't panic! The liability is limited in all but rare circumstances.

Under the New Mexico Children's Code, a parent's liability for the acts of a child is limited to $4000. The statute actually addresses the actions of the child in terms of malicious or willful conduct. In other words, the parent's responsibility is limited to $4000 even if the child maliciously or willfully (intentionally) harms another.

The act does not specifically address negligence of a child but it seems clear that negligence would be subsumed under malicious and willful conduct. After all, if a parent's liability is limited in cases of intentional conduct then it would defy common sense to hold the parent liable for the accidental damages caused by a child.

There are many cases where the limitations under the statute would not apply. For instance, if the parent is aware of the child's behavior and does nothing to stop it, the parent may be imputed liability. This however would not technically be liability for the acts of the child but for the actions or inactions of the parent. This exception is rarer than one might think despite the gut feeling that would suggest parents should take responsibility for the harmful behavior of their children.

One not too uncommon situation where a parent is liable (subject to the limits of the statute) is in the negligent entrustment of a vehicle to a minor. Under the New Mexico Jury Instructions, a person may be held liable for the negligent entrustment of a vehicle where the person "knew or should have known" that the person (in this case the child) "was likely to use the vehicle in such a manner as to create an unreasonable risk of harm to others."

Of course, it must then be shown that indeed the child was negligent and the child's negligence resulted in harm to another. This would thus require that it be shown both the child was negligent and that the parent had a reasonable expectation that the child would drive negligently. The second part of this requirement would require a showing of a poor driving history or other dangerous propensities on the part of the child.

In the case of teenagers, a poor driving history is almost a given. So there must be more than just the typical errors associated with the driving learning curve. There must be something suggesting something approaching recklessness. This might include numerous speeding tickets with very excessive speeds, drinking and driving, the use of drugs (both illegal and prescription) that would impair driving ability, and/or prior accidents associated with the foregoing.

These cases would be covered by the parent's auto liability insurance. In cases involving harm above and beyond insurance coverage limits, there might be the possibility of liability beyond the policy limits. However, as a practical matter, this is often not feasible. After all, if the parent is carrying nominal liability coverage, it is likely that there are few assets upon which to collect.

In any event, if you are harmed by the negligence of a child, do not assume that you can go after the parents. Auto accident cases are really the exception to parental responsibility for the negligence of a child. Even then, the liability and recovery is typically dictated by insurance. If you are a parent and your child has caused harm to another, in most cases, your child's actions will not destroy you financially.

Whether you are in the first group of parents or the second, it is advisable to seek the advice on an experienced personal injury attorney. These cases have many complexities that are typically best addressed by an experienced attorney.

Related Reading:
New Mexico Family Purpose Doctrine in Auto Accidents
The Potential Costs of "Cool" Parenting are High During High School Graduation Season
Dangerous Recreational Activities and Assumption of Risk

Collins & Collins, P.C.
Albuquerque Attorneys

When a patient goes in for a medical procedure, he or she is handed numerous documents that must be signed prior to the procedure. These include a variety of disclaimers and warnings of risks related to the procedure. The risks and possible bad outcomes are often numerous and terrifying.

Indeed, upon reading some of these forms, one might reasonably ask how in the world some of the risks are inherent to the procedure. In fact, many of them are not but are added as boilerplate catchall provisions to try to cover not only inherent risks but many other bad outcomes as well. Yet the procedure is necessary so the patient signs.

Throughout the stack of disclaimers and warnings will be various acknowledgements and acceptance of the risks. All of this culminates with the signing by the patient of consent forms consenting to the procedure.

It is not unusual that the worst does occur. Sometimes the bad outcome is an inherent risk of the procedure. Clearly, there are many high risk procedures. And clearly, medicine is not perfect. However, that is not the issue in the case of most medical errors and medical negligence. In fact, it is not an issue of being perfect; it is an issue of competence, of meeting the standards of the medical profession.

Despite the widely accepted myth of the frivolous medical malpractice lawsuit, there is vast medical negligence. In a 1999 study from the Institute of Health, it was estimated that as many as 98,000 patients a year die from medical negligence making it the 6th leading cause of death at the time.

That's bad! What's worse is that since 1999, the problem has actually grown worse. In 2010, the Office of the Inspector General of the Department of Health and Human Services estimated the number of deaths from medical negligence at 180,000. The Inspector General found also that as many as 1 in 7 patients suffer injury as a result of medical error.

Knowing this will make those consent forms pretty frightening. However, rest assured that in New Mexico, all these disclaimers, warnings and consents will not excuse negligent medical care. In fact, there is a jury instruction that says exactly that.

New Mexico Uniform Jury Instruction 13-1105A entitled Consent No Excuse for Negligent Treatment states:

"The fact that a doctor communicates the inherent and potential hazards of a proposed [procedure] [treatment] does not necessarily mean that those hazards, should they arise, are not the result of negligence in performing the proposed [procedure] [treatment].

The fact that a patient expressly or impliedly consents to a proposed [procedure] [treatment] does not mean that the patient consents to the negligent performance of that [procedure] [treatment] and therefore does not prevent you from considering whether the [procedure] [treatment] was negligently performed.

The fact that a patient consents to an adequately performed [procedure] [treatment] does not excuse the doctor from negligence in choosing an unnecessary or contraindicated [procedure] [treatment]."

In short, an advice of risks and consent to medical treatment is not a waiver of a patient's right to competent medical care. It is not a free pass for the medical provider. The fact that the patient signed the consent forms will not prevent the patient (or his or her estate) from recovering for the personal injuries or wrongful death associated with medical negligence.

If you believe that you or a loved one has been harmed by medical negligence, it is important to seek the counsel of an experienced personal injury attorney right away. Medical malpractice claims in particular have many unique requirements and deadlines that must be met to protect a patient's rights to recovery.

Related Reading:
The Myth of the Frivolous Medical Malpractice Lawsuit
Are Guns Safer than Hospitals?
Medical Malpractice Claims Raise Unique Statute of Limitations Issues

Collins & Collins, P.C.
Albuquerque Attorneys

It goes without saying that workplace safety often hinges on the maintenance of equipment. That is certainly true in the oil and gas industry. One need only look at one of the worst oil and gas accidents in history, the 2010 Deepwater Horizon tragedy which apparently involved numerous equipment maintenance and failure issues. The explosion that occurred there killed 11 people and seriously injured 17 others. In addition to the injuries and fatalities there was also significant environmental damage along the Gulf Coast.

Unfortunately, this is not an isolated incident. According to the Bureau of Labor Statistics, about 600 oil field and rig workers were fatally injured on the job between 2002 and 2007--many due to various mechanical problems. Perhaps even more alarming is that the statistics also show that these jobs are getting more dangerous all the time. From 2002 to 2006 the number of deaths per year increased by approximately 70%, from 72 deaths in 2002 to 125 in 2006. These workplaces are extremely dangerous. According to estimates, the fatality rate among oil and gas workers is nearly eight times that for all workers in the United States.

Efforts at improving workplace safety must focus on equipment maintenance. Proper maintenance keeps the oil rigs and other equipment working as they should, without the chance of one-time blowouts or malfunctions that hurt those working in the vicinity. When maintenance is done improperly, or not at all, oil and gas workers are put in serious danger.

Unfortunately, productivity often determines when and how maintenance is performed. Irregular or nonexistent maintenance saves the oil and gas companies money. Productivity decreases when the equipment is shut down for maintenance. The profit-motive therefore makes it more likely that the industry will not be proactive in its safety measures. All too often this means that problems are only addressed after a worker has been seriously injured or killed. Even then, the problems may persist.

Following these tragedies, those involved may be able to seek compensation for their losses. There are many complexities and challenges with these cases beyond the obvious technical challenges of figuring out how and why an accident occurred. In New Mexico, the Worker's Compensation Act places strict limits on claims by employees (and their estates) that are injured or killed on the job.

The New Mexico Worker's Compensation Act provides an exclusive remedy for employees injured or killed on the job. In short, the employee is prevented from suing the employer for personal injury or wrongful death in all but the most outrageous situations. In short, the employer must more or less send the employee to certain death before the exclusive remedy protection is waived by the employer.

In these types of cases, where the injuries (if the worker survives at all) are typically very serious. The Worker's Compensation benefits do not come close to fully compensating a worker for very serious personal injuries or wrongful death. As such, the worker must identify a third party who is responsible or shares responsibility for the accident. In these types of cases, there is often no shortage of parties who share the blame due to the large number of contractors, subcontractors, equipment providers, manufacturers and the like.

If you or a loved one has been injured or killed in an oil or gas accident, it is important to seek the guidance of an experienced personal injury attorney to ensure that your rights are protected. There are strict deadlines associated with these cases so it is important not to delay. Missing a deadline will bar your claim completely.

Related Reading:
Oil and Gas Facilities Pose Significant Risks to the Public When Not Properly Maintained
The Oil and Gas Industry Can Be a Dangerous Place for Workers
Employers Protected from Liability for Gross Negligence Toward Employee Safety

Collins & Collins, P.C.
Albuquerque Attorneys

When thinking about oil and gas industry accidents most think about rig explosions and oil leaks. Injury to workers and environmental damage are assumed to be the most obvious consequence of these accidents. However, certain oil and gas industry issues have the potential to affect many different community members.

For example, oil and gas storage sites are located in our communities across the country, with some sites located as close as 150 to 300 feet from residences, churches, schools and businesses. It is easy to overlook the storage facilities, because they are often inconspicuous. At some sites there are no warning signs, fencing, locked gates or other physical barriers to indicate the activity there or help prevent accidents.

Failure to properly maintain these storage facilities can lead to serious problems. These facilities pose a significant danger to the public, particularly to our children and young adults. A recent study released by the U.S. Chemical Safety Board identified 26 incidents since 1983 involving accidents at these oil and gas facilities. Those over two dozen incidents killed 44 members of the public and injured may others.

In some ways, the dangers posed by these locations affect rural community members, who are far more likely to live, work, and interact near these facilities. It is not uncommon in rural areas for children and young adults to socialize at oil sites unaware of the explosive hazards posed by storage tanks containing flammable hydrocarbons and crude oil and natural gas condensate.

It only takes a single incident to cause serious problems. A lighter, cigarette, or even static near one of these tanks may trigger an explosion inside the tank. Such an internal explosion can launch the tank into the air, killing or injuring people nearby in the blink of an eye.

These accidents are not uncommon.

Perhaps most common are gas pipeline explosions which when they occur, they can be incredibly devastating to the public. Perhaps none were more tragic than the year 2000 pipeline explosion in New Mexico that killed 12 family members who were camping along the Pecos River several hundred yards from the underground explosion.

The case resulted in a record wrongful death settlement for the estates of the deceased. Remarkably, the accident and the horrific scene which greeted emergency responders was so bad that several of the emergency responders suffered severe PTSD and other emotional damages for which they later also filed suit.

Those maintaining these oil and gas sites must take the known safety dangers into account. In the New Mexico case, the pipeline was had not been cleaned or inspected in 5 decades. As a result, the pipeline and the breach point were severely corroded which led to the explosion.

The good news is that with the appropriate safety and security measures these accidents are preventable. In many cases, basic security measures, such as full fencing, locked gates, and locks on tank hatches are often all it takes to avoid these types of accidents entirely. Warning signs and safely designed storage tanks also go a long way to keep unsuspecting community members away from dangerous areas. These measures will be effective in preventing many pipeline accidents.

In the New Mexico case, which involved a 30 inch interstate pipeline, these measures clearly would be insufficient since the campers were nowhere near the pipeline. In all cases, proper inspection, maintenance, and cleaning must be maintained. Common sense might suggest this goes without saying. Yet, it is remarkably common that pipelines are not properly maintained. And with the continuing growth of the natural gas market and the consequent boom in pipeline construction, only time will tell whether all these pipelines were laid properly to begin with.

The bottom line is that oil and gas storage, transmission and pipeline facilities pose a clear risk to community members. It is incumbent upon owners and operators to minimize that risk. Failure to do so can prove devastating to the public and ultimately quite costly to the owner/operators of the facilities.

Related Reading:
The Oil and Gas Industry Can Be a Dangerous Place for Workers
Dangerous Recreational Activities and Assumption of Risk
Punitive Damages in New Mexico: What is Reasonable?

Collins & Collins, P.C.
Albuquerque Attorneys

Prisoners, now more than ever, are at a great risk for medical mistreatment. The problem of medical treatment in prisons has been increased by the use of contractors and sub-contractors to run the prisons and provide medical care. By their very nature they are shielded from public view, with very limited rights and little power to redress wrongs against them. The medical negligence is not limited to physical problems, but includes mental and emotional issues as well. Studies have shown that a disproportionate number of prisoners in the American penal system suffer from mental health issues which is often severely neglected.

The United States Supreme Court has consistently stated that prisons have an obligation to provide adequate medical care to prisoners, because not doing so would constitute "cruel and unusual punishment." Typically, medical malpractice suits require the plaintiff to prove that the medical provider's actions were below the standard of care ordinarily expected in the local community. This standard holds true for personal injury lawsuits against the medical providers in a prison or jail.

For a civil rights claim, a prisoner may also allege "deliberate indifference," where he or she must prove a serious medical need, that the persons or entities being sued knew of that need, and that they intentionally or deliberately failed to provide the required treatment. If the prison personnel are not aware of the prisoner's medical condition, then they will not be held liable for any alleged inadequate care.

For example, in January 2012, a federal jury in New Mexico awarded $22 million to a man for medical mistreatment. Stephen Slevin was arrested for driving while intoxicated. The prison personnel believed Slevin was suicidal and he was first placed in a padded cell for three days, before being transferred into solitary confinement.

At one point, Slevin was forced to pull his own tooth because he was denied dental treatment. His toenails began to curl around his foot, and he developed fungal infections. Despite the initial concerns about Slevin's mental health, prison officials failed to provide any mental health treatment. Since his release, Slevin was diagnosed with post-traumatic stress disorder, which will likely mean taking medication for the rest of his life.

Prisoners may also make a claim for delayed medical treatment, even where the treatment is provided in the end. In this type of case, the prisoner must show that a negative result was caused by the delay in treatment. However, even when the medical incident is severe, like a heart attack, the prison will not be liable if there is no proof that the delay in treatment caused the prisoner additional problems.

Deliberate indifference cases by prisoners are often brought in federal court. The federal court rules also allow the prisoner to then bring medical malpractice claims under New Mexico law as well. By bringing both sets of claims, the chances of accountability are increased.

It is important to note that, like many types of cases involving injury, the statute of limitations begins to run when you discover the problem. In many cases, this is very straightforward, but sometimes it isn't.

In the case of suits against prisons and jails for medical malpractice, there are a number of important deadlines. These include all the unique deadlines associated with medical malpractice claims as well as those under the New Mexico Tort Claims Act and the Section 1983 of the Civil Rights Act.

Medical malpractice cases are quite complex. They are made even more so in the prison or jail environment. It is important to contact an experienced attorney as soon as possible following an incident of medical malpractice in jail or prison. The deadlines are real and they are serious. Missing one can bar your claims completely.

Related Reading:
New Mexico Statute of Limitations & Exceptions -- Time is Always of the Essence!
Medical Malpractice Claims Raise Unique Statute of Limitations Issues
MedMal Cap Protection in New Mexico Protects both Doctors and Medical Corporations

Collins & Collins, P.C.
Albuquerque Attorneys

At one time or another most of us have been invited to help a friend or relative out with a home improvement project or simply invited to a friend or relative's home to enjoy some leisure time together. I'm sure very few of us, however, stop to consider what will happen if we are injured while engaging in such activities.

For example, how will the medical bills be paid? The answer is generally that a claim must be made under the property owner's homeowner's insurance coverage. This can be awkward in case of a friend or relative. However, both you and the friend or relative should ask who should bear the costs of the injuries, medical expenses and other damages? Should you bear these costs? Or should the insurance company which was specifically paid by your friend or relative for just such situations pay?

Once you get past the natural reluctance to pursue a claim against a friend or relative's insurance, you should understand some basics of the law surrounding these kinds of accidents, which are commonly referred to as slip and fall accidents. In the event that you are injured while on a friend or family member's property the laws that dictate whether you can be compensated for those injuries are commonly referred to as premises liability laws.

These laws require that anyone in possession of land or other property keep the premises safe for users, guests and visitors of the property. Failure to do so can result in liability for injuries sustained while on the property. Understanding how premises liability laws and homeowner's insurance coverage work together to protect both the property owner and the injured party can alleviate much of the stress that can arise between family members in the event an injury should occur.

Basic homeowner's insurance coverage includes liability coverage. Liability coverage helps protect against financial loss when someone is found legally responsible for causing injury to someone or to someone's property. This liability coverage also includes what is called medical payments coverage and provides for payment of medical expenses incurred by someone accidentally injured on your property regardless of legal liability. Typical policy limits for liability coverage begin at $100,000 with medical payments coverage at $1,000 per person, per accident. Many homeowners will carry much higher limits.

The homeowner's insurance policy will include a section of "exclusions" which are circumstances for which the policy does not provide coverage. Two important exclusions you should be aware of are as follows:

1. Many homeowners' insurance policies have a household members exclusion that expressly excludes household family members from bringing claims against the insured homeowner. This exclusion typically does not exclude non-household family members.


2. Homeowner's insurance coverage does not provide coverage if you are injured by the property owner's intentional acts.

There are a number of steps that you should take if you are injured at the home of a friend or family member. There are also important deadlines that may apply to your claims. It is important to speak with an attorney as soon as possible after the accident. An experienced personal injury attorney will be able to walk your through the process to insure that your rights are fully protected under the homeowner's insurance policies.

Related Reading:
The Basics of Homeowner's Insurance
Personal Umbrella Insurance Coverage is Good For Everyone Involved in a Serious Accident
Good Neighbors Carry Homeowner's Insurance

Collins & Collins, P.C.
Albuquerque Attorneys

Say you have been injured in an accident and have settled your claim with the insurance company. Down the road you discover you either still need additional medical care for your injuries, or you discover new injuries you were not aware of at the time of the settlement. Can that settlement agreement be "re-opened" or can you file another lawsuit for additional damages?

The answer is likely an emphatic "No". Prior to settlement, and most definitely prior to issuing you a check, the insurance company or opposing attorney will insist on a settlement agreement. This is typically, in the absence of an agreement to the contrary, an agreement in full and final settlement of claims. It is generally impossible to attempt to collect for additional damages after a settlement agreement has been signed.

The reason for this is that the defendant, usually an insurance company, agreed to settle your claim and make payment to you in exchange for a full release from all past, present and/or future claims stemming from the incident. The settlement agreement you signed most certainly included language similar to the following:

[Y]ou agree to waive your future right to make a claim or sue for any and all claims associated with the incident being settled. This includes claims unknown at the time of the signing, or for the worsening of, or for unknown future medical effect or injuries arising out of the claim or incident.

This binding effect of a settlement agreement is one of the reasons that it can take so long to settle a personal injury claim. Before entering into a settlement agreement it is absolutely essential to completely understand the extent of your injuries, including the need, if any, for future medical care. Any "future medical expenses" must be projected and figured into the settlement amount. This should be done by your treating physician and must include the following:

1. The likelihood that you will need future medical care.

2. A thorough description of the type and extent of the care you will need.

3. An estimate of the cost of the care taking into consideration how long you may need care and your life expectancy if it is believed you will need ongoing care for the remainder of your life.

It may not seem fair that you cannot make additional claims down the road for future medical care or injuries that were unknown at the time you signed the settlement agreement. However, if a settlement agreement could easily be undone by one of the parties months or even years down the road, then the parties could never feel that the claim is truly settled. The incentive for parties to enter into settlement agreements might disappear.

Furthermore, settlement agreements are an essential part of our legal process. Without settlement agreements our court system would be bogged down with all manner of trials, including personal injury lawsuits. For this reason the courts depend on settlement agreements to maintain the integrity and efficiency of the judicial system.

Binding settlement agreements provide benefits to all parties involved. Keep in mind that careful preparation of your case before entering into a settlement agreement, including thorough documentation of all past, present and future damages, is your best insurance against later ending up disappointed with your settlement. An experienced personal injury attorney will be able to walk you through this process to insure a fair settlement of your claims.

Related Reading:
Maximum Medical Improvement and Your New Mexico Personal Injury Settlement
Fair Settlement of Personal Injury Claims is More Math than Wrath!
Medicaid Liens: What is the Obligation in a Personal Injury Settlement?

Collins & Collins, P.C.
Albuquerque Attorneys

Maximum Medical Improvement, commonly referred to as MMI, is a term frequently used in personal injury cases. Maximum Medical Improvement refers to the point in your medical treatment when your doctor determines that further medical treatment will not improve your condition. MMI is therefore, an indicator of the permanency of your injuries. While there may be slight improvements in your condition, it is not expected that further treatment will result in any significant improvements.

Reaching MMI, however, does not necessarily mean that your medical care is complete. Many people require ongoing treatment and medical expenses related thereto, including physical therapy, pain management, or the need for assistive devices in order to maintain their current health and ability to function.

Reaching MMI also does not mean that your condition will not get worse. Many injuries can lead to secondary injuries or conditions. For instance, in many cases the development of arthritis in an injured body part is common. When this happens you may experience a worsening in pain or a loss in ability to perform certain physical activities. Once you have reached MMI your doctor will be best able to determine whether your condition may worsen and the need for future medical care.

Let's look at an example. Say you are injured in a car accident and suffer an injury to a disc in your back. This type of injury is painful and in many cases can cause numbness in your legs. After having surgery to repair the disc, the numbness in your legs improves but you continue to suffer from pain. After undergoing physical therapy and follow up care with your doctor your pain persists. At this point, perhaps six months or a year after your injury, your doctor may conclude that additional surgery would not provide any further benefit and your condition is not likely to improve.

In this situation, your doctor may conclude that you have reached maximum medical improvement. While your condition is not expected to improve your medical care is not complete. You will require continued pain management, which may include pain medication and a regime of exercise. But at this point your doctor is in a position to better evaluate your condition, how it will impact your life, and the need for future medical care.

Keep in mind that in most cases the insurance company will also have you examined by a doctor they hire to evaluate your injuries and testify as an expert witness. These doctors will generally testify that you reached MMI shortly after your accident and that medical bills related to the accident should be cut off at that point.

For this reason when you reach MMI there are several things that your doctor should evaluate and include in his/her medical report. A complete medical report including all of the following will ensure that you receive the full compensation for your injuries.

• Impairment rating, this is a rating reflecting the percentage of disability for injury. There may be full or partial as well as temporary or permanent impairment ratings. In addition, there may be a rating for individual body parts or organs.


• Work restrictions, specifically setting forth what you can and cannot do and whether you can continue in your present occupation or must seek new a new occupation. (Note that if your injuries require you to change occupations you may also need to have a separate evaluation to determine whether additional education or training is necessary for you to return to the work force.)


• Future medical care, including the types of treatment you are expected to need and the cost of such care.

Keep in mind that reaching maximum medical improvement can take time depending on the severity of your injuries. Injuries to several parts of your body will heal at different rates and you will reach MMI for your various injuries at different times. It is important to be sure that you have recovered from all your injuries before being declared to have reached maximum medical improvement.

In short, reaching MMI allows your doctor to predict your future damages, including future medical expenses, lost wages, and pain and suffering. Until you have reached MMI and your damages have been properly evaluated it is nearly impossible to reach a fair settlement or jury verdict for your claim. An experienced personal injury attorney will be able to discuss these issues with you as your case progresses.

Related Reading:
The Limits of Insurance Coverage in a New Mexico Auto Accident
Optional Auto Insurance Coverage Often the Most Beneficial to Your Family
The Importance of MedPay Insurance Coverage in Car Accidents

Collins & Collins, P.C.
Albuquerque Attorneys

Even though most employers are required to carry workers' compensation insurance, the truth is that a number of employers in New Mexico do not carry the required coverage. Considering the New Mexico Workers' Compensation Act (WCA), it is often a bad idea for employers to fail to carry this type of insurance. On the other hand, the failure of the employer to carry workers compensation insurance can work to the advantage of an injured employee in the case of employer negligence.

When an employee suffers an work related injury and their employer does not carry worker's compensation insurance, the employee or family may sue the employer in civil court for personal injuries or wrongful death. In New Mexico, if an employer fails to carry workers' compensation insurance, that employer will not be protected by the New Mexico Workers' Compensation Act, including its "exclusive remedy" protection. Failure to obtain coverage can result in heavy fines and a restraining order against the business or employer.

Under New Mexico law, any company with three or more employees must carry workers' compensation insurance. Construction employers must carry workers' compensation insurance regardless of the number of employees. Some jobs, like household employees and real estate salespeople are exempt from the WCA.

Under the WCA, employees that are injured on the job may recover the cost of medical expenses and depending on the extent of the injury, temporary or permanent disability benefits. Workers' compensation benefits are based on the amount the employee earned at the time of the accident. This compensation may be adequate in case of relatively minor injuries. In case of serious and/or permanent personal injuries, or wrongful death, the WCA does not come close to providing adequate recovery to the injured employee.

Though the WCA is couched in terms of protecting the injured employee, the reality is that the WCA is largely for the protection of employers. If an employer falls within the WCA and complies with all of its regulations, including carrying workers' compensation insurance, the employee will only have access to the remedies available under the WCA in case an employee suffers an injury or death. In other words, if an employer carries the required insurance and complies with the WCA, an injured worker or family member will not be able to bring a personal injury or wrongful death suit in civil court against the employer.

With the protections of the employer in mind, the WCA places several limits on how much a worker or family can recover. For example, in case of death, the family may only receive up to $7,500 for funeral expenses plus the cost of medical expenses and lost wages up to the time of death. Dependents are entitled to receive 2/3 of the deceased's worker's weekly wages for a maximum of 700 weeks (about 13 years). If the injury results in a worker's death and a safety device or training is required by law, the family of the deceased worker is eligible for an additional $5,000 provided they file within one year of the date of the worker's death.

If the worker was negligent in using or failed to use a provided safety device, the compensation allowable under the WCA will be reduced by 10%. If the employer was negligent in providing a safety device or training, the compensation allowable under the WCA will be increased by 10%, which is paid directly by the employer and not his workers' compensation insurance. However, the employer can obtain additional coverage for this kind of situation.

It is clear that the compensation available to employees under the WCA is much less than would be available in a personal injury or wrongful death suit in civil court. Workers' compensation benefits cover only medical and disability benefits, while a plaintiff in a personal injury suit can recover for these expenses as well as pain and suffering and in some cases even punitive damages.

If you or a family member were hurt in a work-related accident, it is important to contact an experienced personal injury attorney to determine what recovery might be available beyond the very limited recovery allowed under the WCA.

Related Reading:
Third Party Liability for Work Related Injuries
Employers Protected from Liability for Gross Negligence Toward Employee Safety
Employer Responsibility for Worker Safety? No, But Thanks for Playing.

Collins & Collins, P.C.
Albuquerque Attorneys

An individual with a pending personal injury lawsuit may be facing economic hardship in several ways and due to a number of reasons. Unfortunately, aside from very limited exceptions, the New Mexico Rules of Professional Conduct for Attorneys prohibits a lawyer from making any loans or advancing any expenses to one of their clients.

A personal injury suit can take months and even years to settle or go to court. During this time, an injured party may be facing rising medical and rehabilitative expenses aside from regular living expenses. Injured persons may have significant claims for damages, on occasion reaching into the millions, but cannot pay their rent, utility, and other bills while litigation is pending.

To make things worse, many civil lawsuits involve serious injuries. Personal injury victims often find themselves with mounting medical bills due to their injuries while other expenses mount due to a loss of income associated with those injuries. And despite their legitimate claims, they cannot pay these bills while their case is still pending.

No matter how much an attorney may want to help, and they do, it is against the New Mexico Rules of Professional Conduct for an attorney to offer or provide financial assistance to a client. Sometimes the situation may be quite tragic. For instance, a client may have an extremely strong case but in the meantime may be facing eviction, foreclosure, or repossession of their automobile and belongings.

However, an attorney is only allowed to pay certain court costs and filing fees on behalf of a client. It is improper for an attorney representing a party to loan that party money for living, medical, or any other expenses connected to the litigation. The New Mexico Rules of Professional Conduct for Attorneys expressly prohibits an attorney from advancing a client any type of loan or providing any kind of financial assistance in connection with pending or contemplated litigation.

Under NMRA §16-108, the only advance that an attorney can give to a client in connection with litigation is paying court and litigation costs up front. The repayment of court and litigation costs can be contingent on the outcome of the case. In other words, the client will only have to pay the attorney back if the client receives a settlement or favorable judgment at trial. Any other loan, payment, or advance in connection with litigation, however, is expressly forbidden by the New Mexico Rules.

Even though an attorney may not advance any of his own or the law firm's money to help a client pay their day to day expenses and medical bills, they can help their client identify other sources of cash and alternative solutions, like MedPay insurance coverage, pre-settlement funding (rarely a good idea), treatment letters of protection, and bank or other loans. An experienced injury attorney will be able to help you to explore your options under the law.

Related Reading:
Paying Your Bills While a Personal Injury Lawsuit is Pending in New Mexico
Paying Medical Bills Pending A Car Accident Settlement
Personal Injury Lawsuit Loans are Very Costly

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Court of Appeals recently held in Foster v. Sun Healthcare Group that unless there is a clear showing of negligence in prosecution, a plaintiff who brings suit in the wrong court has six months to bring suit in the correct court, even if the statute of limitations for the claim has run.

Personal injury and other tort claims must be filed in a court that has both subject matter and personal jurisdiction to hear the case. Many civil cases are brought in state court. However, a federal court may have jurisdiction if the case involves a federal question or diversity of citizenship between the parties. For a federal court to have diversity jurisdiction, the parties must be residents of different states or a foreign country. If a corporation or other non-person entity is a party to the case, the home state of the corporation is determined by several factors including the state of incorporation, the location of its headquarters, etc.

"Saving statutes" are state laws that are meant to give citizens broad access to the state court system. New Mexico law contains a saving statute, NMSA 1978, §37-1-14, which allows a second suit to be brought within six months of the first suit if it was brought in the wrong court, regardless of whether the statute of limitations on the claim has run. However, a plaintiff cannot take advantage of the saving statute if the plaintiff was negligent in prosecuting his or her case.

According to the Court, a plaintiff is negligent in prosecution when he or she fails to exercise due diligence. A failure to exercise due diligence occurs when, at the time of filing a lawsuit, a plaintiff knows or should have reasonably known that the court lacked jurisdiction over the case. If a plaintiff files in the wrong court, the plaintiff's mistake must have been an honest mistake and the suit in the wrong court must have been initiated with the good faith belief that the court was proper in order to take advantage of the saving statute.

In Foster v. Sun Healthcare Group, the Plaintiff filed his medical malpractice suit in federal court in a timely manner, within the three-year statute of limitations. The Plaintiff's original complaint claimed that the federal court had diversity jurisdiction over the case. Once the federal court found that it did not have jurisdiction over the case, the three-year statute of limitations had run. However, availing himself of the New Mexico saving statute, the Plaintiff filed suit in state court.

The defendants were granted summary judgment by the state court based on the statute of limitations and the claim that the Plaintiff was negligent in prosecution and therefore not allowed to use the saving statute. The New Mexico Court of Appeals disagreed. The Court stated that the defendants were unable to show evidence that the Plaintiff knew or should have known that diversity jurisdiction in fact did not exist. For this reason, the Plaintiff was not negligent in prosecuting his case and could take advantage of the saving statute.

Jurisdictional matters can be complicated and difficult to navigate. An experienced attorney will ensure that you file your case in the proper court and inform you of all of your rights and options.

Related Reading:
Medical Malpractice Claims Raise Unique Statute of Limitations Issues
Statute of Limitations on Past Denial of Uninsured/Underinsured Motorist (UM/UIM) Coverage in New Mexico
Tolling of Statute of Limitations is Rare

Collins & Collins, P.C.
Albuquerque Attorneys

In many situations, an injured party may have a significant claim against another person or company, but cannot pay their day-to-day bills while litigation is pending. It is well known that personal injury litigation can take months and even years to settle or go to court.

During this time, an injured party may be facing rising medical costs and rehabilitative expenses above and beyond normal living expenses. Worse yet, the injuries may have resulted in reduced wages because of absence and even loss of employment. As litigation drags on, bills continue to pile up and earning power may be down or non-existent. This may leave the injured party with very few choices.

While an attorney may advance litigation costs, it would be improper for an attorney representing a party to loan that party money for living or any other expenses. The New Mexico Rules of Professional Conduct for Attorneys expressly prohibit an attorney from providing a client any type of loan or financial assistance in connection with pending or contemplated litigation.

Under NMSA § 16-108, the only loan that an attorney can make to a client in connection with litigation is advancing court and litigation costs. The repayment of this advance can be contingent on the outcome of the case, meaning that the client will only have to pay the attorney back if the client wins. Any other loan, payment, or advance in connection with litigation is expressly forbidden by the New Mexico Rules.

Certain lenders offer different kinds of pre-settlement funding or pending lawsuit cash advances. These are hardly ever a good idea. A lawsuit loan is a cash advance given by "investors" to a person with a pending lawsuit, taken out against the lawsuit award. In most cases the loan will not be due unless the plaintiff wins the case. Citing the risk of not getting paid unless the lawsuit is successful, pre-settlement funding companies justify charging interest rates of over to 100% per year. However, in truth these "investors" meticulously and carefully screen cases, only accepting those that have a very high probability of success and/or pre-trial settlement.

Since it is technically called an investment rather than a loan, these "investors" and the cash advances are unregulated as loans and not subject to predatory lending laws. These so-called investments are not subject to interest rate caps and do not have to clearly disclose pricing information. While lawsuit loan companies advertise their speedy 24 hour approval process, their interest rates and pricing is often lost in the fine print.

There are several avenues that a personal injury victim can pursue to cover personal living expenses while their lawsuit is pending without having to resort to the predatory lending practices of pre-settlement funding companies. In some cases, doctors and hospitals may be willing to defer payment until the lawsuit is resolved. It is important to communicate early and often with doctors and hospital administrators about this possibility and the pending litigation. In other cases, the victim or defendant's insurance company may pay certain medical bills.

An experienced personal injury law attorney can help to explain and guide you through what can be a long and difficult process.

Related Reading:
Personal Injury Lawsuit Loans are Very Costly
Paying Medical Bills Pending A Car Accident Settlement
The Limits of Insurance Coverage in a New Mexico Auto Accident
Medical Liens Can be Half the Battle in a New Mexico Personal Injury Case

Collins & Collins, P.C.
Albuquerque Attorneys