New Mexico Injury Attorney Blog

Most everyone has experienced drunken Santa at a holiday party. It makes for funny stories about the drunken uncle Santa who fell in the punch bowl, passed out in the yard, made some un-Santa like advances toward some of the guests and so on.

It is not as funny when Santa on his sleigh-ride home hurts himself or innocent drivers and their families. And though entertaining, and possibly even worthy of YouTube, it could get very expensive when Santa in a polar rage challenges all comers to a brawl.

The laws in New Mexico are pretty clear regarding liability for setting drunken guests loose on the roads. This applies to Santa as well as any other guests. Here are few things to consider before lining up the tequila shots at your holiday party.

New Mexico's dram shop and social host laws will hold the hosts liable for accidents and personal injuries arising out of the overindulgence of guests at a party. The host is liable to any innocent victims injured by the drunken guest. These injuries are most often associated with DWI accidents. It would also include drunken brawls as noted above along with any other accidents caused by the drunken guest.

The host can also be liable for injuries to the guest himself. This could occur in all manner of situations. It would include a guest sent packing who is clearly intoxicated who is injured or killed in a DWI accident. It might also include the guests who flips his chair due to excessive merriment and suffers a skull fracture. Or maybe, it is the guests who flirts with the wrong guest's wife and takes a beating out in the yard. And then again, there is Santa who proves ill equipped to take on the crowd.

There are too many variations on this theme to count them all. Suffice it to say that over-serving your guests with alcohol is risky business. And unless you know your guests and are paying attention, any alcohol brings some risks.

Holiday parties will have alcohol. And people will drink. This is perhaps unavoidable. However, there is no need or excuse for encouraging guests to overindulge. In addition, there are just some friends and family that you know cannot control themselves around free booze. Keep an eye on them. Better yet, don't invite them. If you must, take their keys early, keep them under control and plan for an overnight guest.

So pay attention, know your guests, put your drunken guests in lockdown, update your homeowner's insurance and be careful to whom you give the Santa suit. Drunken Santa and his elves might be entertaining or even downright hilarious in their holiday antics, but this is one ghost of Christmas that you do not want to visit in the future.

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

A home is often the single biggest investment one can make, and there are many types of risks associated with home ownership. The purchase of homeowners insurance can help minimize some risks, and is typically required by most mortgage lenders.

There are varying levels of insurance coverage. The level of coverage is set forth in the insurance policy limits. There will be different limits for different coverages within the same policy. Though it is generally advisable to get as much coverage as financially possible, a basic homeowners insurance policy can be an affordable option for those just starting out or for those needing to cut back on expenses.

A homeowner's policy typically includes two main sections: property and liability coverage. The property section includes coverage for the actual home and detached structures, like garages and sheds. Detached structures are generally insured for approximately 10% of the dwelling limit.

Keep in mind that the dwelling limit does not consider the value of the land the home sits on, so this limit will not reflect the full market value of the home. Nor should the dwelling limit reflect the amount of the mortgage, as this can leave a homeowner either underinsured or paying more for insurance than can be used.

In choosing property coverage limits, the dwelling limit can be considered in terms of "actual cash value" (ACV) or "replacement cost" (RC). ACV considers what it would cost to replace your home, less depreciation. RC reflects what it would cost to repair or rebuild your home without depreciation.

The property section also includes personal property coverage, which is the contents of the home and is usually covered at 50% to 70% of the dwelling limit. This coverage may also include "off-premises" coverage for items that incur loss outside of the home. Personal property coverage can also be considered in ACV or RC terms. RC coverage allows for replacement of an item with a similar type and quality at current prices, while ACV coverage considers depreciation of an item upon loss.

Loss of use, also known as additional living expense, is another coverage outlined in the property section of the basic homeowners policy. This coverage provides for expenses a homeowner incurs when unable to use the home due to a covered loss, and is typically limited to 20% of the dwelling limit. These expenses may involve staying at a hotel or eating at a restaurant while repairs are being made.

The second section of the basic homeowners policy involves liability coverage. This coverage is available when you or a family member has been found legally responsible for causing injury to someone or to someone's property. It helps protect against the financial loss resulting from a lawsuit. The typical limit is $100,000; however, this amount can fall short when a serious injury is involved. Like most insurance, the risk of inadequate insurance depends on your financial circumstances. Likewise, the ability to purchase additional levels of coverage may not be financially possible. But, it is wise to carry as much as possible to cover any potential judgment.

Medical payments coverage, or guest medical, is also found under the liability section and provides for payment of medical expenses incurred by someone who is accidentally injured on your property regardless of legal liability. Limits generally begin at $1,000 per person, per accident. Again, this is generally inadequate and one would be wise to carry greater limits if financially feasible.

The basic homeowners policy can help minimize the risk of typical losses that a homeowner may face. It may not cover every conceivable loss, but it will satisfy the requirements of most mortgage lenders and relieve some of the anxiety of managing one of life's biggest investments.

Collins & Collins, P.C.
Albuquerque Attorneys

Insurance products are intended to help manage risks individuals face from certain unforeseen circumstances. When an insured person is found responsible for damages or injuries caused to another person, a standard homeowners policy or auto liability policy can provide some protection. However, this coverage can be woefully inadequate in case of serious injuries.

For homeowners insurance, there is often only$100,000 worth of liability coverage. For auto liability insurance, the legally required amount is only $25,000. Many will carry coverages well in excess of this coverage but even these larger amounts may be insufficient to cover serious injuries.

When the liability limit is reached, an insured could find themselves personally responsible for the remaining costs. In the face of catastrophic injury, even coverage of $100,000 may not cut it when one considers medical bills, future medical care, rehabilitation and even the loss of a career due to an accident-induced disability.

To help prevent an accident or injury from consuming one's hard-earned financial resources, additional protection can be purchased in the form of a personal liability umbrella policy (PLUP), also known as an excess liability policy. An umbrella policy will take effect once liability coverage has been exhausted. Rates for an umbrella policy can range from $150 to $300 per year for a $1 million policy, which is just a fraction of the premium charged for standard homeowners or auto coverage. Each additional million can range from $50 to $75 per year.

In order to obtain PLUP coverage, an individual must have minimum prior coverage limits. For instance, to qualify for PLUP coverage, a driver must have minimum auto liability coverage limits of $250,000 per person/$500,000 per incident. Assuming one meets these threshold requirements, an umbrella policy should be considered by those who have personal assets higher than their homeowner's liability or auto liability limits. Without this additional coverage, an individual may be forced to liquidate their assets or even have their wages garnished to cover legal judgments.

For those who already have a personal umbrella policy, it might be wise to occasionally reconsider the policy limits to avoid being underinsured. As one's assets grow over time, it is easy to forget that insurance needs grow as well. Personal umbrella coverage can truly live up to its name; providing an extra layer of protection on a day when circumstances not only rain, they pour.

Collins & Collins, P.C.
Albuquerque Attorneys

It is not uncommon for neighbors, friends, family or others to help each other out in a pinch. Often times, the help comes in the form of work around the house. This may include home improvement, cleaning, and sometimes just helping with some heavy lifting. It is also relatively common that personal injuries are suffered by the well intentioned neighbor, friend or family member. The good news is that there may be insurance coverage that covers the injuries. The bad news is you have to bring a claim and sometimes a suit against the homeowner to gain the benefit of the coverage.

This of course can be a sticky point among neighbors, friends and family. Not everyone takes kindly to being sued. In addition, the injured party may just feel guilty about bringing a claim. However, in cases of serious injury, this may be the only option for the injured person to recover for medical costs and other damages. In many cases, especially in today's healthcare climate, it may be the only way to even get essential medical treatment.

Both the homeowner and the injured person should understand that the claim is against the homeowner's insurance policy, if there is one. Most homeowners will have homeowner's coverage. In the case of homes under a mortgage, they must have homeowner's coverage. In those cases where there is not coverage, then there really are some uncomfortable realities. First, to recover, the injured person must sue the homeowner alone. Second, if the homeowner does not have insurance coverage, then the homeowner probably has significant financial issues that suggest that he or she may be judgment proof (i.e. you can't get blood out of turnip).

When there is homeowner's coverage, the coverage limits are generally at least $100,000. Many homeowner's carry significantly more than this. However, these limits are generally sufficient. There are cases that involved severe, permanent, or catastrophic injuries, and on occasion there will be a wrongful death where these limits would be insufficient. This gets us back to the last paragraph where the homeowner may simply lack the financial resources to cover injuries and damages above and beyond the $100,000 limits.

In those cases where the insurance coverage limits are sufficient to cover all damages, the homeowner will not suffer any personal financial hardship associated with the claim. There may be an increase in premiums in some cases. And in cases where there have been a number of claims on the policy, there is the risk of cancellation of coverage. However, this increase in premiums or possible future cancellation is likely far less harmful or burdensome on the homeowner than uncompensated physical injuries or worse, untreated physical injuries.

This situation can be hard to understand on both sides of the equation. The homeowner may feel financially threatened, which they generally are not. Likewise, the injured person may be afraid that a claim will harm their neighbor, friend or family member. In most cases, a little education can alleviate concerns on both sides.

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

New Mexico is home to many Indian Casinos. They are very popular. Like any other business, particularly casinos, there are countless ways for patrons to be injured. When a personal injury occurs at or near an Indian Casino, the first and most important question is whether or not there is sovereign immunity protecting the tribe or pueblo form suit in New Mexico State courts.

For the most part, tribes and pueblos enjoy sovereign immunity against any kind of legal action. This includes everything from personal injury claims to contract disputes. Sovereign immunity means that suits against the tribes or pueblos must be brought in tribal court. This poses a very significant and often overwhelming challenge to plaintiffs.

In case of Indian Casinos or gaming, there is qualified immunity. Under the Indian Gaming Compact, the tribes and pueblos waive immunity for suits by visitors or patrons for personal injuries suffered in relation to the gaming enterprise.

Often times, when personal injuries occur at or near a gaming facility, the tribe or pueblo will attempt to argue that the accident and consequent injuries and damages were unrelated to the gaming enterprise. Many times, the connection is clear such as when a casino patron is injured while gambling at the casino, or while entering or exiting the casino prior to or following gambling activities. However, there is most definitely some gray area.

The New Mexico courts have generally shown great deference to the sovereign immunity claims of the State's many tribes and pueblos. The New Mexico Court of Appeals significantly curtailed tribal immunity in the case of Mendoza v. Tamaya Enterprises. This case involved a wrongful death suit against Tamaya by the guests of the Indian resort killed in a drunken driving accident following a wedding reception. There was no indication that the guests were there for gaming purposes but the New Mexico Court of Appeals found that there was no immunity for the tribe allowing the wrongful death suit to proceed in state court. The case is now on appeal to the New Mexico Supreme Court.

The case will have significant implication for guests and patrons of Indian resorts centered around Indian gaming, which is New Mexico is generally the case. As it stands, guests of the many truck stops, gas stations and restaurants adjacent to Indian Casinos face very difficult immunity issues in case of personal injury. Clearly, it is in the tribes' interest to extend the reach of immunity to all activities that do not actually occur inside the gaming facility itself.

Indian casino based resorts play host to countless visitors, many of which are there for events other than gaming. The position of the tribes and pueblos would leave little or no recourse for guests injured at weddings, parties, fundraisers, conventions, hotels, and bars on Indian casino grounds. This is clearly in the financial interests of these hugely profitable casino based resorts. Unfortunately, the interests of the visiting public are directly opposed to tribal immunity which will often bar recovery for claims no matter how great the negligence of the tribal enterprise and no matter how great the injuries

Collins & Collins, P.C.
Albuquerque Attorneys

Slip and fall accidents are very common. Though they sound trivial and are often mocked, they sometimes lead to serious injuries. On occasion, these injuries are not apparent at the time of the accident. For instance, a torn rotator cuff or torn meniscus may at first appear as just a sore shoulder or knee.

Stores businesses will often take advantage of the latent injuries by offering to settle cheap on the spot literally offering as little as $100 to clear the aisle and to be on your way. For those that accept the money and sign a release, there is little that can be done to undo the financial harm of what often turns out to be a highly inadvisable decision.

Then there are those stores and businesses that will in an effort to get an injured person on his or her way offer to pay the person's medical expenses. In fact, this promise is quite common. Almost as common it seems is a later refusal to honor the promise to pay medical expense. And though there is little help for those in the first situation, there is very real and significant relief for those in the second.

In New Mexico, a breach of a promise to cover medical expenses carries with it the possibility of punitive damages. The 1989 New Mexico Supreme Court case of Romero v. Mervyn's found that failure to uphold the promise constituted a "breach of the implied covenant of good faith and fair dealing." The Court noted that the "stonewalling" in these cases "goes beyond the mere breach of contract. It offends accepted notions of business ethics" justifying the award of punitive damages.

The facts of Romero are remarkable. Ms. Romero was actually injured by another patron with no relationship to the store. In addition, it appeared that the other patron intentionally harmed Ms. Romero so that there was little that Mervyn's could have done to prevent the injuries. Had Mervyn's stopped there, there would likely have been no liability. However, Mervyn's in a magnanimous but empty gesture offered to pay Romero's medical expenses. In the end, the medical expenses were $2041.00. Mervyn's was ordered to pay the medical expenses plus $25,000 in punitive damages.

The amount of the punitive damages was not great. However, the fact that it was 10 times greater than compensatory damages makes the case important. These damages could add up in the case of torn rotator cuff, torn MCL/ACL, broken wrist which are among the most common slip and fall injuries.

Despite the law established in Romero, the practice of reneging on the initial promise to pay medical expenses is still quite common. For anyone involved in a slip and fall accident at a store or business, it is extremely important to document the promise to pay at the time of the accident or as soon thereafter as possible. This grows more difficult with time. And you guessed it, those that would make and break a promise to pay medical expenses will likewise deny the promise was ever made.

Collins & Collins, P.C.
Albuquerque Attorneys

Among the most common cause of New Mexico slip and fall injuries are spills. Customers are often injured as a result of slipping and falling on these spills. Many assume that the simple act of slipping and falling is enough for a personal injury claim. It is not.

The owner or occupier of a building or business has a duty protect customers and visitors from all foreseeable harm. Spills are certainly a foreseeable harm. So it would stand to reason that a slip and fall on a spill particularly in a grocery store where these occur often provides a clear personal injury claim.

However, New Mexico premises liability law requires a little bit more than that. First, the owner must know or should have known that the spill was present. In other words, the accident must have been avoidable. If the accident was unavoidable then a slip and fall personal injury claim could be difficult.

This raises some immediate and sometimes difficult evidentiary issues. For instance, if the spill just occurred and the injured person immediately slipped on the spill then there would be no knowledge or opportunity for the owner to address the dangerous situation. As such, liability might be a problem unless other circumstances are present.

It is important to show that the spill had been present for some period of time and the store or business should have been aware of the spill. In the alternative, it might be shown that the spill itself was negligent with or without the knowledge of its presence.

In the case of a spill that was left unattended for some period of time, the standard for imputed knowledge will vary depending on the circumstances but there is most definitely a duty on the business owner to discover these conditions in a timely manner. In other words, simply ignoring the problem or more commonly not having some standardized procedures in place for maintaining the safety of the facility is not a defense.

Thus, if the spill has been present for a period of time then there is a duty on the business owner to both discover the spill and take corrective action to protect its customers. As a result, it is extremely important that someone injured in a case like this document the accident carefully. This would include pictures and/or video of the area, statements from witnesses, and at a minimum an incident report with the business.

Due to nature of the evidence in a case like this, waiting to document the accident may prove fatal to a claim. Once the area is cleaned up there is simply no remaining physical evidence. Store clerks, employees, and witnesses move on. In the absence of documentary evidence or witness accounts, it will be exceedingly difficult to establish the elements necessary for a premises liability claim.

Collins & Collins, P.C.
Albuquerque Attorneys

People are often injured for the intentional torts of others. The most common intentional tort is battery where one person intentionally injures another. We often get calls on these cases. The most immediate question is can the injured person sue for personal injury.

The answer to that question is yes. Perhaps the more critical question is should the person sue? This is the question an experienced personal injury attorney will first ask. The answer will depend on a variety of circumstances, the most important of which is whether or not there is any possibility of recovering money through a lawsuit.

More often than not those individuals prone to commit battery on others are not as prone to carry insurance. And even if they did, most insurance policies will exclude intentional battery that results in injuries. Likewise, there is a high probability that the person will have no assets or financial resources against which to enforce a judgment.

As such, you may have a very good lawsuit on the basis of liability and damages but have little or no chance of recovery through a personal injury lawsuit. In other words, you may be able to clearly prove that you suffered serious injuries and that the other person caused your injuries but there is no money at the end of the "successful litigation." This is what personal injury lawyers refer to as a "judgment proof" defendant.

Unfortunately, though sympathetic to those intentionally injured by others, most lawyers are highly reluctant to sue on principle. As such, the lawyer will be looking for possible sources of recovery.

Depending on the circumstances, there may be a possible recovery from employers on the basis of respondeat superior, negligent hiring, or negligent training. There may also be premises liability actions against property owners or managers for failure to protect tenants or visitors.

There may be other possible means or recovery as well depending on the circumstances. Each case must be carefully evaluated at the outset of the case. Otherwise, the litigation process can be long, expensive and in the end extremely frustrating when the plaintiff is awarded a judgment that cannot be collected.

Collins & Collins, P.C.
Albuquerque Attorneys

Shopping can be dangerous sport. Accidents result daily in grocery stores, convenience stores, retail establishments, malls, department stores and so on. The "Spill on Aisle 7" may be you.

In fact, these accidents often result in very serious personal injury. Sometimes, the seriousness of the injuries may not be immediately apparent.

There are many stores that will attempt to take advantage of the fact that the injuries do not immediately appear serious. Some will attempt to get an injured customer to sign a release immediately, even before leaving the store, for a nominal amount of money. It is not uncommon for stores to offer $100 or less for full settlement of claims. Neither is it uncommon for injured customers to take the deal.

Unfortunately, they often soon find that it was not benevolence or good will that dictated the offer of settlement. They will also find that the settlement agreement and release of claims is fully enforceable with few exceptions, no matter how serious the injuries turn out to be.

The lesson is clear! There is no good reason to settle at the time of the accident. There is never any reason to sign a release of claims before you know what claims you may have. In other words, you cannot possibly exercise reasonable judgment in settling claims until you know what your injuries are. You often cannot know the full extent of your injuries without medical attention.

For example, customers often suffer slip and fall accidents. Among the most common injuries suffered in these kinds of accidents are twisted knees. What may seem like simply a sore knee may later turn out to be a torn ACL or MCL. Other injuries may also appear at first less serious than they really are. A sore wrist turns out to be a broken radius. A sore tailbone or lower back is a ruptured or herniated disc. The list goes on.

The stores know this. This is the purpose behind the quick settlement. It is certainly not driven by customer service and appreciation. It is a cynical and profit driven tactic to avoid full responsibility for accidents that occur in their facilities.

If you are injured in an accident like this, take some time to make sure you are o.k. If your pain persists, see a doctor. If your injuries are serious and the store is responsible for the accident, then you may also want to consult an experienced New Mexico personal injury attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

The aftermath of dealing with a personal injury can be a confusing and difficult time. Medical bills are due, wages are lost, and one may even face the possibility of having to live with a life-long disability as a result. Insurance can provide some monetary compensation for expenses, lost earnings and diminished quality of life. Often times,where coverage is available, there will be immediate insurance benefits available. Thus, it is important to notify the appropriate insurance company to receive the compensation you are entitled to and avoid out-of-pocket costs as you recover.

Before contacting any insurance company, gather as much information as you can. They will want details concerning how, when, and where the accident occurred, as well as who was involved. You may also want to gather witness information, police reports, and any medical reports for treatment you received as a result of the accident.

You should also review your policy to determine if written notification is required. If you do not have access to the policy, or the policy belongs to another party, be sure to ask the claims personnel you are working with about the specific requirements of notification. Some insurance companies will accept telephone notifications.

Personal injury claims can be filed under a number of different insurance policies, depending on the type of claim being pursued. The most common insurance policies called upon in personal injury actions are auto insurance, homeowners, or business premises liability policies.

In case of an automobile accident, you should generally notify both the insurance company that insures the vehicle you were driving, as well as the insurance company of the other vehicle involved. In case of accidents such as slip and fall accidents that occur in a private home or business, the homeowner's or business insurance carrier should be notified. In cases involving a governmental entity, the notice requirements are very strict under the Tort Claims Act allowing only 90 days from the date of the accident to notify the appropriate authority of your claims. In each where you are dealing with an insurance company other than your own, you would be well advised to seek the assistance of an experience personal injury attorney. This is particularly important where the insurance company seeks an interview or statement from you.

On rare occasions, claims may be made against an individual's personal umbrella policy. This would occur if the responsible party actually has such a policy, which is unusual in New Mexico, and is used when claims have exhausted the policy limits of all other insurance.

When a claim involves an uninsured party or even an unknown party, like a hit-and-run accident, it is very important to notify your own insurance company in a prompt manner. New Mexico Regulations require that an insured or other individual making an uninsured/underinsured motorist claim provide written proof of claim to their insurance company as soon as practicable. Your insurer will have forms for this purpose and must provide them to you within 15 days of notice of claim.

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

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