New Mexico Injury Attorney Blog

In case of an uninsured/underinsured motorist claim on an automobile accident in New Mexico, the law requires that an insured party notify their insurance company of the uninsured/underinsured claim "as soon as practicable."

The requirement is a little bit vague but what it means in practice is that you must notify your carrier of an uninsured/underinsured motorist claim as soon as it becomes evident that the insurance coverage of the other driver is inadequate to compensate you for your injuries and damages.

This determination may take some time since insurance companies are not always willing to turn over insurance policy limits information on their drivers. Often times, insurance companies will turn over policy limits information only when a demand in excess of insurance policy limits is made and the insurance company feels that legitimate claims may be made in excess of policy limits.

This information may come well into the personal injury claims process. In fact, it may well be that the policy limits are not known until formal discovery is conducted in the litigation process. As such, "as soon as practicable" could be weeks, months or years after the accident has occurred. Only once an insured driver knows of a possible uninsured/underinsured motorist claim must the driver notify his or her insurance company of the claim.

The statute of limitations, always something to watch closely in every personal injury matter, is less of a concern in uninsured/underinsured motorist claims. Personal injury claims, including auto accidents, have a 3 year statute of limitation. The limitation period is shortened to 2 years in case of governmental defendants. However, the statute of limitations on a uninsured/underinsured motorist claims is 6 years. An uninsured/underinsured motorist claim is contractual in nature and disputes on written contracts have a 6 year statute of limitations.

Keep in mind that the statute of limitations is not the same as the notice requirement. The notice to a driver's insurance company must be made once the uninsured/underinsured claim is known. Of course, if this comes years after the accident, the longer statute of limitations on uninsured/underinsured claims provides the driver with added protection.

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

There are many reasons to wear a seatbelt other than the laws requiring it. The top ten reasons for proper seatbelt use are apparent from the following statistics from a study at James Mason University:

1. One in five drivers are involved in an auto accident each year.


2. Auto accidents are the leading cause of death for those under the age of 45.


3. Close to 35,000 people die each year in auto accidents, half of whom would have been saved by the use of seatbelts.


4. For every one percent increase in the use of seatbelts, 172 lives are saved.


5. Seatbelts reduce auto accident fatalities by 60-70 percent.


6. A person is 25 times more likely to die when thrown from a vehicle.


7. Children are often killed by being crushed by unrestrained adults.


8. The most common injuries to children in car accidents are head injuries resulting in brain damage, traumatic brain injury, epilepsy or death.


9. Over 80% of child fatalities in auto accidents would have been prevented by the proper use of seatbelts or car seats. Unfortunately, less than ten percent of children are properly restrained.


10. Seatbelts may provide the greatest and only protection against DWI drivers. This is very important in New Mexico which historically has among the worst DWI problems in the country.

A seatbelt may very well save your life in the case of a car accident. If that is not enough, it may save your child. Just as importantly, it could minimize physical injuries. In New Mexico where drivers are chronically uninsured or underinsured, minimization of physical injuries may very well save you and your family from financial disaster. There many more good reasons for wearing a seatbelt and none that would suggest otherwise.

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

In the case of Ovecka v. Burlington Northern Santa Fe Railway Company, the New Mexico Court of Appeals addressed the issue of vicarious employer liability in the context of a wrongful death suffered in a DWI auto accident involving an employee of Burlington Northern. The central issue in the case was whether the drunken employee's actions could be imputed to Burlington Northern.

The employee, Kenneth Long, had a long history of DWI and alcoholism. His job duties carried him around a wide area of New Mexico. Due to the remote locations of the job sites, Burlington Northern employees were often provided lodging near job locations. Kenneth Long often took advantage of the lodging. He utilized his own vehicle in commuting to and from location. After work one day in Rio Puerco, Mr. Long headed to Grants where lodging was provided by the company. However, Mr. Long did not check in. Instead, he picked up a 12 pack of beer and headed to Gallup to visit estranged family members. Mr. Long became extremely intoxicated and headed back toward Grants. At 9:00 PM, well after leaving work that afternoon, he crossed the highway median colliding head-on and killing Angela Ovecka.

Ms. Ovecka's parents brought the suit on behalf of Angela alleging Burlington Northern's vicarious liability under respondeat superior for Mr. Long's actions. They further alleged negligent hiring and supervision. Burlington Northern moved for summary judgment which was granted by the district court and affirmed on appeal by the New Mexico Court of Appeals.

The court set forth well established principles of respondeat superior. In short, the court found that Mr. Long was not acting within the course and scope of employment at the time of the accident. The court stated that an "an employee enroute to, or returning from, his place of employment, using his own vehicle is not within the scope of his employment absent additional circumstances evidencing control by the employer at the time of the negligent act or omission of the employee." Under the facts, the court found that Mr. Long was returning home, well after business hours, and there was no other evidence suggesting control over Mr. Long at the time of the accident.

The court also refused the plaintiff's arguments regarding negligent hiring and supervision. The court stated that negligent hiring and supervision claims require both foreseeability of harm and a duty on the part of the employer. The court determined basically that an accident such as this was not a foreseeable harm arising from the hiring of Mr. Long. In the absence of foreseeability, there could be no duty to prevent the harm.

Naturally, Mr. Long was driving an uninsured vehicle at the time of the accident. The case did not address whether or not Ms. Ovecka carried uninsured/underinsured motorist coverage. In the absence of such coverage, Ms. Ovecka's tragic death likely would have gone completely uncompensated.

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

There is a strong public policy for the provision of uninsured/underinsured motorist (UM/UIM) coverage in auto accidents. In New Mexico, this policy dictates a liberal reading of both the statute governing uninsured motorist coverage as well as the auto insurance policies themselves.

An auto insurance policy will be held to provide uninsured coverage to the same degree as the liability coverage unless there is a specific signed rejection of the UM/UIM coverage attached to the policy. In addition, the UM/UIM coverage will have the same geographical coverage as the liability coverage under the policy. Because insurance policy limits are almost always an issue in car accident cases, the laws and cases governing uninsured motorists are critical. The issue can even arise on vacation or other travel abroad.

In the 2001 case of State Farm v. Marquez, the New Mexico Court of Appeals held that UM/UIM coverage in the policy extended to coverage for an automobile accident that occurred in Mexico. The court held this despite the fact that the policy had a specific exclusion of uninsured/underinsured coverage in Mexico.

The court ruled that because the policy provided liability coverage in Mexico, there was UM/UIM coverage as well. The court ruled that the policy behind uninsured/underinsured motorist coverage dictated that the uninsured/underinsured coverage be territorially coextensive with the liability coverage despite the language in the policy excluding uninsured motorist coverage in Mexico.

The court recognized that an insurance policy could exclude both liability and uninsured motorist coverage outside the United States. However, the uninsured coverage would follow the liability coverage. The court expressly refused to address whether or not an insured driver could reject uninsured coverage outside the United States. In light of subsequent case-law, it is clear that a policy holder could waive uninsured coverage outside the U.S. when the rejection is signed and properly attached to the policy.

If you have suffered personal injuries as a result of an automobile accident outside the United States, you would be well advised to have an experienced accident and injury attorney review your policy for possible coverage. Chances are that there is no coverage on the other driver and little chance of direct recovery through a lawsuit against the other driver.

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

Calculation of the Medicare set-aside in a personal injury action can be a long and tedious process. The law allows for a reasonable allocation for future medical expenses. Defining "reasonable" is anything but easy.

The set-aside calculation takes into consideration the patient's current condition, past medical treatment, future medical needs, life expectancy along with numerous other factors. Medicare may judge "reasonable" future medicals at a far higher amount than is suggested by the facts. An excessive set-aside coupled with the lien on past paid Medicare benefits may render a settlement or judgment worthless to the injured person as the fight for recovery is purely for the benefit of Medicare. This is particularly true in cases with catastrophic injuries and uninsured/underinsured or judgment proof defendants. There simply is not enough money to go around.

Worse still, the review and approval process can take months upon months to conclude. All the while, the statute of limitations is ticking along. The lengthy time necessary to conclude the review and approval can push a case that would otherwise settle into litigation. This of course places even greater costs on the injured person. Even then, Medicare holds the cards and they do not have to budge on their numbers. At some point, a rational plaintiff must decide whether litigation to pay Medicare and attorney fees is really worth the time and stress.

The bottom line is that the process with Medicare must begin early. Time is not really on your side in these cases. On the one hand there is Medicare and on the other the statute of limitations. The statute of limitations has a way of sneaking up on plaintiffs and many lawyers will not, and those that do should not, touch a case with these kinds of issues and short fuse on the statute of limitations.

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

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

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

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

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

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

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

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

New Mexico has a high rate of uninsured. The state has the highest rate of uninsured motorists in the nation. The numbers related to those lacking health insurance are comparable. As a result, many personal injury cases in New Mexico involve Medicare and/or Medicaid.

Many who have suffered personal injuries from the negligence of another are very surprised to hear that Medicare/Medicaid will claim liens against any personal injury settlement funds. Medicare/Medicaid will assert a lien for the amount of medical bills related to the personal injuries. Both Medicare and Medicaid are very aggressive about collecting on those liens. The penalties are quite severe for failure to properly account for and pay these liens.

It should be kept in mind that Medicare/Medicaid may assert liens only for medical bills related to the personal injuries related to the settlement. This includes both past and future medical expenses. However, it includes only medical expenses and only those related to the personal injuries on that particular claim. Because the liens may only include medical expenses related to the personal injuries on that claim, Medicare and Medicaid liens are often overstated.

There are a number of areas where the lien might be overstated and subject to reduction. The area addressed here are attorney fees related to the personal injury claim. Medicare/Medicaid will reduce their liens by the amount of attorney fees. For instance, if attorney fees are 1/3 of the recovery, the liens will be reduced by 1/3 as well. However, like most issues surrounding Medicare and Medicaid, it is important to negotiate these reductions prior to settlement. Both Medicare and Medicaid laws dictate that they be notified prior to any settlement. They are both quite reasonable when approached prior to settlement. The process of lien reduction negotiations is significantly more difficult when initiated subsequent to settlement. This includes the reduction for attorney fees.

If Medicare and/or Medicaid are properly addressed from the beginning of the personal injury action, the reduction of the lien for attorneys fees is automatic. Failure to properly address the liens in advance of settlement can make even the legally mandated reduction of the liens for attorney fees very difficult. In addition, the settlement proceeds cannot be distributed until Medicare and/or Medicaid have been properly addressed. Distribution of the settlement proceeds prior to addressing the liens can be disastrous both for the injured client and the attorney. In the event the case has settled prior to working out the Medicare/Medicaid liens, this can be a long and difficult process. All the while, the clients funds must be held in trust and cannot be released.

Those who have suffered personal injuries must understand the importance of addressing Medicare/Medicaid liens. As stated, many are surprised and even angry that Medicare/Medicaid has asserted liens against their recovery. Many will go further forbidding their attorneys to pay the liens. Of course, this is simply not a possibility and any lawyer heeding those directions would get both the client and the lawyer in a serious financial bind. And in the end, Medicare/Medicaid will recover on their liens. The only question is whether or not the liens have been properly reduced or collected in full due to the failure to properly account for them in advance of settlement.

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

Once again, the New Mexico Court of Appeals has reinforced the public policy of making uninsured/underinsured motorist (UM/UIM) coverage a part of every automobile insurance policy issued in New Mexico. Farmers v. Xian Chen stated just that in its ruling further reiterating that alleged waivers of uninsured/underinsured coverage are to be strictly construed against the insurer.

In Xian Chen, the Chens obtained liability coverage in the amount of $100,000 per person, $300,000 per occurrence. Farmers also had the Chens sign an Uninsured Motorist Election in the amount of $30,000 per person and $60,000 per occurrence. The Election stated that the Chens had the option of purchasing greater UM/UIM coverage but the Election was not attached to the policy and was not clear as to the amount of the coverage that the Chens were giving up. Ms. Chen was involved in an accident that killed her and injured her son. The accident was caused by the negligence of an underinsured driver.

Farmers denied the underinsured coverage claims over the reduced $30,000/$60,000 limits. The court in Xian Chen called upon several prior cases in the area in refuting Farmers' position. The court first cited Romero v. Progressive to state that insurers have a duty to offer UM/UIM coverage up to the liability limits of the policy. An election to carry less than liability limits constitutes a rejection of UM/UIM coverage. The court then cited Romero v. Dairyland for the rule that a valid rejection of UM/UIM coverage must clearly and unambiguously alert the insured to the rejection of UM/UIM coverage. The court then moved on to the recent case of Marckstadt v. Lockheed Martin where two essential requirements were set forth for the rejection of UM/UIM coverage; 1) there must be a written rejection of UM/UIM and rejection to be valid must be made knowingly and intelligently, 2) evidence of the rejection must be attached to the policy, and consistent with Romero v. Dairyland, must "clearly and unambiguously call to the attention of the insured that fact that such coverage has been waived."

The Court in Xian Chen found that the Chens had not knowingly and intelligently waived UM/UIM coverage because no single document in the transaction contained all the information necessary for a "knowing and intelligent" waiver. Instead, the waiver language, the liability limits, the UM/UIM limits and the amounts rejected were scattered across several documents. For the same reason, the notification requirement in Marckstadt was not met. Due to the deficiencies in the waiver, the Chens were entitled to the full amount of UM/UIM coverage.

There are a couple of lessons to be learned from this case. First and most important, it is extremely unwise to waive UM/UIM coverage. This case perfectly illustrates the dangers of uninsured/underinsured motorist in New Mexico which has the highest rate of uninsured drivers in the nation. Driving without UM/UIM coverage is often devastating. Realistically, even the higher limits of $100,000/$300,000 did not come close to compensating Mr. Chen and his son for the loss of a wife and mother. Which brings us to the second lesson, get as much UM/UIM as you can. Related to the first two lessons, there are insurers that will do whatever they can to get you to waive UM/UIM coverage completely or take reduced UM/UIM coverage. They may do this by either by hiding the ball as was done in the Xian Chen case or they may take the more common route of just flat out convincing drivers that UM/UIM coverage is a waste of money.

Any driver facing this situation should ask themselves why the state would go through so much trouble to force UM/UIM coverage and more importantly why some insurers go to such lengths to avoid it. This should be a rather quick analytical process. Upon completion, the driver should promptly find a new agent and a new insurance company that is equally concerned with the driver's welfare as it is for its own profits.

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

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

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

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

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

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

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

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

The recent New Mexico Supreme Court case of Durham v. Guest addressed the claim of malicious abuse of process. The case is remarkable for a number of reasons. In particular, the court ruled that arbitration proceedings constitute judicial processes though it is unnecessary to initiate judicial proceedings for the claim of malicious abuse of process.

The plaintiffs, Jamie and Travis Durham, sued attorney Suzanne Guest for malicious abuse of process for the illegitimate use of subpoenas in an Underinsured/Uninsured Motorist arbitration proceeding. Guest represented the Durham's insurance company, Allstate. The Durhams alleged that the subpoenas were issued in an effort to invade their privacy, ruin their reputations, cause the loss of employment and to inflict upon them emotional distress. They alleged this malicious behavior was the result of the Durham's failure to accept Allstate's offer of settlement. The Durhams also sued Allstate for bad faith insurance practices but the court's ruling addressed only the malicious abuse of process claims.

Defendant Guest answered that malicious abuse of process requires the initiation of judicial proceedings and arbitration did not constitute judicial proceedings. The district court agreed dismissing the Durhams' claims. The Supreme Court disagreed overruling both the district court and the appellate court on both these counts stating that arbitration is indeed a judicial process but that no judicial process is required for the claim of malicious abuse of process.

The court in so ruling restated the essential elements of malicious abuse of process as follows: "(1) the initiation of judicial proceedings against the plaintiff by the defendant; (2) an act by the defendant in the use of process other than such as would be proper in the regular prosecution of the claim; (3) a primary motive by the defendant in misusing the process to accomplish an illegitimate end; and (4) damages."

The case is important for a number of reasons. First, it seems to open up possible claims against insurance companies both in litigation and arbitration for the illegitimate use of subpoenas and perhaps other discovery. Secondly, malicious abuse of process may occur in arbitration proceedings which are commonly used in consumer rights cases such as debt collections and credit card disputes where arbitration is dictated by contract. This should give consumers a pretty good weapon to protect themselves against abuse during these proceedings. Finally, the elements reach a broad spectrum of possible cases. One that comes immediately to mind is a topic that we have been addressing in the past weeks which is the filing of false domestic violence charges.

Durham v. Guest seems to be perfectly situated to address cases of baseless and malicious filing of domestic violence actions. Though prosecutors are generally protected by judicial immunity and spouses enjoy limited protection against suits by their spouses, there is no such protection for boyfriends, girlfriends, ex spouses, or other non-spousal relations that file false claims of domestic violence, whether the false charges are brought civilly or criminally.

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

The law in New Mexico regarding the rejection of uninsured/underinsured motorist coverage seems to be turned on its head in the recent New Mexico Supreme Court case of Marckstadt v. Lockheed Martin, consolidated with the 10th Circuit Court of Appeals case of Federated Insurance v. Martinez.

The case involved the purchase automobile insurance for company vehicles. An employee was injured in an auto accident and made a claim against the uninsured/underinsured coverage on the policy. There was no written rejection of the coverage and the rejection was not attached to the policy. However, the employer indicated that it was understood that the coverage was waived. The Court made no indication that its opinion was fact specific. The case should raise concerns for every purchases of insured. I will not even begin to address the problems with the possible complicity between the insurance company and the employer who no doubt saved a few bucks in the denial of its employee's rightful recovery of damages for his injuries.

The law seemed to be well established requiring a written rejection of uninsured/underinsured motorist coverage under New Mexico law to be both signed by the insured and attached to the policy. The case of Arias v. Phoenix Indemnity issued just in July 2009 said as much. So it is surprising that Marckstadt would come so quickly on its heals setting aside what seemed to be both good law and sound public policy.

Instead Marckstadt takes the rather perplexing position that rejection of uninsured/underinsured motorist converge must be written but need neither be signed nor attached to the policy. The court then stated that there should be some evidence that the insured's rejection was "made part of the policy by endorsement, attachment, or some other means that calls the insured's attention to the fact that coverage has been waived."

What in the world does this mean? Can the language be hidden in small print? Can it be written on the hand of the insurance agent? Could it be whispered in the agent's office with failure to acknowledge taken as acquiescence? In fact, it means nothing other than the insurance companies will be allowed every possible avenue for denying coverage to unwary customers. It is just one more accommodation to the insurance industry who will used every advantage to avoid payment of claims to preserve profits.

In the past, I would usually end by saying that when faced with an accident that calls your uninsured/underinsured motorist coverage into question, you would be well advised to seek the advice of a New Mexico Attorney. As the law now stands, you would be well advised to seek that attention when reviewing the insurance policy coverage limits. As a practical matter, since it seems clear that the rejection could be hidden in the vast array of documents involved in the auto insurance policy process, and therefore will be hidden, you would be well advised to write on the face of the application that you are not rejecting uninsured/underinsured coverage which may be the only possible means of recovery for your injuries. Then have your friendly insurance agent initial the statement next to your own.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

Uninsured/Underinsured motorist coverage is vitally important to New Mexico drivers. New Mexico has one of the highest uninsured motorist rates in the nation with 29% of its drivers uninsured. Many more are underinsured meaning they carry only minimal liability coverage that will fall well short of covering any injuries they cause in an accident.

Uninsured/Underinsured (UM/UIM) motorist coverage can cause much confusion for motorists. This is particularly so with stacking of UM/UIM coverage. Stacking allows the insured driver to stack the coverage on several vehicles insured under the same policy. Stacking of UM/UIM coverage may be critical to an injured person recovery of damages.

Typically, UM/UIM is covered at the same level as the liability limits on the policy. As such, if a driver carries $25,000 in liability coverage, then the UM/UIM coverage will also be at $25,000. If the driver has 3 vehicles insured at $25,000 limits, then stacking will provide for a total of $75,000 in UM/UIM coverage.

UM/UIM coverage and the stacking of coverage is automatic on auto insurance policies in New Mexico. In order to either waive UM/UIM coverage or the stacking of UM/UIM coverage, the insurance company must obtain a rejection of UM/UIM coverage from the insured driver. Likewise, the insurance company must get an agreement with the insured driver to reject stacking of the coverage on all vehicles covered under the policy. Recent decisions have added some confusion to the issue stating that though the rejection must be made part of the policy, it need not be signed. This is contrary to prior case law.

In cases of serious auto accidents, the injuries can be very severe. Often, the medical costs alone, past and future, will far exceed $25,000 in cases of serious personal injuries. In these situations, stacking of coverage alone will provide the injured person with any reasonable compensation for his or her damages. Even this at times may prove grossly inadequate.

UM/UM is relatively inexpensive to carry. To be expected, because the coverage is such a good deal for its customers, some insurance companies will often try to talk drivers out of it. They will also try to convince the driver to waive stacking coverage.

All that a driver needs to know is that there is no good reason to reject uninsured/underinsured motorist coverage. Neither is there any good reason for waiving stacking of UM/UIM coverage. Such waivers of coverage benefit nobody but the insurance company. The consequences for the driver can be devastating leaving unrecoverable damages such as past and future medical expenses, lost earnings, disfigurement and permanent injuries, pain and suffering and the like.

www.CollinsAttorneys.com

There have been a couple of recent decisions involving very large damage awards against bars for the drunken actions of their patrons. The cases fall under dram shop and premises liability laws that protect the visitors, patrons and customers of such drinking establishments. These case involved obvious dram shop and premises liability. Other cases of negligent or reckless service of alcohol may not be as obvious. This is particularly so in auto accident cases.

The Tennessee case of Maddy v. Ruby Tuesday Inc. involved a jury award of $10 million. A poorly trained 21 year old bartender had served a patron 19 beers over a three hour period. The drunken patron ended the evening by smashing a beer mug in the face of another patron, severing the victim's carotid artery. The bartender testified that she did not recall seeing any corporate training videos prohibiting the service of any customer more than three drinks in an hour.

A Texas appellate court upheld a $1.48 million verdict for damages related to a barroom brawl at the Del Lago Golf Resort & Conference Center. Much like the Tennessee case, the employees of the bar were clearly untrained or undertrained. The brawl involved a wedding party and a Sigma Chi fraternity reunion party. The problem for the defendant was that witnesses testified that the brawl had begun brewing hours before the actual fight broke out. Rather than address the problem, the bar's staff continued the heavy flow of liquor and then at the end of the evening herded both parties into the parking lot where the melee erupted.

Certainly, a bar cannot always be held responsible for the drunken behavior of its patrons. However, in cases like these where the bar actually creates the danger through the over-service of alcohol while ignoring possible dangers to other patrons, the bar will be held responsible for the damages resulting from the negligent behavior of its staff.

In fact, dram shop laws in most states, including New Mexico, require that bartenders and staff be trained to both detect and avoid the over-service of alcohol. The dangers of severe intoxication are well known, from the drunken bar brawls in these cases to the horrible DWI/DUI auto accidents that regularly result from the negligent service of alcohol at bars, restaurants and nightclubs.

The severe injuries and deaths that occur as a result of negligent bartenders and waitresses are too numerous to count. In these cases, the negligence of the bars in question are obvious. However, in cases involving auto accidents, the injured persons or their surviving family members fail to or are unable to trace the accident back to these negligent or reckless practices. In late night auto accidents, the possibility of such negligence should be explored. Due to chronic level of underinsured drivers in New Mexico, the bar that began the train of events that led to the accident may be the only possible source of financial recovery for the injured or deceased person's damages.

www.CollinsAttorneys.com

Mobile phones clearly present a danger to the driving public. Mobile phone use causes over 500,000 auto accident related injuries each year. Texting and driving can be almost as dangerous as drinking and driving. Simply talking on the phone also poses dangers which led to Albuquerque and Santa Fe banning all but hands free devices while driving.

Unfortunately, a great deal of business is conducted in cars on mobile phones every day. All varieties of business activity is conducted by mobile phone from pizza delivery to the highest levels of business. Texting is an epidemic that reaches far beyond teenagers. Perhaps just as bad, email has come to dominate the business days of many. The lure and call of texts and emails is simply too great for many to resist despite the dangers. The problem is growing worse, not better.

So too do accidents, many extremely serious or fatal, continue to grow. The technology has become so widely accepted that drivers do not appreciate or choose to ignore the dangers of texting, emailing or even talking on the phone while driving. Over 500,000 people are injured and 6000 die each year from distracted driving as a result texting, emailing or talking on the phone.

The negligent driver is clearly at fault when they cause an accident due to mobile phone use. His or her employer may also be liable under respondeat superior or agency. In fact, there are businesses that not only encourage this dangerous practice but demand it. The most obvious example, but certainly not the only, is sales where sales personnel are constantly on the move and constantly in communication with their offices, clients and prospects. Rather than discourage the practice, it is as a practical matter required for performance.

In any serious auto or truck accident, it is important to determine the what the negligent driver was doing at the time of the accident. Certainly, it should be determined if mobile phone was involved. It should also be determined if the negligent driver was acting on behalf of an employer. This includes determining not just whether the negligent driver was on the job but whether the person was engaged in activity for the benefit of his or her employer.

If the person was acting on behalf or in furtherance of an employer, the employer may have some liability for the accident. In some cases, the employer's liability may be significant. In cases of serious personal injury or wrongful death, the liability of the employer may provide the only real recovery for the injured person.

This is particularly the case in New Mexico which has a very high percentage of uninsured and underinsured drivers. New Mexico has the largest percent of uninsured drivers in the nation. Just as troublesome for those injured in auto accidents, New Mexico drivers are notoriously underinsured with the great majority carrying only minimal liability limits of $25,000. As a result, the first and often greatest challenge in a New Mexico auto accident case is finding insurance.

Fortunately, most businesses carry a variety of insurance that will kick in cases where their employees or agents have harmed others, including those involved in auto accidents. In fact, the only real coverage may come from the employer's insurance. The very business activity that caused the accident may provide the only net available to those harmed by it.

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As promised in my last post, I will set forth the issues of import for uninsured/underinsured motorist coverage in New Mexico addressed in Salaz v. Mountain States Mutual Casualty Company. The case is particular interest to injured passengers. However, the case also addresses several more general but equally important issues surrounding uninsured/underinsured motorist coverage.

First, and foremost, a passenger injured in an insured vehicle is covered by that vehicle's uninsured/underinsured motorists coverge. As such, if the other driver has insufficient policy limits to cover the person's injuries, the injured person can make a claim on the uninsured/underinsured provisions of the vehicle in which he or she was a passenger.

Secondly, there is indeed a consent to settle requirement, as asserted by Mountain States, in all uninsured/underinsured claims. In other words, an injured person must notify the uninsured/underinsured insurance provider of an offer of settlement prior to accepting the settlement. The insurance provider can conduct its own investigation to determine whether or not the underinsured driver is in fact judgment proof beyond the policy limits in his or her own coverage (i.e. has no money or assets to collect in a lawsuit). Failure to obtain consent prior to accepting a settlement will waive the uninsured/underinsured coverage.

Next, and equally important as the first two, insurance companies in New Mexico are held to a very high duty of fair dealing in dealing with their insured policy-holders. This includes class-two insureds who have no direct contractual relationship with the insurance company such as Ms. Salaz. This is particularly the case as here where the insurance company knew of the claims and the possible uninsured/underinsured coverage for the injured person and deliberately fails to notify the insured of the coverage.

Finally, and perhaps a little off message here, injured persons should recognize that there are many, not all, insurance companies or individual adjusters that will do everything they can to avoid paying the full value of claims. This is in fact what drives many injured people to lawyers. Countless injured individuals, particularly in smaller claims, attempt to work out their claims directly with an insurance company. Unfortunately, some insurance companies will view this as an opportunity to get off cheap or deny the claim completely. Some injured people just give up and accept this outcome. Others caught in this situation grow so frustrated or angry that they are forced to seek the assistance of an attorney.

Then what? You guessed it. The insurance companies cry foul, spend countless dollars on tort reform lobbying, lament the state of the legal system and the abuses of trial attorneys, and even accuse injured parties of greed for seeking the assistance of an attorney. You can bet that the insurance industry and their lobbyists had a part in designating the New Mexico Appellate Courts #5 on the tort reform list of judicial hellholes.

Thankfully, the New Mexico Courts hold insurance companies accountable time and time again leading one to conclude that hellholes are not all bad.

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