New Mexico Injury Attorney Blog

A recent New Mexico Supreme Court case once again addresses loss of consortium claims. Specifically, the Court in Wachocki v. Bernalillo County Sheriff addresses a claim for loss of consortium by a sibling.

The case involved the death of 22 year old Jason Wachocki which was caused by a speeding Metropolitan Detention Center van. A successful wrongful death claim was brought on behalf of Jason's estate. However, the loss of consortium claim brought by Jason's brother, Bill Wachocki, was denied by both the district court and the New Mexico Court of Appeals.

The basis for the loss of consortium claim was the very close relationship shared by the brother. Growing up, they had shared a bedroom and at the time of Jason's death, they had been sharing an apartment for 8 months for which they shared expenses. Bill had a close relationship sharing many activities together. Bill looked up to Jason as a role model confidante.

The Court relied upon the 2003 New Mexico Supreme Court case of Lozoya v. Sanchez.. Lozoya set forth several factors for consideration of a loss of consortium claim:

"the duration of the relationship, the degree of mutual dependence, the extent of common contributions to a life together, the extent and quality of shared experience, and . . . whether the plaintiff and the injured person were members of the same household, their emotional reliance on each other, the particulars of their day to day relationship, and the manner in which they related to each other in attending to life's mundane requirements."

The Court of Appeals determined that the brothers did not share a sufficiently close relationship as required under Lozoya. Bill's attorneys argued that the Court of Appeals improperly applied the "mutual dependence" factors set forth in Lozoya. He argued that this factor should not be applied to a sibling relationship since it was intended for spousal type relationships.

The Supreme Court disagreed with Bill's position refusing to alter the Lozoya test to fit the sibling relationship. The Court believed altering the factors would result in countless future permutations to fit an indeterminate variety of relationships in the future. The Court suggested that this would cause undue confusion on the lower courts perhaps spawning lawsuits for all manners of relationships.

Instead, the Court determined to simplify the Lozoya factors to accommodate varying relationships. Though Bill's loss of consortium claim was denied, the Court made clear that its decision was not an absolute bar to sibling loss of consortium claims. The Court held, consistent with the Court of Appeals, that the key to the analysis of loss of consortium claims is "mutual dependence" factor set forth in Lozoya.

The Court suggested that the level of mutual dependence might exist between siblings noting that unmarried cohabitants and grandparents had shown the necessary mutual dependence in past cases. Interestingly, the Court noted that most other states do not recognize sibling loss of consortium claims. The Court seemed to suggest that in New Mexico, though it is not entirely clear from the opinion, that not only might siblings meet this standard but other relationships as well.

In any event, the Court determined that though the brothers were very close, they were not mutually dependent as required under Lozoya. Unlike spouses, unmarried cohabitants, grandparents, though they had a close emotional attachment and shared expenses, this did not meet the level of mutual dependence to support a loss of consortium claim

Collins & Collins, P.C.
Albuquerque Attorneys

Businesses often wine and dine clients and potential clients for business development and marketing. The wining part of the equation will on occasion lead to some pretty disastrous consequences. The recent New Mexico Supreme Court case of Delfino v. Griffo addressed the responsibility for these consequences under the state's liquor liability laws (otherwise known as dram shop laws).

New Mexico's dram shop liability laws have been long established. Under the dram shop provisions of the Liquor Liability Act, restaurants, bars, hotels and the like have routinely been held responsible for injuries and other damages resulting from over serving patrons whuch often come in the form of DWI auto accidents. The Act also addresses social hosts such as individuals serving alcohol in their homes. The Delfino case stretched the definition of "social host" to include businesses that entertain clients or associates with alcohol.

Delfino involved several pharmaceutical representatives who wined and dined Alicia Gonzales, a female employee of doctor's office, for 8 hours jumping from one bar and restaurant to the next as the Ms. Gonzales became more and more intoxicated. In the end, they gave her a pat on the back, put her in her car and sent her off to collide with a family resulting in the wrongful death of a seven year old boy and badly injuring the other occupants in the car.

The defendant pharmaceutical companies and their employees all claimed and successfully argued at the district court level that the definition of "social host" applied only to the service of alcohol in private settings. The district court agreed that "social host" could not apply to alcohol served in a liquor establishment. Effectively, the district court would have limited liability to the bars and servers of alcohol despite the true source and purpose of the alcohol.

The New Mexico Supreme Court disagreed following the law in numerous other states that hold liable not only the server of alcohol but also the person or in this case the company representatives who purchase the alcohol. The Court stated "We conclude that the Liquor Liability Act permits a cause of action against a social host who recklessly provides alcohol to a guest when the alcohol is consumed in a licensed establishment."

The Court agreed with the plaintiff's argument that these settings give "special control over their target business related guest..." In other words, the whole point of the exercise is to get the person intoxicated which in this case was quite successful. Ms. Gonzales got in her car over twice the legal limit of alcohol and 14 minutes later killed a young child.

The Delfino case is remarkable as much for the ruling that holds businesses and corporations responsible for long established and dangerous marketing practices as for the fact that each and every one of the three corporate pharmaceutical companies and their employees attempted and were first successful at evading completely their responsibility for the tragedy caused by those practices.

This evasion of responsibility for harms to the innocent is repeated time and time again by corporations each and every day, and as often as not, they are successful. And for holding them responsible, New Mexico has been labeled a judicial hellhole by the U.S. Chamber of Commerce and the American Tort Reform Association. That should tell you all you need to know about corporate responsibility.

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

The 10th Circuit case of Willis v. Bender addressed a doctor's duties to disclose the doctor's background information to a patient as part of informed consent. Lack of informed consent is often an element in medical malpractice claims in New Mexico particularly in surgical procedures.

Under New Mexico law, informed consent does not typically require that a physician provide the patient with the doctor's background information even matters related to competence. The courts reason that such a duty would require the disclosure of large amounts of information not necessarily relevant to the patient's medical decision-making.

However, the 10th Circuit Court of Appeals (Wyoming) in Willis v. Bender addressed a situation where the patient explicitly inquired into the doctor's background, and the doctor provided false and misleading information in response to the patient's inquiry. The Court found that in this case, a failure to provide honest and truthful answers to the patient's questions violated the patient's right and the doctor's duty of informed consent.

Willis v. Bender involved a laparoscopic cholecystectomy, laparoscopic surgery to remove Ms. Willis' gallbladder. Ms. Willis had several prior surgeries in her abdominal area causing significant abdominal scarring and adhesions. Due to the scarring and adhesions, the doctor who performed two of the prior surgeries advised Ms. Willis that future surgeries should be performed with an "open" rather than "closed" procedure.

During the consults leading up the surgery with Dr. Bender, Ms. Willis discussed the need for a closed procedure due to the scarring. Ms. Willis asked a number of questions of Dr. Bender regarding his qualifications for the procedure, his past history of such procedures, his success rate, past medical malpractice complaints and prior issues with his license. She also requested that Dr. Bender consult with her prior doctor prior to moving forward with the closed procedure.

Dr. Bender assured Ms. Willis that he had never had a medical malpractice complaint, had no prior issues with his license, that he had a 99.9% success rate with this type of procedure and that he had discussed the procedure with her prior doctor suggesting the two had agreed on the proposed approach to the surgery. In fact, Dr. Bender had had a several prior medical malpractice claims, one involving a wrongful death action resulting from a the death of a patient following a laparoscopic cholecystectomy. In addition, Dr. Bender had past actions against his license by the Wyoming Board of Medicine. Perhaps worst of all in light of the facts, Dr. Bender had never contacted Ms. Willis' prior doctor to consult regarding the risks of the proposed closed procedure.

Unfortunately, the closed procedure did not go well due to the existing scar tissue. There were several surgical and post-surgical complications including a bowel perforation and a resulting bowel obstruction, ileus, and severe infection.

The 10th Circuit recognized that a doctor generally has no duty to disclose background information. However, the court stated, "Under these circumstances, if proved, her consent can hardly be considered "informed."" As a result, the Court reversed the District Court's summary judgment in favor of Dr. Bender.

Willis v. Bender raises some important issues. As seen in previous posts, hospitals and surgery carry an alarming level of risks. Patient's are advised "Protect Thyself" by taking measures to protect themselves from harm. In light of the lack of an affirmative duty on the part of the physician to disclose relevant background information, a patient should ask the questions. In the great majority of cases, the doctor will respond honestly. However, in those rare situations where the doctor is not honest, the patient will have some recourse for the misrepresentations assuming New Mexico follows the lead of the 10th Circuit Court of Appeals.

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Auto accidents are among the leading causes of death of teenagers and young adults (ages 15-24) in New Mexico. Youth, drinking and driving is a lethal mix with often lethal consequences. The DWI/DUI laws and underage drinking laws in New Mexico are very strict to avoid the tragedy of youthful DWI/DUI accidents.

There are strict laws against underage drinking including felony charges for providing alcohol to underage drinkers. These penalties can be particularly harsh for service of alcohol to minors. However, despite these laws, minors often manage to obtain alcohol as a result of negligent or reckless bartenders, hosts, clerks or cashiers. Unfortunately, this negligence or recklessness can result in catastrophic injury and sometimes wrongful death.

Fortunately, New Mexico law holds these individuals and entities accountable for the damages caused by their negligence under dram shop laws, social hosts laws, and criminal laws designed to protect individuals from such behavior.

A recent case in California illustrates the law, the possible harm, and the potential recovery for injuries arising out of dram shop or negligent social host situations. The case of Apodaca v. Bradley involved two 20 year olds, Joshua Apodaca and Sean Patrick Bradley, who were served alcohol at a Sonoma County winery during a wedding reception, and then again at convenience store following the reception. The two were served alcohol at the wedding reception despite failing to present identification. Even more remarkably, they were later sold alcohol by a convenience store again with no identification which they then consumed in the store's parking lot.

Bradley who was driving crashed his car into a rock wall as the two travelled home. Apodaca suffered closed head traumatic brain injuries. Apodaca's brain injuries led to severe and permanent cognitive and motor deficits.

Unlike New Mexico, apparently California does not have formal dram shop laws. Instead, the lawsuit was brought under specially enacted laws to address teenage DWI/DUI. The result was a $3.1 million settlement. The winery contributed policy limits of $3 million under its insurance policy. The parents of Bradley contributed their policy limits of $100,000. Bradley himself contributed $5000.

The $3.1 million can never fully compensate Apodaca for all of the damages associated with his severe traumatic brain injury. Apodaca will likely suffer a lifetime of pain and suffering, loss of enjoyment of life, and permanent mental and physical limitations. The loss of income and earnings over his lifetime associated with his injuries are hard to calculate due to his youth. Rest assured, however, even a moderate income over his working life would approach the value of the settlement.

Instead, the bulk of the settlement proceeds will go toward a lifetime of medical care and expense for Apodaca. There will likely be little left to address his remaining damages. Unfortunately, this is often the reality of auto accidents, where there is inadequate insurance to compensate injured persons. In New Mexico, a $3.1 million settlement in an auto accident is extremely rare due to the high level of uninsured/underinsured motorists in the State. Though the settlement cannot possibly compensate Apodaca for his injuries, it is far better than the outcome in most DWI/DUI accidents where there simply is no insurance or financially responsible party to compensate the accident victim other than his or her own uninsured/underinsured motorist coverage.

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Construction accidents can be devastating. They are generally far more serious than other workplace injuries. Often times, unlike run of the mill workplace accidents, construction accidents result in permanent injuries and even death.

Workers compensation laws, including those in New Mexico, presumably drafted to protect workers instead generally place a grossly inadequate cap on the amount and types of damages that can be recovered for a workplace accident. The statutes are really for the protection of the employer, not for the employee. Workers compensation statutes protect the employer from any claims of negligence though the cause of workplace accidents is often the result of unsafe work environments, inadequate training, unsafe and unqualified co-workers, dangerous and poorly maintained equipment and a hosts of other preventable causes. In essence, the employer is shielded from any liability for the worker's injuries and damages except in the most extreme cases of recklessness.

In order for an injured worker to recover for what in a construction accident could be catastrophic injuries or death, the worker must identify a third party beyond the employer that is responsible for the accident.

In a recent case in Texas, the attorney did just that. The case is very interesting for a number of reasons not the least of which was the $11 million jury verdict in favor of the deceased construction worker. Perhaps, more interesting from a legal perspective, was the plaintiff attorney's ability to tie liability to the employer's parent company escaping the limitations of the worker's compensation statutes.

Because the deceased plaintiff's estate was barred from suing his employer, the attorney ingeniously argued that the defendant's (Gulf Marine Fabricators) parent company (Gulf Island Fabrication) was responsible for the plaintiff's death. The attorney did admit to the jury that there was some fault lying with the employer, but argued that the parent company carried the bulk of liability for the crane accident which resulted in the plaintiff being crushed to death. The jury assigned only 15 percent liability to the employer. The remaining 85% liability accounted for the $11 million wrongful death jury verdict.

The plaintiff's attorney was able to show that the parent company and not the employer controlled the crane operations. The parent company controlled every aspect of the crane operations from hiring and firing to daily operations. Oddly, but by necessity, the defense attempted to place all the blame on the employer, a related company, to gain the protective shield of the workers compensations statutes.

The fact that a defense attorney would attempt to place blame on a company related to his own client clearly illustrates the reality that workers compensation statutes should really be called employer protection statutes. These statutes have sad and tragic consequences for workers and their families. Neither the worker nor his or her family will recover anything close to actual damages in cases of serious injuries or wrongful death. It takes little imagination to envision the economic harm, let alone the pain and suffering, that occurs when a worker is permanently injured or killed.

Unfortunately, the workers compensation statutes are here to stay. As such, if you or a loved one are injured or killed on the job, it is important that all possible causes of the accident be determined. It may very well be that the workers compensation statutes can be avoided by identifying third party liability for the accident. Or as the ingenious lawyer in this case was able to do, tie the liability to a related corporate entity not protected by the worker compensation statutes.

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It seems that juries across the country are equally appalled by nursing home abuse and neglect as they are in Albuquerque. An Albuquerque jury recently dinged ResCare, Inc. and ResCare New Mexico for $54 million for nursing home neglect and abuse. Notably, the punitive damages awarded against ResCare approached $50 million.

The ResCare case involved the rape of a severely disabled man by a staff member. The recent case out of Brooklyn involved severe neglect that led to extremely serious bedsores all over the injured patient's body. In addition, after only 9 months in the facility, John Danzy's weight had dropped right at 90 pounds to 147 pounds. Despite transfer to another facility, Mr. Danzy later died as a result of the infections.

It took the jury 2 days of deliberation to reach a verdict of $19 million in total damages against the facility in favor of Mr. Danzy's estate. Much like the ResCare verdict, the bulk of the damages were punitive in nature. The jury awarded $15 million in punitive damages for the facility's cover up of its neglect. The plaintiff was able to establish through expert testimony that the facility had gone back and doctored the file in an attempt to cover up the onset, duration, and aggravation of the bed sores as a result of ongoing medical neglect.

The plaintiff's attorneys believed as did the jury that the nursing home had gone back and altered the records once it was apparent they were facing a lawsuit. The jury sent a message to the nursing home industry, and the medical profession as a whole, that attempted evasion of responsibility for medical or nursing home neglect will not be tolerated. This same message was sent in the ResCare case where the defendant denied responsibility to the bitter end. The case of Mr. Danzy was even more appalling where not only was responsibility denied, the facility actively concealed its medical neglect through the alteration of medical records.

It is interesting that the New Mexico verdict was almost 4 times the New York verdict. It is a good sign for New Mexico nursing home plaintiffs with serious claims of nursing home abuse and neglect. This is particularly so in light of New Mexico's appellate courts reluctance to overturn punitive damage awards, as illustrated in Jolley v. Energen. The court there stated that the punitive damages award would not be overturned unless it was so unrelated to the plaintiff's injuries as to "plainly suggest passion and prejudice over reason and justice." This gives the plaintiff a lot of bargaining room when it comes time for negotiating the settlement during the inevitable appeals that follow such awards in New Mexico.

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The family of a worker killed in a construction accident in Texas reached a settlement with the contractor and subcontractors in a wrongful death lawsuit for the seemingly low amount of $440,000.00. The low number probably suggests issues of comparative fault on the part of the deceased worker and his employer.

Luis Lara was a 23 year old construction worker. He was working on a construction job site in Mesquite, Texas, just outside of Dallas, where workers were lifted to upper floors of the job site with a forklift. As he was being lifting in a box by the forklift, the box tipped from the forklift sending him falling 2 stories to the ground where he hit a metal beam. He was pronounced dead at the scene.

The family sued both the contractor and the subcontractors for Mr. Lara's wrongful death. It was alleged that the contractor CME Builders and the subcontractors, Frontier Framing and Associated Truss & Lumber, used the forklift in a negligent manner contrary to the equipment's instructions as well as construction industry safety regulations. Past negligence and OSHA citations by Frontier Framing bolstered the claims of negligence against the defendants.

The defendants argued comparative negligence on the part of Mr. Lara which probably played a role in the relatively low wrongful death award of only $440,000.00. The injuries and damages to Mr. Lara and his family probably far exceeded this amount. Mr. Lara's estate was entitled to recover for the wrongful death itself. The loss of life alone suggests a much higher settlement or jury verdict absent issues of comparative negligence.

In addition, because Mr. Lara was only 23 years old, and had his full work life ahead of him, the lost future earnings could far exceed the amount awarded. In the case of such a young worker killed on the job, the lost earnings over the remaining work life of Mr. Lara would likely exceed the million dollar mark unless he was a low paid laborer with little future earnings potential.

Lost earnings are typically calculated by expert economists that project the worker's remaining life-long earnings based upon his current age, position, past work history, educational level, industry wages and potential earnings along with other considerations to arrive at the estimate of lost future earnings. These numbers can be enormous in the case of young workers, particularly those in high paying fields such as construction.

The relatively low settlement amount suggests that Mr. Lara's earnings were not on the high end of the construction idustry. In addition, the settlement amount suggests a significant level of comparative fault on the part of Mr. Lara. Finally, there were likely other comparative fault issues that arose as a result of worker compensation limits if Mr. Lara's employer was found even partially at fault for his wrongful death due to strict limits on employer liability under workers compensation statutes.

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

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

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

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

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

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

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

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

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New Mexico is a comparative negligence state. As a result, it is possible for someone involved in an auto accident to recover damages even if he or she is partially responsible for the accident.

This is in stark contrast to those states that follow contributory negligence rules. Contributory negligence doctrine precludes a driver from recovering anything for his or her injuries for even minor negligence. The contributory negligence model has very harsh and unfair results since minor negligence is present in almost every accident. Contributory negligence doctrine also encourages insurance companies to fight liability even where their driver is clearly responsible for the accident. There is a big payoff for a finding of contributory negligence since it excludes recovery where any contributory negligence is found.

Fortunately, New Mexico follows the much fairer comparative negligence model. Under comparative negligence, the injured party must still prove liability or fault on the part of the other driver. However, some minor negligence will not completely preclude recovery. Instead, the law will apportion fault to the parties. Any damages will be reduced by the percentage of fault attributable to the injured party.

For example, if the injured party proves $10,000 damages and it is show that he or she is 50% responsible for the accident, then the total recovery will be reduced by 50% to $5000. This doesn't seem like much but in cases involving extraordinary damages, the recovery can be quite large even after the reduction for comparative fault. For instance, if the case involves permanent injuries or even death, the damages can be very large so that even with a 50% reduction in damages, the settlement or judgment can be substantial.

A wrongful death action can result in damages well in excess of a million dollars. Depending on the circumstances, the damages can rise to the millions. Under a contributory negligence model, the injured party or the estate would be prevented from recovering any damages at all if there was the presence of any contributory negligence. Under the comparative fault model, the injured party or the estate would recover reduced but still significant damages.

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Dram shop lawsuit in results in $1 million damages verdict against a bar that served the intoxicated driver that struck and killed a bicyclist while returning home from the bar. The driver, Melissa Arrington, had been drinking at Berky's bar prior to the accident. At the time of the accident, Ms. Arrington was driving while intoxicated with a breath alcohol level of .15, almost twice the legal limit.

The parents of Paul L'Euyer brought the suit under the wrongful death statute on behalf of their son. The suit was filed in Tucson against both Berky's Bar and Melissa Arrington. The suit against Berky's was brought under the state's dram shop laws that are common in many states, including New Mexico. Dram shop laws hold bars, taverns, and restaurants liable for serving intoxicated persons who later injure innocent parties.

The lawsuit also named Melissa Arrington individually. Ms. Arrington was later convicted and sentenced to 10.5 years for vehicular homicide. Despite her undisputed liability, her insurance company was able to settle on her behalf for only $25,000.

The case raises several important points. First, bars and restaurants are liable for negligently serving alcohol to intoxicated persons who are later involved in accidents or even intentional torts. The damages against bars and restaurants can be substantial as was the case in the case of Berky's who has since closed its doors.

The case also illustrates the issue of underinsured motorists. Ms. Arrington, who is now in prison, carried only $25,000 in liability coverage, the statutory minimum insurance liability policy limits in most states, including New Mexico. If not for the insurance of Berky's, Mr. L'Euyer's parents would likely have recovered only $25,000 for their son's death. Sadly, a lawsuit simply would not have been feasible in light of Ms. Arrington's minimal insurance coverage.

Though the news accounts do not address whether Mr. L'Euyer carried uninsured and underinsured insurance coverage, had Berky's not been in the chain of negligence, Mr. L'Euyer's total recovery would have been only $25,000. Over 1 in 6 motorists nationally are uninsured. Greater percentages are grossly underinsured. The rates are even higher in New Mexico which leads the nation in uninsured motorist at 29%.

The fact is if you are involved in an car or automobile accident in New Mexico, the other driver will likely be uninsured or underinsured leaving you and your family to bear the costs of the accident, injuries, and the loss of income on your own.

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An apology works in medical malpractice claims in 35 states. In fact, the "Sorry Works" program has been put into legislation in 35 states. Unfortunately, New Mexico is not among them. Instead, New Mexico often takes same hard-line on medical malpractice against its states facilities and other medical providers. It is not quite as harsh as the no settlement policy that former Albuquerque Mayor Martin Chavez took in police misconduct cases. But it is equally costly to the state.

The power of an apology in medical malpractice claims, the foundation of the "Sorry Works" program, is illustrated by the recent settlement of a lawsuit filed against Rhode Island hospital by Oscar-nominated actor James Woods for the wrongful death of his brother. Of course, the apology came in the 4th week of trial. But when it came, the case quickly settled. The hospital finally apologized, acknowledged its wrongdoing, and agreed to start an institute in the name of the famed actor's brother. The institute will of all things work toward the prevention of human errors in hospital care.

In addition to the apology, the Woods family received an undisclosed financial settlement. Michael Woods died of a heart attack at 49 years old after going to the ER for a sore throat and vomiting. The Woods family claimed the hospital did not provide adequate or sufficient care to prevent his avoidable death.

Interestingly, Rhode Island is not among the states that have adopted "Sorry Works" legislation. Perhaps had they adopted the legislation, the apology would have come much sooner avoiding the costs and hardship associated with litigation on both the Woods family as well as the doctors and staff of the hospital. After all, Mr. Woods died in 2006. Did the hospital administrators really just now discover in a moment of enlightenment that their doctors and staff had done something wrong? And to boot, decide that they would create an institute toward avoiding errors similar to those newly discovered errors in flash of enlightenment? It's not likely. Instead, they likely saw the trial headed south, and they wanted to avoid a catastrophic verdict. The Woods lawyers likely understood this as well. Yet the apology still brought a quick resolution to the case.

The "Sorry Works" movement has grown rapidly over recent years. The program recognizes that often what a family or victim needs most is recognition of their injuries and acknowledgement of a wrong committed, along with fair compensation for their injuries. This means acceptance of responsibility and liability for the negligent actions and the damages they cause. Instead, many hospitals and doctors take the opposite approach much like Albuquerque's mayor which is to admit no wrong, and settle nothing without a fight.

Where there is truly wrongdoing and injury, this approach is devastating to the victim and financially disastrous for the state's medical providers as they end up paying in the end. The only beneficiaries of this approach are the defense attorneys who feed at the trough of governmental legal defense.

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