A New Mexico federal court recently ruled that a homeowner’s insurance policy did not cover a dog bite occurring outside of the homeowner’s premises.  A woman was injured after she took two dogs out for a walk on a leash.  She and the leashed dogs were allegedly attacked outside of their home in Albuquerque by two American Pit Bull Terriers who lived with their owners about 2.7 miles away.  The attack resulted in the woman sustaining bodily injuries and her husband experiencing injury in the form of a loss of consortium.

The injured parties sued their neighbors in New Mexico state court, and the neighbors’ insurance company defended the neighbors under a homeowner’s insurance policy.  The insurance company then initiated proceedings in New Mexico federal court, seeking a declaration that it was not required to defend or indemnify its insureds in that suit, a dog bite case.

To resolve the dispute, the federal court reviewed the terms of the insurance policy at issue and the parties’ competing positions on availability of coverage.

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A New Mexico federal district court recently dismissed a personal injury lawsuit against a foreign car maker for lack of personal jurisdiction.  The underlying case arose after an accident allegedly causing catastrophic physical injuries.  A woman was driving a car in New Mexico when she was struck by another vehicle causing the vehicle she was in to roll.

A lawsuit was brought on her behalf and on behalf of her husband against the maker of the car the injured woman was driving in the First Judicial District Court of the State of New Mexico, County of Santa Fe.  The plaintiffs sought an award of punitive damages based on causes of action including strict products liability, negligence, breach of an implied warranty, and loss of consortium.  The defendant car maker filed a notice of removal, pursuant to which the case was removed from state court to the United States District Court for the District of New Mexico.

Initially the defendant sought dismissal based on allegedly improper service of process and lack of personal jurisdiction.  The defendant then withdrew its argument for dismissal based on improper service, resulting in the question of whether there was personal jurisdiction over the defendant being the sole issue for adjudication by the court.
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The United States District Court for the District of New Mexico recently ruled against an insurance company, and in favor of the wife of a man who was killed when the motorcycle he was driving was hit by a car.  The motorcyclist sustained fatal physical injuries while driving down San Mateo Blvd NE in Albuquerque, New Mexico after the driver of an automobile made a left turn resulting in a collision.  The driver who struck the motorcyclist was insured, and his insurance company provided a defense when the wife of the deceased motorcyclist sued the driver in state court on behalf of her husband’s estate and on her own behalf for loss of consortium. The parties’ settlement talks allegedly hit an impasse when they could not agree on the policy limit of the automobile driver’s insurance policy, which resulted in the insurance company bringing a declaratory action in federal court to resolve the issue.

The parties agreed that the insurance policy had a limit of $100,000 per person and $200,000 per accident.  The insurance company argued that even though the wife of the deceased motorcyclist asserted claims on his behalf as well as on her own behalf for loss of consortium, there was a physical injury to one party only and the so the per person limit applied.  The wife of the deceased motorcyclist asserted in response that there were two bodily injuries, hers and her husband’s, so the higher per accident insurance policy limit of $200,000 applied.

To resolve the dispute over the extent of coverage under the insurance policy the district court applied New Mexico law, which resolves disputes over insurance policies by interpreting their provisions in accordance with the same principles that govern the interpretation of contracts.  The court explained that, under the controlling law, when policy language is clear and unambiguous, courts must give the contractual language effect and enforce the insurance policy as written.

A person whose truck was stolen sought compensation in New Mexico state court from his automobile insurer on the basis that the theft constituted property damage under the uninsured motorist provisions of the parties’ contract.  The insurance company removed the lawsuit to federal court and filed a motion to dismiss, which the court granted.  In arriving at its conclusion that the insured’s case should be dismissed, the court accepted the insurance company’s construction of the uninsured motorist provisions of the contract between the insurance company and its insured.

The federal court deciding the motion to dismiss determined that it was tasked with predicting how New Mexico’s Supreme Court would decide the dispute under New Mexico’s Uninsured Motorist Act.  As a decision had not yet been made on the issues at that level, the federal court looked to legislative intent and rulings by other courts.  It concluded that the legislative intent was to protect the public from culpable underinsured motorists and that the phrases “injury to or destruction of property” and “property damage” do not ordinarily include theft.

The court observed that the insured plaintiff was correct that the New Mexico Supreme Court had liberally construed New Mexico law in favor of insureds.  The court rejected the insured’s position he was covered based on concerns the court expressed, including that accepting the position would in effect add a requirement that the New Mexico legislature could have but purportedly had not enacted – that every automobile liability insurance policy in New Mexico provide coverage for auto theft.
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A federal district court recently granted a motion for judgment on the pleadings filed by the defendant in a New Mexico wrongful death case.  The court concluded that New Mexico law does not impose a duty to refrain from selling gasoline to an allegedly intoxicated driver, and it dismissed a negligent entrustment claim.  The court gave the plaintiff 14 days to address the court’s skepticism with respect to the plaintiff’s negligent hiring, training, and supervision claim, which the court understood to be predicated on the same legal duty as the negligent entrustment claim.

Underlying the ruling was a fatal accident that occurred after a person working at a store sold gasoline to a person who was allegedly visibly intoxicated.  The representative of the person who was killed in the accident caused by the allegedly intoxicated driver sued the store whose worker sold the gasoline for negligent entrustment based on the sale of gasoline, and for negligent hiring, training, and supervision of the employee who sold the gasoline.

The personal representative filed a case in the District Court of the Navajo Nation in Crownpoint, New Mexico.  The case was met with a successful summary judgment motion premised on a time bar under the Navajo Nation’s two-year statute of limitations for personal injury claims.  The plaintiff appealed the ruling to the Navajo Nation Supreme Court and, while the appeal was pending, filed a wrongful death lawsuit in New Mexico state district court, which the defendant removed to the U.S. District Court for the District of New Mexico.

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The Court of Appeals of New Mexico recently reversed the dismissal of a personal injury case brought by the parents of a child who had been injured in a school-sponsored sports program.  The parents alleged that, when their son was 12 years old and a student at a New Mexico middle school, he joined the wrestling team sponsored by the school.  He had allegedly never before participated in a school-sponsored sports program before joining the wrestling team.  The parents further alleged that on the day of the accident, which was the first day of practice, the boys who were participating were allowed to engage in a game called “king of the mat.”  The game’s object was to score take down points and the minor was allegedly taken down on his neck forcefully enough to injure his cervical area by an older, stronger boy with at least one year of wrestling experience.

Following the trial, a jury found in favor of the defendants, a group which included the school district, the principal and athletic director, and the two coaches who were onsite on the day of the accident.  On appeal the plaintiffs asserted that the district court had erred in refusing to admit into evidence certain exhibits including excerpts from the school district’s policies and personnel manual and an excerpt from the school district’s athletic handbook.

The Court of Appeals applied an abuse of discretion standard in reviewing the exclusion of evidence.  The court explained that an abuse of discretion occurs when a ruling is clearly contrary to the logical conclusions demanded by the facts and circumstances of a case.  The court explained further that the party challenging on appeal the exclusion of evidence must show that the erroneous exclusion was prejudicial.  The appellate court then reviewed what had occurred at the trial court level with respect to the exhibits at issue.
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ruling handed down earlier this year shows that New Mexico personal injury lawsuits can be difficult for an individual to prosecute without having the benefit of experienced counsel.  As the ruling explains, a litigant needs to pay court filing fees or achieve leave to proceed without paying fees, the litigant’s complaint needs to state a claim under applicable law including a basis for the court’s exercise of jurisdiction, and the complaint needs to be served on defendants.

The court’s ruling followed the filing of a complaint by a plaintiff acting pro se, a term referring to an individual acting on his or her own behalf.  The plaintiff sued a supermarket chain, alleging that he fell and injured himself because the defendant had failed to remedy a foreseeable hazard.  The plaintiff further alleged that but for the negligence of the supermarket chain in failing to keep its premises safe, the plaintiff would not have fallen and exacerbated his pre-existing conditions.  The plaintiff also alleged that the inactions of the defendant’s management were the proximate and direct causes of the injuries he had sustained.

The plaintiff filed an application seeking to proceed without paying fees or costs, referred to as an application to proceed in forma pauperis.  The court granted the motion based on the plaintiff’s alleged inability to pay, which the plaintiff documented in an affidavit.  The court also took the opportunity to explain what needed to happen before the plaintiff could proceed with his lawsuit.
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Personal injury lawsuits brought in New Mexico typically proceed on the basis that they will be heard by a jury.  Recently a New Mexico federal court granted a motion to compel arbitration brought by a defendant and stayed the plaintiffs’ personal injury lawsuit pending the completion of arbitration.

Allegedly, the plaintiff had been employed as a maintenance engineer in an Albuquerque store of a national retail chain.  While he was at work he was electrocuted and, as a result, fell off of a ladder, causing him to sustain injuries.  The injured employee and his wife sued the store and two managerial employees in the Second Judicial District Court of the State of New Mexico, County of Bernalillo.  Their complaint asserted causes of action for negligence and negligence per se, loss of consortium and conspiracy and sought to hold the defendants jointly and severally liable.  The complaint sought both compensatory and punitive damages.

After being served with the complaint the national retail chain that had employed the plaintiff at the time of the accident removed the lawsuit from state court to federal court.  It then moved the court to compel the plaintiffs to arbitrate their claims against it. Continue reading

Typically it is the defendants in a New Mexico personal injury case that move for summary judgment, arguing that they are entitled to judgment as a matter of law.  In a recent case, a New Mexico federal trial court ruled on a summary judgment motion brought by a plaintiff injured in Albuquerque. The court denied the plaintiff’s opposed motion for summary judgment on the issue of liability, concluding that there were factual issues that should be decided by a jury.

The plaintiff alleged that he was severely injured by a May 1, 2014 shooting and carjacking in the parking lot of a national drug store chain.  The evidence before the court showed that, prior to the plaintiff being severely injured, in the period between April 17, 2011 and May 1, 2014, the Albuquerque Police Department had responded to 298 police calls at the defendants’ Albuquerque location in which the plaintiff was injured.  Police reports reflected break-ins into and theft of automobiles on the defendants’ premises in which the plaintiff had been injured, as well as aggravated assaults and robberies on the premises. Continue reading

An important part of a personal injury case can be determining the physical condition of the plaintiff. A New Mexico federal trial court recently decided an insurance company defendant’s motion seeking an independent medical examination of the plaintiff.  The court tried to balance the parties’ rights because there were several points of disagreement including duration and scope and, ultimately, granted the motion in part and denied it in part.

Allegedly the plaintiff, who was a passenger in the bed of a pick-up truck on the day of the accident, suffered serious and permanent injuries after the truck she was in rolled off a washed-out dirt road.  She sought to recover damages from an insurance company on the basis of failure to pay underinsured motorist insurance benefits that she alleged were due to her.  Her lawsuit included claims for breach of the duty of good faith and fair dealing, breach of fiduciary duty and violation of the New Mexico Unfair Insurance Practices Act and the New Mexico Unfair Practices Act.  The insurance company defendant responded by, among other things, seeking a court order requiring the plaintiff to undergo an independent medical examination with no restrictions under Federal Rule of Civil Procedure 35.

Under Rule 35, a federal court may order “a party whose mental or physical condition . . . is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner.” Fed. R. Civ. P. 35(a)(1). The Rule tries to balance the rights of parties as its provisions reflect.  For example, court orders under the Rule “may be made only on motion for good cause and . . . must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.” Fed. R. Civ. P. 35(a)(2). Under cases construing the Rule discussed by the court, the party requesting the examination must show that the physical or mental condition of the party to be examined is in controversy and that good cause exists for the examination.  Additionally, the court explained that the showing of good cause is to be a greater showing than that under other discovery rules because a mere relevance standard would render the good cause requirement meaningless.  The court also explained that, while Rule 35 of the Federal Rules of Civil Procedure should be construed liberally to allow discovery, how it is to be applied in a particular case is within the “sound discretion” of the court.