Articles Posted in Personal Injury

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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 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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A 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

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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

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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.

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It can be very important for litigants asserting personal injury and wrongful death claims to have their day in court.  Arbitration agreements can cut off the right of access.  In a ruling in favor of a New Mexico skilled nursing facility, a federal district court recently upheld an arbitration agreement following the filing of a state court lawsuit for wrongful death against the facility.

The litigation commenced after a woman who was a resident at an Albuquerque, New Mexico facility from March 4 to March 8, 2016 died from complications of untreated diabetes.  Allegedly, the woman had designated another woman as her attorney in fact on May 24, 2014 and on March 5, 2016 the woman who had been designated signed a resident admission agreement on behalf of the woman resident in the facility that included an arbitration agreement.  After the resident died, a personal representative of her estate and her brother filed a New Mexico state court complaint seeking damages for her wrongful death.  The facility where the deceased had been resident filed a separate lawsuit in New Mexico federal court to compel arbitration of all matters related to the care and treatment that the resident had received at the facility.

The court’s analysis was very friendly to the facility, citing for example U.S. Supreme Court language from another case that the Federal Arbitration Act (FAA) articulates a strong national policy in favor of arbitration and establishes that any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.  The court explained that, under the FAA, arbitration agreements are on equal footing with other contracts, and that the court was to determine whether the parties agreed to arbitrate the dispute at issue.

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Though parties to personal injury litigation in American federal courts have broad discovery rights, certain materials are protected in the discovery process including those that are subject to the attorney-client and work product privileges.  In a recent case, the United States District Court for the District of New Mexico granted in part a motion for a protective order brought by an insurance company defendant.

The case arose after an insurance company denial of coverage.  A woman was involved in a New Mexico motor vehicle accident with an unknown driver, following which she made a claim with her insurance company for uninsured motorist (UM) coverage.  The insurance company denied coverage, taking the position that its insured was 100% at fault for the accident.  The insured driver then sued for UM benefits and punitive damages and a jury found the UM driver 100% at fault and awarded the insured driver damages.

Thereafter the plaintiff sued her insurance company for breach of contract, bad faith, negligence, and unfair practices for the insurance company’s failure to pay the claim, including paying the jury verdict, and for its handling of the claim through the underlying lawsuit.  The insurance company paid the jury verdict and sought a protective order with respect to discovery sought by the plaintiff.

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The U.S. District Court for the District of New Mexico recently ruled against a plaintiff in a New Mexico wrongful death suit that was based on a successive entrustment theory of liability.  The ruling came in the context of resolving a motion for summary judgment brought by one of the defendants, a company that had an independent contractor agreement with one of the individual defendants pursuant to which she was operating a truck to transport cargo.  Allegedly in violation of the agreement, the driver picked up her father as a passenger, who went on to drive the truck and cause an accident resulting in the death of her employee who was asleep in the truck’s bunk bed when her father lost control of the truck.

The mother of the deceased employee, as personal representative of his estate, sued her son’s employer, the employer’s father, and the company that had leased her son’s employer the truck.  She sued in New Mexico state court and then the lessor of the truck removed the case to federal court.  The lessor brought a summary judgment motion.  Resolution was to be based on New Mexico law because the underlying truck accident occurred in New Mexico.

The lessor defendant argued to the federal district court that the driver of the truck at the time of the accident was not its employee under the Federal Motor Carrier Safety Regulations; that it was not negligent in its own right for its training of its independent contractor who had entrusted the truck to her father, and that it should not be held liable for the successive entrustment of the truck by its independent contractor to her father.  The court accepted these arguments reasoning that the driver at the time of the accident was not an employee and there was no evidence that the alleged lack of training by the lessor of the authorized driver of the vehicle contributed to the entrustment of the vehicle. Reviewing New Mexico state law, the court also concluded that New Mexico does not recognize a cause of action for negligent entrustment based on multiple, successive entrustments.

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