Articles Posted in Personal Injury

In a recent case, an insurance company brought an action in a New Mexico state court, the Second Judicial District Court, County of Bernalillo, seeking a declaration that its insured was not entitled to uninsured/underinsured (UM/UIM) coverage for any injuries or other damages resulting from a 2015 car accident.  The insured filed an answer and also asserted a counterclaim for personal injuries, to recover uninsured motorist benefits, for insurance bad faith and for violations of the Unfair Claims Practices Act.

People who have suffered personal injuries following a New Mexico car accident will often prefer to proceed with litigation in New Mexico state courts in the hopes of advancing a case past motion practice and towards trial.  Insurance companies will often prefer to proceed in federal courts, where they hope to bring successful motions to dismiss or for summary judgment, and avoid trial.  In this case, the insurance company filed a notice of removal, seeking to invoke the federal court’s jurisdiction and the insured driver successfully challenged the removal, resulting in the case being remanded to New Mexico state court.

The declaratory judgment by the insurance company and counterclaim by the insured driver arose from a four-car collision that occurred in Albuquerque, New Mexico.  Allegedly a vehicle struck the car in front of it, causing a series of collisions until ultimately the insured’s car, which was the front vehicle in the chain, was struck from behind.  The driver who caused the accident allegedly fled the scene and it was unknown whether that driver had liability insurance.  The insured driver filed a claim under his insurance company policy for personal injuries and damages related to the collision, which his insurance company denied on the basis that he had rejected UM/UIM coverage.

Typically contracts are enforced as per their terms.  In a case decided by the U.S. District Court for the District of New Mexico, the court held that an insurance policy provision limiting a plaintiff’s time to bring an action to three years from the date of her New Mexico vehicle accident was unenforceable.  At issue was a claim under an insurance policy issued by an Ohio insurance agent to a driver who lived in Ohio at the time the policy was issued to her.  A few months later the driver was involved in a car accident in Taos, New Mexico.  She settled with the insurer of the driver of the other car involved in the accident and then submitted a claim for underinsured motorist coverage to her insurer.  Based on a provision of the insurance policy, her insurer took the position the claim was untimely because it had been brought more than three years after the date of the accident with respect to which insurance benefits were claimed.

The driver then sued her insurer in New Mexico state court, bringing a complaint for declaratory judgment, breach of contract and negligence.  The defendant insurance company removed the insured plaintiff’s action to federal court.  The parties filed cross motions for declaratory judgment, which the court construed as motions for summary judgment on the plaintiff’s claim for declaratory judgment.

The plaintiff’s chief argument was that the three year time to sue provision for UM claims in the insurance contract violated New Mexico public policy, thereby precluding application of Ohio law and rendering the provision invalid and unenforceable.  She sought application of New Mexico’s six year statute of limitations for asserting UM claims.  The defendant sought application of the three year limit under Ohio law, arguing it did not violate New Mexico public policy.

The United States District Court for the District of New Mexico recently handed down an opinion dismissing claims by a New Mexico State Police trooper for failure to keep premises safe.  The Court interpreted New Mexico’s “firefighter’s rule” as also applying to claims brought by law enforcement officers.

The plaintiff had alleged as part of a complaint filed in state court that, during the course of executing a warrant, he was shot and critically wounded due to the failure of a property management company to keep its premises safe.  The plaintiff sought to hold the defendant liable for damages sustained after he was shot on the basis that the defendant was aware that the shooter was not an authorized resident, of his frequency on the premises, of his residency, and of his violent nature and criminal record.  According to the complaint, the defendant had previously removed the man from its property.

The defendant responded to the complaint by removing it to federal court and filing a motion to dismiss based on the “firefighter’s rule.”  The plaintiff opposed dismissal.  Pursuant to the standard for considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court was to accept the allegations in the complaint as true, view the allegations in the light most favorable to the plaintiff, and draw all reasonable inferences in the plaintiff’s favor.  The Court was to then consider whether the plaintiff’s claims were facially plausible, meaning whether the facts pleaded in the complaint could allow the court to draw reasonable inferences that the defendant could be held liable for the misconduct alleged.  After reciting the standard for assessing motions to dismiss, the Court concluded that the complaint failed to allege facts sufficient to state a plausible claim for relief.

A U.S. Magistrate Judge recently ruled in favor of a plaintiff seeking discovery to aid his prosecution of a personal injury case.  The plaintiff had sought to obtain certain information from the defendant Home Depot, including a response to an interrogatory posed to the defendant concerning prior customer claims for injuries that the stores allegedly caused by or involving pallets.  The Court held a telephonic hearing on April 18, 2018 that ran over an hour after reviewing submissions by the plaintiff and the defendant.  Over the course of the hearing, the plaintiff’s counsel agreed to narrow the scope of the interrogatory that was a focus of the hearing, and the Court ordered the defendant to respond to the interrogatory as modified.

The plaintiff, via his counsel, filed a Motion to Compel on May 31, 2018, bringing to the Court’s attention that the defendant had not supplemented its discovery responses to include information concerning previous nationwide claims and lawsuits regarding injuries sustained by the defendant’s customers pertaining to slips, trips and falls involving pallets.  The plaintiff was frustrated because a few weeks earlier during the April 18 hearing the request had been modified to facilitate compliance with it.  The defendant had been allowed to respond with information stored in the defendant’s searchable database and, with respect to claims that had ripened into litigation, the defendant could respond by providing only names of the parties to the filed cases, the case numbers, and the districts in which the cases proceeded.

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Proposed federal legislation could prevent states including New Mexico from regulating the safety of autonomous vehicles.  These vehicles are sometimes referred to as “driverless.”  If the proposed federal laws are enacted, they could limit the role of states to registration and licensing of driverless vehicles and oversight over safety inspections, traffic laws and crash investigations.

The proposed legislation is controversial for several reasons.  On the one hand, building driverless vehicles in the United States could be good for domestic auto manufacturing.  The technology could potentially also reduce collisions caused by errors of tired, distracted or drunk drivers.  Some argue that a patchwork of state regulations could cause delays and complications.  On the other hand, public safety and consumer protection are issues because there is potential for accidents.  To address these important issues, the federal government would need to set enforceable standards and rules for these innovative forms of transportation, including for example, rules with respect to manufacturing.  How long it would take to develop an effective federal regulatory system for driverless vehicles and how a system would work remains to be determined.

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Claims are subject to dismissal through summary judgment when a party can establish that there are no genuine issues of material fact with respect to the claims, and the claims cannot succeed as a matter of law.  A summary judgment motion can seek the dismissal of a complaint in its entirety or be a partial summary judgment motion directed at some of the claims asserted in a complaint.  In a recent case, plaintiffs filed suit against the driver of a tractor trailer and the freight line that owned the vehicle he was driving at the time of the collision with the plaintiffs’ vehicle.

The plaintiffs asserted claims of negligence, negligence per se, and negligent entrustment and sought an award of punitive damages.  The defendants removed the case from the New Mexico state court in which the plaintiffs had filed their complaint to a New Mexico federal district court, and they filed a motion for partial summary judgment with respect to the plaintiffs’ second amended complaint.  The defendants asserted that the record supported the dismissal of the negligent entrustment and punitive damages claims as a matter of law.  The plaintiffs did not file a response in opposition.  Still, the Court had to assess whether the defendants had met their initial responsibility of demonstrating a basis for partial summary judgment.

The Court studied the evidence that the defendants had submitted and their arguments.  With respect to the negligent entrustment claim, the defendants had argued that the record did not support liability because the undisputed facts showed that the driver did not have a record of citations for traffic violations and had passed a drug test on the day of the accident.  The record before the Court also showed that the driver had only been in one accident previously, in which a vehicle had backed into the truck he was driving, had conducted a pre-trip inspection of the tractor trailer, was not using his cell phone at the time of the accident, was driving with low beams, was not exceeding the speed limit, and had tried to avoid the plaintiffs’ vehicle before the collision occurred that had given rise to their alleged damages.  With this record before it, the Court accepted the defendants’ contention that there was no evidence presented that the owner of the truck knew or should have known that the driver would operate it in a manner that would create an unreasonable risk of harm to others.  As a result, and without evidence to counter by the plaintiffs, the Court was amenable to granting the defendants’ motion for partial summary judgment with respect to the negligent entrustment claim.

New Mexico’s Department of Transportation recently held a summit on autonomous vehicles.  The theme was that New Mexico needs to be ready. Semi-autonomous vehicles are operated with a driver behind the wheel.   Some semi-autonomous vehicles are already on the roads.  Fully autonomous vehicles are anticipated to hit roads in the coming years – cars and trucks that are fully automated and driverless. This raises concerns about what happens after a New Mexico car accident involving an autonomous vehicle.

The summit on autonomous vehicles followed a fatal car accident in Tempe, Arizona.  Tragically, a woman was struck and killed in Tempe while she was crossing the street.  She was hit by another woman who was behind the wheel of a self-driving Uber.  Tempe police had stated that the car did not slow down before striking the pedestrian, which has since been confirmed by review of video footage of the accident.  The Uber accident in Tempe is alarming because either the pedestrian who was struck was not recognized by the car’s autonomous system as a pedestrian, or, if she was, something went wrong applying the brakes.  The National Transportation Safety Board and the National Highway Safety Administration investigated the accident to try to figure out what happened.

Among the technological innovations discussed at the summit on autonomous vehicles organized by the Department of Transportation were the five levels of automation.  Level 1 vehicles have automatic braking and cruise control.  Level 2 vehicles assist with steering and acceleration.  At Level 3, conditional automation, a driver is still needed and is expected to jump in and take over under certain circumstances.  At Level 4, a vehicle can drive itself under some conditions, without input from a driver.  At Level 5, a vehicle can drive itself under all conditions and may not include the option to let a driver take over.

The United States District Court for the District of New Mexico has handed down a ruling denying a motion to dismiss a New Mexico personal injury complaint alleging claims under the Federal Tort Claims Act.  The court rejected the defendant’s contention that a waiver signed by the plaintiff should result in the dismissal of her claims.

The plaintiff in this case was a civilian who was injured at a U.S. Air Force Base.  According to the court’s ruling, she had gone there with a group of her coworkers to participate in team building exercises.  One of these exercises involved rappelling down a tower. The plaintiff and her coworkers were each handed a waiver of liability form, with the Sergeant handing them out explaining that the waivers were documents “relieving the Air Force from responsibility for injuries and that the participants had to understand they were taking a risk by rappelling.”

The plaintiff did not recall a discussion of specific risks, including, for example, falling or the safety line not working.  She signed the waiver, took some training after explaining she had no experience, and ascended to the top of the rappelling tower.  She fell and was thereafter moved and assessed.  One of her coworkers then took her to the hospital in an ambulance.

A state court in Albuquerque has ruled that the New Mexico legislature exceeded its constitutional authority in enacting the New Mexico Medical Malpractice Act to the extent that the Act restricts the right of plaintiffs to receive an unaltered jury verdict.

The New Mexico Medical Malpractice Act does not limit recoveries for punitive damages, medical care, and related benefits, but it does provide a limit of $600,000 for recoveries arising from an injury or death to a patient occurring as a result of medical malpractice.  The Act has other restrictions applicable in trials of medical malpractice cases in New Mexico, including providing that in jury cases, jurors are not to be given any instruction concerning the Act’s cap on recoverable damages.  The Act’s stated purpose is to make professional liability insurance available to health care providers in New Mexico.

The court’s ruling with respect to the constitutionality of the Act’s imposition of a cap on damages arose in the context of a personal injury case brought in state court after a woman from Placitas had been hospitalized for several months as a result of injuries that she suffered during a gynecological procedure.  Absent the imposition of a cap on the amount she is able to recover through the litigation by the New Mexico Medical Malpractice Act, the plaintiff could be awarded $2.6 million in damages.

Courts can rule for or against parties as a matter of law by granting motions for summary judgment.  If a motion for summary judgment is granted, absent a reversal on appeal, the issues it decides will not be presented to the trier of fact, which in New Mexico personal injury cases is often a jury.

In a recent ruling, the United States District Court denied for the most part a motion for summary judgment brought by a driver of a semi-tractor trailer and his employer, the defendants in a personal injury lawsuit.  The court granted the defendants’ summary judgment motion with respect to the plaintiff’s punitive damages claim, and it denied summary judgment with respect to the plaintiff’s New Mexico state law claims, including negligence, negligence per se, and negligent training and supervision.

The underlying accident occurred on Interstate I-40 at around 3:00 in the morning, after the individual defendant had taken over driving responsibilities from his brother.

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