At issue in a recent appeal before a New Mexico District Court was whether the plaintiff had deliberately misled the court into suspecting she lied about her car accident injuries. In their analysis, the court discussed whethecrashr evidence submitted by a physician who had examined the plaintiff should be stricken from the record.  Additionally, the court assessed whether there remained a genuine issue of material fact or whether the plaintiff was entitled to summary judgment regarding a claim that the insurance company breached their duty by denying her the value of her claim.

The underlying accident in this case was a rear-end collision, which allegedly caused the plaintiff’s injuries to her neck and back.  She made a claim with her own insurance for medical payments after the accident.  Eventually, the plaintiff settled her third-party claim against the at-fault driver for $43,000.

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In a lawsuit brought on behalf of a 19-year-old who died from overdosing on physician-prescribed medications, the New Mexico Court of Appeals addressed whether the pharmacy was liable for negligence and negligence pr se.  At issue was the standard of care, specifically, the standard owed by a pharmacist when dispensing medications to patients.  While the lower court had granted the Pharmacy’s motion for summary judgment, the appellate court reversed.


The victim of the overdose had multiple drugs in her system, including Oxycodone, Oxymorphone, and Alprazolam.  She had apparently repeatedly requested high dosages of Schedule II opioids and taken them with Schedule IV benzodiazepines. Her prescriptions were allegedly intended to treat her pain and anxiety.

The plaintiff in this case, a personal representative of the deceased woman, brought a claim for malpractice, wrongful death, negligence, and other causes of action against the prescribing doctor. The complaint was amended to assert claims against the Pharmacy for negligence and negligence per se.  Negligence was alleged based on a breached duty of care to apply knowledge used by well-qualified pharmacists, and negligence per se was centered on the allegation that the Pharmacy departed from the standard of care of a reasonably trained pharmacist.

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Recently, the New Mexico Court of Appeals addressed whether an insurance company had breached its duty by refusing a request for legal representation in a personal injury lawsuit. That lawsuit, brought by a Public Service Company of New Mexico employee, alleged negligence, negligence per se, and premises liability following an inattack dogcident in which the employee was attacked by the defendant’s 150-lb Bullmastiff. The defendant in that case was a tenant, leasing a studio unit from the co-defendant, the property owner.

The property owner, who lived out of state, hired third parties to manage and maintain the premises in her absence. The property had a common yard, and the owner had asked the tenant living in the studio unit in back to care for the yard and make sure “things stayed alive.” This tenant owned the Bullmastiff dog and, at the time of the incident, had been in the common yard, watering the area.

The insurance company at issue in the lawsuit tendered its defense to the property owner, since she was the named insured on the policy. After the property owner was granted summary judgment in the case, the tenant requested that the insurance company tender her defense. It denied this request, stating she was not the named insured under the policy.

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Following a car accident, injured individuals may find themselves dealing with an automobile insurance claim.  The complexities of these claims can range from determining potential coverage to assessing whether the insurer is acting in good faith.  Recently, a lawsuit before the New Mexico District Court ceparking dentntered on claims that an automobile insurance company mishandled an insured’s claim for damages following a car accident.  The court issued a ruling on whether to bifurcate the trials, meaning that they would separate the plaintiff’s claims. According to the court, separate trials may be necessary to avoid prejudice or to encourage efficiency.

The plaintiff in this case alleged that she suffered injuries in a rear-end collision in Deming, New Mexico.  According to the plaintiff, the other driver struck her vehicle on the rear bumper.  While this driver’s insurance coverage extended to $25,000, the plaintiff claimed that her injuries extended beyond this limit. She made a claim against her own insurer, which provided bodily injury liability coverage and uninsured/underinsured motorist coverage.  She claimed that according to her policy, the insurer should pay her damages because she suffered injuries due to another driver’s negligence.  According to the plaintiff, her claim against her insurer was timely and reasonable but had been denied.

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After a fatal accident at work, the wife of the deceased worker pursued a claim for damages against the employer’s insurance company.  The issue before theforklift New Mexico Supreme Court was whether a worker injured in the course of employment by a co-worker could recover damages under the employer’s uninsured/underinsured motorist coverage.  The question was framed by what the court labeled as a “discontinuity” between the language of the New Mexico Workers’ Compensation Act (WCA) and the Uninsured Motorist statute.  In other words, the Court’s decision was intended to address inconsistencies in case law concerning the remedies and legislative intent provided by both statutes.

The facts of this case indicate that while at the workplace, an employee was fatally struck by a metal beam that fell off a forklift.  A coworker had left the forklift unattended to check that the beam was secure, and it slid off the forks and hit the employee.  On behalf of her deceased husband (the employee), the plaintiff in this case received workers’ compensation benefits as well as uninsured motorist benefits set forth under his car insurance policy.

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The New Mexico Supreme Court recently held that fraudulent concealment tolls the statute of limitations for a cause of action under the Wrongful Death Act (WDA). Essentially, the question was whether the WDA should be strictly construed, and the three-year statue of limitations should apply, or whether willful, deceitful conduct by defendants tolls the statute of limitations. The Court reviewed policy considerations underlying New Mexico’s law, and it held that while plaintiffs must diligently pursue their claims once an injury (or death) has been discovered, defendants cannot benefit from fraudulent concealment that prevents plaintiffs from filing claims. In this opinion, the Court held that fraudulent concealment tolled the statute of limitations for plaintiffs pursuing a wrongful death claim.


The facts of this case center on a fatal car accident. In September 2006, the victim’s 2002 Toyota Camry suddenly accelerated into a highway intersection. The car collided with a tractor-trailer and burst into flames. On behalf of the deceased driver, her estate filed a wrongful death claim in August 2010. They asserted products liability claims as well as other legal claims against the car manufacturer, the car dealer, and others (defendants).

The wrongful death action had been filed over three years after the date of the victim’s death. The defendants moved for judgment on the pleadings, arguing that the three-year statute of limitations in the Wrongful Death Act (WDA) barred the claim. They contended that the WDA statute of limitations, which accrues as of the date of death, is to be strictly construed.

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Recently, the New Mexico Supreme Court issued an opinion that addressed whether a tortfeasor was entitled to traditional indemnification, despite New Mexico’s adoption of comparative fault when there is more than one tortfeasorbaby table.  In this case, the state’s Supreme Court addressed the doctrine of comparative fault, which applies in personal injury claims, such as car accidents, slip and falls, truck accidents, and other claims.

The court held that traditional indemnity does not apply when a jury has apportioned fault and liability under comparative fault rules and determined that one tortfeasor was actively at fault. In their analysis, the court reviewed principles of indemnity and contribution, which are terms that refer to the fault of parties involved in a personal injury lawsuit alleging legal fault. After stating that New Mexico abides by comparative fault rules, the court found that the district court had properly ruled in favor of the plaintiffs and dismissed the grocery store’s cross-claim for indemnification.

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In a recent personal injury lawsuit, the New Mexico Court of Appeals recently issued a judgment in favor of a large retail store that sold the plaintiff allegedly defective work boots that led to his injury.  The issue before the court of appeals concerned whether the plaintiff had provided the defendants with proper notice of his claim, which was a breach of warranty claim brought under the Uniform Commercial Code (UCC).  One reason that the plaintiff pursued this type of claim was because it had been over three years since the accident, and the statute of limitations had passed for a tort claim based on negligence. The court here assessed the procedural requiremework bootnts of notice and the purpose served by providing notice to the defendants in a lawsuit for injuries, specifically injuries resulting from an allegedly defective product.

The plaintiff worked as a tree trimmer and purchased boots from the defendants’ store in October 2003.  The packaging label for the boots described them as “men’s work boots” for “light to medium industrial use.” Before purchasing the boots, the plaintiff examined them closely, and he stated he did not notice any defects that would have made them unsafe.

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Recently, the New Mexico Court of Appeals addressed whether an unlicensed builder was entitled to the defense of the statute of limitations for a legal claim brought by an injured individual. The plaintiff in this case had not known of the builder’s name and had added the builder’s name in a lawsuit filed after he suffered injuries in a fall. Under New Mexico law, the statute of limitations is an affirmative defense. Defendants in a personal injury action can argue that the plaintiff did not bring their lawsuit before the required deadline for filing and that their claim is therefore barred. The Court of Appeals analyzed the facts and procedural history in the underlying lawsuit and held the plaintiff’s claim was properly barred.  deck

The injured individual in this case had rented a home during a summer vacation. He suffered injuries after falling from a deck built nearly 10 years earlier by an unlicensed builder.  Two years after his fall, the injured individual brought a lawsuit for damages against the lessor of the vacation home.

As the plaintiff in his personal injury action, he also attempted to get the identity of the builder from the lessor. While waiting for the builder’s name, the statute of limitations on the plaintiff’s injury claim had expired. Nearly one year after the plaintiff’s request for the builder’s identity, the lessor located a canceled check with the builder’s name. The plaintiff then named the builder as a defendant in the lawsuit and sought punitive damages against him.

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New Mexico drivers need to remember and practice the rules of safety when driving in adverse weather conditions, including rain, snow, and ice.  Too often some drivers negligently disregard the conditions, fail to pay attention to the changing driving conditions, don’t allow themselves extra time to negotiate the adverse circumstances, or simply speed on ahead in all disregard of their safety and ours.  As you take to the road in the winter, please remember you are not the only one on the road.  Slow down at the first sign of snow, rain, or other inclement weather.  Allow yourself extra time to reach your destination.  Keep pace with traffic.  Be aware of others on the roadway and anticipate that an emergency circumstance is more likely to arise; drive defensively.  In short, as the risk of danger increases, so too does your duty to exercise reasonable care.  Be a reasonable and safe driver.

This week Albuquerque got hit by its first major winter storm.  The arctic blast left a layer of snow over much of the city and turned roads into sheets of ice for the first few hours of the morning on Friday.  At first schools, businesses, and courts went on a delay, then they began to close for the day because the cold temperatures were turning the layer of fresh snow into ice.  The City of Albuquerque and State of New Mexico Department of Transportation were hard pressed to keep up with the conditions.  While some drivers stayed home or limited their driving, others took to the streets.  I was one of those that took to the streets.  I was scheduled to be a mediator on a case and there were going to be a number of people waiting on me and depending on me to keep the appointment.

I’ll admit, as I left my house I had a certain amount of anxiety about driving in the ice and snow.  However, the greater weight of my anxiety came from my apprehension about other drivers, about their commitment to being safe in the adverse conditions.