The types of damages family members can recover after a loved one passes will vary based on the case, but the most common types include:

• Funeral expenses
• Medical expenses
• Loss of support
• Loss of consortium

To get compensated, there are a few things that have to happen.

Elements of a Wrongful Death Lawsuit

There are several parts of a wrongful death lawsuit that have to be present if you want to make a claim for a close family member’s death:

1. The death must have involved a human being.
2. The death needs to have been caused by another person’s intent to cause harm or because of negligence.
3. You and your family must have suffered financial damages as a result of their death.
4. There is a representative for the estate of the decedent ready to work through the case.

If your loved one died in an auto accident, then the claim will work something like this.

First, a representative will be appointed to the estate. This person, normally the executor, will then reach out to an attorney to discuss starting a wrongful death claim.

Working with the attorney, a case will be assembled against the at-fault driver. The attorney will reach out to the driver’s insurance company, if they have one, to begin negotiations.

If the attorney and family cannot work out a resolution and settlement, then the case may go to trial. That’s where the family may speak about the problems this situation has caused and discuss all they’ve lost. Trials are not always required, and many cases are settled before they reach that point.

The families of victims of wrongful deaths may be able to collect thousands of dollars, or more, in compensation through a wrongful death claim. Starting it sooner will help build a thorough case within the statute of limitations.

But the auto insurance industry did not build up its huge advertising budget by paying out every claim that its customers make. Insurance companies are in business to make profits, which means they want to pay as few car accident claims as they possibly can.

Real-life insurance adjusters are not like the smiling, caring actors in the commercials. They are trained to find ways to deny rightful claims. This is especially true when the person making the claim has never gone through the process before. Fortunately, most people avoid getting into serious car accidents. So when it does happen, the injured person lacks the experience to stand up to the insurance company’s tactics.

What to Expect

Basically, when dealing with a claim they don’t want to pay, an insurance adjuster might try one or all of the following:

• Deny the claim. They might try to say you were at fault for the accident, or that you are making up or exaggerating your injuries, or that your injury was pre-exisiting.
• Lowball you. If they cannot outright deny your claim, they might try offering you a settlement amount that is a fraction of what you are entitled to under the policy. They might imply that this is the best you will get and that fighting for more will not work.
• Delay. Finally, the insurance company might try dragging out your claim to get you to give up. They won’t give you a settlement offer in a reasonable time after you filed your claim, and won’t return your emails and phone calls.

If the insurance company won’t be reasonable, you may need a personal injury attorney’s help. Your lawyer should know all the tricks and make sure they don’t happen to you.

This is especially true in auto accidents. The law can determine that one of the drivers involved caused the wreck by speeding, driving drunk, failing to yield, or any other reason. And that is how it should be. But New Mexico’s personal injury laws recognize that someone who was injured in an accident with a negligent driver may have partly contributed to the conditions that led to the crash. And that you should not have to give up your chance at compensation because of that.

Personal Injury Damages in New Mexico

New Mexico is unusual in that pure comparative negligence applies in personal injury lawsuits. In a nutshell, this means that after a car accident, you can pursue compensation from another party. However, the amount of damages you can recover is reduced by the percentage of fault you are.

For example, if you sue the driver and their insurance company and the jury determines that the defendant was 80 percent responsible and you were 20 percent responsible, the damage award you would receive would be reduced by 20 percent. If you are found more than 50 percent at fault, you might be barred from recovering any amount.

This is a more rational and victim-friendly approach than traditional personal injury law. Decades ago, someone who was hurt in a car accident could not recover any damages if they even slightly contributed to the crash.

Speaking with a personal injury attorney who can discuss your specific situation is a good first step to help determine what and how much you could recover.

The plaintiff in the case was the mother of a son who had been killed in a motor vehicle accident. A wrongful death case was filed on her behalf in New Mexico state court. As part of that litigation the plaintiff, who lived in Mexico, gave a power of attorney to her uncle. He allegedly agreed to act for her by accepting any money that she was entitled to as part of the litigation. He was to keep half of the money and send her the other half.

The plaintiff alleged in a subsequent federal court complaint that her uncle had misappropriated over two hundred thousand dollars in settlement money that was wired from the plaintiff’s wrongful death counsel to him. The defendant did not file an answer to the federal court complaint or move to dismiss it although he had been served. The clerk of court made an entry of default, and the defendant did not respond to this either, according to the court’s discussion of the history of the case. The court ordered supplemental briefing and directed the plaintiff to provide the evidence in support of her case to the defendant so he would have another opportunity to respond. He did not respond, and the court considered what award to the plaintiff would be appropriate.

The court concluded that plaintiff was entitled to judgment in her favor with respect to the defendant’s liability for breach of contract and fraud, and that there was not a basis for a claim under the New Mexico Unfair Practices Act, which requires the allegedly fraudulent acts to have been performed in the regular course of the defendant’s trade or commerce. After addressing liability issues, the court then turned to damages.

The calculation of compensatory damages was clear cut. The plaintiff was entitled to the amounts allegedly misappropriated by her relative, in total over two hundred thousand dollars. By way of punitive damages the court awarded half of the amount of compensatory damages, over one hundred thousand dollars. The court also awarded the plaintiff costs, to cover the cost of filing the complaint and serving process, less than $500 in total. The court did not consider whether the plaintiff was entitled to pre-judgment interest as she had not sought it, but did award post-judgment interest. The court declined to award attorney fees, however, noting in the United States the American Rule applies pursuant to which each party typically pays its own attorney fees.

If you, a family member, or other loved one has been injured in an New Mexico car accident, you may be entitled by law to receive a financial recovery. Recovering personal injury damages can help give people the financial benefit of lost wages, and help cover expenses caused by the accident. We are here to help. To understand more about your case and how it can be pursued to maximize your financial recovery, call New Mexico personal injury lawyer Matthew Vance. At the Law Office of Matthew Vance, P.C., we provide a free consultation and can be reached at (505) 242-6267 or send us a message online.

Who Can Bring the Lawsuit?

Only one person can bring a wrongful death suit against the responsible party. This is so that the court doesn’t have to deal with a separate lawsuit for each individual member of the victim’s family – and because the recovery will be distributed among the victim’s family regardless of who brings the suit.

The person who brings the suit is the personal representative of the deceased person. This is often the executor of the deceased´s estate, but it can also be some else if circumstances require it.

Who Will Receive the Proceeds?

If someone brings a wrongful death lawsuit against the responsible party, and they are successful, they will likely recover a sum of money as the court determines. Then, New Mexico law lays out the order in which the deceased’s family members can receive distributions of the recovery.

If the victim left behind a surviving spouse but no children, the spouse would receive all of the recovery. If there are children, then the surviving spouse takes half, and the children split the other half. After spouses and children, next in line are the victim´s parents, followed by their siblings.

This means that, if you have any other relationship to the deceased (such as being a cousin, nephew or friend) you cannot recover a portion of the recovery under New Mexico law.

No amount of money can possibly make up for the loss of a loved one. But a wrongful death suit can help those who depended upon the deceased for material support to get their lives back in order after their loss.

The children were not in their father’s pick-up truck at the time of the accident and did not sustain bodily injuries in connection with the accident. Their mother brought litigation, on her own behalf, on behalf of the estate of their father, and on behalf of the children. She sought recovery of damages from multiple parties including the company that employed the driver of the vehicle that had struck her husband’s vehicle, and the driver’s insurance company. The litigation she brought led to a settlement.

As part of the settlement, she and her children were to receive $4,530,007.00, comprised of several payments. Under § 41-2-3(B) of New Mexico’s Wrongful Death Act, one half of the net settlement proceeds was to be distributed to her and the remaining half was to be distributed evenly between her two children and invested on their behalf. The guardian ad litem appointed by the court was in favor of the settlement.

In reviewing the settlement, the court considered several factors to guide the exercise of the court’s discretion. The court first considered whether the proposed settlement was fairly and honestly negotiated. The court was satisfied with this aspect of the settlement because the settlement followed an arms-length private mediation. Next the court considered whether serious questions of law and fact exist, placing the ultimate outcome of the litigation in doubt, and whether the value of an immediate recovery outweighed the mere possibility of future relief after protracted and expensive litigation. The court concluded there were questions concerning liability, that made settling and taking the money offered advisable. Finally the court considered whether, in the judgment of the parties, the settlement was fair and reasonable. As all parties were supportive of entering into the settlement, and based on review of the record, the court concluded that settlement was fair and reasonable and in the best interests of the children.

If you or a loved one has been hurt in an accident, you may be entitled by law to receive a monetary award. In some cases multiple parties can be liable for the payment of money damages. Receiving damages can help injured people and their families recover out-of-pocket costs including medical bills and lost wages. The legal process for pursuing a recovery can be complex, and you should not have to navigate the process on your own. We can help. To understand more about your case and how it can be pursued to maximize your financial recovery, call New Mexico personal injury lawyer Matthew Vance. At the Law Office of Matthew Vance, P.C., we provide a free consultation and can be reached at (505) 242-6267 or send us a message online.

The underlying litigation was brought following a fatal collision between a car and a tractor-trailer on Route 66. The surviving sister of the woman who was fatally injured in the lawsuit, acting as the personal representative of the woman’s estate, was the plaintiff. She alleged that her sister’s car struck the side of a tractor-trailer that was pulled across both lanes of traffic on Route 66. She further alleged that, during the collision, the car drove under the “under-rode” the tractor-trailer, causing the roof of the vehicle to collapse on her sister’s head and neck, severely injuring her. Her sister later died in the hospital.

The plaintiff asserted claims of strict products liability and negligence against the tractor-trailer manufacturer, and sought compensatory and punitive damages, on the basis that the tractor-trailer her sister’s car collided with was not equipped with a side guard to prevent vehicle under-riding.

The defendant tractor-trailer manufacturer asserted, in support of summary judgment on the products liability claim, that the plaintiff could not establish that its tractor-trailer was unreasonably dangerous. The plaintiff disagreed, and countered with evidence including the defendant’s attempts to design a side under-ride guard for its trailers and the defendant’s filing of a patent for a side under-ride guard in April of 2010. The evidence submitted by the parties to the court also showed that the defendant had installed a side guard protector and had been testing it. Based on its review of the evidence the court concluded that a jury could infer that the danger of under-riding was obvious, foreseeable, common knowledge, and, therefore, unreasonable, rendering the tractor-trailer defective. The court also concluded that, even if New Mexico law requires proof of a feasible alternative design, the plaintiff had come forward with enough evidence to prove the existence of design alternatives—including the defendant’s own blueprints and design plans. Accordingly the court denied the defendant summary judgment on the products liability claim. The court also sided with the plaintiff insofar as the court denied the defendant summary judgment on the negligence claim and declined to dismiss the plaintiff’s punitive damages claim.

The court did, however, rule in favor of the defendant tractor-trailer manufacturer with respect to damages suffered by the daughter of the deceased driver as a result of her mother’s death. Allegedly the daughter refused to submit to questioning by defense counsel, as part of the pretrial discovery process. As a sanction, the court restricted the plaintiff, who was acting for the estate of the mother, from presenting evidence on the damages suffered by the daughter. The court recognized that the ultimate distribution of the estate’s funds was left to the sound discretion of the plaintiff, as estate representative.

If you or someone you love has been hurt in an accident, you may be entitled to receive a monetary award for damages. Being compensated monetarily can help people and their loved ones recover out-of-pocket costs including medical bills and lost wages. Personal injury litigation can be complicated. We can help. To understand more about your case and how it can be pursued to maximize your financial recovery, call New Mexico personal injury lawyer Matthew Vance. At the Law Office of Matthew Vance, P.C., we provide a free consultation and can be reached at (505) 242-6267 or send us a message online.

The defendants removed the case from state court to federal court pursuant to section 1332(a) of the U.S. Code, which requires a diversity of state citizenship among the parties and an amount in controversy exceeding $75,000 exclusive of interest and costs. In support of removal the defendants argued that, although there was not a diversity of citizenship when the presence of all of the defendants was considered, the federal court should exercise jurisdiction because some of the defendants were fraudulently joined. Based on this argument they sought to have the case proceed in federal court, their chosen forum. The plaintiff was opposed to proceeding in federal court, and sought an award of attorneys fees and costs for efforts in seeking remand back to state court.

The court’s analysis was unusual because it relied heavily on a line of cases dating back to 1982 for the proposition that all doubts are to be resolved against removal. More recent case law has been somewhat deferential to defendants, who sometimes prefer to try to win a case via federal court motion practice instead of preparing for trial in state court. The court rejected the defendants’ position that the plaintiff could not assert claims against some of the named defendants. The court reasoned it could not say there was no possibility of the plaintiff being able to establish her claims. Accordingly, the court ruled for the plaintiff and granted the motion to remand the lawsuit back to state court, in part. The court did not award the plaintiff attorneys fees and costs, concluding the defendants had an objectively reasonable basis for seeking removal to federal court and did not remove the case to prolong litigation or impose costs on the plaintiff.

If you or a loved one has been hurt in an accident, you may be entitled by law to recover money damages. In some cases multiple parties can be liable. Receiving an award of damages can help injured people and their families recover out-of-pocket costs including medical bills and lost wages. The legal process for pursuing a recovery can be complex. We can help. To understand more about your case and how it can be pursued to maximize your financial recovery, call New Mexico personal injury lawyer Matthew Vance. At the Law Office of Matthew Vance, P.C., we provide a free consultation and can be reached at (505) 242-6267 or send us a message online.

In 2013 the decedent was diagnosed with lung cancer. He died later that year. According to the Court of Appeals, over the course of the several years since the decedent’s passing, there was litigation that resulted in the plaintiffs achieving settlements with most of the defendants. The lumber company and three other defendants did not settle with the plaintiffs. They filed summary judgment motions, asserting that they were entitled to judgment in their favor as a matter of law. After the defendants won, the plaintiffs appealed.

On appeal, three out of four defendants won again when the Court of Appeals upheld the summary judgment rulings in their favor. But the Court of Appeals reversed the grant of summary judgment with respect to the lumber company defendant.

Under New Mexico law, it is proper for a court to grant summary judgment when there are no genuine issue of material fact. The party moving for summary judgment bears the initial burden of establishing a prima facie case for summary judgment. If successful then the non-moving party or parties, here the plaintiffs, need to demonstrate the existence of specific evidentiary facts which would require trial on the merits. If the non-moving party is unable to make this showing then a court can grant summary judgment in favor of the party moving for summary judgment.

In this case, the lumber company argued, among other things, that the plaintiffs had failed to come forward with evidence or witnesses showing that an asbestos-containing product from this defendant had sickened the decedent. The lower court and the appellate court were of the view that the lumber company established a case for summary judgment, shifting the burden to the plaintiffs to show facts requiring a trial. The lower court was suspicious of affidavits presented by the plaintiffs as part of their attempts to avoid entry of summary judgment in favor of the defendants. The lower court characterized the documents as “self-serving, not reliable and an attempt to create sham issues of fact.” But the appellate court did not construe the affidavits the same way.

The appellate court was not persuaded that the plaintiffs intended to create sham issues of fact. The appellate court’s review of the record showed, among other things, that the affidavits contained specific time frames and products and that the plaintiffs had made amendments to discovery responses that were contradictory. Accordingly, the appellate court reversed the grant of summary judgment to the lumber company insofar as it treated the plaintiffs’ affidavits as sham affidavits, and remanded the case back to the lower court whose ruling was reversed on appeal with instructions to enter clear findings of fact and conclusions of law concerning whether the plaintiffs had produced evidence showing exposure to the lumber company’s products was a cause of the harm suffered by the plaintiffs’ decedent.

If you or someone you love has been hurt in an accident, you may be entitled to receive a monetary award for damages. Being compensated monetarily following an injury can help people and their loved ones recover out-of-pocket costs resulting from the accident, including medical bills and lost wages. Litigating a personal injury case can be complicated. We can help. To understand more about your case and how it can be pursued to maximize your financial recovery, call New Mexico personal injury lawyer Matthew Vance. At the Law Office of Matthew Vance, P.C., we provide a free consultation and can be reached at (505) 242-6267 or send us a message online.

Subsequently, the defendant disclosed a medical doctor as an expert witness, and indicated that the doctor was expected to testify that the slip and fall accident underlying the litigation was not the cause of the plaintiff’s injuries attributed to the slip and fall. Further the doctor was anticipated to testify that the accident did not aggravate pre-existing conditions suffered by the plaintiff and that the pre-existing factors and conditions were the likely explanations for the treatment and related costs incurred by the plaintiff. In support of this theory of the case, the defendant produced an expert witness report. The defendant’s actions put the plaintiff in a bad position insofar as the plaintiff needed relief from scheduling deadlines to come forward with a competing expert opinion on causation.

The plaintiff attempted to proceed under Federal Rule of Civil Procedure 26(e), which mandates that parties to federal civil litigation supplement disclosures when learning the disclosures are incorrect or incomplete. The court rejected this approach, reasoning that the plaintiff was not seeking to supplement disclosures, but rather to disclose a completely new expert and produce a new expert report. The court was forgiving, and characterized the plaintiff’s error as one of form and not substance. The court explained that if the plaintiff could show excusable neglect under Federal Rule of Civil Procedure 6(b) then the court could reopen the lapsed expert disclosure deadline. The plaintiff would then need to show good cause for modification of the expert disclosure deadline in the scheduling order, under Federal Rule of Civil Procedure 16(b)(4), in order to prevail.

The court applied these standards to the record presented by the parties. The court was satisfied there was excusable neglect mainly because the plaintiff’s counsel did not receive voluminous medical records supporting the defendant’s challenge of the cause of her client’s injuries until after her client’s expert disclosure deadline had passed. It helped the plaintiff that counsel acknowledged to the court that counsel had underestimated the defendant’s position on causation. The court considered the risks to the plaintiff that could result from the court not granting the plaintiff’s motion. A risk was losing all or most of the case by entry of summary judgment or a directed verdict by the court, i.e. losing on paper without getting a chance to present the case at trial. According to the court, the defendant was less inconvenienced by the proposed addition of a new witness because the defendant could depose the witness and there was not a trial date, so the court could add to the trial preparation an opportunity for the defendant to rebut the plaintiff’s expert’s report with a supplemental report.

If you or someone you love has been hurt in an accident, you may be entitled to receive a monetary award for damages. Being compensated monetarily when you are injured can help people and their loved ones recover out-of-pocket costs including medical bills and lost wages. Litigation can be complicated. We can help. To understand more about your case and how it can be pursued to maximize your financial recovery, call New Mexico personal injury lawyer Matthew Vance. At the Law Office of Matthew Vance, P.C., we provide a free consultation and can be reached at (505) 242-6267 or send us a message online.

Among the orders that a federal trial court presiding over a lawsuit can make is an order transferring venue. Venue can be transferred to any other district court in which the action could have been brought, pursuant to section 1404(a) of Title 28 of the United States Code. A party seeking the relief of venue transfer must show that the existing forum is an inconvenient forum. While a plaintiff’s choice of forum is afforded some deference, there are multiple factors that courts consider when deciding a motion to transfer venue.

Among the factors that the court identified as informing the analysis in this case were witness accessibility, the cost of proving the case, the ability to enforce a judgment if one is obtained in the case, the difficulties arising from the congestion of courts’ dockets, the advantages of having local courts decide questions of local law, and practical considerations that would facilitate expeditious and economical trial of the case.

The court noted that because the plaintiffs resided out of state, in South Carolina, their choice of venue was entitled to less deference than it would be if they lived in New Mexico, where they had filed their lawsuit. The court reasoned that although the plaintiffs resided closer to Kentucky than to New Mexico, their New Mexico choice of forum was not overridden. Next, the court considered the location of the parties’ witnesses. The court concluded that this factor slightly favored the plaintiffs because the trucking company defendant’s witnesses included employees it was expected to be able to exercise some degree of control over and bring to trial in New Mexico, the plaintiff’s chosen forum.

The court did not find the parties’ arguments about costs associated with litigating the case in one venue or the other convincing because of the absence of evidence. The court gave more consideration to congestion of U.S. district courts in New Mexico and the Western District of Kentucky, concluding that the congestion of New Mexico’s district courts did not merit transfer to the Western District of Kentucky. The court concluded that conflict of law issues and questions of local law carried little to no weight in its analysis. The court then observed that neither side’s preferred venue had an overwhelming claim to convenience or the interests of justice. There being, in the court’s estimation, no factors strongly favoring the movant trucking company, the court decided that the case would remain in the plaintiffs’ chosen venue. Accordingly, the U.S. District Court for the District of New Mexico denied the defendant’s motion to transfer venue to the Western District of Kentucky.

If you, a family member, or other loved one has been injured in an New Mexico car accident, you may be entitled by law to receive a financial recovery. Recovering personal injury damages can help people pay out-of-pocket costs including lost wages and medical bills. Navigating the courts and their procedures can be complicated. We are here to help. To understand more about your case and how it can be pursued to maximize your financial recovery, call New Mexico personal injury lawyer Matthew Vance. At the Law Office of Matthew Vance, P.C., we provide a free consultation and can be reached at (505) 242-6267 or send us a message online.

The plaintiffs responded by seeking remand of their personal injury case to state court, where they had initially filed it. In support of their position they argued that the federal court lacked subject matter jurisdiction because there was not diversity of citizenship among the parties to the case. This argument was based on the foreign limited liability company having hired a registered agent for service of process in New Mexico. The plaintiffs also sought remand to state court on the basis of judicial economy. They asserted that another lawsuit brought by different plaintiffs was proceeding in state court against the same corporate defendant based on the same incident.

The court began its analysis by observing that federal courts are courts of limited jurisdiction, and that a defendant seeking to remove a case from state court therefore has to overcome a presumption against removal. Citing 28 U.S.C. §1332, the court explained that removal is proper where there is complete diversity of citizenship between the parties to a case and the amount in controversy in the case exceeds $75,000. The court went on to explain that a corporation is deemed to be a citizen on the states in which it has been incorporated as well as the state that houses its principal place of business.

In this case, it was a limited liability company before the court, not a corporation, so the standard was different. As the court explained, it was bound to apply precedent concluding that the citizenship of limited liability companies is determined by the citizenship of their members and not their principal place of business. Following this standard the limited liability company was a Utah citizen because its sole member was a permanent resident of Utah. The court rejected the plaintiffs’ argument that the defendant having a registered agent for service of process in New Mexico destroyed the diversity of citizenship necessary to have the case proceed in federal court. After rejecting the rest of the arguments presented by the plaintiffs, the court denied their motion to remand the case back to state court, their preferred forum for litigation.

If you or someone you love has been hurt in an accident, you may be entitled to receive a monetary award for damages. Being compensated monetarily when you are injured can help people and their loved ones recover out-of-pocket costs including medical bills and lost wages. Litigation can be complicated, and you should not have to navigate the legal process on your own. We can help. To understand more about your case and how it can be pursued to maximize your financial recovery, call New Mexico personal injury lawyer Matthew Vance. At the Law Office of Matthew Vance, P.C., we provide a free consultation and can be reached at (505) 242-6267 or send us a message online.

In this recent case, the plaintiffs were seeking the exclusion of evidence concerning alleged consumption of nine to twelve light beers by the plaintiff who was driving the car that got into the accident at issue in the litigation. One person was killed in that accident and others were injured. The plaintiffs’ theory of the case was that the accident was caused by the blow-out of a left rear tire, and that it was not relevant that the plaintiff who had been driving the F-350 at the time of the accident.

The plaintiffs argued that evidence of beer consumption was not relevant, and should be excluded, because there was no evidence indicating that the driver was intoxicated at the time of the accident. He had allegedly gone to work the morning of the accident, and the accident did not occur until about noon.

The defendant, a tire manufacturer, disagreed with the plaintiffs’ view of relevance. The defendant proposed to introduce into evidence testimony that an attentive, unimpaired or non-drowsy driver should have been able to control the vehicle following the alleged tire blow-out, and thereby prevent a fatal roll over of the vehicle. The court understood the defendant wanted the jury to infer that the plaintiff had alcohol in his system at the time of the accident because he did not control the vehicle.

The court disagreed with the defendant’s approach, characterizing it as an invitation to the jury to speculate that the plaintiff was impaired at the time of the accident because he had been drinking the day before. The court was focused on the plaintiffs’ theory of the case, which was products liability, and they explained that any evidence of alcohol use the day before the incident appeared to be irrelevant to any products liability issue or cause.

In the alternative, the court also considered whether the probative value of evidence of alcohol consumption the day before the accident outweighed its prejudicial value. Under the Federal Rule of Evidence 403, a federal trial court can exclude evidence on grounds including unfair prejudice. The court concluded that the plaintiffs would be unfairly prejudiced by the defendant’s introduction of evidence of alcohol consumption, and explained there was a risk that the jury would be inclined to speculate the plaintiff was intoxicated at the time of the accident although the defendant had no expert evidence or other evidence showing the plaintiff was intoxicated at that time. Accordingly, the court granted the plaintiffs’ motion in limine.

If you or someone you love has been hurt in an accident, you may be entitled to receive a monetary award for damages. Being compensated monetarily when you are injured can help people and their loved ones recover out-of-pocket costs including medical bills and lost wages. To understand more about your case and how it can be pursued to maximize your financial recovery, call New Mexico personal injury lawyer Matthew Vance. At the Law Office of Matthew Vance, P.C., we provide a free consultation and can be reached at (505) 242-6267 or contact attorney Matthew Vance online.

The defendant tire maker’s position in support of summary judgment was that the plaintiff should not be allowed to recover damages for the decedent’s future lost earning capacity because it would be illegal for him to work in the United States under federal law. In support of its position, the defendant directed the court’s attention to the Immigration Reform and Control Act of 1986 (“IRCA”), which is the federal statutory scheme prohibiting the employment in the United States of undocumented foreign workers. The federal court adjudicating the dispute understood the defendant to be making the policy argument that the federal court should not reward conduct that is unlawful under federal law.

The court disagreed with the defendant’s approach to the issue. The court explained that it saw no reason for applying federal policy that was of questionable relevance in the lawsuit over clear New Mexico policy favoring compensation of injured people. Further, the court was of the view that the New Mexico Supreme Court would hold that federal policy would not require a court to deny compensatory damages for lost earnings under New Mexico tort law.

As part of the court’s analysis, the court reviewed rulings concerning undocumented workers, including a ruling by the United States Court of Appeals for the Tenth Circuit which concluded that illegality is not a defense to a wrongful death claim by the estate of an illegal alien killed in a car accident.

The court predicted “that despite the illegality of undocumented immigrants working in the United States, the New Mexico Supreme Court would allow lost earning wages for estates of deceased undocumented immigrants…. it would not further the purpose of the IRCA to bar recovery under these circumstances.”

The court was not swayed by the defendant’s other arguments, including the argument in the alternative that the court should bar the plaintiff from presenting evidence of American wages for the purpose of calculating the decedent’s lost earning capacity. The court reasoned that the decedent had been working in the United States for over 20 years and a jury could properly decide that compensation for lost American earnings was appropriate.

If you, a family member, or other loved one has been injured in an accident, you may be entitled by law to receive a monetary damages award. Being compensated monetarily for personal injury damages can help people and their families recover out-of-pocket costs including lost wages and medical bills. The legal process for obtaining a monetary damages award can be complex, and you should not have to navigate the process on your own. Our law firm can help. To understand more about your case and how it can be pursued to maximize your financial recovery, call New Mexico personal injury lawyer Matthew Vance. At the Law Office of Matthew Vance, P.C., we provide a free consultation and can be reached at (505) 242-6267 or contact attorney Matthew Vance online.

The plaintiff in the discovery dispute at issue brought a lawsuit seeking to recover damages for injuries she allegedly suffered following implantation of a surgical mesh product intended for treatment of medical conditions of the female pelvis. Among the defendants she sued were manufacturers and sellers of the surgical mesh and the doctor who allegedly recommended and implanted the mesh.

The underlying lawsuit has a somewhat complex procedural history because complications following surgical mesh implantations have occurred in multiple jurisdictions, and there are multiple courts hearing related disputes. In this case, one of the corporate defendants removed the plaintiff’s lawsuit from New Mexico state court to federal court based on diversity of citizenship jurisdiction. Then some aspects of the plaintiff’s lawsuit were swept into multi-district federal litigation in West Virginia. The case was ultimately remanded to the District of New Mexico, after some of the defendants were dismissed, for resolution of the claims the plaintiff asserted against the doctor who allegedly recommended and implanted the mesh. The plaintiff then filed an amended complaint alleging that the doctor who treated her had committed medical negligence by implanting the mesh in her body.

As part of the doctor’s defense, his counsel brought a motion to compel responses to discovery by the plaintiff. The plaintiff opposed the relief requested. The court adjudicating the motion to compel understood the defendant doctor to be seeking discovery of communications between the plaintiff (and her attorneys and other agents) and the defendants who were dismissed out of the lawsuit (and their representatives, agents and insurers). Under Federal Rule of Evidence 408, evidence of settlement discussions is inadmissible for certain purposes, but some courts have held it still can be discovered as long as a heightened standard is met. The heightened standard can be met when (1) the party seeking the discovery has a special need for the materials; (2) unfairness would result from a lack of discovery of the materials; and (3) the party’s need for the evidence outweighs the interest in maintaining confidentiality.

In this case, the court concluded that it need not decide whether to apply this heightened standard because the court was of the view that the defendant doctor had failed to demonstrate that the communications were relevant to his defense. As the court explained, citing a ruling by the Court of Appeals of New Mexico for this point, “there is no right to reduction of a jury award based on out-of-court settlements when the case is tried on a theory of comparative fault.” The court rejected the various arguments by the doctor to the contrary and denied his motion to compel.

If you or a loved one has been hurt in an accident, you may be entitled by law to receive a monetary award. In some cases multiple parties can be liable for the payment of money damages. Receiving damages can help injured people and their families recover out-of-pocket costs including medical bills and lost wages. The legal process for pursuing a recovery can be complex, and you should not have to navigate the process on your own. We can help. To understand more about your case and how it can be pursued to maximize your financial recovery, call New Mexico personal injury lawyer Matthew Vance. At the Law Office of Matthew Vance, P.C., we provide a free consultation and can be reached at (505) 242-6267 or contact attorney Matthew Vance online.

The underlying personal injury suit was filed more than one year but less than two years after a house fire, which took the life of a woman who was living in the house. Representatives of the woman’s heir and of the woman’s estate sued the home security company that had purportedly provided home protection services. For $37.99 a month, the company had promised round the clock monitoring services. Its advertising was attention-getting and included promises of 24/7 professional monitoring centers that would address alarms immediately to make sure help was on the way. Yet, after receiving an alert late at night, the company made some calls from an unidentified number to try to investigate, but did not send help to the house or call the police or fire departments for help.

The contract pursuant to which the company provided its services did not include the promises made in the company’s advertising campaigns. The contract purported to limit liability to the lesser of $300 or 6 times the monthly service fee, and included a one-year suit limitation provision.

The company moved to dismiss the lawsuit against it on the basis that the lawsuit, then pending before the U.S. District Court for the District of Kansas, was untimely because it was brought more than one year after the house fire. The district court granted the home security company’s motion to dismiss, and the heir and estate representatives appealed the dismissal of their lawsuit to the U.S. Court of Appeals.

The U.S. Court of Appeals rejected the appellants’ arguments in favor of reversing the lower court’s ruling. First, the appellate court rejected the argument that the lower court should not have reached the issue of dismissal. The argument was based on the premise that the court wrongly considered an affirmative defense in the procedural posture of a dismissal motion. The court reasoned that, while some affirmative defenses may not lend themselves to consideration in this procedural posture, the time bar in this case was apparent from the face of the complaint. The court then rejected the appellants’ argument that the contract with the home security company was unconscionable. The court was of the view that when people pay small monthly premiums, it is not unconscionable for liability to be limited.

Next the Court rejected the appellants’ argument that the home security company’s wanton behavior and gross negligence voided provisions of the contract. The court also rejected the appellants’ invitation to treat the contract as void or unenforceable as a matter of public policy. The court went on to reject the appellants’ claims they were not bound by the contract because they were not parties to the contract. The court viewed their claims as being barred because they were tort claims covering basically the same claims as the contract. Finally, the court rejected the argument that the one year period for bringing a lawsuit should be tolled because the suit was brought on behalf of a minor. Before delivering its conclusion affirming the district court’s dismissal of the lawsuit, the appellate court wrote that because the deceased “would be unable to bring a claim more than a year after her death, those seeking to bring a wrongful death action are similarly limited.”

If you or a loved one has been hurt in an accident, there may be grounds for a financial recovery. In some cases multiple parties can be liable for the payment of money damages. Receiving damages can help injured people and their families recover out-of-pocket costs including medical bills and lost wages. To understand more about your case and how it can be pursued to maximize your financial recovery, call New Mexico personal injury lawyer Matthew Vance. At the Law Office of Matthew Vance, P.C., we provide a free consultation and can be reached at (505) 242-6267 or contact attorney Matthew Vance online.

As part of its defense, the tire manufacturer unsuccessfully moved the court to enter a partial summary judgment in its favor holding that the plaintiffs could not recover compensatory damages for aggravating circumstances under New Mexico law.

Under New Mexico law, the personal representative of a wrongful death estate can recover compensatory damages on behalf of the estate. When determining whether it is appropriate to award compensatory damages, a New Mexico jury can consider mitigating or aggravating circumstance attending the allegedly wrongful act, neglect, or default. While compensatory damages generally are made available so that injured parties are made whole, compensatory damages under New Mexico’s wrongful death statute also further the interest of deterrence. Compensatory damages in aid of the public policy interest in deterrence can be awarded even in instances where punitive damages cannot be awarded.
In this case the defendant took the position that the record before the court on summary judgment showed that there was no evidence in existence that could support an award of compensatory damages for aggravating circumstances. The plaintiffs countered that a reasonable jury could find in their favor on this issue and, therefore, partial summary judgment should be denied. In support of their position the plaintiffs directed the court’s attention to evidence in the record supporting their assertion that contamination in the tire manufacturing process contributed to the injurious tire blow out.

The court reasoned that a reasonable jury could find aggravating circumstances based on the facts presented by the plaintiffs, much as the facts were disputed by the defendant. This is not to say that a jury would find for the plaintiffs. The court explained that the defense motion may have been premature insofar as the court was being asked to rule on the existence of aggravating circumstances without having the benefit of considering all of the evidence presented to a jury. Accordingly, the court denied the tire manufacturer defendant partial summary judgment while not precluding the defendant from renewing its motion at the close of evidence at trial. By not precluding an award of compensatory damages for aggravating circumstances, the court enabled the plaintiffs to make the best case they could in support of a substantial financial recovery.

If you or a loved one has been hurt in an accident, there may be grounds for a recovery of monetary damages. Collecting damages can help people who have been injured and their families cover out-of-pocket costs including medical bills and lost wages. To understand more about your case and how it can be pursued to maximize your financial recovery, call New Mexico personal injury lawyer Matthew Vance at the Law Office of Matthew Vance, P.C. We provide a free consultation and can be reached at (505) 242-6267 or contact attorney Matthew Vance online.

Last November a person filed a federal complaint against the City of Albuquerque and its Mayor, asserting claims for unlawful taking under the U.S. and New Mexico Constitutions and related claims for trespass and nuisance. The plaintiff’s lawsuit arose from the city’s alleged catch and release of feral cats and kittens as part of a trap, neuter and release (“TNR”) program. Under the TNR program, the plaintiff alleged, cats and kittens are trapped, sterilized, vaccinated and released. The plaintiff alleged that, as a result, she and her neighbors and children are exposed to an extreme nuisance, disease, property damage and a reduction in property values, and that the problem is continuing because the TNR program is continuing. The complaint attracted the attention of local news outlet KRQE, which ran a story reporting that, as of September 2019, 2,100 cats had been picked up of which 1,700 had been re-released.

The defendants responded to the complaint by filing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Under this rule a federal court is to review a complaint to assess whether its factual allegations state a claim for relief that is plausible on its face.

In its analysis the court explained that the Fifth Amendment of the U.S. Constitution prohibits the taking of private property for public use without just compensation. Further the court explained that a regulatory action need not deprive a property owner of rights entirely to amount to a taking. Rather, a regulatory action can amount to a taking when it goes too far. Based on cases decided in other contexts including cases concerning grazing by feral horses, the court reasoned that that colonies of cats did not constitute government occupation of the plaintiff’s property. The court went on to reason that the TNR policy of the City of Albuquerque, pursuant to which cats and kittens were being caught and released, ought to be considered an exercise of police powers and not an exercise of eminent domain powers. Using this approach, the court reasoned that the injuries to the plaintiff and her property were “incidental” to the TNR program, thereby precluding recourse under the U.S. Constitution’s protections against the taking of private property.

In the alternative, the court conducted a takings analysis. The court considered the “character” of the TNR program, and assessed the character as not regulating the plaintiff’s property specifically. The court also was not satisfied that the value of the property had been diminished based on the plaintiff’s allegations she had told a prospective buyer about the cats and then the prospective buyer backed out of purchasing the property because he did not want to live close to the cat colony.

The court provided other reasons for dismissing the complaint against the City and Mayor of Albuquerque, including that alleged continuation of the policy instituted by the prior mayor was not a sufficient basis for imposing liability on parties enjoying the protections of qualified immunity under federal law. After reviewing the state law claims for a taking under New Mexico law, and trespass and nuisance under New Mexico law, the court decided to decline to exercise its supplemental jurisdiction over the plaintiff’s state law claims. Ultimately, the court granted the motion to dismiss with prejudice, concluding that it was appropriate to dismiss the plaintiff’s claims based on federal law with prejudice and dismiss the state law claims without prejudice to reasserting them in state court.

If you or a loved one has been injured by the actions of a third party, there may be grounds for a recovery of monetary damages. Collecting damages can help people who have been injured and their families cover out-of-pocket costs, including medical bills, and costs of repairing property damage. To understand more about your case and how it can be pursued to maximize your financial recovery, call New Mexico personal injury lawyer Matthew Vance at the Law Office of Matthew Vance, P.C. We provide a free consultation and can be reached at (505) 242-6267 or contact attorney Matthew Vance online.

By the time the court adjudicated the motion to dismiss their claims the plaintiffs were over 24 years old. The teacher and the school who has been sued removed the case to federal court, and sought dismissal of the claims based on alleged untimeliness.

The court first analyzed whether the applicable statute of limitations warranted dismissal of the plaintiffs’ federal claims. The court explained that, with respect to the causes of action based on federal law, federal courts apply the statute of limitations and tolling laws of the relevant state. In this case, New Mexico law provided a three year statute of limitations, and it was clear from the complaint that it was brought after the expiration of the three year period. Accordingly, the court analyzed whether there was a basis to toll the statute of limitations with respect to the federal claims. The court concluded that the plaintiffs’ alleged incapacity provided a basis for tolling the statute of limitations. The plaintiffs had alleged that they had suffered from problems including post-traumatic stress, dissociation and drug addiction. The court accepted that these allegations plausibly established incapacitation, for purposes of assessing the merits of the motion to dismiss. The court also explained that whether the plaintiffs’ condition, in fact, incapacitated them was an issue that should be deferred until the parties brought summary judgment motions or tried the case.

After analyzing the timeliness of the plaintiffs’ claims based on federal law, the court turned to the plaintiffs’ state law claims under the New Mexico Tort Claims Act (NMTCA). The NMTCA includes a two year statute of limitations. However, claims can be preserved by equitable tolling. Equitable tolling of the statute of limitations can be achieved in cases in which plaintiffs have diligently pursued their rights and extraordinary circumstances were in their way. Similarly, tolling based on the equitable estoppel doctrine can be achieved where a party makes false representations or conceals facts with an intent to deceive, and the deceived party changes positions in reliance.

Ultimately the plaintiffs would need to prove their case to achieve a court-ordered recovery based on federal or state law for their damages. For the time being, the court declined to dismiss their claims based on alleged untimeliness and gave them a chance to proceed with the litigation.

If you or a loved one has been injured by a third party, there may be grounds for a recovery of monetary damages. In some situations, multiple parties are liable for compensating injured parties. Collecting damages can help people who have been injured and their families cover out-of-pocket costs, including medical bills. An award of damages can also help compensate people for lost wages. To understand more about your case and how it can be pursued to maximize your financial recovery, call New Mexico personal injury lawyer Matthew Vance at the Law Office of Matthew Vance, P.C. We provide a free consultation and can be reached at (505) 242-6267 or online.

Allegedly two people were trying to purchase a video game console from an electronic gaming store in Santa Fe, and were asked to leave because they were attempting to make the purchase with a fraudulent credit card. The man standing behind them succeeded in purchasing a video game console, left the store and went to the parking lot. He sued the company that owned the store after being attacked in the parking lot by the people who had been ahead of him in line at the store, who had been unsuccessful in buying a video game console.

The plaintiff did not name as a defendant to the lawsuit the landlord of the store. The lease between the owner of the store, a company that the defendant had named in his lawsuit, and the landlord who leased the store its space, a company that the defendant had not named in the lawsuit, provided that the parking lot was a common area to be used by tenants as a common area. The lease also reserved control of the parking lot to the landlord.

The injured plaintiff sued the defendant store owner in state court. The defendant store owner removed the case to federal court and sought summary judgment dismissing all claims asserted against it. The U.S. District Court to which the case was removed first assessed whether its exercise of jurisdiction over the dispute would be appropriate. The court was satisfied that the exercise of jurisdiction was appropriate because the amount in controversy exceeded $75,000, satisfying the threshold for the exercise of federal jurisdiction in cases based on diversity of citizenship.

The court then moved on to the merits. The court explained that New Mexico law imposes on property owners a duty to keep premises safe for use by a visitor. That duty extends to protecting a visitor from harm by third parties that poses a foreseeable risk. The court went on to explain that it is shopping mall owners, and not the shop keepers, who have responsibility for the conditions in the common areas. This was consistent with the lease between the defendant shop keeper in this case, and the shop keeper’s landlord. That lease provided that the parking lot was part of a common area open to use by all tenants, and was subject to the landlord’s management and control.

While the plaintiff asserted that he did not know if the defendant had maintained the parking lot, notwithstanding the terms of the lease, the court did not find this adequate for defeating the grant of summary judgment. The court also rejected the plaintiff’s argument that the defendant had prior notice of a dangerous condition. That argument was contradicted by an affidavit presented on behalf of the defendant, which made representations under penalty of perjury including that the defendant’s store was not located in a high crime area, and that the defendant had not been notified in the past of dangerous conditions or crimes in the parking lot. The court granted the defendant’s motion for summary judgment.

If you or a loved one has been injured in an accident, there may be grounds for a financial recovery. Sometimes multiple parties can be responsible for payment of damages resulting from an accident. An award of monetary damages can assist people who are injured and their families with the medical costs, lost wages, and pain and suffering. To understand more about how your premises liability case can be pursued in a manner that maximizes your recovery, call New Mexico personal injury lawyer Matthew Vance at the Law Office of Matthew Vance, P.C. We provide a free consultation and can be reached at (505) 242-6267 or online.