Unfortunately for those who want to make use of the beautiful summer weather and vacation from school, the summer months often experience an uptick in car crashes because of several increased risk factors. What makes the summer roads so dangerous?

More Drunk Drivers

Some of the most dangerous holidays for intoxicated motorists fall during the summer months. People may drink too much on the 4th of July or at a Memorial Day barbecue, resulting in a higher rate of drunk driving crashes during the summer than in any other season throughout the year. Good weather often leads to outdoor celebrations and barbecues, which unfortunately might mean an elevated risk of a collision even when the nearest holiday is weeks away.

More Teen Drivers

Young adults struggle to drive safely for multiple reasons. They simply lack the experience necessary and have many years of driving ahead before they truly master the rules of the road. They are also prone to make unsafe and dangerous decisions because their brains are still developing.

The summer months see far more young drivers on the road throughout the day because they don’t have school. They may drive themselves to social events or part-time jobs. Thanks to more miles traveled, the summer months often see a surge in collisions caused by younger drivers. Teen drivers are at such elevated risk for crashes that safety experts recommend that parents revisit traffic safety rules with young adults early in the season for their own protection.

Additionally, driving in unfamiliar areas can increase someone’s distraction levels and the likelihood that they might make a mistake or an oversight at the wheel. Recognizing factors that increase someone’s summertime crash risk can help them ensure that their next road trip is a pleasant memory rather than the cause of a major motor vehicle collision.

Families members who lose a loved one in a tragic scenario like a drunk driving collision will often feel confused about their rights in relation to the recent tragedy. Many may not know that they have a right to seek compensation for their loss. Below are a few ways family members can obtain recourse.

They Can File an Insurance Claim

Every driver in New Mexico has to carry liability insurance coverage, which means that those who lose a loved one in a crash typically have the right to file an insurance claim. Even though drunk driving is clearly a violation of state law, standard insurance will apply in most cases.

They Can File a Civil Lawsuit

There are two kinds of lawsuits generally possible after a deadly drunk driving crash in New Mexico.

The first would be against the driver who caused the collision. A wrongful death claim against the at-fault driver can them accountable. The second type of lawsuit is known as a dram shop claim. Under New Mexico law, businesses have to comply with state liquor laws and that means that if they serve an individual under the age of 21 or already visibly drunk, they could be liable.

Looking into every option for justice after a deadly drunk driving crash with the assistance of a legal professional can help surviving family members protect themselves and create consequences for the parties that caused their loss.

The Law in New Mexico

New Mexico law defines reckless driving as driving “any vehicle carelessly and heedlessly in willful or wanton disregard of the rights or safety of others and without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property.” A person convicted of reckless driving can face jail time and/or fines.

The driver can also be held liable for civil damages if they harm someone.

Obtaining Compensation From a Reckless Driver

Victims of reckless drivers can seek damages, to pay for medical bills and other expenses as well as non-economic damages like pain and suffering. You can also seek punitive damages. These types of damages are meant to deter the at-fault driver and others from engaging in such egregious behavior. Depending on the circumstances, in New Mexico, punitive damages can be as much as ten times the amount of compensatory damages.

Certainly, no amount of money can bring back a loved one or undo injuries you might have to live with for the rest of your life. However, they can mitigate the financial damage done and make things a little easier financially as you move forward.

By hiring an experienced legal advocate, you can improve your chances of getting the maximum possible compensation.

The problem with this, however, is that alcohol is often involved. This means that drunk driving accidents are more likely over this holiday season. For many people who are injured or who lose loved ones in accidents caused by drunk drivers, the holidays certainly become a much different experience than they expected.

A Notable Increase

For example, one study looked at drunk driving deaths around New Year’s. It found the single holiday caused a spike rising over the baseline average by about 116%. In other words, there are always going to be fatal drunk driving accidents, and that’s always a risk that you face. But you clearly face a greater statistical risk if you are driving around the holidays.

The Biggest Bar Days

Likewise, the holidays are some of the biggest bar days of the year. Many people go out for New Year’s, and it’s a guarantee that some of them will try to drive home afterward, even though they’re too intoxicated to do so. It’s also often said that the days around Thanksgiving are some of the major bar holidays because college students who are home want to meet up with friends that they haven’t seen lately.

Why Does It Happen?

Drunk driving happens for a lot of different reasons. The social events noted above just provide the reasons for higher levels of intoxication, not necessarily drunk driving. That is something that occurs because people will believe it’s safe to do once, because they neglected to get a designated driver, because everyone in the group is impaired or simply because they’ve consumed so much alcohol that they’re not thinking clearly and they don’t understand how intoxicated they are.

If you have lost a loved one in one of these accidents, make sure you are well aware of the legal options at your disposal.

But what if that driver harmed a motorist? What rights do you have if you suffered injuries after a car crash caused by a drunk driver?

You Can File an Insurance Claim

Every driver in New Mexico is required to carry liability insurance coverage. However, even if a driver has an insurance policy, it may not provide the coverage needed to pay for catastrophic injuries. But there is another option.

You Can File a Civil Lawsuit

Those injured in auto accidents by drunk drivers in New Mexico have the ability to pursue a lawsuit against the at-fault driver. A judgment could award you compensation for medical expenses, lost wages, property damage costs and others not covered by insurance.

You Could Hold a Business Responsible

If a drunk driver was consuming alcohol at a bar or restaurant before the crash, the business that served the individual may be liable under the theory of dram shop liability. The dram shop laws in New Mexico pass liability onto businesses if a representative of the establishment, like a server or bartender, serves a patron who is visibly drunk or under the legal age for consuming alcohol and later causes harm to another person.

For those with catastrophic losses, a dram shop claim could be a fair and appropriate way to seek compensation to pay for medical expenses and other costs related to the accident.

While you may understand the basics of what happens after a crash with another passenger vehicle, you may not fully understand what happens after a collision with a delivery vehicle.

What protection do you have after a delivery driver or delivery fleet vehicle crashes into you?

The Right to File an Insurance Claim

Typically, the companies that have their own delivery fleets or that hire contractors have comprehensive commercial insurance policies protecting against the liability that comes with delivery driving. However, there will be situations where you make a claim against an individual’s policy rather than a company policy.

When you get into a crash caused by a rideshare driver without a passenger or an on-demand delivery driver in their own vehicle, you may depend on their personal policy rather than the company policy. Commercial policies generally offer more robust protection than individual policies, so it may be worth looking into what kind of coverage is available after a crash caused by a delivery vehicle.

You Could File a Civil Lawsuit

Sometimes, delivery drivers put others on the road at risk. Some text while driving, drive while fatigued, or drive while under the influence. If a delivery driver did something overtly negligent, you may have grounds to pursue a personal injury lawsuit.

If the accident involved a poorly-maintained fleet vehicle, the employer of the delivery driver could be to blame. The same is true in scenarios that relate to the company’s demands on a worker or negligent employment practices, like hiring someone with a prior drunk driving conviction.

Determining the full cost of the crash is very important after an accident involving a delivery driver. Seeking a legal professional who can help determine who and how much is advised.

Fortunately, you are now ok and on your road to recovery. However, you are still unable to return to work. Your physician has indicated you will need to complete extensive physical therapy in the upcoming future and likely require additional surgical procedures.

A few days after returning home, the at-fault driver’s insurance company has contacted you and offered you a settlement. What do you do?

This situation happens all too often for those seriously injured in car accidents. So, the question remains: Should you take the settlement?

No. Here are three reasons why.

Reason 1: Insurance Company Profits

Insurance companies are in business to make money, not pay out claims. In many cases, they will offer a claimant a very low settlement amount in the hopes that it’s enough to entice them to accept. Unfortunately, most offers are far from what an injured parties needs to recover.

Reason 2: Limited Knowledge of the Law

The law on what you can recover for auto accident injuries is complex. Insurance adjusters know the average person isn’t likely to know exactly what types of compensation they are entitled to recover.

Many injured parties may be aware that they can get reimbursed for medical expenses. But what about lost wages from taking time off work? How about future compensation for surgical procedures that are needed down the line?

Reason 3: Prohibition Against Future Claims

Once you accept a settlement offer from an insurance company – even if it seems lucrative – you will likely be required to sign an agreement that forgoes your option to pursue future compensation for anything related to the accident or your injuries. In the event you discover 5 years down the line that you need a very invasive surgical procedure, you will not be able to recover.

The best course of action before accepting any offer is to get a legal advocate who knows the law and knows what you are entitled to. He or she can ensure to pursue the compensation you need not just today but in the future.

When you understand these potentially serious injuries, you will be in a better position to protect yourself on the road and also in the immediate aftermath of a motor vehicle collision.

What Constitutes a Traumatic Brain injury?

A TBI occurs when someone has bleeding or bruising on the brain or inside their skull. This inflammation or bleeding will put pressure on the brain and can cause alarming symptoms.

The consequences of a TBI range from changes in sensory processing and motor function to shifts in personality and protracted unconsciousness. In extreme cases, people may end up dependent on life support and unable to return to work after a traumatic brain injury.

How Do Car Crashes Cause TBIs?

There are numerous ways that a car crash could cause a TBI. The first and most obvious is blunt force trauma. Someone thrown from the vehicle will likely hurt their head. Individuals can also strike their heads on the windows or frame of the vehicle during a crash, which can lead to a TBI.

However, you don’t have to actually hit your head to hurt your brain. The violent motion of the vehicle could cause your brain to move around inside your skull and cause swelling and bleeding. People can also develop brain injuries because of penetrating wounds caused by shrapnel in the collision. Explosions, while rare, can cause percussive force that injures the brain.

You may not notice the signs of the TBI right at the scene of a crash. It could be days before you start to notice the change in your sleeping habits or your vision that makes you think you need to see a doctor. The sooner you obtain an accurate medical diagnosis, the easier it will be for you to prove that your brain injury is the result of a car crash.

TBIs can lead to both massive medical bills and also lost earning potential. For some people, the cost of a TBI will be high enough that they need to look into secondary sources of financial compensation after a car wreck. Understanding the connection between motor vehicle collisions and brain injuries can help those coping with the aftermath of a recent wreck.

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.

If you got hurt in a wreck as a passenger in one of the vehicles involved, you may have questions about what rights you have to compensation. After all, medical costs after a crash can add up to tens of thousands of dollars, and you could lose weeks of income while you recover.

What insurance and personal injury options are available to passengers hurt in New Mexico collisions?

Determining Fault is Important

Insurance companies only want to pay when there is an active policy and the policyholder is the one with final liability for a situation. Although one insurance company may initially make a payment to those affected by a crash, they may subrogate the claim later by asking for compensation from someone else’s insurance company.

If the driver of the other vehicle is to blame for the collision, then, as an injured passenger, their insurance policy will theoretically pay for your medical costs and property damage expenses. If the vehicle you were in is the one at fault for the crash, then the owner of that vehicle will provide you with insurance coverage. Your policy could help you if the driver at fault for the crash does not have enough insurance to pay for all the damages they caused or if they didn’t have insurance at all.

What About Civil Litigation?

Those left injured by a serious car crash in New Mexico can file lawsuits against the driver who caused their injury or even third parties who contributed to the collision. Typically, you need some evidence of misconduct or negligence to have a viable claim in court, and you will also need proof of expenses that their insurance would not cover.

Many people dealing with the aftermath of a serious car crash require help getting the compensation they require given the circumstances. Learning more about insurance and personal injury laws can help those affected negatively by New Mexico motor vehicle collisions.

These factors can include:

• Delivery schedule pressure: The holiday season brings increased consumer demand and pressure on the supply chain. Truckers are often encouraged to drive the maximum allotment of hours leading to fatigued driving. Additionally, truck drivers might speed or drive recklessly to make deliveries ahead of schedule to receive a pay bonus.
• Increased distractions: Whether it is phone conversations with loved ones or keeping up with friendly correspondence such as text and email, truck drivers often seek to pass the time while behind the wheel. Unfortunately, these activities pull focus and attention from the road potentially causing distracted driving collisions.
• Impaired driving: For a professional truck driver, impairment can mean a variety of things. Drugs and alcohol are the most common examples, but drivers could also find themselves relying on strong cold medicine or prescription medications with serious side effects.
• Lack of rest: Pressure to maintain a tight schedule or complete deliveries to get home for the holidays could encourage a trucker to push past their natural limits of exhaustion. Fatigued driving can lead to the loss of focus, perceptive challenges and eventually falling asleep while in control of the truck.
• Crowded roads: With normal commuters on the roads, the increased holiday travel and augmented truck delivery schedule means there are even more cars and trucks on the roads.
• Poor weather: While Albuquerque might not see regular snowstorms over the winter months, changing weather patterns can still cause problems. Strong winds, rain, fog and the occasional flurry can all lead to a dangerous trip.

Any of these factors can result in a traffic disaster. Unfortunately, the holiday season can lead to the combination of many factors at the same time.

Motor vehicle collisions involving large commercial trucks can have devastating results. From the severe property damage to the catastrophic injuries suffered by vehicle occupants, these crashes can be life-changing. Depending on factors such as the speed of the collision, these crashes could prove fatal.

But what if you slip, trip or fall and get injured on the property? Can you hold the owner responsible for your medical expenses and other costs associated with your injury? If so, how?

A Property Owner’s Duty of Care

Under the law, property owners owe a duty to keep their premises reasonably safe for certain invitees and other members of the public. This means that, if they knew or should have known about a danger or hazard – such as spilled liquids on the floor, unsafe stair railings, large construction holes or unsafe areas – but failed to do anything about it, they could be liable if an injury occurred. This is referred to as premises liability.

New Mexico Negligence Laws

Unlike many other states, New Mexico applies the same rules to premises liability cases that they do to personal injury claims. New Mexico law uses the “pure comparative negligence” rule (sometimes called the “pure comparative fault” rule). This means that the court will compare the property owners fault to your fault (if any) in the incident when apportioning damages.

For example, after considering the evidence, the court finds you 20 percent at fault for your injuries and the property owner 80 percent at fault. If you are awarded $100,000, you would be able to recover $80,000 for your injuries.

Timeframes to File Suit

It’s also important to note that injured parties have a window of time that they can file suit against the property owner and recover compensation. This is known as the statute of limitations period. In New Mexico, you have three years to begin your lawsuit. If you fail to take action within that timeframe, you will likely be barred from recovering any damages.

The sooner you take action to pursue damages for your slip, trip or fall, the easier it will be for your attorney to gather evidence, interview witnesses and prepare your case.

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.

If this happens to you, what are your options?

How Negligence Lawsuits Work

When you bring a lawsuit against the responsible driver, your attorney’s job will be to demonstrate that the driver was negligent. There are four elements that your attorney must prove in order to win a negligence lawsuit.

First, they must show that the driver had a duty towards you to drive safely and keep you safe. Second, they must show that the driver breached that duty by driving carelessly. Then, they must show that you suffered injuries or property damage. Lastly, they must show that your injuries were the direct result of the driver’s breached duty.

What You Can Recover

The purpose of damages is to put you in the same position that you were in before the accident – or as close as possible. Thus, if you have had to pay medical expenses associated with your injury, including a hospital stay and medication, you can sue to recover the cost of those things.

You can also sue for injuries that aren’t tangible. For example, you can recover for pain and suffering, and loss of companionship. This is because physical suffering and the inability to enjoy time with your family are real consequences of your accident that you deserve compensation for.

Lastly, you can recover for property damage, such as the price of repairing the damage to your bicycle. You can also recover for lost wages for the time that you cannot work while you recover for your injuries. If the accident results in a permanent disability, you could also sue for loss of earning capacity.

Bicyclists deserve to be able to ride on roads and sidewalks safely. When a car hits a bicyclist, the law allows them to pursue compensation in an attempt to recover what they need to get back on their feet.

A Property Owner’s Duty of Care

Whether it’s a business or a private home, property owners are legally obligated to provide “reasonably” safe premises. They must check for hazards and repair them in a timely manner once discovered in order to prevent injury to others. Such hazardous conditions include but are not limited to:

• Wet floors
• Trash or other debris that constitute a tripping hazard
• Damaged flooring
• Poor lighting
• Cracked or broken pavement and sidewalks
• Electrocution hazards
• Malfunctioning elevators or escalators

Fortunately, those who suffer injuries from any of the above may be entitled to receive compensation (economic and noneconomic damages) for their injuries under what’s known as premises liability.

Those involved, however, should take note of a few considerations as it relates to their injury:

Time Limitations to File a Lawsuit

Injured parties have three years to file a premises liability claim in the state of New Mexico. This is known as the statute of limitations period.

While that may seem like a lot of time, it’s advisable to contact an experienced personal injury attorney immediately who can discuss possible recourse options and initiate the process, as the clock starts running on the date of your accident.

Preserving Evidence

It’s crucial to also keep any photos or videos of the scene you or a loved one may have taken, perhaps with your smartphone. This also includes any medical information, doctor or hospital visits. Such evidence can help in your recovery for compensation that includes current and future medical costs, lost wages as well as pain and suffering.

Understanding Comparative Fault

In New Mexico, property owners often assert what’s known as a “comparative fault” defense. In other words, they often claim that injured plaintiffs are in full or part to blame for an accident and should be barred from recovering compensation.

Some arguments asserted may include but are not limited to the following:

• You were injured in an area where visitors are not allowed
• Your footwear or clothing was inappropriate or unsafe
• You weren’t paying attention to what you were doing, such as being on your phone

Case-In-Point

If you are, for example, found 25% responsible for the accident, and you were awarded $100,000, the damages you collect can be reduced by $25,000. If you are found mostly responsible, (75% to blame) the damage amount you recover could be reduced to $25,000.

The above are a few issues injured parties should consider when thinking about filing a lawsuit against a property owner. However, the law is complex. Speaking to an attorney with a background in premises liability lawsuits can help address questions, recourse options and compensation as they relate to your individual circumstances.

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.

What Is an Attractive Nuisance?

An attractive nuisance is something on your premises that seems enticing to small children, and that could lead to a serious injury. For example, if you have a swimming pool, a large pile of dirt, horses or a water fountain, you can expect that passing children will likely attempt to play with these things.

Under our legal system, small children are typically immune from trespassing. In other words, even if they encroach upon your property uninvited to play with the attractive nuisance, and they are hurt by it, you cannot use their trespass as a defense to a possible lawsuit like you usually could against an adult.

Instead, the law expects property owners to take into account the likelihood of trespassing children and take steps to keep them safe regardless.

What You Can Do About It

The doctrine of attractive nuisance provides courts with several factors to consider when deciding whether the premises owner is responsible for the injury of the child. For example, the court will take into consideration the child’s age and ability to comprehend the danger.

Importantly, the court will also take into account your efforts to prevent the harm as they decide whether you exercised reasonable care. If they determine that you did everything that was feasible to deter children from accessing the dangerous condition, and they do so anyway, then you may not be liable.

Examples of measures of reasonable care that you could take include physical barriers such as fences, warning signs, cameras, lights and other safety measures. If you see a child on your property and take steps to warn them of the danger and lead them away from it to safety, that can go a long way in proving to the court that you were aware of the danger and tried to mitigate it.

A negligence lawsuit can be devastating to any business or home owner. Make sure you are aware of possible dangers to children on your property and take steps to make them as safe as possible for your sake, and for the sake of the children.

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 defendants removed the complaint from state court to the U.S. District Court for the District of New Mexico then filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). The District Court granted the defendants’ dismissal motion, concluding that the plaintiffs failed to allege a duty or injury sufficient to support a claim for negligence and failed to plead sufficient facts giving rise to an implied contract. The plaintiffs appealed to the U.S. Court of Appeals for the Tenth Circuit.

The Court of Appeals explained at the outset of its analysis that it was applying a de novo legal standard. The Court also observed that, because the plaintiffs’ claims arose under state law, the Court was to apply New Mexico law to achieve the result that would be reached in a New Mexico court.

First, the Court of Appeals considered whether the plaintiffs’ negligence claims were properly dismissed. The Court assumed for analytical purposes that the defendants could owe the plaintiffs a duty of care because they contracted with the medical center to staff the emergency room with physicians and controlled the physicians that treated the plaintiffs. However, the Court criticized the plaintiffs’ theory of recovery, asserting the plaintiffs were unable to cite authority suggesting that a doctor’s duty to provide competent medical care requires entities that employ doctors to charge an unspecified reasonable fee.

The Court further reasoned that a broad concept of duty under New Mexico law does not transform all perceived wrongs into negligence claims and that the plaintiffs did not state a claim for negligence based on allegations of having been billed at unreasonable rates, causing the plaintiffs to pay bills that were too high and, in some cases, damaging their financial stability and credit ratings. Based on its review of the record, the Court affirmed the dismissal of the negligence claims. The Court also affirmed the dismissal of the plaintiffs’ contractual claims and claims of unconscionability.

If you or a loved one has been hurt in an accident, there may be grounds for a financial recovery. Receiving money 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 send us a message online.