Automobile accidents are pretty common in Albuquerque. It is estimated that there are greater than 6 million auto accidents in the United States each year.
Many of these accidents are extremely serious, leading to grave injury and even wrongful death. The Albuquerque car accident attorneys of Collins & Collins, P.C. are here to help the victims of auto wrecks all across New Mexico.
People involved in auto accidents and their aftermath are typically vulnerable and disoriented. We have compiled some essential tips to help accident victims navigate the tricky world of auto insurance adjusters, health care providers, and the legal system.
Table of Contents
- Important First Steps in an Auto Accident
- Auto Accidents Can be Devastating to the Victims and Their Families
- How to Deal with Insurance Companies After an Auto Accident
- Why and How You Should Document Your Injuries
- Establishing Liability (Fault) in a Car Accident
- Frequently Asked Albuquerque Auto Accident Questions
- Less Common Questions That Can Come Up
- Why an Insurance Adjuster is Not Your Friend
- DWI Car Accident Personal Injury Claims
- DWI Accidents are Covered by Auto Accident Insurance
- Every Case is Unique and Requires Individualized Analysis
- Why You Should Never Delay (There are Important Deadlines)
Important First Steps in an Auto Accident
After a motor vehicle accident, you may have questions regarding the essential first steps to protect your rights. You may also be wondering if you should talk to the other driver‘s insurance company. These are crucial questions, so we have provided information on these issues and several other Frequently Asked Questions in Auto Accidents.
Auto Accidents Can be Devastating to the Victims and Their Families
Almost 500,000 spinal cord injuries occur each year. Auto accidents are the leading source.
Even seemingly minor automobile accidents can result in serious physical injuries.
Thousands more suffer other severe injuries from vehicle accidents. Far too many will lose their lives, mainly in New Mexico, which consistently ranks high among the states in fatalities from car accidents.
Unfortunately, despite the many efforts to curb DWI in the State and local areas (such as Albuquerque DWI blitzes), New Mexico also ranks high for DWI accidents and DWI fatalities.
Our typical clients at Collins & Collins, P.C. have suffered grave physical injuries. They often lack medical insurance for coverage of their injuries. The injured driver typically has no medical payments coverage (Medpay) that would cover at least a portion of their medical expenses.
As a result, they are having trouble obtaining appropriate medical treatment. Their injuries have caused them to miss extended periods of work. In short, a car accident turns people’s lives upside down.
Dealing with Insurance Companies can be a Nightmare
Perhaps most frustrating for those injured in car accidents, they must then deal with the negligent driver‘s insurance company as well as their own. The insurance issues associated with car accidents can be pretty complicated. Many insurance issues will come up with the other driver‘s insurance and your own. Insurance adjusters are often highly adversarial, sometimes even your insurance company adjuster, raising the question of whether you should speak directly to the insurance adjuster without the assistance of a car accident lawyer.
Insurance issues are a maze full of pitfalls. To navigate this maze, it is beneficial to contact an attorney. The complexity of the insurance issues coupled with less than helpful adverse insurance companies suggests you contact an attorney if you have been seriously harmed in an auto accident. There are many complexities, and every case is different, requiring individual analysis.
Dealing with the insurance companies following a vehicle accident can be confusing and frustrating. Even dealing with your own insurance company can be a nightmare. However, dealing with the other driver‘s insurance company is more than just disappointing; it can be pretty hazardous without caution.
It would be best if you did not give statements to any representative of an insurance company, either written or verbal, without first speaking with an attorney.
As a rule, you should not speak directly to the other driver‘s insurance company. Specifically, you should not give statements to any representative of an insurance company, either written or verbal, without first speaking with an attorney. This is particularly true in cases involving severe injury or wrongful death where the insurance company is disputing liability or fault for the accident.
Rest assured that these statements can and will later be used against you if possible.
In short, though they are pretty standard, auto accidents in New Mexico or anywhere else are not familiar to seriously injured victims. They are often quite devastating. If you have been a victim of an auto accident, the long-term consequences can devastate your health, family, and finances.
Why and How You Should Document Your Injuries
Careful documentation of your injuries will go a long way toward recovering your damages.
If you are injured, then you must document your injuries to recover damages for those injuries. It is essential to do this from the beginning.
In case of a severe auto accident, injured persons are transported to the hospital by ambulance. This will provide a good record of your injuries.
However, many injuries are not apparent right away or do not justify ambulance transport. If the injuries become more prominent later, as neck and back injuries often do, seek medical attention as soon as possible.
If there are visible injuries, but you did not get transported by ambulance for whatever reason, take pictures of your injuries immediately. If the injuries worsen, retake pictures. Careful documentation of your injuries will go a long way toward compensation for your injuries.
Establishing Liability (Fault) in a Car Accident
Police reports and witness statements are often beneficial in identifying fault for the accident.
In addition to documenting your injuries, as alluded to above, you must also prove liability. You must show that the other party was at fault, at least partially, for the auto accident to recover against their insurance.
Without fault, there will be no liability. In other words, if the other party did not cause the accident, they will not be held responsible for your injuries.
Police reports are often beneficial in identifying fault for the accident. However, police reports are often hastily written or, for several reasons, may not identify the fault. Witness statements are often critical in these cases if and when the insurance company disputes liability.
As such, you or someone on your behalf, if you are not able, should obtain the names, numbers, and addresses of witnesses. If possible, they should give written statements to either you or the police. These statements may go a long way in discouraging an insurance company or the other driver from later denying fault.
Frequently Asked Albuquerque Auto Accident Questions
You probably have many questions if you or a loved one were involved in an automobile accident. We have created this section for the most frequently asked questions related to vehicle accidents.
Most people’s questions revolve around a few areas of the law. Among the first and most essential questions involves how one should deal with their own and the other driver’s insurance company.
Will My Case Settle Before it Goes to Court?
Not every auto accident needs to go to court. Many, if not most, can be resolved without filing a lawsuit.
Frequently, Collins & Collins, P.C. can settle claims without filing a lawsuit. Settling things out of court can keep litigation costs down. More importantly, it helps get a fair and prompt resolution of your claims while avoiding extremely stressful and intrusive litigation.
On the other hand, there are some insurance companies and adjusters that just will not play fairly. In these cases, litigation is unavoidable.
Filing Suit May be Necessary for a Fair Resolution of Your Claims
Even though most cases will settle without litigation, it is essential to proceed as if every case will go to trial.
As with all industries, there are good and bad insurance companies. Some will not offer a fair settlement for your claims no matter how well the liability and damages are proven.
In these cases, there is no option but to file a personal injury lawsuit. In cases of clear liability and damages, even the worst insurance companies will often come around during litigation. Unfortunately, this may not occur until shortly before trial. There are also those cases where a trial is necessary.
The litigation process can be long and stressful, and anyone entering into litigation should understand this and prepare accordingly. However, understanding the process and having an experienced Albuquerque auto accident attorney at your side can go a long way to minimizing stress.
Should I talk to the insurance company after my accident?
DO NOT TALK TO THE INSURANCE COMPANY
Insurance issues are common. Not only are they expected, but they can also potentially dictate compensation limits for personal injuries or wrongful death resulting from an auto accident.
Even before an auto accident victim considers contacting a car wreck attorney, the victim or their surviving family will likely receive calls from the insurance companies.
It is imperative to understand your rights in these cases. First and foremost, if you or a loved one has suffered severe injury or death, DO NOT TALK TO THE INSURANCE COMPANY. No matter how friendly they may seem, the adjuster is not your friend. The adjuster’s goal is to minimize payouts which means their interests are directly opposed to yours.
Who Pays My Medical Expenses When I Get Hit by an Uninsured or Underinsured Driver?
Unfortunately, the above question usually comes too late to do any good. In other words, the question is generally asked after an auto accident instead of before when knowing the answer could have done some good. Generally speaking, the party responsible for medical expenses depends on the policy language of whoever has insurance in the accident. It is best to ensure your policy has language that protects you in the event of an accident with an underinsured or uninsured driver.
The first part of this answer is a surprise and a disappointment to those in a position where the answer is important and timely. In short, your health insurance will likely be the primary source of coverage for your medical expenses in an auto accident. Worse yet, you alone will be responsible for your co-payments and deductible. The other driver’s insurance will not pay until there is a complete and final settlement of the claims.
Medical Payment Auto Insurance Coverage
Medical payment insurance coverage, often referred to as Medpay coverage, can be purchased in advance to help cover medical expenses in an auto accident. Medpay will pay medical expenses up to the coverage limits in your policy. The coverage is no-fault coverage, so your insurance company should not dispute with you whose fault it was.
It would be wise to purchase as much as you can. Referring to the discussion on health insurance, MedPay can supplement it or act as your stand-alone medical insurance coverage. If you are in the latter position, you may find yourself in a bind quickly in the case of a severe accident.
Many people purchase MedPay in limits of $2500 or $5000. Medical expenses can exceed these on the first ambulance ride to the hospital. In cases of serious injuries, these limits are trivial compared to your actual medical cost. MedPay can effectively supplement health insurance to make your co-pays and deductibles more affordable. Even then, you may be in debt obtaining medical treatment with minimal limits.
Uninsured Drivers in New Mexico
All this seems pretty unfair to an innocent injured driver so far. The news gets worse. It may be that the other driver cannot ever pay for your medical expenses or any other damages such as lost income. Nowhere is this more prevalent than New Mexico, which has among the country’s highest rates of uninsured drivers.
In other words, you will never recover money from the other driver. After all, if the driver has no insurance, they likely have no assets to insure against which you could get a judgment. Lawyers refer to this as a judgment-proof defendant.
The level of uninsured drivers is terrible enough. Many more are grossly underinsured to cover a severe accident. The required liability insurance coverage limit in New Mexico is only $25,000.00. Medical expenses will easily exceed this amount in a severe car accident. So without health insurance or MedPay coverage, you could again find yourself in a real financial bind.
The best way to protect yourself from this scenario is to purchase uninsured/underinsured motorist coverage. It would be best if you bought not only it but also a lot of it. It is actually among the best deals going in insurance in terms of affordability. It is the best protection you can get in a severe car accident.
Will a Failure to Obtain Medical Treatment Harm My Auto Accident Claims?
The question of how failing to get medical treatment following an auto accident will affect the claim fairly frequently arises. The answer will depend upon the circumstances.
Inability to get Recommended Medical Care
The fact is that many people that are injured in auto accidents have no access to medical care. Unfortunately, many of those injured have no medical insurance. Likewise, they often do not have auto insurance medical payment coverage which would cover medical expenses up to a set limit in case of an auto accident.
Insurance companies frequently dispute the necessity and amount of medical care needed after an auto accident. In addition, the insurance carrier for the person or entity that caused the injuries will not and does not have to advance these costs before a settlement or judgment. The insurance company frequently disputes the necessity and amount of these medical expenses.
In such cases, failure to obtain recommended medical treatment would not necessarily harm your case. However, it does make the case a little more complicated.
Willful Failure to Obtain Medical Treatment
The situation is very different in those cases where the injured person willfully fails to obtain treatment. This would involve the injured person having access to medical treatment but failing to get it.
Whether or not a failure to get medical treatment will affect your case will depend on why you did not get medical care. Willful failure may harm the case, while an inability to get care will not. This comes up more frequently than one might expect. There are those cases where the person simply does not follow the advice of medical providers in treatment. In other words, the person refuses to follow the treatment recommendations.
Far more often, the situation involves patients that miss appointments and follow-ups. The failure to keep appointments and follow-ups can have significant negative consequences for the settlement of a case.
No Medical Treatment, No Injuries?
The insurance adjuster will often assume that the failure to obtain treatment when it is available or the inability to keep appointments is an indication that the injuries and harm either do not exist or have been exaggerated.
Medical documentation proves that your injuries exist. A lack of documentation does not necessarily mean there were no injuries, as the insurance company may argue. This makes the settlement of the claim more difficult. Medical documentation of injuries is crucial to a settlement or trial if it comes to that. Without medical documentation, it is exceedingly difficult to prove injuries.
Moreover, medical documentation showing the failure to get recommended treatment where it is available can be equally or even more damaging. After all, if medical treatment is available and the injured person fails to obtain it for no good reason, it might be questioned how serious the injuries are.
Estimates of Future Medical Expense
The damages or recovery in a personal injury case will often include recovery for future medical expenses. In those cases where the injured person willfully neglected medical treatment, calculating future costs can be complicated.
Estimating future medical expenses is very important and is difficult to calculate. The more common situation is where the injured person cannot access medical treatment. In those cases, calculating future medical costs is critically essential and relatively challenging.
The calculation of future medical expenses is often dependent upon the treatment recommendations of a medical provider. In other words, a medical provider may require surgery. It is then necessary to estimate what that surgery will cost.
In cases where an individual can not afford medical care, an attorney may know of a way to help get medical treatment for these people. In those cases where the injured person has no access to medical care, this can be somewhat challenging. However, an experienced personal injury attorney can often find a medical provider for these purposes at no advance cost to the patient. This is done under a letter of protection, which is worth learning about if you do not know.
The above discussion is a reasonably simplistic discussion of the issues. There may be countless variables and variations from one situation to the next. It is vital that you understand the complexities and challenges so that you may fully recover from your injuries.
Because these situations are rather complex, it is crucial to seek the guidance of a personal injury attorney experienced in car accidents, insurance, and medical expense issues. Going at it alone against an insurance company in a case like this will rarely be to your advantage.
What is Stacking of Uninsured/Underinsured Auto Insurance?
People often do not understand the stacking of insurance uninsured/underinsured coverage (UIM) in car accidents. Many are not aware that it is a possibility. Many others have waived coverage based upon a fundamental misunderstanding of UIM. Sadly, many others have been deliberately deceived by insurance companies to encourage waiver of coverage.
Because many do not understand UIM coverage, this will be addressed briefly below, following the discussion of stacking.
Stacking of Uninsured/Underinsured Motorist Coverage
Stacking is automatic where there are multiple vehicles with underinsured coverage. The law in New Mexico requires stacking of coverage. This means it is automatic when UIM is available.
Stacking means you stack or combine UIM coverage from all vehicles in your household. In short, if you have two cars with $25,000 in UIM, you have $50,000 total UIM coverage. This is true if you have two vehicles or ten cars.
Stacking applies to all cars in the household, which means it applies to any auto insurance policy on any vehicle carried by anyone living in the home.
When you understand the facts regarding auto insurance in New Mexico, you will realize how important stacking is to protect you and your family. On a more fundamental level, you will also understand the importance of having UIM coverage on each vehicle in your household.
Basic Facts of Uninsured/Underinsured Coverage
Uninsured/underinsured coverage protects you in accidents with many drivers who have no insurance or insufficient insurance. Uninsured/underinsured coverage is just what it sounds like. Insurance coverage protects you in an auto accident with an uninsured or underinsured driver.
“Uninsured” is pretty straightforward and needs no explanation other than to say New Mexico leads the nation in uninsured drivers.
Underinsured is pretty straightforward as well. New Mexico law requires only $25,000 in liability coverage. The great majority of New Mexico drivers carry only minimal requirements. This means that in the vast majority of accidents in New Mexico, the driver will have only $25,000 in coverage, if they have any at all.
In serious accidents, $25,000 is grossly insufficient to cover even basic medical care, much less other damages such as lost income. This is an underinsured situation where your UIM coverage will kick in if you have what you should. Not only should you have it, but you should carry a lot of it. It is the best deal in insurance, which explains the reference mentioned above to insurance companies trying to talk you out of it.
Can the Insurance Company Exclude Stacking Coverage on Cars Not Involved in the Accident?
Auto insurance issues, on the whole, are confusing, and sometimes it seems the insurance companies make them so deliberately. Uninsured and underinsured motorist coverage (UM/UIM) is among the most confusing issues, and many insurance companies do everything they can to deny lawful coverage.
Stacking uninsured/underinsured coverage is among the most critical aspects of UM/UIM coverage. In New Mexico, UM/UIM coverage stacks on all policies within the household unless the insured has properly refused the coverage. ”
“All cars“, means all cars in the household, not just the one involved in the accident. Even though there are adjusters who will suggest otherwise, this would make no sense at all if you think about it.
If and when the auto insurance company suggests there is no stacking coverage despite multiple vehicles in the home, contact an experienced auto accident attorney immediately.
Strict Requirements for Rejection of UM/UIM Auto Accident Coverage
Rejection of uninsured/underinsured motorist coverage is a bad idea. Fortunately, the law provides some protection against making an uninformed decision.
You may take the exceedingly bad decision to reject stacking coverage, just as with the rejection of UM/UIM. Denial of UM/UIM must meet strict criteria in New Mexico. How coverage might be rejected appropriately has been the topic of numerous New Mexico Appellate Court cases over the last several years. The same requirements for rejection of UM/UIM apply to the rejection of stacking. Suffice it to say that an insurance company cannot try to slip an exclusion of stacking by you.
Again, this means that all policies in the home under the same policy will stack. Naturally, this means that stacking applies even to those cars not involved in the accident. It also means that stacking applies even though the policy excludes those vehicles unless there has been a proper and legal rejection of UM/UIM or stacking. An exclusion cannot be buried in the policy. There must be a clear and knowing rejection of coverage.
Insurance Companies Tactics to Avoid UM/UIM Auto Accident Coverage
Some insurance companies will do everything they can to avoid UM/UIM coverage, including stacking coverage, despite their contractual obligation.
The question comes up in light of a recent South Carolina Supreme Court case that dealt with the attempted denial of stacking by an insurance company whose policy had an exclusion of stacking coverage for any vehicles not involved in the accident.
Nice try, insurance company, but what is the point of stacking if it does not include the vehicles on the policy not involved in the accident. After all, how likely is it that the family will suffer a 5-car pile-up involving four family-owned cars caused by the 5th driver? The exclusion would effectively negate stacking entirely.
These kinds of insurance practices have led to the rash of recent cases in New Mexico regarding UM/UIM coverage and the proper rejection of such coverage. Some insurance companies will do everything they can to avoid UM/UIM coverage despite their contractual obligation.
In addition to attempting to avoid coverage even though it is available under the policy, some insurance companies will do everything they can to get you to reject UM/UIM coverage.
UM/UIM Coverage Critical in Serious Auto Accidents
UM/UIM may be the only coverage available to compensate you for your injuries in a car accident. Getting as much coverage as possible on every car in your household is important. The stacking may be the most important coverage of all.
Get as much UM/UIM coverage as you can afford, and get it on all vehicles within your home. It is a vitally important protection for you and your family.
Ask yourself why insurance companies would go to such lengths to avoid coverage that would result in additional premiums. The answer should be obvious. To the New Mexico Courts, it was, and this is why insurance companies are now required to provide information on the difference in premiums for coverage with and without UM/UIM.
The conclusion is equally apparent, get UM/UIM, get as much as you can afford, and get it on all vehicles within your home. It is a vitally important protection for you and your family. This is so in every State but perhaps never more so than in New Mexico, which has among the highest rates of uninsured motorists in the country.
Why Are My Prior Injuries and Medical Conditions Relevant to My Car Accident Case?
This is an excellent question that we get pretty often. It is a question that we ask the insurance adjusters quite frequently. Moreover, it is a much broader question including all prior injuries or medical conditions and typically must be addressed in every New Mexico personal injury case.
The simple answer is that your prior conditions will not prevent you from recovering and may not matter. There may be cases where the prior injuries or conditions cause the subsequent car accident to have much more severe consequences, with a more significant recovery than it otherwise would have.
Insurance companies will often suggest otherwise, which is why having an experienced personal injury attorney is advisable.
Preexisting Injuries and Medical Conditions in an Auto Accident
In legal terms, the issue is referred to as preexisting injuries. Preexisting injuries must be addressed. The simple fact is that the insurance company will not, and realistically should not, have to pay for injuries that occurred before the accident and were unrelated to the accident.
However, unraveling what was caused by accident and what wasn’t is not always that easy. For instance, if you have a prior back condition and you get into a car accident, the adjuster will likely argue that the weakened health of your back caused a more severe injury to occur.
More to the point, should the prior back injury prevent you from recovering on your auto accident claims?
Could my prior injuries and/or medical conditions prevent me from collecting money in my auto accident case?
The answer here is YES! Prior conditions will be considered. As suggested, the challenge is determining what injury occurred as a result of the accident, what was worsened as a result of the accident, and what was unaffected by the accident.
The insurance company may claim that you were not injured at all in the accident but rather all injuries preexisted in the auto accident. Naturally, the insurance adjuster may argue that the injuries and conditions were completely unaffected. By some miracle, they will argue that despite the violent collision, you were not injured by the car accident and are no worse off than before. From this, they will conclude that there are no injuries or damages and probably offer you little to no money for your injuries.
This argument is quite common. It is, in fact, the basis for what is a common practice of offering very low settlement amounts for a quick (and lopsided) settlement of your personal injury claims.
Do not be intimidated by the adjuster. Likewise, do not trust that he or she is on your side, as they often proclaim. Suppose you have been seriously injured and have preexisting injuries. In that case, you really should seek the guidance of an auto accident attorney that is experienced with handling insurance companies and handling preexisting injuries.
Fully Disclose Your Preexisting Conditions
Assuming you contact an attorney, one of the first things that he or she will ask is about your preexisting injuries, health conditions, and medical treatment. Do not be alarmed. The attorney needs this information to competently and successfully resolve your personal injury claims.
Not disclosing preexisting injuries and conditions can seriously damage your personal injury case.
Before settlement or trial, if it gets to that point, the insurance company will have obtained all of your medical records, typically for the past ten years. It is safe to assume that they will discover the concealment of preexisting conditions. As is often the case, the concealment itself will do far more harm than the preexisting injuries.
The attorney will be able to explain why the preexisting conditions are irrelevant to the calculation of damages. Moreover, your attorney can handle your preexisting conditions. The attorney will be able to explain why the preexisting conditions are irrelevant to the calculation of damages. The attorney may also be able to show how the preexisting injuries resulted in even greater harm. This leads to a discussion of the “eggshell plaintiff” rule, which means the insurance company is liable for any additional injuries caused by the preexisting conditions.
Inform Your Attorney of All Preexisting Injuries and Conditions
In short, do not worry about your preexisting injuries or conditions. Let the attorney handle it. An experienced car crash attorney will know how to work through these issues.
But remember that the attorney must be aware of them to properly handle them. So be honest with your attorney regarding your prior injuries and conditions. To do otherwise will likely damage your claim and may result in your attorney withdrawing from your case.
Should I Talk to the Other Driver’s Insurance Company After a Car Accident?
The answer is not completely clear-cut, and attorneys have differing schools of thought on this issue. However, most will probably agree that it is best to consult with an attorney before any discussions with the opposing insurance company. As discussed below, this is particularly true of the “recorded statement.”
The reason for this is clear. The opposing insurance company’s interest is in direct conflict with your own. The insurance company will want to pay out as little as possible. This means that any discussions with them, no matter how friendly the claims representative seems to be, have the potential to harm your claim.
What may seem like a friendly discussion is, in all likelihood, a fairly (if not highly adversarial) encounter.
Notice of a Claim v. Discussion of a Claim
Talking to the other driver’s insurance company is rarely to your advantage early on. On the other hand, it could be very damaging to your claim.
There is a difference between notifying the insurance company and entering into discussions with the insurance company. Typically, both your and the other insurance company should be notified of the accident. But even this is often best done with the assistance of an attorney. The attorney will primarily be trying to determine insurance coverage. In many cases, the attorney will seek insurance that will allow you to get medical treatment where necessary. These early discussions are rarely if ever, designed to settle a claim quickly. If they are, you may consider seeking a second opinion from other attorneys in most cases.
Again, a notice of the claim and a discussion of the claim are two different things. The insurance company’s goal will be to pay as little as possible on the claim. A zero payout would be optimal and should be no surprise as insurance companies are in the business of making money and are not prone to acts of generosity.
Insurance companies often make a very low settlement offer to reach their goal. Injured persons often take the low settlement because they are in dire need of the funds for medical treatment or for lost wages, which can quickly lead them and their families to financial ruin. Unfortunately, the settlement process can be quite complicated and lengthy. Rest assured, a quick settlement is very rarely a fair settlement, even if it provides some immediate relief.
The Recorded Statement
There is seldom a good reason for giving a recorded statement. You get nothing in return from the insurance company while having much to lose.
The insurance company will request a recorded statement for those injured persons who recognize this fact and want to wait to determine their actual losses (medical bills, future lost income, permanent injuries, and so on).
Most lawyers will agree that you should not give a recorded statement to an insurance company without at least consulting with an attorney.
The recorded statement can be quite damaging for several reasons.
Sometimes, the statement may legitimately show that you do not have a valid claim. If you do not have a claim, then you do not have a claim. However, what is of concern is the recorded statement that is taken with the intent of undermining a legitimate claim.
Not all insurance companies or claims representatives engage in such tactics, but when they do, it, at a minimum, greatly complicates your case. In cases of abusive tactics, these statements may be taken in an adversarial manner, sometimes resembling cross-examination with the sole purpose of undermining or invalidating your claims. Because most injured persons have little experience with the legal system (including sometimes complex issues of insurance coverage, liability, fault, negligence, or damages issues), they are very vulnerable to manipulation and abuse.
What Happens if I am Harmed During Medical Treatment Following a Car Accident?
A car accident will often result in personal injury, sometimes very serious personal injury, requiring medical treatment. Unfortunately, that medical care often leads to further injury and, on occasion, to significant injuries or even wrongful death.
Who is Responsible?
The question is, who is responsible for the injuries suffered during medical treatment, or better yet, who all are responsible?
Does the question then arise of who is responsible for those subsequent injuries or death? More specifically, for our purposes here, is the driver that caused the original auto accident responsible for the subsequent harm caused by medical malpractice?
To be clear, in New Mexico, yes, you may recover damages for harm suffered during medical care necessitated by the accident. You may have a separate medical malpractice claim, but that does not prevent your additional auto insurance claims.
Auto Insurance v. Medical Malpractice Claim
You might have a medical malpractice claim if the injuries or death arose from medical negligence. In the case of injuries or wrongful death arising from medical care, you might have a medical malpractice claim if the injuries or death arose from medical negligence.
However, this would be above and beyond any claims related to the auto accident. Any additional harm resulting from medical care, even where the care was negligent, is recoverable under the auto insurance claims.
Moreover, you may have claims for your injuries and damages related to medical care even where the medical care is negligent.
In short, medical care is clearly anticipated in case of injuries suffered in an auto accident. Medical procedures often come with risks, which are borne out by additional harm. Any harm resulting from that care, whether or not it was negligent, is recoverable as part of the auto accident insurance claims. In addition, even negligent medical care may be anticipated under New Mexico law, so such negligence does not let the other driver or the insurance companies off the hook.
Medical Malpractice Can be Anticipated Following a Car Accident
The insurance company for the driver that caused the accident will typically try to cut off responsibility for subsequent harm caused by medical negligence. The insurance company will argue that the at-fault driver should not be held responsible for many reasons.
First, the insurance company may argue that the subsequent harm was outside its insured driver’s control. Perhaps this is true, but their driver set the chain of events leading up to the harm in motion.
Second, and related to the first, the insurance company will argue that medical malpractice cannot be anticipated and is completely unforeseeable.
Again, this is related to the first, with the insurance company suggesting that it should not be held responsible for the harm it could neither anticipate nor prevent.
The insurance company will lose on both counts under well-established case law in New Mexico.
You can recover for any additional injuries suffered through medical care arising from an automobile accident.
What is a Letter of Protection in a Car Accident Case?
Sometimes, the greatest challenge for those injured in automobile accidents is getting the necessary treatment for their injuries. Often, the injured person will have no insurance, auto or medical, to cover the treatment. Worse yet, the negligent driver’s insurance will not pay until the case is settled.
This means that the injured person must seek alternative means of obtaining medical treatment. One possibility is a letter of protection from a personal injury attorney.
A letter of protection from an attorney lets the medical provider know that medical care related to the auto accident will be paid for from any settlement or judgment proceeds.
A Letter of Protection is Not a Guarantee of Payment
First, the letter of protection does not guarantee that the doctor will be paid. Instead, it is a guarantee that the medical or another treatment provider will be paid in the event that there is a settlement or verdict. If there is no settlement or verdict, the attorney is not responsible to the provider for your medical bills.
This leads to the question, “Who is responsible for the treatment if there is no settlement or verdict?” The answer, unfortunately, is that you are solely responsible for the medical and other treatment expenses if there is no settlement or verdict. This is a possibility, so it is important that you choose your attorney wisely.
A thoughtful personal injury lawyer will give you a frank assessment of the merits of your case. This is important to you since if your case does not pan out, you may be facing some pretty significant medical and other treatment liens. It is equally important to work with an attorney that has relationships with providers that will avoid such an outcome. This is another topic.
Why Doesn’t the Other Negligent Driver Have To Pay My Medical Bills Now?
This is a very common question. In fairness, it would seem that the person that caused the accident should have to pay for your medical expenses necessitated by their negligence. In the end, the responsible party will have to pay for medical expenses and other damages. However, this payment will not come until the case has been settled or gone to trial. In the meantime, it can be a real struggle for some to get the treatment they need.
This is a hard reality for those injured in car accidents. It can also put the injured person in a very difficult position. The issue will come up most frequently for those that can least afford it, those who lack insurance coverage to get the medical treatment they need.
Those that have insurance can use their auto insurance MedPay coverage to get treatment. They can also use their private health insurance. These options are simply not available to many. Getting medical treatment after an auto accident without insurance can be a challenge, to say the least.
There are many facets to this problem. First, the other driver’s insurance company is not going to pay for medical damages until they have fully investigated the claim. Neither will they settle until the injured party has agreed to a full release of claims. In fairness to insurance companies, it makes perfect sense to want proof of claims before paying them. However, minimizing payouts, not fairness, is typically the insurance company’s motivation.
Many insurance companies begin with the baseline argument that there is a liability on the part of their driver. Even when liability is clear, the insurance company may start with a position that it was equally or partially your fault. They do this to invoke comparative negligence principles to reduce their own liability.
Thus, the first challenge is to show or prove to the insurance company that its driver was at fault and therefore responsible for all damages. The next part of the investigation will involve actually proof of damages. This will include proof of medical damages.
Again, insurance companies may start with the proposition that there were no injuries or that the injuries were unrelated to the accident. In short, the insurance company may attempt to prove that the injuries were preexisting and therefore not subject to recovery. This, too, will take some work on the part of your attorney.
The attorney will prepare a comprehensive demand package that basically outlines the facts, the damages, the law, and liability. As part of the damages portion, the attorney will carefully chronicle all medical treatment and costs associated with the accident. All supporting medical documents, records, and bills will be provided in advance where possible.
However, with some insurance companies, no matter how obvious the liability and damages, they will still fight for every nickel. It is not fair, yet it is also not uncommon. In these cases, the insurance company may request years of prior medical records still in an attempt to prove preexisting injuries. They may also be trying to find inconsistencies with statements given by the injured person.
This brings us to two more important points. First, don’t talk to the other side’s insurance company without first consulting with an attorney. Second, be honest about your prior injuries or health conditions. It is safe to assume that inconsistencies will be discovered. Dishonesty is far more difficult to deal with than any preexisting injury. Preexisting injuries or conditions will not necessarily harm your claim, while dishonesty almost always will.
Having said all that, this discovery process (the process of collecting information) can take a very long time. And it generally does not begin until you have finished treating or reached maximum medical improvement. Only once all the records have been collected and provided with the demand package will the settlement process begin. The settlement process itself can take months and often requires filing suit to recover your damages.
In short, the process is very long. In the meantime, you may need medical treatment yet lack the resources to obtain them. A personal injury attorney experienced in automobile accidents can assist you through a very difficult time. Many times, a seasoned auto accident lawyer will be able to get you the necessary medical treatment without compromising the value of your claim through a quick settlement.
Keep this in mind when the insurance company makes a quick small offer of settlement. Rest assured, no matter what they say; this will not be in your best interests.
How do I Get Medical Treatment for My Injuries in a Car Accident?
One of the first and most important issues for someone injured in a car accident is how they can get treatment for their injuries. Unfortunately, treatment can be a significant challenge for those without insurance. So task number 1 is to determine if there is insurance.
There are a number of possible insurance options for injuries suffered in an auto accident. Like any other injury, the person will be able to seek treatment under private health insurance.
Private insurance is obviously the best way to go for treatment. Unfortunately, many do not have it, or they have insufficient coverage. This then requires other options.
Private health insurance is obviously not available to everyone. Even if there is private insurance, the deductibles may cause significant financial strain. In the event that there is no private health insurance, the next place to look will be your own auto insurance. This may help both with medical care in the absence of insurance and deductibles where there is insurance.
Many auto insurance policies have Medical Payment Coverage (MedPay). Fairly standard MedPay coverage will be for $5000. It may be higher or lower depending on the policy. MedPay coverage is optional, as are the policy coverage limits.
In the event that you have MedPay coverage, you will be able to seek medical attention under the coverage with the insurer paying the medical provider directly. It will be important to notify the medical provider of your intention to use MedPay coverage to avoid billing problems.
A Letter of Protection
A letter of protection from an Albuquerque auto accident attorney will be accepted by many doctors to allow treatment. However, there are many doctors that do not accept it, most notably orthopedic doctors.
If you have no private health insurance or MedPay coverage, there are few other options for obtaining medical care unless you are Medicare or Medicaid eligible. One possible option depending upon the type of medical care needed, is a letter of protection from a lawyer. A letter of protection basically guarantees that the medical provider will get paid from any judgment or settlement proceeds.
Unfortunately, many medical providers will not take patients on a letter of protection. This is particularly true of the providers most needed in auto accident cases– orthopedic doctors and surgeons. It can be quite challenging at best to find orthopedic doctors and other specialists that will accept a letter of protection.
There may be other possible solutions. Every case is different and deserving of individual analysis of coverage and care options. This applies to all aspects of insurance coverage and medical care. In addition, the options may be dictated by locale. For instance, it will be easier to get medical care on a letter of protection in larger metropolitan areas. This also means that if you are willing and able to travel, you will have greater treatment options.
Do I Have to Pay My Insurance Company Back For Medical Treatment From My Personal Injury Settlement?
The short answer is yes; you do have to pay back the insurance company for the medical expenses covered by insurance. This would include repayment of auto medical payment coverage as well as health insurance coverage.
It also includes Medicare and Medicaid, which are, in fact, the most important to account for due to the penalties for not paying or paying late. However, this is a topic for another day.
Many people injured in car accidents are very upset when they discover that they must repay their insurance carriers. The typical response is that they paid for insurance, sometimes for years, so why must they pay back medical benefits when they use them? Intuitively, this may not seem fair. In fact, it does make economic sense.
Anyone lucky enough to have insurance coverage for injuries suffered in an auto accident should count themselves lucky. Many injured persons face enormous challenges in getting necessary treatment following an accident. In fact, getting treatment can be the greatest challenge related to a car accident.
Insurance Company Liens
Basically, if you do have coverage of some kind, the insurance will cover the medical expenses as dictated by the insurance policy. The insurance company, in effect, advances the costs of medical care while reserving a lien on any future proceeds available to cover the expenses. Keep in mind that if there is no recovery and therefore no other funds, the insurance company will have no lien, and you will owe nothing beyond what you contracted for in your policy.
However, if there is a recovery, then presumably, the money recovered is coming from the person (or his insurance company) who was responsible for the accident. This is the very basis for liability and recovery. In other words, the person who causes the accident should pay for the damages. Your own insurance company should not have to pay for the other insurance company’s responsibilities.
This makes perfect sense, yet the question still persists, why do I have to pay back my insurance company. The fact is if you do not pay back your insurance company, then you are doubly compensated for your injuries. The basis for your recovery is your injuries. These injuries are typically measured to a large extent via your medical treatment and hence your medical bills.
Any recovery, either by settlement or verdict, will reflect your injuries which at least in part are measured by your medical expenses. Therefore, the recovery itself will factor in the repayment of your medical expenses. If these were paid by your insurance company, then recovering on those medical expenses without reimbursing your own carrier is akin to a windfall recovery. In essence, you would then be recovering twice for the same medical expense.
Insurance Liens Are Negotiable
In short, you must pay back your insurance company for your medical expenses. Your carrier will claim a lien against the proceeds of any settlement or judgment. Failure to pay the lien will likely result in collection action against you.
That is the bad news. The good news is that you can often negotiate these liens down. The amount of the lien reduction will depend on the circumstances. An attorney experienced in auto accident cases and insurance issues will be able to address these issues with the goal of maximizing your recovery.
Can a Child Bring a Claim Against a Parent for Negligence in an Auto Accident?
The question might be more appropriately phrased: “Should a child bring a personal injury claim against a parent for negligence in an auto accident?” It comes up more often than one might think, as children are often injured in auto accidents as a result of the negligence of their parents.
A child can and should bring a claim against a parent for injuries suffered in an auto accident as a result of the parent’s negligence. The answer on both counts is yes, a child can and should bring a claim against a parent for injuries suffered in an auto accident as a result of the parent’s negligence. This might seem somewhat unsavory until you consider the issue more carefully.
Auto Liability Policies Cover All Passengers, Including Family Members
The claim is really against the auto insurance policy, not the parent. First, the claim is really against the insurance policy, not the parent.
Second, auto liability insurance covers passengers. It doesn’t matter that the passenger is a family member or a complete stranger. It covers injuries to both, including injuries to the negligent driver’s children.
Keep in mind that the parent pays for this coverage and therefore should utilize this where coverage is available. The coverage is intended to protect the family. This is what you pay for. There is no need to feel any guilt whatsoever in bringing a claim against the insurance company.
Coverage is There; use It!
The question comes down to who should bear the loss? The insurance company who was paid to cover these very incidents or the family and an injured child.
This brings us to the next point. If the child is seriously injured requiring very expensive medical care, what are the options? The issue comes down to who should bear the costs and damages related to the accident, the family, or the insurance company to whom premiums have been paid to cover such situations.
Still, parents are reluctant to initiate such a suit for any number of reasons, all of which seem misguided. Clearly, a child is not typically going to contact a personal injury attorney to bring a suit on his or her own while a minor. Again, this would be reflective of the parent’s reluctance to call upon liability insurance for the benefit of the child.
Statute of Limitations Tolled for Minors
In these particular claims, a child has the right to bring a claim on a personal injury claim up to his or her 19th birthday. This then brings us to the last point. A child has the right to bring a claim on a personal injury claim up to his or her 19th birthday. The statute of limitations is generally three years in auto accident claims. It is extended in the case of injuries to a minor.
The statute of limitations is tolled or suspended for the benefit of minors by statute due to the inability of most minors to bring their own claims. The statute, NMSA §37-1-10, reads as follows:
“The times limited for the bringing of actions by the preceding provisions of this chapter shall, in favor of minors and incapacitated persons, be extended so that they shall have one year from and after the termination of such incapacity within which to commence said actions.”
It should be noted that generally, the statute applies to minors and incapacitated persons. Minors have no capacity to sue on their own, which is equivalent to legal incapacity. The language regarding “one year from and after the termination of such incapacity” has been construed to be 19 years of age since 18 years of age is considered the age at which a minority ends.
New Mexico Jury Instructions Address the Situation
There is a New Mexico Jury Instruction that actually addresses this very situation, UJI §13-1610 Negligence of parent not imputed to child. The jury instruction is short and to the point:
“If you find that the parent was negligent, any such negligence shall not be attributed to the child.”
This means that a jury cannot refuse compensation to a child following a trial due to the negligence of the parent. Nor can an insurance company make this argument, though some may try.
The notes to the jury instruction are particularly helpful here, citing several cases and reading:
“In case of injury only to a child, the parent’s negligence is not imputed to the child who can recover in the child’s own right.”
The Parent or the Child May Bring the Claims
The parent can and should initiate the claim on behalf of the child. In the event that the parent fails to do so, the child can bring the claim on his or her own once reaching 18 years of age. In the interim, there are a few other options for the child, which are beyond the scope of this article.
The issues here can be quite complicated. There are special rules and laws related to personal injury claims on behalf of children. It is important to seek legal guidance from an experienced personal injury attorney. Collins & Collins, P.C. can be reached in Albuquerque at (505) 242-5958
Less Common Questions That Come Up
These are just a few of the types of questions that injured persons have after a car accident. There will no doubt be questions that you have that are not answered here. We will be adding questions over time as new questions arise.
Related to this question, many people have very urgent questions regarding medical care and medical expense. There are a number of insurance issues that arise here. For instance, you may have your own insurance (auto or health) that covers your medical care. If you do not, getting medical treatment can be a challenge even though the other driver is clearly at fault. We will try to address some of these issues here.
Questions on Deadlines
Many injured people also have questions about the statute of limitations and other deadlines on their claims. These issues are extremely important to understand since missing a critical deadline will bar your claim completely.
However, no matter how many answers we are able to post here, every accident and personal injury claim is different. Each case must be thoroughly analyzed individually, and the information contained on this page is not meant to be a legal guide to pursuing your case on your own. Instead, they are meant only to inform you of the issues that may come up in your personal injury case.
The Insurance Adjuster is Not Your Friend
Insurance companies look out for their bottom line. An attorney is generally advisable and necessary to hold them fully accountable for personal injuries.
Know first and foremost that the insurance adjuster is not your friend. If he or she is offering a quick settlement of your claims, then rest assured that the offered amount is less than the full value of your claim. Insurance companies are not prone to generosity, and despite their assurances to the contrary, they are not looking after your interests. They are looking after theirs.
Dealing with insurance companies can be a confusing and frustrating experience. Most victims of auto accidents lack the experience to deal with insurance adjusters. Though there are exceptions, victims of auto accidents should not generally attempt to negotiate with adjusters on their own. There is a very important question of whether you should talk to the adjuster at all other than through your motor vehicle accident attorney.
Speaking to the adjuster without the benefit of a car accident lawyer is fraught with hazards. In cases involving serious personal injury or wrongful death, there are simply too many hazards and complexities that can hurt your claims and your recovery. So, in a nutshell, the answer is almost always, “No, you should not speak directly with the insurance adjuster without an attorney.” Moreover, there are many occasions when there is no useful purpose in speaking with the adjuster, even through counsel.
DWI Car Accident Personal Injury Claims
Despite the crackdown on drinking and driving, New Mexico consistently ranks very high nationally for DWI/DUI car accidents. The State also ranks very high for drunk driving deaths. Though the DWI problem in New Mexico has made some improvement in recent years with toughened enforcement, the problem still persists.
Far too often, the headlines read of tragic and senseless deaths from DWI accidents. For every drunk driving fatality that gets the attention of the media, there are many more DWI car crashes that cause very serious personal injuries to innocent drivers, passengers, and pedestrians.
And though these may not be quite as horrific as the DWI fatalities that make the headlines, they often have catastrophic consequences for the victims of the DWI driver and their families.
Many believe that the district attorney will be able to seek compensation for the injuries to the victim and his or her family. This is simply not the case for the most part. Victims and families must look to the civil courts for true compensation. An experienced auto accident lawyer specializing in the Albuquerque area can help guide you through the system for the best possible outcome.
Victims’ Rights in Criminal Prosecution
Those injured by a DWI driver have rights. There are victim rights units in most of the State’s prosecutor and district attorney offices. However, there are very strict limits on what can be recovered through the Victim’s Rights Act. Instead, DWI victims must resort to the civil justice system. This means filing a personal injury lawsuit.
The thing most needed by the victim, compensation for injuries and other losses, is for the most part beyond the reach of the criminal justice process.
A personal injury lawsuit in the civil justice system can bring some level of recovery. Though criminal prosecution of DWI drivers will bring some sense of justice to the DWI victim and family, this alone is sorely insufficient to compensate a DWI victim and his or her family for the losses caused by a DWI accident. Instead, the victim and family need and should recover financially from the DWI driver. Through a personal injury lawsuit, the innocent victim can recover a host of damages to compensate for the losses caused by the DWI driver.
In cases of very serious physical injuries or wrongful death, the victims and their families can never be truly fully compensated for the loss, either through the criminal justice system or through personal injury lawsuits. The best that can be done is to bring some measure of justice to the reckless DWI drivers who cause these tragic losses.
Personal Injury Claims for DWI Accidents
Usually, the only way for a victim of a DWI accident to gain anything close to compensation is to bring a personal injury claim against the DWI driver. As mentioned, the only way for a victim of a DWI accident to gain anything close to full compensation for injuries and damages associated with the collision is to bring a personal injury claim against the DWI driver. These claims will proceed much like any other auto accident personal injury claim.
However, there will be a number of unique issues and possible challenges to these types of cases. There will also be the possibility of additional awards for damages based upon the reckless conduct of the DWI driver.
DWI Accidents are Covered by Auto Accident Insurance
The insurance company or companies may attempt to convince you that the DWI accident is not covered due to the wrongful action of the DWI driver. This is not so. This is one of many good reasons for obtaining an experienced personal injury attorney.
DWI Accidents are Covered by Your Underinsured Coverage
Hopefully, you have underinsured coverage on your vehicle. If you do, you will be able to call upon the full underinsured coverage.
Like the other party’s insurance company, your insurance company may begin by suggesting it is not covered. No reputable insurance company would do this. If yours does, then you should know right then that you need an auto accident attorney.
Punitive Damages are Available
Punitive damages are awarded to both punish and deter wrongful conduct. Punitive damages are not typically appropriate in a car accident. Drunk driving is among the exceptions.
Punitive damages are awarded to both punish a wrongdoer and to prevent future such conduct in the future. In the case of DWI drivers, punitive damages are clearly available. These are typically multiple compensatory damages (i.e., your injuries and losses associated with the injuries).
There are a few things to keep in mind regarding punitive damages. First, you may recover punitive damages under both the DWI driver’s liability insurance as well as under your own underinsured coverage. Second, punitive damages, like any other damages, are in reality generally capped by available insurance coverage. This second point is hard to accept sometimes and worthy of some explanation.
Damages are limited by insurance not because you cannot go to court and get a very large judgment well in excess of coverage. They are limited by insurance because those that have no or limited insurance typically have no or few assets against which a judgment could be collected. In short, as they say, you cannot get blood out of a turnip. This is a hard reality in New Mexico which has a very high rate of uninsured and underinsured drivers and where many, if not most, drivers do not carry their own underinsured coverage.
Deadlines Apply DWI Personal Injury Cases
As with any personal injury case, there are strict deadlines, including the statute of limitations.
DWI car accidents that result in injury to innocent victims are subject to the same deadlines that apply to all personal injury cases. Even though these are particularly egregious, there are no exceptions to the applicable deadlines.
Like all personal injury cases, there are deadlines that apply to DWI accident lawsuits. It is important to be aware of these deadlines. Missing a deadline such as the statute of limitations will bar a claim completely. If you or a loved one has suffered injuries at the hands of a DWI driver, you should consult with an experienced personal injury lawyer as soon as possible to protect your claims.
Every Case is Unique and Requires Individualized Analysis
Every case, including yours, is different, and neither this page nor any of the pages on our site can deal with every unique aspect of your case.
Having said that, we encourage you to contact us directly for a free review of your case. Only then can we confidently advise you on the many issues and possible challenges that you may face with your claims.
Do Not Delay; There are Important Deadlines
Deadlines can be very short; delaying may bar your suit completely. To protect your rights, you should act promptly. Delay can affect your rights and your recovery. There are a number of important deadlines in personal injury cases, including auto accidents. In cases involving claims against a governmental entity, the deadlines can be very short, running in as little as 90 days from the date of the collision for the Tort Claims Notice requirement.
Missing a deadline can bar your claim completely. This means that you absolutely should not delay in contacting an experienced Albuquerque car accident attorney.
As mentioned, though we are located in Albuquerque, we handle personal injury matters throughout the State of New Mexico, including Rio Rancho, Santa Fe, Las Vegas, Roswell, Las Cruces, Gallup, and all points between.
Collins & Collins, P.C. Handles Auto Accident Claims Throughout New Mexico
Collins & Collins, PC
407 7th St NW,
Albuquerque, NM 87102