FAQ’s – Auto Accidents in New Mexico

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 the parents.

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

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!

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

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 19^th birthday.  The statute of limitations is generally 3 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 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 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 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

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 leads to significant injuries or even wrongful death.

Who is Responsible?

The question then arises 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 in any way for the subsequent harm caused by medical malpractice?

To be clear, in New Mexico, yes you may recover on the car accident claims for harm suffered during medical care necessitated by the accident.  You may have a separate medical malpractice claim but that does not in any way prevent your additional auto insurance claims.

Auto Insurance v. Medical Malpractice Claim

In the case of injuries or wrongful death arising out of medical care, you might have a medical malpractice claim in the event that 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.  Often times, medical procedures come with risk and those risks are borne out of 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 a number of reasons.

First, the insurance company may argue that the subsequent harm was outside of its insured driver’s control.  Perhaps this is true, but their driver set in motion the chain of events leading up to the harm.

Second, and related to the first, the insurance company will argue that medical malpractice cannot be anticipated and that it is completely unforeseeable.  Again, this is related to the first with the insurance company suggesting that it should not be held responsible for harm it could neither anticipate nor prevent.

The insurance company will lose on both counts under well-established case-law in New Mexico. One New Mexico case on point, Lujan v. HealthSouth captures the essence of the issue in a quote from the renowned legal scholar, Dean Keeton, who stated:  “It would be an undue compliment to the medical profession to say that bad surgery is no part of the risk of a broken leg.”

There are a number of New Mexico cases in point, which is that you may recover for any additional injuries suffered through medical care necessitated by the auto accident whether the care was provided with the utmost care and competence or was completely negligent.  The numbers on medical malpractice bear out Dean Keeton’s remarks with up to 440,000 Americans dying each year from avoidable medical error and many times that number suffering serious injury.

Seek Legal Guidance

These cases can be somewhat complex.  The insurance companies are not going to inform you of your rights to recover in this situation.  To the contrary, they are very likely to fight your right to full recovery.

In cases like these, you would do well to obtain the assistance of an attorney experienced in both auto accidents and medical malpractice. This is most definitely one occasion where you do not want to go at it alone against the insurance companies.

This is very good question that we get quite often. In fact, 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.

To get straight to the point, the simple answer is that your prior conditions will not prevent you from recovery and may not matter at all. In fact, there may be cases where the prior injuries or conditions actually cause the subsequent car accident to have much more serious consequences, with a consequent greater recovery than it otherwise would have.

Insurance companies will often suggest otherwise which is one of many reasons why it is advisable to have an experienced personal injury attorney at your side.

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 prior to the accident and were unrelated to the accident.

However, unraveling what was caused by the 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, did you suffer further back injuries, did the injury worsen the existing condition, or did the accident have no further consequences to your back as the adjuster will likely argue?

More to the point, should the prior back injury prevent you from recovery on your auto accident claims?

Your Prior Injuries and Conditions Will Not Prevent You From Recovery on Your Claims

The answer here is Absolutely Not! The prior back condition will be considered. In fact, the prior weakened back may have resulted in far greater injuries than otherwise. The challenge as suggested is to determine what was caused by the accident, what was worsened by the accident and what was unaffected by the accident.

Naturally, the insurance adjuster is going to 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 will often proclaim. If you have been seriously injured and have preexisting injuries, 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 do 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 in order to competently and successfully resolve your personal injury claims.

Why so you may ask? It is extremely important that you disclose all preexisting injuries and conditions. Concealing them will likely seriously damage your chances for winning your case.

Prior to settlement or trial if it gets to that point, the insurance company will have obtained all of your medical records typically for the past 10 years. It is safe to assume that they will discover the concealment of preexisting conditions. And is often the case, the concealment itself will do far more harm than the preexisting injuries.

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 actually resulted in even greater harm. This leads to a discussion of the “eggshell plaintiff” rule, which in essence 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 attorney will know how to work through these issues.

But keep in mind 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 indeed result in the withdrawal of your attorney from your case.

The question of how a failure to get medical treatment following a car accident will affect the claim comes up fairly frequently.  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.

In addition, the insurance carrier for the person or entity that caused the injuries will not and does not have to advance these costs prior to a settlement or judgment.  In fact, the insurance company frequently disputes the necessity and amount of these medical expenses.

In cases such as these, the 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 situation where the injured person has access to medical treatment but fails to obtain it.

This actually 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 take the position that the failure to obtain treatment when it is available or the failure to keep appointments as an indication that the injuries and harm either do not exist or they have been exaggerated.

This obviously 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 the medical treatment is available and the injured person fails to obtain it for no good reason, then it might legitimately be questioned how serious the injuries really 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, the calculation of future expense can be complicated and difficult to say the least.

The more common situation is the situation mentioned above where the injured person simply has no access to medical treatment.  In those cases, the calculation of future medicals is critically important and fairly 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 say that a surgery will be required.  It is then necessary to estimate what that surgery will costs.

In those cases where the injured person has no access to medical care, this can be somewhat challenging.  However, an experienced personal injury attorney will often be able to find a medical provider for these purposes at no advance costs to the patient.  This is done under a letter of protection, which is worth learning about if you do not know what that is.

Complexities Abound

The above discussion is a fairly simplistic discussion of the issues. There may be countless variables and variations from one situation to the next.  It is very important that you understand the complexities and challenges so that you may fully recover for your injuries.

Because these situations are rather complex, it is important to seek the guidance of a personal injury attorney experienced in car accidents, insurance issues and medical expense issues.  Going at it alone against an insurance company in a case like this will rarely be to your advantage.

People often do not understand stacking of insurance uninsured/underinsured coverage (UIM) in car accidents. In fact, many are not aware that it is a possibility. Many others have waived coverage based upon a basic 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

The law in New Mexico requires stacking of coverage. This means it is automatic when UIM is available.

Stacking means that you stack or combine UIM coverage from all vehicles in your household. In short, if you have 2 cars with $25,000 in UIM, you have $50,000 total UIM coverage. This is true if you have 2 cars or 10 cars.

Stacking applies to all cars in the household which means it applies to any auto insurance policy on any car carried by anyone living in the household.

When you understand the facts regarding auto insurance in New Mexico, you will understand how important stacking is to protect you and your family. On a more basic level, you will also understand the importance of having UIM coverage on each and every vehicle in your household.

Basic Facts of Uninsured/Underinsured Coverage

Uninsured/underinsured coverage is just what it sounds like. It is insurance coverage that protects you in an auto accident with an uninsured or underinsured driver.

“Uninsured” is pretty clear 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 the minimal requirements. This means that in the vast majority of accidents in New Mexico, the driver will have only $25,000 in coverage if he or she has 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 which 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 aforementioned reference to insurance companies trying to talk you out of it.

An Experienced Auto Accident Attorney Likely Necessary to Protect Your Rights

If you have been seriously injured in an auto accident, you will likely need an attorney for fair compensation from your insurance company.  Do not expect your insurance company to freely offer up this coverage or even to advise or otherwise guide you through the process.  You will likely need an attorney to encourage their full cooperation.

The Albuquerque auto accident attorneys at Collins & Collins, P.C. can help. We can be reached at (505) 242-5958

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 in fact do everything in their power to deny lawful coverage.

Stacking of uninsured/underinsured coverage is among the most important 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 right away.

Strict Requirements for Rejection of UM/UIM Auto Accident Coverage

You may take the exceedingly bad decision to reject stacking coverage but just as with the rejection of UM/UIM. Rejection of UM/UIM must meet strict criteria in New Mexico. How coverage might be properly rejected 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 contains an exclusion of those vehicles, unless again there has been a proper and legal rejection of UM/UIM and/or stacking. An exclusion cannot be buried in the policy. There must be clear and knowing rejection of coverage.

Insurance Companies Tactics to Avoid UM/UIM Auto Accident Coverage

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 really 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 4 family owned vehicles and caused by the 5th driver?  The exclusion would effectively negate stacking entirely.

It is these kinds of insurance practices that have lead to the rash of recent cases in New Mexico regarding UM/UIM coverage and the proper rejection of such coverage. As mentioned, 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 clearly available under the policy, some insurance companies will do everything they can to get you to reject UM/UIM coverage. Think about that for a moment and you will realize how important this coverage is, as well the fact that it is a bargain to you and your family.

UM/UIM Coverage Critical in Serious Auto Accidents

Get as much UM/UIM coverage as you can afford, and get it on all vehicles within your home. It is vitally important protection for you and your familiy

Ask yourself why insurance companies would go to such lengths to avoid coverage that would actually 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 obvious, get UM/UIM, get as much as you can afford, and get it on all vehicles within your home. It is 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.

This is a question that we frequently get in auto accident cases.  In fact, we often get the question after the fact in the form of “Should I have spoken with the other driver’s insurance company.”

The answer is not completely clear cut and attorneys will disagree on the answer.   However, most will probably agree that it is best when possible 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

There is a difference between notifying the insurance company and entering into discussions with the insurance company.  Typically, both yours 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 be looking for 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, in most cases, you may consider seeking a second opinion from other attorneys.

Again, notice of the claim and discussion of the claim are two different things.  The insurance company’s goal will be to pay out as little as possible on the claim.  In fact, a zero payout would be optimal.  This should be no surprise as insurance companies are in the business of making money and are not prone to acts of generosity.

To reach their goal, insurance companies will often make a very low settlement offer.   Many times, injured persons will 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

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), the insurance company will request a recorded statement.  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 a number of reasons.  In some cases, 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 complicate 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.

Do Not Delay

Again, not all insurance companies or claims representatives misbehave.  There are some that are very fair and reasonable.   The problem is that you may not know which is which.  An attorney will.  And if for no other reason, this is reason enough to seek the guidance of an experienced personal injury attorney in dealing with insurance companies.

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

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

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.

An Attorney Can Help

If you are injured in car accident, it is important to understand these issues.  It is generally advisable to seek the guidance of a personal injury law attorney experienced in car accident cases.

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 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.

Liability

Many insurance companies begin with the baseline argument that there is 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 principals 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.

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 for recovery.  This too will take some work on the part of your attorney.

The attorney will prepare a comprehensive demand package which 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 (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 takes months and often requires filing suit to recover for 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 the attorney will be able to get you 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.

Sometimes, the greatest challenge for those injured in automobile accidents is getting the necessary treatment for their injuries.  Often times, 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.  This leads to the immediate question you may be having and the subject of this page, “What is a Letter of Protection?”

A letter of protection is a letter from an attorney that basically assures the medical provider that it will be paid from any settlement or judgment proceeds.  This in turn raises a number of other questions that you may have.

A Letter of Protection is Not a Guarantee of Payment

First, the letter of protection is not a guarantee that the doctor will be paid.  Instead, it is a guarantee that the medical or other 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 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.

You are Still Responsible for the Medical Bills

The next question you likely have is “Who pays for the medical and treatment liens once there is a settlement or verdict?”  Again, the answer may be disappointing but it is the reality.  You are solely responsible for the treatment liens.  These must be paid out of the settlement or verdict and it comes out of your portion of the settlement or verdict, not the attorney’s.

Next, you may be asking “Can I refuse to pay the medical providers from the settlement or verdict?”  The answer is yes and no.  You can refuse, but the attorney will then hold the amounts in trust until the dispute is settled.  The attorney will not turn over the funds to you since the attorney has provided a binding letter of protection stating that the provider would be paid.  Moreover, you as a patient will have signed a similar agreement with the doctor agreeing to pay the medical bills from the settlement or verdict.

Some of this may seem unfair at first glance.  But, in reality, it is generally both fair and necessary.  The provider deserves to be paid.  And you deserve to get treatment.  The letter of protection is the mechanism for making both these things possible.  Without the letter of protection, injured persons would in many cases be unable to get sorely needed medical care.

Most injured persons when faced with the possibility that their injuries will go untreated will agree that this is a pretty fair solution.    If you are injured in car accident, it is important to speak to an injury lawyer experienced in auto accidents who is familiar with letters of protection.

This is a commonly asked question in car accident cases.  Unfortunately, the question usually comes way too late to do any good.  In other words, the question is usually asked after an auto accident.  To do much good, the question should really be asked before an accident and action must be taken to protect the driver and his or her family in advance.

Health Insurance

The first part of this answer comes as a surprise and a disappointment to those that are in 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 a car 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 full and final settlement of the claims.

Medical Payment Auto Insurance Coverage

This brings us to the next point.  Medical payment insurance coverage, often referred to as Medpay coverage, can be purchased in advance to help cover medical expenses in case of a car 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 back to the discussion on health insurance, MedPay can either supplement it or act as your stand alone medical insurance coverage.  If you are in the latter positon, you may find yourself in a bind pretty quickly in the case of a serious accident.

Many purchase MedPay in limits of $2500 or $5000.  Medical expenses can exceed this often on the first ambulance ride to the hospital.   In cases of serious injuries, these limits are trivial in comparison to your actual medical cost.  This brings us back to the first point.  MedPay is most helpful when it is used to supplement health insurance for the purpose of making your co-pays and deductibles.  Even then, with minimal limits, you may find yourself going into debt obtaining medical treatment.

Uninsured Drivers in New Mexico

All this seems pretty unfair to an innocent injured driver so far.  The news actually gets worse.  It may be that the other driver cannot ever pay for your medical expenses, or any other damages such as lost income.    This is particularly true in New Mexico which has among the highest rates of uninsured drivers in the country.  This means that you will never recover from the other driver.  After all, if the driver has no insurance, he or she likely has 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 bad enough.  Many more are grossly underinsured to cover a serious accident.  The required liability insurance coverage limits in New Mexico is only $25,000.00.  In a serious car accident, the medical expenses will easily exceed this amount.    So without health insurance and/or MedPay coverage, you could again find yourself in a real financial bind.

Though it is a topic for another discussion, the best way to protect yourself from this last eventuality is to purchase uninsured/underinsured motorist coverage.  You should not only purchase it, you should purchase a lot of it.  It is actually among the best deals going in insurance in terms of affordability.  It is most definitely the best protection you can have in case of a serious car accident.

Passengers are often in auto accidents.  In fact, the passenger(s) often suffer far greater injuries than either driver.  The question that comes up for these injured passengers, “Is what recourse do I have for my injuries?”

Like most auto accidents, the auto insurance issues are the key to the answer.  It is important to understand and to identify all available insurance coverage to increase your chances of full recovery of damages for your injuries and other losses.

Numerous Possible Coverage Options for an Injured Passenger

Fortunately for injured passengers, there are a number of possible avenues for recovery of damages for the injuries and losses suffered as a passenger in a car accident.  The possible sources of recovery bring up several issues: negligence, comparative negligence, liability insurance and underinsured insurance coverage.

Negligence and Comparative Negligence:  One or Both Drivers May be Liable

First, as with all personal injury claims, a passenger may bring claims against the negligent driver.  This could be either the driver of the other car or the car in which the passenger was riding.  Both claims would be made against the negligent driver’s auto insurance liability coverage.

In many cases, both drivers were negligent.  New Mexico is a comparative negligence state.  This means that the negligence and consequent liability may be apportioned between the two drivers.   In short, the passenger can file claims against both drivers under their liability policies.

Liability Coverage

Apportionment of liability can be very important where both parties have low liability coverage limits.  In cases of serious injuries, no matter how the negligence and liability is apportioned between the two drivers, the injured passenger will often be able to get the policy limits on both drivers’ liability insurance.

Uninsured or Underinsured Coverage

The issue of underinsured, or worse yet uninsured, drivers brings us to the next point.  Uninsured/underinsured coverage may come into play in a number of manners with a passenger injury case.

The Host Driver‘s Uninsured/Undersinsured Coverage

First, in case the driver of the car in which the person was a passenger was not at fault or only partially at fault, the passenger may be able to obtain recovery under that driver’s uninsured/underinsured coverage.  The uninsured/underinsured coverage would apply only to portion of the damages caused by the negligence of the other party.

As a result, if the driver of the car in which the injured person was a passenger was largely or totally at fault, then the only recovery would be against that driver’s liability policy.  However, if the other driver was entirely or mostly at fault, then there might be coverage under the car in which the passenger was driving.  Keep in mind that with comparative negligence, there is sliding scale of possible coverages from one policy and driver to the next.

The Passenger‘s Uninsured/Underinsured Coverage

Finally, in the event that the two drivers together have insufficient coverage to cover the passenger’s injuries, the passenger would be able to make claims against his or her own uninsured and underinsured coverage.  This means that the passenger would make a claim against his or her own coverage just as in any other uninsured or underinsured coverage situation.

This is extremely important since New Mexico has a very high rate or uninsured and underinsured drivers.  Chances are one or both drivers will be underinsured.  Hopefully, the passenger is not uninsured, and hopefully the passenger did not waive underinsured coverage.

Stacking of Uninsured/Undersinsured Coverage

In the event that the passenger has underinsured coverage, he or she will also have the benefit of stacking.  New Mexico allows stacking of underinsured coverage unlike some other states.  This means that the passenger can stack underinsured coverage across on automobiles in the household.  For example, if the passenger has 3 cars with $25,000 underinsured coverage on each, then the total available underinsured coverage is $75,000.

Passengers Have Many Rights

As is apparent from the above discussion, passengers injured in an auto accident have many rights and possible paths to recovery of their damages.  In fact, as a passenger, you may have insurance coverage options not available to the injured driver.  Where the driver would be entitled to draw upon only those auto insurance policies involved in the accident, the passenger could call upon his or her own insurance even though  his or her car was not involved.

Important to Identify All Possible Coverage

Recovery in an auto accident is typically determined entirely by available insurance coverage.  This means that it is very important to identify all available insurance coverage.

An attorney experienced with auto accidents and insurance coverage issues related to them will be able to do this for you.

 

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 are 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 is 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 the 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 no 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 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 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 a 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.