WRONGFUL DEATH
Any fatality caused by the allegedly wrongful acts of another may result in a wrongful death claim. In New Mexico, wrongful death claims are based in statute and in tort. What this means is that there is both a statutory basis as well as a common law basis for wrongful death claims in New Mexico. In practice, this means that the personal injury law, process and procedure will govern for the most part in a New Mexico wrongful death action. This makes sense since wrongful death actions may arise out of any number of situations which in the absence of death would give rise to personal injury claims. However, there are also specific and firm requirements under the New Mexico Wrongful Death Act (the Act).
Although damages are the chief difference between wrongful death claims and typical personal injury claims, there are several special rules under the New Mexico Wrongful Death Act. These apply early on and must be strictly followed in filing a lawsuit. The deadlines on New Mexico wrongful death claims are very rigid. There are extremely few exceptions. For instance, in claims against the government, the first important deadline comes up only 6 months following the wrongful death. New Mexico Statutes section 41-2-2 specifies that a wrongful death claim must generally be filed within three years of the date of the deceased's death. This law, or "statute of limitations," effectively bars wrongful death claims that are filed in court more than three years from the date of death. (However, certain factors may "toll" or pause the running of the three-year time period).
Any personal injury claim can turn into or begin as a wrongful death claim with law of torts applying to all.
By way of example, wrongful death may result from any number of situations such as auto accidents, medical malpractice, nursing home neglect, construction accidents, defective products, dangerous business premises, dangerous homes (as a guest), and so on.
Appointment of a personal representative is a critical first step in all wrongful death claims. Under the Act, the surviving spouse, child, or parent may bring an action on behalf of the deceased. In order for a surviving family member to bring a wrongful death claim, a personal representative must first be appointed under the Act. The personal representative is often a surviving family member. This would generally be the surviving spouse, one of the children or parents. However, the personal representative need not be a family member and there are occasions where it is best to have a third-party Trustee act as the personal representative. This might be done for a number of reasons. Family members may have separate claims but personal representative alone can address the claims for the deceased. Appointment of the personal representative allows the personal representative to handle a number of critical tasks on behalf of the deceased. Although the surviving family members may have claims of their own, the personal representative alone has authority under the Wrongful Death Act to act on behalf of the deceased.
The attorneys at deGraauw Law Firm, PC are well-versed and experienced in handling the complexities of wrongful death claims in all New Mexico courts. Please contact our firm if you need any assistance with a wrongful death claim that has proceeded to litigation or may end up in litigation.
PRODUCT LIABILITY
Product liability refers to a manufacturer, wholesaler or seller being held liable for placing a defective product into the hands of a consumer. Responsibility for a product defect that causes injury lies with all suppliers of the product who are in the distribution chain. In general terms, the law requires that a product meet the ordinary expectations of the consumer. When a product has an unexpected defect or danger, the product cannot be said to meet the ordinary expectations of the consumer. There are several reasons why a hazardous product could enter the consumer market. Common examples include unnoticed design flaws or errors during manufacture. In New Mexico, there are four elements that must be established in products liability cases: 1. Injury or loss; 2. Product defect (requiring that the product be “unreasonably dangerous”); 3. Defect Responsibility/Causation (the defect must directly cause the injury); and 4. Intended Use (the purpose for which the claimant was using the product must complement its design).
Product liability litigation is on the rise, and clients faced with lawsuits alleging defective products expect both value and excellent results. deGraauw Law Firm, PC works with clients to create effective strategies tailored to each of our clients, regardless of whether the case is a nationwide mass tort class action or a “one off” case in state court. Our lawyers have a notable depth of experience handling product liability matters and have a thorough understanding of the industries on which they focus. We understand that our clients do not want to be in the business of product liability litigation. Accordingly, in order to provide the most effective and efficient representation possible, we commit ourselves to developing a full understanding of the design, manufacture, and use of the products in question. Through these methods we achieve positive results for our clients.
INSURANCE DEFENSE AND COVERAGE
The attorneys at deGraauw Law Firm, PC proudly represent select insurance carriers and their insureds throughout New Mexico. In addition to serving as liability counsel for their insureds, we provide coverage counsel services for insurers and self-insured corporate clients including automobile, homeowners, comprehensive and commercial general liability, professional errors and omissions, officers and directors liability, product liability and excess coverage.
Our attorneys actively share their knowledge of insurance law and coverage with clients through ongoing seminars and workshops and by offering assistance with the drafting of specialized policy language, claims-handling materials and guidelines. Our attorneys conduct quality, efficient and in-depth research into New Mexico insurance law to make sure that we present our clients’ position in the strongest possible light. We provide prompt and objective reviews of coverage issues and in that capacity, we routinely assist clients in making coverage determinations, prepare coverage opinions, prepare reservation of rights letters, file and/or defend declaratory judgment actions, monitor underlying litigation and interface with defense counsel, participate in mediations and facilitation settlements, and we defend and prosecute bad faith actions.
The experienced attorneys at deGraauw Law Firm, PC understand the unique and complex issues involving insurance law in New Mexico. Please contact our firm if you need any assistance with insurance defense or coverage issues.
PERSONAL INJURY
Personal injury is a legal term for an injury to the body, mind or emotions, as opposed to an injury to property. At deGraauw Law Firm, PC, our lawyers take the time to learn about our clients involved in personal injury claims, as well as their unique concerns and needs, before acting as capable guides through the entire legal process. Proud of our reputation for ethics and integrity, we are committed to effectively and efficiently representing our clients’ interests involved in these claims.
Usually, a personal injury case is brought as a claim for negligence, or the failure to act reasonably under the circumstances. In New Mexico, claimants must establish four elements to proceed with a negligence claim. The first is the existence of a duty of care. This is usually defined as an obligation to act in a reasonable manner, but it can vary in some specialized settings. It also must be shown that there was a breach of the duty and that the victim’s harm was caused by the breach. The causation element requires showing both that the injuries were a direct result of the defendant’s careless conduct and that they were reasonably foreseeable. Finally, the victim must identify quantifiable damages that stemmed from the harm. These can be economic, such as medical bills and lost wages, or non-economic, such as pain and suffering.
New Mexico follows the principle of “comparative fault” in negligence cases. This means that liability is apportioned according to each party’s percentage of responsibility in causing the harm. Comparative fault is used when there are claims that multiple people may have been responsible for an injury. A possible example is when a car accident involves two vehicles, and each driver feels the other is responsible. If the case goes to trial and a jury determines that one person is 30% at fault for the crash, he or she can recover up to 70% of the total damages from the other. In this way, New Mexico courts allow a victim to obtain at least some compensation even though he or she may have also been negligent to some extent.
There is a strict time limit for filing a personal injury lawsuit. Under New Mexico law, this type of claim must generally be brought within three years after the accident that caused the harm. However, there are some situations when an individual may not discover that he or she suffered injuries until a later date. When that happens, the time period does not begin to run until the date when the victim discovers or reasonably should have discovered the harm. This area of the law is complex and requires careful analysis.
Unlike other areas of the law that find their rules in statutes (such as penal codes in criminal cases), the development of personal injury law has taken place mostly through court decisions, and in treatises written by legal scholars. Many states, including New Mexico, have taken steps to summarize the development of personal injury law in written statutes, but for practical purposes court decisions remain the main source of the law in any legal case arising from an accident or injury.
deGraauw Law Firm, PC is committed to providing its clients quality representation in all aspects of personal injury litigation. Please contact one of our attorneys if you need guidance in a personal injury matter that has, or may, proceed to litigation.
PREMISES LIABILITY
Premises liability is a legal concept that typically comes into play in personal injury cases where an alleged injury was caused by some type of unsafe or defective condition on someone’s property, including owners or occupiers, such as homeowners or tenants, businesses, and entities involved in running construction sites. Premises liability law places certain duties on those in possession of land or other property. Foremost among these duties is the duty to keep the premises safe for users, guests and visitors of the property.
Slip and fall type accidents are probably the most common basis for a premises liability claims. However, premises liability claims cover a very broad spectrum of accidents and injuries. These include such things as falling objects, hazardous operation of equipment, dangerous furnishings and fixtures, assault and battery and many other accidents that result from the negligence of the owner of the premises. The occupant or owner is held liable in many such situations where the harm was foreseeable and no protective measures were taken to protect the other guests. An occupant or owner of property has a duty to protect visitors and guests from harm from any foreseeable source even the criminal acts of another guest.
Property owners may also be held liable for damages and harm suffered on adjacent property as a result of conditions on their own property. This could occur in many different situations but most often is related to walkways, easements, and other rights of way adjacent to the property. For instance, water leaking from one property to another, or to a public walkway can cause significant safety hazards for the public. If someone is harmed as a result of a negligent failure to prevent such harm, that person may have a right to recovery against the property owner or occupant from which the harm derived. This is so even though the actual accident and injuries were suffered on adjacent property.
deGraauw Law Firm, PC is experienced in handling all types of premises liability cases, from simple sidewalk slip and fall accidents, to complex construction site wrongful death claims involving multiple parties. We understand the myriad issues involved in assessing liability and damages involved in premises liability claims throughout New Mexico and offer effective and strategic counseling to our clients involved in such cases.
TRUCKING / AUTOMOTIVE
The attorneys at deGraauw Law Firm, PC have successfully resolved hundreds of trucking and automotive cases statewide by way of settlement or trial. We effectively represent clients involved in litigation arising from roadway accidents ranging from minor car accidents to catastrophic trucking collisions. We handle myriad claims involving interstate and intrastate commerce, commercial vehicle insurers, and companies with captive commercial vehicle fleets of all sizes.
Our trucking and transportation attorneys specialize in all aspects of litigation affecting this highly regulated industry. We understand the significant exposure that operators of commercial motor vehicles potentially face. In New Mexico, trucking cases are particularly prevalent due to the interstate corridors of I-25 and I-40. Our attorneys are intimately familiar with the numerous federal and state regulations regarding semi-truck drivers. These range from maximum hours on duty, to load distribution and vehicle inspections and maintenance. (For example, in addition to the federal semi-truck driving regulation adopted in Part 391 of the federal semi-truck driving regulations, New Mexico also requires that semi-truck drivers be at least 18 years of age, and 21 years of age if the semi-truck is hauling hazardous materials. In addition, if the semi-truck stays within a certain mile radius, the driver may be immune to the hours of operations requirements. In New Mexico, if the driver operates within either 100 or 150 miles of the regular place of business, then the federal maximum hours of operation may not apply).
New Mexico’s laws regarding commercial transportation and semi trucking modify the federal regulations slightly. While these regulations may increase the level of culpability a semi-truck driver or his or her employer may have, they are not crucial for a claimant’s case to prevail. For example, there are many semi-truck accident cases where a semi-truck driver is simply negligent in causing a collision. In these situations, even if there was no failure to abide by the federal or state regulations, the claimant may still receive a recovery. However, the opposite is also true. There may be an accident involving a semi-truck that on the surface suggests the semi-truck driver did nothing wrong, however, further exploration may show that had the regulations been followed, the accident may have been prevented. For example, if the vehicle would have been properly maintained, the load properly distributed, or the maximum number of driving hours followed, then perhaps the accident would have not occurred.
The attorneys at deGraauw Law Firm, PC apply their experience and understanding of trucking regulations and traffic safety laws (that also apply to motorcycles and automobiles). For example, we have successfully researched and applied the intricacies of various applicable laws, including: the Federal Motor Carrier Safety Act, the Federal Motor Carrier Safety Regulations (FMCSR), the New Mexico Motor Carrier Safety Regulations, the New Mexico Transportation Network Company Services Act, the New Mexico Motor Vehicle Code, and the New Mexico Traffic Safety Act, among others.
CONSTRUCTION LAW AND CONSTRUCTION DEFECT
Construction law covers a wide range of legal issues including contract, negligence, bonds and bonding, guarantees and surety, liens and other security interests, tendering, construction claims, and related consultancy contracts. Construction law affects many participants in the construction industry, including financial institutions, surveyors, architects, builders, engineers, construction workers and planners, contractors and subcontractors of all trades.
Effective representation in construction law and construction defect claims requires a working understanding of industry practices and standards. Our attorneys understand how to represent all types of parties involved in construction cases, including how to choose the right experts, how to efficiently focus on the right issues, and how to present our clients’ positions in the best possible light. We have excellent relationships with various construction experts throughout the state (as well as across the country).
Contact our firm if you have construction law or construction defect needs in, or approaching, litigation. We help our clients navigate complex claims involving construction contracts and disputes, indemnification issues, building code analysis, environmental impact and all other areas of construction litigation.
GENERAL TORT CLAIMS
A tort is not a tasty pie. It is a general area of law that encompasses wide-ranging claims from defamation to nuisance claims. There are four elements to tort law: duty, breach of duty, causation, and injury. In order to claim damages, there must be a breach in the duty of the defendant towards the plaintiff, which results in an injury. The three main types of torts are negligence, strict liability (product liability), and intentional torts.
Tort cases can be complex and involve myriad issues of law unique to New Mexico and unique to the parties involved. For example, there are certain intervening factors which allow individuals immunity to tort claims. Immunity implies either, that the person could not understand the risks associated with their actions or that they cannot be held liable because they were acting on behalf of the government or other entity. Cases in which individuals are not likely to understand the possible outcomes of their actions, include infant immunity or insanity immunity.
Infant immunity applies to minors that are too young to grasp the consequences of their actions. In addition, the minor must not have no intent to cause harm to person or property. It cannot be claimed that the minor did not understand the consequences of their actions, if they intended the negative consequences that resulted from their actions. Intent cannot be present without an understanding of possible outcomes. In cases that involve infant immunity, the parents or guardians of the minor, could be held liable for their actions, regardless of the minors understanding of the possible outcomes of those actions.
Insanity immunity can be utilized as a defense in cases where a person is deemed insane, or mentally incapable of understanding the possible outcomes of an action. In cases where insanity immunity is a factor, the caregiver of the person that acted in manner which caused a negative outcome, could be held liable in the same manner that a parent or guardian could be liable for a minor. In either case, the actor and those responsible for the care of the actor, could both be held liable for the action.
Immunity is just one of many potentially complex issues that may require quality legal analysis and representation for those involved in a tort claim. Please contact an attorney at deGraauw Law Firm, PC if you have questions regarding a tort claim.
PROFESSIONAL LIABILITY / MALPRACTICE
deGraauw Law Firm, PC offers professional liability and malpractice representation. These claims involve attorneys, medical professionals, real estate brokers and appraisers and other professionals who have been sued or threatened with litigation or disciplinary complaints. These professionals or quasi-professionals are threatened with litigation as a result of errors and omissions in performing their professional services. We handle cases in court and before disciplinary, licensing, and ethics boards, including attorneys before the New Mexico Disciplinary Board.
New Mexico malpractice cases are some of the most difficult and complex types of cases. Perhaps more so than any other case, it is crucial to have educated and effective expert witnesses to evaluate and if necessary testify. A successful New Mexico professional liability / malpractice lawyer is aware that the strengths of a malpractice case is often based on the available records and the testimony of medical experts and witnesses. Moreover, issues such as the statute of limitations, damage caps, and civil procedure all change depending on the defendant’s status.
We work closely with insurance companies and adjusters to provide cost effective representation that focuses on our clients. We offer personal attention to each of our clients. We have the experience and resources to see your case through to its conclusion, whether through settlement or in court. In cases where there are multiple defendants, we work closely with other counsel to ensure that the interests of our clients are fully represented.