If you live in New Mexico, your odds of getting into a car accident are greater than in most other states. According to the most recent statistics provided by the National Highway Traffic Safety Administration, New Mexico is second only to Montana for the worst drivers in the country. To make matters worse, data from the Insurance Research Council indicates that New Mexico has a high number of drivers without insurance. Approximately 20% of New Mexico drivers, compared to the national average of 12%, drive without insurance. With these kinds of numbers, the chances of needing to file an auto accident claim are relatively high in New Mexico.
General Claims Process
New Mexico is a fault state, which means that victims of auto collisions have more options to recover damages than victims in no-fault states, where victims are required to file a claim with and to be reimbursed economic damages only through their own insurance company, with limited exceptions. In fault states, auto insurance laws allow accident victims to recover compensation (economic, non-economic, and punitive damages, if applicable) in one of the following ways:
- Seek payment from your insurance company (first-party claim);
- Open a claim with the liable party's insurance company (third-party claim); or
- File an injury lawsuit and pursue compensation in court.
The claims process will be slightly different depending on which method is chosen. These options are described in more detail below.
First-party claims are claims made to a motorist's own auto insurance provider. Typically, first-party claims are made when (1) the car accident is straightforward and with minor property damages and/or injuries; or (2) the at-fault party does not have auto insurance or his auto insurance does not cover the full amount of damages. To file a first-party claim:
- Contact your auto insurer and provide the following information: the at-fault party's name and contact information; the at-fault party's driver's license and license plate numbers; the at-fault party's insurance number and contact information; and a statement on the accident.
- Get the vehicle fixed at the location provided or approved by the auto insurer.
- Provide a signed medical release form to your auto insurance provider only, but not to the at-fault party's insurance provider, if it requests the same.
- Wait for your auto insurance company to advise of any offer.
- Upon receipt of an offer, either accept or reject it. If it is your own insurer negotiating with the at-fault party's insurer, then it will likely decide what is an acceptable offer or not.
Generally, if the damages were very minimal, then you may not require an attorney for assistance, and pursuing a claim through your own insurance company may be enough. But if you suffered any injuries, then the matter may require the help of an experienced attorney.
Additionally, your insurance provider may not pursue, or may not pursue aggressively enough, the full non-economic damages you should receive given the unique circumstances of your case. Your insurance provider should have your interests in mind when it's the at-fault party's insurance paying out the settlement, but they also have hundreds of other insured's interests in mind: neither you nor your claim is unique or of particular importance to your insurance provider.
Third-party claims are claims made to the at-fault party's auto insurance provider. Typically, third-party claims are made when another party is responsible for the car accident and you, as the injured party, suffered property damages and personal injuries, and you want compensation for those damages. The process for third-party claims is less straightforward:
- Contact your insurance company to report the accident and provide the required information, including the at-fault party's name, license number, contact information, insurer, insurer information, and any other relevant information.
- Provide a statement. You will be asked to provide a statement. You are not required to provide a statement to the at-fault party's insurer, and you should not provide one without retaining an attorney first. Insurance adjusters will manipulate and use anything you provide to them in the recorded statement against you.
- Provide a medical release form. You will be asked to sign a medical release form. You are not required to do so, and should never provide it to the at-fault party's insurance provider without consulting with an attorney first. The at-fault party's insurance provider can and will use whatever medical information it digs up against you.
- Decide to retain an attorney.
- If you do not retain an attorney, it is up to you to (1) investigate the accident; (2) collect and organize all itemized billing, receipts, witness accounts, car accident reports, and all other evidence that supports your claim; (3) draft a demand letter with supporting materials and legal theory of fault; and (4) negotiate the settlement with an adjuster whose goal is to minimize the insurance company's losses, and they will use a number of intimidating tactics in pursuit of this goal.
- If you retain an attorney, the attorney takes care of all of the above while you take care of yourself. There is no out-of-pocket costs to you because the attorney is paid on a contingency fee basis; only pay if you win, and payment usually comes directly from the settlement and not a person's wallet.
- Wait for an offer, and either accept or reject.
Lawsuits are complaints made against the driver and/or insurance provider. They generally are made when negotiations with the insurance provider breakdown and a settlement is not reached. Lawsuits are usually the last resort and are often not necessary since most claims are settled outside of court. Lawsuits generally result from particularly complex cases, including those that may also qualify for punitive damages.
Restrictions on Auto Accident Claims
There are two primary restrictions placed on auto accident insurance claims. These restrictions include the time to file and negligence laws.
Statute of Limitations
In New Mexico, the statute of limitations to file a personal injury claim is three years from the date of the accident. Failure to file within this time period bars an injured party from filing the claim and receiving damages. Three years may seem like a generous amount of time, but it can actually work against you. If you look at it as though you will always have until tomorrow to file the claim, then you permit space for a flawed claim. For instance, the longer you let the matter go unclaimed, the greater the possibility that evidence will be lost, medical records will be compromised, or the negligent party could move, die, or disappear.
If your claim is against a government entity, then the statute of limitations is only 2 years. According to the New Mexico Tort Claims Act, you must first send a notice of the claim to the appropriate government agency within 90 days or else forfeit your right to file the claim within the 2 year period.
New Mexico adheres to the pure comparative negligence doctrine. This doctrine means that if a driver contributed at all to the accident, regardless how little, the amount the driver can recover is reduced in accordance with the amount that driver was at fault. Thus, if you are 10% at fault, your damages will be reduced by the same amount. Shared fault is a common defense in New Mexico, and the victim has the burden to prove no fault.
Auto Accident Claims: the Importance of an Attorney
It is important to have an attorney represent you and your auto collision claim before an insurance adjuster or a judge and jury, but it is even more important that you retain an experienced, resourceful and compassionate attorney. An attorney, accompanied by his or her staff, will undertake a thorough investigation of the accident, interview any witnesses, review all the evidence and apply it to the law, collect medical records, put forth an accurate and compelling legal argument for your case, and negotiate the offer with the at-fault party's insurance provider. In the meantime, an experienced attorney will also be preparing for a lawsuit. Insurance companies know which attorneys are reluctant to take a case to trial.
You need someone with the experience and preparedness to go all the way to trial if that's what it takes to get you what you deserve in terms of compensation. For an initial consultation with an experienced, resourceful personal injury attorney, contact Revo Smith Law today at (505) 293-8888.