Personal Injury Law Terms

At some point in your life, you may have been introduced to the complex language of the legal field, whether by watching an exciting crime show, talking to a friend who was involved in a court case, or even while on jury duty. A comprehensive glossary of terms used in the practice of Personal Injury Law would be quite long. Our latest blog will introduce you to key terms you are likely to hear when you have been injured and are seeking legal help, especially if your lawyer is recommending filing a lawsuit. Here are a few useful terms you might encounter.

A settlement is a legally binding agreement between parties to a dispute that avoids the necessity of going to trial. Approximately 95% of personal injury cases are settled out of court. Generally, a settlement can take care of your major expenses related to the accident and some of the intangible losses you suffered, which are known as “general damages”. Statistically, injured people receive higher compensation in pre-trial settlements than is typical for cases that go to trial, owing to the great expense of trying a case. Hiring an experienced personal injury attorney can be the right decision to ensure a maximum settlement recovery.

A personal injury occurs when an individual suffers bodily injury and resulting emotional distress because of the negligence, recklessness, or other wrongful conduct of another. Personal injury law is one kind of tort law (see below). “Pain and suffering” and “loss of enjoyment of life” at the hands of someone else are included as separate items of recoverable damages under New Mexico personal injury laws.

Economic Damages refer to verifiable monetary losses, such as medical expenses and lost wages. Non-economic damages refer to losses such as the loss of companionship or society of a loved one, pain and suffering, lost earning capacity, and lost enjoyment of life.

Punitive Damages are awarded with the purpose of deterring intentional or reckless behaviors motivated by a “culpable mind state.” Drunk driving is a perfect example of a case in which it would be appropriate to recover punitive damages, since the responsible party engaged in behavior that put others at risk with an utter indifference to the consequences.

Civil Law concerns disputes between individuals in which a “plaintiff” has had his or her rights violated by another and sustains damages as a result. Personal injury is a kind of civil law that can result in recovery of monetary awards.
Criminal Law cases are those brought against individuals for wrongs committed against the State or other governmental entity. Laws at the local, state, and federal levels define criminal activities and establish legal punishments for those convicted of crimes like assault and theft. The government brings charges against the defendant that may result in the imposition of fees, fines, restitution, probation and/or jail time.

Tort Liability refers to responsibility for an action in which an individual known as the “tortfeasor” is held accountable for his or her negligent or reckless actions. The word Tort derives from a Latin word that means “harm” or “wrong”. The main job of a personal injury lawyer is to establish liability by gathering evidence of negligent conduct. An experienced lawyer has the skills to successfully build a case. A tort is a wrongful act that causes harm to someone else. Torts in the legal system are split up into many different sub-categories as there are so many kinds of injuries.

Strict Liability refers to a situation in which the defendant did not intentionally cause harm, but their actions posed an obvious risk such as keeping a large mountain lion as a pet. Most people recognize that as abnormal and dangerous, i.e., you don’t need to actually intend harm, but someone ends up injured anyway.

Lawyers need to refer to a standard of care to compare with the defendant’s conduct. In New Mexico, the typical standard of care in a negligence case is known as the exercise of “ordinary care.” Ordinary care is that degree of care which a reasonably prudent person would exercise under similar circumstances. Courts ascertain whether ordinary care was exercised by a defendant by referring to the Reasonable Person. This “person” is not an actual person but a profile of a hypothetical, reasonable and rational individual, who approaches a situation with an appropriate ability to size it up and take reasonable steps. For example, a reasonable person would realize that that mountain lion kitten is going to become very big and eventually pose a risk to others and would take certain measures to prevent foreseeable harm. The Reasonable Person serves as a comparative standard for courts to assess liability.

In a personal injury case, the Plaintiff is the person or entity that files the lawsuit.
The person or entity being sued is called the Defendant.

Juries are instructed to compare the facts, testimony and evidence determining whether the following four elements were present:

  • DUTY OF CARE: The defendant had an obligation to the plaintiff. For example, your physician has a duty to provide the best of care available and to follow the most widely accepted standard of care. If a doctor, for example, confused your medical records with another person resulting in harm, the law recognizes a relationship between the two parties and therefore an obligation to provide reasonable care exists.
  • BREACH OF DUTY: The defendant owed you a duty of care that was breached. A store didn’t clean up a spill promptly in one of the aisles, causing a customer to fall and incur injury.
  • CAUSATION: Putting it all together, causation requires a plaintiff to show that the breach of duty was the cause of the plaintiff’s injury. This can be tricky. If you are rear-ended in an accident and are already experiencing chronic back pain, how do you establish that the pain is caused from the accident?
  • DAMAGES: Actual losses as a direct result of the party’s negligence.

In a civil case, it is the plaintiff’s responsibility to prove that they were injured by the defendant in order to recover damages. In civil court, the standard requires that liability must be proven by a preponderance of evidence, which means the greater weight of the evidence, or, 51%. For instance, the plaintiff proves a case by persuading a jury that the great weight of the evidence presented demonstrates that the defendant breached a duty of care and caused injuries or damages.

Sadly, there are many ways in which people interact and cause injury to each other. We are experienced in many areas of Personal Injury and have been in business fighting for the rights of New Mexicans for over sixty years. We are here for you! Please call for a free consultation: 505.982.5380

What To Do After A Car Accident

Six million car accidents per year occur in the United States, according to the National Highway Traffic Safety Administration. Esurance, an online insurance aggregator, calculated the average driver will file an insurance claim once every 17.9 years. Stated in another way, the average American will be in 3-4 accidents over the course of a lifetime!

A motor vehicle accident can profoundly alter the course of our lives. Preparing for an event that you hope never occurs makes sense. Purchasing flares is one way to prepare. Informing yourself about what happens after an accident is another way. Here’s some information about what to do after a crash.

The following are crucial steps to take. Becoming familiar with this information will help you at the scene when you are likely to be shaken up and not thinking clearly.

  1. Stay at the scene of the accident, however minor. Leaving could be considered a “hit-and-run” and lead to a warrant for your arrest.
  2. Call 911 for medical assistance if needed.
  3. If possible, get the vehicle(s) out of traffic to prevent further damage or injury. Turn on your hazard lights. If you have flares or reflective emergency triangles, place them on the ground to direct traffic and serve as a warning for approaching cars.
  4. Call 911 to file a police report. In New Mexico, if property damage exceeds $500 and/or injury has occurred you must file a police report, which covers just about any accident these days. Many police departments have transitioned to online reporting for minor accidents. Rules governing filing a police report vary slightly by county and city.  If on the scene, the responding law enforcement officer will submit a police report to the New Mexico Department of Transportation within 24 hours. This police report is an important document that puts in writing the facts surrounding the accident. If you fail to report a serious car accident, you will lack crucial documentation to support you claim or case.
  5. Collect the names, addresses, and phone numbers of the driver(s) as well as drivers’ license numbers. If the driver’s name doesn’t match up with the car’s registration, determine the person’s relationship with the vehicle’s owner.
  6. Gather all vehicle info including year, make, model, color, license plate number and optimally the vehicle VIN (vehicle identification number). Remember to get the insurance policy number of the driver(s).
  7. Look for witnesses willing to recount what they saw and ask questions.
  8. Using your smartphone’s camera, audio and video features, record as much detail about the accident as possible. Document skid marks on the road and the position of the cars relative to the street. Dictate what happened while all the details are still fresh in your mind. Also, include information about the weather, visibility, traffic, and road conditions, etc.
  9. Call a tow truck if needed.
  10. Contact your insurance company. Many insurers now offer mobile phone apps to allow you to begin the claims process online. It may be tempting in the case of small fender bender to keep the accident “off the books” by settling with the other driver(s) or offering to pay if you are at fault – but this is a risky course of action.
  11. If you are injured (even if you think the injury is minor) call your doctor to make an appointment. Many symptoms aren’t immediately apparent and may not show up for several days. Seeing a doctor as soon as possible after being in an accident will support your injury claim.

Even a minor accident can be the cause of stress, leading to PTSD or other forms of mental distress. The Trauma Survivor’s Network may offer some resources and support for you to heal the emotional wounds from the accident.

The mission of the National Highway Traffic Safety Administration “is to save lives, prevent injuries, and reduce economic costs due to road traffic crashes, through education, research, safety standards, and enforcement.” This organization offers a wealth of information including info on vehicle recalls, manufacturers’ safety records and other data by make, model and year of most cars. Useful if you think a vehicle malfunction may have contributed to the accident.

Mothers Against Drunk Driving offers information and support for victims of car accidents involving drunk or intoxicated drivers. Their mission is to “stop drunk driving, support those affected by drunk driving, and prevent underage drinking.”

Coping with the aftermath of a serious car accident can be difficult and complicated. Our attorneys at Prince, Schmidt, Korte and Baca are highly experienced in handling car accidents. They can take all the weight off your shoulders. Call Prince, Schmidt, Korte and Baca, LLP for a consultation today: 505.982.5380

Insurance Bad Faith

You expect your insurance carrier to deliver on its promise to be there for you when you are most in need, in the unlikely occurrence of an accident or other event.

Your insurance policy is supposed to deliver peace of mind. You trust the insurance company to deal with you fairly and honestly. In the United States, an insurance company has a duty to treat its insured’s interests equally to its own. This duty is referred to as the “implied covenant of good faith and fair dealing.” It’s an implicit obligation that assumes all parties to a contract will act honestly and in good faith in performing under the agreement.

Unfortunately, this promise is not always fulfilled. When an insurance company (1) fails to pay a claim for reasons that are frivolous or unfounded, (2) refuses to defend its insured against liability claims that fall within policy coverage, or (3) refuses to timely investigate, fairly evaluate, and settle a claim against its insured, its unlawful conduct is referred to as Insurance Bad Faith.

In response, the policyholder can sue the company for damages beyond those recoverable for standard breach of contract, including for all emotional and financial losses suffered by the insured as a result of the insurance company’s wrongful conduct. The insured files a tort claim (in most states) against the insurance company alleging intentional conduct causing injury or harm.  When an insurer acts in bad faith, its insured may be able to recover an amount much larger than the limits of coverage set in the policy, including punitive damages intended to punish the insurance carrier and deter it and other companies from acting in a similar manner in the future.

Large insurance companies can intimidate the “little guy”, tapping into vast resources to pressure the insured to simply take what is offered to them. That is why compensation for punitive damages needs to be high – especially in blatant bad faith cases. A large insurance company with billions of dollars in assets and deep pockets needs to think twice before it takes back its promise to the customer.

By and large, insurers are ethical and they typically operate in good faith. However, it is always in their interest to pay you as little as possible while operating within the limits of your policy. There are also insurance companies out there that cross the line and are unscrupulous, who never intend to pay what you are due.

Insurance bad faith lawsuits are complicated affairs. The legal team must prove a refusal to pay, defend, or settle, coupled with a conscious intent to “injure” the claimant. Here are some clear examples of bad faith scenarios:

  • The insurer lowballed your claim after not thoroughly investigating it;
  • The insurer intentionally misinterpreted or inaccurately represented their own policy to minimize the cost to it;
  • The insurer took an unreasonable length of time to pay your claim; or
  • You were denied without a full or reasonable explanation.

In addition, the following are claim settlement tactics that should raise a red flag:

Assigning Liability

The insurance company will arbitrarily assign a percentage of liability or fault to those involved in the event or accident, without thorough investigation or real consideration of who was truly responsible. This practice is maddening if you, or a third party, were not reasonably at fault!

Settle With The Other Company

The adjuster may try to hand you off to the insurance company representing other parties involved in the accident or event claiming those clients were more at fault. Until one company or the other commits in writing to be the primary insurance carrier, all carriers representing everyone involved are in play.

Waited Too Long

If you delayed for a while notifying the insurance company of your intended claim, the adjuster may inform you that you waited too long, disqualifying your claim. Not true! There is no time limit on filing a claim. The “statute of limitations” only applies if you decide to take the matter to court and file a personal injury lawsuit. A policy may require that a notice be filed within a certain number of days, but the insurance company must honor your claim unless you waited SO long that it would no longer be possible to perform an investigation.

You Got Paid Already

It is not okay for insurance adjusters to factor in what was paid by your health insurer, subtracting these amounts from the total amount due to you. It is none of their business. Under the collateral source rule, the adjuster does not have the right to consider other sources of payment in determining your damages or the settlement amount.

Not every claim denial rises to the level of bad faith. There are legitimate situations where your policy may simply not cover the damages surrounding the accident. When in doubt, thoroughly review your insurance policy. Insurance policies are long, complicated documents with many exclusions, i.e., types of damages that aren’t covered. 

Insurance bad faith tort cases are complex. It is advisable to reach out to an experienced legal team like the one at PSKB to help you navigate through this intricate process.  Please call us at 505-982-5350.

Distracted Driving


Everyone knows that texting while driving is dangerous. It’s a no-brainer. You have may have heard that sending a short text driving at 55 miles per hour is equivalent to traversing the length of a football field with your eyes closed. And we know that the statistics are bad. Nationally, nearly 390,000 injuries occur each year from accidents caused by texting while driving, and responsible for 1 in every 4 car accidents, according to the National Safety Council.

In New Mexico in 2017 alone there were 9,386 accidents caused by driver distraction, and only 2,190 caused by drunk driving! It is so tempting to whip out just a short little text…no harm, right? Wrong! 

Here is some key information you may not know. New Mexico prohibits texting even if you are at a stop light. Officers may pull you over if they suspect you are distracted from giving your full attention to the road. And prosecution for texting can extend well beyond standard negligence to involve criminal liability. You could be convicted of reckless driving which as a misdemeanor carries with it the potential to be sent to jail. Being informed is important!

Just for the record, distracted driving encompasses much more that texting or using your cell phone while driving. Some other causes of accidents for which distracted driving is a potential factor include the following:

  • Putting on makeup.
  • Talking to passengers.
  • Manipulating sound, GPS, or other onboard car systems.
  • Eating and drinking.
  • Shaving, smoking, searching for an item or any other activity that can cause a driver to not be 100% focused on the road with two-hands on the wheel.

If you are an at-fault driver involved in an accident caused by texting or using your phone, be advised that after being apprehended the police officer at the scene of the accident may confiscate your phone. He or she cannot delve into the contents of your phone without a warrant or permission from you, thanks to a Supreme Court ruling in 2014. However, keep in mind that If you refuse to allow the officer to inspect the contents of your phone, it may only take the officer as little as 15 minutes to generate a warrant to do so.

In New Mexico it is still legal to speak on a hand-held mobile phone while driving (except for teens and commercial drivers who cannot use hand-held devices at all). However, these following cities have passed their own statutes prohibiting the use of hand-held cellphones by the driver altogether:

  • Albuquerque
  • Santa Fe
  • Las Cruces
  • Gallup
  • Taos
  • Espanola

What IS allowed is hands-free operation of a phone and GPS.

If you are a victim involved in an accident involving distracted driving, try to stay alert and aware while at the scene of the accident. Gather as much information as possible without delay. Work with the police officer and file a police report. Tell the officer that you think texting (or other distracted driving) was a factor in the accident. Query witnesses. Telephone records can be subpoenaed later which will verify whether the driver was using their phone at the time of the accident.

In conclusion, don’t use your hand-held phone while driving, ever.  It’s reckless and dangerous, no exceptions. 

Regardless, these matters are complicated, and seeking legal counsel is advised. We can help! Call today for a free consultation – 505- 982-5380.


How to Prevent Motorcycle Accidents

If you live in a metropolitan area with congested rush hour traffic, you may have on occasion observed a lone motorcyclist patiently weaving in and out of lanes choked with slow-moving vehicles.  He is assured to arrive at his destination in much less time than you – sitting in your metal behemoth. You may have reflected upon how dangerous this lane-splitting practice is for the motorcyclist saying to yourself, “That person is going to end up in an accident someday.” And sadly you easily could be right.

In 2017, 5,172 motorcyclists died in crashes according to the NHTSA (National Highway Traffic Safety Administration). The motorcyclist is 27 times more likely than a passenger car occupant to die in a crash. “Crashes involving motorcycles and other vehicles account for 56% of motorcycle accident deaths. In the vast majority of these accidents, the car strikes the motorcycle from the front – 78% of the time,” according to Nolo, one of the internet’s leading legal websites. Often, he or she is catapulted into the air and flung a far distance. It goes without saying the motorcyclist is much more vulnerable. For this reason, a jury may rule in favor of the motorcyclist even if he/she did not have the right of way.

42% of motorcycle accidents occur when a vehicle is turning left in front of the motorcycle and the driver of the car does not register your presence, the motorcyclist, either due to the driver being high, drunk, distracted, or just plain careless. The brain does not process smaller vehicles and pedestrians, and therefore the driver may not even “see you. ” The motorcycle proceeds straight through the intersection, and wham! FYI – use of a hand- held mobile phone while driving is also a major factor in vehicle accidents these days, and contributes to the cause of the accident in 25% of cases.

Having said all that, motorcycle driving is generally safe if you follow all rules, educate yourself and become informed with knowledge and facts.

To prevent all of the following kinds of accidents, one rule obviously applies – DRIVE DEFENSIVELY!

  • Car doors opening in front of you.
  • Unsafe lane changes.
  • Speeding (insane behavior, especially on a motorcycle).
  • Lane splitting (sharing a lane with a vehicle, or driving along the white line demarcation)
  • Sudden stops.
  • Sudden left turns.
  • Dangerous road conditions.

Following the “four R’s” will go a long way in ensuring you stay safe as a motorcycle driver:

  • Read the road ahead – Increase your awareness of your surroundings, scanning continuously
  • Drive to the Right – On a two-lane road ride a little to the right of the center of your lane
  • Reduce your speed – Slow down when you perceive danger
  • Ride off the road – When confronting an approaching vehicle or a problem, smoothly steer out of the path of potential impact, even if you might drive off the road.

Wearing a DOT- (Department of Transportation) certified helmet will protect your head and brain in case of an accident. A DOT-approved, legal helmet will have a painted symbol on the rear of the helmet.

And whatever you do, never, never drink alcohol or ingest any other mind altering substances before you hit the road.

The Motorcycle Safety Foundation offers a highly-recommended set of motorcycle safety courses for riders of all levels.

Above all, enjoy the road!

If you or a loved one has been involved in a motorcycle accident, our experienced attorneys at PSKB can help. Call 505-982-5380 today for a free consultation.

COVID-19 And The Law


The Coronavirus epidemic of 2020 promises to deliver wide-reaching and dramatic changes to how we live – our society, our culture, our economy.  It will touch every aspect of our lives and as such will also affect the legal system.  Here is a brief set of questions and answers that may be relevant for you.Q: What will happen to my personal injury case in process?

COVID-19-related cases are already flooding the courts and the system is still functioning with limited resources and personnel.  Your case may be put on “the back burner” as a backlog of legal proceedings accumulates due to limited resources. You may experience increased pressure to settle, as the courts struggle to handle the case overload. Additionally, the defendant in the case may now be experiencing financial difficulty, affecting their ability to pay you compensation for your personal injury. Finally, since medical facilities and hospitals are putting off non-critical care, you might experience delays in obtaining medical care for injuries caused by the accident, which will delay reaching “maximum medical improvement” that would provide a complete picture of your losses, allowing you to proceed to the next step in legal proceedings.  A good attorney will be able to help you navigate these choppy waters.

Q: I am experiencing financial hardship due to Covid-19.  Should I cancel  my car insurance?

A: The answer is no!  If you must reduce your monthly expenses,  then the best course of action would be to first raise your deductible from $500 to $1000 (or more), which would offer an estimated 9% savings.  And guess what? Insurance companies are experiencing a reduction in claims due to the dramatic decrease in driving.  Give your insurance company a call as many providers are offering temporary discounts. Traffic promises to remain light as New Mexico and other states “open up”. Whatever you do, you do not want to drop Uninsured Motorists coverage, legally required by law in New Mexico. Regardless of the condition and age of your car, you might regret dropping Collision coverage.

Q: I went into a grocery store and their workers were not wearing masks.  Can I sue them if I get Coronavirus?

A: Again, we are in uncharted legal territory and it would be impossible to offer solid proof.  A spate of COVID-19 related court cases will revise the new definition of duty of care for businesses. New standards for businesses to follow include increased level of sanitization and crowd control. Nevertheless, it is quite likely that just a handful of these lawsuits will have merit. Only when there is gross negligence is legal recourse a recommended action.

For example, take the current high-profile legal action against Walmart. The suit alleges that managers n Evergreen Park, near Chicago, failed to alert workers after several employees began showing symptoms of COVID-19, the disease caused by the virus.

The lawsuit states that Walmart “had a duty to exercise reasonable care in keeping the store in a safe and healthy environment and, in particular, to protect employees, customers and other individuals within the store from contracting COVID-19 when it knew or should have known that individuals at the store were at a very high risk of infection and exposure”.

Q: What happens to me if I do not follow the mandate to wear a mask?

A: Nothing. New Mexico state police are responsible for enforcing the rules. The police will warn you, but essentially Governor Grisham is relying upon positive peer pressure and those icy cold stares in the grocery store directed at the maskless to encourage compliance. Grisham does not want to burden law enforcement by directing police to hand out the $100 fine, six months in jail, or both which legally it has the right to do. The governor and the state are relying upon on voluntary compliance and the goodwill of its residents.

As an interesting aside, the Federal Government has the authority to enforce isolation and quarantine in the case of communicable diseases.  It derives its authority for isolation and quarantine from the Commerce Clause of the U.S. Constitution. Under section 361 of the Public Health Service Act (42 U.S. Code § 264). The U.S. Secretary of Health and Human Services is authorized to take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states.

Q: Can I be personally liable for getting someone sick with Coronavirus?

A: A causal link is required to prove that you are responsible for posing a threat to another person or public. The connection between contact and illness would be nearly impossible to validate. To refer to an analogous situation, it is very difficult to prove STD transmission. Therefore,  it would be even more difficult to prove that you caused the person to contract Coronavirus which is an airborne virus. An exception would be if you were grossly negligent in obvious ways. For example, if you tested Positive for Covid-19 and then knowingly flew to a previously- planned vacation and it was proven that a significant number of plane passengers tested Positive after sharing the same flight. The duty to prevent the transmission of the virus, mandated by respective governments will have been breached.

Q: I run a small store. How will my responsibilities to my customer’s safety be changing due to Covid-19 and where can I find out information about my duty of care?

A: It seems that Covid-19 will be circulating in the population for some time to come.  A higher standard of cleanliness and care will likely apply translating to evolving standards of duty of care.  These higher standards of care are in the process of being defined as we speak. Regularly checking city, state and federal websites should keep you informed regarding your responsibility as a business owner.

PSKB is hard at work during the Covid-19 Pandemic with all the resources needed to move your case forward or begin a new one.  We are here to help especially and even more during these uncertain times.  Please give us a call at 505-982-5380.




Winter Driving Tips

Winter is here and now a beautiful blanket of snow is covering the mountaintops of Northern New Mexico. It’s a time to make sure your woodpile is stocked and your house is checked for any drafts or other leaks. But if you are like most New Mexicans, little or no preparation goes into the transition to winter weather driving, which can put you at risk.

In 2006, James Kim, Senior Editor at CNET, was driving back from Thanksgiving in Seattle to San Francisco with his wife and family and took several wrong turns when exiting Interstate 5 on his way to the Pacific coast. They bottomed out in a heavy snowstorm 11 miles down a remote logging road. They ran out of food and then the gasoline that was keeping them warm. With just a pair of tennis shoes and a light jacket, James ventured out to find help. Tragically, James died of hypothermia in his attempt. Thankfully, his family was discovered by a rescue team and they all survived.

James’ story is a worst-case scenario of what can go wrong, but there is much you can do to make this winter safe and comfortable for you and your family. Let’s take a look at the good ideas for winter driving prep.

During the scheduled maintenance of your vehicle closest to winter, make sure your mechanic checks the condition of the battery and the heating system. Also, have them make sure the tires are in good condition, inflated to the correct tire pressure. Driving around in underinflated tires provides less control of your vehicle.
Keep at least a half a tank of gasoline in your car, needed to not just keep the cabin warm by running the engine in case you get stuck (even for a couple of hours), but more importantly to keep the fuel lines from freezing. At -5° you may have difficulty starting the car because the fuel is not warm enough.

You know what the best solution for driving in snow? Don’t drive! However, for most people that is not realistic. Here are some basic tips for driving in snow:

  • Drive at least 10 miles an hour below the speed limit
  • If you start drifting, turn your wheels into the direction of the spin
  • Accelerate and brake very slowly
  • Don’t stop! Keep moving and rest the ball of the foot very gently on the brake
  • Make sure you remove snow on the top of the car cab as falling snow can in itself cause an accident
  • Keep plenty of space between you and the car in front of you
  • Wear a seat belt at all times
  • Do not use cruise control

Lee might still be alive if he took the time to let a friend or family member know his itinerary and route. So that is the first and most important step when planning a drive through snowy territory. If for any reason you do get stuck, the first step is to call for help. Cell phones can stop working if they get too cold. Stay in the car and wait for help. Use a bright cloth or object to make the car more visible – such as an item of cloth laid out on the hood. Conserve precious gasoline by turning engine on and off intermittently to heat the cab. Check your tailpipe to make sure it is not clogged from compacted snow. This would cause a deadly backup of dangerous carbon monoxide into the interior of the car.

During the winter months, stock your car with the following care items. Some people just store these items together in a small storage bin kept in the house during the summer months and brought out to the car for the winter:

  • Snacks
  • Blankets
  • Water
  • Essential medicines
  • Extra items of warm clothing for the family

And here’s equipment you should always have on hand in the car:

  • Flares
  • Ice-scraper
  • Flashlight
  • Extra batteries
  • Cell phone charger
  • Jumper cables
  • Shovel

It’s a winter wonderland around Northern New Mexico and fun abounds. Make sure you are prepared for a safe driving winter by following these tips.

Texting While Driving

The temptation is great.  You are in your car on your way to a restaurant and running late.  You want to inform your friends — you’ll be there in 10 minutes.  You grab your phone and start texting, only to look up a few seconds later seeing the rear end of the car in front of you coming up on you fast. You slam on the brakes. Safe this time! It’s happened to pretty much everyone with a smartphone at least once.

According to the National Safety Council, crashes caused by hand-held cell phone use while driving accounts for 1.6 million accidents each year in the United States. And among those, roughly 390,000 injuries occur each year from accidents caused by texting. That means one in four accidents now in the United States are caused by texting while driving – an epidemic. When you text, you take your eyes off the road for an average of 4-6 seconds, a 400% increase of time spent with eyes off the road. Driving at 55 miles per hour in 5 seconds is the equivalent of travelling the entire length of a football field! A lot can happen in 5 seconds.

The real tragedy is that accidents caused by texting are totally preventable, and the group most likely to fall victim to the texting temptation are teenagers.  According to the National Highway Traffic Safety Administration, 20% of drivers aged 18-20 say texting does not affect their driving, and worse 30% of those aged 21-34 feel the same. And it’s no surprise that of among 3,166 people killed by distracted driving in 2017 in the United States, the largest age group represented were teens.

The top causes of distracted driving, of which texting is just one activity, include the use of GPS, adjusting music or car controls, talking on the phone, and applying makeup, so extra care needs to be applied when engaging in these other more essential actions (except for the makeup!). As an aside, drivers engage in a scary range of activities while travelling in their cars, including singing while travelling down the road and eating a meal, and cursing at other drivers — according to Pew Research.

In 2014 New Mexico made it illegal to text or talk on a phone while driving. In all but four states an officer can pull you over and ticket you just for texting or using a hand-held phone. The law however does not apply to hands-free devices, GPS, or devices integrated into the vehicle. The first fine for texting is $25, the second $40. A texting driver is legally liable for damages ensuing from an accident of their making.

If you are involved in an accident caused by a texting driver:

  • Call 911
  • Accept medical attention, even if you think you are not injured
  • Take as many photos as possible
  • Secure witness statements
  • Inform the officer you think the other driver was on their cell phone

What makes these actions so essential in this kind of accident is that it may be necessary to subpoena phone records of the driver who caused the crash. An attorney is the only person who can subpoena phone records. Prince, Schmidt, Korte and Baca can help.  Please call us for a free consultation.




Getting The Maximum Allowable From An Auto Accident

If you are like most people, you may have been involved in an auto accident or two in your life, your fault or not.  And like most, you think the reimbursement to you for injury or damages is non-negotiable.  Not so.  There are many actions you can take to receive the maximum amount you deserve in the aftermath of an accident.  The insurance company is committed to handing out the minimum amount reimbursement for your claim.

This first line of defense in protecting your rights is to collect evidence and information at the accident scene.  Collect names of those involved in the accident, the year, make model of their car including license plates, obtain witnesses, gather insurance info and driver’s licenses.  Call the police, but do not rely on the police to file a report, and most certainly do not admit fault.  Do not make a recorded statement to an insurance adjuster.  Do not say you were not injured.

You do not have to accept the first amount that an insurance company presents to you.  Research the value of your car and its repairs by visiting several local mechanics.  Kelly Blue Book and Edmunds are reliable online resources to help you calculate the current value of your car if the car is a total loss.  Total loss does not mean your car is a smoking heap; rather it means the cost of repairs exceeds as little as 51% of the current value of the car.  Claim a higher value for repairs. Unless your car is less than one year old, expect the insurance company to use aftermarket parts. Some companies will consider a 2-year-old car new but anything beyond that will get aftermarket and used parts. You will have to pay extra for new replacement parts.

You do not have to accept the first offer an insurance company offers you!  Ask them to justify their first offer.  Also, keeping receipts, for example for new tires and other improvements will assist in increasing the declared value of your vehicle.  Push for a higher valuation.

New Mexico is an at-fault state, meaning each driver is assigned a percentage responsibility.  Clear cut responsibility is assigned to the following accident types:

  • Rear-ending
  • Drunk driving
  • Texting while driving
  • Right of Way issues
  • Crossing the middle line
  • It gets sticky in less clear-cut situations which is why gathering information at the scene of the accident is so important.  Fault is distributed after a determination is made in proportions. For example, at a trial, the jury decides that the total amount of damages is $100,000. You were 80 percent at fault, and your opponent was 20 percent at fault. In this situation, you would be able to recover 20 percent of $100,000, which is $20,000 of damages

Keep in mind the insurance company does not want to go to court on these accidents, so a little higher value for your vehicle or its repairs is an attractive alternative to legal proceedings. You do not need to rush.  Especially when bodily injury is involved you may find that seeking legal representation is the way to go.  Prince, Schmidt, Korte and Baca is here to help you should you need legal assistance.

Top Mechanical Failures Causing Auto Accidents

New Mexico is one of the more dangerous states in which to drive, ranking 22nd of the most unsafe states to drive. But that doesn’t mean that we drive poorly. 75% of all vehicle accidents occur on rural roads, and New Mexico, with a population of just 2 million, has a large percentage of rural roads. Rural roads pose a greater danger for drivers.  It is tempting to speed on those roads less travelled, while drivers in rural areas are also less inclined to use a seat belt.

The overwhelming majority of traffic accidents are caused by failure on the part of the driver, whether it be distracted driving, driving under the influence, or just plain not following the rules of the road.

However, approximately 6% (NHTSA) of accidents are caused by mechanical failure, environment or unknown causes.  You can reduce your chances of getting involved in a car accident not only by being a good driver, but also by making sure your car is properly maintained. The following, listed in order, are the common mechanical failures leading to car accidents. This will inspire you to “run” to your auto repair shop.


Tire failure causes roughly 35% (NHTSA) of the crashes where vehicle failure was involved.  A blowout involves a sudden loss of air pressure in a tire which then pulls the vehicle sharply in one direction, resulting in loss of control.  A worn tire can cause a blowout, so can a puncture.  However, worn tires pose an additional risk, since they lose their grip, making it harder to stop or otherwise control the car, especially when it is raining. If your tires have low tread, don’t delay in replacing them with new tires.

Keeping your tires properly inflated, rotated and aligned will lengthen the lifespan of your tires, but there’s no way around it when it is time to replace those treads.  Your vehicle manual will guide you in the proper maintenance of your tires.


Brake failure makes up around 22% (NHSTA) of all accidents involving mechanical failure.  No explanation is needed regarding the danger bad brakes pose.  That goes for bikes, planes, trains and go-carts.  If you can’t stop your vehicle, you can’t stop hitting what’s in front of you.

Brake problems by and large result from a lapse in maintenance.  If you are hearing a metallic scraping when you apply the brakes, it is definitely past time to visit the shop. Worn pads and discs will reduce stopping power.  However, a leaky brake line or an ABS malfunction can also put you at risk. Regular trips to the auto shop and brake inspection will easily let you know if your brake pads are getting thin. Once your pads have passed 30,000 miles, it’s time to start saving up for new brakes.


A steering failure is somewhat rare, but statistically is the third major cause of accidents (3%) due to mechanical failure. Anything that compromises the ability to steer, whether that be suspension problems, an engine fault, or a broken joint is regarded as a steering failure.

If you keep the vehicle in good repair, it’s not likely that a failure of this sort will put you and your loved ones in harm’s way. It’s a good idea to ask for a full vehicle inspection at least once a year using electronic diagnostic tools to check for any hidden faults your on-board computer has found.

Wipers and Lights

Wipers provide visibility when it is raining, snowing, hailing, or even when mud from the road flies up.  Ever had a juicy batch of bugs hit the window while driving, limiting visibility? Or ever tried to drive in a heavy rainstorm without windshield wipers? Replacing blades is part of basic vehicle maintenance and should be done as they start to degrade to prevent an accident. A lack of good blades on your vehicle could demonstrate that you did not maintain your vehicle properly if an accident and resulting insurance claim occurs.

The same idea applies to the lights on your vehicle. If you have a broken light, you may not be visible to other drivers, putting you and the other driver at risk. You may minimize the importance of replacing a tail light or even a fog light.  Don’t!  And if you don’t get them replaced and get in an accident it can jeopardize your chances for compensation.

402 people lost their lives in New Mexico, 2016. But overall, New Mexico can tout a decline in traffic fatalities of 28% since 1975. Way to go, New Mexico! The overall decrease in the death rate is attributed to higher awareness of the danger of drinking and driving, as well as high compliance with seat belt laws. Assuring your vehicle is in good working order and that you abide the rules of the road will keep you from becoming one of these statistics!