A serious construction site injury may involve more than a workers’ compensation claim. In New Mexico, an injured worker may also be able to pursue a third-party personal injury claim against someone other than their employer. That second claim can cover losses workers’ compensation does not, including pain and suffering and full lost wages.
Workers’ compensation is often the first source of financial help after a construction site injury, and for many workers it is not the last. Depending on how the accident happened, you may also have a claim against another company or individual whose negligence contributed to your injuries. A construction accident lawyer can help you determine whether that second track exists in your case.
Construction sites typically involve property owners, general contractors, subcontractors, equipment suppliers, and manufacturers working alongside one another. When someone other than your employer may be responsible for an unsafe condition or defective equipment, New Mexico law may allow you to pursue additional compensation through a third-party injury claim while you continue to receive workers’ compensation benefits.
If you have questions about your legal options after a construction accident in New Mexico, Prince & Schmidt offers free consultations. Call 505-982-5380 to discuss your situation with an attorney.
Why Workers’ Comp May Not Be Enough After a Construction Accident
Key Takeaway: New Mexico workers’ compensation covers medical treatment and roughly two-thirds of lost wages, but it does not pay for pain and suffering, full wage loss, or diminished quality of life. For a serious construction injury, that gap can be substantial.
Workers’ compensation is a no-fault safety net, and its benefits are limited by statute. Under New Mexico’s Workers’ Compensation Act, an injured employee receives payment for reasonable and necessary medical treatment plus wage replacement of about two-thirds of average weekly wages, subject to statutory caps. Coverage is unusually broad in this industry: businesses licensed under New Mexico’s Construction Industries Licensing Act must carry workers’ compensation insurance regardless of how many people they employ, while most other employers are only required to carry it at three or more workers.
Workers’ compensation does not pay for several losses that often follow a serious injury. These may include:
- Pain and suffering
- Emotional distress
- Full lost wages and future earning capacity
- Loss of enjoyment or quality of life
- Punitive damages, when otherwise permitted by law
Another limitation is the exclusive remedy rule. In most situations, an injured employee cannot sue their employer directly for negligence after a workplace accident, because workers’ compensation serves as the exclusive legal remedy against the employer. That protection for employers is one reason identifying other potentially responsible parties matters so much after a serious construction accident.
For workers facing permanent disability, multiple surgeries, or a long recovery, the distance between workers’ compensation benefits and the actual cost of an injury can be significant. When another party’s negligence contributed to the accident, pursuing additional construction injury compensation through a personal injury claim may be an option alongside workers’ compensation.
What Is a Third-Party Injury Claim?
Key Takeaway: A third-party injury claim is a personal injury lawsuit against someone other than your employer whose negligence may have contributed to your construction site injury. You may be able to pursue this type of claim while continuing to receive workers’ compensation benefits.
A third-party claim allows an injured construction worker to seek compensation from a person or business other than their direct employer. Unlike workers’ compensation, which operates as a no-fault system, a third-party claim requires showing that another party’s negligence caused or contributed to the accident. In practice, that often means proving contractor negligence: a failure to enforce safety procedures, maintain equipment, or coordinate work safely across crews.
Construction sites often involve numerous companies performing different tasks at the same time. A general contractor may oversee the project while multiple subcontractors perform specialized work. Property owners, equipment rental companies, manufacturers, engineers, and delivery companies may also be present or involved. Because so many parties share responsibilities, construction accidents frequently require careful investigation to determine who may be legally responsible.
Filing a third-party claim does not replace a workers’ compensation claim. In many cases, an injured worker may pursue both at the same time. Workers’ compensation can provide immediate benefits while a third-party claim addresses losses that workers’ compensation does not cover.
New Mexico follows a pure comparative negligence system. Depending on the facts, responsibility may be divided among multiple parties, and any recovery may be reduced by the injured person’s percentage of fault rather than barred altogether.
Workers’ compensation insurers may also assert a subrogation lien against a third-party recovery to seek reimbursement for benefits already paid. The effect of a lien depends on the circumstances of the case, and it is one of several issues an attorney may evaluate when helping an injured worker understand their legal options.
Common Construction Site Accidents That Lead to Third-Party Claims
Key Takeaway: Falls, equipment failures, struck-by incidents, electrocutions, and trench collapses account for most serious construction injuries. Many of them involve the negligence of someone other than the injured worker’s employer.
Construction remains among the most hazardous industries in the United States, and a small number of hazard categories account for most of the deaths. OSHA groups these as the Focus Four: falls, struck-by incidents, electrocutions, and caught-in or caught-between accidents. Research from CPWR, the Center for Construction Research and Training, found that Focus Four hazards caused roughly 65% of construction fatalities between 2011 and 2021, with falls the single largest category. Many of these incidents involve the negligence of someone other than the injured worker’s employer, which creates the possibility of a third-party injury claim.
Scaffolding accidents, for example, may occur because of defective equipment, improper assembly, or unsafe site conditions. Depending on the circumstances, responsibility could rest with an equipment manufacturer, a general contractor, or a property owner responsible for maintaining safe working conditions.
A worker struck by falling materials or moving heavy equipment may have a claim against the subcontractor operating that equipment or the company responsible for securing materials. Electrocution accidents may involve improperly maintained electrical systems or unsafe work performed by another contractor.
Defective cranes, forklifts, power tools, or other machinery may lead to product liability claims against manufacturers or distributors. In other situations, trench collapses or structural failures may result from unsafe engineering decisions or inadequate site safety planning.
Determining who may be legally responsible often requires a detailed investigation. On many construction sites, more than one company shares responsibility for the conditions that led to an accident.
Who Can Be Held Liable in a Third-Party Construction Claim?
Key Takeaway: Depending on how the accident happened, several parties other than your employer may share responsibility for a construction site injury. Identifying every potentially liable party is an important part of evaluating a third-party claim.
Construction projects involve many companies and individuals, each with different responsibilities. When an accident occurs, determining who may be legally responsible often requires examining contracts, safety procedures, maintenance records, and the circumstances surrounding the incident.
Potential third parties may include:
- Property owners who failed to maintain reasonably safe conditions or address known hazards on the job site.
- General contractors responsible for coordinating work, enforcing safety procedures, or providing safe equipment for multiple crews.
- Subcontractors whose employees created hazardous conditions or failed to follow appropriate safety practices.
- Equipment manufacturers or distributors when defective machinery, tools, or safety equipment contributed to an injury.
- Architects or engineers whose design or engineering errors may have created unsafe conditions.
- Third-party vehicle operators, such as delivery truck drivers or motorists involved in road construction accidents.
In many cases, responsibility is shared among multiple parties. New Mexico’s comparative negligence rules allow fault to be allocated among those responsible, and each party may be held accountable for its share of the damages. Because every accident is unique, determining liability often requires a thorough investigation.
Steps to Take After a Construction Site Injury in New Mexico
If you’ve been injured on a construction site, prompt action can help protect both your health and any potential legal claims.
- Report the injury to your employer as soon as possible. New Mexico generally requires injured workers to give their employer written notice within 15 days to preserve eligibility for workers’ compensation benefits. That period may extend to 60 days when something outside your control prevented timely notice, and written notice is not required when your employer already has actual knowledge of the accident, such as when a supervisor witnessed it.
- Seek medical attention immediately and follow your healthcare provider’s recommendations.
- Document the accident scene if you are able. Photographs of equipment, work conditions, warning signs, and visible injuries may become important evidence, particularly when they show one of the recognized construction hazards OSHA warns employers about.
- Collect witness information whenever possible.
- Preserve evidence, including defective tools, equipment, or personal protective equipment involved in the accident. Avoid altering or disposing of these items.
- File your workers’ compensation claim through the New Mexico Workers’ Compensation Administration.
- Consult a construction accident lawyer before accepting a settlement offer or giving a recorded statement to an insurance company. Depending on the circumstances, you may have rights beyond workers’ compensation.
- Be aware of important deadlines. Personal injury lawsuits in New Mexico generally must be filed within three years, although exceptions may apply. Acting promptly also helps preserve evidence and witness testimony.
Working out which of these steps applies to your situation is easier with someone who handles these claims regularly. Prince & Schmidt represents injured workers throughout Santa Fe, Albuquerque, Española, Taos, Las Vegas, Los Alamos, Rio Rancho, and surrounding communities. Call 505-982-5380 for a free consultation.
Frequently Asked Questions
Can I file a third-party claim if I’m already receiving workers’ compensation?
Yes. In many situations, New Mexico law allows an injured worker to receive workers’ compensation benefits while also pursuing a third-party personal injury claim against someone other than their employer. These claims serve different purposes. Workers’ compensation can help cover medical treatment and partial wage replacement, while a third-party claim may seek compensation for additional losses caused by another party’s negligence. The workers’ compensation insurer may also have a subrogation lien seeking reimbursement for benefits already paid. How that lien affects your recovery depends on the specific facts of your case and applicable New Mexico law.
Who qualifies as a “third party” in a construction accident?
A third party is generally anyone other than your employer or a co-worker whose negligence may have contributed to your injuries. Depending on the circumstances, this could include a property owner, general contractor, subcontractor, equipment manufacturer, equipment distributor, architect, engineer, or a third-party vehicle operator. Construction sites often involve multiple companies working on the same project, each with different responsibilities for safety and operations. Because several parties may share responsibility for maintaining safe working conditions, determining who may be legally liable often requires a careful investigation of the accident and surrounding circumstances.
What damages can I recover in a third-party claim that workers’ comp does not cover?
Depending on the facts of your case, a successful third-party claim may allow recovery for damages that workers’ compensation does not provide. These may include full lost wages, future lost earning capacity, pain and suffering, emotional distress, loss of enjoyment or quality of life, and, in limited circumstances, punitive damages. Workers’ compensation is designed to provide medical benefits and partial wage replacement regardless of fault, while a third-party claim may address the broader financial and personal impact of a serious construction injury. Every claim depends on the available evidence, the extent of the injuries, and applicable law.
How long do I have to file a construction accident lawsuit in New Mexico?
The deadline depends on the type of claim, but personal injury lawsuits in New Mexico generally must be filed within three years of the date of injury. Certain circumstances may affect that deadline, so it is important not to assume the same time limit applies in every case. Waiting can also make it harder to preserve evidence, identify witnesses, or investigate what happened at the construction site. Speaking with an attorney as soon as practical can help you understand the deadlines that may apply to your specific situation and protect any potential legal claims.
What if I was partially at fault for my construction accident?
Being partially at fault does not necessarily prevent you from pursuing a third-party claim. New Mexico follows a pure comparative negligence system, meaning your compensation may be reduced by your percentage of fault rather than eliminated entirely. For example, if you were found 20% responsible for the accident and another party was 80% responsible, you could still potentially recover 80% of your damages. Construction accidents often involve multiple companies, workers, and contributing factors, so responsibility is not always assigned to a single party. Every case depends on its own facts, the available evidence, and applicable law.
Every construction accident is different, and the only way to know whether a third-party claim applies to yours is to have someone review the facts. Look through Prince & Schmidt’s case results and client reviews, or call 505-982-5380 to arrange a free consultation with an attorney.
This article is for informational purposes only and is not legal advice.
