Personal Injury
Personal Injury
Sustaining a personal injury can be difficult and the process of recovery can be complex. That’s why victims need the best personal injury lawyer they can find to resolve issues which can arise from a car accident, slip and fall, wrongful death or other personal injury claim. Tim will employ the law and resources to fight for the long-term well-being of his clients. Tim will investigate and identify potential claims and aggressively pursue full compensation from all available sources by settlement or trial. From the moment he is contacted, Tim will provide effective advocacy in pursuit of full and fair compensation.
Tim collaborates with his clients giving them legal advice, guidance, full information and support at every phase for them to make the best choices for their future. Tim works on a contingency fee basis meaning that If Tim doesn’t win, his clients don’t owe his legal fee.
An injury victim’s damages include past, present and future medical bills, lost time from work, pain and suffering, and even impairment or disfigurement. When calculating the damages to which an injury victim is entitled, Tim leaves no stone unturned. He loves what he does – helping people. He ‘equalizes’ the contest between injured victims and arrogant, powerful and well-resourced insurance companies.
Call Tim for a free initial consultation. There is no obligation.
Explanations of Selected Personal Injury Topics
Automobile Accidents
Each year millions of people are injured in traffic accidents. These incidents may be caused by the negligent actions of another driver, but accidents can occur for other reasons including:
- Poorly maintained roads
- Malfunctioning traffic control signals
- Improper road design
- Roadway obstructions
- Defective vehicles
Navigating Auto Accidents
Sometimes a medical condition will not make itself known until time has passed following the accident. If a person thinks they have sustained injury from a car accident, they should seek medical help and contact Tim immediately. There is a better chance of developing their injury case while evidence and memory of the accident is still fresh in their mind.
Immediately following an accident an injured victim SHOULD:
- generally, assess the physical condition of themselves, their passenger(s) and the conditions of people in the other vehicles involved in the accident. Note: not all injuries are immediately obvious;
- turn on hazard lights;
- call emergency first responders;
- take photographs and/or videos of the scene, the vehicles involved, the license plates and geographical location from different angles plus any noticeable vehicle defects (no detail is too small);
- take notes of any distractions which may have contributed to the accident;
- obtain the license number, insurance information, e-mail and any other contact information from the at-fault driver and obtain the same information from parties who may be witnesses;
- record any confrontations;
- note surface and weather conditions;
- obtain emergency response contact information from the investigating law enforcement officer (ask for a business card);
- immediately inform their insurance company about basic details of the accident. Note: failing to notify their insurer in a timely manner could result in denial of the claim.
- exchange insurance information;
- remember that anything they tell their medical provider will be recorded in their medical record, a copy of which will eventually be seen by attorneys for the opposing insurance company;
- obtain a proper medical examination and treatment as soon as possible. This is important in order to treat injuries and to discover any other injuries that may not be immediately obvious. The treating physician should be informed as to the origin of the injuries and should be questioned if the injuries are severe enough to prevent the victim from working or engaging in other activities. Get documentation.
- follow doctor’s orders for treating their injuries. Failure to do so could impact the amount of compensation a victim may receive if they are seen to be non-cooperative with their own care providers;
- document all expenses related to the accident. Ask: would these expenses have been incurred had there been no accident?
The victim of an auto accident SHOULD NOT:
- make any admissions;
- negotiate with the opposite party or their insurance company;
- accept any insurance company’s estimate of claim value;
- accept any insurance check that reads “Final Payment.” Doing so could settle the claim irreversibly;
- apologize for the accident;
- speak with the adjuster from an opposing insurance company about specific details of the accident except through Tim;
- sign any release;
- comment to anyone about the physical condition of themselves or their passengers;
- write, post, receive or retain any information on social media relating to the condition or fault of themselves or their passengers. Attorneys and investigators from the opposing insurance company will see all posts and pictures. They will have complete access to all comments and photos taken by an injured party’s family or friends which are posted to the injured party’s social media site.
Injury victims need Tim as their attorney to navigate the legal process and secure the compensation they deserve – not what an insurance representative tells them their claim is worth. An injury victim’s legal claim for compensation may be the most important, life changing financial event they face during their life. Tim creates excellent on-going relationships with his clients and will take the time required to educate his clients to make the choices which are right for them.
Threshold Fault
Calculating damages depends on where the accident happened and the relative degree of fault between the parties. Colorado and New Mexico are ‘modified comparative negligence’ states. This means a settlement is reduced by the degree of fault assigned to each party. If fault is greater than 50%, a litigant won’t win anything.
Types of Insurance & Minimum Insurance Coverage
Property damage coverage pays for physical damage to a victim’s vehicle caused by an at-fault driver. Bodily injury coverage provides compensation for injury. Uninsured/Underinsured (‘UM/UIM’) coverage fills the gap between the at-fault driver’s insurance and the losses suffered by his victim.
State law in Colorado requires the following minimum liability insurance coverage:
- $25,000 for bodily injury or death to any one person in an accident;
- $50,000 for bodily injury or death to all persons in any one accident;
- $15,000 for property damage in any one accident;
State law in New Mexico requires the following minimum liability insurance coverage:
- $25,000 for bodily injury per person;
- $50,000 for bodily injury per accident;
- $10,000 for property damage per accident.
Types of Damages
Colorado and New Mexico law recognizes multiple categories of damage including:
Compensatory Damages
Compensatory damages, sometimes referred to as “actual” damages, are paid to make up for the loss of something. Compensatory damages can be further divided into two sub-categories: economic and non-economic.
Economic Damages
Examples of economic damages include:
- emergency response services;
- medical expenses;
- physical therapy;
- hospital stays;
- home health care;
- medications and other prescriptions, such as crutches and medically necessary meals;
- loss of income;
- loss of earning capacity;
- loss of benefits (vacation etc.);
- restitution;
- attorney’s fees and court costs;
- compensation for damaged or destroyed property.
Non-Economic Damages
Non-economic damages are more abstract. Examples include:
- Pain and suffering. Clients are encouraged to maintain journals where they document their pain from each day;
- Emotional distress. Compensation may be sought for the immediate trauma resulting from an accident and any lingering anxieties, fears or depression that might result;
- Loss of life enjoyment and consortium. Losing the ability to enjoy life is compensable. This includes the capacity to participate in sports and hobbies. It also includes losing the ability to have intimate relations;
- Disfigurement. If an incident left the victim with scars or permanent impairment, including brain damage, they have a right to compensation.
There is no formula for calculating non-economic damages. Determining value can be difficult. Many factors are considered in the valuation of non-economic damages, including the individual’s work, lifestyle, pre-existing injuries, disfigurements and available proof. Quite often an expert (like an economist) is used to present evidence.
Punitive Damages
Punitive damages are awarded by juries to punish negligent drivers for especially egregious conduct and to deter them, and others, from engaging in that type of wrongful behavior. This behavior might include:
- Malicious conduct. Conduct can be malicious if it is an intentional wrongful act done, knowing that it is wrong.
- Willful conduct. A negligent driver can engage in willful conduct if he intentionally engages in an action that he knows could harm others.
- Reckless conduct. A motorist’s conduct may be considered reckless if he intentionally takes an action with utter indifference to the consequences.
- Wanton conduct. Conduct may be wanton if it is done with total indifference to or with a conscious disregard for the rights or safety of others.
Punitive damages are most commonly awarded in cases where a driver was driving while intoxicated (DWI) either due to alcohol or drug use or when a motorist was driving at an excessive speed or was engaged in road rage behavior. In both Colorado and New Mexico, they can be awarded in excess of actual damages – with certain exceptions.
Expenses Which May Arise from Auto Accidents
An accident victim has the right to collect damages for current and future medical expenses associated with an accident from the ‘at-fault party.’ An accident victim may collect for lost time from work, pain and suffering, compensation for any scaring or disfigurement and even mileage to and from their doctor’s appointments. Examples common expenses associated with automobile accidents are:
- Ambulance services;
- Emergency room fees;
- Emergency room doctor fees;
- Hospital charges;
- X-rays, MRIs, CAT scans and/or ultra-sounds;
- Surgical fees;
- Doctor’s fees;
- Ongoing physical or chiropractic therapy;
- Medical devices like boots, braces, wheelchairs, crutches, etc.;
- Future therapy or medical treatment.
(The forgoing list is not all inclusive.)
Dealing with Insurance Adjusters
Insurance companies have s single concern: minimizing the amount of money paid out by their company. Whether it is the victim’s insurance company or the insurance company of the at-fault driver, both are concerned about their profit and loss. A victim should speak with an adjuster only through Tim as their attorney. Comments made by a victim directly to an opposing side may otherwise be considered an admissions or statement against interest which can be used against the injured victim at trial.
When speaking with any insurance adjuster DO NOT:
- give a recorded statement. Anything said, no matter how innocent, may be considered an admission and used against the injured party’s interests;
- sign a release;
- fill out any insurance forms;
- provide the names or contact information for care givers (ie doctors, therapists, etc.);
- provide a date of birth or social security number;
- answer any questions about seat belts, injuries, speed or other related areas;
- give an adverse adjuster any information regarding previous or current physical condition, medical information or Medicare/Medicaid number.
DO inform the opposing insurance company’s adjuster of intent to fully cooperate with their investigation but only through an attorney. If the adjuster makes contact with the victim, the adjuster should be told to submit their questions in writing to Tim for answers.
ALSO ASK the opposing adjuster:
- for the policy limits of the at-fault driver’s policy;
- if the at-fault driver gave the insurance company a statement. If so, ask for a copy;
- if their client, the at-fault driver, accepts full responsibility for the accident.
Sources of Compensation Following Accidents
The victim/driver and their passenger(s) may have injuries and damages which should be assessed against the at-fault driver and any other sources from which compensation may justly arise. An example of an alternative source of compensation might be a bar or liquor store selling alcohol to a visibly intoxicated person who later becomes involved in an auto accident.
Another alternative source for compensation is UM/UIM (Uninsured Motorist/Underinsured Motorist). Most insurance company’s offer their own insureds coverage for damages in excess of the at-fault driver’s coverage or where the at-fault party is without insurance.
Med Pay is another source of compensation. Med Pay is medical no questions asked coverage for all reasonable medical expenses an injury victim or their passengers incur from an auto accident. Since 2009, all Colorado insurance companies must offer their insured’s a $5,000 ‘Med-Pay’ option. If drivers don’t want this, they must “opt-out” of Med Pay coverage, otherwise Med-Pay and added premium will be in force. This coverage is designated for paying the vehicles’ driver and passenger(s) medical, hospital and rehab costs without regard to fault.
In New Mexico, ‘Med Pay,’ is similar. This coverage goes toward paying an injured victims’ medical bills or funeral expenses (as well as those incurred by other passengers in the vehicle). This coverage usually has limits between $5,000 and $10,000 and can be used regardless of fault.
Other potential sources of compensation may come from the actual owner of the at-fault driver’s car, government agencies, employers and/or auto manufacturers. The above is not a comprehensive list. Tim will work hard to identify every possible source of payment.
UM/UIM Coverage
If an at-fault driver’s insurance doesn’t cover all damage and injury arising from an accident, an auto-accident victim may seek compensation through their own policy using its UM/UIM (Uninsured Motorist/Underinsured Motorist) provisions.
Under a UM/UIM clause, the injured party’s insurance company ‘steps into the shoes’ of the at-fault driver to cover damages up to the amount of actual damages or policy limits – whichever is less. UM/UIM coverage also applies when an at-fault party has insufficient insurance (ie: policy limits do not cover the extent of the injured person’s expenses). In these situations, UM/UIM coverage pays the difference between the policy’s limit of the at-fault party’s liability coverage and the amount of damages sustained by the victim up to the UM/UIM policy limits of the victim’s own policy. UM/UIM insurance is ‘gap’ insurance. It fills the gap between the other party’s insurance and a victim’s losses from an accident. UM/UIM coverage also pays for pedestrians, passengers and cyclists who are injured in a collision with a motorist. Drivers or passengers who have UM/UIM coverage are eligible for compensation only if the other party was more at fault than the victim. Drivers or passengers who have UM/UIM coverage and who are involved in an accident while in someone else’s vehicle are also eligible to recover if the other party was at fault.
All insurance companies in Colorado and New Mexico are required by law to offer UM/UIM coverage to policyholders. To opt out of this coverage, policyholders must do so in writing. Purchasers of UM/UIM coverage, are entitled to receive details from their insurance company regarding policy provisions including terms of the policy, premium level and the available benefits.
Colorado law requires insurance companies provide consumers the option of carrying UM/UIM coverage equal to the limits of their bodily injury liability policy. This means that if a driver has liability coverage up to $100,000, they will automatically be eligible for $100,000 of UM/UIM coverage.
New Mexico law requires all insurance companies offer UM/UIM insurance to their insureds in connection with any other liability insurance they offer. Statute requires the following UM/UIM minimums: property damage coverage to $10,000 per accident, and; bodily injury coverage to: $25,000 per person/$50,000 per accident if two or more people are injured in a crash.
Time Limits
An injury victim must act swiftly because there is a limited period of time within which to bring an action. These time periods are called Statutes of Limitations and vary in length depending upon the type of case a victim has. Under Colorado law, a party injured in an automobile accident has two years from the date of the car accident to file a negligence claim. Under New Mexico law, an auto accident victim has generally three years to file.
If there are claims other than negligence, the time to file may be shorter. For example, if a government actor caused or contributed to a victim’s injuries, time periods may be even shorter. In Colorado, timely notice of the accident must be made within 180 days of the injury and must be sent to the proper governmental agency in specific form. In New Mexico, the notice period is just 90 days. It is important that a victim call Tim as soon as possible to help preserve evidence and to make sure all proper notices, timing and procedures are followed.
FAQ's
Q: What Is liability?
A: Liability means being legally responsible for something. It is important to prove who was negligent or who made the mistake (such as making an improper turn) leading to an injury. Proving accident liability may not be clear cut. In some collisions multiple drivers may bear a portion of responsibility for the accident. To recover in Colorado and New Mexico the initial question is: who bears responsibility and what share? The offending driver must be more than 50% at fault to win a financial award.
Q: How Is negligence established to prove liability?
A: It must be shown that conduct occurred which fell below the standards of behavior established by law for the protection of others against unreasonable risk of harm. A person has acted negligently if they have departed from conduct expected of a reasonably prudent person acting under similar circumstances.
Q: How long does an auto-accident victim have to file a claim and when should a claim be filed?
A: The statute of limitations is the law sets the maximum amount of time that parties have to initiate legal proceedings from the date of an offense. The date of an incident (tort) is when it occurred or when the injury should have reasonably been discovered. Under Colorado law an injured party has two years from the date of the car accident to file a claim for negligence. If there are claims other than negligence, the time to file may be shorter.
In New Mexico, the statute of limitations to file a personal injury case is:
- Two years from the date of the accident for a claim against a governmental entity, including a 90-day tort claim notice from the date of the accident
- Three years from the date of the accident for personal injuries suffered
- Three years from the date of the victim’s death if a loved one died from his or her injuries and you must file a wrongful death action
- Four years from the date of the accident for property damage suffered
In personal injury cases, it is important to be aware of the full extent of injuries, medical expenses and damages before filing a claim or making a demand for payment. Sometimes injuries become apparent after time has passed. An experienced attorney like Tim will initiate a claim when the injured client is at, or close to, their maximum medical improvement.
Q: What is the statute of limitations if my case is against a government actor?
A: Limited sovereign immunity applies with certain exceptions. Assuming you fall within an exception, then you step to the next level of analysis. In New Mexico, once notice is filed, the government will decide whether to pay the claim or to deny it. If the claim is denied, the injured person has two years from the date of injury to file their lawsuit in court. In Colorado, if the case involves a governmental entity, the injured person must give notice to the government entity within six months of the discovery of their injury. They must then wait at least 90 days for a response before filing a lawsuit. The research, investigation and medical exams required to gather evidence for an injury case can be time consuming. It is better to prepare early with time to spare than for a case to be dismissed because there was insufficient time to prepare. Promptly contacting a Tim is important.
Q: Aside from the claim of negligence, are there other claims commonly included in personal injury actions?
A: Yes. There are many potential companion claims to negligence. Insurance bad faith is an example. Insurance companies owe a duty of good faith to policy holders. When a person buys insurance, they expect coverage in the event of a loss without having to bring suit against their own insurance company to receive the benefit for which they paid. An insurance company which fails to fulfill its obligations to a policy holder may be liable for a ‘bad faith’ claim. A negligence claim compounded by a bad faith claim can significantly increase potential compensation to the policy holder.
Q: What documentation should be retained following a personal injury?
A: All documents and photographs which help prove damages and expenses related to an accident should be retained. This includes items like medical bills, taxi receipts and property damage estimates.
Q: Who can help build the case?
A: Individuals who saw the accident or who can demonstrate how an accident has affected the victim’s life are potential witnesses. Doctors, therapists, chiropractors and expert witnesses like accident reconstruction specialists and economists also help build the case. The burden of proof is on the person(s) bringing the claim.
Q: When is a good time to contact a personal injury attorney?
A: Contact an attorney immediately after an accident. Following an accident, the injured party may think the pain will disappear on its own – especially if the pain is small. However, minor pain may grow worse and become serious over time. After the passage of time it may be too late to make a claim, to accurately diagnose, to accurately treat and to build a case to receive proper compensation.
Q: How long should a victim wait for an insurance company to respond to a claim?
A: According to Colorado law, insurance companies have 15 working days to respond after an insured has made a request to provide the forms needed to file a claim. After a victim has submitted completed forms, an insurance company has 60 days to investigate the case and provide an explanation of why a claim is approved or denied. In New Mexico, insurance companies must respond within a ‘reasonable’ time. Working with an experienced personal injury lawyer early in the case will make it more difficult for an insurance company to deny the claim.
Q: Should the victim of an auto injury settle their claim immediately after the incident?
A: No. There is a statute specifically prohibiting adjusters from trying to settle a claim with an injury victim within 15 days of the date of injury.
Q: What stops the Insurance company from giving me the runaround?
A: In order to avoid complications and keep a case processing as smoothly as possible, it’s important to approach the case in a consistent, methodical manner with constant follow-up. Tim will do this.
Q: Does fault matter?
A: Yes. Colorado and New Mexico follow a system called ‘modified comparative fault’. Depending on the percentage of a party’s fault for an accident, the amount of compensation they receive for that accident is adjusted based on the percentage of their fault. As long a party is determined to be less than 50% at fault for an accident, compensation is possible. By way of example, if someone is 20% fault for an accident, they can receive up to 80% of the full compensation available. If a person is 51% or more at fault, they receive nothing.
Q: How is fault established?
A: Fault is established by proving four steps:
- an injured party must prove that the other party owed them a duty of reasonable care. For example, drivers have a responsibility to drive in a safe manner, without speeding or distractions.
- An injured party must prove that the other party did not fulfill their duty, leading to the accident.
- An injured party must prove they have suffered injuries as a result of the other party’s actions.
- An injured party must prove the other party’s failure to fulfil their duty of reasonable care was the cause of the injured party’s damage.
Details can be complex. It is a good idea to discuss the case with a personal injury lawyer like Tim as soon as possible following an accident while events are fresh.
Q: Is an auto accident involving alcohol different than any other auto accident?
A: Yes. In most types of car accidents, proof of negligence is enough for a driver to be held liable for damages. However, to file a lawsuit against a drunk driver, evidence must show that the driver was legally intoxicated while driving. After compiling raw data from police reports, witnesses, and other sources, Tim will put together a case showing the at-fault drivers blood alcohol level impaired their ability to think and act safely. Drunk driving can significantly increase a victims compensation.
Q: What types of damages can be claimed from an alcohol related auto accident?
A: Victims of DUI accidents may be able to receive compensation in the form of:
- third-party claims against other parties responsible for the accident;
- property damage for vehicle repairs;
- medical and rehabilitation expenses;
- loss of current income or future earning potential;
- pain and suffering;
- physical impairment;
- emotional distress;
- quality of life;
- punitive damages, or compensation meant to punish reckless drivers;
Tim assists victims of personal injury in determining the kind of damages which apply to their case. In cases of a wrongful death, surviving family members may be entitled to compensation for loss of companionship or earnings from the deceased. Moreover, if the at-fault driver became drunk at a bar, restaurant, or other establishments, that business may be also held accountable for punitive damages.
Q: What fee does Tim usually charge for a personal injury case?
A: The usual contingency fee for a personal case is 33% of the final judgement or settlement for the case not including costs. This can sometimes range as high as 40% if a lawsuit requires a large amount of additional time or an appeal. Tim’s legal fees are dependent on his winning the case. Clients will not owe legal fees unless the case is won.
Q: After a serious accident, could a spouse have a claim?
A: Yes. It’s called the loss of consortium if intimacy has been affected.
Q: What happens if the accident involves in a ‘slip and fall’ at a business?
A: The victim should immediately notify a manager and fill out an incident report, and then seek medical help (if needed). Get the names, addresses, and phone numbers of any witnesses. They should photograph the fall area.
Q: What if the other driver doesn’t want to call the police following an accident?
A: Take photos of the vehicles, the other driver’s registration, driver’s license, and insurance card, if possible. Get the names, addresses, and phone numbers of any witnesses. Next, report the accident to the police.
Q: Are personal injury awards subject to caps or limitation?
A: Yes. Personal injury awards are subject to damage caps. Damage caps are laws that limit the amount of non-economic damages that may be awarded in a case. Damage caps in Colorado are based on the type of damage. Colorado has no caps on economic compensatory damages, but state law does place limits on non-economic awards. Pain and suffering are capped at $250,000 (adjusted for inflation), although that amount can increase to $500,000 if there is clear and convincing evidence that an increase is warranted. Permanent physical impairments are not capped.
Colorado also imposes damage caps when the state or a local governmental agency, governmental subdivision, municipality, or city is the defendant. For a single incident, the cap is $350,000 per person or $990,000 per incident if multiple claims/injuries arise from a single accident. This number is adjusted each year for inflation based on the consumer price index.
In certain injury cases, New Mexico laws place a cap on the amount available to an injured person. No overall cap exists and, in most injury cases, caps are not a consideration.
Medical malpractice and claims against government are the exception. If negligence of a government employee is the source of an injury, the New Mexico, ‘Tort Claims Act’ applies. Generally, most cases under the Tort Claim Act limit damages at $400,000 against a government entity for non-economic damages other than those which compensate the injured person for medical expenses and property damage.
In injury cases involving the negligence of a doctor or other health care professional, New Mexico laws place a $600,000 limit on the total recovery. This limit does not include compensation for necessary past and future medical care, and it does not apply to punitive damages.
Q: How Does the Collateral Source Rule affect Uninsured/Underinsured Motorists?
A: If an uninsured or underinsured motorist causes an accident, the collateral source rule may apply. Instead of the defendant’s insurance company repaying the victim’s medical and out-of-pocket expenses, this burden may fall upon the victim’s insurance company. It will be the victim’s auto insurer that compensates the victim and repays the collateral source for covering the victim’s medical bills. If the at-fault driver has insurance, but not enough to cover the victim’s needs, the victim’s insurance provider will fill the gap.
In an uninsured/underinsured motorist case, it is always wise to consider whether a third party also played a role in causing the accident. For example, if the seatbelt did not properly protect the victim from injury, the victim may have a claim against the seatbelt manufacturer. A successful third-party claim could mean someone else’s insurance company reimburses Medicare/Medicaid or another collateral source. Speak to Tim if an uninsured/underinsured motorist caused the accident.
Q: Will payments received from a collateral source affect a victim’s receipt of benefits from Medicare or Medicaid?
A: The collateral source rule will not interfere with a victim receiving Medicaid or Medicare benefits for personal injuries and medical bills. The health insurance provider will still pay for a victim’s bills as it would under normal circumstances. However, Medicaid/Medicare will expect reimbursement for the amount it paid to cover your medical bills from the at-fault party. It will be the defendant’s responsibility to pay Medicaid/Medicare benefits back on your behalf.
Q: Will insurance company benefits be reduced if the victim receives benefits because of the collateral source rule?
A: No.
Q: How Do Uninsured/Underinsured Motorists Affect the Source Rule?
A: If an uninsured or underinsured motorist causes an accident, the collateral source case looks a little different. Instead of the defendant’s insurance company repaying the victim’s medical and out-of-pocket expenses, this burden may fall upon the victim’s insurance company. It will be the victim’s auto insurer that compensates the victim and repays the collateral source for covering the victim’s medical bills. If the at-fault driver has insurance, but not enough to cover the victim’s needs, the victim’s insurance provider will fill the gap.
In an uninsured/underinsured motorist case, it is always wise to consider whether a third party also played a role in causing your accident. If your seatbelt did not properly protect you from injury, for example, you may have a claim against the seatbelt manufacturer. A successful third-party claim could mean someone else’s insurance company reimbursing Medicare/Medicaid or another collateral source rather than your own. Speak to Tim if an uninsured/underinsured motorist caused the accident.re