Auto Injury FAQ’s

Click HERE to download our accident check list to help you stay calm, cool, and collected after a collision.

The best way to know if you have a personal injury claim is to consult with an attorney, but generally, the four elements of any personal injury claim consist of the other person:

1.  owing you a duty
2. breaching that duty
3. the breach caused the accident and your injuries
4. you have damages

In New Mexico, the statute of limitations on personal injury claims is three (3) years from the date of the accident. If the at-fault person was a state government employee, then you must file tort claims notice within ninety (90) days of the accident and file your complaint within two (2) years from the date of the accident.

Be sure to get the at-fault driver’s name, insurer and policy number. It is best to get this information at the scene, but it will usually also be listed on the police report. Next, contact the insurance company and provide the necessary information. An adjuster will ask you a series of questions including an interview on how the accident occurred. From that point forward, you will have an insurance claim “opened.” (Please keep in mind this is NOT the same as filing a claim or complaint in court).

Alternatively, you can hire an attorney who will handle the entire claims process from start to finish for you.

Negligence is the failure to use reasonable care, resulting in damage or injury to another. To bring a personal injury claim for negligence, you must prove the following

1. the person owed a duty of care to you,
2. they breached that duty of care,
3. as a direct and proximate result of that breach, you were injured, and
4. you have damages arising from that breach.

We never encourage people to speak to insurance adjusters without an attorney present. Anything you say to the adjuster can be used against you while evaluating your case for damages and is possibly admissible in court. This is the same for speaking with your own insurance.

The best time to hire an attorney is immediately after an accident. From the beginning, an attorney can request the police report, open your insurance claim, help you get into see a doctor for evaluation, and get you on track to healing and recovery. The longer you wait to hire an attorney, the more opportunity there is for important steps to fall through the cracks.

Let an attorney handle the stress and strategy of handling your car accident case.

No. At Cassidy Baca, P.C. we never charge for personal injury consultations. Click HERE if you’d like to make an appointment with an experienced personal injury attorney today.

When first meeting your lawyer, it is helpful to bring the following: your driver’s license, your car insurance information (declaration page if possible), any photographs of the property damage or of your bodily injuries, and your health insurance card (if you have insurance).

To get a better understanding of what you are signing up for when you hire a personal injury attorney, try asking the following questions:

a. What does the claims process look like?

b. Do I need to use my own health insurance? What if I don’t have health insurance?

c. What can I do to ensure the success of my personal injury claim?

We never recommend speaking with an adjuster without a lawyer, but adjusters have a job to do and that means contacting the claimants and gathering information. If you are in the process of looking for an attorney, and adjuster calls you, simply let them know that you appreciate them calling, but that you are hiring an attorney and that you will have your attorney contact them. Do not give in to any pressure to give the adjuster information or documentation regarding your claim. This goes for speaking with your own insurance as well.

It is true that you don’t need a lawyer to settle your personal injury claim. However, it only benefits the insurance company if you don’t have a lawyer. Personal injury attorneys are trained and have years of experience maximizing claims to get victim’s the best outcome possible. As such, the insurance companies would love for you to represent yourself rather than have an attorney helping you out.

Most personal injury attorneys, including Cassidy Baca, P.C., charge a “contingency fee.” Which means that our clients do not pay us any money out-of-pocket or up front. Rather, we wait to get paid a percentage from the settlement. That way our clients do not have to worry about legal bills piling up while they are trying to recover. If you don’t recover any money from the at-fault driver, we do not recover any money either.

Most personal injury attorneys charge ~33% contingency fee for their clients. This means that if your case settles for $100,000.00, the attorney fee will be ~$33,000.00. However, contingency fees usually go up if you must file a complaint and/or go to mediation, arbitration, or trial. As such, an average range for contingency fees are actually 33% to 40%.

If you mention this Frequently Asked Question to Cassidy Baca, P.C. we will honor a contingency fee agreement of only 30% for any settlement prior to filing a complaint!

You should see a doctor as soon as possible. A doctor, physical therapist, or chiropractor will be able to evaluate you for injuries and prescribe proper medication or therapy so that you can heal quickly. The longer you wait to get treated, the easier it is for the insurance company deny paying for your medical treatment.

If you don’t have insurance and need help finding medical care, CALL Cassidy Baca, P.C. today so that we can help!

It is common that people do not have health insurance and cannot pay a doctor out-of-pocket. Attorneys can help you find medical providers who are willing to accept “letters of protection” or “liens.” In this case, the provider is willing to forego immediate payment and wait until there is a settlement or award. Once there is a settlement or award, the medical provider will be reimbursed from that settlement or award. Most medical providers will not accept letters of protection or liens if their patient is not represented by an attorney.

Yes, you still have a claim even if your health insurance paid your medical bills. Because the health insurer had to pay for your medical bills even though you were injured by the fault of another person, the insurer has a right to ask for “subrogation.” Subrogation is simply the act of reimbursing the health insurer from the settlement or award.

Yes, a health insurer may file a lien against your case. Often times, your attorney can negotiate to get this lien reduced.

No, you don’t have to go to an MD. Physical therapists and chiropractors are qualified to assess, diagnosis, and treat your injuries. However, we like to think of MD’s as quarterbacks to your health care. An MD will be able to look at your overall health and injuries and refer you to proper treatment. They likely have a better understanding of all your needs and can track your progress appropriately. If one form of therapy does not work, then they can refer you to a new kind of therapy. MD’s tend to have a good understanding and overall outlook to the type of care you need, and they have the credentials to refer you out and prescribe necessary medication.

Unfortunately, sometimes you might not get the best treatment from your doctors, or you might feel like your pain and injuries are being disregarded. If this is the case, it is best to consult with a lawyer on exactly how you should approach this issue. Generally speaking, you should follow your doctor’s recommendations to completion. If upon completion of treatment you still do not feel better, you can inform your current doctor and ask that they recommend you to different treatment or for more follow-up care, or you can see a different doctor and get a second opinion. The second doctor may assess and evaluate you differently and have other ideas on how best to treat you. It’s important to remember that your doctor is a qualified professional. As such, it is important you adhere to the course of treatment recommended to you until completion. Once you do as your doctor instructed, and if you are still not feeling better, then it may be time to see what other treatment options you have.

The three main ways to handle your medical bills until your case is settled is:

1. through your health insurance;
2. through a letter of protection; or
3. out-of-pocket. For more information, see our article on medical bills HERE.

Yes – you can still recover for personal injuries arising from a car accident even if you have a pre-existing condition. Sometimes, pre-existing conditions have no bearing on injuries suffered in a recent accident. For example, if you previously had a broken arm, but due to the accident, you now have a broken foot, one does not affect the other. Further, some pre-existing conditions can help explain why some people take longer to heal from car accidents compared to others. Like, if you suffer from diabetes. If you had a pre-existing condition or injury that was re-injured or aggravated by a recent accident, you are still able to recover for that as well.

It is possible that you may not feel injured immediately after an accident. When a person has just experienced an acute and traumatic experience, the brain goes into a “fight or flight” mode, and the body floods with adrenaline. The brain also releases endorphins which act as the body’s natural pain killer. With such an endorphin release, your pain may be masked until your nervous system is able to calm down and shift out of the fight or flight feeling. At that point, you’re likely to feel an intense onset of pain. For this reason, it is best to be checked out by a doctor as soon as possible.

Depending on what state the accident occurred in, if you are partially at-fault, you will either be deemed to be “contributorily negligent” or “comparatively negligent.” New Mexico uses the standard of comparative negligence which means that you are still entitled to recover damages; however, those damages will be reduced by the amount for which you are at-fault. For example, if you have $10,000.00 of medical bills and are deemed 30% at-fault, that means you are only entitled to recover 70% ($7,000.00) of your medical bills from the other at-fault driver. It also means you can recover at least 70% of your pain and suffering damages.

Yes. It is possible to sue the government, a government entity, and government employee. However, there are some extra steps you must take to preserve a negligence claim against the government. Generally, the government is granted blanketed immunity; meaning, it cannot be sued. However, there are certain instances where state statutes will waive government immunity. If government immunity is waived, and you are able to sue, you must preserve your claim by sending a “tort claim notice” to the at-fault entity. In New Mexico, a tort claims notice must comply with Section 41-4-16 NMSA 1978. This notice must be sent to the correct person and agency within 90 days after the incident. If you fail to do this, you lose your right to make a claim. Further, the statute of limitations for suing the government is only 2 years in New Mexico. As such, you must settle or file a complaint in court within 2 years of the negligent incident.

No. There is no minimum amount a victim will recover after a car accident. The purpose of a personal injury claim is to make the victim “whole” again. That is, to put the victim in the exact same position they were in just prior to the accident.

Your settlement will be based on the severity of the accident, the kind of injuries you sustained and whether any of those injuries or permanent. Your settlement can also be based on the medical bills you incurred and are likely to incur in the future, as well as the pain and suffering you endured and are likely to endure if your injuries are permanent. Further, you can recover lost wages and other out-of-pocket expenses. You may be entitled to more damages than those listed above; therefore, to maximize your settlement, it is best to consult with an attorney.

UIM/UM stands for “uninsured” or “underinsured” motorist policy. This is a type of insurance coverage that you can purchase from your insurer as an add on to your auto insurance policy. UIM/UM coverage comes into effect if you are involved in an accident where the at-fault driver either does not have any insurance or does not have enough insurance to cover your damages. Everyone should have UIM/UM coverage. Just because you might carry high liability coverage does not mean that the next driver will. Having UIM/UM coverage ensures that you will be compensated no matter what the insurance status is of the at-fault driver. Not having UIM/UM coverage is like gambling – you never know what you’re going to get.

To find out whether you have UIM/UM coverage, you can simply contact your insurer and ask for a copy of your declaration page. The declaration page to your auto policy will describe what kind of coverage you have and what the policy limits are. In New Mexico, the UIM/UM minimum coverage is $25,000 per person/$50,000 per accident. However, you can always ask (and it’s highly recommended) that you purchase higher coverage amounts than the minimum.

Your UIM/UM insurance coverage will come into effect when your insurer determines that: (a) you are not at-fault for the accident, (b) the at-fault driver has no form of insurance, or (c) your damages have exceeded that at-fault driver’s liability policy limits and you still have damages that have gone uncompensated.

No-fault insurance is a type of insurance coverage that you can purchase from your auto insurer. No-fault insurance is available to you regardless if you caused the accident or if someone else caused the accident. (Unlike UIM/UM coverage where you cannot be the at-fault driver in order to benefit). Usually, in auto policies, no-fault insurance is available in the form of medical payments (a/k/a “med pay”). This means that if you are involved in a collision, your auto insurance will pay for a specific amount in medical bills for you that arise from said collision. If you are the at-fault driver, you do not need to reimburse your insurance for the med pay coverage because you already paid for it in your premiums to the insurer. If you are the not-at-fault driver, the at-fault driver will be responsible for reimbursing your insurance for the med pay paid out on your behalf.

If you were hit by an uninsured and you are not at-fault for the accident, you can make a claim under your UIM policy with your own auto insurance. If you do not have UIM, then you can continue to sue the at-fault driver, but there will be no insurance to compensate you. Rather, you would be suing the driver directly and that driver would be responsible for defending his or her own case or hiring their own attorney. Further, that driver, if found liable, will be solely responsible for compensating you as the victim.

If the at-fault driver does not have enough insurance to cover all your damages, you can seek the remaining damages from your own insurer under a UM policy. However, if you do not have a UM policy, then you have two options:

1. accept the policy limits from the at-fault driver (even though they do not fully compensate you) and release the at-fault driver of all claims; or
2. continue to sue that at-fault driver to the full extent possible, wherein the driver will become personally liable for compensating your damages which are in excess of his or her policy limits.

The insurance company will not be liable to buy you a new car. However, it will be responsible for either repairing your vehicle or for totaling out your vehicle and paying you the market value of said car.

In New Mexico, a person involved in a car accident can make a claim for property damage for either the cost to repair the vehicle or the market value of the vehicle if it is declared a “total loss.” The not-at-fault driver can also make a claim for “loss of use” for the time that they were without a vehicle while it is getting repaired or for the market price for a rental car. If the car was reparable, the driver can also make a claim for diminution of value. Further, the not-at-fault driver may make claims for other property damages such as a broken cell phone, laptop, car seats, etc. However, you will have to prove these items were broken and the cost to repair or replace the same or similar items. For example, if your iPhone 8 was broken in an accident, you cannot claim the price of an iPhone 13. Rather, you can ask for the fair market price of an iPhone 8.

There are three ways to approach getting your car fixed. First, you might be able make a claim with your own insurance company if you have full coverage, collision coverage, or comprehensive coverage. Then, your own insurance will work with the at-fault insurance company and get reimbursed. You will initially have to pay your deductible, but then you can be reimbursed that deductible when both insurance companies resolve the reimbursement. Second, you can make a property damage claim with the at-fault insurance. This typically takes longer to get your fixed, but you won’t need to pay a deductible. Third, you can pay for your own repairs and then subsequently ask the at-fault insurance to reimburse you the costs.

When a car is deemed a total loss, the value of the car is determined by the fair market value of the same or similar car. Notably, you are not necessarily entitled to the sticker price of your car.

For example, if you purchase a brand new car with a sticker price of $60,000.00 that does not mean you will be compensated $60,000.00, even if you get into an accident while driving off the lot. That is because a dealership sticker price is marked up from the market price. Thus, an insurance company will only pay you the market price, which in this instance may only be $45,000.00. Unfortunately, that means you are simply out of the $15,000.00 difference.

When buying a new car, we recommend you to speak to your insurer, bank, and auto dealership about “gap insurance” to avoid this problem.

A car is deemed a total loss when the cost to repair the car is more expensive the market price of the car. For example, if you are driving a 2005 Ford Escape that has a market value of $5,000.00, but then get into an accident where the cost of repair would be $7,000.00, the insurance company will simply deem your car a “total loss” and cut you a check for $5,000.00.

If you miss work due to an accident, you can later make a claim for lost wages. It would be illegal for your employer to fire you for health issues. So, be transparent with your employer and if you think you will be missing work for an extended period of time, talk to your employer and doctor about filling out the necessary paperwork under the Family Medical Leave Act (FMLA). Further, if an accident leaves your permanently impaired or disabled you may need to apply for disability in which case it is highly recommended to hire a disability lawyer to represent you.

A lost wage claim can be proven through a series of evidence such as letters from your employer, supervisor, or HR manager which document your absence from work due to the accident. Further, pay stubs documenting how much you’re paid and how many hours you normally work per week, as well as paystubs demonstrating the amount of hours you lost when you were unable to work.

Yes. Under the New Mexico Wrongful Death Statute (Section 41-2-1 NMSA 1978), when a person dies due to the negligence of another, you can bring a lawsuit on behalf of your loved one as a personal representative of the estate. In New Mexico, there is a series of documents you must submit to the court to be appointed a personal representative. Once you are formally appointed by the court, you can bring a lawsuit on behalf of your loved one. Any award or settlement received on behalf of the deceased will then be distributed according to the Wrongful Death Statute.

If a victim dies of other causes not related to the car accident before he or she is able to bring a personal injury lawsuit, a family member or friend may bring a lawsuit on the deceased estate’s behalf. In New Mexico, that person would have to be appointed either the personal representative in probate or a special administrator in probate prior to bringing the lawsuit.

Similarly, if the at-fault driver dies prior to a personal injury lawsuit, the victim can sue the at-fault driver’s estate and either the probate personal representative or special administrator will represent the deceased driver estate’s interest in the matter.

When a child has been hurt in an accident, the child’s parent(s) or legal guardian(s) may bring personal injury claims on behalf of the child. Typically, in New Mexico, if the child is set to receive a settlement, said settlement will need to be approved by the court.

In this instance, both the plaintiff and defense attorney will agree to a guardian ad litem to represent the child’s interest, and a hearing will be held where the guardian and the court will make a determination whether the child’s settlement if fair and reasonable. This ensures that the child cannot come back to court to re-litigate the lawsuit when he or she turns 18 years of age. Of note, guardian ad litem hearings are often required and not optional.

No. You do not have to sue any person which you do not want to. Claims, negotiations, and settlements made prior to filing a complaint are not considered “suing” and are not made public. The most the at-fault driver will have to do during this early claim process is provide a statement to their insurer about how the accident happened.

We strive to maximize your settlement prior to filing a complaint. We understand that litigation and trial is typically something clients want to avoid. As such, our firm negotiates aggressively to get you the best outcome possible early on.

Typically, the person who caused your injury is not going to be “punished.” The purpose of a personal injury lawsuit is to make the victim “whole.” That means to put the victim back into the position he or she was in prior to the accident. The purpose of bringing a personal injury claim is not to punish the at-fault driver. However, there are instances when a victim can bring punitive damages against the at-fault driver which are used as a punishment and a form of deterrent. A person is typically entitled to make a claim for punitive damages when the at-fault driver’s behavior was particularly egregious, wanton, willful, and/or reckless, such as drinking and driving or drag racing.

The personal injury lawsuit will typically be filed in the jurisdiction where the accident happened and/or where the parties reside. For example, if you were involved in a car accident in Bernalillo County, and you live in Bernalillo County, and the defendant lives in Sandoval County, then the lawsuit will most likely be filed in Bernalillo County District Court. However, because the defendant lives in Sandoval County it is possible to file the lawsuit in Sandoval County District Court. It is important to discuss these details with your attorney.

No. Ethically, a lawyer cannot settle your case without your consent. Your lawyer has a duty to advise you of every offer of settlement made so that you can decide whether you want to settle or continue your claim. If there comes a point where you and your lawyer cannot agree whether to settle or continue litigation, your lawyer may want to ask the court to withdraw as your counsel. However, this rarely happens as most attorneys simply want what is best for the client. As such, it is important to have an open and honest line of communication between yourself and your attorney.

Personal injury settlements and awards typically come in the form of a check made by the insurance company. If you are represented by an attorney, the check will be sent to your attorney’s office, after which your attorney will distribute the settlement proceeds to you via a separate check.

If you are represented by an attorney, once the settlement check arrives, your attorney will distribute the money owed to medical providers, health insurance and to the law firm. They then will distribute the remaining settlement proceeds to you. Sometimes, it may take a few weeks to distribute the proceeds if the attorney is working on getting medical liens reduced. Patience pays off because any reduction in medical bills or insurance subrogation is simply more money that you get to take home as the client.

Yes. Be sure to ask your attorney for a copy of the settlement check as well as an itemized list of all legal costs associated with your case and all copies of any liens or subrogation that was paid back as well as any documents evidencing reductions in liens or subrogation.

As a legal guardian of a minor child, you should not be able to access the child’s settlement money. Usually, upon a court-approved child settlement, the court will require that the child’s settlement be put in a court restricted savings account which can only be accessed by the child upon them turning 18 years old. This is done to protect the child’s settlement money.

How long it takes to settle your case can depend on a variety of factors. Typically, you want to wait to make a settlement demand until you have completed medical treatment. From there, your attorney will need to collect all your medical records. Once the demand and medical records are sent to the insurance, the negation process begins. Once the demand is sent, it may only take a few weeks for your case to settle depending on the severity of the injuries and the insurance coverage available. If there are issues with the medical treatment or liability, it can take longer to settle a claim. Keep in mind that if you need to file a complaint, litigation can take years. Make sure you talk to your attorney about your needs and timeline when it comes to resolving your claim.