New Mexico Attorney Blog
Archive for March, 2010
Wednesday, March 24th, 2010
“You never listen to me” is a complaint heard as often from children as parents. Good communication helps children and parents to develop confidence, feelings of self-worth, and good relationships with others. During any conflict in relationships, especially in divorce or separation, parents must listen and communicate effectively with their children. Try these tips:
* Teach children to listen…gently touch a child before you talk…say their name.
* Speak in a quiet voice…whisper sometimes so children will have to listen…they like this.
* Look a child in the eyes so you can tell when they understand…bend or sit down … become the child’s size.
* Practice listening and talking…talk with your family about what you see on TV, hear on the radio, or see at the park or store. (Talk with your children about school and their friends.)
* Respect children and use a courteous tone of voice. If we talk to our children as we would our friends, our youngsters may be more likely to seek us out as confidants.
* Catch children and teens being good. Praise them for cooperating with you or their siblings, or for doing those little things that are so easy to take for granted.
* Use door openers that invite children to say more about an incident or their feelings. “I see,” “Oh,” “Tell me more,” “No kidding,” “Really,” “Hmmmm,” “Say that again, I want to be sure I understand you”, “So are you telling me that …”
* Praise builds a child’s confidence and reinforces communication. Unkind words tear children down and teach them that they just aren’t good enough.
* Children are never too old to be told they are loved. Saying “I love you” is important. Writing it in a note provides the child with a reminder that he/she can hold on to.
* Give your undivided attention when your children want to talk to you. Don’t read, watch TV, fall asleep or make yourself busy with other tasks.
Tuesday, March 23rd, 2010
Since one in four children will experience the divorce or separation of their parents, then we must help children through the many serious adjustments that they experience. New parental relationships, new homes and schools, and added financial pressures on parents are all significant factors, but critical to a child’s ability to cope is the opportunity to have regular access to both parents. Child experts tell us that children need predictable and consistent contact with both parents and no hostility between parents over the children. A tall order for parents in conflict, but if the focus is on the children’s best interest, then parents will help their children to learn to cope with the changes forced on them by divorce or separation.
Communication is frequently an issue, often resulting in wrong assumptions by one or both parents regarding their children. Frustrated parents may refuse their children access to the other parent or the non-custodial parent may be inconsistent in contact with their children. Unless parental rights are revoked, denying a parent contact with their children is illegal — even if they fail to pay child support. Domestic violence or drug issues sometimes are involved. As long as a child’s safety is not threatened, they still should have contact with a parent, even if third-party assistance is necessary.
Sometimes children become “pawns” in parental battles. As parents seek to win, their children frequently lose. By supporting their child’s contact with the other parent, adults validate the importance of that relationship, and minimize the focus on their own anger, hurts or frustrations. Parents can’t control each other, and benefit most from focusing on what they can control: their own attitudes and behaviors. When adults — even when they feel disrespected — resist the urge to degrade the other parent in front of children, they demonstrate integrity.
There may be frustration with the other parent’s lack of follow-through or availability, and the pain that this causes for children. While making disparaging comments should be avoided, adults should be careful not to make excuses for parental irresponsibility. Non-custodial parents must persist in maintaining contact with their children, even if the other parent makes it difficult or a child seems to push them away. It may feel discouraging now, but perseverance generally pays off with deeper parent-child relationships later. Parents should respect/honor the visitation schedule — both in showing up, and by being on time to pick up and drop off children. They should avoid making promises unless they can deliver on them.
Children need structure and love. Parents should make time with them as “normal” as possible, showing that they are more than a “Disneyland Dad” or “Magic Kingdom Mom,” who constantly entertains. Kids feel safer and grow up more confident with a healthy balance between clear expectations and unconditional support and love.
Tuesday, March 9th, 2010
The short answer is no, except in very rare circumstances.
The New Mexico Workers’ Compensation Act is a no fault system, designed to benefit both employees and employers. The primary benefit to this no fault system for the injured worker is that her or she does not have to prove negligence to receive compensation, as would be required in a typical personal injury claim. Generally, a worker injured in the course and scope of employment is entitled to benefits, regardless of whether the employer or the worker, or even another employee was negligent. Simply put, for the most part negligence is irrelevant in worker’s compensation.
The no fault system further provides a benefit to the worker because he or she does not have to prove up negligence. This allows for a more timely award of benefits to the worker.
The New Mexico Workers’ Compensation Act provides a very important benefit to the employer as well—that is, the employer can not be sued outside of workers’ compensation. In other words, the law does not require the worker to prove negligence, but as a tradeoff, it prohibits the workers from suing the employer outside of worker’s compensation.
Thus, for 99% of workers that means the worker cannot sue his or her employer, not even if your employer is negligent, or even grossly negligent.
I did mention there are rare situations in which a worker can sue an employer. This is known as a “Delgado Claim” named after the New Mexico case which first provided this right to workers. Without getting into the specifics of the case, and a complex analysis, I can simplify it with a simple example of what is required.
Assume there is a fire at work, and your employer demands that you rush into the burning fire or you will be fired. You refuse citing the obvious risks, and your employer again demands that you rush into the burning fire risking your life. You reluctantly agree, and are injured in doing so.
Okay, this is a bit of an exaggeration, but not much! While not exactly the standard for bringing a Delgado claim, this provides a helpful example as to the extremely high burden an injured worker must overcome to sue his or her employer. Another way of looking at it is that it must almost be intentional.
If you believe you have a situation that may rise to this level, please contact me and I will be happy to discuss your situation in more detail.
But as a general rule, assume you can’t sue your employer.
A couple quick side notes that must be mentioned while we are on this topic…you can potentially bring a claim outside of worker’s compensation if someone other than your employer or fellow employee caused your injury. The most common examples of this are negligent third party contractors or negligent drivers injuring you in a car accident while you are in the course and scope of employment. In this situation, you can potentially bring a worker’s compensation claim and a personal injury claim.
This is obviously meant to be a very quick overview of this area of the law, and is not intended to be a complete explanation. I will be happy to discuss the facts of your case if you need further information.
Sunday, March 7th, 2010
Injured workers often find their lives significantly impacted as a result of a work injury. In many cases, that impact affects the worker physically, emotionally, and financially among other areas.
In fact, many workers say the stress associated with the injury, and not the physical pain, presents the greatest difficulty for which he or she desires compensation.
However, most injured workers are surprised to learn that the New Mexico Workers’ Compensation system does not compensate injured workers for pain and suffering damages.
Pain and suffering damages, which are often associated with personal injury claims, are exactly what the name implies—damages awarded for the pain and stress that an injury has caused. This includes potential damages for the emotional impact of the injury, limitations on future activities the injury has caused, and future pain just to name a few. They are very subjective damages which differ from general damages such as lost wages and medical bills.
A hypothetical might help explain this better. For example, assume a worker, while in the course and scope of employment is driving and gets hit by a negligent driver causing injuries to worker which include pain and suffering. Worker is entitled to worker’s compensation benefits which include medical and indemnity (TTD and PPD) benefits. In other words, worker will get his medical bills covered, and will receive a portion of lost wages. However, Worker can also bring a personal injury claim resulting from the same accident against the responsible driver, in which he can claim damages for medical bills, lost wages (full amount), possible loss of earning capacity, and pain and suffering. *note that the worker’s compensation insurer would have a right to subrogation if worker recovers from third party as in this hypothetical.
As you can see, the benefits and damages available in a worker’s compensation claim are limited as compared to a typical personal injury claim—and this is in large part due to the absence of pain and suffering damages available in worker’s compensation.
Wednesday, March 3rd, 2010
Insurance can often seem excessively complicated and difficult to understand, but with state requirements for motorcyclists to be insured you need to understand how insurance works. Here are five commonly asked questions and answers regarding motorcycle insurance.
- Should I really submit a small claim to the insurance company, won’t it make my premium go up?
The answer to this is maybe. It depends on your particular situation. There are a number of different factors to take into account when deciding whether to file a claim. It helps if you have no or few claims filed previously. The biggest issue when determining if your rate will increase is fault. If you are at fault it is likely that your premium will increase. If you are not at fault, your rate will probably not increase.
Another factor to consider before you submit a claim is your deductible. If the damage to your bike is less than your deductible, then you probably don’t want to submit that claim.
Regardless of the amount of damage or fault, always tell your insurance carrier if you are involved in an incident that involves injuries to yourself or others.
- If I let my buddy drive my bike, does my insurance cover it?
Yes. This is based on the Permissive Use Policy. Basically, a rule of thumb is that insurance follows the bike, not just the driver. As long as your buddy has your permission to use the bike, it is covered.
You should still be cautious when you lend your bike to others. If they are in an accident you will have to file a claim against your insurance policy. The more claims you file, the more likely the insurance carrier will refuse to renew your policy, or to increase your premiums in the future. You should only lend your bike to a responsible, licensed motorcyclist.
- How does the insurance company decide how much my bike is worth?
Each bike is valued on an individual basis. Most adjusters start with N.A.D.A. guides or the Kelley Blue Book, but these are really just starting points. Since each bike is unique, a good adjuster must really focus on the specifics of your bike.
A good adjuster will consider the modifications you have made to your motorcycle, as well as other similar bikes in you area. This approach leads to a more precise and fair value for what your bike is really worth.
- Do I really need “accessory” coverage?
One of the most misunderstood parts of motorcycle insurance is accessory coverage. Many people simply don’t have sufficient accessory coverage to fully cover their motorcycle.
Accessory coverage covers anything that was not included as standard by the motorcycle manufacturer. This includes custom chrome, windshields, custom paint, performance modifications, saddle bags, and sometimes even your riding gear.
You must also include accessories that were added by the dealer or a previous owner before you purchased the bike. These items may make up a significant portion of the value of your bike. You don’t want to be underinsured. So, make sure you know what accessories you have and how much they are worth, before you decide how much accessory coverage to purchase.
- What’s up with “liability” coverage?
Liability is the coverage that you are required to have by the state. This covers losses that result from bodily injure to others or damage to the property of others for which you are liable.
Essentially, liability insurance covers damage you do to others, when riding your bike. This includes property damage, as well as bodily injury. It does not cover damage to your bike or your own bodily injuries.
Regardless of the amount or type of insurance coverage you own, if you or someone you know is or has been injured in a motorcycle accident, you need to consult with an attorney to fully understand your rights and remedies. Our attorneys are always waiting to serve you.