Wrongful Death Claims in Employment - New Mexico

Wrongful Death Claims in Employment - New Mexico

This covers basics of Wrongful Death law in New Mexico

How do you bring a wrongful death lawsuit in New Mexico?

New Mexico is like several other states that require you to bring an action through a Personal Representative.  A Personal Representative is authorized to act on behalf of the Deceased Estate pursuant to NMSA? 41-2-3.

Is a Personal Representative for wrongful death claim the same as for probate?

No.  A Personal Representative is not required to proceed pursuant to the Probate Code and the Probate Code.  The Wrongful Death Statue in New Mexico governs the appointment of a Personal Representative.  *NMSA ? 41-2-3).  In fact, many times (but not always) the administrator of the estate under the Probate Code may be a different person than the Personal Representative under the New Mexico Wrongful Death Act.

What is the purpose of a Personal Representative in a Wrongful Death Action?

The Court in Chavez v. Regents of the University of New Mexico, 103 N.M. 606, 609 (1985) stated that purpose of a Personal Representative was”to centralize the claims and to prevent multiple and possibly contradictory lawsuits.”  Therefore, to sue for wrongful death in New Mexico, a Personal Representative is necessary and required.

Who can act as a Personal Representative?

New Mexico seems to be fairly open to who can serve as the Personal Representative under the wrongful death act.  It could be a surviving wife, or adult child or parent.  however, in New Mexico an attorney is often appointed to be the Personal Representative.  The attorney is bound by the certain ethics rules and as an Officer of the Court is beholden to certain rules.  Judges often approve the appointment of an attorney to act on behalf of the wrongful death beneficiaries as an efficient way to make sure all beneficiaries are protected.

What are the duties of a Personal Representative?

New Mexico Rule of Civil Procedure 1-105 puts several requirements on a Personal Representative:

First, the Personal Representative must give certain notices to the all known statutory relatives.  This notice must contain:

  1. the name of the personal representative of the estate and the name, number, and email address of the personal representative’s lawyer;
  2. a statement that the personal representative understands the legal requirement that the personal representative must act only in the best interests of all statutory beneficiaries of the decedent’s estate;
  3. instruction to the statutory beneficiaries that they shall provide the personal representative or the personal representative’s lawyer with current contact information so that they may be notified of matters in the pending action;
  4. a statement that all statutory beneficiaries will be timely notified of any and all trial settings, dismissals, settlements, and verdicts obtained on behalf of the decedent’s estate;
  5. a statement that all statutory beneficiaries will be specifically advised of any proposed distribution of proceeds under the Wrongful Death Act prior to any distribution of the proceeds; and
  6. a statement that, prior to the distribution of any proceeds of a wrongful death estate, if any controversy exists or arises concerning distribution that requires a court hearing, all statutory beneficiaries will be notified of the hearing and will be entitled to attend.

Who are the “Statutory Beneficiaries” of the New Mexico Wrongful Death Act?

  1. if there is a surviving spouse and no child, then to the spouse;
  2. if there is a surviving spouse and a child or grandchild, then one-half to the surviving spouse and the remaining one-half to the children and grandchildren, the grandchildren taking by right of representation;
  3. if there is no husband or wife, but a child or grandchild, then to such child and grandchild by right or representation;
  4. if the deceased is a minor, childless and unmarried, then to the father and mother who shall have an equal interest in the judgement, or if either of them is dead, then to the survivor;
  5. if there is no father, mother, husband, wife, child, or grandchild, then to a surviving brother or sister if there are any; and
  6. if there is no kindred as named in Subsections A through E of this section, then the proceeds of the judgement shall be disposed of in the manner authorized by law for the disposition of the personal property of deceased persons.

What are the Damages in a New Mexico Wrongful Death Action?

Loss of economic earnings, loss of enjoyment of life, hedonic damages, pain, suffering, agony, funeral expenses, medical expenses and punitive damages for the conduct that is malicious, reckless, willful, and/or wanton.

What are hedonic damages:

Hedonic damages are the damages for the enjoyment of life that is lost by the deceased.  In other words, it is the loss of all the deceased will miss because of death.  This includes things like seeing a child grow up, seeing children married and having children.  The loss of the vacations with family and friends.  A hedonic expert can sometimes be utilized in litigation by a wrongful death attorney in New Mexico.

What is the Statute of Limitation for Wrongful Death in New Mexico?

The general rule is that it is three years.  But this can depend on who is the defendant.  For example, if the defendant is the government then the limitations can be reduced significantly and certain notice provisions may be required.  It is always safer to immediately engage a New Mexico Wrongful Death attorney who is knowledgable so that your rights can be protected.

Can en employer be sued for Wrongful Death in New Mexico:

As a general rule, an employer who carries workers’ compensation insurance is protected by what is called the “workers’ compensation bar” from lawsuits.  This does not seem fair but the idea is that because workers’ compensation is a “no fault” system and the employers; workers’ compensation carrier must pay benefits even if the employer is not at fault or negligent for the injury or death to the employee.  However, the Supreme Court of New Mexico has stated that under some extremely limited circumstance a deceased or injured employee may still be able to sue his employer of damages.  This exception is known as the “Delgado” exception or “Delgado cause of action” based upon the legal case of Delgado vs. Phelps Dodge. A new Mexico Wrongful Death lawyer will have to evaluate if your case meets with the requirements of Delgado.

 

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