Hatcher Law Group https://hatcherlawgroupnm.com A full service law firm located in Santa Fe, New Mexico Fri, 01 Jun 2018 15:47:23 +0000 en-US hourly 1 Jury Announces Defense Verdict in Mold Exposure Case https://hatcherlawgroupnm.com/jury-announces-defense-verdict-in-mold-exposure-case/ Fri, 01 Jun 2018 15:47:23 +0000 https://hatcherlawgroupnm.com/?p=686 On May 29, 2018, a twelve-person jury, Santa Fe County, returned a verdict for Defendant, Leslie Dugan, in a case brought by two former residential tenants alleging injuries from toxic mold exposure at an apartment they rented from her.  Scott Hatcher and Jonathan Woods presented the defense of the case on behalf of Ms. Dugan.  Read more ›

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On May 29, 2018, a twelve-person jury, Santa Fe County, returned a verdict for Defendant, Leslie Dugan, in a case brought by two former residential tenants alleging injuries from toxic mold exposure at an apartment they rented from her.  Scott Hatcher and Jonathan Woods presented the defense of the case on behalf of Ms. Dugan.  Tyler Snyder and Jamie Rosingana leased an apartment from Ms. Dugan in Santa Fe from May 2013 through May 2015.  Ms. Rosingana alleged she was exposed to high levels of mold growth in the unit, thereafter developing allergic bronchopulmonary aspergillosis (ABPA).  She further alleged that she suffers life-long restrictions in pulmonary function as a result of this condition.  Mr. Snyder alleged similar claims, but his case was dismissed at the close of the Plaintiffs’ case on a directed verdict for failure to prove damages.

 

Plaintiffs brought their claims under theories of ordinary negligence and violations of the Uniform Owner Resident Relations Act, a statutory claim carrying the potential for attorneys’ fees to the prevailing party.  The Defendant denied liability, asserting she met the standard of care of a residential landlord in the State of New Mexico and that she did not violate any provision of the Act.  Further, Defendant, through expert Dr. Don F. Fisher, M.D., a highly regarded toxicologist and occupational disease specialist, argued that there was insufficient evidence to establish the diagnosis of ABPA, which was diagnosed by Ms. Rosingana’s treating pulmonologist, Dr. Vanessa Alvarez, M.D.  Dr. Fisher asserted there was insufficient evidence that Ms. Rosingana had an allergy to aspergillus fumigatus, light growth of which was found on bronchoscopy in Ms. Rosingana’s lungs after she moved out of the premises in May 2015.  Dr. Fisher stressed that without a showing of an allergy to this specific species of mold, the diagnostic criteria for ABPA was not met.  Dr. Fisher also testified that though there was mold growth at the apartment, the level of mold was insufficient to have resulted in the diagnosis of ABPA.  He offered alternative diagnoses of asthma, COPD, among others.  There was also no direct evidence that the specific species of aspergillus fumigatus was found upon environmental testing done at the apartment after the Plaintiffs’ vacated the premises.

 

The jury returned a verdict for Ms. Dugan finding she was not negligent.  Prior to that, the Court directed a verdict in Defendant’s favor on the Plaintiffs’ statutory claims.  The Defendant has available to her post-verdict claims for costs, as well as attorneys’ fees under the Act.

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Jury Awards Plaintiff in Police Pursuit Case https://hatcherlawgroupnm.com/jury-awards-plaintiff-in-police-pursuit-case/ Fri, 01 Jun 2018 15:46:37 +0000 https://hatcherlawgroupnm.com/?p=684 At the conclusion of a five-day jury trial on May 18, 2018, a twelve-person jury in Santa Fe County awarded Arlena Jackson $1,262,849.13 to compensate her for medical expenses and pain and suffering arising out of an accident which occurred on April 7, 2016 when she was hit by a fleeing felon who was being Read more ›

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At the conclusion of a five-day jury trial on May 18, 2018, a twelve-person jury in Santa Fe County awarded Arlena Jackson $1,262,849.13 to compensate her for medical expenses and pain and suffering arising out of an accident which occurred on April 7, 2016 when she was hit by a fleeing felon who was being pursued by the Santa Fe Police Department. The SFPD received a high priority dispatch call concerning criminal activity at the Los Pueblos Apartments, a residential complex in Santa Fe known for its high drug and crime history, with information that a fight was in progress, involving four males and one female, with a gun, and children in the area. As officers approached the complex, an individual with a long felony record and passenger in the vehicle, drove at high speeds out of the complex and onto Rufina Street in a new Toyota Tacoma which was stolen from the Toyota of Santa Fe dealership. Officers, appropriately responding to their training and policy guidelines, initiated a 2 minutes and 15 seconds pursuit of the felon over a two-mile period at high speeds. The felon crashed into the Plaintiff, Ms. Jackson, as she was crossing the intersection at Lopez Lane and Aqua Fria Street, sustaining significant injuries including several broken ribs, a punctured lung, fractured pelvis, and a tibia/fibula fracture. She underwent multiple surgeries to repair the rib fractures as well as the left ankle break. Ms. Jackson’s medical expenses totaled $312,849.13.

Plaintiff originally sued, not the felon, but the Toyota of Santa Fe dealership in addition to the SFPD on the theory that the dealership was negligent in allowing overnight access to their car lots knowing that thefts are likely to occur with resulting criminal use of the vehicles. On the eve of trial, Plaintiff settled with the dealership, leaving the SFPD to defend the case as the sole Defendant. The Hatcher Law Group, Scott P. Hatcher and Jonathan D. Woods, provided the defense for the City, arguing the officers acted fully within their training, experience, and policy guidelines in conducting the pursuit. Due to the late settlement of the Toyota dealership, the City also was required to prepare an empty chair defense case against the Toyota of Santa Fe dealership. At the conclusion of trial, the jury awarded Plaintiff judgment in the amount stated, which included separate line items for medical expenses in addition to $950,000.00 for her pain and suffering. The jury allocated fault 50% to the fleeing felon, 40% to the SFPD, and 10% to the dealership. Judgment was entered May 30, 2018. Post-trial motions and any appeal are under review. Mr. Hatcher made a statement to the press which read: “My firm had the opportunity to represent a group of extraordinary police officers who were only doing their duty in an effort to protect the community. Unfortunately, the verdict did not reflect that.”

The defense utilized police consultant Fred Radosevich, as a liability expert at trial.

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Jonathan Woods joins the Hatcher Law Group, P.A. https://hatcherlawgroupnm.com/jonathan-woods-joins-the-hatcher-law-group-p-a/ Thu, 31 May 2018 13:35:22 +0000 https://hatcherlawgroupnm.com/?p=680 We are glad to welcome Jonathan Woods as the newest member of the Hatcher Law Group, P.A. Prior to joining our team, Jonathan practiced did primarily plaintiff’s work, where he gained extensive litigation and trial experience. Jonathan handled multiple cases from start to finish, requiring him to develop not only a litigation strategy, but an Read more ›

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We are glad to welcome Jonathan Woods as the newest member of the Hatcher Law Group, P.A. Prior to joining our team, Jonathan practiced did primarily plaintiff’s work, where he gained extensive litigation and trial experience. Jonathan handled multiple cases from start to finish, requiring him to develop not only a litigation strategy, but an overall case strategy. Jonathan also worked as an associate at the Law Offices of Michael Armstrong in Albuquerque, NM. While there, he presented in over fifty administrative hearings before Office of Disability Adjudication and Review. Jonathan earned his J.D. from the University of New Mexico in 2015, earning the course award for top grade in evidence and the business and tax clinic.

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The Tenth Circuit Court of Appeals Reverses the New Mexico Federal District Court Decision on the Application of the Scope of Authority Exception to Qualified Immunity https://hatcherlawgroupnm.com/tenth-circuit-court-appeals-reverses-new-mexico-federal-district-court-decision-application-scope-authority-exception-qualified-immunity/ Thu, 13 Apr 2017 16:13:32 +0000 https://hatcherlawgroupnm.com/?p=648 The Tenth Circuit Court of Appeals, in a lead opinion by Judge Hartz with concurring opinions by Judge Holmes and Judge Matheson, reversed the lower court denial of summary judgment on behalf of Donald Gallegos, the District Attorney for the Eight Judicial District Court, State of New Mexico, on qualified immunity grounds.  Mr. Gallegos was Read more ›

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The Tenth Circuit Court of Appeals, in a lead opinion by Judge Hartz with concurring opinions by Judge Holmes and Judge Matheson, reversed the lower court denial of summary judgment on behalf of Donald Gallegos, the District Attorney for the Eight Judicial District Court, State of New Mexico, on qualified immunity grounds.  Mr. Gallegos was sued by David Stanley, who owns property in the White Peak area of northern New Mexico, for actions taken in August 2011.  In a dispute with the Plaintiff over the public or private nature of a particular road, Mr. Gallegos accompanied by various individuals, including Colfax County deputy sheriffs, removed a gate and other obstructions placed by Stanley.  Plaintiff brought suit against Mr. Gallegos and others for, among other claims, violations of his Fourth, Fifth, and Fourteenth Amendment rights to be protected from the unlawful seizure of personal property and in creating a public right of way without due process of law.  The claims were for individual capacity liability against Mr. Gallegos under 42 U.S.C. § 1983.

 

Mr. Gallegos filed a Motion for Summary Judgment claiming entitlement to dismissal under principles of qualified immunity.  The federal district court denied this under authority of the Fourth Circuit Court of Appeals decision in In Re: Allen, 106 F.3d 582 (4th Cir. 1997), which outlined a scope of authority exception to the entitlement of qualified immunity.  That decision stands for the principle that when a public official acts outside the scope of his or her authority, as determined by State or other law, the protection of qualified immunity developed through Harlow v. Fitzgerald and its progeny is not available.  Judge Hartz’ opinion, reversing the lower court, even assuming that test is recognized by the Tenth Circuit, held that Mr. Gallegos was not clearly acting outside the scope of his authority and is entitled to a full qualified immunity analysis upon remand.  The opinion embraces the principle that actions taken by a district attorney which are of a law enforcement nature, are considered within his scope and authority, at least for purposes of pursuing the protection of qualified immunity.  The case, particularly with the two concurring opinions, leaves open for further consideration the availability of the scope of authority exception to qualified immunity within the Tenth Circuit.

 

The case was argued by Scott Hatcher.  Emma Weber and Mark Cox assisted in the briefing.  Stanley has filed a Petition for En Banc review.

 

Attached is the Opinion dated March 17, 2017.

2017.03.17 Opinion

 

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Hatcher Law Group Secures Defense Verdict on Behalf of Former State Land Commissioner https://hatcherlawgroupnm.com/hatcher-law-group-secures-defense-verdict-behalf-former-state-land-commissioner/ Fri, 16 Dec 2016 22:56:56 +0000 https://hatcherlawgroupnm.com/?p=646 In 2013, Peggy Walton, a former State Land Office Division Director in the Commercial Resources Division, sued then State Land Commissioner, Ray Powell, on a number of legal theories arising out of her separation from the office in June 2011. For background, see Peggy Walton v. Ray Powell, 821 F.3d 1204 (10th Cir. 2016).  Ms. Read more ›

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In 2013, Peggy Walton, a former State Land Office Division Director in the Commercial Resources Division, sued then State Land Commissioner, Ray Powell, on a number of legal theories arising out of her separation from the office in June 2011. For background, see Peggy Walton v. Ray Powell, 821 F.3d 1204 (10th Cir. 2016).  Ms. Walton served in a similar capacity from 2006 through 2010 while former Republican Commissioner Patrick Lyons was in office.  After Mr. Powell was elected State Land Commissioner in November 2010, he assumed office in January 2011.  He was immediately faced with a budget appropriation which reduced the operating revenue by over $600,000.00 in his agency and further required the reduction in force of two full-time employees.  Ms. Walton’s position was selected for the reduction in force.  Claiming that she was discriminated against due to her political association (she is a registered Republican) with the Patrick Lyons’ administration by the Democrat Mr. Powell, she pursued theories of First Amendment discriminatory retaliation on the basis of political association.  Several other theories, including those under the Whistleblower Protection Act and Title VII claims on the basis of gender and national origin discrimination, were dismissed on motion.  The First Amendment political association claim was tried to a nine-person jury before the Honorable James O. Browning from November 14-18, 2016.  The jury returned a verdict for the defense, exonerating former Commissioner Powell on all theories.

 

Trying the case for the defense was Scott P. Hatcher, Esq. and Emma D.B. Weber, Esq.  Plaintiff counsel was Jack Hardwick, Esq.

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The Scope of Authority of a District Attorney is the Focus of Argument at the Tenth Circuit https://hatcherlawgroupnm.com/scope-authority-district-attorney-focus-argument-tenth-circuit/ Wed, 19 Oct 2016 00:50:04 +0000 https://hatcherlawgroupnm.com/?p=638 The case of Stanley v. Gallegos, USDC 1:11-CV-01108, was argued before the United States Circuit Court of Appeals for the Tenth Circuit on September 21, 2016.  The Hatcher Law Group represents the District Attorney for the Eighth Judicial District, New Mexico, which includes Colfax County, Donald Gallegos.   On August 24, 2011, Mr. Gallegos, accompanied Read more ›

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The case of Stanley v. Gallegos, USDC 1:11-CV-01108, was argued before the United States Circuit Court of Appeals for the Tenth Circuit on September 21, 2016.  The Hatcher Law Group represents the District Attorney for the Eighth Judicial District, New Mexico, which includes Colfax County, Donald Gallegos.

 

On August 24, 2011, Mr. Gallegos, accompanied by Colfax County sheriff deputies, removed a gate obstruction from a road in the White Peaks Wilderness Area known as Red Hill Road, which cuts through private land owned by the Stanley ranch.  Mr. Stanley erected the gate, claiming private property interests.  The parties dispute whether Red Hill Road is public or private.  Acting on information forming his belief that the road was public, however, Mr. Gallegos and a Colfax County sheriff’s deputy removed a gated, locked obstruction thereby triggering a § 1983 action against him by Stanley on grounds of an alleged unconstitutional search and seizure under the Fourth Amendment, an unconstitutional taking under the Fifth Amendment, and failure to provide appropriate procedural due process under the Fourteenth Amendment.  Mr. Gallegos moved for summary judgment on grounds of qualified immunity arguing there was no clearly established law which would inform him that his acts of removing the public road obstruction were unconstitutional.  The federal district judge not only denied the motion but refused to apply the standard two-prong qualified immunity analysis initially established in Harlow v. Fitzgerald, 454 U.S. 1028 (1981). That test requires a showing not only that constitutional rights were infringed upon by the actions of the defendant, public official, but that those constitutional rights were clearly established through relevant state, Tenth Circuit, or United States Supreme Court authority.  The district judge ruled that Mr. Gallegos was acting outside the scope of his authority as a district attorney in carrying out what was described as “self-help” enforcement measures, thus not having the right to have the Court consider whether he was entitled to dismissal under the principles of qualified immunity.  The district judge cited, in support of his scope of authority argument, a Fourth Circuit case, In Re: Allen, 106 F.3d 582 (4th Cir 1997).

 

Scott Hatcher, arguing for Mr. Gallegos, asserted the district judge failed to appropriately measure the district attorney’s powers beyond those narrowly set forth in NMSA 1978 § 36-1-18, which delineates a district attorneys authority to prosecute crimes and represent the County in civil cases.  It was asserted that the district court failed to consider a district attorney’s investigative or police-like powers.  Had the district judge done so, it was asserted, the Court would have found that there was no clearly established authority informing Mr. Gallegos that he was acting beyond the outer perimeters of his police-like powers and those incident and necessary thereto.  In support of the argument that a district attorney has these powers, the Appellant referenced various authority, including a Tenth Circuit case, Rex v. Teeples, 753 F.3d 840 (10th Cir. 1985). There, the Court gave qualified immunity to a district attorney even though, in a similar § 1983 action, he was alleged to have violated the constitutional rights of a criminal suspect by obtaining an involuntary confession.  Moreover, Mr. Hatcher argued the case of Buckley v. Fitzsimmons, 509 U.S. 259 (1993), another § 1983 claim in which a criminal suspect claimed the subject district attorney fabricated evidence to support a criminal prosecution before determining probable cause existed and gave defamatory statements about the criminal suspect at a press conference.  The district attorney, in Buckley, argued he was entitled to absolute immunity.  The Court ruled that absolute immunity is preserved only for acts undertaken by district attorneys in the judicial phase of either the prosecution of crimes or in the civil representation of the county he represents.  The Supreme Court, however, did recognize that a district attorney has investigative or “police-like” powers and preserved the defense of qualified immunity for the exercise thereof.

 

In the Tenth Circuit argument, it was asserted that because district attorneys in New Mexico are constitutionally defined as the “chief law officer” of the county and because they have statutory duties to not only enforce the law but have an obligation to keep public roads free of obstruction as one of their “legitimate job related functions” (NMSA 1978 § 67-7-1), they are entitled to a qualified immunity analysis under the facts of this case.  It was stressed that if the district attorney was allowed qualified immunity under the circumstances of the Buckley v. Fitzsimmons case, there was no difference in principle for at least allowing Mr. Gallegos the opportunity to pursue this defense in the present case because these acts involving the exercise of police-like powers, were arguably within the scope of his powers.

 

The argument was made before a three-judge panel, specifically Judges Harris Hartz, Scott Matheson, Jr., and Jerome Holmes.  In terms of the scope of authority test as a gateway into a qualified immunity defense, this case is one of first impression in the Tenth Circuit.  A decision is likely within six to nine months.  (See attached link to the Brief in Chief, Response brief by counsel for Mr. Stanley, and Reply brief on behalf of Mr. Gallegos).

2016-03-04-appellants-opening-brief

2016-04-25-appellees-resposne-brief

2016-05-26-appellants-reply-brief-and-oral-argument-requested

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Hatcher Law Group Wins Significant Summary Judgment for the Defense in a Claim Filed Under the New Mexico Whistleblower Protection Act https://hatcherlawgroupnm.com/hatcher-law-group-wins-significant-summary-judgment-defense-claim-filed-new-mexico-whistleblower-protection-act/ Wed, 19 Oct 2016 00:48:50 +0000 https://hatcherlawgroupnm.com/?p=636 On October 3, 2016, District Judge Jennifer Attrep granted summary judgment to the Defendants in Gabrielle Kneale v. New Mexico Children, Youth and Families Department, D-101-CV-2013-03095, filed in the First Judicial District, County of Santa Fe.  Plaintiff, Ms. Kneale, worked as a grievance officer within the juvenile sexual offenders unit at CYFD’s Camino Nuevo facility Read more ›

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On October 3, 2016, District Judge Jennifer Attrep granted summary judgment to the Defendants in Gabrielle Kneale v. New Mexico Children, Youth and Families Department, D-101-CV-2013-03095, filed in the First Judicial District, County of Santa Fe.  Plaintiff, Ms. Kneale, worked as a grievance officer within the juvenile sexual offenders unit at CYFD’s Camino Nuevo facility in Albuquerque.  Her position was created as a result of an agreement between CYFD and ACLU-NM following protracted litigation between those two parties over conditions in the juvenile sex offender units operated by CFYD throughout the state.  As grievance officer, Plaintiff was required to forward grievances of juvenile sex offenders to the agency on a variety of matters regarding their detention.  After Plaintiff was caught on video tape having what CYFD determined to be inappropriate contact with one particular juvenile sex offender, Kneale was served with a Notice of Contemplated Action, which led to her termination effective July 19, 2012.  Officially, she was terminated for misuse of authority by crossing professional boundaries with a juvenile sex offender, breach of confidentiality by disclosing confidential information about the investigation concerning her inappropriate contact, and failure to cooperate with the investigation.  After the State Personnel Board approved the termination, Plaintiff appealed the ALJs findings and conclusions and brought a separate count for violation of the Whistleblower Protection Act (WPA).  Plaintiff claimed her termination was pretextual and in retaliation for certain communications made to her employer dating from September 2010 through March 2012, constituting complaints regarding unlawful acts occurring throughout the facility.  Among other things, Plaintiff claimed retaliation for reporting alleged policy violations not only concerning weekly grievance logs kept by her which concerned alleged abuses of authority in the form of illegal room confinement of sexual offenders, staff retaliation against clients for using the grievance process and impermissible use of mechanical restraints, but also certain personal grievances concerning the agency’s treatment of her.

 

For the first time since the WPA was enacted in 2009, a Court applied the burden shifting framework traditionally used by federal courts in discrimination claims under McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973) to measure the viability of WPA claims.  Judge Attrep found Plaintiff had not made a prima facie case for showing protected activity primarily because the complaints made by Ms. Kneale were those made within the scope of her normal duties and through proper communication channels with superiors.  In doing so, Judge Attrep relied on certain federal cases construing the federal Whistleblower Protection Act and New Mexico legislative authority establishing the NM WPA was modeled from the federal Act.  Even assuming a prima facie case was made, and noting there was no dispute that Plaintiff was the subject of an adverse employment action, Judge Attrep then evaluated whether there was a causal connection between her termination and the claimed protected activity.  The Court ruled there was insufficient evidence of a causal relationship to support a case that Plaintiff was retaliated against for communicating protected matter.  The analysis went on to establish under the McDonnell-Douglas test, that CYFD had shown a legitimate nondiscriminatory reason for the termination, specifically the State Personnel Board’s final decision approving the termination for just cause.  The final part of the opinion focused on whether the employer’s articulation of a legitimate, nondiscriminatory reason for these adverse employment actions was, in fact, pretextual for illegal discrimination.  Finding this prong of the McDonnell-Douglas test failed, the Court ruled that CYFD was entitled to summary judgment on the WPA claim.  The case has, as a result, been dismissed.

 

As indicated, this is the first case in which the McDonnell-Douglas burden-shifting test for retaliatory discrimination claims has been utilized in a WPA setting.  The case was aggressively litigated over a period of two years and the stakes were relatively high.  The parties attempted mediation, although this case had little chance of settlement.  Judge Attrep’s ruling came three weeks prior to a jury docket call.  The defense expects an appeal of this decision to the New Mexico Court of Appeals.

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Hatcher Law Group Obtains Bench Trial Verdict Below Its Rule 68 Pre-Trial Offer in Defense of a Third Degree Burn Case https://hatcherlawgroupnm.com/hatcher-law-group-obtains-bench-trial-verdict-rule-68-pre-trial-offer-defense-third-degree-burn-case/ Mon, 15 Aug 2016 23:01:17 +0000 https://hatcherlawgroupnm.com/?p=574   On August 4, 2016, Judge Freddie J. Romero, District Judge, Fifth Judicial District Court, in the matter of Joel Keeney, et ux. v. Otoniel Gomez d/b/a El Marcianito Cowboy, Chaves County No. D-504-CV-2013-398, entered his Amended Decision, Findings of Fact and Conclusions of Law in a case tried to the Court on December 16-18, Read more ›

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On August 4, 2Chaves_Country_Courthouse016, Judge Freddie J. Romero, District Judge, Fifth Judicial District Court, in the matter of Joel Keeney, et ux. v. Otoniel Gomez d/b/a El Marcianito Cowboy, Chaves County No. D-504-CV-2013-398, entered his Amended Decision, Findings of Fact and Conclusions of Law in a case tried to the Court on December 16-18, 2015.  The Hatcher Law Group defended claims of negligence against Mr. Gomez in a case seeking damages for personal injuries and loss of earnings after Plaintiff sustained third degree burns over a substantial part of his body when a gas explosion occurred when he started a welding job on Defendant’s oil field water tank truck on April 10, 2012.  Plaintiff claimed Mr. Gomez was negligent in failing to warn him that the tank contained flammable liquids prior to his work on the truck and that Defendant failed to take steps to ensure that the truck was properly prepared for Plaintiff’s work.  Defendant asserted Plaintiff was solely negligent and that certain OSHA violations with respect to the work site were violated, thereby supporting a basis for findings of negligence per se against Defendant. As a result of the injuries, Plaintiff required multiple surgeries, including skin grafts, and reported medical expenses of $556,081.27.

The Court, following three days of testimony, found Mr. Keeney’s total damages were $1,359,081.21.  The Court found an additional $75,000.00 in loss of consortium damages to Plaintiff’s wife, Maria Keeney.  However, Judge Romero found Plaintiff to be 75% at fault and Defendant only 25% at fault.  Because Defendant, prior to trial, satisfied a lien from the Texas Tech Medical Center of $477,826.05 by a payment in a reduced amount of $178,826.05, the Court found Defendant entitled to a credit by the amount paid.  The Court, however, ruled against Defendant in his argument that the paid amount represented the reasonable value of the medical amounts billed through Texas Tech and allowed Plaintiff to “board” the total invoice amount citing, Pipkin v. TA Operating Corp., 466 F.Supp.2d 255 (D.N.M. 2006).  The Court rejected Defendant’s argument that the actual amount paid represents the reasonable value of those services citing the case of Howell v. Hamilton Meats and Provisions, Inc., 257 P.3d 1130 (Cal. 2011) (Plaintiff not entitled to the full undiscounted amount of medical expenses billed).

After applying the credit for the amounts paid and applying the percentage allocation of fault against Plaintiff, the Court entered a net judgment in favor of Plaintiff Joel Keeney in the amount of $205,640.95 and in favor of his wife in the amount of $18,750.00.

Prior to trial, Defendant served Plaintiff with a Rule 68 Offer of Settlement in the amount of $400,000.00 total damages.  Plaintiff’s last pre-trial demand was for a total settlement in the amount of $750,000.00.  Pending at the present time is a determination of costs which Defendant will assert should be deducted from the verdict, specifically those post-offer costs made by the Defendant, as a result of the cost shifting provisions under Rule 68.

Aside from various medical treating doctors, there were no damage experts which testified at trial.  Defendant called a welding expert, Michael Thomas, Albuquerque, New Mexico, to testify as to safety standards in the welding community.  The primary defense raised by the Defendant was that Mr. Gomez, who was not a licensed welder but had substantial commercial welding experience, failed to properly vent the tanker prior to commencing welding operations.  The Court found the tanker had flammable gases which served as a combustible source which, in turn, ignited from a spark from Mr. Keeney’s grinder causing the fire.  Mr. Keeney was preparing to repair an open hole, causing a leak, in Gomez’ tanker when the explosion occurred.
Plaintiffs were represented by Brian K. Branch, Esq. and Sean McAfee, Esq. Attached is a link to Judge Romero’s Amended Decision, Findings of Fact and Conclusions of Law.

2016.08.04 Decision, Findings of Fact and Conclusions of Law

 

 

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New Mexico Supreme Court Revisits Traditional Indemnity https://hatcherlawgroupnm.com/new-mexico-supreme-court-revisits-traditional-indemnity/ Thu, 11 Aug 2016 16:00:51 +0000 https://hatcherlawgroupnm.com/?p=566   The New Mexico Supreme Court recently limited the application of traditional indemnity, sometimes called common law indemnity, by adopting Section 22, Restatement (Third) of Torts, in place of Section 886B, Restatement (Second) of Torts. See Safeway, Inc. v. Rooter 2000 Plumbing & Drain SSS, 2016-NMSC-009, 368 P.3d 389. Before Safeway, an actively negligent concurrent Read more ›

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SupremeCourtBldg1The New Mexico Supreme Court recently limited the application of traditional indemnity, sometimes called common law indemnity, by adopting Section 22, Restatement (Third) of Torts, in place of Section 886B, Restatement (Second) of Torts. See Safeway, Inc. v. Rooter 2000 Plumbing & Drain SSS, 2016-NMSC-009, 368 P.3d 389. Before Safeway, an actively negligent concurrent tortfeasor could recover from a more actively negligent concurrent tortfeasor in traditional indemnification. For example, an indemnitee would have a right to indemnity when the “indemnitor supplied a defective chattel or performed defective work upon land or buildings as a result of which both were liable to the third person, and the indemnitee innocently or negligently failed to discover the defect.” Restatement (Second) of Torts: § 886B(2)(d) (Am. Law Inst.1979). The Safeway Court reasoned that the Restatement (Third) “correctly limits the application of traditional indemnity to cases truly premised on vicarious or derivative liability.” Safeway, 2016-NMSC-009, ¶ 33.

 

In Safeway, a mother and her infant sustained injuries when a baby changing table fell from the wall in a grocery store bathroom. The plaintiffs sued the grocery store and the contractor y that installed the baby changing table. The jury awarded the plaintiff $450,000 in damages and, utilizing a special verdict form, the jury apportioned 60% fault to the contractor and 40% to the grocery store. Before trial, the contractor and plaintiffs settled and the district court granted the contractor’s motion for summary judgment on all of the grocery store’s cross claims, including traditional indemnification. The grocery store appealed the district court’s ruling.

 

The New Mexico Court of Appeals reversed the district court, holding that the grocery store still had a right to traditional indemnity even though the jury apportioned fault between the parties. The New Mexico Supreme Court disagreed. The Safeway Court held that traditional indemnity was not applicable in this case because the jury apportioned fault under New Mexico’s comparative negligence principles. The Court reasoned that “[b]ecause recovery under traditional indemnification requires at least one active tortfeasor and one passive concurrent tortfeasor, the remedy only applies in a limited number of tort cases premised on vicarious or derivative liability.” Section 22 of the Restatement (Third) allows for indemnity if the indemnitor has agreed by contract to indemnify the indemnitee, or where the indemnitee “(i) was not liable except vicariously for the tort of the indemnitor, or (ii) was not liable except as a seller of a product supplied to the indemnitee by the indemnitor and the indemnitee was not independently culpable.”

 

The New Mexico Supreme Court noted that the Restatement (Third) is compatible with prior New Mexico precedent because in certain factual scenarios, “traditional indemnification would allow a party who has been found liable without active fault to seek restitution from someone who was actively at fault. Importantly, a finding of negligence does not necessarily mean a finding of active conduct.” Safeway held that traditional indemnity did not apply in this case because the plaintiffs advanced a theories of lability, and the jury apportioned fault, based on the grocery store’s active conduct.

 

Ultimately, New Mexico tort law is premised on the notion that each concurrent tortfeasor should bear responsibility for an accident in accordance with his or her fault. Therefore, New Mexico now applies traditional indemnity only under true vicarious and derivative liability scenarios where the vicariously liable party has not committed any breach of duty to the plaintiff but is held liable simply as a matter of legal imputation of responsibility for another’s tortious acts.

 

 

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Personnel Changes at Hatcher Law Group https://hatcherlawgroupnm.com/personnel-changes-hatcher-law-group/ Mon, 08 Aug 2016 15:47:19 +0000 https://hatcherlawgroupnm.com/?p=554 As of August 1, 2016, the Hatcher Law Group is pleased to announce the addition of Robert Corchine as its latest addition to our legal staff.  As many of you know, Robert has a wealth of experience in civil litigation with a concentration in insurance defense/personal injury defense, medical malpractice defense, civil rights defense, in Read more ›

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As of August 1, 2016, the Hatcher Law Group is pleased to announce the addition of Robert Corchine as its latest addition to our legal staff.  As many of you know, Robert has a wealth of experience in civil litigation with a concentration in insurance defense/personal injury defense, medical malpractice defense, civil rights defense, in addition to many other areas impacting the insurance industry.  Robert is a member of the American Board of Trial Advocates (ABOTA) and a former Board of Director of the New Mexico Defense Lawyers Association.  Robert’s background makes for a perfect fit with the Hatcher Law Group and we are excited to have him on board.

Emma Weber has returned to the Hatcher Law Group after several months of maternity leave.  She continues with her work representing both the insurance industry as well as the public sector in the defense of civil claims.

Mark Cox joined the Hatcher Law group in August 2015.  Mark, a fourth generation New Mexican, graduated from the University of New Mexico Law School cum laude.  Mark served as professional articles editor for the New Mexico Law Review and served a two-year clerkship at the New Mexico Supreme Court.  Mark’s practice since joining this firm has included participation in one bench and another jury trial.

Keitha Leonard has also joined the Hatcher Law Group in an “Of Counsel” capacity.  Keitha, who graduated Order of the Coif from the Louisiana State University School of Law in 1981, formed her own insurance defense/public sector law firm, Leonard & Leonard, Ltd. in Lafayette, Louisiana and practiced there until moving to New Mexico in 2004.  Keitha’s background in the defense of private and public individuals and entities also makes her a good fit with the Hatcher Law Group.

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