Dearly Departed
Traumatized by the death in an accident of a close friend, even a fiance? The Court of Appeals isn't sympathetic.
Not to be morbid, but this month's column is about death–not your death, but a friend's death.
Insurance companies often say the courts in New Mexico always seem to favor plaintiffs in personal-injury cases. Not so.
Let's say you are driving your car or motorcycle and somebody screws up and slams into you. Clearly it's the other fellow's fault. You have some scrapes and bruises, but your passenger is killed. Not a happy scenario. More important than your scrapes and bruises, you are filled with feelings of sorrow and regret because of your passenger's death. Why did she die and not you? I think psychologists call this "survivor's guilt."
Because it was the other driver's fault, you might expect his insurer to pay for your psychotherapy, just like having to pay for treating your bruises. But the law may add insult to your injury, depending on whether your passenger was a member of your family or not.
If your passenger was a member of your family, your emotional injuries from watching her die are legal damages recoverable from the bad driver and his insurer. The law in New Mexico has long recognized "bystander recovery" for emotional injuries caused by witnessing an accident that hurts or kills a member of your family, whether you are physically injured in the accident or not.
But if your passenger is "just" your fiance or a friend, too bad. The New Mexico Court of Appeals, in its wisdom, recently decided that a person injured in a motor vehicle accident may not recover damages for the emotional distress of seeing an unrelated passenger killed.
Here is what happened. Paul Montoya was driving his motorcycle with his fiance on the back of his bike. Montoya stopped for traffic. A multiple-vehicle chain-reaction accident happened, which resulted in Montoya being thrown in one direction and his fiance being run over and killed.
Our Court of Appeals decided Montoya would have to pay for his own psychotherapy (Paul Montoya vs. Don Peterson and Jun Zhao, 2006-NMCA-097). The Court of Appeals was worried that allowing non-family members to recover for such emotional injuries would "open the flood-gates," and would result in anybody and everybody being able to sue for emotional injuries from witnessing anyone else being hurt in an accident. The court decided to draw the line at allowing family members only.
Paul Montoya had argued that the fact he was actually injured himself in the same accident that killed his fiance was a special enough situation to justify allowing recovery for his emotional damages. But the Court of Appeals reasoned that an innocent person's "physical injury is a random occurrence that bears no real relationship to the emotional injury. Thus, the physical injury does little if anything to ensure the reliability of the claim for emotional distress damages. Indeed, it seems highly unlikely that, just because the acquaintance also suffered some unrelated physical injury, the acquaintance's emotional distress would be any more 'real' or deserving of recover than the emotional distress of the uninjured friend or relative."
Our Court of Appeals' reasoning in ruling against Paul Montoya reminds me of the old cliche about "trying to pound a square peg in a round hole"–it just does not work.
Have a happy and safe holiday season. See you next year.
Robert (Tito) Meyer practices law in Las Cruces, representing people who have been injured in accidents and the families of people who have been killed in accidents. Contact him at tito@zianet.com, (505) 524-4540,
(800) 610-0555, or PO Box 1628, Las Cruces, NM 88004. This column is not intended to provide legal advice to any specific person, or with respect to any particular problems or situations. To find a lawyer, call the State Bar of New Mexico referral service, (800) 876-6227.