Yes. In New Mexico, you can still file a wrongful death claim even if the victim was partially at fault. The financial damages available for the claim will be reduced by the decedent’s percentage of fault under the state’s pure comparative negligence law. Unlike some other states, New Mexico does not cap shared fault at 50 percent.
New Mexico’s Pure Comparative Fault Law
New Mexico law recognizes that, in many cases, fault for an accident is not black and white. There are gray areas where two or more parties share fault for an incident. To address these situations, New Mexico uses a pure comparative fault or negligence rule. This law preserves an injured victim’s right to recover financial compensation despite sharing fault.
If an individual is fatally killed in an accident such as a deadly car crash or workplace disaster and an investigation determines that the deceased person contributed to the incident, this does not mean surviving family members lose the right to recover financial compensation from other at-fault parties. As long as the decedent is less than 100 percent to blame, partial compensation is still available in New Mexico.
What Is the “Pure” Part of New Mexico’s Comparative Negligence Law?
There are pure and modified comparative negligence rules. In pure comparative negligence states, such as New Mexico, there is no cap or limit on the amount of fault that can be attributed to a plaintiff (short of 100 percent). In modified states, however, eligibility for compensation is barred at a certain percentage of fault – typically around 50 percent or the majority share.
How Will the Decedent’s Fault Affect a Wrongful Death Claim?
If your loved one is allocated part of the fault for his or her fatal injury or illness in New Mexico, the amount of financial compensation available will be reduced. The comparative negligence rule diminishes an individual’s financial recovery by an amount that is proportionate to his or her degree of fault or negligence.
For example, if a wrongful death claim settlement is valued at $100,000 but the deceased victim is found to be 15 percent responsible for the accident, the settlement will be reduced by an equivalent 15 percent. In this example, the settlement would be reduced to $85,000 to account for the victim’s share of liability.
Steps for Filing a Wrongful Death Claim in New Mexico
In New Mexico, the civil justice system provides an outlet for grieving family members to seek justice and accountability for the preventable death of a loved one. A wrongful death claim can hold parties liable for causing the death through negligence, recklessness or intentional misconduct. This type of case can result in financial compensation for funeral and burial costs, lost wages, and various other losses.
However, a wrongful death claim may only be filed by the personal representative of the deceased person’s estate. It cannot be filed directly by surviving family members. The personal representative or executive of the estate will either be named in the deceased person’s will or appointed by the probate courts.
The representative will submit the paperwork to initiate a wrongful death claim. This must be done no later than three years from the date of death under New Mexico’s statute of limitations. The insurance company or defendant may offer a settlement, but if a settlement cannot be reached, the case may proceed to trial.
To start a wrongful death claim in New Mexico or learn more about how partial fault can affect the outcome, contact The Fine Law Firm to schedule a free consultation.