D-202-CV-2015-00223

By on April 1, 2016

SECOND JUDICIAL DISTRICT COURT
COUNTY OF BERNALILLO
STATE OF NEW MEXICO
D-202-CV-2015-00223
DAVID GARCIA
Plaintiff,
v.
MICHELLE A. NEVAREZ,
JOSIA SARAH AUSTIN, and
YOUNG AMERICAN INSURANCE COMPANY
Defendants.
FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES AND PROPERTY DAMAGES
COMES NOW, Plaintiff David Garcia by and through his attorneys Martinez, Hart & Thompson, P.C. and for his complaint against Defendants states the following:

1. Plaintiff is a resident of the County of Bernalillo, State of New Mexico.
2. Defendants Michelle A. Nevarez and Josia Sarah Austin are residents of the County of Bernalillo, State of New Mexico.
3. Defendant Young American Insurance Company is a Texas Corporation doing business in the State of New Mexico by selling auto insurance policies to the citizens of the State of New Mexico.
FACTS
4. On January 4, 2013 in the County of Bernalillo, State of New Mexico, Plaintiff David Garcia was driving his 2005 Dodge pickup truck westbound on Zuni Road in a legal manner.
5. At the same time, Defendant Michelle A. Nevarez was driving a vehicle which belonged to Defendant Josia Sarah Austin northbound on Virginia Street approaching the intersection with Zuni.
6. As Plaintiff David Garcia approached the intersection of Zuni Road and Virginia Street, he was proceeding on a thoroughfare, in a legal manner, and had the right-of-way.
7. At the same time, Defendant Michelle A. Nevarez was driving the 1997 Ford vehicle owned by Defendant Josia Sarah Austin northbound on Virginia Street toward the intersection approaching a stop sign and had a duty to stop the vehicle she was driving and yield the right of way to traffic traveling on Zuni Road, including Plaintiff David Garcia.
8. Defendant Michelle A. Nevarez failed to stop at the stop sign and failed to yield the right-of-way to Plaintiff David Garcia, drove directly into the intersection and caused a collision between the vehicle she was driving and the vehicle of Plaintiff David Garcia.
9. As a result of the collision, Plaintiff David Garcia’s truck was damaged beyond reasonable repair and he was injured.
10. At the time of the aforementioned collision, Defendant Young America Insurance Company had a policy of insurance covering the vehicle driven by Defendant Michelle A. Nevarez and owned by Defendant Josia Sarah Austin which provided auto insurance coverages pursuant to the Mandatory Financial Responsibility Act of the State of New Mexico.
COUNT 1
11. Plaintiff incorporates each and every allegation contained in Paragraphs 1 through 10 as though the same were set out herein.
12. The actions and omissions of Defendant Michelle A. Nevarez in failing to stop at the stop sign and in failing to yield the right-of-way were negligent.
13. As a direct and proximate result of the the negligence of Defendant Michelle A. Nevarez, Plaintiff’s truck was damaged beyond reasonable repair and he was injured.
COUNT 2
14. Plaintiff incorporates each and every allegation contained in Paragraphs 1 through 13 as though the same were set out herein.
15. The actions and omissions of Defendant Michelle A. Nevarez in failing to stop at the stop sign, in failing to yield the right-of-way to traffic traveling on Zuni Road, including Plaintiff David Garcia, and in failing to give her full time and entire attention to the operation of her vehicle, the roadway, and other traffic, were in violation of the traffic ordinances of the City of Albuquerque and the New Mexico Motor Vehicle Code and, therefore, constitute negligence per se.
16. As a direct result and proximate result of the negligence per se of Defendant Michelle A. Nevarez, Plaintiff David Garcia’s truck was damaged beyond reasonable repair and he was injured.
COUNT 3
17. Plaintiff incorporates each and every allegation contained in Paragraphs 1-16 as though the same were set out herein.
18. At the time of the aforementioned collision, Defendant Michelle A. Nevarez was operating the 1997 Ford vehicle that she was driving, as the agent, servant or employee of Defendant Josia Sarah Austin or under such circumstances as give rise to the application of the family purpose doctrine and, therefore, Defendant Josia Sarah Austin is liable for the damages cause by the negligence, and/or negligence per se, of Defendant Michelle A. Nevarez.
COUNT 4
19. Plaintiff incorporates each and every allegation contained in Paragraphs 1 through 18 as though the same were set out herein.
20. Upon information and belief, Plaintiff David Garcia alleges that Defendant Josia Sarah Austin negligently entrusted her vehicle to Defendant Michelle A. Nevarez at a time when she knew, or should have known, that Defendant Michelle A. Nevarez was not a careful driver and would not operate the vehicle in a safe manner, thereby creating a hazard on the roadways of the County of Bernalillo, State of New Mexico for other drivers including Plaintiff David Garcia.
21. As a direct and proximate result of the negligent entrustment by Defendant Josia Sarah Austin of her vehicle to Defendant Michelle A. Nevarez, Plaintiff David Garcia’s truck was damaged beyond reasonable repair and he was injured.
COUNT 5
22. Plaintiff incorporates each and every allegation contained in Paragraphs 1 through 21 as though the same were set out herein.
23. As the automobile liability insurance carrier for the vehicle driven by Defendant Michelle A. Nevarez and owned by Defendant Josia Sarah Austin, Defendant Young America Insurance Company is liable for all damages caused by the negligence of Defendants Michelle A. Nevarez and Josia Sarah Austin pursuant to the Mandatory Financial Responsibility Act of the State of New Mexico and its insurance policy contract.
DAMAGES
24. As a direct and proximate result of the negligence, and negligence per se, of Defendants Michelle A. Nevarez and Josia Sarah Austin, Plaintiff David Garcia suffered personal injuries which have resulted in medical expenses, pain and suffering, lost earnings, loss of household services and other damages.
25. As a further direct and proximate result of the negligence, and negligence per se, of Defendants Michelle A. Nevarez and Josia Sarah Austin, Plaintiff David Garcia’s truck was damaged beyond reasonable repair, resulting in the total loss of the vehicle, temporary loss of use of the vehicle, towing and storage charges and other damages.
WHEREFORE, Plaintiff David Garcia requests that this court enter judgment against the Defendants in an amount sufficient to compensate him for his damages, for costs of this action, for prejudgment and post judgment interest as provided by law, and for such other and further relief as the court deems just and proper.
MARTINEZ, HART & THOMPSON, P.C.
/s/ David B. Martinez
David B. Martinez
Attorney for Plaintiff
1801 Rio Grande NW
Albuquerque, New Mexico 87104
Phone: 505/343-1776
Fax: 505/344-7709
HCS Pub. March 25, April 1, 8, 2016

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