SECOND JUDICIAL DISTRICT COURT
COUNTY OF BERNALILLO
STATE OF NEW MEXICO
No. D-202-CV-2018-03586
TIFFANY MONTOYA, GABRIEL
MONTOYA, SR., Tiffany Montoya as next friend to GABRIEL MONTOYA, JR, and LILYELLA
MONTOYA, minor children,
Plaintiffs,
vs.
JIMMY BARELA, individually VALERIE DELGADO, a minor, individually, and FRED LOYA INSURANCE AGENCY, INC.,
Defendants.
COMPLAINT FOR PERSONAL INJURIES AND VIOLATION OF INSURANCE PRACTICES ACT
COME NOW, the Plaintiffs, by and through their counsel of records, ROBERT J. AVILA LAW LLC (Robert J. Avila), and for their cause of action, state as follows:
JURISDICTION
1. Plaintiffs, at the time of the collision which is the subject matter of their Complaint, were residents of the City of Albuquerque, County of Bernalillo, State of New Mexico.
2. Upon information and belief, at the time of the incident which forms the basis of Plaintiffs’ Complaint, the Defendant, Jimmy Barela (Barela), was a resident of the City of Albuquerque, Bernalillo County, State of New Mexico .
3. Upon information and belief, at the time of the incident which forms the basis of Plaintiffs’ Complaint, the Defendant, Valerie Delgado (Delgado), a minor, was a resident of the City of Albuquerque, Bernalillo County, State of New Mexico.
4. The Defendant Fred Loya Insurance Agency, Inc. (hereinafter “Fred Loya’’), is an motor vehicle insurer authorized to do business under the laws of the State of New Mexico, including in Bernalillo County, New Mexico, and was the insurer of Defendants under the Mandatory Financial Responsible Act, 66-5-201, et.seq.
5. The incident, which is the subject matter of Plaintiffs’ Complaint, as well as all acts and ommission complained of, occurred in the Bernalillo County, New Mexico.
6. Jurisdiction and venue are proper pursuant to NMSA 1978, § 38-3-1 (2003)
STATEMENT OF FACTS
7. On or about the 14th day of February, 2016, the The Montoya family was traveling westbound on Lomas at the intersection of 5th Street NW.
8. Defendant Barela, owner of the insured vehicle, allowed Defendant Delgado, an unlicensed minor, to operate his vehicle.
9. Defendant Delgado was traveling southbound in the wrong direction on 5th street, which is a northbound, one-way only street.
10. When the Montoya family approached the intersection, Defendant Delgado drove through the intersection, directly in the path of Plaintiffs’ vehicle, causing the Plaintiffs’ vehicle to impact head on into the side of Defednant’s vehicle.
11. The force of the collision, at 35mph, without warning, was so great the airbags in the Montoyas’ vehicle deployed, and the windshield shattered on the passenger side.
12. The minor driver was cited for no driver’s license, and driving the wrong way on a one-way street.
13. Jimmy Barelas was cited for permitting an unlicensed minor to drive.
14. Plaintiffs did not see Defendant and had no chance to brake or avoid the collision.
15. The high impact collision to Plaintiffs’ and Defendant’s vehicles rendered both disabled and towed from the scene of the collision.
16. Plaintiff Tiffany Montoya’s driving did not contribute to the cause of the collision.
17. Defendant Fred Loya provided Defendant Jimmy Barela with compulsory automobile liability insurance intended to protect the Plaintiffs and the general public from Defendant Barela’s negligent acts.
18. Defendant Fred Loya owes a duty of good faith to third party claimants, i.e. the Plaintiffs.
19. Defendant Fred Loya determined liability against their insured was reasonably certain.
20. Defendant Fred Loya received medical records and billings from claimants to evaluate the claim for settlement.
21. Plaintiffs submitted the medical billings to Fred Loya which were reasonable, necessary and realted to the injuries suffered by Plaintiffs.
22. Defendant Fred Loya has a pattern and practice, as exploited by Diana Landin (the adjuster), of disregarding medical billings which are reasonable, necessary and realted to the injury.
23. Defendant Fred Loya’s policy is to unilaterly and without justification “discount” medical expenses to justify low-ball offers.
24. Defendant Fred Loya’s adjuster, Diana Landin, intentionally ignored the findings of Plaintiff Tiffany Montoya’s physicians to support a low-ball offer.
25. Defendant Fred Loya adjuster Diana Landin, intentionally and under the direction of Fred Loya, ignored the findings of Plaintiff Gabriel Montoya’s physicians to support a low-ball offer.
26. Defendant Fred Loya, upon information and belief, applies this policy to all of its third party claims to avoid paying reasonable amounts to resolve claims as required by law.
27. Defendant Fred Loya, by and through Diana Landin , “discounted” Plaintiff Gabriel and Tiffany Montoya’s claims by the same unilateral, unjustified and unsupported elimination of medical expenses which are admissable to prove damages.
28. Defendant Fred Loya has developed a pattern and practice of knowingly violating the Insurance Practice Act 59A-16- 1, et.seq. NMSA (1978 comp) by not offering reasonable amounts for settlement when liability is clear.
29. Defendant Fred Loya willfully engaged in said practices.
30 . Defendant Fred Loya violated 59-13-14 (A)(3).
COUNT I
LIABILITY
BARELA AND DELGADO
32. Plaintiffs incorporate by reference as fully set forth herein each and every allegation contained in the preceding paragraphs of this Complaint .
33. On or about the 14th day of February 2016, the Defendant Barela allowed an unlicensed minor driver, Defendant Delgado, to operate his vehicle.
34. Defendant Delgado drove in a careless, reckless and heedless manner specifically did or failed to do the following acts and/or omissions:
a. Failed to keep that vehicle under proper control;
b. Failed to keep a proper lookout;
c. Failed to exercise due care in the operation of the aforementioned vehicle;
d. Failed to pay attention while operating the aforementioned vehicle;
e. Failed to yield the right of way;
f. failed to stop; and
g. Drove the vehicle in a reckless and careless manner.
35. Defendant Barela owed a duty to exercise ordinary care in connection with their ownership, operations, maintenance, inspection, and upkeep of the vehicle in question.
36. As a direct and proximate result of the negligent acts and/or omissions of Defendants Barela and Delgado, the Plaintiffs suffered physical injuries, which in turn caused them to incur medical and related expenses which are presently determinable and will be proven at trial. This also caused the Plaintiffs great pain and suffering.
37. As a further direct and proximate result of the aforementioned negligent acts and/or omissions of the Defendants Barela and Delgado, the Plaintiffs suffered a loss of the value of household services, all to their detriment in an amount not presently determinable but to be proven at the time of trial.
38. As a further direct and proximate result of the aforementioned negligent acts and/or omissions of the Defendants Barela and Delgado, the Plaintiffs suffered a loss of the value of the enjoyment of life and recreation, all to their detriment, and will continue to suffer the loss of the enjoyment of life and recreation all to their detriment in the future, all in an amount not presently determinable but to be proven at the time of trial.
39. As a further direct and proximate result of the aforementioned negligent acts and/or omissions of the Defendants Barela and Delgado, the Plaintiffs suffered a loss of earnings and other benefits all in an amount to be proven at the time of trial.
40. As a further direct and proximate result of the aforementioned negligent acts and/or omissions of the Defendants Barela and Delgado, the Plaintiffs suffered special, incidental and consequential damages all in an amount to be proven at the time of trial.
41. In addition to their past and present suffering, medical and related expenses and bills, the Plaintiffs may also suffer damages in the future, all in an amount not presently determinable but to be proven at the time of trial.
42. The acts and/or omissions of Defendants were of such an egregious nature, in reckless, wanton and total disregard to the rights of the public, including Plaintiffs, that in addition to actual damages ascertained and demonstrated by a preponderance of the evidence, punitive damages or exemplary damages to punish and deter this type of act and omission from occurring in the future are appropriate .
WHEREFORE, Plaintiff prays this Court to award Plaintiffs damages in an amount to be proved at trial, punitive damages, attorney fees and costs, and such other and further relief as this Court may deem just and proper.
COUNT II
NEGLIGENCE PER SE
43. Plaintiffs incorporate by reference as fully set forth herein each and every allegation contained in the preceding paragraphs of this Complaint.
44. In addition to the negligent, heedless and careless manner which the Defendant allowed an unlicensed driver to operate his vehicle, these acts and/or omissions were in violation of certain New Mexico State Statutes which were in force and effect on the 14th day of February, 2016, and such Statutes had the purpose of protecting the general public including the Plaintiffs from the type of harm they suffered. As such, violation of these specific Statutes constitutes negligence “per se” as that term is legally defined which likewise proximately caused damages and injuries to the Plaintiffs.
WHEREFORE, Plaintiffs pray this Court to find Plaintiffs’ negligence per se, award Plaintiffs damages in an amount to be proved at trial, punitive damages, attorney fees and costs, and such other and further relief as this Court may deem just and proper.
COUNT III
VIOLATION OF INSURANCE UNFAIR PRACTICES
45. Plaintiffs incorporate by reference as fully set forth herein each and every allegation contained in the preceding paragraphs of this Complaint.
46. Defendant Fred Loya Insurance is subject to New Mexico Unfair Practices Act, 59A-16-1, et.seq. NMSA (1978 comp).
47. Fred Loya is the insurer of Defendant Barela and the minor driver Defendant Delgado, and has issued a liability policy in the amount of $25/50. Which is the minimum liability policies mandated by the State of New Mexico.
48. Fred Loya, due to their status as insurer of the Defendants, is a real party in interest herein.
49. Fred Loya Insurance knowingly and willfully, by and through their adjuster, Diana Landin, engaged in unfair trade practices and applied its policy to disregard reasonable, necessary and related medical care in a pattern to deny claimants a reasonable settlement after liability is clear.
51. 59 A-16-30 NMSA (1978 comp.) allows private remedies against the insurer. Said remedies include payment of attorney fees.
52. Defendant Fred Loya’s last offer to Tiffany Montoya was on March 21, 2018 in the amount of $11,700.
53. Defendant Fred Loya’s last offer to Gabriel Montoya, Sr. was on March 21, 2018, in the amount of $7,500.
54. Plaintiff Tiffany Montoya has realized special damages in an amount of $21,996.00.
55. Plaintiff Gabriel Montoya has realized special damages in an amount of $8,804.00.
WHEREFORE, by reason of the premises described herein the Plaintiffs pray that judgment be entered against the Defendants, Jimmy Barela, Valerie Delgado, and Fred Loya in favor of the Plaintiffs for compensatory, punitive or exemplary damages, treble damages in an amount to be proven at trial, pre-judgment interest at the rate allowed by law; post-judgment interest at the rate allowed by law; reasonable costs, attorney fees and for such other and further relief to which Plaintiffs may be justly entitled.
Respectfully submitted this 8th day of May, 2018.
ROBERT J. AVILA, PA
“Electronically Filed”
/s/ Robert J Avila
ROBERT J. AVILA
Attorney for Plaintiff
P.O. Box 1966
Albuquerque, New Mexico 87103
505.247.4321
505.247.4284 Facsimile
[email protected]
HCS Pub. July 6, 13, 20, 2018
