STATE OF NEW MEXICO
COUNTY OF SANDOVAL
THIRTEENTH JUDICIAL DISTRICT COURT
Case No.: D-1329-CV-2021-01225
Noel, James A.
MELANIE THOMPSON AND
JEFF MCBRAYER AND STATE FARM
MUTUAL AUTOMOBILE INSURANCE COMPANY,
COMPLAINT FOR PERSONAL INJURIES AND MONEY DAMAGES
COMES NOW Plaintiffs, by and through counsel of record, MOSS GEORGE, LLP, (Robert Moss), and for their Complaint for Personal Injuries against Defendant. STATES AS FOLLOWS:
1. Plaintiff Melanie Thompson is a resident and domiciliary of the City of Rio Rancho, County of Sandoval, State of New Mexico.
2. Plaintiff Robert Thompson is a resident and domiciliary of the City of Rio Rancho, County of Sandoval, State of New Mexico.
3. Upon information and belief, Defendant Jeff McBrayer, is a resident of the City of Rio Rancho, County of Sandoval, State of New Mexico.
4. State Farm Mutual Automobile Insurance Company (“State Farm”) is a foreign corporation doing business in Bernalillo County, State of New Mexico. Geico is named as a party herein pursuant to the holding in Martinez v. Reid, 2002-NMSC-015 (2003). Defendant Geico regularly does business in the State of New Mexico through the sale of insurance policies, and derives substantial economic benefit from the sale of those polices. As such, Geico is subject to personal jurisdiction in New Mexico. Defendant Geico may be served through the New Mexico Department of Insurance in Santa Fe, New Mexico.
5. The subject incident occurred within Sandoval County, State of New Mexico.
6. Jurisdiction and Venue are proper in Sandoval County. State of New Mexico pursuant to NMSA § 38-3-1 (LexisNexis).
FACTUAL ALLEGATIONS COMMON TO ALL COUNTS
7. Plaintiffs re-allege and incorporate the foregoing allegations as though they were fully set forth herein, pursuant to Rule 1-0l0(C)NMRA.
8. This is an action for personal injuries and damages sustained by Plaintiffs as a result of an automobile collision that occurred at the intersection of NM 528 and Southern Avenue, SE, on October 27, 2020, located within the County of Sandoval, State of New Mexico.
9. Defendant McBrayer was driving a 2010 Ford F450 (NM license plate FF0435) owned by Mr. McBrayer and insured by State Farm, when Mr. McBrayer crashed into Plaintiffs at the above mentioned intersection.
10. As a result, Plaintiffs suffered injuries to their persons.
11. Defendant failed to exercise ordinary care in the operation of his vehicle by failing to maintain proper attention to his driving and running into Plaintiffs.
COUNT I – NEGLIGENCE
12. Plaintiff re-alleges and incorporates the foregoing allegations as though they were fully set forth herein, pursuant to Rule 1-010(C) NMRA.
13. At all material times, Defendant owed a duty to act reasonably and exercise ordinary care for the safety of others and their property, including Plaintiffs.
14. At all material times, hereto, Defendant owed a duty of ordinary care in the operation of the vehicle he was driving.
15. At all material times, Defendant had a duty to keep a proper lookout and to maintain proper control of the vehicle that he was operating to avoid placing others in danger and to prevent a collision.
16. Defendant breached his duties of care, and was negligent, by failing to use ordinary care when he caused a collision with Plaintiffs resulting in injury to Plaintiffs.
17. Defendant failed to exercise ordinary care in the operation of his vehicle for the safety of Plaintiff and thus was negligent.
18. As a direct and proximate result of the negligence of Defendant, Plaintiff has suffered damages as enumerated below.
COUNT II – NEGLIGENCE AND NEGLIGENCE PER SE
19. Plaintiff re-alleges and incorporates the foregoing allegations as though they were fully set forth herein, pursuant to Rule 1-010(C) NMRA.
20. Defendant had a duty to exercise ordinary care to the other drivers on the roadway while operating a motor vehicle.
21. Defendant had a duty to the other drivers on the roadway to keep a proper lookout and obey traffic laws.
22. Defendant breached these duties to Plaintiff.
23. In violation of said duty, Defendant drove in a negligent and/or wanton or reckless manner, and his negligence and/or wanton or reckless conduct includes one, or more than one, or all, of the following acts or omissions:
a. Failure to property apply the brakes;
b. Failure to keep a proper lookout;
c. Failure to yield the right of way;
d. Failure to take proper evasive action;
e. Failure to swerve to avoid an incident;
f. Failure to stop and yield to oncoming traffic,
g. Failure to follow traffic signals/flashing lights;
h. Driver inattention; and
i. Driving a vehicle in violation of existing statutes and ordinances.
24. Each of these acts and/or omissions, singularly or in combination with others constituted negligence and negligence per se which proximately caused the collision and the injuries to Plaintiff.
25. Statutes were in force in New Mexico on October 27, 2020, that were designed to protect Plaintiff. The statutes that were violated include, but are not limited to:
a. Required obedience to traffic laws, NMSA § 66-7-3 (LexisNexis);
b. Obedience to any required traffic-control devices, NMSA § 66-7-104 (Lexis Nexis);
c. Drivers to exercise due care, NMSA § 66-7-337 (Lexis Nexis);
d. Reckless Driving, NMSA § 66-8-113 (LexisNexis);
e. Careless Driving, NMSA § 66-8-114 (LexisNexis); and/or
f. Any other applicable statutes under NMSA § 66-1-1 – NMSA § 66-13-13 (LexisNexis).
26. Defendant’s violation of the aforementioned statutes constitutes negligence per se.
27. As a direct and proximate result of the negligence and negligence per se of Defendant, Plaintiff has suffered damages as enumerated below.
28. In addition, Defendant’s actions were malicious, willful, reckless, wanton, oppressive, and grossly negligent entitling Plaintiff to recover punitive damages in an amount to be determined by the Court at trial.
As a direct and proximate result of the negligence of the Defendant, Plaintiff has suffered damages in the form of personal injury, lost wages, pain and suffering, and permanent injury, loss of enjoyment of activities, hedonic damages, and/or loss of the value of life itself, as well as reasonable expenses for necessary medical care received in the past and reasonably certain to be received in the future, and nonmedical expenses required as a result of the injury and reasonably certain to be required in the future, all to his damage in an amount to be determined by the Court at trial.
INTERROGATORIES, REQUEST FOR PRODUCTION AND REQUEST FOR ADMISSIONS
Please take notice that pursuant to 1-026(D) NMRA, 1-033 NMRA, 1-034 NMRA, and 1-036 NMRA, Plaintiff serves the attached interrogatories, requests for production, and requests for admissions, marked hereto as Exhibit A, to be propounded upon Defendant. The attached Exhibit A is to be incorporated by reference as if set forth fully herein, pursuant to Rule 1-010(C) NMRA Defendant is hereby instructed to answer the following discovery, fully, in writing under oath as required by New Mexico Rules of Civil Procedure. The answers and responses shall be served upon the undersigned counsel forty-five (45) days after service of this document.
WHEREFORE Plaintiff requests a reasonable award of damages in an amount to be proven at trial and such other and further relief as the Court deems just and proper.
By: s/ Robert Moss
P.O. Box 90067
Albuquerque, NM 87199
(505) 214-5317 (facsimile)
HCS Pub. January 7, 14, 21, 2022
STATE OF NEW MEXICO