DEMAND FOR SETTLEMENT - WRONGFUL DEATH
STATE OF NEW MEXICO
[FIRM NAME]
Attorneys at Law
[Street Address]
[City, New Mexico ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of New Mexico
DATE: [Date]
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS MAIL
[Claims Representative / Risk Management / Defendant]
[Insurance Company / Entity Name]
[Street Address]
[City, State ZIP]
RE: WRONGFUL DEATH CLAIM - SETTLEMENT DEMAND
Decedent: [Decedent Full Name]
Date of Death: [Date of Death]
Date of Incident: [Date of Incident, if different]
Personal Representative: [Personal Representative Name]
Claim Number: [If assigned]
Policy Number: [If known]
Dear [Recipient Name]:
This firm represents [Personal Representative Name], as Personal Representative of the Estate of [Decedent Name], deceased, regarding the wrongful death of [Decedent Name], who died on [Date of Death] as a direct and proximate result of [describe cause - e.g., "a motor vehicle collision caused by your insured," "medical negligence," "a dangerous condition on your insured's property," etc.].
This letter constitutes our formal demand for settlement of the wrongful death claim arising from this tragedy.
I. NEW MEXICO WRONGFUL DEATH STATUTORY FRAMEWORK
A. Wrongful Death Act - NMSA Section 41-2-1
This wrongful death claim is brought pursuant to the New Mexico Wrongful Death Act, NMSA Section 41-2-1, which provides:
"Whenever the death of any person shall be caused by the wrongful act, neglect or default of another... the personal representative of the deceased shall maintain an action therefor..."
See Stang v. Hertz Corp., 83 N.M. 730, 497 P.2d 732 (1972); Chavez v. Regents of Univ. of N.M., 1985-NMSC-114, 103 N.M. 606, 711 P.2d 883.
B. Who May Bring the Action
Under NMSA Section 41-2-3, the action must be brought by the personal representative of the decedent's estate for the benefit of persons who may be entitled to recover.
Personal Representative:
[Personal Representative Name]
Appointed: [Date] by the [District Court for [County] County, New Mexico]
Probate Case No.: [Case Number]
Letters Testamentary/Administration Issued: [Date]
C. Statutory Beneficiaries
Under NMSA Section 41-2-3, persons entitled to recover include:
| Beneficiary | Relationship | Statutory Basis |
|---|---|---|
| [Name] | Surviving Spouse | NMSA Section 41-2-3 |
| [Name] | Child | NMSA Section 41-2-3 |
| [Name] | Parent | NMSA Section 41-2-3 |
| [Additional beneficiaries] | [Relationship] | [Basis] |
D. Statute of Limitations
Under NMSA Section 41-2-2, the wrongful death action must be commenced within three (3) years from the date of death.
- Date of Death: [Date of Death]
- Limitations Period Expires: [Expiration Date]
Note: New Mexico has a longer limitations period than most states.
E. Survival Action - NMSA Section 37-2-1
In addition to the wrongful death action, a survival claim is brought pursuant to NMSA Section 37-2-1, which provides that causes of action survive the death of the injured person. The survival action allows recovery of:
- Medical expenses incurred prior to death
- Pain and suffering experienced by decedent prior to death
- Lost wages from injury to death
II. PRESERVATION OF EVIDENCE NOTICE
YOU ARE HEREBY DIRECTED TO PRESERVE ALL EVIDENCE relating to this claim, including but not limited to:
- All evidence relating to the incident causing death
- All documents, photographs, and recordings
- Electronic data, including EDR/black box data (vehicle cases)
- Surveillance footage
- Communications with your insured regarding the incident
- Complete claims file and investigation materials
- All applicable insurance policies
- Prior claims or incidents involving your insured
- [Add case-specific evidence items]
Spoliation of evidence will result in sanctions and adverse inferences under New Mexico law. Segura v. K-Mart Corp., 2003-NMCA-013, 133 N.M. 192, 62 P.3d 283.
III. STATEMENT OF FACTS
A. The Decedent - [Decedent Name]
[Decedent Name] was a [Age]-year-old [describe decedent - occupation, family role, community involvement]:
Personal Background:
- Date of Birth: [DOB]
- Age at Death: [Age]
- Residence: [City], New Mexico
- Occupation: [Occupation/Employer]
- Annual Income: $[Amount]
- Education: [Education level]
Family:
- Spouse: [Name], married [years]
- Children: [Names and ages]
- Parents: [Names, if surviving]
- [Other relevant family information]
Character and Standing in the Community:
[Describe the decedent's character, community involvement, and relationships]
B. The Incident Causing Death
On [Date], at approximately [Time], [describe the incident with specificity]:
[Detailed factual description of the incident, the defendant's conduct, and how it caused the decedent's death]
C. The Death
[Decedent Name] [died at the scene / was transported to [Hospital] where [he/she] died / survived for [time period] before succumbing to injuries].
If Survival Period:
From the time of injury until death, a period of [time period], [Decedent Name]:
- Was conscious and aware of [his/her] injuries
- Suffered extreme physical pain from [injuries]
- [Describe other suffering during survival period]
This conscious pain and suffering is compensable under the survival action.
IV. LIABILITY ANALYSIS
A. Negligence / Liability of Defendant
[Defendant Name] is liable for the wrongful death of [Decedent Name]. Under New Mexico law, a wrongful death action lies when death is caused by the wrongful act, neglect, or default of another. Stang v. Hertz Corp., 83 N.M. 730, 497 P.2d 732 (1972).
Elements of Negligence:
-
Duty: [Defendant] owed a duty of [reasonable care / safe premises / proper medical care / etc.] to [Decedent Name]
-
Breach: [Defendant] breached this duty by:
- [Describe specific breaches with particularity]
- [Additional breaches] -
Causation: [Defendant's] breach was the actual and proximate cause of [Decedent's] death
-
Damages: [Decedent Name]'s death resulted in damages recoverable under New Mexico law
B. Negligence Per Se (If Applicable)
[Defendant] violated [New Mexico statute or regulation], which was designed to protect [class of persons] from [type of harm]. Under New Mexico law, violation of a statute designed to protect a class of persons may constitute evidence of negligence. Archibeque v. Homrich, 88 N.M. 527, 543 P.2d 820 (1975).
C. New Mexico's Pure Comparative Fault Rule
New Mexico follows pure comparative fault under NMSA Section 41-3A-1. The plaintiff's damages are reduced by the percentage of fault attributable to the plaintiff, but recovery is not barred regardless of the plaintiff's percentage of fault.
[Decedent Name] Was Not At Fault:
[Decedent Name] bore absolutely no fault for [his/her] own death. [He/She] was:
- [Describe lawful, careful conduct]
- [Additional evidence of due care]
- [Explain why decedent had no opportunity to avoid the harm]
V. DAMAGES
A. NEW MEXICO WRONGFUL DEATH DAMAGES
Under NMSA Section 41-2-1, wrongful death damages in New Mexico include:
- Reasonably expected loss of income the decedent would have contributed
- Loss of services of the decedent
- Loss of society, comfort, care, and companionship
- Medical expenses incurred prior to death
- Funeral and burial expenses
- Reasonable expenses of administration
See Chavez v. Regents of Univ. of N.M., 1985-NMSC-114, 103 N.M. 606, 711 P.2d 883.
B. ECONOMIC DAMAGES
1. Loss of Income:
[Decedent Name] was [Age] years old at death with a work-life expectancy of [Years] years.
| Category | Calculation | Amount |
|---|---|---|
| Annual Earnings | $[Amount] | |
| Benefits (Value at [%]) | $[Amount] | |
| Annual Increases (Projected) | [%] | |
| Work-Life Expectancy | [Years] years | |
| Present Value of Lost Income | $[Amount] |
Based on expert economic analysis
2. Loss of Services:
| Service | Annual Value | Years | Present Value |
|---|---|---|---|
| Household Services | $[Amount] | [Years] | $[Amount] |
| Childcare/Guidance | $[Amount] | [Years] | $[Amount] |
| TOTAL | $[Amount] |
3. Pre-Death Medical Expenses:
| Provider | Service | Amount |
|---|---|---|
| [Ambulance] | Transport | $[Amount] |
| [Hospital] | Emergency/ICU Care | $[Amount] |
| [Other Providers] | [Service] | $[Amount] |
| TOTAL PRE-DEATH MEDICAL | $[Total] |
4. Funeral and Burial Expenses:
| Expense | Amount |
|---|---|
| Funeral Home Services | $[Amount] |
| Casket/Urn | $[Amount] |
| Cemetery/Burial Plot | $[Amount] |
| Headstone/Memorial | $[Amount] |
| Other Expenses | $[Amount] |
| TOTAL FUNERAL EXPENSES | $[Total] |
5. Estate Administration Expenses:
| Expense | Amount |
|---|---|
| Probate Costs | $[Amount] |
| Attorney's Fees (Probate) | $[Amount] |
| TOTAL ADMINISTRATION | $[Total] |
C. NON-ECONOMIC DAMAGES
1. Loss of Society, Comfort, Care, and Companionship:
New Mexico recognizes recovery for the loss of society, comfort, care, and companionship suffered by the statutory beneficiaries.
| Beneficiary | Relationship | Loss Description |
|---|---|---|
| [Spouse Name] | Surviving Spouse | [Describe loss of society, comfort, companionship] |
| [Child Name] | Child | [Describe loss of parental care and companionship] |
| [Parent Name] | Parent | [Describe loss] |
Claimed Loss of Society, Comfort, and Companionship: $[Amount]
2. Pre-Death Pain and Suffering (Survival Action):
[Decedent Name] survived for [time period] following the initial injury. During this time, [he/she]:
- Experienced severe physical pain from [describe injuries]
- Suffered mental anguish and emotional distress
- [Was aware of impending death / feared for his/her life]
Claimed Pre-Death Pain and Suffering: $[Amount]
D. Summary of Damages
Wrongful Death Damages:
| Category | Amount |
|---|---|
| Loss of Income | $[Amount] |
| Loss of Services | $[Amount] |
| Medical Expenses | $[Amount] |
| Funeral Expenses | $[Amount] |
| Administration Expenses | $[Amount] |
| Loss of Society, Comfort, and Companionship | $[Amount] |
| TOTAL WRONGFUL DEATH DAMAGES | $[Subtotal] |
Survival Action Damages:
| Category | Amount |
|---|---|
| Pre-Death Pain and Suffering | $[Amount] |
| Pre-Death Lost Wages | $[Amount] |
| TOTAL SURVIVAL DAMAGES | $[Subtotal] |
TOTAL ALL DAMAGES: $[Grand Total]
VI. SETTLEMENT DEMAND
A. Demand Amount
Based upon the clear liability of [Defendant], the substantial economic losses, and the significant non-economic damages, we hereby demand:
$[DEMAND AMOUNT]
[OR - Policy Limits Demand:]
TENDER OF ALL AVAILABLE POLICY LIMITS, INCLUDING:
- Primary liability policy: $[Amount]
- Umbrella/Excess policy: $[Amount]
- Any additional coverage: $[Amount]
- TOTAL LIMITS DEMANDED: $[Amount]
B. Distribution of Recovery
Under New Mexico law, wrongful death recovery is distributed among the statutory beneficiaries:
| Beneficiary | Relationship | Share |
|---|---|---|
| [Spouse Name] | Surviving Spouse | [Percentage/Amount] |
| [Child Name] | Child | [Percentage/Amount] |
| [Additional beneficiaries] | [Relationship] | [Percentage/Amount] |
C. Time for Response
This demand will remain open for thirty (30) days from the date of this letter, through and including [Expiration Date].
Given the clear liability and substantial damages in this case, failure to respond appropriately may result in the immediate filing of a wrongful death complaint in the District Court for [County] County, New Mexico.
VII. BAD FAITH / EXCESS LIABILITY NOTICE
Please be advised that our client's damages may substantially exceed the available policy limits. Under New Mexico law:
-
An insurer has a duty to act in good faith. Dairyland Ins. Co. v. Herman, 1998-NMSC-005, 124 N.M. 624, 954 P.2d 56.
-
New Mexico recognizes a cause of action for bad faith failure to settle.
-
Failure to accept a reasonable settlement demand within policy limits may expose the insurer to bad faith liability.
-
We demand that you immediately advise your insured of this demand and of any potential excess exposure.
VIII. DOCUMENTATION ENCLOSED
- Death certificate
- Letters Testamentary / Letters of Administration
- Medical records and bills (pre-death treatment)
- Autopsy report (if applicable)
- Funeral and burial expense receipts
- Police/incident report
- Witness statements
- Photographs
- Proof of earnings/income documentation
- [Other case-specific documentation]
IX. CONCLUSION
The wrongful death of [Decedent Name] was caused entirely by [Defendant's] [negligence / wrongful conduct]. [Decedent Name] bore no fault whatsoever for [his/her] own death.
[Decedent Name] was a [describe decedent's value and the loss to family and community]. [His/Her] death has devastated [his/her] family and deprived them of [his/her] love, support, and companionship.
We urge you to resolve this matter fairly and promptly. If this matter cannot be resolved, we are prepared to file suit immediately in the District Court for [County] County, New Mexico.
Please contact me at your earliest convenience to discuss resolution.
Respectfully submitted,
[FIRM NAME]
By: _________________________________
[Attorney Name]
New Mexico State Bar No. [Number]
Attorney for the Estate of [Decedent Name]
ENCLOSURES: [List]
cc: [Personal Representative]
[File]
NEW MEXICO-SPECIFIC PRACTICE NOTES
Critical New Mexico Wrongful Death Considerations:
-
LONGER STATUTE OF LIMITATIONS: New Mexico has a 3-year statute of limitations for wrongful death, longer than most states.
-
PERSONAL REPRESENTATIVE BRINGS ACTION: The personal representative brings the action on behalf of statutory beneficiaries.
-
LOSS OF SOCIETY, COMFORT, CARE, AND COMPANIONSHIP: New Mexico specifically recognizes these non-economic damages.
-
PURE COMPARATIVE FAULT: New Mexico follows pure comparative fault - recovery is reduced but never barred by plaintiff's fault.
-
NO GENERAL DAMAGE CAP: New Mexico does not cap general wrongful death damages, but medical malpractice has a $600,000 cap.
-
ADMINISTRATION EXPENSES: New Mexico specifically allows recovery of reasonable administration expenses.
-
MEDICAL MALPRACTICE: Medical Malpractice Act applies, with $600,000 cap. NMSA Section 41-5-6.
-
PUNITIVE DAMAGES: May be available for willful, wanton, or reckless conduct under NMSA Section 41-1-1.
New Mexico Venue and Procedure:
- Venue: County where defendant resides, where cause of action arose, or where plaintiff resides if defendant is out-of-state. NMSA Section 38-3-1.
- Service: New Mexico Rules of Civil Procedure, Rule 1-004.
- Medical Malpractice Review: Medical Review Commission process may apply.
Key Case Law:
- Stang v. Hertz Corp., 83 N.M. 730, 497 P.2d 732 (1972) - Elements of wrongful death
- Chavez v. Regents of Univ. of N.M., 1985-NMSC-114, 103 N.M. 606 - Wrongful death damages
- Dairyland Ins. Co. v. Herman, 1998-NMSC-005, 124 N.M. 624 - Insurer bad faith
New Mexico wrongful death law provides comprehensive recovery with a longer limitations period. This template must be customized by a licensed New Mexico attorney.