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Lozoya v. Sanchez3/24/2003
para;1 In this negligence action, Plaintiffs appealed to the Court of Appeals from a judgment and verdict of the district court. The Court of Appeals certified the matter to this Court, because the case involves an issue of substantial public interest as to whether unmarried cohabitants may recover against negligent actors for loss of consortium, and we accepted the certification. See NMSA 1978, ยง 34-5-14(C) (1972); Rule 12-606 NMRA 2003. Plaintiffs also raise several additional points of error on appeal. We affirm as to all issues except the directed verdict as to the loss of consortium claim, and the verdict of no negligence as to one of the Defendants. We hold as a matter of first impression under New Mexico law that a claim for loss of consortium is not limited to married partners. We therefore affirm in part, reverse in part, and remand for further proceedings.
I.
This case arises from two automobile collisions in which Ubaldo and Osbaldo Lozoya, father and son, were traveling together. The first of these collisions took place on June 21, 1999. Ubaldo and Osbaldo were stopped at a red light on Coors Boulevard in Albuquerque when another vehicle collided with them from behind. The other vehicle was driven by Defendant Diego Sanchez, an employee of Defendant Statkus Engines, LLC. Mr. Sanchez testified that he was traveling about 35 mph at the time that he applied his brakes, and an expert testified that he had slowed to between five and fifteen mph at the point of impact. The police officer who investigated the accident testified that the Lozoya vehicle received moderate damage, while the Statkus vehicle was more severely damaged.
At the scene of the accident, neither of the Lozoyas complained of any injuries. Ubaldo began to experience pain shortly thereafter, however, in one of his arms, head, and legs. Father and son visited Presbyterian Occupational Medical Clinic eight days later. The doctor found that Ubaldo was experiencing tenderness in his neck and back, but that his range of motion in these areas was "pretty close to normal." An x-ray showed what appeared to be a compression of one of Ubaldo's vertebrae that "looked like it was old," but the doctor believed that the soreness Ubaldo was experiencing was a result of the accident. Ubaldo visited the same doctor again about a week later, and the doctor decided that Ubaldo could return to work on a light duty basis.
Osbaldo reported experiencing lower back pain. The doctor referred him to a physiatrist (muscle & bone specialist) to determine if anything further should be done. The physiatrist diagnosed him as having a soft tissue injury and sent him to physical therapy. Osbaldo did not show up for this third appointment with the physiatrist so he was released from care.
Ubaldo continued to experience pain, however, and he followed up with another doctor. This doctor ordered chiropractic care and physical therapy. Ubaldo went to one physical therapy appointment, then stopped. This doctor believed that Ubaldo would not be able to return to his former occupation because of the back problems he was experiencing. Ubaldo was presented with the options of either enduring the pain as it existed, taking medication, having "epidural blocks" performed, or surgery. Ubaldo decided that he did not want the injections or surgery.
On April 18, 2000, approximately ten months after the first accident, Ubaldo and Osbaldo were involved in another collision as they were driving toward a job site. They were driving on Interstate 40, near the "Big-I" interchange when they were again rear-ended by another vehicle. This time, the other vehicle involved was a dump truck operated by De
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