The New Mexico Department of Transportation tops the list for spending on legal cases handled through the state Risk Management Division during the past three fiscal years.

Of the $27 million in payouts, records show, cases at the Transportation Department accounted for $4.8 million.

Part of that spending is for wrongful-death lawsuits filed by families of people killed in accidents with Rail Runner Express passenger trains.

While it was unclear Tuesday how much of the spending is directly connected to Rail Runner cases, one state lawmaker said legal bills related to the trains are something he and several colleagues feared before the commuter service was started along the northern Rio Grande corridor, now stretching from Belen to Santa Fe.

"The problem is that when they purchased the railroad tracks for that, they assumed all liability for it," said state Rep. Larry Larrañaga, R-Albuquerque. "Now that's showing up as an expense."

"Many of us brought it up at the time," he said, "that it's not just the initial expense of the train, it's the liability."

Larrañaga, a former secretary of the highway department, said the overall amount that the Risk Management Division spends on Transportation Department cases is "extremely high."

Several people and cattle have been killed in accidents with the train since the service began in July 2006.

Apart from Rail Runner-related costs, the Transportation Department's legal bill includes fees for expert witnesses, who are sometimes called on for forensic accounting used in accident reconstruction, department spokesman Mark Slimp said. The bill also includes construction-related claims, he said.

"Because the department owns/controls U.S. and state highways throughout the entire state of New Mexico, including the Rail Runner line that runs from Belen to Santa Fe, NM, incurring costs for legal suits is not uncommon," Slimp said in an e-mail.

"Trying to categorize what the top three cases are is difficult at best, but I can tell you that defending the wrongful death cases that involve the Rail Runner is a large task," he said.

A specific breakdown of spending by cases was not available Tuesday.

The millions spent by the Risk Management Division includes all tort claims and lawsuits handled by the division. It doesn't include money spent by state agencies that have in-house or hire contract attorneys.

At the Department of Health — also in the top five departments each of the past three years — the legal fees include spending on two long-standing cases in which the state is a defendant.

One, known as the Jackson lawsuit, dealt with allegations that the state discriminated against people with developmental disabilities and violated the federal Constitution, Health Department spokeswoman Deborah Busemeyer said.

That case has been settled, and the state now is working to meet requirements of the settlement, which include improving services for people with developmental disabilities.

Busemeyer said the Health Department spent $450,000 in both 2009 and 2010 just on plaintiff legal fees in the Jackson case, which represent only a portion of case costs. Other costs include court-appointed monitors who are part of the settlement.

Another costly case for the department is known as the Foley case. It's a class-action lawsuit filed to find out what happened to people who had been discharged from state institutions in Fort Stanton and Los Lunas and whether they need and are getting additional care, Busemeyer said.

Lawmakers for years have looked at ways to reduce what the state spends on legal fees.

Most recently, several lawmakers have been looking to get a true accounting of the cost of the state's defense in the case known as Foy v. Vanderbilt, a whistle-blower case in which former Education Retirement Board investment officer Frank Foy claims the governor applied political pressure in favor of investing state funds with a Chicago company.

Contact Kate Nash at 986-3036 or knash@sfnewmexican.com. Read her blog at www.greenchilechatter.com.

COVERING LEGAL CLAIMS

Spending by state Risk Management Division, by state agency:

Fiscal Year 2008

Department of Transportation: $2,062,535

UNM Hospitals — Carrie Tingley: $1,254,382

Department of Health: $1,233,503

Department of Public Safety: $1,142,991

Children, Youth and Families Department: $874,509

Fiscal Year 2009

Department of Transportation: $1,472,935

UNM Hospitals — Carrie Tingley: $1,086,176

University of New Mexico: $996,924

Children, Youth and Families Department: $926,947

Department of Health: $609,766

Fiscal Year 2010

Department of Transportation: $1,269,762

Department of Health: $708,339

UNM Hospitals — Carrie Tingley: $638,029

Children, Youth and Families Department: $530,397

Department of Public Safety: $513,362

Note: Only includes costs tabulated through early July. Once final billings are in from contract attorneys, actual totals are expected to be higher.



Source: State General Services Department