Las Vegas Injury & Accident Attorney Blog

Offer of Judgments have many rules that apply to the basic core rule that a party may have to pay attorney fees and costs if they are incorrect in their decision to accept such an offer.  The Nevada Supreme Court has outlined many rules as they apply to Offer of Judgments in Nevada Law.  Here is a summary:

1.)  An Offer of Judgment is irrevocable after it is served for 10 days

2.)  An Offer of Judgment mandates an award of Costs and Discretionary attorney fees if beaten at trial.

3.)  An Offer of Judgment must be made 10 days prior to trial as calculated from the actual trial date. Pursuant to NRCP 6(a), the trial date itself, is excluded from the computation and the day the offer is served is included.

4.) An Award of Attorney’s Fees are Discretionary and Costs are Mandatory.  Under former NRCP 68, attorney’s fees and costs may be allowed as follows:  “If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree shall not recover costs, nor attorneys’ fees, but shall pay the costs and attorneys’ fees, if any be allowed, of the party making the offer from the time of the offer.”

In addition, NRS 17.115(4)(b) provides that

If the party to whom the offer of judgment is made fails to obtain a more favorable judgment, he cannot recover:

(b) Costs or attorney’s fees,

and the court shall order him to pay to the party who made the offer that party’s taxable costs incurred from the date of filing the complaint, and may order ․ reasonable attorney’s fees incurred by the party making the offer from the time of the offer.

PALACE STATION HOTEL CASINO INC v. JONES

PALACE STATION HOTEL & CASINO, INC., Appellant, v. Keith JONES, Respondent.

No. 27129.

– June 15, 1999

BEFORE:  MAUPIN, AGOSTI and BECKER, JJ.

DISCUSSION

I. Offer of Judgment

Nevada’s offer of judgment rule is set forth in NRCP 68 and NRS 17.115.   At the time of the underlying action, NRCP 68 provided in pertinent part:  “At any time more than 10 days before the trial begins, any party may serve upon the adverse party an offer to allow judgment to be entered for the money or property or to the effect specified in the offer, with costs then accrued.” 1

NRS 17.115(1) provides that:

At any time more than 10 days before trial, either informally or at any pretrial conference presided over by a judge of the court in which the action is pending, any party may serve an offer in writing to allow judgment to be taken in accordance with the terms and conditions stated at that time.

NRCP 6(a) prescribes the manner in which the ten-day time period provided under NRCP 68 and NRS 17.115 is to be computed.   See NRCP 1.

In computing any period of time prescribed or allowed by these rules, ․ or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included.   The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a non-judicial day, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a non-judicial day.

An OOJ or Offer of Judgment is a tool for parties in litigation used to shift risk to an opposing side.   The procedural rule allows judgment to be taken against that party in a specified amount.  The offer of judgment is a formal way to make an offer to settle the case; hence, a party may believe the value of the case is worth more (from the plaintiff’s side), or a party may believe the case is worth less (from the defendant’s side) and make an offer accordingly.  The risk of such an offer is that is may be accepted at a lower threshold than a jury might award.   NRCP (Nevada Rules of Civil Procedure) and the FRCP (Federal Rules of Civil Procedure) both govern this strategic move.

An OOJ can be made at anytime after the commencement of the litigation–hence after an answer is made.   Certainly, to be fair to both sides, and surely to meet certain legal factors, an excellent time to do an offer of judgment is a time when both sides are truly familiar with the facts of the case and can make a reasonable judgment as to whether the case is worth settling or rolling the dice at trial.  Recently, the Nevada Supreme Court ruled that service by fax of an Offer of Judgment is only valid if, of course, the party to which service is made upon has consented to such service( by fax).  Given technical difficulties of fax machines, internet service, and the like, our firm does not allow service or notice by fax.  Serving an OOJ by fax is not a good way to notice this serious weapon, and should be served in person by what us lawyers call: a signed ROC,  ”Receipt of Copy.”  This way, the OOJ is properly served with no argument as to notice.

What exactly happens when a party to a car accident receives an offer to settle involving NRCP 68 or NRS 17.115?   Well, a party may have to pay COSTS of litigation AND ATTORNEY FEES in the event of losing.  This is a powerful tool to get a case resolved when the stakes are high. Litigation is not a cheap activity, and a failure of a party to not accept a reasonable offer can have dire consequences.   In fact, a party can actually be successful at trial (e.g win the case), but lose financially. Exactly how?  Real simple.  Here is an example:  A party wrongly believes their accident case is worth $50,000 so they make an OOJ of slightly lower:  $45,000.  The Defendant disagrees with the “outrageous” offer.  The clients medical expenses are $10,000 and the client has totally healed.  10 days goes by and the offer of judgment is automatically rescinded due to non-acceptance.  They proceed to a jury trial.  Now, the jury awards $30,000.  $15,000 less than if they had accepted the offer.  Big Problem.   The judge in the matter can then award the Defendant attorney fees and costs!

Those costs might well exceed $100,000.  So, this example illustrates that a party who had a good case and won, will lose $70,000!  Not a good result.  The secret weapon is there!  An opposing example:  A party offers to settle for $1 million dollars on a wrongful death claim, and the opposing side refuses the offer thinking they can beat it at trial.  The personal injury attorney smartly decides the case can be proven and the damages will likely be awarded much higher.  The case proceeds to trial and a Nevada jury awards $2 million dollars.  The Plaintiff here will make more than just the award of $1M, but also attorney fees (billed by the hour since the OOJ was made), and gets the total costs of bringing the case to trial.  This is a win, win.   If no Offer of Judgment was ever made the case for an award of fees and costs is discretionary and is optional–which in all likelihood means no award of fees and costs.  If you have a case and would like the experience and expertise of Las Vegas Personal injury lawyers Joseph Benson and Ben Bingham, call us today. 702-382-9797

Benson & Bingham  ”Here to help you litigate your case.”

Last week Honda Motor Company recalled thousands of Honda Accords and Civics due to faulty gear shifter in the early 2000 models.  The investigation revealed the Honda’s key can be removed when the car is other non-Parked positions.  This will create a reverse situation if the car is left in Neutral or in the reverse position.  Just after this Honda recall, in a similar park to reverse case in Kingman, Arizona, A 6-week-old girl died after being run over in a driveway in Lake Havasu City on August 10, 2010. The Police Department Sgt. Joe Harrold said officers responded at 11:26 p.m. Monday to a home on Newport Drive and that a 24-year-old Lake Havasu City woman had parked her 2004 Ford pickup on an inclined driveway and that the vehicle rolled backward as she was unloading items from the passenger side.

Obviously, this case is under investigation as the cause of the the reversal, but truly this vehicle model has been plagued by issues surrounding the vehicle’s brake shift interlock device which allows for movement of the gear shifter when the vehicle is in the ON or MIDDLE key position without depressing on the brake pedal.  It is unclear to this author whether the 2004 is even available in a stick shift, or the circumstances of why the vehicle even was allowed to move given the location of the driver–in the passenger seat.   This is the exact auto injury case that Benson & Bingham will investigate for you should you suffer this unusual, but not unheard of, event.   Call Benson & Bingham today if you have experienced this type of automotive tragedy: 702-382-9797

Many motor vehicle accidents are caused by drivers not paying attention. One of the leading types of car crashes are T-Bone accidents or side impact accidents from incautious drivers running red lights. With the current volume of cell phone drivers and text messaging teenagers on the road, failure to yield traffic citations are at an all time high. Often times injuries resulting from a t-bone accidents are severe such as: brain trauma, spinal cord injuries, broken ribs, fractured arms, broken legs, and fractured hips to name a few.

Ensuring your legal rights are protected during the rehabilitation stage may be crucial in the financial outcome of a personal injury claim. With Benson and Bingham’s combined twenty years of legal knowledge you can recover with confidence. Call us at 702-382-9797.

Walking your dog without a leash, even in a park, is negligent. While dog bites often occur due to the owner not properly maintaining their dogs (i.e. Not closing a gate or restraining the animal upon opening a door) more than half of reported animal attacks can be avoided if animal owners would simply place their dog on a leash. The common statement by dog owners, “my dog doesn’t bite” is disturbing. Dogs are animals and have instincts that most owners are not aware. They may become protective or aggressive without notice. Every dog has teeth and every dog is capable of attacking without provocation. Children are often victims of dog bites while out playing in the neighborhood. Aggressive dogs are attracted to bicycles, skateboards and loud children playing.

Personal injuries suffered from dog bite cases often result in stitches, scarring, muscle damage, neurological damage and extreme distress for fear of animals.  If you or a loved one has been attacked and bitten by a dog, contact Benson & Bingham at 702-382-9797.

Benson & Bingham have developed a unique and exciting way for drivers who get cited to hire an attorney–ONLINE.   With their new 100% online traffic ticket representation, those who get tickets and traffic citations and wish to hire an attorney can do so with a few clicks of the mouse.   Hello to www.24hourticketpower.com where your Las Vegas traffic ticket attorneys are standing by 24 hours a day.  Log on and fix your ticket today for a very reasonable cost!

If you have suffered a heart attack or stroke and have taken Avandia for Diabetes, then Call the law firm of Benson & Bingham today.  702-382-9797.  Rosiglitazone is used along with a diet and exercise program and sometimes with one or more other medications to treat type 2 diabetes (condition in which the body does not use insulin normally and, therefore, cannot control the amount of sugar in the blood).  Rosiglitazone is in a class of medications called thiazolidinediones. It works by increasing the body’s sensitivity to insulin, a natural substance that helps control blood sugar levels. Rosiglitazone is not used to treat type 1 diabetes (condition in which the body does not produce insulin and, therefore, cannot control the amount of sugar in the blood) or diabetic ketoacidosis (a serious condition that may occur if high blood sugar is not treated).  Rosiglitazone comes as a tablet to take by mouth. It is usually taken once or twice daily with or without meals. Rosiglitazone should be consumed at about the same time(s) every day.  Your doctor may have increased your dose of rosiglitazone after 8-12 weeks, based on your body’s response to the medication.  Rosiglitazone claims to help control type 2 diabetes but does not cure it.  Usually it takes 2 weeks for your blood sugar to decrease, and 2-3 months or longer for you to feel the full benefit of rosiglitazone.  If you need an Avandia Lawyer call the experts at Benson & Bingham today.

U.S. News and World Report Claims there is no real problem with Avandia.  “Our observational study does not suggest a significant cardiovascular hazard and may suggest a beneficial effect on ischemic cardiovascular events associated with treatment with rosiglitazone among patients with type 2 diabetes and established coronary artery disease,” said Dr. Richard Bach, an associate professor of medicine at Washington University School of Medicine in St. Louis.

The FDA is on record that the drug is NOT SAFE.  It is a matter of time before the drug is pulled off the shelf. FDA previously communicated to the public about the possible association between rosiglitazone and increased cardiovascular risk in a 2007 safety alert. The agency also sought advice from external experts at the July 30^th 2007 joint meeting of the FDA Endocrinologic and Metabolic Drugs and Drug Safety and Risk Management Advisory Committees. The RECORD study data represent the only new information from a completed randomized, controlled clinical trial of rosiglitazone received by FDA since the 2007 announcements. The RECORD study was designed to evaluate the cardiovascular safety of rosiglitazone, which is consistent with FDA’s December 2008 Guidance for Industry recommending that manufacturers of new treatments for diabetes carefully design their clinical trials to include an evaluation of cardiovascular safety. The RECORD study will be evaluated in the context of this recent Guidance.

* Rosiglitazone is sold as a single-ingredient product under the brand name Avandia. It is also available in combination with other diabetes medications, metformin under the brand name Avandamet or glimepiride under the brand name Avandaryl.

FDA recommends that patients currently using rosiglitazone:  Not stop taking their medication without talking with their healthcare professional. Discuss any questions or concerns they have about rosiglitazone with their healthcare professional. Read the Medication Guide that comes with each rosiglitazone prescription to better understand the risks and benefits of their medication. Report any side effects with rosiglitazone to FDA’s MedWatch program.

Similar to Vioxx, drugs that cause an increase in heart attacks will have serious legal contention if the Plaintiff has other risk factors like obesity, hypertension, high cholesterol, or other issues that may alone cause a heart attack.   Those who have diabetes and smoke will also have trouble fighting the makers of Avandia.   The biggest risk factor will likely be obesity.  Given that fatter humans are likely to have diabetes and therefore develop Type II diabetes, it will be hard to conclusively understand whether the heart issues are from the underlying weight issue or the drug.   Studies will continue to give us valuable research to help juries understand the true risks of this drug.  To help you fight for your rights, Call the Avandia and other dangerous drug recall attorneys at Benson & Bingham today who are taking new cases today.  Don’t delay!  702-382-9797

Dog Bites occur quite frequently in Clark County–about 4 per day!  The statistics show that 1,241 dog bites occurred in 2009 in Clark County.  This is the heaviest volume of dog bites recorded in the last 10 years, however, each year about 1,000 have been recorded annually give or take a few hundred.  The County keeps track of these statistics including the “bite by breed” statistic.   The overwhelming leader in Bites every year is the Pit Bull.  The Pit Bull accounts for 20% or so the bites every year.  Far greater than any other breed.   Bull dogs, labradors, mixed breeds, german shepherds, and terriers, consistently lead the pack here in Las Vegas dog bits.   Who knows if the shepherds bites are police related?  Upon reading the statistics, certainly some breeds may be more prone to bite, just as some breeds may be more prone to retrieve that ball you throw.  But, the major lacking component to the statistics is the TOTAL number of dogs that live in our community.

If Pit Bulls make up 50% of the households, then 20% of the bites is not a bad number!  It is likely hard to measure the total population of specific breeds unless each dog is officially registered.   No doubt that Pit Bulls are a popular animal–especially among Las Vegas residents.  The attraction may be the agility or the home defense characteristics that the dog breed possesses.  To prove my point, the Chihuahua in 2009 made up 11% of all dog bites in Clark County with 122 bites.  Compare this to 2000 when Chihuahua bites were only 1.3% of the total dog bites (14 total bites).  Perhaps Paris Hilton’s popularity of the animal tucked away in her dog purse helped Las Vegans want the animal more–who knows, but it is safe to say that Chihuahua’s population has increased, and that increase has had a marked impression on the total Chihuahua dog bites.  SO, WHAT DOES THIS MEAN?   Statistics must be looked at carefully.    If you have been the victim of a pit bull attack or other breed contact the dog attack lawyers at Benson & Bingham today 382-9797.

So if you have had Bull dog bite and need a Bull dog lawyer, or had a labrador bite and need a labrador attorney, a mixed breed bite, or a german shepherd bite, and/or  terrier bite, then you might just need a Terrier lawyer or shepherd attorney to handle that case. If is sounds silly it is, because personal injury lawyers don’t need to be specific breed attorneys, just solid dog bite attorneys who know the law.  Call us today:  702-382-9797

See the compiled statistics for animal attacks made by Clark County animal Control:

Plastic Surgery and Total Recovery Help from Benson & Bingham 702-382-9797.

Question: My son was in a motorcycle accident in 2008. He passed away at the scene. His girlfriend was on the motorcycle at the time and survived. She has since hired an attorney and they found the driver of the car partial at fault. Is there any recourse that I as his mother can take ?

Answer:  Sorry to hear about your loss.  I too have a motorcycle, and the darn thing is dangerous–but so are the drivers that are on our roads.  The issue presented in this case for potential recovery on your son’s behalf deals with the doctrine of comparative negligence and the law of joint and several liability.  If your son was more than 50% at fault, you (as the heir) can’t make a claim in Nevada. However, if your son was 50% or less at fault, he can make a claim for his damages–which are huge because he passed away.

Most of the time motorcycle accidents are caused by the negligence (carelessness) of the other driver, however, their are always exceptions.  If will be important to investigate the case and see how well the police report documents facts–especially any eye witness accounts–including the passenger girlfriend.   The girlfriend, on the other hand, has a much different case.

As a passenger, she is fault free.  She can collect from your son’s policy AND the other driver–this is the law of joint and several liability.  This basically means she can collect if the driver of ANY vehicle was 1% or more at fault, so if their is shared responsibility for the accident, even if slight, she can exhaust both insurance policies.  If your son had no insurance or minimal insurance coverage, that would explain the claim against the other party.  You only have two years in Nevada to make a claim–so you MUST act ASAP before the two year anniversary or you totally lose your rights.

Need help after a car accident in Summerlin?   The Las Vegas personal injury lawyers located in Summerlin, NV can help. Benson & Bingham’s headquarters are located right at the intersection of I-215 and Charleston near Red Rock Casino at the C2 Lofts.   If you live in the Vistas, Paseos, Red Rock Country Club, Summerlin Centre, Picolle Ranch,  Summerlin South, the Pueblos, the Mesa, Sienna, Ridges, Willows, or anywhere in Summerlin we are right there to help.  Come in and see us at 11441 Allerton Park Dr., Ste 100 Las Vegas, NV 89135 or call us at 702-382-9797 for a free consultation.