Las Vegas Injury & Accident Attorney Blog

In certain circumstances*, Passengers in automobile accidents will have more insurance coverage available to them.   Those passengers who are in a vehicle that is “also” at fault in an accident (what we call joint tort feasers) or multiple at-fault drivers can now maintain a 3^rd party claim and a 1^st party claim against the same insurance policy in a single accident.  This is new law and good news for passengers who, before, could only go after liability OR underinsurance coverage on the same policy.   For example, in a two car accident involving a passenger who broke her arm requiring surgery she would not be limited to just the liability coverage of the driver of her car and the other at fault car, she could also make a claim for “underinsurance” against the Driver of her car; thus, she would have a potential breach of contract claim if they didn’t offer her a reasonable sum over and above the two other liability policies (in an addition to negligence actions).  This example, of course, assumes BOTH drivers were at fault for the accident.

This changes the old policy that would only enable an accident victim to recover against the liability policy of the 2^nd car and the liability of the 1^st car.   No UIM/UM claim could be made.   The Nevada Supreme Court made this distinction in Delgado v American Family Insurance Group, 217 P.3d 563, (2009) where a passenger was allowed to make a claim against the $50,000 policy of the 1^st at fault driver, $15,000 against the 2^nd car’s liability policy, and also $25,000 against he 1^st car (the car she was a passenger in) for the underinsurance benefits.  Thus, the $25,000 claim is now allowed under Nevada Law.  If you were a passenger and need an experience Las Vegas personal injury lawyer call the experts at Benson & Bingham.

Personal injury attorneys typically handle cases for victims of car accidents and other tragedies who often are uninsured.  These victims treat with doctors and medical facilities on a lien basis to avoid out-of-pocket expenses.  A lien is nothing more than a promise to pay when the settlement or verdict is reached.    The quagmire is whether patients should use their health insurance or treat on a lien basis when involved in a 3^rd party personal injury action.   Health insurance, under Federal Law, must be reimbursed if funds are collected from a 3^rd party (except in rare cases).  But, there is a huge benefit for those insured victims to use health insurance because they can save tons of money in the long run given they have the protection of contracted health care rates. Lien providers can charge whatever they wish in a car accident case—as long as it is reasonable. What is reasonable is often gauged by market prices—and to some degree Medicare Rates (even though most would argue Medicare is on the cheap end of a reasonable charge.)

The new reasonable charge may be drastically lower given that all will have healthcare.  Given that everyone will now required to be insured, this will eliminate, in essence the need for liens as all persons will now have the remedy of insurance to treat for car accident cases.   Medical providers will likely now be forced to be providers on insurance or risk not being utilized.   Personal injury attorneys will not have the advantage of “inflated” or “non-contracted” rates when dealing with automobile insurance carriers (except in rare cases).  But, there is a huge benefit for those insured victims in Nevada to use health insurance because they can save tons of money in the long run given the have the protection of contracted health care rates.  Lien providers can charge whatever they wish in a car accident case—as long as it is reasonable.  What is reasonable is often gauged by market prices—and to some degree Medicare Rates (even though most would argue Medicare is on the cheap end of a reasonable charge.)  The new reasonable charge may be drastically lower given that all will have healthcare.  Given that everyone will now required to be insured, this will eliminate, in essence the need for liens as all persons will now have the remedy of insurance to treat for car accident cases.

Medical providers in Nevada will likely now be forced to be providers on insurance or risk not being utilized.   Personal injury lawyers will not have the advantage of “inflated” or “non-contracted” rates when dealing with automobile insurance carriers  (Geico, State Farm, Farmers, Allstate, American Family, Progressive, USAA, etc.), thus many should expect that lower medical costs will decrease personal injury settlements in minor car accident cases where value is often determined by the extent of the medical expenses and underlying treatment (verses the injury value in a large damages case where the human damages may have a residual affect).

The Nevada Legislature has capped damages from Punitive damage awards limiting it to three times the amount of general damages per NRS 42.005. $300,000 cap for small verdicts (< $100K) and three times the verdict for those over $100K.  These do not, however, apply to Product’s Liability cases, nor insurance bad faith cases.   These are the most common cases a personal injury lawyer will  deal with, except perhaps the DUI driver Defendant where the conduct is so reckless it may amount to crossing the line of intentional conduct.

Given this, the only cap on product’s liability (e.g. Ford Motor, or Tire cases where there was malice or knowledge of the defect and a jury feels compelled to punish the manufacturer) is the Governing Cap developed by our very own US Supreme Court.  The US Supreme Court in a landmark decision BMW vs. Gore  outlined specific notions of fairness in a platform analysis for State Judges.  The platform looks at the following two prongs:  Reprehensibility & Ratio.  How bad was the conduct?  Did the malicious conduct affect safety? = Reprehensible Conduct and Ratio:  Are the two verdicts Compensatory and Punitive Damage awards have a common ratio so as to not deprive one of due process of law…property.  The guideline was basically a 10:1 ratio that they could not exceed when awarding a punitive damages awards.  Since this decision the Court has further narrowed the guidelines in decisions that we will not address here, but the point is clear that the Nevada Legislature has designed the guidelines for Product manufacturer’s to product safe products and do it with some integrity.   Below is the statute on Punitive damage guidelines for Nevada Cases:

NRS 42.005  Exemplary and punitive damages: In general; limitations on amount of award; determination in subsequent proceeding.

1.  Except as otherwise provided in NRS 42.007, in an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice, express or implied, the plaintiff, in addition to the compensatory damages, may recover damages for the sake of example and by way of punishing the defendant. Except as otherwise provided in this section or by specific statute, an award of exemplary or punitive damages made pursuant to this section may not exceed:

(a) Three times the amount of compensatory damages awarded to the plaintiff if the amount of compensatory damages is $100,000 or more; or

(b) Three hundred thousand dollars if the amount of compensatory damages awarded to the plaintiff is less than $100,000.

2.  The limitations on the amount of an award of exemplary or punitive damages prescribed in subsection 1 do not apply to an action brought against:

(a) A manufacturer, distributor or seller of a defective product;

(b) An insurer who acts in bad faith regarding its obligations to provide insurance coverage;

(c) A person for violating a state or federal law prohibiting discriminatory housing practices, if the law provides for a remedy of exemplary or punitive damages in excess of the limitations prescribed in subsection 1;

(d) A person for damages or an injury caused by the emission, disposal or spilling of a toxic, radioactive or hazardous material or waste; or

(e) A person for defamation.

3.  If punitive damages are claimed pursuant to this section, the trier of fact shall make a finding of whether such damages will be assessed. If such damages are to be assessed, a subsequent proceeding must be conducted before the same trier of fact to determine the amount of such damages to be assessed. The trier of fact shall make a finding of the amount to be assessed according to the provisions of this section. The findings required by this section, if made by a jury, must be made by special verdict along with any other required findings. The jury must not be instructed, or otherwise advised, of the limitations on the amount of an award of punitive damages prescribed in subsection 1.

4.  Evidence of the financial condition of the defendant is not admissible for the purpose of determining the amount of punitive damages to be assessed until the commencement of the subsequent proceeding to determine the amount of exemplary or punitive damages to be assessed.

5.  For the purposes of an action brought against an insurance company.

When purchasing insurance coverage for your motorcycle ALL riders are encouraged to purchase Medical Payments. Further, each rider should purchase the maximum limits for which their insurance company offers. Most insurance companies limit Med Pay coverage to twenty-five thousand dollars ($25,000.00) for motorcycles. Many riders are not familiar with medical payments coverage and how such coverage benefits them in the event of and accident. However, the concept of Med Pay Coverage is simple. If you are involved in a motorcycle accident and have Med Pay Coverage of ten thousand dollars ($10,000.00) then your insurance carrier will pay up to ten thousand dollars ($10,000.00) of your medical bills related to the accident. Even if you have health insurance, most health insurance policies require the insured to make co-payments.

To pay these co-payments you can have your Med Pay provider (Auto Policy) directly send you the ten thousand dollars ($10,000.00) to pay your co-payment. Further if you do not have health insurance, again your Med Pay policy will pay up to your limits. More importantly, Medical Payments coverage is a “no-fault” policy. Thus when coverage is triggered, your insurance carrier cannot raise you rates or drop you from coverage. In the event of a single vehicle motorcycle accident the insured is still covered. So next time you talk to your motorcycle insurance agent ask about Medical Payments Coverage.

In 2003, the Nevada Legislature created political campaign entitled, “Keep our doctors in Nevada.”  The argument was that due to medical malpractice insurance premium increases local doctors could no longer practice affordable medicine due to the escalating costs.   The Victim’s rights groups and Personal injury attorneys banned together to unsuccessfully fight this tort reform legislation.  In essence the laws were reformed to:

1.) Limit the amount of pain and suffering a victim could collect to $350,000; therefore a person who dies or is paralyzed gets only $350,000!

2.) Limit the attorney fees to discourage attorneys from taking good cases from 40-50% to 15% on amounts over $600,000.

3.) Reducing the time Victims have to sue from 2 years to 1 year; aka, the statute of limitations.

4.) Medical expenses and Wage losses (economic damages) are not part of the pain and suffering cap and are unlimited, but truly these costs are just reimbursement of costs and wages the client/victim would have made or need to make.

What these rules have done is effectively stopped good lawyers from taking good cases.  Unless a person understands why, they may disagree with this author.  We need to fight for just and fairer laws.  A laymen’s perspective may ask, “attorney fees seem like a lot for $15% over $600,000?”  Not true.  When personal injury lawyers decide whether they want to take a case they ask themselves:  Does the case have merit?  Is the case Just? Can we prove it?  Is the case worth it from a business standpoint? The official rule for attorney fees is: Forty percent of the first $50,000 awarded; 33 and one-third percent of the next $50,000; 25 percent of the next $500,000 awarded; and a cap of 15 percent for awards of $600,000 or more.

The first question is usually easy:  we simply ask another medical expert their opinion on the facts of the case and whether the doctor deviated from the standard of care.  Often, this is even easier if the facts indicate an obvious error. The next question is whether the case is Just?  This is simply a balancing test on whether the victim was so injured as to justify the need of litigation over the need to sue a caregiver.  Some cases are so minor that they don’t warrant a lawsuit.  The third question is a matter of proof.  Cancer victims often cry fowl that the doctor misdiagnosed the disease leading to a death.  These can be tough to prove:  would you have survived if they had diagnosed properly? –Tough question that borders on speculation, which is a fundamental basis, the law does not allow.  Can you prove that the doctor accidentally cut your bowels during the stomach operation leading to your infection, or was that an appendicitis issue?

THE BUSINESS DECISION:  RISK VS. REWARD

Also, a legal practitioner will always ask, “Does this case make economic sense?”  Most people don’t understand the personal injury lawyers take the case and front all the expenses necessary to perform a jury trial.  This is very, very expensive.  Each doctor that testifies, as an expert must be paid.  The victim usually can’t afford this, so the attorney’s front these costs.  Why would an attorney represent a victim that has suffered immensely, but the case is too expensive and the risk of losing is great.  They won’t.  Remember that law firms are businesses that employ many persons.  A firm can’t take too many losses or they wont operate; hence the art of case selection.  These laws create public policy; in essence, reducing the number of attorneys taking cases, which in turn, means they only take the most horrific, easy to prove, profitable cases.  The rest of the maimed public is stuck.

THE ULTIMATE RECOVERY

I don’t think anyone besides doctors will argue that $350,000 cap is fair.  There are just too many horrific injuries that justify more compensation.  This is just an idiotic law.  Forget attorneys, forget doctors, this is about injured victims—people who have been harmed and in essence are tortured for life.

THE TIME FRAME:  1 YEAR

This is also a horrible law.  One year is not enough time to realize you are injured due to malpractice, you must interview possible attorneys, collect all the necessary medical records which are normally stored in other states, hire an expert (which will also be located out of state), and finally, allow for a party to grieve.   If you lose a loved one, litigation and suing is not on the forefront of someone’s mind.  One year is simply too soon to be the cut-off.

THE OTHER TIME FRAME:  NOT MORE THAN THREE YEARS

If you have a sponge left in your abdomen after surgery, but it is not recognized for five years, you can’t sue!  Is that fair? No.  Enough said.

Our law firm handles mal-practice cases because we believe the system needs experience attorneys to protect the public from harmful doctors and to encourage proper medical treatment.  No one is above the law.  Contact  Benson and Bingham if you have been injured through no fault of your own.

Accidents in Las Vegas have a pecking order with respect to which insurance policy must cover first, second, third, fourth, etc.   The owner’s policy of the at-fault party is the primary coverage.  Then, the driver’s policy may be utilized if the damages warrant.  Often the coverage of the victim’s insurance (1^st party coverage) would then extend benefits through the UM benefits (under-insurance coverage).  Then finally, if the driver and owner were different persons, and the driver possessed a separate policy that policy may also be utilized if the damages were great enough.

When multiple “at-fault” drivers cause an accident, the law of joint and several liability kicks in, whereby the victim can collect 100% of his/her damages from either party.  So, if a party has minimal coverage and the other at fault has commercial limits, the commercial limits policy would then be on the hook for the total damages.   Skilled personal injury attorneys will attempt this approach.  If there are no concurrent tortfeasors, then each of the separate acts may be argued as one with hopes that the events appear to be in concert.

The Nevada Supreme Court recently outlined procedural rules for collection on insurance policies for damages in a car accident.  A passenger who is injured by two concurrently negligent drivers may recover from both the permissive driver’s single insurance policy liability benefits based on the permissive driver’s negligence and under-insured motorist benefits based on the other driver’s underinsured status.

The anti-stacking rules set forth in the prior Nevada Cases are not implicated when a passenger whose injuries are attributable to two jointly negligent drivers, exhausts the liability limits of the permissive driver’s policy without satisfying his or her damages, and seeks recovery under the permissive driver’s underinsured motorist policy based on the other diver’s underinsured status.  This ruling came down in the case of Delgado v. American Family Insurance Group, 125 Nev. Adv. Op. No. 44., October 1, 2009.

If you need a Las Vegas Personal Injury Attorney that understands complex insurance laws call the office of Benson & Bingham:  702-382-9797.

In recent years, most contracts have become very inclusive of arbitration provisions to mandate arbitration over a jury trial.  Arguably, this takes away from victims rights to have a jury decide the damages–something our fore fathers likely never envisioned changing.  But, it has.  The reality is that arbitration clauses limit a person’s ability to become litigious.  Real estate contracts now have provisions that mandate arbitration.  Often, the rules of evidence are relaxed, the arbitration is quickly performed, the costs are less, and it is final in its’ adjudication.  Sadly, this wave of alternative dispute resolution has certainly kept the court rooms from being inundated with contractual disputes, but has also taken such a strong right away: the right of your neighbors to hear your dispute on the merits and make an appropriate value decision.

In the context of automobile insurance cases, binding arbitration is mandated in certain policies.  Why?  It saves the carrier money to arbitrate a matter over litigating it in court.  It also takes away the “jackpot” that juries can sometimes award–even when justice requires.  This is problematic.  Often, the 1st party coverage does nothing to discuss terms of the arbitration.  It requires you arbitrate, but leaves out the important and sometimes crucial terms.  Thus, an attorney should argue, that the missing terms must be interpreted to fall under regular court rules.

For example, if a policy of insurance mentions an arbitration clause, but fails to state whether costs and attorney fees would be available to the prevailing party then the default would be the state civil procedure rules as they apply in a regular jury trial.  Also, who must pay for the arbitration?  Is this something the person seeking the justice must pay, or must the defendant pay or must they split the costs?  The costs can run up to many thousands of dollars depending on the complexity of the arbitration.

More and more people are now finding these sneaking clauses in their doctor’s offices.  I had a client who went in for an elective medical procedure (plastic surgery) and noticed this odd statement that she is is giving up her rights to a jury trial if she signed the bottom line.   Other people are now finding this adhesion provision in the contract that they must accept if they want the necessary service.  Some would argue this is merely an insurance requirement by the mal-practice carrier, and it just might be.  Sadly, our own congress set out to limit everyones’ rights by voting for a Federal Arbitration Act that severely limits a person’s contractual rights.  If you have been involved in an accident or are now facing an arbitration Call Benson & Bingham today.

The concerted acts of multiple defendants create liability amongst each defendant.  The issue becomes the amount of damages each must pay as a result of the negligence they each caused.  Under Nevada Law, joint tortfeasers are liable 100% if they are liable for 1% of the damages.

What this means in layman’s terms is simply that if a victim is injured as a result of multiple causes (e.g. more than one at fault party:  two rifle shots, two cars crashing, etc.) the law will not distinguish who must pay the victim as the victim may recover all damages from either party.  Thus, a deep insurance pocket or business entity may be on the hook for the whole amount of the damages depending on a jury’s determination of any fault.  So, if a jury determines the concerted efforts of multiple parties contributed to an accident, the Plaintiff need only prove either party did something wrong.  This equates to getting 100% of the damages.

NRS 41.141 When comparative negligence not bar to recovery; jury instructions; liability of multiple defendants.

1.  In any action to recover damages for death or injury to persons or for injury to property in which comparative negligence is asserted as a defense, the comparative negligence of the plaintiff or his decedent does not bar a recovery if that negligence was not greater than the negligence or gross negligence of the parties to the action against whom recovery is sought.

2.  In those cases, the judge shall instruct the jury that:

(a) The plaintiff may not recover if his comparative negligence or that of his decedent is greater than the negligence of the defendant or the combined negligence of multiple defendants.

(b) If the jury determines the plaintiff is entitled to recover, it shall return:

(1) By general verdict the total amount of damages the plaintiff would be entitled to recover without regard to his comparative negligence; and

(2) A special verdict indicating the percentage of negligence attributable to each party remaining in the action.

3.  If a defendant in such an action settles with the plaintiff before the entry of judgment, the comparative negligence of that defendant and the amount of the settlement must not thereafter be admitted into evidence nor considered by the jury. The judge shall deduct the amount of the settlement from the net sum otherwise recoverable by the plaintiff pursuant to the general and special verdicts.

4.  Where recovery is allowed against more than one defendant in such an action, except as otherwise provided in subsection 5, each defendant is severally liable to the plaintiff only for that portion of the judgment which represents the percentage of negligence attributable to him.

5.  This section does not affect the joint and several liability, if any, of the defendants in an action based upon:

(a) Strict liability;

(b) An intentional tort;

(c) The emission, disposal or spillage of a toxic or hazardous substance;

(d) The concerted acts of the defendants; or

(e) An injury to any person or property resulting from a product which is manufactured, distributed, sold or used in this State.

6.  As used in this section:

(a) “Concerted acts of the defendants” does not include negligent acts committed by providers of health care while working together to provide treatment to a patient.

(b) “Provider of health care” has the meaning ascribed to it in NRS 629.031.

(Added to NRS by 1973, 1722; A 1979, 1356; 1987, 1697; 1989, 72)

Geico claims they handle more motorcycle liability claims;  Progressive claims they handle more liability insurance for motorcycle drivers–who is correct?  State Farm Insurance claims they are the largest insurer, and Allstate claims, “your in good hands.”  Farmer’s Insurance uses colossus, a computer program that systematically regulates the payment of claims based on a preprogrammed schedule of lower values on personal injury claims and ,” According to memos from Farmers Insurance, Dietz and his colleagues’ salaries and bonuses were tied to practices that encouraged the delay, denial, underpayment and forced litigation of claims.”

American Family seems to insure everyone, and Nevada General seems to deny everyone.  USAA insurance covers most of the military families.  Century Insurance is last century in terms of adjusting.  Travelers insurance, Liberty Mutual Insurance, Great West Insurance, and Nationwide Insurance, Aetna, Hartford Insurance, Metlife Insurance, CSAA and AAA, Chubb Insurance, Esurance, Prudential, Safeco, Federated Insurance, Sentry, Fireman’s fund, AM FAM, Zenith, CNA, Foremost, Allied, Kemper, Horace Mann, Infinity, Cigna, Mendota, Country Insurance, Conseco Insurance, are all insurance companies that Benson & Bingham fight with!

OPINION 42 – 6/24/09 An attorney may hold medical payment coverage monies in trust until the end of case and negotiate the medical provider’s fee before paying the medical provider. Most attorneys fail to put the clients first and maintain this rule. Did your attorney help you or hurt you with this issue?

For more information on Medical Expense Payments and Your Rights In Nevada.