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.

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.

Using a cell phone, Eating and drinking, Talking to passengers, Grooming, Reading, including maps, Using a PDA or navigation system, Watching a video, Changing the radio station, CD, or Mp3 player are all major causes of accidents because they are examples of distracted driving.   Wouldn’t be a shame if your airline pilot decided to text while landing the airplane and missed the runway?

Well, the fixed attention required to operate machinery is and should be a mandatory choice for the driver, but we are all human and we can actually think and do two things at once.  Society appears to be at ease with a certain level of distractions while driving:  the radio, billboards, etc, all take your eyes off the road, but we tend to allow certain distractions for the sake of functioning.   Imagine no billboards on the freeways?  Not likely to ever happen, but certainly, at least one auto accident has occurred because someone looked too long at the billboard and didn’t realize traffic had stopped in front.  Should we sue the billboard company for creating the distraction, or the county for allowing the billboard?  Likely not given our tolerance for certain levels of distractions.  If you have been the victim of distractive driving call Benson & Bingham today 702-382-9797.

Below are some statistics from the U.S. department of Transportation:

In 2008, there were a total of 34,017 fatal crashes in which 37,261 individuals were killed.

In 2008, 5,870 people were killed in crashes involving driver distraction (16% of total fatalities).

The proportion of drivers reportedly distracted at the time of the fatal crashes has increased from 8 percent in 2004 to 11 percent in 2008.

The under-20 age group had the highest proportion of distracted drivers involved in fatal crashes (16%). The age group with the next greatest proportion of distracted drivers was the 20- to-29-year-old age group (12%).

Motorcyclists and drivers of light trucks had the greatest percentage of total drivers reported as distracted at the time of the fatal crashes (12%).

An estimated 21 percent of 1,630,000 injury crashes were reported to have involved distracted driving.

Driving while using a cell phone reduces the amount of brain activity associated with driving by 37 percent. (Source: Carnegie Mellon)

Nearly 6,000 people died in 2008 in crashes involving a distracted driver, and more than half a million were injured. (NHTSA)

The younger, inexperienced drivers under 20 years old have the highest proportion of distraction-related fatal crashes.

Drivers who use hand-held devices are four times as likely to get into crashes serious enough to injure themselves. (Source: Insurance Institute for Highway Safety)

Using a cell phone use while driving, whether it’s hand-held or hands-free, delays a driver’s reactions as much as having a blood alcohol concentration at the legal limit of .08 percent. (Source: University of Utah)

Ever thought you may need a texting attorney?  Well, better stated, how about a personal injury lawyer who handles accident cases caused by driver’s who text–yes, you may need us.  Nevada continues to allow drivers to text (this article written June of 2010), and the notion of texting while driving should be illegal.  Connecticut recently banned texting while driving and for good reason as many accidents are caused by distracted driving.  Nevada laws continue to play catchup as opposed to leader when it comes to safety.  Our brother state of California seems to lead the way with smart legislation–then us Nevadans finally follow suit.  The following states banned mobile hand held devices:

• California
• Connecticut
• District of Columbia
• New Jersey
• New York
• Oregon
• Washington
• Virgin Islands

The States Below have taken the early steps to prevent accidents by enacting laws banning texting while driving.

• Alaska
• Arkansas
• California
• Colorado
• Connecticut
• District of Columbia
• Guam
• Illinois
• Iowa
• Kansas
• Kentucky
• Louisiana
• Maryland
• Michigan
• Minnesota
• Nebraska
• New Hampshire
• New Jersey
• New York
• North Carolina
• Oregon
• Rhode Island
• Tennessee
• Utah
• Virginia
• Vermont
• Washington
• Wisconsin
• Wyoming

Someday, Nevada will stop texting, but first they will need to ban cell phone use while driving.  We all know it is unsafe to text while driving–It is not the same as adjusting the volume to the radio, or sipping that cup of coffee, as your attention is locked on to the phone for very long period of time.  Hand held cell phone use seems to be driver dependent; in other words, some drivers have the ability to multi-task better than others.  Personally, I find cell phones a must when driving, but they do create distractive driving.   As technology advances, the integration of communicating while driving will likely be streamlined and made safer by the use of the vehicle’s computer systems.   I look forward to those advances.

Another bus accident occurred in Las Vegas when five people were hospitalized with non-serious injuries after a tour bus collided with a sedan near the Tropicana  and Interstate 15 interchange on Tuesday morning, June 1, 2010, the Nevada Highway Patrol said. The Las Vegas-based tour bus headed to Hollywood was traveling west on Tropicana turning onto the I-15 southbound interchange when it collided with a sedan headed east on Tropicana about 6:48 a.m., trooper Joseph Fackrell said.  If you were on this bus and need help, please contact Benson & Bingham today.  702-382-9797