Las Vegas Injury & Accident Attorney Blog

Recently, A Nevada Jury awarded $500 Million in punitive damages to a couple infected with Hepatitis from an Endoscopy center.  It is well known the facility and its doctors, primarily Dr. Desai, reused Propofol vials (an anesthestic) on patients mixing the syringes and needles between patients cross contaminating.  It is well known the Doctors did not have the money to compensate the victims who have genetically linked their disease to the outbreak at the facility.   The jury awarded $5.1 Million in compensatory and then awarded the 1/2 billion dollar sum to punish the maker of the drug.  The convincing argument was the 50ml vials should not have been sold to centers that had minimal use for such large doses of medication.

This lawsuit was based on the Strict Products Liability Cause of Action that is a very strong action, if the Plaintiff’s can prove the product failed in its warnings, was defectively designed, or was mis-manufactured in some fashion.  The key here was the defectively designed containers that “encouraged” multi uses for business/profit reasons–allegedly.  The vials do have qualified uses in drip systems and other longer sleep patient procedures.  So, in essence, the company was punished by the jury (in this case Teva and Baxter Pharmaceuticals) for this “encouragement” in that they knew doctors may be reusing the vials and they helped in some fashion by making such a “large” dosage.  Whether or not personal injury lawyers are correct in their allegations, the jury believed the arguments and found not only that these companies were liable, but that they should be punished for their bad behavior.  Given that the combined annual revenue of these companies exceeds $13 billion, even the $500,000,000 is a slap on the wrist–but it would get any accountant’s attention.   So, one must contemplate whether the underlying case was justified.    To understand how a jury gets to this, one must understand that Negligence is not a bar to strict products liability.

The law is founded on the assumption that manufacturers need to make safe products–very safe products, or face severe ramifications for bad design, bad warnings, or bad product.  If a product is misused this is a defense to products liability.  And, arguably the doctors misused the “single” dose vials.  The jury did not believe this argument because they were not allowed to hear it!    The jury was barred from hearing testimony that doctors misused the vials given that this “negligence” was not a factor in the products liability action.  While this author did not sit through the trial and hear all the relevant testimony, the point is clear that the case was tried as a products case, and the jury found that the manufacturer was liable for creating an unreasonably dangerous product.     The absurd response comes from those who compare this scenario to that of a car driver who car drives 100 mph but yet the roads only allow for 55mph.  Should we sue the car manufacturer for the drivers error when he crashes doing 100mph?  Another comparison is one to cough syrup.  It comes in 10 oz bottles.  The consumer is “warned” to only take 2 tablespoons (one ounce).  If a consumer drinks the whole bottle, should we then sue Robitussan or Vick’s Cough syrup because the consumer did not follow the instructions?  Well, the crazier thing here, is not only was warning not obeyed, it was a doctor who did not obey it…

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).

Nevada’s strict rule requiring an affidavit for medical mal-practice complaints is now even stricter.  The NV Supreme court declared that expert affidavits for the mal-practice of doctors now also applies to those corporations (e.g Hospitals and their nurses) for their respective negligent conduct.   The rule simply adds harshness to the already cut-throat rule that an affidavit must be supplied to any complaint or it is automatically dismissed.  Thus, if your assistant fails to apply a staple–the case is over.  Very ridiculous, but this is medical tort reform just as the doctors wanted it.  Way to go Nevada legislature!

Fierle v. Perez, 125 Nev. Adv. Op. No. 36 (Nov 19, 2009)1 MEDICAL MALPRACTICE, PROFESSIONAL NEGLIGENCE AND NRS 41A.071’S

EXPERT AFFIDAVIT REQUIREMENT

Summary

An appeal from the First Judicial District Court’s dismissal of medical malpractice and professional negligence claims against a physician, his professional medical corporation and several staff members for failure to attach an expert affidavit to their initial complaint.

Disposition/Outcome

District court’s judgment affirmed with regards to claims that required an affidavit, reversed and remanded with regards to claim that qualified under res ipsa loquitor exceptions.

Facts and Procedural History

Patricia Fierle (“Fierle”) was diagnosed in July 2005 with breast cancer and subsequently underwent a mastectomy. To facilitate ongoing chemotherapy, a catheter was inserted into her chest, the tip of which was meant to terminate in her subclavian vein. Chemotherapy drugs were to be injected into the vein through this catheter.

After the surgery, Fierle became a patient of Dr. Perez and his staff, including Melissa Mitchell (“Mitchell”), a registered nurse, and nurse practitioners Charmaine Cruet and Linda Lesperance. On Fierle’s third visit to Dr. Perez’ office, Mitchell administered chemotherapy. However, rather than in fusing in to the catheter, the medication infused into her tissue. This caused a subcutaneous burn known as an “extravasation.” According to Fierle, her complaints of discomfort at the time were not met with any treatment or attention.

The next day, after one of Dr. Perez’ nurses noticed redness and swelling on Fierle’s chest, she was referred to a radiologist. His tests revealed that the tip of the catheter was not in the vein, but coiled in her tissue. She then sought treatment from another doctor who referred her to Dr. Miercort. His opinion was that “negligent extravasation” had occurred and he referred her to U.C. Davis Medical Center. There, she was diagnosed with “severe extravasation of chemotherapy over the right shoulder and subclavian region.”

Mr. and Mrs. Fierle filed a complaint in district court on September 14, 2006. They claimed Mitchell was negligent in her administration of chemotherapy, Dr. Perez, Cruet and Lesperance were negligent in their training of Mitchell, loss of consortium and “Willful Failure to Provide Treatment and Constructive Fraud” against Dr. Perez and his professional medical corporation Jorge Perez M.D., Ltd. They later amended their complaint to include an affidavit from Dr. Miercort.

Dr. Perez, Jorge Perez M.D., Ltd., and Mitchell moved for dismissal of the Fierles’ complaint, citing failure to include an expert affidavit with the original complaint as required by

1 By Mark HesiakNRS 41A.071.2 They also moved to strike the amended complaint, relying on Nevada precedent that said a complaint filed under NRS 41A.071 without the expert affidavit is void ab initio and shall be dismissed.3 These motions were joined by Cruet and Lesperance. The district court granted both motions, finding that the complaints did not qualify for NRS 41A.100(1)(c)’s res ipsa loquitor exception. The Fierles’ motions under NRCP 52(b), 59(e) and 60(b) were also later denied. This appeal followed.

Discussion

Standard of Review

The district court’s dismissal was based on its interpretation of statutes. The Nevada Supreme Court reviews a district court’s statutory interpretation de novo.4

NRS 41A.071 applies to professional medical corporations

Under NRS 41A.071, an action for medical or dental malpractice must be accompanied by an affidavit from a medical expert who practices a type of medicine similar to that which forms the basis of the malpractice claim.5 NRS 41A.009 contains the following definition for medical malpractice: “the failure of a physician, hospital or employee of a hospital, in rendering services, to use reasonable care, skill or knowledge ordinarily used under similar circumstances.”6 The appellants argued that no affidavit is required under these statutes in a suit against a professional medical corporation.

While the definition of medical malpractice does not explicitly include professional medical corporations, the Court held that NRS 41A.071 requires expert affidavits be attached to any non res ipsa loquitor malpractice claim against such a corporation. “Professional Corporation” is defined in NRS Chapter 89, and under NRS 89.060 and 89.220, no statute can alter the personal liability of a physician in a medical malpractice claim.7 Harmonizing Chapters 41A and 89, the Court determined that the affidavit requirement applies to claims against professional medical corporations as well as physicians.

NRS 41A.071 applies to professional negligence claims

The Fierles’ also argued that the definition of medical malpractice only covers claims against Dr. Perez’. Therefore, the claims against the other respondents would be for professional negligence and would not require an affidavit as 41A.071 only addresses malpractice claims. The Court looked to resolve the ambiguity by looking to the intent of the initiatives passed in 2004 as NRS 41A.015 and 41A.017, which provided protections for professional negligence for providers of health care.

2 NEV. REV. STAT § 41A.017 (2007). 3 Washoe Med. Ctr. v. Dist. Court, 122 Nev. 1298, 1300, 148 P.3d 790, 792 (2006). 4 Beazer Homes Nevada, Inc. v. Dist. Court, 120 Nev.575, 579, 97 P.3d 1132, 1135 (2004); Keife v. Logan, 119 Nev. 372, 374, 75 P.3d 357, 359 (2003). 5 NEV. REV. STAT § 41A.017 (2007). 6 Id. § 41A.009 (2007). 7 Id. §§ 89.060, 89.220 (2007).

First, the Court noted that the definition of professional negligence in the statute is basically the same as medical malpractice. The intent of the statute was to give other providers of health care the same protection doctors received from the legislature in 2002.8 The Court also reasoned that a malpractice claim against a doctor is the same as a professional negligence claim. To make one of these claims subject to the affidavit requirement and not the other would defeat the intent of the legislature and the citizens of Nevada. It would provide a way around the requirement by calling a claim professional negligence instead of malpractice. Therefore, NRS 41A.071’s affidavit requirement extends to non-res ipsa loquitor professional negligence claims against providers of health care, whether doctors, nurses or nurse practicioners.

Claims based on res ipsa loquitor are not subject to the affidavit requirement

NRS 41A.100 provides res ipsa loquitor exceptions to the affidavit requirement in malpractice or professional negligence claims.9 The Court found its recent decision in Szydel v. Markman conclusive on the issue at hand.10 In Szydel, the court concluded that that the expert affidavit requirement does not apply when the malpractice action is based solely on the res ipsa loquitor doctrine.11 The Syzdel court further concluded that when a plaintiff files a res ipsa loquitor claim in conjunction with other medical malpractice claims that are not based upon the res ipsa loquitor doctrine, those other claims are still subject to the expert affidavit requirements of NRS 41A.071.12

Here, the negligent extravasation claim would fall under one of the listed exceptions. If a “provider of health care” causes a patient to suffer “an unintended burn caused by heat, radiation or chemicals… in the course of medical care,” or any of the other exceptions listed in the statute, no expert testimony or affidavit is required to establish negligence.13 Therefore, the Court allowed the claim against Mitchell to continue as she administered the medication.

A claim amended to include an affidavit will not relate back to the initial filing even if some of the claims do not require the affidavit

The appellants next argued that because some of their initial complaint did not require an affidavit, the amended filing could relate back and cure the initial deficiency. Here, the court followed precedent and determined that all claims under NRS 41A.071 that do not include an affidavit are void ab initio, and must be dismissed.14 The Court applied this rule even to situations where some claims survive because of lack of an affidavit requirement.

Conclusion

The Court concluded that, because under NRS Chapter 89, the establishment of a professional entity cannot alter the personal liability of a participant, NRS 41A.071’s affidavit

8 See 2004 General Election Sample Ballot, p. 12. 9 NEV. REV. STAT § 41A.100(1)(c) (2007). 10 Szydel v. Markman, 121 Nev. 453, 117 P.3d 200 (2005). 11 Id. at 454, 117 P.3d at 201. 12 Id. at 460, 117 P.3d at 205. 13 NEV. REV. STAT § 41A.100(1)(c) (2007); see also Szydel, 121 Nev. at 454, 117 P.3d at 201. 14 Washoe Med. Ctr., 122 Nev. at 1300, 148 P.3d at 792.

requirement applies to claims against professional medical corporations as well as individuals. The Court further concluded that the requirement extends to professional negligence claims against all providers of health care, nurse practitioners, nurses and doctors alike. However, the Court concluded that any claim that falls under the res ipsa loquitor exceptions listed in NRS 41A.100 may be filed without an affidavit as no expert testimony is needed to establish negligence. Finally, the Court concluded that a complaint filed containing some claims subject to the affidavit requirement and some that do not fall under 41A.071 cannot be cured by filing an amended complaint that includes the affidavits. Thus, all claims subject to NRS 41A.071 that are filed without the affidavits are void ab initio and must be dismissed. In accordance with these conclusions, the Court reversed in part and affirmed in part the district court’s order and remanded the case for further proceedings consistent with the opinion.

Concurrence in Part, Dissent in Part (Pickering, J.)

Justice Pickering agreed with the result the majority reached, but not with its reasoning. While medical malpractice is encompassed in the term “professional negligence,” the opposite is not true. As the amendments in 2004 did not change the words “medical malpractice” in 41A.071 to “professional negligence,” the requirement should not be extended to claims of professional negligence. However, in this case, Justice Pickering found the injection to be a part of the rendering of medical services by a physician as defined in the malpractice statute, regardless of the fact that it was a nurse who physically gave the drugs. Therefore, this action would be one for medical malpractice and require an affidavit.

Justice Pickering also believes that both the nurse and the physician with the duty to supervise are subject to the res ipsa loquitor exception. The injection was given by the nurse under the doctor’s supervision, and therefore the remand should be for Dr. Perez and Mitchell for the negligent extravasation.

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.

NRCP 68 and NRS 17.115 are the governing rules for Offers of Judgments as they relate to prevailing parties.  These rules are extremely important for Las Vegas personal injury lawyers who litigate cases in Nevada.  A failure to properly submit an Offer of Judgment can cost your client dearly in attorney fees and costs.  Normally, costs are awarded to the prevailing party in a lawsuit.  The award of attorney fees, however, are governed under the rules of offers of judgment.  An offer of judgment (OOJ) can be submitted anytime after a party is served.  There are factors known as “Beatty Factors” that control specifics of the fairness of the OOJ; for example, the timing of the OOJ, and the fairness of the other parties knowledge of the facts so that they could actually make a reasonable assessment of the risk.  The failure of accepting an offer of judgment can cost the losing party thousands in attorney fees.

In the Estate of Miller, 125 Nevada Adv. Op. No. 42 September 24, 2009, the court ruled that judgment on Appeal can qualify as a “more favorable judgment” for purposes of the fee shifting provisions of the NRCP 68.  It also rules that appellate fees are recoverable, and that those pro se persons who represent themselves and later hire an attorney can get those fees awarded for the attorney who defended or prosecuted the case.

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.

Two principle fundamentals in a winning a civil case are: 1. Having good facts, and 2. Having someone who can deliver those facts with an eloquent presentation in a logical and simple manner.  When someone claims they “have a great case”, that usually equates to ” I have great facts.”   And great facts are the key to a winning case.  If you have bad facts, then a good lawyer will argue the good law with hopes that the law is stronger than the less than favorable facts.

The perfect lawyer is hard to find, and likely, there is not one out there;  there are lawyers who attempt to be perfect however.  The undefeated lawyer is one who either does not take chances in life, has an ego problem, or is simply just too scared to lose;  quite frankly, I would notwant that undefeated lawyer anyway because he only takes cases with excellent facts which makes his job much easier.  Most often in law, I have found that persons in the greatest need of a good lawyer are those persons with decent or poor facts.  Facts are those things that occur in an incident, or items that can be inferred by logical deduction or human conclusion.

For example, if two cars collide in an intersection and both drivers claim they had a green light; there are no eye-witnesses, and both think the other ran a red light.  If both suffer injury, how does one prove either part was at fault for the vehicle accident?  It’s tough.  Under Nevada law, this scenario would likely end in a 50/50 jury verdict, as neither party could prove who did what.  Of course this analogy draws the inference that everything was equal in the facts:  that both drivers were equally credible, that neither driver had a criminal record involving deceit, the traffic light patterns did not indicate who may have been at fault, that skid marks did not play a role, that neither party was under the influence or intoxicated, that perception reaction time could not be calculated, that the visual perception of each driver was unobstructed, that neither driver was on his cell phone, that each driver was not in a hurry, etc, etc.

The point should be clear that one who is given simple, yet unconvincing facts, must do a proper investigation, be creative in his assumptions, and deliver those points effectively.  Good Facts and Good Lawyering are keys to success in a personal injury matter.

In Nevada the statute of limitations is two years on most tort actions.  There are, however, different rules that govern specific tort actions, and therefore a consultation with an experienced personal injury lawyer should always be had.   In Medical mal-practice actions, the limitations period has been reduced to 1 year.   Claims involving minor children is extended to one year after the child’s 18th birthday, but many reasons exist to prosecute the case before the time period expires.   Nevada law also has some exceptions to the statute of limitations periods as outlined by Nevada Law.  Please see below.  If you have a question regarding the time period in which you have to file a personal injury lawsuit, call Benson & Bingham today.

In a wrongful death case, the expiration of an adult heir’s SOL does not affect the distinct SOL afforded a minor heir.  See, Parker v. Chrysler Motors Corp., 88 Nev. 560, 502 P.2d 111 (Nev., 1972) – [quoting] Each heir has a separate relational interest in the life of the deceased, and damages are determined according to those separate interests. The mere fact that the judgment, if one is recovered, should be in a lump sum, Wells, Inc. v. Shoemake, 64 Nev. 57, 73, 177 P.2d 451 (1947), does not destroy separability since either the heirs, or the court upon proper application, may apportion the award.  It follows, therefore, that a defense, good against the claim of one heir, is not fatal to the others, any more than a settlement by one could bar the rights of all.  It is equally clear that the running of the statute of limitations is suspended during the period of their minority. NRS 11.250(1), (3).

“Insanity” tolling of the SOL per NRS 11.250 does not apply only to instances of “insanity” in the traditional sense, but also applies when someone has “an inability to manage one’s affairs.”  See, Butler ex rel. Biller v. Bayer, 168 P.3d 1055 (Nev., 2007) – [quoting] [FN] 23 … because Butler’s injuries rendered him “insane,” NRS 11.250 tolled the applicable statute of limitations, indicating that Butler’s claims against Smith were not time barred.  See, Smith By and Through Smith v. City of Reno, 580 F.Supp. 591, 592 (D.Nev.1984)  (interpreting “insane” as used in NRS 11.250 “to include a mental disability resulting in the inability to manage one’s affairs”).

An allegation of fraud or estoppel which arguably had the effect of causing plaintiff to refrain from filing suit is sufficient to raise a question of fact (for the jury) which defeats summary judgment on SOL grounds.  See, Harrison v. Rodriguez, 701 P.2d 1015, 101 Nev. 297 (Nev., 1985) – [quoting] Cynthia filed suit alleging negligence against Rodriguez on February 8, 1983.  Rodriguez moved for summary judgment on the ground that the statute of limitations had run.  The motion was granted.

Ronald Harrison, Cynthia’s father, alleged in his deposition that agents of Farmers made certain statements to him, to the effect that Farmers would pay “all medical bills.”  We assume these statements were in fact made, since “we must accept as true all evidence favorable to the party against whom the judgment was rendered.”  Stone v. Mission Bay Mortgage Co., 99 Nev. 802, 804, 672 P.2d 629, 630.  Additionally, “in evaluating the propriety of a summary judgment, the evidence will be reviewed in the light most favorable to the party against whom summary judgment was rendered.”  Hampton v. Washoe County, 99 Nev. 819, 822, 672 P.2d 640, 641 (1983).  The intent with which the statements were made is an issue of fact for the jury to resolve.  If the jury were to find that the statements were made with the intent to mislead Harrison as to the total amount Farmers would pay, or to cause him to refrain from filing suit, such an intent could give rise to an estoppel to assert the statute of limitations as a defense.  Therefore, it cannot be said that there is no genuine issue of material fact and that Rodriguez is entitled to judgment as a matter of law.

Rodriguez contends that since Harrison’s complaint showed on its face that the statute of limitations had run, Harrison is precluded from raising circumstances which might give rise to an estoppel, since such circumstances were not pleaded. We do not agree.

NRCP 8(d) states, in relevant part: “[A]verments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.”  Rodriguez’s answer sets up the statute of limitations as a defense.  No responsive pleading is required or permitted in answer to this defense; therefore, it is taken as denied or avoided.  Even though the running of the statutory period stands admitted in the summary judgment proceedings, issues of fact on estoppel and perhaps fraud remain.  Summary judgment is not proper under such a set of circumstances; consequently, the case is reversed and remanded.

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.