Before Justices Saitta, Hardesty and Parraguirre. Opinion by Justice Hardesty.
In this appeal, the Nevada Supreme Court considered the proper method of calculating permanent partial disability (PPD) compensation for a subsequent work-related injury when the impairment rating for the subsequent injury is based upon a different edition of the applicable guide than were prior injuries. Nevada’s Division of Industrial Relations requires PPD awards to be based on a percentage of whole person impairment as determined by a rating physician, who makes the calculations using the current edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment. The employee, Dale Blake, injured his back during the course and scope of his employment in 2004, and had previously suffered four previous industrial accidents involving back injuries as recently as 1995. In the 1995 injury, Blake’s PPD benefits were determined by using the second edition of the AMA Guide, resulting in a determination of a 14-percent impairment. In 2003, the Legislature mandated that the fifth edition of the AMA Guides be used, and therefore for his 2004 injury, Blake’s benefits were determined by using the fifth edition of the AMA Guides resulting in a 40-percent whole person impairment, and then subtracting the previous 14-percent, and concluding that Blake’s benefits should be calculated based on a net 26-percent increase. Based on an objection by the carrier/employer, the doctor recalculated Blake’s benefits by estimating the percentage of impairment from the 1995 injury using the 2003 AMA Guide, rather than simply accepting the previous estimation based on the earlier Guide, resulting in a benefits calculation based on a net 17-percent increase. Blake challenged this decision, and ultimately the district court ruled on a petition for judicial review that the prior percentage of disability should be deducted from the current disability percentage regardless of which edition of the AMA Guide was used to calculate the prior disability determination. The Court disagreed with this approach, holding that the plain language of NRS 616C.490(9) requires that the calculations for prior and subsequent injuries be reconciled by using the current edition of the AMA Guides to determine the percentages of the current and previous disabilities, and then subtracting the percentage from the previous impairment from the percentage from the current impairment to calculate the award for the current injury. Applying this formula to this case, the Court ruled that the second calculation resulting in a net 17-percent increase was the correct one. The Court further held that to the extent NAC 616C.490 allows for computation of the PPD compensation without reconciliation of the different editions of the AMA Guides, it conflicts with NRS 616C.490 and is invalid. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson LLP).
Wednesday, November 23, 2011
Estate of Smith v. Mahoney’s Silver Nugget, 127 Nev. Adv. Op. 76 (November 23, 2011)
Before Justices Saitta, Hardesty, and Parraguirre. Opinion by Justice Parraguirre.
In this appeal from the grant of summary judgment in a wrongful death case, the Court reviewed the process for determining the legal duty of an innkeeper when a person is injured or killed by a third party on the innkeeper’s premises under NRS 651.015. The deceased, Smith, punched another patron of the Silver Nugget and a third patron fatally shot Smith in retaliation. Resolving an apparent conflict between NRS 651.015 and the Court’s decision in Doud v. Las Vegas Hilton Corp., 109 Nev. 1096 (1993), the Court concluded that NRS 651.015 requires a district court to determine duty as a matter of law by considering the foreseeability of the wrongful act and a jury must determine proximate cause by considering the foreseeability of the injury or consequences of the wrongful act. The Court then addressed the two methods of determining the foreseeability of a wrongful act set forth in NRS 651.015: (1) failure to exercise due care (2) prior similar acts. The “failure to exercise due care” approach allows for consideration of the totality of the circumstances as applied in Doud; it allows a Court to impose a duty despite the absence of prior similar wrongful acts if the “innkeeper’s outright failure to take reasonable precautions to protect its patrons” increased the likelihood of the wrongful act. The Court also attempted to clarify the extent of similarity required to establish a duty based on prior similar acts. Noting that the Legislature intended courts to have some discretion in considering the similarity of wrongful acts, the Court stated that whether acts are similar is, at least in part, determined by looking at whether the acts implicated similar security concerns. Because there had been no prior security incidents involving serious injury or concealed handguns at the Silver Nugget, the Court affirmed the district court’s conclusion that the shooting here was not foreseeable in a manner that created a duty on the part of the Silver Nugget. Affirmed. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson).
In this appeal from the grant of summary judgment in a wrongful death case, the Court reviewed the process for determining the legal duty of an innkeeper when a person is injured or killed by a third party on the innkeeper’s premises under NRS 651.015. The deceased, Smith, punched another patron of the Silver Nugget and a third patron fatally shot Smith in retaliation. Resolving an apparent conflict between NRS 651.015 and the Court’s decision in Doud v. Las Vegas Hilton Corp., 109 Nev. 1096 (1993), the Court concluded that NRS 651.015 requires a district court to determine duty as a matter of law by considering the foreseeability of the wrongful act and a jury must determine proximate cause by considering the foreseeability of the injury or consequences of the wrongful act. The Court then addressed the two methods of determining the foreseeability of a wrongful act set forth in NRS 651.015: (1) failure to exercise due care (2) prior similar acts. The “failure to exercise due care” approach allows for consideration of the totality of the circumstances as applied in Doud; it allows a Court to impose a duty despite the absence of prior similar wrongful acts if the “innkeeper’s outright failure to take reasonable precautions to protect its patrons” increased the likelihood of the wrongful act. The Court also attempted to clarify the extent of similarity required to establish a duty based on prior similar acts. Noting that the Legislature intended courts to have some discretion in considering the similarity of wrongful acts, the Court stated that whether acts are similar is, at least in part, determined by looking at whether the acts implicated similar security concerns. Because there had been no prior security incidents involving serious injury or concealed handguns at the Silver Nugget, the Court affirmed the district court’s conclusion that the shooting here was not foreseeable in a manner that created a duty on the part of the Silver Nugget. Affirmed. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson).
Friedman v. Dist. Ct., 127 Nev. Adv. Op. 75 (November 23, 2011)
Before the Court en banc. Opinion by Justice Pickering.
In this petition for a writ of mandamus and/or prohibition, the Nevada Supreme Court considered whether, under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a Nevada family court could assert jurisdiction over a child custody dispute- pursuant to an agreement between the parties-when all parties have relocated to another state. First, the Court determined that, under the UCCJEA, exclusive, continuing jurisdiction (UCCJEA Jurisdiction) is extinguished when “the child, the child’s parents and any person acting as a parent do not presently reside in the State.” Next, the Court considered whether the parents’ agreement to maintain jurisdiction in Nevada, despite their relocation to California, would trump the UCCJEA. The Court concluded that the UCCJEA is the exclusive jurisdictional basis for child custody determinations and no agreement by the parties may override the jurisdiction conferred by the UCCJEA. However, the Court noted that such agreements may be reviewed by a court with UCCJEA jurisdiction and that court may then decline jurisdiction, deferring it to a more convenient/appropriate forum. Lastly, the Court rejected the argument that the parties were judicially or equitably estopped from contesting Nevada’s jurisdiction because, as the Court emphasized, under the UCCJEA, subject matter jurisdiction may not be conferred by a court with no authority to act. Any estoppel arguments must only be asserted to the court with UCCJEA jurisdiction. In a dissent joined by Justice Cherry, Justice Gibbons maintained that the issuance of such extraordinary writs is only permissible when there is not “a plain, speedy, and adequate remedy at law.” Justice Gibbons contended that because the California court has not agreed to jurisdiction and an agreement conferring jurisdiction to Nevada exists, extraordinary relief is not warranted. Justice Cherry wrote separately to add that the legislature should reevaluate this statute to ensure that parties can stipulate to jurisdiction in the future. Petition granted. (Amanda M. Hogeg, Associate in the Las Vegas office of McDonald Carano Wilson).
In this petition for a writ of mandamus and/or prohibition, the Nevada Supreme Court considered whether, under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a Nevada family court could assert jurisdiction over a child custody dispute- pursuant to an agreement between the parties-when all parties have relocated to another state. First, the Court determined that, under the UCCJEA, exclusive, continuing jurisdiction (UCCJEA Jurisdiction) is extinguished when “the child, the child’s parents and any person acting as a parent do not presently reside in the State.” Next, the Court considered whether the parents’ agreement to maintain jurisdiction in Nevada, despite their relocation to California, would trump the UCCJEA. The Court concluded that the UCCJEA is the exclusive jurisdictional basis for child custody determinations and no agreement by the parties may override the jurisdiction conferred by the UCCJEA. However, the Court noted that such agreements may be reviewed by a court with UCCJEA jurisdiction and that court may then decline jurisdiction, deferring it to a more convenient/appropriate forum. Lastly, the Court rejected the argument that the parties were judicially or equitably estopped from contesting Nevada’s jurisdiction because, as the Court emphasized, under the UCCJEA, subject matter jurisdiction may not be conferred by a court with no authority to act. Any estoppel arguments must only be asserted to the court with UCCJEA jurisdiction. In a dissent joined by Justice Cherry, Justice Gibbons maintained that the issuance of such extraordinary writs is only permissible when there is not “a plain, speedy, and adequate remedy at law.” Justice Gibbons contended that because the California court has not agreed to jurisdiction and an agreement conferring jurisdiction to Nevada exists, extraordinary relief is not warranted. Justice Cherry wrote separately to add that the legislature should reevaluate this statute to ensure that parties can stipulate to jurisdiction in the future. Petition granted. (Amanda M. Hogeg, Associate in the Las Vegas office of McDonald Carano Wilson).
Klasch v. Walgreen Co., 127 Nev. Adv. Op. 74 (November 23, 2011)
Before the Court en banc. Opinion by Justice Parraguirre.
The Nevada Supreme Court, for the first time, adopted the learned-intermediary doctrine in the context of a pharmacist/customer relationship. The doctrine holds that a pharmacist has no duty to warn of a prescribed medication’s general risks. The doctrine originally held a drug manufacturer immune from liability to a patient as long as the manufacturer provided the relevant safety information to the patient’s doctor. In a pharmacist/customer relationship, the justification is that the doctor is in a better position to warn the customer of a medication’s general risks. The doctrine prevents the pharmacist from second-guessing a doctor’s judgment in an effort to avoid his or her own liability. However, the pharmacist is not shielded from liability when he or she has knowledge of a customer-specific risk. When the pharmacist has knowledge of such a risk, he or she has a duty to use reasonable care in warning the customer or notifying the prescribing doctor of the risk. In this case, a customer died after being prescribed a sulfa-based medication, despite the pharmacist’s knowledge of the customer’s sulfa allergy. The Court ruled that the sulfa allergy was not the generalized risk for which the learned-intermediary doctrine shields a pharmacist from liability. The pharmacist had knowledge of the customer-specific risk, and factual issues existed regarding whether the pharmacist breached her duty to warn the customer or notify the customer’s doctor. (Joseph P. Schrage, Associate in the Las Vegas office of McDonald Carano Wilson).
The Nevada Supreme Court, for the first time, adopted the learned-intermediary doctrine in the context of a pharmacist/customer relationship. The doctrine holds that a pharmacist has no duty to warn of a prescribed medication’s general risks. The doctrine originally held a drug manufacturer immune from liability to a patient as long as the manufacturer provided the relevant safety information to the patient’s doctor. In a pharmacist/customer relationship, the justification is that the doctor is in a better position to warn the customer of a medication’s general risks. The doctrine prevents the pharmacist from second-guessing a doctor’s judgment in an effort to avoid his or her own liability. However, the pharmacist is not shielded from liability when he or she has knowledge of a customer-specific risk. When the pharmacist has knowledge of such a risk, he or she has a duty to use reasonable care in warning the customer or notifying the prescribing doctor of the risk. In this case, a customer died after being prescribed a sulfa-based medication, despite the pharmacist’s knowledge of the customer’s sulfa allergy. The Court ruled that the sulfa allergy was not the generalized risk for which the learned-intermediary doctrine shields a pharmacist from liability. The pharmacist had knowledge of the customer-specific risk, and factual issues existed regarding whether the pharmacist breached her duty to warn the customer or notify the customer’s doctor. (Joseph P. Schrage, Associate in the Las Vegas office of McDonald Carano Wilson).
Chateau Vegas Wine, Inc. v. Southern Wine and Spirits of America, Inc., 127 Nev. Adv. Op. 73 (November 23, 2011)
Before the Court en banc (Justice Parraguirre recused). Opinion by Justice Saitta.
In this appeal from a business court order granting a permanent injunction, the Nevada Supreme Court affirmed the district court’s order enjoining Chateau Vegas and Transat Trade (together “Chateau Vegas”) from importing and selling certain Bordeaux wines and French champagnes in Nevada. Southern Wine entered into certain agreements that established it as the exclusive importer of certain Bordeaux wines and French champagnes in NV. Southern Wine filed the agreements with the Nevada Department of Taxation. In 2002, Southern Wine initiated an action against Chateau Vegas after it learned Chateau Vegas was unlawfully importing and selling French champagnes, and later Bordeaux wines, in Nevada in violation of Southern Wine’s exclusive trade rights pursuant to NRS Chapter 369. Chateau Vegas did not have agreements with the producers of wines and champagne, and the producers’ designated agents, for the importation and sale in Nevada. On appeal, Chateau Vegas argued that Southern Wine failed to strictly comply with the requirements of NRS 369.386 because certain documents were not filed with the Department of Taxation. Chateau Vegas argued that the district court improperly granted injunctive relief because Southern Wine’s exclusive trade rights never vested when it failed to comply with the statute. The Court reviewed the requirements of NRS 369.386 and 369.486 and reiterated that when a statute is clear and unambiguous, the Court gives effect to the plain and ordinary meaning of the words and the Court does not resort to the rules of construction. In finding that Southern Wine, and the related parties to the agreements, complied with the statute’s requirements, the Court noted that NRS 369.386(3) requires a liquor producer acting through an agent to file a “written designation,” and the agent a “written acceptance” of that designation. The Court stated that the statute does not specify a particular filing procedure and noted that, in broad terms, the “written designation” and “written acceptance” must be filed. The Court determined that Southern Wine’s filing of the agreements with the Department of Taxation was sufficient, and declined to read additional requirements into the statutory language. The Court further ruled that injunctive relief was the proper remedy because certain acts by Chateau Vegas (i.e. obtaining the products from other sources and failing to ensure the quality of the products) undermined Southern Wine’s reputation as the primary importer of the liquor in question. The Court affirmed the district court’s finding that Southern Wine established irreparable harm necessary for injunctive relief. Affirmed. (Kristen Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson).
In this appeal from a business court order granting a permanent injunction, the Nevada Supreme Court affirmed the district court’s order enjoining Chateau Vegas and Transat Trade (together “Chateau Vegas”) from importing and selling certain Bordeaux wines and French champagnes in Nevada. Southern Wine entered into certain agreements that established it as the exclusive importer of certain Bordeaux wines and French champagnes in NV. Southern Wine filed the agreements with the Nevada Department of Taxation. In 2002, Southern Wine initiated an action against Chateau Vegas after it learned Chateau Vegas was unlawfully importing and selling French champagnes, and later Bordeaux wines, in Nevada in violation of Southern Wine’s exclusive trade rights pursuant to NRS Chapter 369. Chateau Vegas did not have agreements with the producers of wines and champagne, and the producers’ designated agents, for the importation and sale in Nevada. On appeal, Chateau Vegas argued that Southern Wine failed to strictly comply with the requirements of NRS 369.386 because certain documents were not filed with the Department of Taxation. Chateau Vegas argued that the district court improperly granted injunctive relief because Southern Wine’s exclusive trade rights never vested when it failed to comply with the statute. The Court reviewed the requirements of NRS 369.386 and 369.486 and reiterated that when a statute is clear and unambiguous, the Court gives effect to the plain and ordinary meaning of the words and the Court does not resort to the rules of construction. In finding that Southern Wine, and the related parties to the agreements, complied with the statute’s requirements, the Court noted that NRS 369.386(3) requires a liquor producer acting through an agent to file a “written designation,” and the agent a “written acceptance” of that designation. The Court stated that the statute does not specify a particular filing procedure and noted that, in broad terms, the “written designation” and “written acceptance” must be filed. The Court determined that Southern Wine’s filing of the agreements with the Department of Taxation was sufficient, and declined to read additional requirements into the statutory language. The Court further ruled that injunctive relief was the proper remedy because certain acts by Chateau Vegas (i.e. obtaining the products from other sources and failing to ensure the quality of the products) undermined Southern Wine’s reputation as the primary importer of the liquor in question. The Court affirmed the district court’s finding that Southern Wine established irreparable harm necessary for injunctive relief. Affirmed. (Kristen Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson).
Choy v. Ameristar Casinos, Inc., 127 Nev. Adv. Op. 78 (Nov. 23, 2011)
Before Justices Douglas, Hardesty and Parraguire. Opinion by Justice Douglas.
In this appeal, the Nevada Supreme Court considered the procedure required by NRCP 56(f) for the party opposing a motion for summary judgment to request the denial or continuance of the motion in order to obtain additional affidavits or conduct further discovery. The Court confirmed the plain language of the Rule, finding that Rule 56(f) requires that the party opposing summary judgment provide an affidavit stating the reasons why denial or continuance of the motion for summary judgment is necessary to allow the opposing party to obtain further affidavits or discovery. The Court further found that a mere request for a continuance contained within an opposition to a motion for summary judgment was not sufficient to meet the unequivocal affidavit requirement. The Court affirmed the lower court’s grant of respondent’s motion for summary judgment. (Amanda C. Yen, Associate in the Las Vegas office of McDonald Carano Wilson).
In this appeal, the Nevada Supreme Court considered the procedure required by NRCP 56(f) for the party opposing a motion for summary judgment to request the denial or continuance of the motion in order to obtain additional affidavits or conduct further discovery. The Court confirmed the plain language of the Rule, finding that Rule 56(f) requires that the party opposing summary judgment provide an affidavit stating the reasons why denial or continuance of the motion for summary judgment is necessary to allow the opposing party to obtain further affidavits or discovery. The Court further found that a mere request for a continuance contained within an opposition to a motion for summary judgment was not sufficient to meet the unequivocal affidavit requirement. The Court affirmed the lower court’s grant of respondent’s motion for summary judgment. (Amanda C. Yen, Associate in the Las Vegas office of McDonald Carano Wilson).
Thursday, November 10, 2011
Canarelli v. Dist. Ct., 127 Nev. Adv. Op. 72 (November 10, 2011)
Before the Court en banc. Opinion by Hardesty.
In this petition for a writ of mandamus, the Nevada Supreme Court considered whether a district court may appoint an unwilling director trustee of a dissolved corporation to defend post-dissolution claims against the corporation that arose after the conclusion of the winding-up process. The Court first determined that the continued legal existence of a corporation for the purpose of adjudicating a post-dissolution claim against it is separate from the obligations of its directors trustees to wind up the corporate affairs. With that premise in mind, the Court examined Nevada’s statutory corporate dissolution scheme and concluded that, while claimants may bring post-dissolution claims, directors trustees have no duty to defend against those claims once the directors trustees have completed winding up the affairs of the corporation. In a footnote, the Court recognized the difficulty presented by the apparent conflict between this decision and Beazer Homes Nevada, Inc. v. Dist. Ct., 120 Nev. 575, 584, 97 P.3d 1132, 1138 (2004), which allowed post-dissolution claims to be brought against corporations if the claim was brought within the relevant statute of limitations or statute of repose. The Court stated that the conflict must be resolved by the legislature and was not a proper subject for determination by the courts. Petition granted. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).
In this petition for a writ of mandamus, the Nevada Supreme Court considered whether a district court may appoint an unwilling director trustee of a dissolved corporation to defend post-dissolution claims against the corporation that arose after the conclusion of the winding-up process. The Court first determined that the continued legal existence of a corporation for the purpose of adjudicating a post-dissolution claim against it is separate from the obligations of its directors trustees to wind up the corporate affairs. With that premise in mind, the Court examined Nevada’s statutory corporate dissolution scheme and concluded that, while claimants may bring post-dissolution claims, directors trustees have no duty to defend against those claims once the directors trustees have completed winding up the affairs of the corporation. In a footnote, the Court recognized the difficulty presented by the apparent conflict between this decision and Beazer Homes Nevada, Inc. v. Dist. Ct., 120 Nev. 575, 584, 97 P.3d 1132, 1138 (2004), which allowed post-dissolution claims to be brought against corporations if the claim was brought within the relevant statute of limitations or statute of repose. The Court stated that the conflict must be resolved by the legislature and was not a proper subject for determination by the courts. Petition granted. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).
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