Thursday, December 29, 2011

Fourth St. Place v. Travelers Indem. Co., 127 Nev. Adv. Op. 86 (December 29, 2011)

Before Justices Douglas, Hardesty, and Parraguirre. Opinion by Justice Douglas.
In this appeal from an order granting summary judgment in an insurance coverage action, the Court interpreted coverage limitations and exclusions in an “all risks” policy. Appellant, the owner of a building in Las Vegas, had roof repairs done to the building. Before the repairs were completed, Las Vegas had an unexpected and substantial rainstorm that caused significant damage to the building. Respondent denied coverage because the policy limited coverage for damage caused by rain to circumstances where the roof first sustained damage by wind or hail and excluded damage caused by faulty workmanship. The Court defined “roof” as “sufficiently durable to meet its intended purpose: to cover and protect a building against weather-related risks that reasonably may be anticipated,” and held that tarps that were used as temporary protection of the roof only after the rain began did not fit within that definition. The Court further concluded that “faulty workmanship” was not ambiguous and included both faulty products and processes. Having rejected both arguments that the potential causes of damage were covered by the policy, the Court nonetheless considered and adopted the doctrine of efficient proximate cause, which allows for recovery under an insurance policy if a covered cause of loss is the predominant cause of the loss even if a non-covered cause contributed to the loss. Because none of the asserted causes of the damage were covered under the policy, the Court affirmed the district court’s order granting summary judgment to the insurance company. Affirmed. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)

In re Fontainebleau Las Vegas Holdings, 127 Nev. Adv. Op. 85 (December 29, 2011)

Before the Court en banc (Justice Pickering recused). Opinion by Justice Hardesty.
In this decision, the Nevada Supreme Court addressed whether a party can supplement the factual record when a question is certified to the Nevada Supreme Court by a federal court. In the appeal, respondents filed a supplemental appendix to refute the facts the certifying court provided to the Court. The Court concluded that its role under a certification pursuant to NRAP 5, as the answering court, is simply to resolve the questions of law posed to it by the certifying court. In satisfying its obligation, the Court adopted the majority view that the answering court must accept the facts as provided by the certifying court and limit its analysis to applying the law to those facts. Therefore, while the Court may consider an appendix to get a better understanding of the underlying case, it will not examine supplemental materials for the purpose of contradicting the facts from the certifying court. Accordingly, the Court granted appellant’s motion to strike respondents’ supplemental appendix. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).

Munda v. Summerlin Life & Health Ins. Co., 127 Nev. Adv. Op. 83 (December 29, 2011)

Before the Court en banc (Justice Pickering recused). Opinion by Justice Douglas.
In contrast to the Court’s decision in Cervantes v. Health Plan of Nevada, 127 Nev. ___, ___ P.3d ___ (Adv. Op. No. 70, October 27, 2011), the Court in this appeal determined that ERISA did not preempt state law claims for negligence against a managed care organization (“MCO”) based on these factual circumstances. The question of preemption in this context depends upon the factual distinction between an MCO acting as an administrator of an ERISA plan and an MCO acting independently. Because this was an appeal of an order granting a motion to dismiss, the Court assumed the facts alleged in the complaint were true and held that the facts alleged indicated that the MCO was acting independently and therefore claims against it were not preempted by ERISA. Reversed and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)

Thursday, December 15, 2011

Sicor, Inc. v. Hutchison, 127 Nev. Adv. Op. 82 (December 15, 2011)

Before Justices Saitta, Douglas and Hardesty. Opinion by Justice Hardesty.
In a companion case to Sicor v. Sacks, the Court considered whether the district court properly denied a post-voir dire motion to change venue because of adverse pretrial publicity in the ongoing endoscopy cases in Las Vegas. The Court expanded the analysis it set forth in National Collegiate Ass’n v. Tarkanian, 113 Nev. 610, 939 P.2d 1049 (1997), regarding a pre-voir dire motion to change venue based on pre-trial publicity by adding four factors relevant to post-voir dire motions to the six-factor test established in Tarkanian. The ten factors for consideration in a post-voir dire motion to change venue based upon pre-trial publicity are: “(1) the nature and extent of pretrial publicity; (2) the size of the community; (3) the nature and gravity of the lawsuit; (4) the status of the plaintiff and defendant in the community; [ ] (5) the existence of political overtones in the case. . . . (6) the amount of time that separated the release of the publicity and the trial. . . . (7) the care used and the difficulty encountered in selecting a jury, (8) the familiarity of potential jurors with pretrial publicity, (9) the effect of the publicity on the jurors, and (10) the challenges exercised by the party seeking a change of venue.” In applying the ten-factor test, the Court stressed that it is not necessary that the empaneled jury be completely ignorant of the underlying case but that, instead, the jury must be capable of being impartial. The Court then specifically applied the ten factors to the endoscopy jury selection process and concluded that the empaneled jury in this case was sufficiently impartial to provide a reasonable likelihood of a fair trial, despite a fair amount of pretrial publicity and some knowledge of the case among many of the jurors. Accordingly, the Court affirmed the district court’s denial of Sicor’s motion for a change of venue. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).

Sicor, Inc. v. Sacks, 127 Nev. Adv. Op. 81 (December 15, 2011)

Before Justices Saitta, Gibbons and Hardesty. Opinion by Justice Hardesty.
In this appeal from a district court order deferring a final ruling on a change in venue motion based on adverse pretrial publicity until after jury selection began, the Court considered whether such deferral constituted a final, appealable decision pursuant to NRAP 3A(b)(6). The Court concluded that the deferral did not constitute a final, appealable decision and that the district court’s decision to wait to finally rule on the motion to change venue until after voir dire and attempting to empanel a jury complied with the weight of authority. The defendant retains its right to an immediate appeal pursuant to NRAP 3A(b)(6) after a final decision on the motion to change venue if the defendant believes a change of venue is still proper. Accordingly, the Court dismissed the appeal as premature. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).

Holt v. Regional Trustee Services Corp., 127 Nev. Adv. Op. 80 (December 15, 2011)

Before the Court en banc. Opinion by Justice Pickering.
In this appeal, the Court determined that a lender who has been denied a certificate of good faith in the residential foreclosure mediation process can restart the foreclosure process by filing a new notice of default and rescinding the previous notice. Appellants argued that an order denying a certificate of good faith permanently precluded a new action to foreclose. The Court noted that sanctions could be imposed to wipe out the lender’s security, without specifically deciding the issue. Since no such sanctions had been imposed in this case and the doctrines of issue and claim preclusion were not satisfied by the first proceedings, the Court affirmed the district court’s order allowing a second foreclosure mediation to proceed. Affirmed. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)

Reno Newspapers v. Gibbons, 127 Nev. Adv. Op. 79 (December 15, 2011)

Before the Court en banc. Opinion by Justice Saitta.
In this appeal, the Nevada Supreme Court considered two issues: (1) whether a state entity must, after the commencement of litigation, provide a log of records it withholds from a requesting party pursuant to the Nevada Public Records Act (NPRA) and (2) prior to the commencement of litigation, what information about non-disclosed records must the state entity provide to a requesting party pursuant to the NPRA. To resolve the first issue, the Court reviewed its prior jurisprudence regarding the framework for analyzing claims of confidentiality pursuant to the NPRA, concluding that there is (1) a presumption that government-generated records are open to review, (2) limits on disclosure must be based on a broad balancing of the interests involved unless there is a statutory provision on point, and (3) the state entity cannot meet its burden of showing that it should not disclose a record without a particularized showing or by expressing hypothetical concerns with disclosure. In light of this framework, the Court held that a requesting party is generally entitled to a log, similar to a Vaughn index as utilized for Freedom of Information Act requests under federal law, unless the state entity demonstrates that the requesting party has sufficient information to meaningfully contest the entity’s claim of confidentiality. The Court did not expressly state what must be in the log, but concluded that it should generally contain a factual description of each record withheld and a specific explanation for nondisclosure. As to the second issue, the Court held that the withholding state entity need not provide a log prior to the commencement of litigation because the NPRA requires only notice of nondisclosure and a citation to specific authority for withholding the record(s). General citations to caselaw do not satisfy the NPRA and informal internal e-mail policies are not sufficient grounds upon which to deny a records request. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).