Before Justices Douglas, Gibbons, and Parraguirre. Opinion by Justice Parraguirre.
In an action for personal injury against a taxi company, discovery revealed that medical malpractice may have aggravated the injuries. As such the taxi company filed a third-party complaint against the doctor, claiming equitable indemnity and contribution. The district court dismissed the complaint and the taxi company appealed. On appeal, the Court addressed the requirements for equitable indemnity and contribution, in general, and a contribution claim based on medical practice, in particular. The Court restated that one requirement for equitable indemnity is that the two tortfeasors have a pre-existing legal relationship or duty and affirmed the district court’s dismissal of the equitable indemnity claim. However, the Court made clear that a claim for contribution against a joint tortfeasor is permissible under NRCP 14(a) even if the complaining party has not yet made a payment of damages. Finally, the Court held that a claim for contribution based on medical malpractice must comply with the statutory requirement that a complaint for medical malpractice be supported by an expert affidavit. As such, the Court reversed the district court’s dismissal with prejudice and remanded with instructions to dismiss the action without prejudice. Affirmed in part, reversed in part, and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
Thursday, May 31, 2012
In re State Engineer Ruling No. 5823, 128 Nev. Adv. Op. 22 (May 31, 2012)
Before the Court En Banc. Opinion by Justice Pickering.
In this appeal from the district court’s order dismissing a petition for judicial review of the State Engineer’s ruling in a water rights action, the Court considered whether the district court properly interpreted NRS 533.450(1) when it dismissed the petition for lack of subject matter jurisdiction. NRS 533.450(1) affords judicial review “in the nature of an appeal” to “[a]ny person feeling aggrieved by any order or decision of the State [Water] Engineer . . . affecting the person’s interests.” The appeal “must be initiated in the proper court of the county in which the matters affected or a portion thereof are situated.” Id. In this case, the Court considered what the statute means by “matters affected.” This matter arose when the State Engineer approved two new groundwater appropriations in a basin that lies wholly in Lyon County, and Appellants filed an appeal in neighboring Churchill County, where they have an interest that they argued would be depleted based on the new appropriations. The district court held that the appeal must be filed in Lyon County based on its interpretation of the statute. The Nevada Supreme Court interpreted the statute as contemplating more than one possible venue, and explained that using the phrase “matters affected,” refers not just to an applicant’s interests but to a protester’s as well. Thus, the Court held that the district courts in either Churchill County or Lyon County may be proper venues for the appeals under NRS 533.450. Reversed and remanded. (Brent Keele, Associate in the Reno office of McDonald Carano Wilson.)
In this appeal from the district court’s order dismissing a petition for judicial review of the State Engineer’s ruling in a water rights action, the Court considered whether the district court properly interpreted NRS 533.450(1) when it dismissed the petition for lack of subject matter jurisdiction. NRS 533.450(1) affords judicial review “in the nature of an appeal” to “[a]ny person feeling aggrieved by any order or decision of the State [Water] Engineer . . . affecting the person’s interests.” The appeal “must be initiated in the proper court of the county in which the matters affected or a portion thereof are situated.” Id. In this case, the Court considered what the statute means by “matters affected.” This matter arose when the State Engineer approved two new groundwater appropriations in a basin that lies wholly in Lyon County, and Appellants filed an appeal in neighboring Churchill County, where they have an interest that they argued would be depleted based on the new appropriations. The district court held that the appeal must be filed in Lyon County based on its interpretation of the statute. The Nevada Supreme Court interpreted the statute as contemplating more than one possible venue, and explained that using the phrase “matters affected,” refers not just to an applicant’s interests but to a protester’s as well. Thus, the Court held that the district courts in either Churchill County or Lyon County may be proper venues for the appeals under NRS 533.450. Reversed and remanded. (Brent Keele, Associate in the Reno office of McDonald Carano Wilson.)
Winn v. Sunrise Hospital & Medical Center, 128 Nev. Adv. Op. 23 (May 31, 2012)
Before the Court En Banc. Opinion by Justice Parraguirre.
In this appeal of an order granting summary judgment, the Nevada Supreme Court addressed three issues related to the medical malpractice statute of limitations contained in NRS 41A.097. The statute of limitations states that an action for medical malpractice must be commenced within three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs earlier. First, the Court ruled that the date on which the one-year discovery period begins to run is ordinarily a question of fact to be decided by the jury. However, the date may be determined as a matter of law when the evidence irrefutably demonstrates that a plaintiff had facts before him that would have led an ordinarily prudent person to investigate further into whether an injury may have been caused by someone’s negligence. Second, the Court determined that the statute of limitations tolls when a defendant intentionally withholds information that was material, meaning the information would have hindered a reasonably diligent plaintiff from timely filing suit. Third, one defendant’s concealment cannot serve as a basis for tolling the limitations period as to defendants who played no role in the concealment. In this case, factual issues remained related to whether the limitations period should have been tolled as a result of a hospital’s failure to produce records. Regardless, the Court refused to impute that failure to the individual doctors because they were not involved in the request for such records. Affirmed in part, vacated in part, and remanded. (Joseph P. Schrage, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this appeal of an order granting summary judgment, the Nevada Supreme Court addressed three issues related to the medical malpractice statute of limitations contained in NRS 41A.097. The statute of limitations states that an action for medical malpractice must be commenced within three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs earlier. First, the Court ruled that the date on which the one-year discovery period begins to run is ordinarily a question of fact to be decided by the jury. However, the date may be determined as a matter of law when the evidence irrefutably demonstrates that a plaintiff had facts before him that would have led an ordinarily prudent person to investigate further into whether an injury may have been caused by someone’s negligence. Second, the Court determined that the statute of limitations tolls when a defendant intentionally withholds information that was material, meaning the information would have hindered a reasonably diligent plaintiff from timely filing suit. Third, one defendant’s concealment cannot serve as a basis for tolling the limitations period as to defendants who played no role in the concealment. In this case, factual issues remained related to whether the limitations period should have been tolled as a result of a hospital’s failure to produce records. Regardless, the Court refused to impute that failure to the individual doctors because they were not involved in the request for such records. Affirmed in part, vacated in part, and remanded. (Joseph P. Schrage, Associate in the Las Vegas office of McDonald Carano Wilson.)
Thursday, May 17, 2012
Club Vista Financial Servs. v. Dist. Ct., 128 Nev. Adv. Op. 21 (May 17, 2012)
Before the Court En Banc (Justice Parraguirre recused). Opinion by Chief Justice Cherry.
In this petition for writ of mandamus or prohibition, the Court considered whether, and under what circumstances, a party to a lawsuit may depose an opposing party’s former attorney. The Court discussed the inherent policy concerns surrounding the deposition of a party’s attorney and noted that many jurisdictions disfavor the practice of taking the deposition of a party’s attorney. As such, because of the potential to create an undue burden, the Court concluded that such depositions should only be permitted in “exceptionally limited circumstances.” Therefore, the Court adopted a stringent framework established by the Eighth Circuit in Shelton v. American Motors Corp., 805 F. 2d 1323 (8th Cir. 1986) rather than a flexible standard as proposed by the real parties in interest. The Court held that a party seeking to depose opposing counsel has the burden of proving that: (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information is relevant and nonprivileged; (3) and the information is crucial to the preparation of the case. The Court also indicated that the district court should consider whether the attorney is a percipient witness to the facts giving rise to the complaint. In light of these considerations, the Court directed the district court to consider whether the deposition would be permissible when analyzed under the Shelton framework. Petition granted in part. (Amanda M. Perach, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this petition for writ of mandamus or prohibition, the Court considered whether, and under what circumstances, a party to a lawsuit may depose an opposing party’s former attorney. The Court discussed the inherent policy concerns surrounding the deposition of a party’s attorney and noted that many jurisdictions disfavor the practice of taking the deposition of a party’s attorney. As such, because of the potential to create an undue burden, the Court concluded that such depositions should only be permitted in “exceptionally limited circumstances.” Therefore, the Court adopted a stringent framework established by the Eighth Circuit in Shelton v. American Motors Corp., 805 F. 2d 1323 (8th Cir. 1986) rather than a flexible standard as proposed by the real parties in interest. The Court held that a party seeking to depose opposing counsel has the burden of proving that: (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information is relevant and nonprivileged; (3) and the information is crucial to the preparation of the case. The Court also indicated that the district court should consider whether the attorney is a percipient witness to the facts giving rise to the complaint. In light of these considerations, the Court directed the district court to consider whether the deposition would be permissible when analyzed under the Shelton framework. Petition granted in part. (Amanda M. Perach, Associate in the Las Vegas office of McDonald Carano Wilson.)
Thursday, May 3, 2012
Schettler v. Ralron Capital Corp., 128 Nev. Adv. Op. 20 (May 3, 2012)
Before Justices Douglas, Hardesty and Parraguirre. Opinion by Justice Hardesty.
In an appeal from a district court’s grant of summary judgment against a borrower who allegedly defaulted on a commercial loan, the Court considered whether the borrower’s failure to follow the administrative claims process set forth in the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), 12 U.S.C. § 1821, barred the borrower from asserting defenses or affirmative defenses to a complaint filed by an entity (the Successor Bank) that obtained the right to enforce the loan documents after the lender was placed into receivership by the FDIC. After reviewing FIRREA’s purpose and requirements, the Court rejected the borrower’s argument that FIRREA did not apply since the FDIC failed to mail the required notice because the borrower’s due process rights to notice were satisfied by the type of notice he received. The Court also rejected the borrower’s argument that FIRREA did not apply since the district court proceedings involved the Successor Bank rather than the FDIC based on authority from several federal courts stating that a successor to a failed bank is entitled to benefit from FIRREA’s jurisdictional bar with respect to claims related to acts or omissions of the failed bank. Finally, the Court analyzed whether FIRREA’s claims process applied to defenses or affirmative defenses. In answering that question in the negative, the Court examined judicial decisions from other jurisdictions that held, among other things, that (1) FIRREA makes no mention of defenses, affirmative defenses, or potential affirmative defenses, which are not claims, but responses to claims; (2) barring a party from presenting defenses and affirmative defenses in response to a collections complaint would unconstitutionally deprive that party of the opportunity to be heard; and (3) because a party is unable to know what claims, if any, might be brought against it in the future, it would be impossible for that party to submit hypothetical defenses to such claims to FIRREA’s administrative claims procedure. For those reasons, the district court erred by failing to consider the borrower’s affirmative defenses to the Successor Bank’s claims. Reversed and remanded. (Patrick J. Murch, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
In an appeal from a district court’s grant of summary judgment against a borrower who allegedly defaulted on a commercial loan, the Court considered whether the borrower’s failure to follow the administrative claims process set forth in the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), 12 U.S.C. § 1821, barred the borrower from asserting defenses or affirmative defenses to a complaint filed by an entity (the Successor Bank) that obtained the right to enforce the loan documents after the lender was placed into receivership by the FDIC. After reviewing FIRREA’s purpose and requirements, the Court rejected the borrower’s argument that FIRREA did not apply since the FDIC failed to mail the required notice because the borrower’s due process rights to notice were satisfied by the type of notice he received. The Court also rejected the borrower’s argument that FIRREA did not apply since the district court proceedings involved the Successor Bank rather than the FDIC based on authority from several federal courts stating that a successor to a failed bank is entitled to benefit from FIRREA’s jurisdictional bar with respect to claims related to acts or omissions of the failed bank. Finally, the Court analyzed whether FIRREA’s claims process applied to defenses or affirmative defenses. In answering that question in the negative, the Court examined judicial decisions from other jurisdictions that held, among other things, that (1) FIRREA makes no mention of defenses, affirmative defenses, or potential affirmative defenses, which are not claims, but responses to claims; (2) barring a party from presenting defenses and affirmative defenses in response to a collections complaint would unconstitutionally deprive that party of the opportunity to be heard; and (3) because a party is unable to know what claims, if any, might be brought against it in the future, it would be impossible for that party to submit hypothetical defenses to such claims to FIRREA’s administrative claims procedure. For those reasons, the district court erred by failing to consider the borrower’s affirmative defenses to the Successor Bank’s claims. Reversed and remanded. (Patrick J. Murch, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
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