Before the Court En Banc. Opinion by Justice Hardesty.
In this appeal, the Court considered whether the collateral source rule operated to exclude evidence of California workers' compensation payments received by a California employee involved in an accident in Nevada. Reversing and remanding, the Court determined that evidence of the actual amount of workers' compensation benefits paid should have been admitted to the jury pursuant to NRS 616C.215, which permits the admission of such evidence in limited circumstances. Although NRS 616C.215 permits the admission of evidence regarding workers' compensation payments to a jury in certain circumstances provided that a clarifying jury instruction is given, the district court granted a motion in limine finding that the statute did not apply because the respondent received her worker's compensation pursuant to California's workers' compensation scheme and not Nevada's workers’ compensation scheme. Reversing, the Court held that the district court's narrow reading of NRS 616C.215 as applying to only Nevada workers' compensation benefits would defeat the statute's purpose of avoiding confusion to the jury about the payment and nature of workers' compensation benefits in cases in which those benefits have been paid under another state's laws. The Court found no logical reason to treat benefits received pursuant to another state's workers' compensation scheme any differently than benefits received from a Nevada employer. Therefore, in a trial governed by Nevada law, the workers' compensation payments made to an injured employee must be admitted as evidence and the proper instruction regarding the jury's consideration of those payments must be given. Additionally, although the Court specifically ordered briefing to determine whether a reduction in the cost of medical services based on a relationship with an insurance company, a medical “write-down”, was a benefit for which evidence would be barred by the collateral source rule, the majority held that because NRS 616C.215 specifically allows evidence of the benefits actually paid they did not need to address the issue of medical write-downs generally. Justice Gibbons, in a concurring opinion with which Justice Cherry joined, would reach the issue and hold that the collateral source rule bars evidence of medical write-downs. Reversed and Remanded. (Amanda C. Yen, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
Thursday, June 28, 2012
Physicians Insurance Co. v. Williams, 128 Nev. Adv. Op. 30 (June 28, 2012)
Before Justices Cherry, Gibbons, and Pickering. Opinion by Justice Pickering.
In this appeal, the Court interpreted the notice terms of a claims-made-and-reported medical malpractice insurance policy (the “Policy”) to determine whether the insurer, Physicians Insurance Company of Wisconsin, Inc. d.b.a PIC Wisconsin (“PIC”), had timely notice of a claim made against the insured, Dr. Hamid Ahmadi, D.D.S. (“Dr. Ahmadi”), during the policy period. The Policy had a retroactive date of April 13, 1998 and, through renewals, its coverage extended to April 14, 2004. PIC was sued by a patient of Dr. Ahmadi seeking coverage under the Policy after Dr. Ahmadi used cocaine to anesthetize the patient, who then sideswiped a residential gas meter with his work cement truck, failed a drug test, and was fired from his employment. The District Court determined that “constructive” notice of a claim had been provided to PIC based on information that had been provided to PIC “anecdotally,” including through news reports, investigations into claims made on another PIC policy by Dr. Ahmadi relating to an alleged burglary, and an order suspending Dr. Ahmadi’s license. The Court reversed the District Court’s decision holding that the terms of the Policy required that the claim be reported to PIC within the policy period, and that without “actual” notice of the claim pursuant to such provision, there is no coverage for the claim under the Policy. The Court also rejected the interpretation that the Policy’s definition of “Claim” allowed for “constructive” notice of a claim, but rather PIC must be given “specific information about a specific wrongful act and consequent injury to a patient . . . more in the way of formal contact between the insurer and the insured.” Reversed and remanded. (David J. Stoft, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this appeal, the Court interpreted the notice terms of a claims-made-and-reported medical malpractice insurance policy (the “Policy”) to determine whether the insurer, Physicians Insurance Company of Wisconsin, Inc. d.b.a PIC Wisconsin (“PIC”), had timely notice of a claim made against the insured, Dr. Hamid Ahmadi, D.D.S. (“Dr. Ahmadi”), during the policy period. The Policy had a retroactive date of April 13, 1998 and, through renewals, its coverage extended to April 14, 2004. PIC was sued by a patient of Dr. Ahmadi seeking coverage under the Policy after Dr. Ahmadi used cocaine to anesthetize the patient, who then sideswiped a residential gas meter with his work cement truck, failed a drug test, and was fired from his employment. The District Court determined that “constructive” notice of a claim had been provided to PIC based on information that had been provided to PIC “anecdotally,” including through news reports, investigations into claims made on another PIC policy by Dr. Ahmadi relating to an alleged burglary, and an order suspending Dr. Ahmadi’s license. The Court reversed the District Court’s decision holding that the terms of the Policy required that the claim be reported to PIC within the policy period, and that without “actual” notice of the claim pursuant to such provision, there is no coverage for the claim under the Policy. The Court also rejected the interpretation that the Policy’s definition of “Claim” allowed for “constructive” notice of a claim, but rather PIC must be given “specific information about a specific wrongful act and consequent injury to a patient . . . more in the way of formal contact between the insurer and the insured.” Reversed and remanded. (David J. Stoft, Associate in the Las Vegas office of McDonald Carano Wilson.)
Choy v. Ameristar Casinos, Inc., 128 Nev. Adv. Op. 29 (June 28, 2012)
Before the Court En Banc. Opinion by Justice Douglas.
Appellant Paul Choy sought en banc reconsideration of the Court’s earlier opinion in Choy v. Ameristar Casinos, Inc., 127 Nev. Adv. Op. 78 (Nov. 23, 2011), in which the Court held that Choy had failed to substantially comply with NRCP 56(f)’s requirement that a party opposing a motion for summary judgment and seeking a denial or continuance of the motion in order to conduct further discovery must provide an affidavit giving the reasons why the party cannot present “facts essential to justify the party’s opposition.” In denying the petition for reconsideration, the Court confirmed that parties must substantially comply with NRCP 56(f)’s affidavit requirement and specifically disapproved of the holding in Halimi v. Blacketor, 105 Nev. 105, 106, 770 P.2d 531, 531 (1989) to the extent it is inconsistent with the text of NRCP 56(f) and the Court’s holding in Choy. Petition for Reconsideration denied. (Jessica Woelfel, Associate in the Reno office of McDonald Carano Wilson, LLP.)
Appellant Paul Choy sought en banc reconsideration of the Court’s earlier opinion in Choy v. Ameristar Casinos, Inc., 127 Nev. Adv. Op. 78 (Nov. 23, 2011), in which the Court held that Choy had failed to substantially comply with NRCP 56(f)’s requirement that a party opposing a motion for summary judgment and seeking a denial or continuance of the motion in order to conduct further discovery must provide an affidavit giving the reasons why the party cannot present “facts essential to justify the party’s opposition.” In denying the petition for reconsideration, the Court confirmed that parties must substantially comply with NRCP 56(f)’s affidavit requirement and specifically disapproved of the holding in Halimi v. Blacketor, 105 Nev. 105, 106, 770 P.2d 531, 531 (1989) to the extent it is inconsistent with the text of NRCP 56(f) and the Court’s holding in Choy. Petition for Reconsideration denied. (Jessica Woelfel, Associate in the Reno office of McDonald Carano Wilson, LLP.)
Thursday, June 14, 2012
Davis v. Beling, 128 Nev. Adv. Op. 28 (June 14, 2012)
Before Justices Saitta, Hardesty and Parraguirre. Opinion by Justice Saitta.
This action arose from violations of NRS Chapter 645, which governs the duties of real estate professionals in real estate transactions. First addressing an evidentiary issue, the Court held that an offer to settle a dispute is not admissible to prove the failure to mitigate damages because the failure to mitigate goes to the amount of the claim, a use of such evidence specifically barred by NRS 48.105. The Court next concluded that NRS 645.251, which provides that a real estate licensee need not “comply with any principles of common law that may otherwise apply to any of the duties of the licensee as set forth in NRS 645.252, 645.253 and 645.254,” does not bar all common law claims against real estate professionals but prohibits common law claims for conduct governed by those statutes. As such, NRS 645.251 prevents suits against real estate professionals for fraudulent concealment where the duty to disclose is governed by NRS 645.252-645.254. The exclusive remedy for such failures to disclose is a cause of action for breach of the statutory duty. In contrast, a broker may be held liable under common law for an agent’s failure to disclose because supervisory liability is not conduct covered by NRS 645.252-645.254. Next, the Court addressed the proper measure of damages for a breach of the statutory duty to disclose. Based on the language of NRS 645.257, which allows for the recovery of “actual damages,” the Court held that only compensatory and not punitive damages could be recovered for a real estate professional’s breach of a statutory duty. The Court further held that the diminution in value of the property purchased because of the failure to disclose and the carrying costs for maintaining that property were a proper measure of damages. The Court also reiterated that the economic loss doctrine does not bar recovery of purely economic damages for claims involving intentional breaches of duties that arise independent from a contractual duty. Affirmed in part, reversed in part, and remanded for further proceedings. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson LLP.)
This action arose from violations of NRS Chapter 645, which governs the duties of real estate professionals in real estate transactions. First addressing an evidentiary issue, the Court held that an offer to settle a dispute is not admissible to prove the failure to mitigate damages because the failure to mitigate goes to the amount of the claim, a use of such evidence specifically barred by NRS 48.105. The Court next concluded that NRS 645.251, which provides that a real estate licensee need not “comply with any principles of common law that may otherwise apply to any of the duties of the licensee as set forth in NRS 645.252, 645.253 and 645.254,” does not bar all common law claims against real estate professionals but prohibits common law claims for conduct governed by those statutes. As such, NRS 645.251 prevents suits against real estate professionals for fraudulent concealment where the duty to disclose is governed by NRS 645.252-645.254. The exclusive remedy for such failures to disclose is a cause of action for breach of the statutory duty. In contrast, a broker may be held liable under common law for an agent’s failure to disclose because supervisory liability is not conduct covered by NRS 645.252-645.254. Next, the Court addressed the proper measure of damages for a breach of the statutory duty to disclose. Based on the language of NRS 645.257, which allows for the recovery of “actual damages,” the Court held that only compensatory and not punitive damages could be recovered for a real estate professional’s breach of a statutory duty. The Court further held that the diminution in value of the property purchased because of the failure to disclose and the carrying costs for maintaining that property were a proper measure of damages. The Court also reiterated that the economic loss doctrine does not bar recovery of purely economic damages for claims involving intentional breaches of duties that arise independent from a contractual duty. Affirmed in part, reversed in part, and remanded for further proceedings. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson LLP.)
Ryan’s Express v. Amador Stage Lines, 128 Nev. Adv. Op. 27 (June 14, 2012)
Before the Court en banc. Opinion by Justice Douglas.
The underlying appeal in this case involves a district court’s order dismissing all claims of Ryan’s Express Transportation Services, Inc. (“Ryan”) against Amador Stage Lines, Inc. (“Amador”). Upon appeal, the case was assigned to the Court’s settlement program. The settlement conference was unsuccessful. Subsequently, counsel for Amador (Ellen Jean Winograd) joined the law firm of Woodburn and Wedge. Woodburn and Wedge is the same law firm that the settlement conference judge (Nicholas Frey) works for. As a result, Ryan’s counsel filed a Motion to Disqualify Amador’s counsel. In ruling on the Motion to Disqualify, the issue before the Nevada Supreme Court is whether screening is appropriate with regard to a settlement judge acting under the Court’s settlement conference program or how to determine the sufficiency of any screening measures utilized. The parties agreed that Frey is disqualified because, as the settlement judge, he “participated personally and substantially” as a third-party neutral and informed consent in writing was not obtained as required by Nevada’s Rules of Professional Conduct (“RPC”) 1.12(a). As a result, the Woodburn and Wedge law firm is disqualified unless it can demonstrate that Frey was timely and adequately screened off pursuant to RPC 1.12(c). The Court held that screening of lawyers, under the applicable rules of professional conduct, may be used to rebut the presumption of shared confidences. The Court also adopted an approach requiring Nevada’s courts to conduct an evidentiary hearing to determine the adequacy and timeliness of the screening measures on a case-by-case basis. The burden of proof is upon the party seeking to cure an imputed disqualification with screening to demonstrate that the use of screening is appropriate for the situation and that the disqualified attorney is timely and properly screened. The factors considered are: (1) instructions given to ban the exchange of information between the disqualified attorney and other members of the firm; (2) restricted access to files and other information about the case; (3) the size of the law firm and its structural divisions; (4) the likelihood of contact between the quarantined lawyer and other members of the firm; and (5) the time of screening. Because an evidentiary hearing has not been conducted in this matter, the matter was remanded to the district court. The Court further indicated that while no rule or statute specifically authorizes it to remand a matter for additional fact-finding, that such power for remand comes from the inherent power of the courts. Remanded for additional fact-finding. (Lisa M. Wiltshire, Associate in the Reno office of McDonald Carano Wilson.)
The underlying appeal in this case involves a district court’s order dismissing all claims of Ryan’s Express Transportation Services, Inc. (“Ryan”) against Amador Stage Lines, Inc. (“Amador”). Upon appeal, the case was assigned to the Court’s settlement program. The settlement conference was unsuccessful. Subsequently, counsel for Amador (Ellen Jean Winograd) joined the law firm of Woodburn and Wedge. Woodburn and Wedge is the same law firm that the settlement conference judge (Nicholas Frey) works for. As a result, Ryan’s counsel filed a Motion to Disqualify Amador’s counsel. In ruling on the Motion to Disqualify, the issue before the Nevada Supreme Court is whether screening is appropriate with regard to a settlement judge acting under the Court’s settlement conference program or how to determine the sufficiency of any screening measures utilized. The parties agreed that Frey is disqualified because, as the settlement judge, he “participated personally and substantially” as a third-party neutral and informed consent in writing was not obtained as required by Nevada’s Rules of Professional Conduct (“RPC”) 1.12(a). As a result, the Woodburn and Wedge law firm is disqualified unless it can demonstrate that Frey was timely and adequately screened off pursuant to RPC 1.12(c). The Court held that screening of lawyers, under the applicable rules of professional conduct, may be used to rebut the presumption of shared confidences. The Court also adopted an approach requiring Nevada’s courts to conduct an evidentiary hearing to determine the adequacy and timeliness of the screening measures on a case-by-case basis. The burden of proof is upon the party seeking to cure an imputed disqualification with screening to demonstrate that the use of screening is appropriate for the situation and that the disqualified attorney is timely and properly screened. The factors considered are: (1) instructions given to ban the exchange of information between the disqualified attorney and other members of the firm; (2) restricted access to files and other information about the case; (3) the size of the law firm and its structural divisions; (4) the likelihood of contact between the quarantined lawyer and other members of the firm; and (5) the time of screening. Because an evidentiary hearing has not been conducted in this matter, the matter was remanded to the district court. The Court further indicated that while no rule or statute specifically authorizes it to remand a matter for additional fact-finding, that such power for remand comes from the inherent power of the courts. Remanded for additional fact-finding. (Lisa M. Wiltshire, Associate in the Reno office of McDonald Carano Wilson.)
FGA Inc., v. Giglio, 128 Nev. Adv. Op. 26 (June 14, 2012)
Before Justices Douglas, Hardesty and Parraguirre. Opinion by Justice Douglas.
In this appeal from a jury verdict in a tort action, the Court considered whether the “mode of operation” approach to premises liability, under which the plaintiff does not have to prove the defendant’s knowledge of a particular hazardous condition if the plaintiff can prove that the nature of the defendant’s business tends to create a substantial risk of the type of harm the plaintiff suffered, extends beyond the self-service context. In answering the question in the negative, the Court held that because the mode of operation approach is premised on the idea that business owners should be held responsible for the risks that their choice to have customers serve themselves creates, the mode of operation approach does not extend to “sit-down” restaurants. The Court found no reason to extend mode of operation liability to such sit-down restaurants absent a showing that their owners created an increased risk of a potentially hazardous condition by having their customers perform tasks that are traditionally carried out by employees. Additionally, the Court addressed issues regarding the general verdict rule and rulings on the admissibility of evidence of pre-existing conditions, alcohol consumption, and testimony to correct erroneous statements. Of particular importance, the Court held that the general verdict rule (which provides that if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party) does not apply when there are multiple factual theories supporting a single legal theory of recovery. As a result, the appellant in this case was able to obtain reversal of the judgment on the jury verdict based on errors that affected only the mode of operation basis for the finding of negligence, despite evidence in the record from which a jury could have concluded that an employee of the restaurant was directly responsible for the spilled substance. Reversed and remanded. (Anthony L. Carano, Associate in the Reno office of McDonald Carano Wilson LLP.)
In this appeal from a jury verdict in a tort action, the Court considered whether the “mode of operation” approach to premises liability, under which the plaintiff does not have to prove the defendant’s knowledge of a particular hazardous condition if the plaintiff can prove that the nature of the defendant’s business tends to create a substantial risk of the type of harm the plaintiff suffered, extends beyond the self-service context. In answering the question in the negative, the Court held that because the mode of operation approach is premised on the idea that business owners should be held responsible for the risks that their choice to have customers serve themselves creates, the mode of operation approach does not extend to “sit-down” restaurants. The Court found no reason to extend mode of operation liability to such sit-down restaurants absent a showing that their owners created an increased risk of a potentially hazardous condition by having their customers perform tasks that are traditionally carried out by employees. Additionally, the Court addressed issues regarding the general verdict rule and rulings on the admissibility of evidence of pre-existing conditions, alcohol consumption, and testimony to correct erroneous statements. Of particular importance, the Court held that the general verdict rule (which provides that if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party) does not apply when there are multiple factual theories supporting a single legal theory of recovery. As a result, the appellant in this case was able to obtain reversal of the judgment on the jury verdict based on errors that affected only the mode of operation basis for the finding of negligence, despite evidence in the record from which a jury could have concluded that an employee of the restaurant was directly responsible for the spilled substance. Reversed and remanded. (Anthony L. Carano, Associate in the Reno office of McDonald Carano Wilson LLP.)
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