Before the Court en banc. Opinion by Justice Parraguirre.
In this appeal from a district court order granting a petition for a writ of mandamus, the Court addressed whether individual retiree files that are maintained by Public Employees’ Retirement System of Nevada (“PERS”) are subject to public access. In 2011, the Reno Gazette-Journal (“RGJ”) submitted a public records request to PERS in furtherance of an investigation into government expenditures and the public cost of the retiree pensions. PERS rejected the request asserting that the records were confidential and RGJ responded with a writ petition in district court on the basis that the information was not confidential because it was compiled from public documents. The district court granted RGJ’s petition, concluding that the records sought (e.g. names of retirees, names of government employers, salaries, hire and retirement dates, amounts of pension payments) were not confidential under the applicable statutes (NRS 286.110(3) and 286.117), and further ordered PERS to produce a report that contained the requested information. PERS appealed. The Court considered the scope of confidentiality set forth in NRS 286.110(3), which states, in part: “[t]he official correspondence and records, other than the files of individual members or retired employees,…are public records and are available for public inspection.” (emphasis added). The Court held that the limitation in NRS 286.110(3) must be construed narrowly and only protects an individual’s file itself, but not all information therein merely because it exists in an individual’s file. For example, if the information is contained in other reports, media, etc., the information is not confidential just because the same information exists in an individual’s file. The Court acknowledged that other statutes, rules, or caselaw could form an independent basis for confidentiality; however, PERS did not identify any separate legal authority that would preclude RGJ’s request. The Court also rejected PERS’ alternative argument that the district court erred in concluding that the government’s interest in maintaining confidentiality of the individuals’ files did not outweigh the public’s interest in access to the information. The Court noted that the rationales proffered by PERS (greater risk of identity theft and elder abuse if records disclosed) were not supported by sufficient evidence that actual harm would occur and were merely speculative. The Court vacated the district court’s order to the extent it required PERS to create or customize reports by searching or compiling information. Affirmed in part, vacated in part. (Kristen T. Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
Thursday, November 14, 2013
Thursday, November 7, 2013
Sandpointe Apts. v. Eighth Jud. Dist. Ct., 129 Nev. Adv. Op. 87 (Nov. 14, 2013)
Before the Court en banc. Opinion by Justice Saitta.
Justices Cherry and Parraguirre dissented.
In this writ petition, the Court held that NRS 40.459(1)(c), which was added to Nevada’s law by Assembly Bill 273, may not apply retroactively to limit the amount of a deficiency judgment that can be recovered by persons who acquired the right to obtain the judgment from someone else who held that right. The protections of NRS 40.459(1)(c) are therefore only applicable to judicial foreclosures or trustee’s sales occurring on or after the effective date (June 10, 2011) of the statute. Petitioner Sandpointe Apartments, LLC (“Sandpointe”) received a loan from Silver State Bank in 2007 for the construction of an apartment complex. The loan was secured via a deed of trust on the real property and backed by a personal guarantee from Petitioner Stacy Yahraus-Lewis. Silver State Bank closed in 2008 and the Federal Deposit Insurance Corporation (“FDIC”) was appointed as receiver. After Sandpointe had already defaulted on its loan in 2009, the FDIC sold the loan and personal guarantee to Multibank, which then transferred its interest in the loan and guarantee to its wholly owned subsidiary, real party in interest, CML-NV Sandpointe, LLC (“CML-NV”). In early 2011, CML-NV foreclosed on Sandpointe’s loan and purchased the real property securing the loan at a trustee’s sale. Subsequently on June 10, 2011, the Governor signed Assembly Bill 273 into law, which had been unanimously passed by the Nevada Legislature. The relevant provision, codified as NRS 40.459(1)(c), provides that if “the person seeking the [deficiency] judgment acquired the right to obtain the judgment from a person who previously held that right,” then the person seeking the deficiency judgment may only recover “the amount by which the amount of the consideration paid for that right exceeds the fair market value of the property sold at the time of sale or the amount for which the property was actually sold, whichever is greater, with interest from the date of sale and reasonable costs.” CML-NV filed a complaint against Sandpointe and Yahraus-Lewis for deficiency and breach of guaranty on June 27, 2011. At a hearing on cross-motions for summary judgment, the district court concluded that NRS 40.459(1)(c) only applies to loans entered into after June 10, 2011. Thereafter, Sandpointe and Yahraus-Lewis petitioned the Supreme Court for a writ of mandamus or prohibition directing the district court to apply NRS 40.459(1)(c) to CML-NV’s deficiency judgment. Nevada statutes are presumed to operate only prospectively unless the Legislature clearly manifests an intent to apply the statute retroactively or it clearly appears from the statute itself that the Legislature’s intent cannot be implemented in the absence of retroactivity. A statute has retroactive effect when it takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past. The Court held that the right to a deficiency judgment is a vested right as of the date of a trustee’s sale, which is when the amount of a deficiency is fixed. Related statutes, such as NRS 40.462(1), provide that the right to receive proceeds from a foreclosure sale vests at the time of the sale. Thus, the Court found it logical that the right to a judgment for the amount not received in a foreclosure sale would arise, and vest, on the same date as the right to receive amounts received from the sale. Applying NRS 40.459(1)(c) to deficiencies arising from sales prior to the enactment of the statute would affect vested rights and therefore would have an impermissible retroactive effect. An investigation into legislative intent was considered unwarranted by the majority as NRS 40.459(1)(c)’s provision that it becomes effective upon passage and approval is plain and unambiguous. Even if legislative history were consulted though, the majority noted that the author of Assembly Bill 273 stated on several occasions that the legislation could not be applied retroactively. Moreover, the presumption against retroactivity was not considered rebutted simply because the statute would have a broader impact if applied to transactions prior to 2011 as prospective application could still accomplish the legislative intent with respect to many loans. The Court rejected Petitioners’ argument that NRS 40.459(1)(c) is not retroactive because the statute merely clarifies existing law. Although another statute, NRS 40.451, limits a lien amount to the amount of consideration paid, the Court noted that the lien amount is only one factor determining the total amount of indebtedness, which is the figure used to determine the deficiency judgment amount. Additionally, the Court distinguished NRS 40.459(1)(c) as applicable to guarantors unlike NRS 40.451. Justices Cherry and Parraguirre dissented from the majority holding and would have granted the writ petition on the basis that the real party in interest had not yet obtained a deficiency judgment. The dissent argued that NRS 40.459(1)(c) applies at the time that a deficiency judgment is lawfully obtained and that until such judgment, a creditor only has a contingent remedy for potential deficiency and not a vested right. The dissent found persuasive the statement in the Legislative Counsel Digest that the provisions of Assembly Bill 273 would “apply to a deficiency judgment awarded on or after” the effective date and the Legislature’s corresponding declaration in its amicus curiae brief that it intended NRS 40.459(1)(c) to apply to every deficiency judgment awarded on or after the effective date. Noting the policy rationales of stopping profiteering activities and ensuring fairness to all parties to a transaction secured by realty, the dissent criticized the majority opinion for ignoring these objectives and denying protection to borrowers and guarantors who were the intended beneficiaries of the legislation. Petition denied. (Adam Hosmer-Henner, Associate in the Reno office of McDonald Carano Wilson.)
In this writ petition, the Court held that NRS 40.459(1)(c), which was added to Nevada’s law by Assembly Bill 273, may not apply retroactively to limit the amount of a deficiency judgment that can be recovered by persons who acquired the right to obtain the judgment from someone else who held that right. The protections of NRS 40.459(1)(c) are therefore only applicable to judicial foreclosures or trustee’s sales occurring on or after the effective date (June 10, 2011) of the statute. Petitioner Sandpointe Apartments, LLC (“Sandpointe”) received a loan from Silver State Bank in 2007 for the construction of an apartment complex. The loan was secured via a deed of trust on the real property and backed by a personal guarantee from Petitioner Stacy Yahraus-Lewis. Silver State Bank closed in 2008 and the Federal Deposit Insurance Corporation (“FDIC”) was appointed as receiver. After Sandpointe had already defaulted on its loan in 2009, the FDIC sold the loan and personal guarantee to Multibank, which then transferred its interest in the loan and guarantee to its wholly owned subsidiary, real party in interest, CML-NV Sandpointe, LLC (“CML-NV”). In early 2011, CML-NV foreclosed on Sandpointe’s loan and purchased the real property securing the loan at a trustee’s sale. Subsequently on June 10, 2011, the Governor signed Assembly Bill 273 into law, which had been unanimously passed by the Nevada Legislature. The relevant provision, codified as NRS 40.459(1)(c), provides that if “the person seeking the [deficiency] judgment acquired the right to obtain the judgment from a person who previously held that right,” then the person seeking the deficiency judgment may only recover “the amount by which the amount of the consideration paid for that right exceeds the fair market value of the property sold at the time of sale or the amount for which the property was actually sold, whichever is greater, with interest from the date of sale and reasonable costs.” CML-NV filed a complaint against Sandpointe and Yahraus-Lewis for deficiency and breach of guaranty on June 27, 2011. At a hearing on cross-motions for summary judgment, the district court concluded that NRS 40.459(1)(c) only applies to loans entered into after June 10, 2011. Thereafter, Sandpointe and Yahraus-Lewis petitioned the Supreme Court for a writ of mandamus or prohibition directing the district court to apply NRS 40.459(1)(c) to CML-NV’s deficiency judgment. Nevada statutes are presumed to operate only prospectively unless the Legislature clearly manifests an intent to apply the statute retroactively or it clearly appears from the statute itself that the Legislature’s intent cannot be implemented in the absence of retroactivity. A statute has retroactive effect when it takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past. The Court held that the right to a deficiency judgment is a vested right as of the date of a trustee’s sale, which is when the amount of a deficiency is fixed. Related statutes, such as NRS 40.462(1), provide that the right to receive proceeds from a foreclosure sale vests at the time of the sale. Thus, the Court found it logical that the right to a judgment for the amount not received in a foreclosure sale would arise, and vest, on the same date as the right to receive amounts received from the sale. Applying NRS 40.459(1)(c) to deficiencies arising from sales prior to the enactment of the statute would affect vested rights and therefore would have an impermissible retroactive effect. An investigation into legislative intent was considered unwarranted by the majority as NRS 40.459(1)(c)’s provision that it becomes effective upon passage and approval is plain and unambiguous. Even if legislative history were consulted though, the majority noted that the author of Assembly Bill 273 stated on several occasions that the legislation could not be applied retroactively. Moreover, the presumption against retroactivity was not considered rebutted simply because the statute would have a broader impact if applied to transactions prior to 2011 as prospective application could still accomplish the legislative intent with respect to many loans. The Court rejected Petitioners’ argument that NRS 40.459(1)(c) is not retroactive because the statute merely clarifies existing law. Although another statute, NRS 40.451, limits a lien amount to the amount of consideration paid, the Court noted that the lien amount is only one factor determining the total amount of indebtedness, which is the figure used to determine the deficiency judgment amount. Additionally, the Court distinguished NRS 40.459(1)(c) as applicable to guarantors unlike NRS 40.451. Justices Cherry and Parraguirre dissented from the majority holding and would have granted the writ petition on the basis that the real party in interest had not yet obtained a deficiency judgment. The dissent argued that NRS 40.459(1)(c) applies at the time that a deficiency judgment is lawfully obtained and that until such judgment, a creditor only has a contingent remedy for potential deficiency and not a vested right. The dissent found persuasive the statement in the Legislative Counsel Digest that the provisions of Assembly Bill 273 would “apply to a deficiency judgment awarded on or after” the effective date and the Legislature’s corresponding declaration in its amicus curiae brief that it intended NRS 40.459(1)(c) to apply to every deficiency judgment awarded on or after the effective date. Noting the policy rationales of stopping profiteering activities and ensuring fairness to all parties to a transaction secured by realty, the dissent criticized the majority opinion for ignoring these objectives and denying protection to borrowers and guarantors who were the intended beneficiaries of the legislation. Petition denied. (Adam Hosmer-Henner, Associate in the Reno office of McDonald Carano Wilson.)
Otak Nevada, LLC v. Eighth Jud. Dist. Ct., 129 Nev. Adv. Op. 86 (Nov. 7, 2013)
Before the Court en banc. Opinion by Justice Hardesty.
This original petition for writ of mandamus arose out of district court litigation pertaining to a fatal automobile accident at a construction site in Las Vegas. Otak Nevada, LLC (“Otak”) was the architect on the project; Real Parties in Interest Cheyenne Apartments, PPG, LP, Pacificap Holdings XXIX, LLC, Pacificap Properties Group, LLC, and Chad Rennaker and Jason Rennaker (collectively, “Owners”) were the owners and developers, and Pacificap Construction Services, LLC (the “Contractor”) was the general contractor. Otak entered into an agreement with the Owners to design a multifamily housing project, then subcontracted with an engineering firm to design traffic medians and replace traffic markers near the construction site. The accident occurred because one of the medians was not installed and the traffic markers were not replaced. The plaintiffs eventually agreed to settle their claims against Otak for $210,000.00, after which Otak filed a motion to approve a good-faith settlement. The district court granted the motion and rejected the Owners’ and Contractor’s arguments that the settlement would unfairly shift Otak’s liability to them, and that the proposed amount of the settlement was less than Otak’s potential liability or its insurance policy limits. Thereafter, the court granted the Owners leave to file a third party complaint against Otak, which Otak moved to dismiss on the grounds that all proposed claims were barred by NRS 17.245. Otak filed its writ petition after the district court denied Otak’s motion to dismiss. The Court first determined that the evidence in the record demonstrated that Otak’s liability was minimal: Otak was not contractually required to visit the site to report unsafe conditions, nor was it contractually responsible for safety programs or precautions. Moreover, Otak did not breach any duties that it owed to any of the parties, and it was not involved in, or responsible for, the road construction that resulted in the accident. The Court also noted that insurance policy limits are not “exclusive criteria in determining whether a settlement is in good faith,” and the fact that a settlement may eliminate third party liability does not mean that the settlement was made in bad faith. Therefore, the district court did not abuse its discretion by granting Otak’s motion for approval of good-faith settlement. Next, the Court examined NRS 17.245(1)(b), which “discharges the tortfeasor to whom [a release from liability] is given from all liability for contribution and for equitable indemnity to any other tortfeasor.” The Court noted that the statute “does not state whether ‘contribution’ [an equitable sharing of liability] or ‘equitable indemnity [a complete shift of liability to the party that is primarily responsible] only include claims titled as such, or whether NRS 17.245(1)(b)’s bar encompasses all theories of recovery that seek contribution or equitable indemnity, regardless of the claim’s actual title.” In holding that the statute requires that latter, the Court first noted that the purpose of the Uniform Contribution Act Among Tortfeasors was to “permit plaintiffs to sever a joint tortfeasor from the case without needing to first reach a global settlement with all of the defendants.” Next, the Court observed that the Nevada Legislature amended NRS 17.245 in 1997; prior to that time, the statute barred a non-settling defendant from seeking contribution from a settling defendant, but permitted claims for equitable indemnity. The legislative history revealed that the amendment was made “to eliminate [equitable indemnity as a] defense and promote and encourage settlements among joint defendants.” Thus, the Court concluded that after a defendant has settled in good faith, 17.245(1)(b) bars all claims that seek contribution or equitable indemnity damages from that defendant, regardless of how those claims are titled. The Court also held that because NRS 17.245(1)(b) does not distinguish between equitable and contractual contribution claims, all contribution claims are barred by the approval of a good-faith settlement. In determining whether a claim seeks contribution or equitable indemnity, district courts should consider whether “(1) the claim arose from the same basis on which the settling defendant would be liable to the plaintiff, and (2) the claim seeks damages comparable to those recoverable in contribution or indemnity actions.” In light of this standard, the Court concluded that the Owners’ claim for express (contractual) indemnity was actually a claim for contribution, because the contractual provision at issue apportioned liability according to fault rather than shifting liability to the party that was primarily responsible for damages. Therefore, the Owners could not prevail on this claim. Likewise, because the Owners did not seek any damages from Otak that were unrelated to the accident, nor did the Owners allege that Otak breached any duties to them “on a basis other than that Otak was potentially responsible for the plaintiffs’ accident,” its contract-based claims were actually claims for contribution. Those claims were also barred by the statute. Petition granted. (Patrick Murch, Associate in the Las Vegas office of McDonald Carano Wilson).
This original petition for writ of mandamus arose out of district court litigation pertaining to a fatal automobile accident at a construction site in Las Vegas. Otak Nevada, LLC (“Otak”) was the architect on the project; Real Parties in Interest Cheyenne Apartments, PPG, LP, Pacificap Holdings XXIX, LLC, Pacificap Properties Group, LLC, and Chad Rennaker and Jason Rennaker (collectively, “Owners”) were the owners and developers, and Pacificap Construction Services, LLC (the “Contractor”) was the general contractor. Otak entered into an agreement with the Owners to design a multifamily housing project, then subcontracted with an engineering firm to design traffic medians and replace traffic markers near the construction site. The accident occurred because one of the medians was not installed and the traffic markers were not replaced. The plaintiffs eventually agreed to settle their claims against Otak for $210,000.00, after which Otak filed a motion to approve a good-faith settlement. The district court granted the motion and rejected the Owners’ and Contractor’s arguments that the settlement would unfairly shift Otak’s liability to them, and that the proposed amount of the settlement was less than Otak’s potential liability or its insurance policy limits. Thereafter, the court granted the Owners leave to file a third party complaint against Otak, which Otak moved to dismiss on the grounds that all proposed claims were barred by NRS 17.245. Otak filed its writ petition after the district court denied Otak’s motion to dismiss. The Court first determined that the evidence in the record demonstrated that Otak’s liability was minimal: Otak was not contractually required to visit the site to report unsafe conditions, nor was it contractually responsible for safety programs or precautions. Moreover, Otak did not breach any duties that it owed to any of the parties, and it was not involved in, or responsible for, the road construction that resulted in the accident. The Court also noted that insurance policy limits are not “exclusive criteria in determining whether a settlement is in good faith,” and the fact that a settlement may eliminate third party liability does not mean that the settlement was made in bad faith. Therefore, the district court did not abuse its discretion by granting Otak’s motion for approval of good-faith settlement. Next, the Court examined NRS 17.245(1)(b), which “discharges the tortfeasor to whom [a release from liability] is given from all liability for contribution and for equitable indemnity to any other tortfeasor.” The Court noted that the statute “does not state whether ‘contribution’ [an equitable sharing of liability] or ‘equitable indemnity [a complete shift of liability to the party that is primarily responsible] only include claims titled as such, or whether NRS 17.245(1)(b)’s bar encompasses all theories of recovery that seek contribution or equitable indemnity, regardless of the claim’s actual title.” In holding that the statute requires that latter, the Court first noted that the purpose of the Uniform Contribution Act Among Tortfeasors was to “permit plaintiffs to sever a joint tortfeasor from the case without needing to first reach a global settlement with all of the defendants.” Next, the Court observed that the Nevada Legislature amended NRS 17.245 in 1997; prior to that time, the statute barred a non-settling defendant from seeking contribution from a settling defendant, but permitted claims for equitable indemnity. The legislative history revealed that the amendment was made “to eliminate [equitable indemnity as a] defense and promote and encourage settlements among joint defendants.” Thus, the Court concluded that after a defendant has settled in good faith, 17.245(1)(b) bars all claims that seek contribution or equitable indemnity damages from that defendant, regardless of how those claims are titled. The Court also held that because NRS 17.245(1)(b) does not distinguish between equitable and contractual contribution claims, all contribution claims are barred by the approval of a good-faith settlement. In determining whether a claim seeks contribution or equitable indemnity, district courts should consider whether “(1) the claim arose from the same basis on which the settling defendant would be liable to the plaintiff, and (2) the claim seeks damages comparable to those recoverable in contribution or indemnity actions.” In light of this standard, the Court concluded that the Owners’ claim for express (contractual) indemnity was actually a claim for contribution, because the contractual provision at issue apportioned liability according to fault rather than shifting liability to the party that was primarily responsible for damages. Therefore, the Owners could not prevail on this claim. Likewise, because the Owners did not seek any damages from Otak that were unrelated to the accident, nor did the Owners allege that Otak breached any duties to them “on a basis other than that Otak was potentially responsible for the plaintiffs’ accident,” its contract-based claims were actually claims for contribution. Those claims were also barred by the statute. Petition granted. (Patrick Murch, Associate in the Las Vegas office of McDonald Carano Wilson).
Humphries v. Eighth Jud. Dist. Ct., 129 Nev. Adv. Op. 85 (Nov. 7, 2013)
Before Justices Hardesty, Parraguirre and Cherry. Opinion by Justice Parraguirre.
In this petition for writ of mandamus, the Court considered whether the district court erred in compelling petitioners (Carey Humphries and Lorenza Rocha, II) to join an intentional tortfeasor (Erik Ferrell) as a necessary party in petitioners’ action against a negligent cotortfeasor (New York-New York). Ferrell and petitioners were involved in an altercation at New York-New York after which Ferrell was arrested and convicted for battery. Petitioners sued New York-New York for negligence. The complaint did not include any claims against Ferrell. New York-New York asserted petitioners’ comparative negligence as an affirmative defense and argued that Ferrell was a necessary party for determining comparative negligence under NRS 41.141. The Court focused its inquiry on whether the absence of a cotortfeasor eliminates the requirement for apportionment of liability as set forth in NRS 41.141(2)(b)(2). In answering in the affirmative, the Court noted that a plaintiff who sues one tortfeasor may recover 100% of damages from that tortfeasor even if another, absent tortfeasor is also at fault. Given this finding, the Court concluded that it can accord complete relief to all parties even when a cotortfeasor is not named in the action. Thus, an absent cotortfeasor is not a necessary party under NRCP 19(a) when a jointly and severally liable defendant is sued. The Court noted that although petitioners would not be compelled to join Ferrell as a codefendant, New York-New York was free to implead Ferrell based on the theory of contribution. Petition granted. (Amanda M. Perach, Associate in the Las Vegas office of McDonald Carano Wilson).
In this petition for writ of mandamus, the Court considered whether the district court erred in compelling petitioners (Carey Humphries and Lorenza Rocha, II) to join an intentional tortfeasor (Erik Ferrell) as a necessary party in petitioners’ action against a negligent cotortfeasor (New York-New York). Ferrell and petitioners were involved in an altercation at New York-New York after which Ferrell was arrested and convicted for battery. Petitioners sued New York-New York for negligence. The complaint did not include any claims against Ferrell. New York-New York asserted petitioners’ comparative negligence as an affirmative defense and argued that Ferrell was a necessary party for determining comparative negligence under NRS 41.141. The Court focused its inquiry on whether the absence of a cotortfeasor eliminates the requirement for apportionment of liability as set forth in NRS 41.141(2)(b)(2). In answering in the affirmative, the Court noted that a plaintiff who sues one tortfeasor may recover 100% of damages from that tortfeasor even if another, absent tortfeasor is also at fault. Given this finding, the Court concluded that it can accord complete relief to all parties even when a cotortfeasor is not named in the action. Thus, an absent cotortfeasor is not a necessary party under NRCP 19(a) when a jointly and severally liable defendant is sued. The Court noted that although petitioners would not be compelled to join Ferrell as a codefendant, New York-New York was free to implead Ferrell based on the theory of contribution. Petition granted. (Amanda M. Perach, Associate in the Las Vegas office of McDonald Carano Wilson).
Elizondo v. Hood Mach., Inc., 129 Nev. Adv. Op. 84 (Nov. 7, 2013)
Before Justices Hardesty, Parraguirre, and Cherry. Opinion by Justice Hardesty.
In this appeal, the Court considered whether an appeals officer’s conclusory order in a workers’ compensation matter failed to meet the statutory requirements of NRS 233B.125 by not including findings of fact and conclusions of law. NRS 233B.125 governs adverse written orders in administrative proceedings and states that “a final decision must include findings of facts and conclusions of law, separately stated.” The Court concluded that the appeals officer’s order was deficient by omitting specific findings of fact or citation to the law as required by the plain and unambiguous language of NRS 233B.125. The Court also analyzed whether the doctrines of claim and issue preclusion compelled dismissal of Appellant’s fourth attempt to reopen an industrial injury claim. NRS 616C.390 provided Appellant with a statutory right to request the reopening of his claim and upon written application, the insurer was required to reopen a claim based on a change of circumstances. The Court concluded that the appeals officer erred by applying the doctrines of issue and claim preclusion because the proper analysis is whether there is a change of circumstances. Accordingly, the district court’s rejection of the request to reopen Elizondo’s claim on preclusion grounds was in error. Reversed and remanded. (Lisa M. Wiltshire Alstead, Associate in the Reno office of McDonald Carano Wilson LLP.)
In this appeal, the Court considered whether an appeals officer’s conclusory order in a workers’ compensation matter failed to meet the statutory requirements of NRS 233B.125 by not including findings of fact and conclusions of law. NRS 233B.125 governs adverse written orders in administrative proceedings and states that “a final decision must include findings of facts and conclusions of law, separately stated.” The Court concluded that the appeals officer’s order was deficient by omitting specific findings of fact or citation to the law as required by the plain and unambiguous language of NRS 233B.125. The Court also analyzed whether the doctrines of claim and issue preclusion compelled dismissal of Appellant’s fourth attempt to reopen an industrial injury claim. NRS 616C.390 provided Appellant with a statutory right to request the reopening of his claim and upon written application, the insurer was required to reopen a claim based on a change of circumstances. The Court concluded that the appeals officer erred by applying the doctrines of issue and claim preclusion because the proper analysis is whether there is a change of circumstances. Accordingly, the district court’s rejection of the request to reopen Elizondo’s claim on preclusion grounds was in error. Reversed and remanded. (Lisa M. Wiltshire Alstead, Associate in the Reno office of McDonald Carano Wilson LLP.)
Subscribe to:
Posts (Atom)