Handling Accident

Today’s blog talks about how bankruptcy can affect personal injury settlements. Recently, the Nevada Supreme Court had to decide whether a person could have more than one active personal injury claim while still in bankruptcy. See Kaplan v. Dutra, 132 Nev. Adv. Op. No. 80 (2016). The high court determined that the injury party, who was also in bankruptcy, was entitled to get benefits from more than one personal injury claim.  In the Kaplan case, David Kaplan had two active personal injury claims. Kaplan was involved in a dog bite attack, where he injured his back. After the dog attack, Kaplan had back surgery. With a seemingly stream of bad luck, just six weeks later, Kaplan was rear-ended in a car accident. The car accident caused the need for Kaplan to undergo a second back surgery. Kaplan filed personal injury claims for both injuries. Kaplan later filed for bankruptcy. His two personal injury cases settled and he was set to receive his share of the settlement funds from both ...

An interesting case recently came out of our new Nevada Court of Appeals concerning pain and suffering. Behr v. Diamond , No. 66612 (Nev. App., 2015). Although an unpublished opinion, lessons can be learned from the trial and post-trial analysis. In the Behr case, the jury found in favor of the injured party. However, court struck down the jury’s award for future pain and suffering . In the accident, the injured party hit her head. She lost consciousness and later had a seizure. She suffered a concussion and doctors later diagnosed her with post-concussion syndrome. Later medical tests also revealed that her brain tissue was jolted and that she had a shoulder tear. The injured party later underwent two brain surgeries to alleviate her brain injuries. She also had surgery to repair the tear in her shoulder.  However, the at fault party claimed the injured party’s surgeries were not caused by accident. After hearing the evidence, the court found the brain surgeries were not related...

In a somewhat typical car accident , Doron York, caused a car accident. As a result of York’s negligence, Emmett Smith was injured in the accident. See York v. Smith, 367 P.3d 821 (Nev., 2010).  When the case didn’t settle, Smith sued York. At trial, the jury agreed that Smith had been injured the accident and awarded him damages.  After hearing all of the evidence, the jury awarded Smith damages for both past and future damages.  The future damages were allocated to allow Smith to pay for a possible future ankle surgery. Not liking the award, the at fault driver appealed the decision to the Nevada Supreme Court. The Nevada high court determined that the jury was indeed out of bounds for making its award. We will go into detail about what happened at trial. At trial, the injured party, Smith, put a medical expert on the witness stand. Smith’s expert stated that future surgery was just one of many possible future treatment options for Smith. The expert also noted that Smi...

William Poremba was driving as part of his job for Southern Nevada Paving. While driving, he got into a car accident. See Poremba v. S. Nev. Paving, 133 Nev. Adv. Op. 2 (Jan. 26, 2017). William later filed a workers’ compensation claim through his employer. Since the accident wasn’t his fault, William also made a personal injury claim against the driver that hit him. William ultimately settled his personal injury claim. As is typical in most settlements, the settlement agreement didn’t specify how the funds were to be allocated. For example, there was no mention how much of the settlement would go towards for pain and suffering, medical bills or lost wages.   After he was done treating and his personal injury case settled, William tried to go back to work.  However, when William tried to go back to work, he realized that he needed additional medical care through the worker’s compensation program. However, William’s request to reopen his worker’s compensation claim was denied....

Las Vegas is on the cutting edge of technology. Designed by a French company, Las Vegas recently unveiled one of the first completely driverless vehicles on public roads. The automatic car was recently driving down the streets of downtown Las Vegas, with no one at the wheel. More importantly, there was no wheel. Las Vegas has created what is called an “Innovation District” in downtown Las Vegas. The completely driverless cars are just part of the innovation Las Vegas wants to create. Similar electric shuttles are being tested in Paris, Singapore, Qatar, New Zealand and Australia. What they all have in common, is that there is no wheel, no brake pedal and no driver. The shuttle uses cameras and sensors to navigate the road.  The shuttle operated on Fremont Street in downtown Las Vegas. The Las Vegas shuttle only operated at 12 mph, for a few short blocks and in a dedicated lane. There was a “stop” button, where at least for now, an employee was on board while the shuttle was in moti...

To provide a more in depth analysis of Nevada law, starting in 2017, the blog will move to a monthly format.  I hope you enjoy today’s blog and the new format as we move forward in discussing the exciting developments in the ever changing landscape of Nevada law.   Today’s blog addresses alternative theories of causation in a personal injury cases. An interesting case that came out of the Nevada Supreme Court on alternative theories of causation is Leavitt v. Siems , 130 Nev.Ad.Op. 54 (July 10, 2014). In Leavitt , Kami Leavitt underwent Lasik eye surgery with Dr. Siems. Unfortunately, after surgery, Kami ended up losing most of her vision in both eyes.  The case went to trial and the jury felt Dr. Siems did nothing wrong. At trial, Siem’s lawyers argued that Kami’s eyes did not heal properly after the surgery because of her own actions. They argued that Kami abused numbing eye drops after the surgery, making her eye problems worse. To support the “eye-drop-abuse” arg...

Sometimes after an accident, you don’t have the money to rent a replacement car while your car is getting repaired. Also, if your car is “total loss” and you are waiting weeks for the insurance company to pay for the loss of your car, you might have the funds to pay for a rental. In both scenarios, if you did not receive a rental car, you can ask for “loss of use” damages, for not being able to use your car. If your car was fixed, but sustained extensive damages, you can also ask for “diminished value” damages to your car.  The Nevada Supreme Court has said that a party is entitled to have the jury consider her “loss of use damages.” See Dugan v. Gotsopoulos, 117 Nev. 285, 289, 22 P.3d 205, 208 (2001).  In Dugan, our high court held, that the lower court’s refusal to permit a party to testify as to rental car costs and its refusal to permit the jury to consider loss of use damages, was reversible error. Id. Moreover, courts have permitted the party to testify about rental car ...

There are three major decisions from the Nevada Supreme Court on the liability of rental car companies after a car crash. The story starts in 1998, in the case of Alamo v. State Farm, where the high court said the rental company has to provide statutory minimums of $15,000 per person/$30,000.00 per accident, in accident coverage. See Alamo v. State Farm, 114 Nev. 154, 953 P.2d 1074 (1998); See also NRS 482.295. Once the court is satisfied that the car rental company has the required insurance, the judge can dismiss the rental company from the lawsuit. See NRS 482.305. Your Las Vegas Personal Injury Attorney will then continue the case against the at fault driver.  Less than two years after the Alamo case came out, the issue of car rental company liability was in front of the Nevada Supreme Court again in Salas v. Allstate Rent-A-Car . In Salas , the Court had to determine which insurance policy was first in line to pay for the injuries of an accident victim. The Court stated t...

Today’s blog deals with the worker’s compensation platform and how that may affect your personal injury case. Let’s take an example that you are driving for a work related errand. While you are stopped for a red light, you are violently rear-ended by an inattentive driver. Due to the negligence of the at fault driver, you seek immediate medical attention. As a result of your injuries, you also miss time from work and have to get additional follow up medical care.  Since you were working at the time of the accident, you can make two claims. One claim would be for worker’s compensation benefits, to pay for your accident related medical care. The other claim would be against the at fault driver and their insurance. The claim against the at fault party can be for more than just getting your medical bills paid and instead can be for pain and suffering and other damages.  It is important to note that the worker’s compensation program gets a credit for any monies the at fault third ...

The Nevada Supreme Court delivers new case law every month. Some of that new case law may affect your personal injury case. Today’s blog covers a recent Nevada Supreme Court case discussing whether photos documenting the damage to cars after an accident are admissible evidence in a personal injury trial. In Rish v. Simao, the Nevada high court determined that if a defendant fails to hire a biomechanical expert to talk about the severity of the accident, evidence of whether the accident was “low-impact” can still come into evidence. See 132 Nev.Ad.Op. 17 (2016), clarifying  Hallmark v. Eldridge, 124 Nev. 492, 500-502 (2008). The Nevada Supreme Court held that whether a car accident actually caused an injured parties’ injuries, are factual issues that are for a jury to decide.   Notably, the high court did NOT decide whether the trial court is required to include photographs and car repair invoices in trial. But, the Nevada Supreme Court stated that other jurisdict...

With the passage of the Affordable Health Care Act, almost everyone can get health insurance now. However, if you have been in a car accident and have health insurance, there are some things to keep in mind. First, you should know that if you are taken to the hospital after an accident, there may three separate bills related to your accident treatment:     •    Ambulance bill;     •    Hospital Bill; and     •    Doctor at the Hospital (Doctors are usually not employees of hospitals. As a result, they send out a separate bill, over and above what the hospital charged you. This usually comes as a shock to most people.) In most cases, your health insurance company will pay for your emergency, car accident related, medical bills. However, your health insurance company may ask that you pay the health insurance company back. They will ask you to pay them back out of the settlement proceeds from your pe...

A new case has come out of the Nevada Supreme Court on the scope of treating doctor’s testimony during trial. This new case is FCHI, LLC v. Rodriguez, 130 Nev. Adv. OP 46 (2014). In Rodriguez, Nevada Supreme Court determined that the trial court allowed improper testimony by Rodriguez's treating physicians, concerning the cause of Rodriguez's injuries. One of Rodriguez's medical providers testified about causation, after reviewing his patient’s other medical records, which consisted of "thousands of pages of documents" from many different doctors. To the extent that this doctor reviewed these documents in the course of providing treatment to Rodriguez, the treating doctor could offer an opinion based on them. However, since the treating doctor only had 21 pages of records in his medical file, the treating doctor was prohibited from opining about these additional medical records. The Nevada Supreme Court went on to say, that as to Rodriguez's other treating doc...

When you are involved in a car accident in Las Vegas, you may have missed work and lost income due to the injuries you sustained in the accident.  Sometimes people think that they can just tell the at-fault party’s insurance company the amount of their lost wages. However, the insurance company will not accept this self-reporting of lost income. Instead, the insurance companies require written documentation of any lost wages sustained by an injured person. The best evidence of lost wages comes from your own human resources department. First, you need your employer’s human resources department to draft a letter on your employer’s letterhead regarding your lost wages. Secondly, this company letter should have your hourly rate of pay, together with the number of hours of work you lost, due to the accident. It is important that your doctor has given you an ‘off work’ slip, which you took to your employer, documenting that you were under doctor’s orders not to work, during the period of...

What happens if you need to sign an affidavit in the presence of a notary, but you do not have a notary available? Today’s blog will tell you the law on the issue. There is both State and Federal law on the issue of signing an affidavit (sometimes called a “declaration”) without a notary. Nevada law on this issue is set forth in NRS § 53.045 and provides in full:  NRS § 53.045. Use of unsworn declaration in lieu of affidavit or other sworn declaration; exception. Any matter whose existence or truth may be established by an affidavit or other sworn declaration may be established with the same effect by an unsworn declaration of its existence or truth signed by the declarant under penalty of perjury, and dated, in substantially the following form:   
       1.  If executed in this State: "I declare under penalty of perjury that the foregoing is true and correct."
 
       Executed on     _______...

The internet and social media have changed the way in which we interact with one another. This is having a spill-over effect in personal injury cases. We all know that the use of social media sites such as Facebook are relatively new. In the one hundred year history of people making claims of personal injury in Nevada, social networking sites were not something your personal injury attorney had to deal with. The question is now what is the scope of use of social media sites after being involved in a car accident? It may surprise you, but when you make a personal injury claim, the at-fault party may try to find out everything there is about you. This includes any and all information online. They will look at sites such as LinkedIn and Facebook. In addition to just looking at the sites, they will try to get this information into evidence . What if all of your Facebook information is private? The short answer is that is does NOT matter. What does this usually mean? That the court will r...

Sometimes people make mistakes. Sometimes these mistakes result in criminal convictions. If a person has a criminal conviction and they are making personal injury claim, that criminal conviction may be brought up by the at-fault party during trial. The law on this is set forth in NRS §50.095.  NRS §50.095 provides in full:   NRS 50.095 Impeachment by evidence of conviction of crime.        1.  For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime is admissible, but only if the crime was punishable by death or imprisonment for more than 1 year under the law under which the witness was convicted.         2.  Evidence of a conviction is inadmissible under this section if a period of more than 10 years has elapsed since:       (a) The date of the release of the witness from confinement; or       (b) The expiration of...

Most personal injury cases are filed in State Court. However, there are times when the at-fault party (aka ‘defendant”) may attempt to transfer (in legal terms “remove”) the case from State Court to Federal Court.  State court generally assumes that one or both parties to the action, are residents of the state in which they are being sued. However, if the at-fault/defendant is not a resident or does not do business in Nevada (if it is an insurance company), the defendant can seek to have the case transferred to Federal Court. When the defendant is not a Nevada resident or business, then the Federal removal is based upon “Diversity Jurisdiction”.  However, the case has to have a value of more than $75,000.00. This is generally called the “amount in controversy”. Relevant case law says that Diversity Jurisdiction exists only "where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs ... " (formerly $50,000). 28 USC§ 1332(a); See Arbau...

Today’s blog is very exciting as we will be discussing a hot off the presses case from the Nevada Supreme Court. This case was handed down just days ago on December 31, 2014. The case is Sadler v. Pacificare of Nevada. See 130 Nev. Advance Opinion 98. In Sadler, the Nevada Supreme Court held that physical injury is NOT required to assert a negligence personal injury claim in Nevada. The case revolved around the highly publicized case of a healthcare facility, reusing needles, resulting in an outbreak of hepatitis C. Each person who was exposed to the dirty needles was advised to undergo testing for hepatitis and HIV. The question before the court, was whether the need for medical testing/monitoring, was enough to assert a personal injury (negligence) claim in Nevada. So, what was the outcome: a physical injury is NOT required. The court looked at Nevada’s general negligence law, which has four elements: (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached th...

In most personal injury cases, a client does not pay for their medical treatment out of pocket. Instead, client’s usually treat on what is called a “lien”. A lien is generally defined as a security interest in items of property, to secure the payment of a debt.  In the instance of a personal injury case, it means, the medical providers who provide medical care with no up front payment, can put a lien on your personal injury case. A the end of your injury case, your attorney must honor all liens. Your attorney will pay your medical liens from the proceeds of the case. Today’s blog discusses your lawyer’s obligations to satisfy medical liens in personal injury cases and explains those liens. There are two types of medical liens that we typically see in personal injury cases: statutory and contractual. All statutory liens can be found in chapter 108 of our Nevada Revised Statutes. A statutory lien is a lien that arises solely as a result of a statute. In personal injury cases, NRS 10...

When you need to disclose expert witnesses in Las Vegas injury cases, the first place to look is Nevada Rules of Civil Procedure, (usually shortened to “NRCP”) Rule 16.1.  Rule 16.1 provides in part: RULE 16.1.  MANDATORY PRETRIAL DISCOVERY REQUIREMENTS (a) Required Disclosures.  (2) Disclosure of Expert Testimony.                    (A) In addition to the disclosures required by paragraph (1), a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under NRS 50.275, 50.285 and 50.305.                    (B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly in...