Monday, October 26, 2015

Do Hospitals Have to Accept Medicare After an Auto Accident in Las Vegas, Nevada?



Having Medicare can save you a lot of money on monthly insurance bills. If you have Medicare, you may think that you can simply show your Medicare and supplemental insurance cards to the hospital after a traumatic car accident, and expect Medicare to pay the bill. However, it would surprise many Medicare recipients to know that the hospitals are not required to bill Medicare after a car accident.


According to federal Medicare law, a hospital has the option to bill Medicare for the treatment you received as a result of a car accident. However, they can choose not to bill Medicare and instead wait for the proceeds of the personal injury settlement to pay your hospital bill. See Medicare Secondary Payer Manual, Chapter 2, section 40:  

40.2 - Billing in MSP Liability Insurance Situations 


A - Difference Between Liability Insurance and Other Primary Plans 


Liability insurance differs from the other insurance policies or plans that, under §1862(b) of the Act, are primary to Medicare. In the case of other types of insurance that are primary to Medicare, i.e., no-fault insurance, group health plans, and workers' compensation, the insurance has a contractual obligation to pay for medical services provided to the covered/injured person. Liability insurance, however, has a contractual obligation to compensate the alleged tortfeasor for any damages the alleged tortfeasor must pay to an injured party. 


B - Billing Options and Requirements - Alternative Billing 


Generally, providers, physicians, and other suppliers must bill liability insurance prior to the expiration of the promptly period rather than bill Medicare. (The filing of an acceptable lien against a beneficiary's liability insurance settlement is considered billing the liability insurance.) Promptly means payment within 120 days after the earlier of: 1) the date the claim is filed with an insurer or a lien is filed against a potential liability settlement; or 2) the date the service was furnished or, in the case of inpatient hospital services, the date of discharge) rather than bill Medicare. Following expiration of the promptly period, or if demonstrated (e.g., a bill/claim that had been submitted but not paid) that liability insurance will not pay during the promptly period, a provider, physician, or other supplier may either:
    •    bill Medicare for payment and withdraw all claims/liens against the liability insurance/beneficiary's liability insurance settlement (liens may be maintained for services not covered by Medicare and for Medicare deductibles and coinsurance); or
    •    maintain all claims/liens against the liability insurance/beneficiary's liability insurance settlement. 
 

The above Medicare manual says that after 120 days of non-payment, a hospital can bill Medicare for your hospital bill. However, that is a choice that a hospital can make. Instead, the hospital can simply wait for your case to settle and get paid through the settlement proceeds. 
 

If you read my prior blog on health insurance, you will know that pursuant to Nevada law, if you have health insurance, the hospital must bill the health insurance first. However, if you have Medicare as your primary ‘health insurance’, this law does not apply. The reason for this, is that Medicare is governed by Federal law and Federal law trumps State law. 

If your hospital chooses not to bill Medicare for your hospital bill, your injury attorney will work with the hospital’s collection agency that tries to collect payment directly from you. Your injury attorney will request that all collections efforts are put on hold until your personal injury case is resolved and payment can be made through your personal injury settlement.


Next time, we will discuss whether health insurance companies can be reimbursed for medical bills they paid after a Las Vegas car accident.

Thursday, October 8, 2015

Can Someone Get PTSD After a Serious Personal Injury in Las Vegas, Nevada?



After being involved in a serious accident or injury event, many people continue to feel anxiety or fear. If you have been through a traumatic injury or witnessed a fatality in a car accident, these feelings are common. This is called post traumatic stress disorder or PTSD for short. If you are wondering if you could be suffering from PTSD after a serious accident or injury, here is some information to guide you:
 


PTSD: Post Traumatic Stress Disorder

PTSD can present itself through continued feelings of Anxiety, Stress, or Fear, that simply will not go away. These symptoms are one of the most common reactions to a traumatic event. At the time of the event, you may have an overwhelming experience of fear-- of being physically injured or even of being killed. This can and oftentimes does carryover after the trauma has stopped. Common symptoms of PTSD include:
    •    Being afraid to go anywhere where a similar event can take place.
    •    Feeling anxious all the time.
    •    Stressed with even the smallest of tasks.

Fear responses associated with the event (to certain sights, sounds, smells, thoughts, etc.) can persists for weeks, months, or even years. People who have been part of a serious accident or injury, typically avoid anything which reminds them of the event (places, situations, people, etc.). Some people become so fearful that they greatly restrict their activities, even to the point that they are unable to leave their homes or to be left alone.
 

Helplessness

Another reaction to an extremely traumatic event, is the feeling of helplessness. Some common types of responses are:
    •    Feel helpless to stop the event.
    •    Feeling hopeless about the present.
    •    Feel hopeless about whether anything can be done in the future.
 

Flashbacks
A common symptom people experience after a traumatic event, is to re-experience the event. This vivid symptom is called a flashback. People re-experience the event over and over again in their thoughts and in their dreams. These flashbacks make you feel like the event is happening all over again. Proper psychological counseling can lessen the occurrence and intensity of flashbacks.
 

Depression

One of the most common reactions after a serious accident or injury is depression. Feelings of unrelenting sadness and unhappiness, that prevent you from living life the way you did before the event, may indicate that you are suffering from depression. Depression can include feelings of hopelessness and despair. You may having frequent unprovoked crying spells or even contemplating suicide. Losing interest in daily activities that you used to enjoy, is also another sign. 
 

Problems Concentrating

A very common symptom after a traumatic event, is not being able to stay focused on the task at hand. Trouble concentrating is a common refrain from people after a traumatic event. This ability to stay focused can feel frustrating and add to the sense of loss of control.


The best thing to keep in mind is that effective therapy is available if you are suffering from PTSD. Your experienced personal injury attorney will be able to help you get the medical care you need, to put you on the road to recovery.
 

Next time, we will discuss whether health insurance companies can be reimbursed for medical bills they paid after a Las Vegas car accident.

Monday, August 24, 2015

How do Hospital Bills Get Paid After an Accident in Las Vegas?



After a serious car crash, you may be transported to the nearest hospital for immediate medical treatment.  If your injuries are life threatening, you may be taken to UMC hospital, since it is the only level 1 trauma center in Las Vegas.  UMC’s doctors and staff are equipped to handled the most serious injuries that typically happen in motorcycle and semi-truck accidents.  


However, this type of emergency room treatment is costly.  If you do not have health insurance, then all major hospitals are required to reduce their bill by 30%. All hospitals in Las Vegas are considered “major hospitals”, except for the County run, UMC hospital. So, if you went to UMC, they are not required to reduce their bill by the statutory 30%.  This law is found in NRS §439B.260, which allows for the 30% reduction and states in part:

NRS 439B.260  Reduction of billed charges for certain patients and services; notice; resolution of disputes.
      1.  A major hospital shall reduce or discount the total billed charge by at least 30 percent for hospital services provided to an inpatient who:
      (a) Has no policy of health insurance or other contractual agreement with a third party that provides health coverage for the charge;
      (b) Is not eligible for coverage by a state or federal program of public assistance that would provide for the payment of the charge; and
      (c) Makes reasonable arrangements within 30 days after the date that notice was sent pursuant to subsection 2 to pay the hospital bill.
      2.  A major hospital shall include on or with the first statement of the hospital bill provided to the patient after his or her discharge a notice of the reduction or discount available pursuant to this section, including, without limitation, notice of the criteria a patient must satisfy to qualify for a reduction or discount.
      3.  A major hospital or patient who disputes the reasonableness of arrangements made pursuant to paragraph (c) of subsection 1 may submit the dispute to the Bureau for Hospital Patients for resolution as provided in NRS 223.575.
                                                                                     . . . .

There are additional laws in the state of Nevada on how hospitals can collect after car or other motor vehicle accidents. These laws are set forth in NRS 449.758 and 449.757.  These laws apply if you do in fact have health insurance and that health insurance company has a contract with that hospital. If this is the case, then the hospital must bill your health insurance and not seek payment from any settlement you may have with the at fault driver:


NRS 449.758  Limitations on efforts of hospital to collect when hospital has contractual agreement with third party that provides health coverage for care provided; exception.


      1.  Except as otherwise provided in subsection 2, if a hospital provides hospital care to a person who has a policy of health insurance issued by a third party that provides health coverage for care provided at that hospital and the hospital has a contractual agreement with the third party, the hospital shall proceed with any efforts to collect on any amount owed to the hospital for the hospital care in accordance with the provisions of NRS 449.757 and shall not collect or attempt to collect that amount from:      (a) Any proceeds or potential proceeds of a civil action brought by or on behalf of the patient, including, without limitation, any amount awarded for medical expenses; or
      (b) An insurer other than a health insurer, including, without limitation, an insurer that provides coverage under a policy of casualty or property insurance.
 

    NRS 449.757  Limitations on efforts of hospitals to collect; date for accrual of interest; rate of interest; limitations on additional fees.
      1.  When a person receives hospital care, the hospital must not proceed with any efforts to collect on any amount owed to the hospital for the hospital care from the responsible party, other than for any copayment or deductible, if the responsible party has health insurance or may be eligible for Medicaid, the Children’s Health Insurance Program or any other public program which may pay all or part of the bill, until the hospital has submitted a bill to the health insurance company or public program and the health insurance company or public program has made a determination concerning payment of the claim.
      2.  Collection efforts may begin and interest may begin to accrue on any amount owed to the hospital for hospital care which remains unpaid by the responsible party not sooner than 30 days after the responsible party is sent a bill by mail stating the amount that he or she is responsible to pay which has been established after receiving a determination concerning payment of the claim by any insurer or public program and after applying any discounts. Interest must accrue at a rate which does not exceed the prime rate at the largest bank in Nevada as ascertained by the Commissioner of Financial Institutions on January 1 or July 1, as the case may be, immediately preceding the date on which the payment becomes due, plus 2 percent. The rate must be adjusted accordingly on each January 1 and July 1 thereafter until the payment is satisfied.
      3.  Except for the interest authorized pursuant to subsection 2 and any court costs and attorney’s fees awarded by a court, no other fees may be charged concerning the amount that remains unpaid, including, without limitation, collection fees, other attorney’s fees or any other fees or costs.
    
After reading the above Nevada law, if you have health insurance, the hospital must bill the health insurance first.  However, if you have Medicare as your primary ‘health insurance’, this law does not apply.  The reason for this, is that Medicare is governed by Federal law and Federal law trumps State law.  So next time, we will discuss how what happens if you have Medicare.

Monday, July 20, 2015

Who Has the Right of Way at a Four Way Stop in Nevada?



You are approaching a four way stop, and you and another car get to the intersection at the exact same time. Let’s assume you are being a nice person and you wave the other person to go first. But, the other person is waving for you to go first! Who really has the right of way to go first? It is the person on the “right” and is set forth in NRS 484B.250:

NRS 484B.250  Vehicle approaching or entering intersection.
      1.  The driver of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has entered the intersection from a different highway.
      2.  When two vehicles enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.
      3.  When two vehicles enter an intersection at approximately the same time, one vehicle traveling on a highway which ends at the intersection and the other vehicle traveling on a through highway, the driver of the vehicle on the highway which ends at the intersection shall yield the right-of-way to the other vehicle.
      4.  When a vehicle enters an intersection controlled by a traffic-control signal which is installed and has its vehicular signals uncovered, but is inoperative at the time the vehicle enters the intersection, the driver of the vehicle shall proceed as if a stop sign had been erected at each entrance to the intersection and shall stop at a clearly marked stop line or, if there is none, before entering the crosswalk on the near side of the intersection or, if there is none, at the point nearest the intersection where the driver has a view of approaching traffic on the through highway. After making such a stop, the driver shall proceed cautiously, yielding to vehicles which have previously completed a stop or are within the intersection.
      5.  Except as otherwise provided in subsection 4, this section does not apply at intersections controlled by official traffic-control devices or to vehicles approaching each other from opposite directions, when the driver of one of the vehicles is intending to or is making a left turn.
 


But what happens if you are directly across from each other? The statute doesn’t discuss this scenario! So, one of you will have to go first. 

However, keep in mind that whoever is proceeding into the intersection first, has the right of way and other cars must yield to them. So, if you believe you got to the intersection first and then stopped. But, then another car whom you believe arrived at the intersection after you, goes through the intersection, you must take reasonable steps to avoid an accident and you must wait for the car to pass.


Next time, we will discuss how hospital bills get paid after a car accident.

Thursday, July 2, 2015

What Are the Laws on Yielding to Emergency Vehicles in Nevada?


When an ambulance or other emergency is on the road and they are involved in a car accident, the outcome can be catastrophic, due to the high speeds in which emergency vehicles tend operate. When an ambulance or other emergency vehicle is on the roadway, they have to follow certain rules before ‘breaking’ the normal traffic laws. These rules are set forth in Nevada Revised Statutes (“NRS”) 484B, entitled “Rules of the Road”.  The relevant sections of NRS 484B are laid out below:

NRS  484B.700  Privileges granted to driver of authorized emergency vehicle, official vehicle of regulatory agency or vehicle escorting funeral procession; application of privileges; limitation of privileges.


      1.  The driver of an authorized emergency vehicle or an official vehicle of a regulatory agency, when responding to an emergency call or when in pursuit of an actual or suspected violator of the law or when responding to but not upon returning from a fire alarm, or a vehicle escorting a funeral procession, may:
      (a) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation.
      (b) Exceed any speed limits so long as the driver does not endanger life or property, except that a vehicle escorting a funeral procession may not exceed the speed limit by more than 15 miles per hour to overtake the procession and direct traffic at the next intersection.
      (c) Disregard regulations governing direction of movement or turning in specified directions. The driver of a vehicle escorting a funeral procession may direct the movements of the vehicles in the procession in a similar manner and may direct the movements of other vehicles.
      2.  The privileges granted in subsection 1 apply only when the vehicle is making use of:
      (a) Audible and visual signals; or
      (b) Visual signals only, as required by law.
      3.  The driver of an authorized emergency vehicle or an official vehicle of a regulatory agency may park or stand without regard to the provisions of chapters 484A to 484E, inclusive, of NRS, if the driver makes use of a warning lamp.
      4.  The provisions of this section do not relieve the driver from the duty to drive with due regard for the safety of all persons and do not protect the driver from the consequences of the driver’s reckless disregard for the safety of others.

What are Emergency Vehicles Allowed to Do?


    •    Emergency vehicles can drive faster than the speed limit.
    •    When approaching a stop sign or red light, emergency vehicles do not have to stop, as long as it safe to proceed.
    •    Drivers of Emergency Vehicles can drive on the ‘wrong’ side of the road.
    •    They must still use Due Care to avoid causing accidents. 


 Next time, we will discuss who has the right of way at a four way stop.

Monday, June 15, 2015

What are the Laws Bicyclists Must Follow on Nevada Roadways?


Southern Nevada is a wonderful place to live. Given our sunny days, it is home to many children and adults riding bicycles on our roadways. However, according to ThinkFirstNevada.org:

• In the year 2000, 690 bicyclists were killed in crashes with motor vehicles.
• In that same year, 51,000 bicyclists were injured in traffic-related crashes.
• More than 373,000 people were treated in hospital emergency rooms for
bicycle-related injuries in the year 2000.

Bicyclists are vulnerable to severe injuries when they are involved in accidents. Today’s discussion is on the rights and responsibilities of both car drivers and bicyclists. The rules governing bicyclists on our roadways, are set forth in Nevada Revised Statutes (“NRS”) 484B, entitled “Rules of the Road”.  The relevant sections of NRS 484B are set forth here:

   NRS 484B.270  Vehicles, bicycles and electric bicycles:
Driver’s duty of due care; additional penalty if driver is proximate cause of collision with person riding bicycle.
      1.  The driver of a motor vehicle shall not intentionally interfere with the movement of a person lawfully riding a bicycle or an electric bicycle.
      2.  When overtaking or passing a bicycle or electric bicycle proceeding in the same direction, the driver of a motor vehicle shall exercise due care and:
      (a) If there is more than one lane for traffic proceeding in the same direction, move the vehicle to the lane to the immediate left, if the lane is available and moving into the lane is reasonably safe; or
      (b) If there is only one lane for traffic proceeding in the same direction, pass to the left of the bicycle or electric bicycle at a safe distance, which must be not less than 3 feet between any portion of the vehicle and the bicycle or electric bicycle, and shall not move again to the right side of the highway until the vehicle is safely clear of the overtaken bicycle or electric bicycle.
      3.  The driver of a motor vehicle shall yield the right-of-way to any person riding a bicycle or an electric bicycle on the pathway or lane. The driver of a motor vehicle shall not enter, stop, stand, park or drive within a pathway or lane provided for bicycles or electric bicycles except:
      (a) When entering or exiting an alley or driveway;
      (b) When operating or parking a disabled vehicle;
      (c) To avoid conflict with other traffic;
      (d) In the performance of official duties;
      (e) In compliance with the directions of a police officer; or
      (f) In an emergency.
      4.  Except as otherwise provided in subsection 3, the driver of a motor vehicle shall not enter or proceed through an intersection while driving within a pathway or lane provided for bicycles or electric bicycles.
      5.  The driver of a motor vehicle shall:
      (a) Exercise due care to avoid a collision with a person riding a bicycle or an electric bicycle; and
      (b) Give an audible warning with the horn of the vehicle if appropriate and when necessary to avoid such a collision.
      6.  If, while violating any provision of subsections 1 to 5, inclusive, the driver of a motor vehicle is the proximate cause of a collision with a person riding a bicycle, the driver is subject to the additional penalty set forth in subsection 4 of NRS 484B.653.
      7.  The operator of a bicycle or an electric bicycle shall not:
      (a) Intentionally interfere with the movement of a motor vehicle; or
      (b) Overtake and pass a motor vehicle unless the operator can do so safely without endangering himself or herself or the occupants of the motor vehicle.


NRS 484B.777  Operating bicycle or electric bicycle on roadway.
      1.  Every person operating a bicycle or an electric bicycle upon a roadway shall, except:
      (a) When traveling at a lawful rate of speed commensurate with the speed of any nearby traffic;
      (b) When preparing to turn left; or
      (c) When doing so would not be safe,
 ride as near to the right side of the roadway as practicable, exercising due care when passing a standing vehicle or one proceeding in the same direction.
      2.  Persons riding bicycles or electric bicycles upon a roadway shall not ride more than two abreast except on paths or parts of roadways set aside for the exclusive use of bicycles or electric bicycles.

NRS 484B.783  Lamps, reflectors and brakes required on bicycles and electric bicycles.
      1.  Every bicycle or electric bicycle when in use at night must be equipped with:
      (a) A lamp on the front which emits a white light visible from a distance of at least 500 feet to the front;
      (b) A red reflector on the rear of a type approved by the Department which must be visible from 50 feet to 300 feet to the rear when directly in front of lawful lower beams of headlamps on a motor vehicle; and
      (c) Reflective material of a sufficient size and reflectivity to be visible from both sides of the bicycle for 600 feet when directly in front of the lawful lower beams of the headlamps of a motor vehicle, or in lieu of such material, a lighted lamp visible from both sides from a distance of at least 500 feet.
      2.  Every bicycle or electric bicycle must be equipped with a brake which will enable the operator to make the wheels skid on dry, level, clean pavement.


What Should Drivers Know?
    •    Drivers have to use “due care” to avoid colliding with a bicyclist.
    •    When a bicyclist in a Drivers travel lane, the Driver has to move to a left lane or if that is not possible, move over to the left, to allow 3 feet of distance between their car and the bicycle.
    •    Car Drivers must yield to the right of way of bicyclists when bicyclists are in a bike path or bike lane.
What are Bicyclists’ Responsibilities?
    •    Bicyclists must ride on the ride most side of the street, unless then are turning or passing a parked car or another bicyclist.
    •    Bicyclists cannot ride side by side with another bicyclist, unless they are in a bike path or bike lane.
    •    At night time, it is a bicyclists’ duty to have lights and red reflective tape on their bike for safety.
    

Next time, we will discuss the rules of the road when you see an ambulance or other emergency vehicle.

Monday, June 1, 2015

What are the Laws Pedestrians Must Follow on Nevada Roadways?


According to official Nevada records, 69 pedestrians died on our roadways last year. See, http://www.zerofatalitiesnv.com/pedestrian.php for more information on fatalities and injuries on our roads. 

The rules governing pedestrians on our roadways, is codified in Nevada Revised Statutes (“NRS”) 484B, entitled “Rules of the Road”.  Two relevant sections of NRS 484B are set forth here:


  NRS 484B.280 Duties of driver of motor vehicle to pedestrian; additional penalty if driver is proximate cause of collision with pedestrian.
      1. A driver of a motor vehicle shall:
      (a) Exercise due care to avoid a collision with a pedestrian;
      (b) Give an audible warning with the horn of the vehicle if appropriate and when necessary to avoid such a collision; and
      (c) Exercise proper caution upon observing a pedestrian:
             (1) On or near a highway, street or road;
             (2) At or near a bus stop or bench, shelter or transit stop for passengers of public mass transportation or in the act of boarding a bus or other public transportation vehicle; or
             (3) In or near a school crossing zone marked in accordance with NRS 484B.363 or a marked or unmarked crosswalk. ….

      NRS 484B.283 Right-of-way in crosswalk; impeding ability of driver to yield prohibited; overtaking vehicle at crosswalk; obedience to signals and other devices for control of traffic; additional penalty if driver is proximate cause of collision with pedestrian.
      1.  Except as otherwise provided in NRS 484B.287, 484B.290 and 484B.350:
      (a) When official traffic-control devices are not in place or not in operation the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be so to yield, to a pedestrian crossing the highway within a crosswalk when the pedestrian is upon the half of the highway upon which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half of the highway as to be in danger.
      (b) A pedestrian shall not suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.
      (c) Whenever a vehicle is stopped at a marked crosswalk or at an unmarked crosswalk at an intersection, the driver of any other vehicle approaching from the rear shall not overtake and pass the stopped vehicle until the driver has determined that the vehicle being overtaken was not stopped for the purpose of permitting a pedestrian to cross the highway.

What Should Drivers Know?
    •    Crosswalks exist at any intersection, whether there are marked or not.
    •    Drivers have to yield to all pedestrians in crosswalks. So, this means, if there is an intersection, with a marked crosswalk or not, drivers must yield to the pedestrians.
    •    Drivers must stop or slow down before passing another vehicle, which stopped in a travel lane, until the driver has determined whether that car has stopped for a pedestrian.
    •    All drivers must, in the presence of a school crossing guard, wait for all persons including the guard, to completely clear the road before proceeding.
    •    Have to yield at all times to a blind person using a white cane or service animal.
What are Pedestrians’ responsibilities?
    •    Pedestrians have to use the sidewalk and the nearest crosswalk or pedestrian bridge.
    •    They must obey official traffic-control devices.
    •    It is their duty to stay in the right-hand half of the crosswalk, whenever practical.
    •    If no sidewalk is available, pedestrians must walk on the left side of the street facing traffic.
    •    Crossing an intersection diagonally is not allowed, unless the intersection is specifically designed for this.
    •    Pedestrians must not suddenly walk into the path of an oncoming car, making it impossible for the car to stop.


Next time, we will discuss drivers’ duties to bicycle riders and laws bicyclists must follow on our roadways in Southern Nevada

Monday, May 11, 2015

What Are Motions in Limine in Nevada Trials?


What happens in a Court case, when the other side wants to introduce irrelevant evidence into a trial? Your accident attorney will file what is called a “Motion in Limine”. In a Motion in Limine, your attorney will outline every irrelevant fact or argument the other side may make at trial, and ask the Court to rule, before the trial starts, to not allow this irrelevant evidence into the trial. Examples could be prior unrelated accidents, criminal arrests and improper arguments to the jury.
 


The applicable Nevada state law on this issue is Nevada Revised Statute (“NRS”)48.035. NRS 48.035(2) states that “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” When preparing a Motion in Limine, NRS 48.035 is often cited.
 

Motions in Limine are designed to seek the Court's ruling on the admissibility of arguments, assertions and evidence in advance of trial. The Motion in Limine is an increasingly common vehicle through which litigants bring requests to exclude potentially prejudicial evidence from jury trial. See Kelly v. New West Fed. Sav., 56 Cal.Rptr.2d 803 (1996).
 

The Nevada Supreme Court has approved the use of Motions in Limine in a number of cases by recognizing the legitimacy of such pre-trial motion practice and the Courts' authority to rule on these motions. See Bull v. McCuskey, 96 Nev. 706, 615 P.2d 957 (1980), overruled on other grounds by Ace Truck and Equipment Rentals v. Kahn, 103 Nev. 503, 764 P.2d 132 {1987).
 

Motions in Limine "permit more careful consideration of evidentiary issues than would take place in the heat of battle during trial," and they promote judicial economy by minimizing "side-bar conferences and disruptions during trial, and by resolving "potentially critical issues at the outset, they enhance the efficiency of trials and promote settlements." Kelly, 56 CaL Rptr. 2d at 808, Edwards v. Centex Real Estate Corn., 61 Cal. Rptr.2d 51E( 524 (Cal. App. 1997); People v. Clark 10 Cal.Rptr.2d 554, 594 (Cal. App. 1992).

Motions in Limine are just one tool in the toolbox that your experienced accident attorney uses in your personal injury case.

Next time, we will discuss the laws for drivers when pedestrians are on the roadways.


Please note that we will be switching to a bimonthly blog format. So, the next informative installment will be on June 1st. Drive safe!

Monday, May 4, 2015

What are the Legal Aspects of Offers of Judgment in Nevada?


In Las Vegas accident and injury cases, there are two types of settlement offers. One is generally used before a lawsuit is commenced. These are just regular offers to settle your personal injury case and are simple offers, where you can accept, reject or submit a counter settlement offer. However, after a lawsuit has been filed, a regular offer of settlement can be transformed into a more formal settlement offer. These formal offers of settlement are called “Offers of Judgment”. 

Offers of Judgment must be submitted to the other side in writing and at least 10 days prior to trial. What makes an Offer of Judgment different from a regular offer, is the legal effect if the Offer of Judgment is rejected. There are legal penalties if Offer of Judgment is rejected and it turns out after a trial that it would have been a better financial decision to accept the Offer of Judgment. The trial court has discretion to award attorney’s fees and costs incurred by the party who submitted the Offer of Judgment, from the time the offer is made, through trial.

For example, let’s say an injured party submitted an Offer of Judgment for $10,000 to the at-fault party. However, the at-fault party rejects the offer and the case goes to trial. A jury determines that the injured party was entitled to $12,000. Since it would have be better to just accept the Offer of Judgment, there are legal penalties for the at-fault party failing to accept the Offer of Judgment. This law is in place, to encourage parties to settle, so that everyone could have avoided the time and expense of trial.

There are many laws governing these formal offers. The first of these laws is Nevada Revised Statute, (“NRS”) §17.115.  NRS §17.115, states in relevant part:

   NRS 17.115  Offer of judgment.
      1.  At any time more than 10 days before trial, any party may serve upon one or more other parties a written offer to allow judgment to be taken in accordance with the terms and conditions of the offer of judgment.
      2.  Except as otherwise provided in subsection 7, if, within 10 days after the date of service of an offer of judgment, the party to whom the offer was made serves written notice that the offer is accepted, the party who made the offer or the party who accepted the offer may file the offer, the notice of acceptance and proof of service with the clerk. ..Upon receipt by the clerk:
      (a) The clerk shall enter judgment according to the terms of the offer unless:
             (1) A party who is required to pay the amount of the offer requests dismissal of the claim instead of entry of the judgment; and
             (2) The party pays the amount of the offer within a reasonable time after the offer is accepted.
      (b) Regardless of whether a judgment or dismissal is entered pursuant to paragraph (a), the court shall award costs in accordance with NRS 18.110 to each party who is entitled to be paid under the terms of the offer, unless the terms of the offer preclude a separate award of costs.
 Any judgment entered pursuant to this section shall be deemed a compromise settlement.
      3.  If the offer of judgment is not accepted pursuant to subsection 2 within 10 days after the date of service, the offer shall be deemed rejected by the party to whom it was made and withdrawn by the party who made it. The rejection of an offer does not preclude any party from making another offer pursuant to this section. Evidence of a rejected offer is not admissible in any proceeding other than a proceeding to determine costs and fees.
      4.  Except as otherwise provided in this section, if a party who rejects an offer of judgment fails to obtain a more favorable judgment, the court:
               . . . .
      (d) May order the party to pay to the party who made the offer any or all of the following:
             (1) A reasonable sum to cover any costs incurred by the party who made the offer for each expert witness whose services were reasonably necessary to prepare for and conduct the trial of the case.
             (2) Any applicable interest on the judgment for the period from the date of service of the offer to the date of entry of the judgment.
             (3) Reasonable attorney’s fees incurred by the party who made the offer for the period from the date of service of the offer to the date of entry of the judgment. If the attorney of the party who made the offer is collecting a contingent fee, the amount of any attorney’s fees awarded to the party pursuant to this sub-paragraph must be deducted from that contingent fee.

A similar rule, this time in Nevada Rules of Civil Procedure (“NRCP”), is laid in Rule 68.  NRCP, Rule 68, states in part:
RULE 68.  OFFERS OF JUDGMENT
      (a) The Offer.  At any time more than 10 days before trial, any party may serve an offer in writing to allow judgment to be taken in accordance with its terms and conditions.
                ….
 
      (e) Failure to Accept Offer. If the offer is not accepted within 10 days after service, it shall be considered rejected by the offeree and deemed withdrawn by the offeror. Evidence of the offer is not admissible except in a proceeding to determine costs and fees. The fact that an offer is made but not accepted does not preclude a subsequent offer. With offers to multiple offerees, each offeree may serve a separate acceptance of the apportioned offer, but if the offer is not accepted by all offerees, the action shall proceed as to all. Any offeree who fails to accept the offer may be subject to the penalties of this rule.

      (f) Penalties for Rejection of Offer. If the offeree rejects an offer and fails to obtain a more favorable judgment,

             (1) the offeree cannot recover any costs or attorney’s fees and shall not recover interest for the period after the service of the offer and before the judgment; and

             (2) the offeree shall pay the offeror’s post-offer costs, applicable interest on the judgment from the time of the offer to the time of entry of the judgment and reasonable attorney’s fees, if any be allowed, actually incurred by the offeror from the time of the offer. If the offeror’s attorney is collecting a contingent fee, the amount of any attorney’s fees awarded to the party for whom the offer is made must be deducted from that contingent fee.

      (g) How Costs Are Considered. To invoke the penalties of this rule, the court must determine if the offeree failed to obtain a more favorable judgment. Where the offer provided that costs would be added by the court, the court must compare the amount of the offer with the principal amount of the judgment, without inclusion of costs. Where a defendant made an offer in a set amount which precluded a separate award of costs, the court must compare the amount of the offer together with the offeree’s pre-offer taxable costs with the principal amount of the judgment.

                         . . . .

The Nevada Supreme Court has held that when determining the amount of attorney’s fees that should be awarded pursuant to NRCP 68:
The trial court must carefully evaluate the following four factors: (1) whether the plaintiff’s claim was brought in good faith; (2) whether the defendant’s offer of judgment was reasonable and in good faith in both its timing and amount; (3) whether the plaintiff’s decision to reject the offer and proceed to trial was grossly unreasonable or in bad faith; and (4) whether the fees sought by the offeror are reasonable and justified in amount.  See Beattie v. Thomas, 99 Nev. 579, 588-89, 668 P.2d 268 (1983).
Based upon this Nevada case, whether attorney’s fees are actually awarded, is determined by the trial judge. The judge will determine if the amount and facts surrounding the Offer of Judgment  were reasonable.

It is also important to note that based upon the law, in personal injury contingency cases, the amount of attorney’s fees recovered from the other party, is deducted from any contingent fee. This leaves more money for the injury party, since their attorney’s fees are being paid, in part, by the other side.


Next time, we will discuss how a jury does not get to see certain evidence in Las Vegas accident cases.

Monday, April 27, 2015

Do Treating Doctors Have to be Listed as Experts in Las Vegas Personal Injury Cases?


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 doctors, they could also not testify as to Rodriguez's "mechanism" of injury, nor whether another doctor's treatment of Rodriguez was "causally related" to his initial injury. This was because, they too, had not formed these opinions during their treatment of their patient.

This ruling from the high court was based upon the fact that Rodriguez did not provide a written expert witness report for any of these treating physicians. The Court noted, that [w]hile a treating physician is exempt from the report requirement, this exemption only extends to "opinions [that] were formed during the course of treatment." Goodman v. Staples the Office Superstore, L.L.C., 644 F.3d 817, 826 (9th Cir. 2011); see Rock Bay, L.L.C. v. Eighth Judicial Dist. Court, 129 Nev. , n.3, 298 P.3d 441, 445 n.3 (2013)

So, what does this mean in your personal injury case? Your personal injury attorney will make sure that any medical providers, who will be testifying as to causation, will have either done so in the their medical records or will be designated as expert witnesses, providing accompanying expert reports. This will ensure compliance with the laws in the State of Nevada.

Next time, we will discuss Offers of Judgment in Las Vegas car accident cases.

Tuesday, April 21, 2015

What Documentation is Needed to Submit a Claim for Lost Wages in Las Vegas Injury Claims?


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 time you are claiming you lost income. Your personal injury attorney will also make sure this doctors ‘off work’ note is included with your request for lost wages. By submitting this complete paperwork package to the insurance company, your accident attorney will make sure you are fully reimbursed for the losses you sustained in the accident.

Next time, we will discuss using treating doctors as testifying experts in Las Vegas personal injury trials. 

Monday, April 13, 2015

What is the Law on a ‘Demand for Security Costs’ in Personal Injury Cases in Nevada?


A little known fact in Nevada, is that when an injured party lives out of state, the at-fault party is allowed to make a demand for “security costs” in Las Vegas personal injury cases. There is no similar law for Nevada residents. The law allowing this is NRS 18.130 and provides in full:

NRS 18.130  When plaintiff may be required to secure costs; affidavits of sureties; dismissal of action if undertaking not filed.
      1.  When a plaintiff in an action resides out of the State, or is a foreign corporation, security for the costs and charges which may be awarded against such plaintiff may be required by the defendant, by the filing and service on plaintiff of a written demand therefor within the time limited for answering the complaint. When so required, all proceedings in the action shall be stayed until an undertaking, executed by two or more persons, be filed with the clerk, to the effect that they will pay such costs and charges as may be awarded against the plaintiff by judgment, or in the progress of the action, not exceeding the sum of $500; or in lieu of such undertaking, the plaintiff may deposit $500, lawful money, with the clerk of the court, subject to the same conditions as required for the undertaking. The plaintiff, upon filing the undertaking or depositing the security, shall notify the defendant of such filing or deposit, and the defendant, after receipt of such notice, shall have 10 days or the period allowed under N.R.C.P. 12(a), whichever is longer, in which to answer or otherwise plead to the complaint.
      2.  A new or an additional undertaking may be ordered by the court or judge upon proof that the original undertaking is insufficient security, and proceedings in the action stayed until such new or additional undertaking be executed and filed.
      3.  Each of the sureties on the undertaking mentioned in subsection 1 shall annex to the same an affidavit that the surety is a resident and householder, or freeholder, within the county and is worth double the amount specified in the undertaking, over and above all the surety’s just debts and liabilities, exclusive of property exempt from execution.
      4.  After the lapse of 30 days from the service of notice that security is required, or of an order for new or additional security, upon proof thereof, and that no undertaking as required has been filed, the court or judge may order the action to be dismissed.

The law limits the initial amount requested, to be $500. Costs such as these are for photocopies, runner services, etc. It is important to note that this law does NOT apply to Nevada residents. It is only for persons who were injured in the state of Nevada, but reside out of state. The only way for a Nevada resident to pay costs, is if they were unsuccessful in their case.  For example, if a jury found the injured party responsible for causing the car accident, which resulted in injuries. However, it is important to note that most personal injury claims in Nevada ARE successful.

Next time, we will discuss proving lost wages in Las Vegas personal injury cases.

Monday, April 6, 2015

What is the ‘Seatbelt Rule’ in Las Vegas Car Accidents Cases?


Everyone knows that they are required to wear their seat belts while driving or riding in a car. However, most people do not know where the rule comes from or what implications it has in a Las Vegas car accident case. Today’s blog discusses what happens when the law on wearing your seat belt is not followed. For ease, personal injury attorneys call it the “Seat belt Rule”. The Seat belt Rule is laid out in Nevada Revised Statutes (“NRS”) §484D.495.   

NRS §484D.495 requires adults riding in cars to wear seat belts.  However, the law says that a violation of the rule is not a moving traffic violation and may not be considered as negligence in any personal injury action action. Relevant portions of NRS §484D.495 are set forth below:

  NRS 484D.495  Safety belts and shoulder harness assembly; requirements for child and other passenger; penalty; exemptions.
        ….
      2.  Any person driving, and any passenger who:
      (a) Is 6 years of age or older; or
      (b) Weighs more than 60 pounds, regardless of age, who rides in the front or back seat of any vehicle described in subsection 1, having an unladen weight of less than 10,000 pounds, on any highway, road or street in this State shall wear a safety belt if one is available for the seating position of the person or passenger.
        ….
      4.  A violation of subsection 2:
      (a) Is not a moving traffic violation under NRS 483.473.
      (b) May not be considered as negligence or as causation in any civil action or as negligent or reckless driving under NRS 484B.653.
      (c) May not be considered as misuse or abuse of a product or as causation in any action brought to recover damages for injury to a person or property resulting from the manufacture, distribution, sale or use of a product.
      5.  The Department shall exempt those types of motor vehicles or seating positions from the requirements of subsection 1 when compliance would be impractical.
      6.  The provisions of subsections 2 and 3 do not apply:
      (a) To a driver or passenger who possesses a written statement by a physician certifying that the driver or passenger is unable to wear a safety belt for medical or physical reasons;
      (b) If the vehicle is not required by federal law to be equipped with safety belts;
      (c) To an employee of the United States Postal Service while delivering mail in the rural areas of this State;
      (d) If the vehicle is stopping frequently, the speed of that vehicle does not exceed 15 miles per hour between stops and the driver or passenger is frequently leaving the vehicle or delivering property from the vehicle; or
      (e) Except as otherwise provided in NRS 484D.500, to a passenger riding in a means of public transportation, including a school bus or emergency vehicle.
        ….
 


 So, what does this actually mean in a Las Vegas car accident case? It means that although the law requires you to wear your seat belt, evidence of whether you were wearing your seat belt, in a car crash, does not come into a jury trial. For example, let’s assume you are driving in your car for a short trip to the corner store and do not put on your seat belt. While you are driving, a drunk driver crashes into your car, causing you to be thrown forward. Due to the accident, you sustained serious injuries. Based on the ‘Seat belt Rule’, the drunk driver would NOT be allowed to bring up the fact that you were not wearing your seat belt, to somehow show it was the cause of your injuries.
 

Next time, we will discuss when the at-fault party makes a demand for “security costs” in Las Vegas personal injury cases.

Monday, March 30, 2015

What Is Comparative Fault in Las Vegas Negligence Cases?

In most car accident cases, the liability of the at-fault driver is clear. If you are stopped at a red light and a drunk driver crashes into the back of your car, then everyone will generally agree that the drunk driver was 100% at fault for the accident. However, not every personal injury case in Nevada is that straightforward.

In cases where the other side might argue that you, as the injured person, were at fault, we apply “comparative negligence” law in Las Vegas personal injury cases. “Comparative negligence” law in Nevada means, that the jury will “compare” and assign fault percentages to both the injured and at-fault parties.

Nevada courts have held that “the purpose of the comparative negligence statute [is] to eradicate the harsh effect of a plaintiff's contributory negligence whenever such negligence is not greater than that of the source against which recovery is sought.” Mizushima v. Sunset Ranch, 103 Nev. 259, (1987).  

The applicable statute is NRS §41.141.  NRS §41.141 says that if an injured party [Plaintiff] is not more at-fault than the party they are claiming caused the accident, [Defendant], they can still make a successful personal injury claim against the Defendant.  However, if the jury finds the Plaintiff 50% or less at fault for causing the accident, the jury award will be reduced by the percentage of fault assigned to the Plaintiff.  NRS §41.141 provides in applicable part:


      NRS 41.141  When comparative negligence not bar to recovery; jury instructions; liability of multiple defendants.
      1.  In any action to recover damages for death or injury to persons or for injury to property in which comparative negligence is asserted as a defense, the comparative negligence of the plaintiff or the plaintiff’s decedent does not bar a recovery if that negligence was not greater than the negligence or gross negligence of the parties to the action against whom recovery is sought.
      2.  In those cases, the judge shall instruct the jury that:
      (a) The plaintiff may not recover if the plaintiff’s comparative negligence or that of the plaintiff’s decedent is greater than the negligence of the defendant or the combined negligence of multiple defendants.
      (b) If the jury determines the plaintiff is entitled to recover, it shall return:
             (1) By general verdict the total amount of damages the plaintiff would be entitled to recover without regard to the plaintiff’s comparative negligence; and
             (2) A special verdict indicating the percentage of negligence attributable to each party remaining in the action.
      3.  If a defendant in such an action settles with the plaintiff before the entry of judgment, the comparative negligence of that defendant and the amount of the settlement must not thereafter be admitted into evidence nor considered by the jury. The judge shall deduct the amount of the settlement from the net sum otherwise recoverable by the plaintiff pursuant to the general and special verdicts.      4.  Where recovery is allowed against more than one defendant in such an action, except as otherwise provided in subsection 5, each defendant is severally liable to the plaintiff only for that portion of the judgment which represents the percentage of negligence attributable to that defendant.
      5.  This section does not affect the joint and several liability, if any, of the defendants in an action based upon:
      (a) Strict liability;
      (b) An intentional tort;
      (c) The emission, disposal or spillage of a toxic or hazardous substance;
      (d) The concerted acts of the defendants; or
      (e) An injury to any person or property resulting from a product which is manufactured, distributed, sold or used in this State. . . . .

Based upon NRS §41.141, if the jury finds the injured party 20% at fault for the accident, the judge will reduce the jury award by 20%. Since you cannot be more at fault, if the jury found the injured party 60% at fault, NRS §41.141 would bar the injured party from any recovery. 

Next time, we will discuss the “Seat-belt Rule” in Nevada car accident cases.

Monday, March 23, 2015

What is Spoliation of Evidence and How Does it Affect My Las Vegas Personal Injury Case?



Today’s blog discusses what is ‘spoliation of evidence’ and how can it affect your Las Vegas personal injury case. Spoliation of evidence, is when a person or company losses evidence in a personal injury case. The most common example of spoliation of evidence, is when a company losses the videotape of a person’s fall. 

Nevada law provides that when a potential for a personal injury claim exists, a party ‘is under a duty to preserve evidence which it knows or reasonably should know is relevant to the action.’ Banks v. Sunrise Hospital, 102 P.3d 52, 58 (Nev. 2004) (quoting Fire Ins. Exchange v. Zenith Radio Corp., 103 Nev. 648, 651, 747 P.2d 911, 914 (1987).  Even if a lawsuit has not yet been filed and if there is only “a potential for litigation [lawsuit],” the duty to preserve evidence arises. 



Nevada law holds that should the at-fault party be unable to produce the videotape, then the injured party is entitled to a ‘loss of evidence’ jury instruction. The jury is instructed that the loss of videotape, creates an inference that the evidence was harmful to the at-fault party, otherwise they would have kept the evidence. Bass Davis v. Davis, 122 Nev. 442, 134 P.3d 103, at 107, (2006), and Reingold v. Wet’nWild, Nevada, Inc., 113 Nev. 967, 944 P.2d 800 (1997). This rule applies even if the evidence is lost or negligently destroyed.  The Bass-Davis court held:


[The] sanction [of an adverse inference] should be available even for the negligent destruction of documents if that is necessary to further the remedial purpose of the inference. It makes little difference to the party victimized by the destruction of evidence whether that act was done willfully or negligently. The adverse inference provides the necessary mechanism for restoring the evidentiary balance. The inference is adverse to the destroyer not because of any finding of moral culpability, but because the risk that the evidence would have been detrimental rather than favorable should fall on the party responsible for its loss. (Citing Turner v. Hudson Transit Lines, 142 F.R.D. 68, 75 (S.D.N.Y.1991); see also Residential Funding Corp. v. DeGeorge Financial, 306 F.3d 99, 108 (2d Cir.2002). Id. at 107.


In Bass-Davis, a customer slipped on a wet floor at a 7-Eleven. The customer claimed that a 7-Eleven employee had mopped the floor but failed to post warning signs. During discovery, the injured party’s personal injury attorney found out that the 7-Eleven franchisee could not locate the surveillance videotape documenting Bass-Davis’ fall. The jury was to be instructed that the videotape would have been detrimental to 7-11.


Next time, we will discuss comparative negligence in Las Vegas personal injury cases.

Tuesday, March 17, 2015

What is the Effect of a Signed Waiver on My Las Vegas Personal Injury Case?



We have all experienced taking a trip or doing an activity, where you are required to sign a waiver before participating in the activity. Normally, we sign the waivers because we do not think anything bad will actually happen. But, what happens if you are injured in an activity after you sign a waiver? Whether the waiver will bar you from making a claim will depending on the unique facts of your case. It will be up to the judge in your case, to determine if you can present your personal injury case to a jury. 


Historically, in Nevada there first must have been voluntary exposure to the danger. Sierra Pacific v. Anderson, 77 Nev. 68, at 71-73, 358 P.2d 892, at 894 (1961). Second, there must have been actual knowledge of the risk assumed. The Nevada High Court previously stated that “A risk can be said to have been voluntarily assumed by a person only if it was known to him and he fully appreciated the danger.” Id., quoting Papagni v. Purdue, 74 Nev. 32, 35, 321 P.2d 252, 253 (1958). 


After the above case was handed down, the Nevada Legislature instituted what is called “comparative fault”. In comparative fault, if you are 51% or more at fault for your injuries, you cannot recover in a court of law. This law has somewhat changed the analysis of the effect of signed waivers on a case. 


Specifically, in Renaud v. 200 Convention Center Ltd., the Nevada Supreme Court determined an injured person who signed a waiver, was able to present their personal injury claim to a jury. 728 P.2d 445, 441, 102 Nev. 500, 506 (1986). This was after they signed a liability waiver and had later suffered an injury, in a free-fall simulator. The Court explained that because the injured party denied appreciation of the risks associated with the freefall simulator, a question of fact existed regarding whether she had actual knowledge of those risks. The Court went on to say that “Because actual knowledge of the risks assumed is an essential element of this defense, such a matter must be reserved for the fact finder.” Id. The Court further explained that it was necessary to evaluate all the circumstances as they existed at the time the release was obtained. Id. “Considerations should include, but are not limited to, the following: the nature and extent of the injuries, the haste or lack thereof with which the release was obtained, and the understandings and expectations of the parties at the time of signing.” 

Based upon Nevada law, whether you can make a claim for personal injury after signing a waiver, is determined on a case by case basis. You should contact your personal injury attorney immediately to discuss your case. Your personal injury attorney will delve into the facts of your case and go over your options with you.


Next time, we will discuss ‘spoliation’ of evidence in Las Vegas personal injury cases.

Monday, March 9, 2015

Can I Sign An Affidavit Without Using a Notary?


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     ____________________                         ________________________                                     
                                            (date)                                               (signature)

The Federal law on this issue is codified in 28 USC 115 § 1746 and provides in relevant part:
 28 USC 115 § 1746. Unsworn declarations under penalty of perjury.  Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:



(1) If executed without the United States: "I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)".


(2) If executed within the United States, its territories, possessions, or commonwealths: "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)".

Please note that the State and Federal law referenced above apply to declarations and affidavits. Other legal documents, such as wills, trusts and health care power of attorneys should still be signed in front of a notary. If you have any questions as to which documents can be signed without the use of notary, contact your personal injury attorney for more information.

Next time, we will discuss the effect of a signed waiver in personal injury actions.

Monday, March 2, 2015

Can My Facebook Posts Come into Evidence in a Las Vegas Personal Injury Case?



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 require you to turn over all of your social media posts from the time of the car accident to the present time. The court will then review the posts and determine what the other side can use in its case. This may include any posts relating to the accident at issue as well as your physical activities and your physical condition. 


What is the safest course of action after you are involved in a car accident? Do not post anything online until your case is resolved. If you must post, refrain from posting anything that involves the accident at issue, your physical activities and your physical condition.
 

It is important to note that this is young and developing field of law. The court’s decision may change and the Nevada Supreme Court could weigh in on what is going on in the trial court level.
 

Next time, we will discuss if you need to sign documents in the presence of a notary.

Monday, February 23, 2015

What is a Rental Car Company’s Liability When Their Renter is Involved in a Car Accident?



Las Vegas is an exciting and wonderful city. We live in city that also attracts a lot of visitors. These visitors often rent cars. Given the amount of visitors we regularly have in our city, we have perhaps more rental cars on the road than other average cities.


But, what happens when one of these car rental drivers causes an accident to one of our residents?  What is the car rental company’s liability in this scenario? There are two main statutes and three cases that have come out of the Nevada Supreme Court, that tell us what the rights and responsibilities are for rental car companies in these situations.
 

The first statute is NRS §482.295. This statute requires car rental companies to have insurance before their rental cars hit the road. In these cases, car rental companies are called “lessors”, while the driver’s who rent these cars (via a short term lease), are called the “lessees”:

NRS §482.295.
Registration by short-term lessor: Proof of financial ability to respond to damages. The Department or a registered dealer shall not register a vehicle intended to be leased by a short-term lessor until the owner demonstrates to the Department the owner’s financial ability to respond to damages by providing evidence of insurance as that term is defined in NRS 485.034. 


So, before a car rental company can even register its rental cars, it must show proof of insurance to the DMV.  It’s counterpart, NRS §482.305, provides more information as to what type of insurance coverage the rental company must have, which is $15,000 per person/$30,000 per accident:
 

NRS §482.305.Short-term lessor not providing coverage jointly and severally liable with short-term lessee for certain damages; notice to lessee of extent of coverage; dismissal of action against lessor if coverage provided.

      1.  The short-term lessor of a motor vehicle who permits the short-term lessee to operate the vehicle upon the highways, and who has not complied with NRS 482.295 insuring or otherwise covering the short-term lessee against liability arising out of his or her negligence in the operation of the rented vehicle in limits of not less than $15,000 for any one person injured or killed and $30,000 for any number more than one, injured or killed in any one accident, and against liability of the short-term lessee for property damage in the limit of not less than $10,000 for one accident, is jointly and severally liable with the short-term lessee for any damages caused by the negligence of the latter in operating the vehicle and for any damages caused by the negligence of any person operating the vehicle by or with the permission of the short-term lessee, except that the foregoing provisions do not confer any right of action upon any passenger in the rented vehicle against the short-term lessor. This section does not prevent the introduction as a defense of contributory negligence to the extent to which this defense is allowed in other cases.
      2.  The policy of insurance, surety bond or deposit of cash or securities inures to the benefit of any person operating the vehicle by or with the permission of the short-term lessee in the same manner, under the same conditions and to the same extent as to the short-term lessee.
      3.  The insurance policy, surety bond or deposit of cash or securities need not cover any liability incurred by the short-term lessee of any vehicle to any passenger in the vehicle; but the short-term lessor before delivering the vehicle shall give to the short-term lessee a written notice of the fact that such a policy, bond or deposit does not cover the liability which the short-term lessee may incur on account of his or her negligence in the operation of the vehicle to any passenger in the vehicle.
      4.  When any suit or action is brought against the short-term lessor under this section, the judge before whom the case is pending shall hold a preliminary hearing in the absence of the jury to determine whether the short-term lessor has provided insurance or a surety bond or deposit of cash or securities covering the short-term lessee as required by subsection 1. Whenever it appears that the short-term lessor has provided insurance or a surety bond or deposit of cash or securities covering the short-term lessee in the required amount, the judge shall dismiss as to the short-term lessor the action brought under this section.



Pursuant to NRS §482.305, if the rental car company does in fact have the minimum insurance policy limits, then the judge will dismiss them as an actual party to the case. In addition to these two statutes, there are three main cases that have come out of the Nevada Supreme Court to address these issues. The three cases are Alamo, Salas and Hall


Decided in 1998, the Nevada Supreme Court in Alamo, stated that the at-fault driver’s personal policy provides primary coverage to the injured party. By contrast, the insurance coverage provided by the car rental company is deemed to be "secondary," i.e., excess coverage. Alamo Rent-A-Car v. State Farm, 953 P.2d 1074 (Nev. 1998).  Alamo held that if the at-fault driver did not have their own personal policy covering an accident, then the rental car company "will step in and compensate the victim up to the minimum limits." 


Just two years later, in 2000, the Nevada Supreme Court wrote the Salas opinion.  In Salas, the Court determined that if the at-fault driver had insurance, but it was insufficient to compensate the injured party for their losses, then the rental car company’s insurance would also come into play. Salas v. Allstate Rent-A-Car, 14 P.3d 511 (Nev. 2000).  This is called “dual” or "stacked" coverage. The Salas Court stated that “[s]ound public policy dictates that a short-term lessor of motor vehicles may be required to compensate the victim, at least up to the statutory minimum, in cases where the lessee's personal insurance does not fully compensate the victim(s).”
 

The trilogy of cases ends with Hall.  In Hall, the Nevada Supreme Court clarified the car rental company’s liability. The Court in Hall determined that the separate coverage provided by the rental car company, is based upon the liability of the at-fault driver. Hall v. Enterprise Leasing, 122 Nev. 685, 137 P.3d 1104 (2006). In short, Hall held that Nevada is not a "direct action" state, but rather, allows actions by injured persons against the car rental company’s insurance policy, only after a judgment against the at-fault party has been obtained. 
 

In Hall, the injured party settled with the at-fault driver and then sought to seek additional compensation from the car rental company. The Court did not allow this. Based upon the holding in Hall, the car rental company’s liability arises from the liability of the at-fault driver. So, you CANNOT settle with the at-fault driver, without first seeking and preserving your rights of recovery against the car rental company’s insurance.

Next time, we will discuss the use of social media sites after being involved in a car accident.