Thursday, January 29, 2015
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 Arbaugh v. Y & H Corp. (2006) 546 US 500.514. 126 S.Ct. 1235. Courts note that this amount-in-controversy threshold is an ingredient of subject-matter jurisdiction. It is important to note that there is no generally no monetary limit in federal question cases. See 28 USC§ 1331. However, in your regular personal injury case, generally no federal question is presented.
The amount in controversy for jurisdictional purposes is determined by the amount of damages or the value of the property that is the subject of the action. See Hunt v. Washington State Apple Advertising Comm'n (1977) 432 US 333, 347-348. 97 S.Ct. 2434, 2443-2444; Meisel v. Allstate Indem. Co. (ED CA 2005) 357 F.Supp.2d 1222, 1225. The amount in controversy may include compensatory damage claims for "general" or "special" damages (pain and suffering, as well as out-of-pocket loss).
It is important to note that the amount in controversy may include punitive damages if (1) they are recoverable as a matter of state law and (2) it cannot be said to a legal certainty that plaintiff would not be entitled to recover the jurisdictional amount. [Anthony v. Security Pac. Fin 'I Services, Inc. (7th Cir. 1996) 7 5 F3d 311, 315; Watson v. Blankinship (10th Cir. 1994) 20 F.3d 383, 386-387; St. Paul Reinsurance Co., Ltd. v. Greenburg (5th Cir. 1998) 134 F3d 1250, 1253- 1254. When a punitive damages claim makes up the bulk of the amount in controversy, the court will "scrutinize that claim closely" to be certain jurisdiction exists. [Anthony v. Security Pac. Fin. Services, Inc., supra, 75 F3d at 315; Packard v. Provident Nat. Bank (3rd Cir. 1993) 994 F2d 1039.
The at-fault party/defendant has the burden of proof to show to the court that the case has a value over $75,000.00. Case law says that the removing defendant may make the requisite showing by either: demonstrating that it is ''facially apparent" from the complaint that the claims likely exceed $75,000 (e.g., claims of loss of life or limb, punitive damages, etc.); or setting forth facts in the notice of removal (or sometimes by affidavit) that support a finding of the requisite amount. [Luckett v. Delta Airlines, Inc. (5th Cir. 1999) 171 F3d 295, 298].
The next issue is the standard of proof. Courts vary on the standard of proof a defendant must satisfy in order to support its burden as to the amount in controversy when the state court complaint is uncertain or silent. Most courts, including the 9th Circuit (where Nevada is located), hold the defendant must prove existence of the jurisdictional amount by a preponderance of the evidence (i.e., "more likely than not"). [Sanchez v. Monumental Li(e Ins. Co. (9th Cir. 1996) 95 F3d 856, 860; Williams v. Best Buy Co., Inc. (11th Cir. 2001) 269 F.3d 1316, 1319; H & D Tire & Automotive-Hardware, Inc. v. Pitney Bowes Inc. (5th Cir. 2000) 227 F.3d 326,328, fn. 2.
Your personal injury attorney will make sure your case is in the proper court. If you case was improperly removed to Federal Court, your attorney will petition the Court to transfer the case back to State Court.
Next time, we will discuss the liability of parents when their teenage children are involved in a car accident.
Monday, January 19, 2015
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 that duty; (3) the breach was the legal cause of the plaintiff’s injuries; and (4) the plaintiff suffered damages. See DeBoer v. Senior Bridges of Sparks Family Hosp., Inc., 282 P.3d 727, 732 (2012). The court noted that the third element contemplates that the plaintiff/injury party suffered an injury.
The question in front of the court, was whether a physical injury was required to make a claim, or if a legal injury was sufficient. The court found legal injury was enough. The court noted that in cases of negligent infliction of emotional distress, a physical injury is similarly not required.
The court also gave the example of Jones being knocked down by the negligence of Smith. If Jones goes to the doctor to have tests run to see if he suffered injuries, Smith would be responsible for Jones’ medical bills, even if the testing comes back that Jones is not physically injured.
Next time, we will discuss removal of personal injury cases to Federal Court.
Monday, January 12, 2015
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 108.590 and its counterparts, govern relevant issues as to statutory liens, related to hospital medical care:
NRS 108.590 Extent of lien; exception; lien in addition to lien on property.
1. Whenever any person receives hospitalization on account of any injury, and the injured person, or a personal representative after the person’s death, claims damages from the person responsible for causing the injury, the hospital has a lien upon any sum awarded the injured person or the personal representative by judgment or obtained by a settlement or compromise to the extent of the amount due the hospital for the reasonable value of the hospitalization rendered before the date of judgment, settlement or compromise. ….
NRS 108.610 Notice of lien required: Recording and service. In order to perfect the lien, the hospital or the owner or operator thereof shall:
1. Before the payment of any money to the injured person or to a legal representative as compensation for injuries received, record a notice of lien, substantially in the form prescribed in NRS 108.620, containing an itemized statement of the amount claimed. The notice of lien must be filed with:
(a) The county recorder of the county wherein the hospital is located; and
(b) The county recorder of the county wherein the injury was suffered, if the injury was suffered in a county other than that wherein the hospital is located.
2. Before the date of judgment, settlement or compromise, serve a certified copy of the notice of lien by registered or certified mail upon the person alleged to be responsible for causing the injury and liable for damages on account thereof and from which damages are claimed.
3. Before the date of judgment, settlement or compromise, serve a certified copy of the notice of lien by registered or certified mail upon the insurance carrier, if known, which has insured against liability of the person alleged to be responsible for causing the injury and liable for damages on account thereof and from which damages are claimed.
NRS 108.650 Payment to injured person after notice of lien; liability and payment to hospital.
1. Any person or insurer who, after the receipt of a certified copy of the notice of lien pursuant to NRS 108.610, makes any payment to the injured person, the person’s heirs, personal representatives or the attorney for any of them, as compensation for the injury suffered, without paying the hospital the reasonable value of hospitalization rendered to the injured person and claimed in its notice of lien or so much thereof as can be satisfied out of the money due under any final judgment, settlement or compromise, after paying the attorney’s fees, costs and expenses incurred in connection therewith and any prior liens, is, for a period of 180 days after the date of that payment, liable to the hospital for the amount or part thereof which the hospital was entitled to receive. The hospital has, within that period, a cause of action or other claim for relief against the person or insurer making the payment, which may be prosecuted and maintained in any county wherein the notice of lien was filed.
2. Except as otherwise provided in this subsection, if the hospital is publicly owned or not for profit, the person or insurer shall make the payment to the hospital by issuing to the hospital a separate check or other negotiable instrument. If the provisions of NRS 353.1467 apply, the person or insurer shall make the payment to the hospital by way of any method of electronic transfer of money allowed by the hospital.
3. As used in this section, “electronic transfer of money” has the meaning ascribed to it in NRS 353.1467.
In a statutory lien pursuant to NRS 108.509, a hospital can assert a lien on your personal injury case, by providing notice to your personal injury attorney via certified mail and recording the same with the local Recorder’s office. Your attorney must satisfy your hospital lien out of the settlement of your case or if the hospital requests, the insurance company must issue a separate settlement check to the hospital to satisfy the lien.
The other type of lien that arises in personal injury cases, is a contractual lien. This type of lien arises, when you seek medical care, but cannot pay out of pocket. Here, you sign a lien contract, stating that you authorize your injury attorney to pay your medical bills, out of the case proceeds. Your attorney will also countersign this document. By signing this lien contract, your attorney is obligated by law to pay your medical providers out of the case funds.
In both types of liens, your attorney is obligated to ensure that both the hospital and other medical providers get paid for the services that they rendered. This means, that when there is a lien on your case, your attorney and not you, must pay your medical bills.
Next time, we will discuss whether physical injury is required to assert a personal injury claim in Nevada.
Monday, January 5, 2015
The disclosure of damages in Nevada injury cases is mandated by our Nevada Rules of Civil Procedure. Specifically, Rule 16.1 (a)(1)(c) requires that once litigation is ongoing, your personal injury lawyer is required to disclose all of your damages.
When does this happen? After an Answer to the Complaint (lawsuit) is filed, then your injury attorney and the other side, will personally meet for an Early Case Conference, to agree on discovery dates and discuss your case. At this Early Case Conference or within 14 days thereafter, your accident attorney will disclose your damages to the other side. There is a continuing obligation to update your computation of damages, so the other side has this information well before any trial date is set.
What do your “damages” consist of in your case? Your damages would be your past and future medical bills, lost wages and any loss you sustained as result of the accident. These are called your “special” damages. Your attorney will also list your “general” damages of pain and suffering.
Where is this information provided? Your damages information is provided in what is called a List of Witnesses and Production of Documents. This document not only lists your damages, but it also lists the witnesses in your case and provides the documents you will relying on to support your case, such as medical records and witness statements. Your damages would be listed in a “Computation of Damages” section of this document.
Next time, we will discuss a lawyer’s obligations to satisfy medical liens in personal injury cases.