Saturday, December 31, 2016

Are Alternative Theories of Medical Causation Allowed in Personal Injury Claims?


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” argument, Siems’ lawyers called one of Kami’s own treating physicians and expert witnesses, Ophthalmologist Dr. Stephen Hansen, M.D., to the witness stand. 


In a strange turn of events, Dr. Hansen testified that he had discharged Kami as a patient for noncompliance. Dr. Hansen also told the jury that felt that Kami was stealing eye drops from his clinic, because bottles went missing after several of her appointments. Dr. Hansen testified that the use of the numbing eye drops may have caused her vision to deteriorate and contributed to her lack of improvement. He also felt that had she followed his directions, her vision could have actually improved after surgery. Not surprisingly, Kami vehemently denied these accusations. But after weighing Kami’s testimony against Dr. Hansen’s account, the jury returned a verdict for the eye doctor, finding that Siems was not negligent and did not cause any harm to Kami. 


Kami asked the court for a new trial and for a different jury to hear the evidence. But this time, Kami’s lawyers asked the court to prevent Dr. Hansen from recounting his “eye-drop-abuse” theory to the jury, since it wasn’t stated to a “reasonable degree of medical probability”.


The court ruled that the defense and plaintiff are held to different standards when it comes to talking about causation in personal injury trials. The court in Leavitt determined, that since the drug-abuse theory was to “contradict” Kami’s theory of negligence and not to propose an “independent alternative causation theory”, the jury was allowed to hear the evidence. The court relied on the recent 2011 case of Williams v. Eighth Judicial District Court, 127 Nev. _, 262 P.3d 360 (2011). The court found that per their ruling in Williams, a defense expert's testimony regarding alternative causation need not be stated to a “reasonable degree of medical probability”, when it is being used to controvert an element of the plaintiffs claim, rather than to establish an independent theory of causation.


Accordingly, once an injured party’s causation burden is met, the defense expert's testimony may be used for either cross-examination or contradiction purposes, without having to meet the “reasonable degree of medical probability” standard.  The only caveat, is that the defense has to be supported by relevant evidence or research. Id. 


The Leavitt court found Dr. Hansen's testimony met these requirements because his assessment was based on his training and experience with numbing eye drops' toxicity through his residency, cornea clinics, and 20 years of clinical experience. The court went on to say that even if portions of Dr. Hansen’s testimony were speculative, it was for the jury to assess the weight to be assigned to his testimony. Citing NRS 50.305; Houston Exploration Inc. v. Meredith, 102 Nev. 510, 513, 728 P.2d 437, 439 (1986).


Next time, we will talk about Pre-Judgment Interest in personal injury cases.

Friday, December 16, 2016

How do You Prove Diminished Value After a Car Crash?


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 rates as long as that person had some basis for the valuation. Id. Further, loss of use damages may also be awarded for the inconvenience of loss of use based on individual circumstances, to which the party can testify. Id.  


Whether the aggrieved party actually rents a car is irrelevant, because she is still entitled to have the jury consider her loss of use damages. Id. What a reasonable amount to claim for loss of use damages?  Generally, insurance companies will accept $20.00 per day for a rental car. If you have a luxury car, you can ask the insurance company to consider how much it would cost to rent a comparable replacement car. 


In addition to “loss of use” damages, Nevada law allows for claims to be made, as a result of the diminished value of your repaired property.  See Mort Wallin v. Commercial Cabinet Co., 105 Nev. 855, 857 (Nev. 1989). In Mort Wallin, there wasn’t enough evidence presented to the trial court as the actual diminished value of the property at issue. But, the Nevada Supreme Court determined that “diminished value” is a recognizable loss when property has to be repaired. 


Other courts in the U.S. have also determined that “diminished value” is a recognizable loss. A Georgia case found that virtually, as a matter of law, wrecked cars have diminished value. See Mabry v. State Farm, 274 Ga. 498, 556 S.E.2d 114 (2001). A District of Columbia case has also done a survey of the law on this issue. See American Service Center Associates v. Helton, 867 A.2d 235 (D.C. App. 2005). Similarly, an Oklahoma Court has said, the overwhelming weight of legal authority supports the rule that damages are not limited to the cost of repairs actually made, where it is shown that repairs failed to bring the property up to the condition it was in prior to the damage. See Brennen v. Aston, Jr., 2003 OK 91. In such cases, the cost of repairs made, plus the diminution in value of the property, will ordinarily be the proper measure of damages.


Where in town can you get a Diminished Value Report? Las Vegas Auto Appraisers can be reached at 877.868.9123. Wreck Check Car Scan Centers is another provider of diminished value reports. Their phone number is 800.762.2671. Both have reputations on assessing the diminished value of your car. 


Next time, we will talk about alternative theories of medical causation in personal injury claims.

Wednesday, November 30, 2016

How Do You Prove Liability in a Slip and Fall Case?



In a Las Vegas slip and fall case, a property owner is only liable for your injuries if there were on notice of the dangerous condition which caused your fall. Your Las Vegas Personal Injury Attorney therefore has to prove that the owner was on “notice” of the dangerous condition. How is this done? The best way of showing this, is by finding evidence of prior similar falls. This evidence is required, because your Las Vegas Personal Injury Lawyer has to show that the at fault party “knew or should have know” that what caused you to fall, was a known hazard.

One would think that the property owner would simply turn this evidence over. However, in your Las Vegas Personal Injury Attorney’s experience, the at fault parties fight tooth and nail before turning over any of this potentially damning evidence. What this means, is that your Las Vegas Personal Injury Attorney has to fight in court, to get a copy of this evidence. The good news, is that your Las Vegas Personal Injury Attorney has been successful in using the court process to get property owners to turn over documents of similar slip and falls.


Your Las Vegas Personal Injury Attorney argues to the court, that the at fault party is required to produce all reports of slips, trips, or falls, because the prior injury claims are relevant to establish that a “dangerous condition” existed.


Our Nevada Supreme Court has held that evidence of prior accidents may be properly admitted to show notice of a dangerous condition. Southern Pac. Co. v. Watkins, 83 Nev. 471, 483, 435 P.2d 498, 506, (1967). In addition, the Court stated that, although evidence of the type here in question is usually excluded where it relates to a temporary condition which might or might not exist from one day to the other, it may be admissible upon a proper showing that the conditions surrounding the prior occurrences have continued and persisted. Eldorado Club, Inc. v. Graff, 78 Nev. 507, 510, 377 P.2d 174, 176 (1962).


When you hire your Las Vegas Personal Injury Attorney, they will make sure to go over the process of establishing liability on the part of the property owner. 

 

Next time, we will talk about Diminished Value of your car after a car crash.

Tuesday, November 22, 2016

What is the Liability of Rental Car Companies after a Car Crash?

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 that since car insurance companies are in the business of evaluating risks and paying out claims, the at fault driver’s personal insurance policy pays before the car rental’s insurance kicks in. See Salas v. Allstate Rent-A-Car 14 P.3d 511(Nev. 2000). 


The trilogy ends six years later in 2006, in the case of Hall v. Enterprise Leasing. In Hall, the injured person settled with the at fault party and then tried to go after the car rental company, Enterprise, for their policy limits. However, the Nevada Supreme Court determined that the car rental company’s liability is “derivative” or is based on the at fault party’s liability. So, once the at fault party was out of the case, the car rental company had no more responsibility for accident related injuries. See Hall v. Enterprise Leasing 122 Nev. 685 137 P.3d 1104 (2006).
 

This is a very specialized area of law for a Las Vegas Personal Injury Attorney. The Hall case is notable for the fact that going after the car rental company’s insurance can be a trap for the unwary. In short, once you settle and dismiss the at fault driver, you can no longer go after the car rental company for your injuries. 
 

Next time, we will talk about evidence of prior slip and falls.

Monday, October 31, 2016

What are the New Developments in Automated Cars?


Few things affect your Las Vegas Car Accident Attorney more than the automated cars. As you may recall from prior blogs, automated cars are now being tested on our Nevada roadways. Aside from minor accidents, there have been no real catastrophes involving automated cars. That all changed on May 7, 2016 for a driver in Florida.

On May 7, 2016, Joshua Brown, a former Navy Seal, was driving his Tesla Model S in Florida, in the “semi-autonomous Autopilot system”, when he was killed in a fatal car crash. In piecing together the events leading up to the crash, investigators determined Mr. Brown wasn’t actually driving his car.  Moments before the crash, a big rig, made a left hand turn in front of Mr. Brown’s Tesla.

The driver of the semi-truck, said when the accident happened, he could hear a movie playing. In an erie turn of events, even after Mr. Brown had died in the collision, the truck driver saw the Telsa drive down a quarter of mile before stopping due to hitting a light pole. In support of the truck driver’s claim, police found a portable DVD player in the Tesla. The DVD proved that Mr. Brown was watching a Harry Potter movie instead of watching the road. 

What caused this horrific accident? Tesla was noted as saying that the Autopilot system failed to see the white truck against the bright Florida sky. Tesla released a lengthy statement on statement the crash, saying:  

“Neither Autopilot nor the driver noticed the white side of the tractor trailer against a brightly lit sky, so the brake was not applied. The high ride height of the trailer combined with its positioning across the road and the extremely rare circumstances of the impact caused the Model S to pass under the trailer, with the bottom of the trailer impacting the windshield of the Model S.” 

For your Las Vegas Car Accident Lawyer, there is a deeper issue with current automated cars. The problem with “Driverless” cars at present, is that drivers who aren’t fully paying attention, don’t really have the reaction time to prevent an accident. You can’t ask someone to let the car do all the driving and then act surprised when the “driver” doesn’t have time to avoid an accident.

The Federal government now wants to regulate autonomous cars and take that power away from the states. These new Federal guidelines have come from the Department of Transportation's National Highway Traffic Safety Administration (“Safety Administration”).  The Safety Administration has said that States should stick to registering the cars and dealing with questions of liability, when the driver is a computer. It remains to be seen how the States feel about this and what the ultimate result will be. 

The Safety Administration stated that it can use its current “recall” authority to regulate automated cars. It warned automakers that self-driving cars that still rely on a human driver to intervene in some circumstances must have a means for keeping the driver's attention. If they don't, that "may be defined as an unreasonable risk to safety and subject to recall," the department said.  This is an ever-changing topic and updates will be provided by your Las Vegas Accident Lawyer as developments unfold.

Next time, we will talk about the liability of rental car companies after an accident.

Friday, October 14, 2016

What are the Changes in Las Vegas Justice Court’s Jury Award Limits?



What is the best thing about the law? That it changes all the time. What is the worst thing about the law? That it changes all the time! If one thing can be said about the practice of law for your Las Vegas Personal Injury Lawyer, is that she is always being challenged to keep up with the changes in the law. Today’s blog deals with the exciting new developments for personal injury cases in Las Vegas Justice Court. 


In the past, Las Vegas Justice Court and it’s Small Claims counterpart, both had max awards limits of $10,000 per injured person. Starting on January 1, 2017, Las Vegas Justice Court will increase its jurisdictional limit from the present $10,000 to $15,000.  


Small Claims Court will keep its trial award limits of $10,000. Your
Las Vegas Personal Injury Attorney will tell you that the benefit of Small Claims Court is that your case will go to trial generally within a few months of filing your lawsuit and trials generally last less than an hour. This is a quick and efficient way to resolve a smaller personal injury claim. However, Small Claims Court does not allow for the award of any attorney’s fees. The great part of Las Vegas Justice Court, is that attorney’s fees can be awarded to the winning party. 


If your
Las Vegas Personal Injury Attorney recommends that you should file your case in Justice Court, you will usually have a trial date within 6 months. Trials are also limited to one day. While it takes a little longer to go to trial, as compared to Small Claims Court, the damages limit is $15,000, as compared to the lower $10,000 in Small Claims Court. Justice Court also has the added bonus that the Court can award attorney’s fees and costs. 


If you case has a value of over $15,000, the other option to your Las Vegas Personal Injury Attorney is to file your lawsuit in District Court. Yet, in District Court, special hurdles exist to get to trial, if your case is valued at less than $50,000. In those instances, you have to go through a “non-binding” arbitration program before you ever get to trial. It usually takes about 6 to 9 months to get your arbitration hearing. 


Since this special program is “non-binding”, any party who doesn’t like the Arbitrator’s decision can ask for an actual trial. The additional wait to get a trial, may be up to 6-9 months. So, it could take up to two years to resolve smaller cases. This is why Justice Court is a great new option for smaller Las Vegas Injury Cases. Talk to your Las Vegas Personal Injury Lawyer about which court is best for your case. 


Next time, we will talk about new developments in driverless cars.

Wednesday, September 21, 2016

What Happens When you Want to Serve a Foreign Company with a Lawsuit?


Serving a foreign corporation with lawsuit documents would seem pretty straightforward according to the Hauge Convention. However, a recent case from the Nevada Supreme Court has shattered that picture. See Grupo Famsa v. Eighth Jud. Dist. Ct., 132 Nev. Adv. Op. No. 29 (2016).
 

In Grupo, the Nevada Supreme Court looked at whether service of process on a foreign company was done properly. On the facts of the case, the plaintiff filed a lawsuit against a Mexican company. The plaintiff’s Las Vegas Personal Injury Lawyer then served the Mexican company with the lawsuit paperwork in Mexico, via the Hague Convention.  

The Hague Convention requires all countries who are part of it, to "designate a “Central Authority” to carry out service of lawsuit documents on its own companies and people. It is up to the country’s “Central Authority” to serve the defendant according to local law. The local government then provides the official paperwork outlining who was served, how they were served and at what time and place. This information is then provided to Las Vegas Personal Injury Lawyers for their Nevada suit.
 

Despite going through this process, our high court has now said that it was not the end of the inquiry. The Nevada Supreme Court noted that the trial court has to look at the facts on a case by case basis and may even have to hold an “evidentiary hearing”, to determine if the foreign service was lawful.
 

In Grupo, the Mexican “Central Authority” issued a certificate of compliance, saying a Grupo representative, Claudia Martinez, was served with the lawsuit documents. The “Central Authority” said Ms. Martinez was part of Grupo's legal department. In fighting the lawsuit, Grupo claimed that Ms. Martinez was in fact a hostess and in no way connected to their legal department. 
 

In looking at the facts of the case, the Nevada Supreme Court said that just because Ms. Martinez was not an agent or representative of Grupo, Ms. Martinez may have given the paperwork to the proper person within Grupo, letting them know of the lawsuit. The Grupo court went on to say:
 

"Due process merely requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action." (internal quotation marks omitted)). "[W]hether a particular method of notice is reasonable depends on the particular [factual] circumstances." Tulsa Prof 1 Collection Servs., Inc. v. Pope, 485 U.S. 478, 484 (1988).

 
Although the above quote seemed to provide guidance, the Grupo court decided to throw in a zinger to all Las Vegas Personal Injury Attorneys. The Nevada high court said the Mexican ‘Central Authority's’ service efforts may have amounted to no more than handing off judicial documents to the equivalent of "a greeter at Wal-Mart".   


Considering Grupo was fighting the lawsuit in the Nevada courts, it leads one to believe that they in fact received notice of the lawsuit  … but, I digress. If after you read the Grupo case, you come away with the conclusion that there is no bright line test to determine whether service of process was properly done, it is because there is none. In the end, the court said it is up to the trial court to determine whether service was proper. 


Next time, we will talk about the exciting new developments for personal injury cases in Justice Court. 



Tuesday, September 13, 2016

What are the Trial Rules on Expert Witnesses in Las Vegas Personal Injury Cases?



When someone is injured in an accident and suffers ongoing injury, sometimes your Las Vegas Personal Injury Attorney and opposing side may both hire doctors to serve as expert witnesses. But, what happens when one side hires an expert, yet later decides they don’t want to call their expert at trial? The Nevada Supreme Court has said that it is ultimately up to the trial court to decide this issue. See McClendon v. Collins,132 Nev. Adv. Op. No. 28 (2016).

In McClendon, Diane Collins rear-ended a car driven by Ja Cynta McClendon. Collins’ defense lawyer designated an expert medical physician, Dr. Eugene Appel, who provided an expert witness report to back up his opinions. Collins’ defense lawyer later decided to withdraw Dr. Appel from their witness list. Surprisingly, McClendon’s lawyer wanted to use Dr. Appel as her own expert witness! The trial court wouldn’t allow this expert swap. The jury ultimately found that McClendon wasn’t injured by any fault of Collins. Unhappy with the result at trial, her lawyer appealed the decision to the Nevada high court.

In looking at the case after trial, the Nevada Supreme Court decided that such a “de-designated” expert could have their deposition taken or be called to testify at trial by an opposing party. But, whether this would be allowed, would rest on a case by case analysis, done by the trial court. The court went on to say that there is no 'entitlement' of the opposing party to depose or use another party's expert at trial." House, 168 F.R.D. at 246. Id.

The McClendon Court was also clear in saying just because a stricken witness may be called as a witness in trial or at a deposition, doesn’t mean the other side can adopt the other party’s expert as their own. The Court said "[t]here is a strong policy against permitting a non-diligent party from free-riding off the opponent's industry and diligence." Of course, your experienced Las Vegas Personal Injury Attorney will make sure that if an expert is needed, they will have their own expert timely disclosed to the other side. 

An additional issue in this situation is whether evidence of the opposing party's “dropping” of their original expert is admissible evidence at trial. Notably, the Nevada Supreme Court said that juries are NOT allowed to hear this evidence. The Court reasoned that such evidence could "destroy counsel's credibility in the eyes of the jury" because "[j]urors unfamiliar with the role of counsel in adversary proceedings might well assume that …. counsel had suppressed evidence which he had an obligation to offer." Peterson, 81 F.3d at 1037. If you have questions about expert witness designations, talk to your Las Vegas Personal Injury Attorney about this important topic.

Next time, we will talk about serving foreign corporations with lawsuit documents.

Wednesday, August 31, 2016

What are the Recent Law Changes on Jury Selection in Nevada?



The Nevada high court recently changed the way Las Vegas Personal Injury Lawyers conduct their trials in Nevada. In the past, each judge had different rules when it came time to picking a jury in personal injury trials. This meant different results, based upon which judge you had for your case. Considering there are over 20 different trial judges in Las Vegas, this was like spinning the roulette wheel of judges!


In a recent case, the Nevada Supreme Court made two major announcements in personal injury trials. See Khoury v. Seastrand. 132 Nev. Ad. Op. 52 (2016). The first ruling by the high court, is that specific dollar amounts CAN be used during jury selection to uncover potential bias regarding verdict amounts. Las Vegas Personal Injury Lawyers were sometimes blocked in ferreting out biased jurors. If your Lawyer wants to strike a potential juror because they don’t believe in people making claims for injuries, they can now put out hypothetical numbers and see if jurors have a personal problem with making a large award to an injured person. It is important that your accident Lawyer will have to make sure to create a record to explain exactly why the potential juror is being dismissed.   
 

The second major change in jury trials relates to medical liens. In most personal injury cases, doctors treat injured people on a lien. Our high court decided that LIENS can be admitted in trial to show bias. But, in a footnote, the court was careful to point out that when admitting evidence of liens to show bias: 

"[We] caution that this holding may not be used as a 'backdoor' by parties to question a treatment provider about whether and to what amount it would write-down the amount of the medical lien in the event that the plaintiff loses his or her lawsuit. Such evidence could be used by the jury to diminish the damage award and would thus invoke the collateral source rule."
 

Defense attorneys wanted the Nevada court to adopt a California law allowing evidence of medical insurance, write-down evidence and the sale of liens by providers, to try and show the "reasonable value" of the bills. This argument was rejected by the Nevada Supreme Court. Defense attorneys are also prohibited from asking a doctor if they will write off the lien if the injured party loses their case.
 

Defense attorneys are now limited to asking the doctor on the stand if getting paid for their medical services depends on the outcome of the trial. The defense try to argue that the doctor is biased and their testimony disregarded by the jury. Your experienced Las Vegas Personal Injury Lawyer will make sure that the jury hears testimony from the treating doctors that the patient’s injuries were caused by the accident at issue.
 

Next time, we will talk about expert witnesses in Las Vegas Personal Injury cases.

Wednesday, August 24, 2016

Is a “Physical” Injury Required to Make a Personal Injury Claim in Las Vegas?


Today’s blog deals with the issue of whether a “physical” injury is needed to make a personal injury claim. While at first blush, this may seem like a silly question, the answer may surprise you. Your Las Vegas Personal Injury Lawyer will tell you that a “physical” injury is not always necessary in asserting a Las Vegas personal injury claim. A recent decision from our state’s high court explores this issue. 


You may remember the outbreak of hepatitis C that struck the Las Vegas Valley a few years ago, when a medical facility was accused of re-using syringes and vials. This was the Sadler v. Pacificare of Nev., Inc.,130 Nev. Ad. Op. 98 (2014). To make things easier, we’ll just call it the “Hepatitis C” case. In the Hepatitis C case, patients who had been treated at the medical facility were scared that they may have been exposed to hepatitis C. Through their Las Vegas Personal Injury Lawyer, they wanted the at fault medical facility to pay for their diagnostic testing and monitoring.  


It was claimed by their Las Vegas Personal Injury Lawyer,  that although the initial test results came back negative, they would have to be re-tested in the future. They alleged that hepatitis C can sometimes take time to progress, to give a positive test result. Since the tests were negative, the defense argued that there was no evidence that they were currently “injured”. As a result, the medical facility’s lawyers tried to dismiss the victims’ claims for negligence. 


Any first year law student and Las Vegas Personal Injury Lawyer worth their salt, knows the elements needed to make a claim for negligence: (1) defendant (at fault party) owed a duty of care to the plaintiff (injured party); (2) the defendant breached their the duty of care; (3) the breach was the cause of plaintiff’s injuries; and (4) the plaintiff suffered damages/injuries. So, in the Hepatitis C case, the issue before the court, was the plaintiff actually “injured”?


The trial court determined that since the plaintiff hadn’t proved they suffered any “injuries”, they dismissed the lawsuit. On appeal, the Nevada Supreme Court differed. They split “injuries” in two and said, you don’t need to have a “physical” injury. Instead, a “legal” injury was enough to bring a claim for negligence. The court reasoned that if someone was knocked down by someone’s negligence and the “injured” person went to the hospital, to make sure they hadn’t suffered any internal injuries, the at fault party would still be responsible for diagnostic testing, even if it turned out that they hadn’t suffered any injury. If you have any doubts as to whether you have a viable personal injury claim, consult your local Las Vegas Personal Injury Lawyer for a free, confidential consultation to discuss your case. 


Next time, we will talk about jury selection and whether medical liens come into trial.

Thursday, July 28, 2016

Do Attorneys Have to Assert Liens on their Las Vegas Personal Injury Cases?



When you hire a Las Vegas Personal Injury Lawyer, your lawyer usually gets paid out of any settlement funds from your case. A recent case from the Nevada Supreme Court case came out with new guidelines for what your lawyer must do in certain cases to get paid. This happens when your medical bills are larger than your settlement amount and there is a dispute on how the settlement pie gets divided. 


In the past, Las Vegas Personal Injury Lawyers used to get paid first, before any medical providers, who may have treated you with a lien. However, since the law is constantly changing, this is not always the case anymore. Now, the law says a lawyer has to serve a “Notice” of their lien on the at fault party and their lawyers. As a client, you will sign and personally receive a copy of your lawyer’s lien. Then your lawyer must provide a copy of the lien to the at fault party, their insurance company and their lawyer. 


Some people may ask, if someone has a lawyer, why serve the fault party? Unfortunately, our high court has repeatedly said that you must serve both the at fault party and their lawyer. See Bingham & Snow Nevada PC v. Eighth Judicial Dist. Court, 2015 WL 4172342; See also Leventhal v. Black & LoBello, 129 Nev. Adv. Op. 50, 305 P.3d 907, 910-11 (2013). Failing to do this step means your lawyer may not get any of their fees. 


To top it all off, this all has to be done before any settlement monies are received. If a Las Vegas Personal Injury Lawyer doesn’t follow the proper steps and they try to assert their lien after a settlement is reached and the money received, they are out of luck on getting paid in these types of cases. Id. If you are interested in the law, the statute talking about this is NRS 18.015(4)  and the most recent case law handed down by the Nevada high court is Golightly & Vannah, PLLC v. TJ Allen, LLC. 132 Nev. Adv. Op. 41 (2016). 


In Golightly & Vannah, the Nevada Supreme Court said:
"[T]he attorney must serve notice in writing, in person or by certified mail, return receipt requested, upon his or her client and, if applicable, upon the party against whom the client has a cause of action, claiming the lien and stating the amount of the lien … the lien must disclose an attorney’s agreed upon contingency percentage and claim court costs and out-of-pocket costs advanced by the attorney in an amount to be determined."


So, what does this all mean in reality? When you hire a lawyer, they will have you sign a Notice of Lien when you sign their fee agreement. You will get a copy of the lien and the fee agreement. Your Las Vegas Personal Injury Lawyer will then send a copy of the lien to the person who caused your injury, their insurance company and their lawyer. To comply with the new rules, your lawyer will have to send it via certified mail, return receipt requested. Once your lawyer does this, the steps to assert their lien are complete. 


Next time, we will talk about whether “physical” injury is needed to make a claim for personal injury in Las Vegas, Nevada.

Tuesday, July 5, 2016

What is the Sudden Emergency Defense in Las Vegas, Car Accident Cases?



What do swarming bees and Las Vegas Personal Injury Lawyer cases have to do with each other? Surprising, a lot. What happens if you rear end someone in a Las Vegas car accident and need a Lawyer, but you claim something else caused the accident? In an interesting case from the Las Vegas, Nevada High Court, a jury could find that you were not at fault for the accident, if circumstances beyond your control caused you to lose control of your car.  For the full case, see Frazier v. Drake, 131 Nev.Ad.Opp. 67 (Sept. 3, 2015).

In the Frazier case, a concrete truck driver was driving down the road in North Las Vegas. While he was driving, he claimed a swarm of bees entered the cab of his truck and one landed on his eye. The driver argued that while trying to get a bee out of his eye, he was unable to stop for a red light. As a result of fending off the attacking bees, his concrete truck crashed into two unsuspecting victims, who were stopped at the approaching red light. The truck driver’s insurance company hired a Las Vegas Personal Injury Lawyer to argue that he was not at fault for the accident. 

For those who might think the truck driver was making up the story of the bees, the responding police officer found dead bees in the grill of the truck. The officer also saw one bee actually still swarming around in the cab of the truck. During the trial, the truck driver claimed that the accident wasn’t his fault. Instead, his Personal Injury Lawyer in Las Vegas argued that the bee landing on the truck driver’s eye constituted a “sudden emergency” rendering him unable to avoid the accident. Based on this defense, the truck driver wanted to have the jury instructed that, if it found that the bee landing on his eye was a “sudden emergency”,  he only had a duty of care equal to that of a reasonable person faced with the same situation. If the jury found his actions reasonable, then the truck driver wouldn’t be held responsible for causing the accident.

The Nevada Supreme Court determined that evidence must be presented showing that the “sudden emergency” involved something more than the expected hazards drivers encounter in the regular course of driving, such as the sudden appearance of people, crowded intersections, or sudden stops. So, aside from swarming bees, what does qualify as a “sudden emergency”? Other states have allowed the “sudden emergency” defense based on dust clouds, dense patches of fog, unexpected brake failure, and a car stopped at night without their hazard lights on.

In these examples, a jury could find a driver not at fault for causing the accident, if they were suddenly placed in a position of peril through no fault of their own and acted as a reasonably prudent person would upon being confronted with that same emergency. When talking to your Personal Injury Lawyer in Las Vegas, they will discuss with you whether the at fault driver can claim the “sudden emergency” defense in your Las Vegas car accident case. 

Next time, we will talk about new laws in Attorney Liens in Las Vegas Personal Injury Lawyer cases in Nevada.

Wednesday, June 1, 2016

Does Worker’s Compensation Get a Credit for any of the Recovery an Injured Person Received in a Personal Injury Claim?



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 party driver paid to you as an injured employee. Poremba v. Southern NV Paving, 132 Nev.Ad.Op. 24 (2016). As a simplified example, if worker’s compensation says you should received $15,000 and you already received $5,000 from the at fault party, worker’s compensation could reduce its payment to you by $5,000, resulting in a total worker’s compensation award of $10,000. 
The law on worker’s compensation getting a credit for monies paid by the at fault party, is set forth in NRS 616C.215(2). For those interested in taking a look at the statute, it states in part:

2. When an employee receives an injury for which compensation is payable pursuant to the provisions of chapters 616A to 616D, inclusive, or chapter 617 of NRS and which was caused under circumstances creating a legal liability in some person, other than the employer or a person in the same employ, to pay damages in respect thereof:


(a) The injured employee ... may take proceedings against that person to recover damages, but the amount of the compensation the injured employee ... [is] entitled to receive pursuant to the provisions of chapters 616A to 616D, inclusive, or chapter 617 of NRS, including any future compensation, must be reduced by the amount of the damages recovered ....
 

(b) If the injured employee ... receive[s] compensation pursuant to the provisions of chapters 616A to 616D, inclusive, or chapter 617 of NRS, the insurer ... has a right of action against the person so liable to pay damages and is subrogated to the rights of the injured employee or of the employee's dependents to recover therefor.

Although you may be receiving money from two sources: worker’s compensation and the other driver, the Nevada Supreme Court has stated that if you receive compensation from the at fault party’s insurance company, you can use that money for more than just paying any medical bills. Personal injury settlement funds, are designed not only to pay for medical bills, but to also compensate for pain and suffering, lost wages and may be used to cover typical household expenses, such as rent and utilities. So, your personal injury settlement can be much broader in scope than the worker’s compensation system. 


Next time, we will talk about the “Sudden Emergency” jury instruction in Nevada.

Sunday, May 22, 2016

Are Photographs of Property Damage Admissible Evidence in a Car Accident Trial?


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 jurisdictions generally admit such evidence because, even in the absence of supporting expert testimony, there is a common-sense correlation between the nature of the impact and the severity of someone’s injuries. The court went on to say that an injured person may overcome the effect of the photos, by offering contradicting testimony, cross-examining the witnesses, and utilizing other evidence to prove their case. 


Next time, we will talk about a recent Nevada Supreme Court case discussing how a worker’s compensation component of your accident, may affect your personal injury case.

Friday, April 15, 2016

How Does Health Insurance Affect My Personal Injury Case?



Health insurance may affect your personal injury case in ways that you may have not considered. Nowadays almost everyone has health insurance, since it is required by law. However, if your health insurance paid for some of your accident related medical treatment, it is entitled to get paid back for that advance payment. What does this mean? If you settle your personal injury claim, your health insurance gets paid off the top before anyone else gets paid, including you.
 


Not only is your personal injury attorney required to pay your health insurance for your accident related medical treatment, the health insurance company must be paid first, before anything else is paid. There are a few legal issues that come into play, which are set forth here:

The “common fund” doctrine is an equitable doctrine that arises where a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to reasonable attorney’s fee from the fund as a whole.  Boeing Co. v. Van Gamert, 444 U.S. 472, 478 (1980). 
The Supreme Court held in McCutchen that equitable doctrines, such the “common fund” doctrine, do not trump the clear terms of the Plan.  U.S. Airways, Inc. v. McCutchen, 133 S. Ct. 1537, 1551 (2013) (“Neither general principles of unjust enrichment nor specific doctrines reflecting those principles—such as the double-recovery or common-fund rules—can override the applicable contract.”).
Here, the policy expressly addresses and rejects the common-fund doctrine, as follows: “No court costs or attorney fees may be deducted from HMO’s recovery without the prior express written consent of HMO.”


If you have health insurance, then this law will likely apply to you. Most health insurance contracts provide that they are entitled to get paid back for any accident related medical treatment for which they paid. In plain terms, your health insurance company will be paid back first, before either you, your lawyer or your other lien medical providers, receive any funds whatsoever.

Although this may not seem fair, it is the law that your attorney must follow. However, a skilled personal injury attorney will work with your health insurance company on repayment. If you have any questions on this issue, contact your personal injury attorney for more information.

Next time, we will talk about a recent Nevada Supreme Court case holding that photos documenting the damage to your car, are admissible evidence in a personal injury trial.
 

Tuesday, March 29, 2016

Can A Single Social Media Post Ruin my Personal Injury Case?

A single social media post can ruin your personal injury case. Your credibility matters more than anything else when making a claim for personal injuries. In order to show your ongoing pain and suffering, there is usually not a continuing broken bone or bloody limb to which we can point. Instead, most of the time, people silently suffer with an aching back or chronic pain. So, your credibility is paramount in a personal injury case.

It is the job of the insurance company’s attorney to attack your credibility. If you are claiming that as a result of the accident, you have daily back pain, yet you post a picture of yourself bowling with your friends and family, the defense attorney will argue that you are not in fact injured as you claim to be.

Any social media post, taken out of context, can and will be used against you in your personal injury case. What the online bowling post doesn’t say, is that you paid dearly for the night of bowling and pizza with your family, with increased pain and discomfort for many days after the fun night.

You may be thinking: “Only my “friends” can see my posts, so it doesn’t matter what I post.” In a Court case, your “private” online posts may not be shielded from the insurance company’s attorney. Even if only your “friends” can view your posts, the Court may still order you to turn over all of your posts, so the Court can review them for relevancy to your claims for injury. Simply put, the Court can order you to turn over any online posts to the defense attorneys, that relate to your physical condition or the accident at issue.

It is almost guaranteed that the insurance company and their attorneys will scour the internet to find any shred of evidence to attack you. An example from a family law case may help to illustrate the point: Your soon to be former spouse’s attorney finds one Facebook post, where you are out with friends, having a glass of wine with dinner. The attorney uses this one post to paint you as an alcoholic, that is unfit to care for your children. 

The best way to make sure that the insurance companies and their army of lawyers cannot attack your credibility, is to simply not post anything on social media from the time of the accident, until your case is completed over. Don’t let a single social media post derail your personal injury case. If you have any questions, speak to your personal injury attorney about it.

Next time, we will talk about how health insurance may affect your personal injury case. 
 


Wednesday, March 16, 2016

When Are My Conversations with My Lawyer Not Protected Under the Attorney-Client Privilege?



It may come as a surprise to many, but conversations that you have with your lawyer may not always be protected under the attorney-client privilege. When can this come up in your personal injury case? Two times. The first time is when you are giving your deposition. The second time is at the time of trial. Both times happen when you are providing testimony to the other side concerning your case. We are all familiar with a person getting on the witness stand at the time of trial. However, you may not be familiar with the deposition process.


A deposition is simply a question and answer session concerning your case. The testimony you give during a deposition is similar to what you would do at the time of trial, in that you swear an oath to tell the truth. However, what you say at your deposition can be used against you at trial. 

A deposition generally takes place in a more relaxed setting than a courtroom. A deposition is usually scheduled in the conference room of the opposing party’s attorney’s office. During a deposition, a court reporter types all of the questions being asked and your responses to those questions. A booklet is then made of the question and answer session, and it reads much like a play. 


Depending on the complexity of your case, depositions can be completed in about an hour, or they can last all day. Any skilled personal injury attorney will meet with you ahead of time, to go over the deposition process with you.
 

It is key that preparation for your deposition or trial testimony, be done ahead of time. The courts have determined that they don’t want any “coaching of the witness” at the time of the witness is giving testimony. See Perry v. Leeke, 488 U.S. 272, 109 S.Ct. 594 (1989); see also Coyote Springs Investment v. Eighth Judicial District Court, 131 Nev. Avd. Op. 18 (2015).  The courts have also held that a party has no constitutional right to consult with their lawyer while testifying.
 

What does this mean? You cannot ask for a break to speak with your lawyer during a deposition or at trial. However, if the requested break was done to determine whether to assert a privilege, then your attorney must put certain facts on the record, to keep that conference private. 

However, if a break is not requested by you or your lawyer, then you can speak freely with each other. This can happen in one of two ways. First, the other side may request a break. If this happens, then your conversations with your lawyer are safe. Secondly, your attorney can request, pre-arranged breaks, in writing to the other side. If the breaks during your testimony are pre-arranged and agreed upon, then the shield of the attorney-client privilege should be held up by the courts. Your personal injury attorney will make sure to go over this with you prior to you giving testimony in your case. 


Next time, we will revisit how social media posts can sidetrack your personal injury case. 

Tuesday, March 1, 2016

What are the Laws on Driverless Cars in the State of Nevada?



Today is the four year anniversary of driverless cars being allowed on Nevada roadways. During the 2011 legislative session, the Nevada State Legislature enacted Chapter 482A, entitled “Autonomous Vehicles”, allowing for driverless vehicles to hit the roads in Nevada. These laws went into effect on March 1, 2012.

Nevada was the first state to allow driverless cars to apply for their own drivers' licenses. However, the DMV currently only allows test cars on the road. So, autonomous vehicles are not currently available to consumers. To make sure safety comes first, Nevada requires two trained drivers to be in every car, one of them in the front seat prepared to take control of the car should an emergency arise. To get the green light to drive on Nevada roadways, companies also have prove that one or more of their automated cars have been driven for at least 10,000 miles. 

How can you tell if you are driving next to an automated car? Driverless cars have a red Nevada license plate, with an infinity symbol. In Nevada, who has these automated car licenses? Mercedez-Benz, Google, Kia, and the Freightliner Inspiration Truck are some of the companies testing autonomous cars in Nevada.

Thinking ahead, Nevada has said that when autonomous vehicles are eventually made available for public use, drivers will be required to obtain a special driver license endorsement and the DMV will issue green license plates for the vehicles. For more information, you can go to the DMV’s website at  http://www.dmvnv.com/autonomous.htm.

In addition to the Nevada State Legislature and the Nevada DMV, Governor Sandoval, has also recently said that he would allocate resources through the Office of Economic Development, toward the autonomous car industry, in a bid to become the leader in testing and development of driverless cars.

How safe are automated cars? There have been a few studies which show that driverless cars still get into accidents like normal cars. But, it is usually because of the fault of regular drivers. The most common accident type, is a driverless car being rear-end by a regular driver who thinks the driverless car is going to proceed through an intersection but doesn’t.  Also, in a recent test, a driver had to take over the wheel when an automated car wasn’t sure it could trust regular drivers to let it maneuver through a multi-lane roundabout.

Bigger issues have come up that involve human, ethical decisions. Since the cars have to be pre-programmed to make life-or-death decisions in an accident, questions have come up as to whether an autonomous vehicle should sacrifice its occupant by swerving off a cliff to avoid killing a school bus full of children. Other questions have come up as to whether its acceptable to tell the vehicles when it’s okay to break the rules, such as crossing a double yellow line to avoid a bicyclist or road workers. These issues have resulted in lawmakers requiring a driver to be in the car, to take over the wheel when necessary.

Google, one of the forerunners in automated cars, wanted to develop a car with no steering wheel or gas pedal. Nevada (and California) have both rejected this approach. This was much to the disappointment of Google.

This is an exciting topic and will be revisited when new developments happen in the advancement of automated cars.

Next time, we will discuss when your conversations with your lawyer may not be protected under the attorney-client privilege.

Tuesday, February 16, 2016

Are Employers Liable for the Acts of their Employees in Nevada?


If you are injured at a casino, due to the intentional act of an employee, is the casino liable? The answer is yes, in Nevada, if a jury finds the act was “reasonably foreseeable”. In a recent case, Mandalay Bay was sued, when a woman was assaulted in her hotel room by a hotel employee. See Anderson v. Mandalay Corp., 131 Nev.Ad.Op. 82 (2015). 

In that case, a female hotel guest was asleep in her Mandalay Bay hotel room.  While she was sleeping, an employee, with hotel room keycard access, entered her room and sexually assaulted her. What makes this case so egregious, is that the employee had a history of bad behavior and Mandalay Bay still gave him access to guestrooms.  


The Nevada high court said that employers are vicariously liable for employees’ intentional harms if the injured person can show the intentional conduct was “reasonably foreseeable under the facts and circumstances of the case considering the nature and scope of [the employee’s] employment.” NRS 41.745(1)(c).


In the Mandalay Bay example, prior to the assault, the employee had been suspended for harassing and making threats to a female supervisor. Also, other Mandalay Bay staff had previously physically assaulted hotel guests, by similarly misusing their hotel key cards. The court found based upon this pattern of behavior by hotel staff, the sexual assault by the employee was foreseeable. 


Next time, we will discuss the state of Driver-less cars in Nevada. 

Thursday, January 28, 2016

Top Five Questions to Ask Before Hiring a Personal Injury Lawyer?



After being in a car accident, you may be faced with the task of finding the right lawyer for you. To help you guide you through the process, here are the 5 Top Questions to ask an attorney in your personal injury case:  

  •    Will you be the actual person handling my case?
At some larger firms, during your initial consultation, you will have a quick meet and greet with your lawyer, yet never see them again. During your first meeting, ask who will be your contact? And ask who will be the person handling your case? Many firms will route you to the paralegal, even if you would like to speak with your attorney on a certain issue. Make sure that you have access to your lawyer when you need them.
 


  •     What is your contingency fee?
Most personal injury lawyers will not require you to pay for any attorney’s fees out of your pocket. The typical fee ranges from 25-50% of the ultimate recovery. You are paying for an attorney’s skill and competence. Don’t just go with the cheapest lawyer out there. You want the best lawyer, not the cheapest.
 

  •    Will I be responsible for any costs?
In addition to the contingency fee arrangement, there will be a section concerning costs. In every case, there are costs associated with bringing a personal injury claim. This can range from fees your lawyer is charged to get your medical records, to the filing fee if a lawsuit needs to be filed. Ask who will pay these costs up front? Most attorneys will pay these costs up front and recoup these costs at the end of your case.
 

   •    What percentage of your practice is devoted to personal injury cases?
Many lawyers have a main practice area and just do personal injury on the side. Depending on your case, these lawyers may not have the experience to properly handle a personal injury case. You have the right to know your attorney’s experience in handling personal injury cases.
 

   •    Do you have the time necessary to actually work on my case now?
Some lawyers try to get as many clients signed up as possible. However, they don’t have the time or staff necessary to work all of their cases. Especially if their main focus is a different area of law, their personal injury cases may get put on the shelf. Make sure your lawyer has the interest and time to devote to your case.

Next time, we will discuss a recent Nevada Supreme Court case on employer’s liability for acts of its employees.

Wednesday, January 20, 2016

Are Personal Injury Settlements Taxable?



Since tax time is near, I thought providing you with information on whether personal injury settlements are taxable was in order. After being in a car accident and having received a settlement, you may be wondering if you have to report that money to the IRS as “income”. The short answer is: NO (BUT, there are exceptions where do have to report the income). In a typical car accident claim, you will be awarded monies for bodily injury and related pain and suffering, that you may have sustained as a result of the accident. In this scenario, which usually happens in your standard car accident claim, you will not have to report your settlement as “income” to the IRS. However, there are some exceptions to this general rule. 


The first exception applies if you have taken itemized deductions for medical expenses in recent years on your tax return. If  your medical expenses have been so high in the past, that you itemized those bills on your tax return, you MUST report your personal injury settlement to the IRS. If this is the case, you should consult with a licensed tax professional, to make sure you are following all IRS regulations. 

Another exception to this rule is if you received money for lost income. Money received for lost of income, as part of a personal injury settlement, needs to be reported as income and is taxable. 


If your case went to trial and you were awarded interest on your personal injury settlement, then the interest you received is also considered income. You will have to report this “interest” to the IRS as income.


The final exception to the general “no reporting” rule, is if you received punitive damages as part of your injury award. The IRS is entitled to tax any punitive damages you may have received.
 

In most cases, you will not receive an award for punitive damages or interest. So as long as you don’t also get an award for lost income and have not taken a recent medical expense deduction on your tax return, your personal injury settlement is not considered taxable income for the IRS. If you have any doubt as to whether your settlement is taxable, you can always talk to your tax professional or your personal injury attorney. 

Next time, we will discuss the top five questions to ask, before hiring a personal injury lawyer.

Monday, January 11, 2016

Does My Health Insurance Company Get Reimbursed In a Las Vegas Car Accident?



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 personal injury case. This concept of paying money back to the insurance company is called ‘subrogation’.  


Nevada law allows for health insurance companies to ask your accident attorney for reimbursement (subrogation) if you have a group health insurance plan: 

Every policy of group health insurance must contain a provision which reduces the insurer’s liability because of benefits under other valid group coverage. To the extent authorized by the Commissioner, such a provision may include subrogation. {emphasis added}. NAC 689B.180 was NRS 689B.034

Except as otherwise provided by specific federal or state statute or regulation, an insurer may include in a policy of group health insurance issued pursuant to chapter 689B of NRS a provision for subrogation regarding the right of an insured to recover, ... from a third person for the cost of medical benefits reimbursed by the insurer to the insured because of injuries incurred by the insured as a result of the actions of the third person.
{emphasis added}.  NAC 689B.180

There is a notable exception to this reimbursement (subrogation) requirement. The exception is that if you were not “made whole” by the at-fault party, then your health insurance company cannot seek to get its money back from you. 

In Canfora, the Nevada Supreme Court adopted the “make-whole” doctrine, stating “[t]he make-whole doctrine ‘is a general equitable principle of insurance law’ that prevents an insurance company from enforcing its subrogation rights before the insured has been fully reimbursed for their losses.” Canfora v. Coast Hotels and Casinos, Inc., 121 Nev. Adv. 76, at pg. 9-10 (Citing Barnes v. Independent Auto. Dealers of California, 64 F.3d 1389, 1394 (9th Cir.1995). This happens when you have not received compensation for your total loss, i.e., “have not been made whole.”

Even though your health insurance company may seek to be reimbursed for health insurance benefits it paid on your behalf, your car accident attorney will make sure they are following the law and that your rights are protected.

Next time, we will discuss whether personal injury settlements are considered taxable income to you.