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.