Contractual Provision Shortening Statue Of Limitation Is Reasonable

Author: Kyle Jones

In Epic v. CliftonLarsonAllen, LLP, et al., the Court of Appeals for Division Three considered a contract between a non-profit (“Epic”) and an auditing company (“CLA”) with a term imposing a deadline for filing suit against the auditor within two years from the date of the last audit report.  Specifically, the term read, in relevant part, “It is agreed . . . that no claim arising out of services rendered pursuant to this agreement by or on behalf of Client shall be asserted more than two years after the date of the last audit report issued. . .”

Specific Jurisdiction, Plaintiff’s Burden

Author: Angelina Petrosyan

Candance Noll filed suit against numerous manufacturers, sellers, and suppliers of asbestos and asbestos-containing products. Special Electric Co. Inc. (“Special”) was one the named defendants.  Plaintiff alleged Special’s conduct exposed her spouse, Donald Noll, to asbestos which led to his death from mesothelioma.  Before his death, Donald Noll testified that he developed mesothelioma from exposure to asbestos when he worked in construction.  He cut Certain-Teed Corp’s (Certain-Teed) asbestos-containing cement pipes and was exposed to the resulting dust) in Port Orchard, Washington, between 1977 and 1979.

No Personal Injury Protection For Driver Who Fell From Parked Vehicle

Author: Colin Hutchinson-Flaming

Division III of the Washington Court of Appeals recently issued an unpublished opinion upholding a trial court’s dismissal of breach of contract claims on summary judgment after holding there is no coverage for personal injury protection (PIP) benefits for an individual seriously injured after he fell out of his parked vehicle. PIP is an extension of car insurance that provides benefits for medical bills and other damages. An insurer provides PIP benefits to its insured regardless of fault, so PIP is used to quickly and easily to cover damages stemming from a motor vehicle accident. Until recently, citation to unpublished opinions was prohibited. Now, however, unpublished opinions filed after March 1, 2013, may be cited as persuasive authority.

HOA Update: Sufficient Tender Of Super Priority Liens

Author: Christopher Lund

For the last five years, numerous quiet title lawsuits have been filed in Nevada by lenders that stem from foreclosure sales conducted by homeowner associations (HOAs) or the HOA’s collection agents to collect delinquent assessments. In Nevada, an HOA has a lien on any property within its community for unpaid assessments, fines, and other fees. Furthermore, pursuant to NRS 116.3116, a portion of an HOA’s lien, equal to nine months of common assessments, is prior to all other liens including a lender’s first deed of trust.[1] This is known as a super-priority lien.

Crying Over Spilled Milk: A Case Study In Spoliation

Author: Betsy Jefferis

Although spoliation of evidence is not an independent cause of action in Nevada, a party’s failure to preserve crucial evidence can have serious implications to its case in chief. However, a negligence claim for spoliation may exist where the circumstances of the case show that the defendant owed a duty to the plaintiff to preserve evidence. Contreras v. Am. Family Mut. Ins. Co., 135 F. Supp.3d 1208 (D. Nev. 2015).  The protection of this evidence is paramount in the earliest states of litigation in the case, including any pre litigation investigation. Fire Insurance Exchange v. Zenith Radio Corp. 103 Nev. 648, 747 P.2d 911 (1987).

Defendants Must Disclose In Discovery All Insurance Policies In Nevada, Regardless Whether Case Exposure Implicates Secondary/Excess Layer Policies

Author: Tom McGrath

Unlike many other jurisdictions, Nevada requires defendants to disclose their complete insurance policies in their initial disclosures of witnesses and exhibits.  Nevada civil procedure rules mirror closely the Federal Rules of Civil Procedure and require all parties to initially disclose all relevant non-privileged documents and/or other information at the beginning of the case.  Defendants cannot disclose only the declarations page for their insurance policies nor are they permitted to merely disclose the applicable limits.  And Nevada requires defendants to disclose all of their excess policies even if the damage allegations in a case do not potentially exceed the applicable limits of the primary layer of coverage.

CA Case Law Update

Author: Angela Nehmens

BREACH OF CONTRACT, ATTORNEYS FEES Monster LLC et al v. The Superior Court of Los Angeles County and Beats Electronics, LLC 2017 WL 2665193 (June 21, 2017) Facts: Noel Lee,

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Parallel Civil and Criminal Cases: Considerations Before Requesting a Pacers Stay

Author: Megan Isserman

What should one do when confronted with two proceedings about the same conduct, one criminal and the other civil? Although the answer will be different in different cases, courts have long been sensitive to the unfairness and threat to constitutional rights posed by allowing criminal investigations and civil actions concerning similar claims to proceed at the same time.

Utilizing Experts

Author: Justin Evenson

It comes as no surprise expert witnesses are crucial in defending personal injury actions.   The search for an expert witness should involve at least four essential steps: (1) learn the subject matter of the expertise at issue, (2) identify a pool of experts in that field, (3) vet those experts, and also (4) analyze how courts are treating experts in this field.

Escaping Premises Liability Under The Recreational Use Immunity Statute

Author: Emily Straub

Premises liability is a unique type of negligence. (Brooks v. Eugene Burger Mgmt. Corp. (1989) 215 Cal.App.3d 1611, 1619.) While a cause of action for premises liability contains the same core elements of a negligence claim (i.e., duty, breach of duty, causation, and damages), it only applies to defendants who own, occupy, or control real property and/or real property improvements. (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134; CACI No. 1000.) As such, the general rule is: One who assumes possession and/or control over a premises has a duty to keep it in a reasonably safe condition. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674.) However, exceptions to this rule exist– one being recreational use immunity.

Requests For Admissions: Avoiding Costs And Fees Imposed For Denials Proved False At Trial

Author: Morgan Van Buren

Requests for admissions are a commonly utilized discovery tool, but unlike most discovery devices, requests for admissions are not designed to uncover factual information.  It has long been recognized requests for admissions are not a discovery procedure.  Rather, the primary purpose of requests of admissions is to “set at rest triable issues so that they will not have to be tried; they are aimed at expediting trial.”  (Stull v Sparrow (2001) 92 Cal.App.4th 860, 865.)  In that respect, requests for admissions serve a function similar to pleadings.

Duplicative Expert Witnesses

Author: Michelle Ronan

In re Matter of Conservatorship for Hardt, 1 CA-CV 15-0532 (Ariz. App.  May 30, 2017) – Opinion

On August 25, 2008, Cathie Hardt was admitted to the Arizona Heart Hospital (“AZHH”) with complete blockage of the distal aorta. She was deemed a “high-risk” patient and underwent surgery. Two days later, the staff documented the presence of Stage I and Stage II ulcers. Upon discharge from AZHH to Heartstone Hospital-Mesa, LLC dba Trillium Specialty Hospital-East Valley (“Trillium), Hardt had a Stage IV ulcer. Appellants sued AZHH and Trillium.

Ninth Circuit Court of Appeals Split?

Author: Arman Nafisi

Earlier this year, several bills were introduced in Congress aiming to split the U.S. Court of Appeals for the Ninth Circuit. Even though this is not a novel issue, it is one litigants and practitioners in Arizona and the Ninth Circuit should be aware of and monitor.

Does A Patient Owe A Duty Of Care To A Caregiver?

Author: Sitar Bhatt

Sanders v. Alger, –P.3d—(2017); 2017 WL 2374682 (June 1, 2017)

The Arizona Supreme Court recently held a patient owes a duty of reasonable care to a caregiver allegedly injured by the patient’s actions. The Supreme Court further held a negligence claim involving an in-home caregiver is not barred by the firefighter’s rule.

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