Pardee Homes of Nevada v. James Wofram, et al.
The Nevada Supreme Court recently reconfirmed Nevada’s adherence to the American Rule of attorney fees (“American Rule”). The American Rule provides that “attorney fees may not be awarded absent a statute, rule, or contract authorizing such award.” See Thornas v. City of N. Las Vegas, 122 Nev. 82, 90, 127 P.3d 1057, 1063 (2006). For example, written contracts often state a prevailing party is entitled to attorney fees in the event a lawsuit is…
Pardee Homes of Nevada v. James Wofram, et al.
The Nevada Supreme Court’s decision in Allstate Insurance Company v. Miller (2009) 212 P.3d 318, 125 Nev.300, confirmed an insurer’s duty, under the implied covenant of good faith and fair dealing, to inform an insured regarding settlement opportunities. When an insurer acknowledges its duty to defend its insured, it possesses a duty to adequately inform the insured of settlement offers. This duty applies to all settlement offers, including…
As a relatively new attorney starting my first insurance defense job, I was assigned to a case that led me to research Nevada law regarding what is colloquially known as the “empty chair defense.” I was somewhat surprised by what I learned. If you are unfamiliar with the phrase “empty chair defense,” an “empty chair” refers to a non-party to a civil lawsuit who might be liable for damages if he or she was an active party to the lawsuit. An…
Assembly Bill 248, which became Nevada law on July 1, 2019, prevents defendants in civil and administrative actions from requiring certain types of information be kept confidential in a settlement agreement. More specifically, a plaintiff cannot be precluded from disclosing information concerning claims of…
Even where an employer maintains and strictly enforces comprehensive policies and procedure at to avoid workplace injuries, they are inevitable. Employees may have medical conditions that lead to subsequent injury. Employees do not always follow policies and procedures. In short, accidents happen. In Nevada, as with many other States, there is generally no duty to come to the aid of another. However, there are several exceptions to…
The Nevada Supreme Court and Nevada Court of Appeals each released opinions recently that dealt with failing to cure defaults in commercial contracts. In Rose v. Treasure Island, the Court of Appeals decided an issue of first impression for Nevada, namely, “when a written lease is otherwise silent, whether the allegedly defaulting party is entitled to ‘strict’ or merely ‘substantial’ compliance with the notice requirements set…
The Nevada Supreme Court’s recent decision in Bank of America, N.A. v. Thomas Jessup, LLC Series VII, 135 Nev. Adv. Op. 7, 435 P.3d 1217 (Nev. 2019) (“Jessup”) represents the current departure from ideologies established in SFR Investments Pool 1 v. U.S. Bank, 130 Nev. 742, 750, 334 P.3d 408, 414 (Nev. 2014). To contextualize the shift, it is beneficial to examine the statute at the heart of this ever-expanding body of law, NRS 116.3116. Since 1991, Nevada has provided homeowner associations (HOAs) with the statutory authority to impose a lien for unpaid assessments owed on a property. Pursuant to NRS 116.3116, up to nine months of common expense assessments accrued under the lien are given priority over a first deed of trust. Considering the effect of a “superpriority” lien foreclosure for the first time, the Nevada Supreme Court reasoned in SFR Investments that such priority was created “to avoid having the community subsidize first security holders who delay foreclosure” of underwater properties. Thus, a bank risks losing its security interest by foreclosure of the superpriority lien if it fails to pay at least nine months of HOA assessments owed on a defaulted property.
Cannabis insurance coverage in Nevada: Timing is everything
Public perception of cannabis use has undergone significant change in a very short span of time. However, while a strong majority of Americans favor cannabis legalization for all purposes (i.e. – medical and recognition), the federal government’s classification of cannabis has yet to reflect its social acceptance. Because cannabis is still considered a schedule one drug at the federal level, alongside LSD and heroin, many cannabis entrepreneurs are hesitant to invest in the market just yet. As a result, the “green mine” awaiting to be excavated by way of the normalized commercial activity of cannabis sales remains untapped due to the fear rooted in breaking federal law. The American banking and insurance industries, along with property owners and service providers, are eagerly waiting on the sidelines to take advantage of the lush economic opportunities.
Earlier this year, the Nevada Supreme Court significantly amended the Nevada Rules of Civil Procedure to more closely mirror the Federal Rules of Civil Procedure. Although the previous version of Nevada’s court rules was already similar to the Federal Rules, the amended rules seek to discourage counsel from submitting repeated requests for stipulated extensions to the court’s scheduling order and trial date. The new rules went into effect on March 1, 2019. Whether they apply to existing cases depends on whether the case already has a scheduling order or trial setting order in place. In cases where the court issued the scheduling order after March 1, 2019, the new rules apply.
While laws concerning patent protection are addressed at the federal level and are uniform across the country, states are given latitude in regulating trade secret misappropriation. As heavy interstate commerce developed, a special challenge for the regulation of trade secret laws emerged: the balance between state autonomy and uniform application of the law across state lines. To balance state power and the need for consistency for trade secret protection holders, the Uniform Trade Secrets Act (“UTSA”) was offered to the states for adoption. Nevada, along with every other state, has adopted the USTA either directly or by enacting substantially similar language.
Pope v. Fellhauer, No. 74428 (Nev. March 21, 2019) (unpublished).
In the last 3 years, the Nevada Supreme Court issued multiple decisions related to Nevada’s anti-SLAPP law and how the law should be applied in specific cases. SLAPP is a term that stands for “Strategic Lawsuit Against Public Participation.” The term denotes “a meritless lawsuit that a plaintiff initiates to chill a defendant’s freedom of speech and right to petition under the First Amendment.”
Nevada may become one of the first states to allow police to use a technology to find out if a driver was using a cellphone during a car accident. Nevada Assembly Bill 200 seeks to introduce a device named “textalyzer,” which would grant police officers the ability to connect a driver’s cellphone to the device and check the driver’s recent activity.
Jake Lee v. Soon Yi Lee, 2019 WL 851994 (Nev. App. Feb. 19, 2019) (unpublished).
For most civil cases in Nevada, the parties have the option of having either a jury trial or bench trial. There are strategic reasons for why a plaintiff or defendant might choose a jury trial over a bench trial, and vice versa. For example, plaintiffs in personal injury cases will almost always demand a jury because jurors are more likely to award a larger sum in damages than a judge in a bench trial. Conversely, in some highly technical civil cases, a plaintiff may prefer a judge to render a decision rather than a jury, where the plaintiff’s focus or desired outcome is not necessarily on damages.
NRS 50.095: Impeachment by Evidence of Conviction of Crime
- For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime is admissible but only if the crime was punishable by death or imprisonment for more than 1 year under the law under which the witness was convicted.
After taking a certain number of plaintiffs’ depositions in one’s career, it can be easy to just coast and go through the motions; getting in and getting out after you have the main information you need. However, once trial comes around, you may be kicking yourself for not asking a few crucial questions that could help support and shape the defense of your case. While the questions posed below are not necessarily commonplace or appropriate in every case, they can help to illuminate certain key issues plaintiffs are would like to avoid.
An Offer of Judgment, when used properly, is a vital tool in the litigator’s toolbox. Timing, purpose, and potential benefits and detriments all must be considered prior to deploying your Offer of Judgment. But keep in mind, even with those factors considered, a court could invalidate your Offer of Judgment if it is non-compliant.
It is no surprise the landscape of transportation is drastically changing. With the advancements in technology, vehicles are becoming autonomous. Consumers will soon have the option to buy a vehicle they will not need to actually drive. Also, people looking for transportation to travel from one place to another no longer need to call a traditional taxi service. Individuals can now take advantage of one of the many ride-sharing or peer-to-peer programs available on their smartphones. Autonomous and semi-autonomous vehicles are at the forefront of technological development in the automobile industry.
Nevada legalized both recreational and medical cannabis by a 2016 ballot initiative, and in doing so joined a growing number of states with similar changes in legal philosophy. As an industry trailblazer, the Silver State benefited from a $529.9 million “green” rush in taxable sales during the first fiscal year alone, with the state receiving its share of nearly $70 million in taxable revenue (enabling a substantial earmarking for education and the “Rainy Day” contingency fund). Additionally, Nevada’s boon resulted in an economic growth of $989.7 million through cannabis-based auxiliary businesses and an income increase of $443 million by virtue of the 8,300 full-time equivalent jobs created to meet industry demands.
The Court of Appeals of Nevada reminded all Nevada litigators a Nevada Rule of Civil Procedure 68 offer should not be made or rejected lightly. In O’Connell v. Wynn Las Vegas, LLC 134 Nev. Adv. Op. 7 (Nev. App. 2018), Plaintiff was visiting Wynn Las Vegas when she slipped and fell. Wynn offered Plaintiff $3,000 to settle the case despite Plaintiff’s disclosure of $33,000 in medical damages. Plaintiff rejected Wynn’s $3,000 offer and submitted a counter-offer for $49,999, which included interest, costs, and attorney fees. Wynn rejected the offer and the case proceeded to trial where the jury found in Plaintiff’s favor, assigning 60% liability to Wynn and 40% to Plaintiff and leaving Plaintiff with a $240,000 judgment. Plaintiff then moved for reimbursement of her post-offer fees and costs to the tune of $96,000. Wynn opposed Plaintiff’s motion by arguing Plaintiff’s failure to provide billing records precluded Plaintiff from recovering the post-offer fees and costs. The District Court agreed and Plaintiff appealed.
In some jurisdictions, a party to a civil lawsuit is not required to disclose documents or other evidence unless and until another party in the case directs discovery requesting/demanding the same. However, Nevada imposes an obligation on all parties in a civil lawsuit to serve initial disclosures of witnesses and exhibits and produce copies of all non-privileged relevant documents before the parties are permitted to engage in discovery. And for defendants, Nevada law requires their initial disclosures to include complete copies of all potentially applicable insurance policies, regardless of the potential liability exposure in the case.
Last month the federal district court of Nevada granted United States Liability Insurance Company (USLI) summary judgment in an action filed against USLI for bad faith denial of a claim. Tyson & Mendes represented USLI in this case. The lawsuit centered around USLI’s denial of coverage for damage to the claimant’s property based on exclusionary language found in the insurance policy.
In CP Food & Beverage, Inc., the U.S. District Court for the District of Nevada ruled an insurance company had no duty to indemnify a strip club, which reimbursed patrons for credit card charges fraudulently placed on their cards by employees of the club. The court held, the club’s reimbursement of the fraudulent charges did not constitute a direct loss by the club. CP Food & Beverage, Inc. v. United States Fire Insurance Company (2017 WL 6998968)
We have all been there. It is the standstill during mediation where it seems there is no way a settlement is going to be reached, and you feel as though you have reached the point of no return. However, with a few simple strategies and considerations, you may be able to breach this impasse and move on with meaningful settlement discussions.
Dolores v. State Employment Security Division, 134 Nev.Adv.Op. 34, 416 P.3d 259 (Nev. 2018).
Recently, the Nevada Supreme Court tackled a question of first impression related to unemployment benefits: Does an employee voluntarily resigns when the employer gives an ultimatum, quit or be fired? The Court unanimously ruled the resignation is voluntary, precluding unemployment benefits. Of course, the Court’s decision is not as black and white as it first appears.
In its most recent decision concerning Nevada’s ever-problematic home owners’ association (“HOA”) lien statute,  the Nevada Supreme Court addressed the statute’s mandatory award of attorneys’ fees and costs. Nevada Revised Statutes (“NRS”) 116.3116(8) provides, “[a] judgment or decree in any action brought under this section must include costs and reasonable attorney’s fees for the prevailing party.” Parties have invoked this provision as a means for obtaining fees and costs in any lawsuit invoking NRS 116.3116. However, the holding in Carrington Mortg. Holdings, LLC v. R Ventures VIII, LLC, 134 Nev. Adv. Op. 46 (Nev. 2018), upends NRS 116.3116(8)’s application outside a very specific context.