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How the 2015 Amendment to the FRCP and 2019 Amendment to the NRCP Affect Spoliation in Nevada

Author: Kris D. Klingensmith

Guest Editor: Dan Cortright

January 8, 2020 11:00am

All too often, a perfectly defensible claim or case contains significant flaws due to evidence spoliation issues.  However, recent changes to the Federal Rules of Civil Procedure (“FRCP”) and Nevada Rules of Civil Procedure (“NRCP”) have changed and softened some of the sanctions surrounding spoliation of electronically stored information.

Claims for Professional Negligence Require Expert Testimony on the Standard of Care

Author: Nathan Furman

Guest Editor: Aydin Emami

January 8, 2020 11:00am

In Boesiger v. Desert Appraisals, LLC, 444 P.3d 436 (Nev. Jul. 3, 2019), a married couple bought a home and financed the purchase through a mortgage on the property. The mortgage lender contracted with an appraisal company to perform an appraisal. The appraiser valued the property at $340,000, with 3,002 square feet of gross living area. The appraiser’s report noted a discrepancy between the square…

Can a Carrier Pull Coverage if the Short-term Lessee Won’t Cooperate After a Loss With a Rental Car?

Author: Cheryl Wilson

Guest Editor: Dan Cortright

December 2, 2019 10:00am

The short answer is no. Each month Las Vegas, Nevada swells with visitors who rent cars and tool around the desert.  More than 3.4 million people visited Las Vegas in September, 2019. The Las Vegas airport reported airport rental car revenue of $28 million dollars for the month of September, 2019. I am not sure how many actual vehicles that number represents, but it is clearly a large number.

The Nevada Gaming Commission Takes Aim at Workplace Sexual Harassment and Discrimination, Increase Penalties for Violations

Author: Harry Harrison

Guest Editor: Raymond K. Wilson Jr.

December 2, 2019 10:00am

To bolster the already existing State and Federal laws prohibiting workplace sexual harassment and discrimination, the Nevada Gaming Commission (the “Commission”) has recently adopted its own policies tied to the gaming licenses it issues throughout the state. Publications have noted that Nevada has owned the unwanted title of leader in sexual harassment complaints per capita in the United States. Whether that is the product of a…

Dealing with No Howell in Nevada

Author: Nathan E. Malone

Guest Editor: Danielle Vukovich

November 5, 2019 8:00am

How can insurance companies and defense lawyers deal with Nevada courts’ reluctance to follow California’s Howell doctrine, specifically with regard to the admissibility of medical liens and write-downs to third party insurance providers?  Formulate your investigation of medical expenses to highlight what the plaintiff actually has to pay for the medical services they received, or is legally liable to repay, and what the market value of the…

Nevada Clarifies Exceptions to the American Rule of Attorney Fees

Author: Christopher Lund

Guest Editor: Danielle Vukovich

September 3, 2019 10:00am

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…

Revisiting an Insurer’s Duty Under Nevada Law to Inform its Insured Regarding Settlement Opportunities

Author: Tom McGrath

Guest Editor: Jeremy Freedman

September 3, 2019 10:00am

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…

Nevada’s Expanding Workers’ Compensation Exclusive Remedy Rule to Provide Medical Assistance to Employees or Not

Author: Jeremy Freedman

August 7, 2019 10:00am

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…

Actual Notice and Mailing Checks in Nevada

Author: Christopher Lund

July 1, 2019 10:00am

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…

HOA Caselaw Update: Nevada Supreme Court Finds More Excuses for a Bank’s Failure to Tender

Author: Margaret Schmidt

Guest Editor: Salayha K. Ghoury

June 4, 2019 8:28am

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.[1]   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.[2]  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.

Could Nevada provide a “Safe Zone” for Insurers to Test Cannabis Coverage Pilot Programs?

Author: Michaela Jester

Guest Editor: Salayha K. Ghoury

June 4, 2019 8:15am

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.

Changes in Nevada Rules of Civil Procedure Designed to Discourage Extensions of Discovery Deadlines and Trial Continuances

Author: Tom McGrath

May 6, 2019 12:37pm

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.

Nevada: At the Crossroads of UTSA Preemption and Policy Exclusions for Trade Secret

Author: Michaela Jester

May 6, 2019 12:36pm

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.

Court Provides Additional Clarity on Applying Nevada’s Anti-SLAPP Statute

Author: Christopher Lund

April 1, 2019 1:31pm

Pope v. Fellhauer, No. 74428 (Nev. March 21, 2019) (unpublished).

Background

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 Bill to Allow “Textalyzer” Device to Scan Cellphones After Car Accidents and the Impact of the Proposal on Establishing Fault in Civil Cases

Author: Danielle Vukovich

Guest Editor: Christopher Schon

April 1, 2019 12:54pm

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.[1]

Jury Demand within Complaint is Insufficient in Nevada

Author: Christopher Lund

March 4, 2019 9:00am

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.

Using Criminal Backgrounds in a Civil Case

Author: Kristin Mathis

Guest Editor: Alla Policastro

March 4, 2019 9:00am

NRS 50.095: Impeachment by Evidence of Conviction of Crime

  1. 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.

Tips to Steer Clear of the Lackluster Depo

Author: Kathryn Lee Colgan

Guest Editor: Alla Policastro

March 4, 2019 9:00am

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.  

Using the Sword – Offers of Judgment in Nevada

Author: Christopher Schon

January 7, 2019 9:00am

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.

Insurance and Autonomous Vehicles

Author: Rachel Donnelly

January 7, 2019 9:00am

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.

Planting the Seeds of Discussion

Author: Michaela Jester

December 3, 2018 9:00am

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.

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