Federal Judge Throws Out Portion of Coverage Lawsuit in Nevada

Author: Christopher Lund

Guest Editor: Grace Shuman

December 3, 2021 9:00am

a recent ruling out of Nevada involving a case in which a plaintiff alleged bad faith, a judge opined a bad faith allegation did not survive Rule 12(b)(6) scrutiny.  Rule 12(b)(6) pertains to a pre-trial motion for “failure to state a claim upon which relief can be granted.”  In Sahinov v. Geico Advantage Ins. Co., the court deemed it “difficult for the court to sufficiently analyze whether one party was acting in bad faith” based on the details provided.

Disability Benefits for Undocumented Persons in Nevada

Author: Victoria Hightower

Guest Editor: Kiran Gupta

April 30, 2021 9:00am

It is well established the federal law prohibits an employer from employing a person who is not a U.S. Citizen or permanent resident, does not have a valid work visa or is otherwise undocumented. This means it is unlawful to employ an undocumented person. This had led to the question of whether undocumented persons who are injured while working unlawfully, are entitled to compensation for injuries.

Nevada Clarifies Service of a NRS Chapter 40 Notice During the Grace Period Does Not Toll Statute of Repose

Author: Victoria Hightower

January 11, 2021 9:00am

In 2015, the Nevada legislature enacted Assembly Bill (A.B.) 125, which increased the time for bringing an action for construction defects from six years to ten years.  See NRS 11.202(1). Also of note, NRS 11.202(2) adds language allowing a claim to be brought at any time, i.e. without any limitations period, after substantial completion for “any act of fraud in causing a deficiency in the design, planning, supervision or observation of construction or the…

A Minority Holding With Major Implications for Bad Faith Claims Against Insurers in Nevada

Author: Kris D. Klingensmith

Guest Editor: Jeremy Freedman

November 30, 2020 4:01pm

In 2018, the Nevada Supreme Court issued an opinion in Century Surety Company v. Andrew with important potential implications regarding an insurance carrier’s liability and duty to defend. Generally, an insurance policy contains the detailed scope of the insurer’s contractual duty to defend the insured, outlining both when the duty and certain exclusions apply. At issue in the Century Surety case is whether the liability of an insurer that has breached its duty to defend, without acting in bad faith, is capped at policy limits plus costs incurred, or whether the insurer is liable for all losses consequential to the breach of the duty to defend.

Defenses Raised in an Answer Can Be Waived if Not Timely Reaffirmed in Discovery

Author: Christopher Lund

November 2, 2020 3:00pm

In a recent opinion, the Nevada Supreme Court upheld the trial court’s decision to preclude defendant APCO Construction, Inc. (“APCO”) from raising an affirmative defense at trial, despite APCO raising this defense in its Answer. In 2007, APCO was a general contractor on a Las Vegas construction project, and plaintiff Zitting Brothers Construction, Inc. (“Zitting”) was a subcontractor.  The construction project was owned and commissioned by Gemstone Development West, Inc. (“Gemstone”). However, Gemstone shut the project down in December 2008.

The Importance of Opposing Petitions for Exemption from Arbitration When Plaintiff Has Not Provided any Exhibits to Support a Damage Calculation

Author: Russell D. Christian

October 12, 2020 3:04pm

In 1992, the Eighth Judicial District Court in Clark County, Nevada created the Court Annexed Arbitration (“Arbitration Program”) to provide a “simplified procedure for obtaining a prompt, economical and equitable resolution of certain civil cases.” If utilized properly, the Arbitration Program can be a very cost effective means of resolving cases as it “allows litigants the opportunity to obtain relief outside the formal court setting.” Subject to certain exceptions, all civil cases commenced in the district courts with a probable jury award value of $50,000 or less per plaintiff are subject to the program.

The 2020 Venetian Case: Confirmation of Nevada’s New Scope of Discovery Standard and “Good Cause” Analysis

Author: Kris D. Klingensmith

Guest Editor: Jeremy Freedman

October 5, 2020 2:09pm

The Nevada Rules of Civil Procedure were amended in March 2019 to change the scope of discovery and to require a proportionality test. In a recent decision, the Nevada Supreme Court outlined the analysis the district courts must use to determine (1) whether the discovery sought is proportional to the needs of the case based on a list of factors in the new language and (2) whether good cause had been shown such that a protective order should issue.  Venetian Casino Resort, LLC v. Eighth Judicial Dist. Court, 136 Nev. Adv. Op. 26 (Nev. 2020).

Nevada Clarifies the Factors a Court Must Consider When Determining Whether Excusable Neglect Exists

Author: Victoria Hightower

September 1, 2020 8:30am

NRCP 60(b)(1) provides that a district court may grant relief “from a final judgment, order or proceeding” based on a showing of “mistake, inadvertence, surprise or excusable neglect.” NRCP 60(b)(1).  This has given rise to the question of what exactly the court must consider when determining whether excusable neglect exists, and in what instances the court must make these considerations.

Nevada Courts Are Opening Up; What Will That Look Like?

Author: Victoria Hightower

July 8, 2020 12:00pm

On March 12, 2020, Nevada Governor Steve Sisolak issued a Declaration of Emergency in response to the COVID-19 pandemic.  On March 13, 2020, the President of the United States declared a nationwide emergency pursuant to §501(6) of the Robert T. Stanford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§ 5121-5207.  To mitigate the spread of COVID-19, the Center for Disease Control recommended social distancing and mandated wearing facemasks.  Governor Sisolak, in Directive 021…

Nevada Court of Appeals Refuses to Define Breach of the Peace for Self-Help Repossession

Author: Christopher Lund

July 8, 2020 12:00pm

James Droge, et al. v. AAAA Two Star Towing, Inc., 136 Nev. Adv. Op. 33 (Nev. App., June 18, 2020).
One of the favorite subjects found on reality TV is the repossession of cars, boats, and airplanes from individuals who defaulted on their loans to the bank. Watching a desperate and screaming debtor throw himself onto the hood of a car as it is being loaded onto a tow truck makes for great television. Often, in these shows, the employee of the repossession company or “repo company” is heard explaining to the delinquent debtor his company has the right under self-help laws and the loan…

The High Bar of Admissibility for Biomechanical Experts in Nevada

Author: Kris D. Klingensmith

June 1, 2020 9:00am

Biomechanical experts have been the subject of many motions in limine and appeals throughout recent years. The primary issue has been whether a biomechanical expert can provide opinions at trial regarding the forces of impact and alleged injuries resulting from that impact.  In 2008, the Nevada Supreme Court laid the groundwork and set a high bar for a party to successfully…

Defendants Entitled to Attorney Fees as Prevailing Party in Voluntary Dismissal Cases Under Certain Circumstances

Author: Christopher Lund

Guest Editor: Christopher Schon

May 6, 2020 7:42pm

145 East Harmon II Trust v. The Residences at MGM Grand-Tower A Owners’ Association, No. 75920, 136 Nev. Adv. Op. 14 (April 2, 2020). Recently, the Nevada Supreme Court tackled a question of first impression for the state: whether a defendant may be considered the prevailing party when a plaintiff voluntarily…

Keeping Cases Moving With Remote Depositions in Nevada

Author: Nathan E. Malone

April 6, 2020 3:04pm

Prior to recent world events, taking depositions by remote means was seen more as a luxury to avoid travel costs for relatively unimportant, but necessary, depositions.  It was also seen as an inferior way to take depositions.  However, in the current world environment, utilizing and applying remote deposition technology can actually be ordered by a court when the circumstances require, which may likely begin to occur more often. 

Nevada Limits Access to Police Body Camera Footage

Author: Christopher Lund

April 6, 2020 3:03pm

Recently, the Nevada Supreme Court published an opinion on an issue of first impression for the court. In Republican Attorneys Gen. Ass’n v. Las Vegas Metro. Police Dep’t (hereinafter referred to as “RAGA v. LVMPD”), the court considered the public’s access to police body camera footage involving juveniles.

Pre-Employment Drug Testing: What Nevada Employers and EPL Insurers Need to Know

Author: Harry Harrison

February 3, 2020 10:00am

Effective January 1, 2020, Nevada became the first state to ban most employers from utilizing pre-employment testing for marijuana in their hiring practices. Employers and their insurers need to be cognizant of this new law and avoid the pitfalls associated with the commonly-accepted practice of making hiring decisions contingent on pre-hire drug tests.

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

Author: Nathan Furman

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…

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

Author: Harry Harrison

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

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

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…

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…

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