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No Absolute Privilege Against Defamation in Nevada Workers’ Comp Cases

Author: Christopher Lund

Guest Editor: Leslie Price

May 31, 2018 12:56pm

Fitzgerald v. Mobile Billboards, LLC, 134 Nev. Adv. Op. 30 (May 3, 2018).

Nevada has long recognized a common law privilege against prosecution for statements made during a judicial or quasi-judicial proceeding. This privilege protects parties and witnesses from lawsuits for defamation based on statements related to the issues in the proceedings or anticipated proceedings, even if the statements were made with malicious intent or were knowingly false. The policy reason for this is “the public interest in having people speak freely outweighs the risk  individuals will occasionally abuse the privilege by making false and malicious statements.” See Circus Circus Hotels, Inc. v. Witherspoon, 99 Nev. 56, 61, 657 P.2d 101, 104 (1983).

Nevada’s Voluntary Payment Doctrine is a Viable Defense in HOA Lien Overpayment Cases

Author: Christopher Lund

Guest Editor: Raymond K. Wilson Jr.

April 27, 2018 3:15pm

Aliante Master Assoc. v. Prem Deferred Trust, No. 71026 (Nev. Feb. 23, 2018).

Background

In a recent order, the Nevada Supreme Court held a defendant homeowners’ association (HOA) is not precluded from asserting the voluntary payment doctrine as a defense to an assessment lien overcharge claim.    Aliante Master Assoc. v. Prem Deferred Trust is a class action case, in which plaintiff’s class representative, Prem Deferred Trust (“Prem”) purchased property within Aliante Master Association’s (the “HOA”) community at a bank foreclosure sale for $41,000 in 2010. At the time of the foreclosure sale, the HOA had a lien on the property for unpaid assessments.

Punitive Damages are Not Insurable? Welcome to Fabulous Las Vegas!

Guest Editor: Raymond K. Wilson Jr.

April 27, 2018 3:10pm

When a client asks “if we get hit for punitive damages, will my insurance cover it?” it’s tempting to offer the knee jerk response, “There is no insurance coverage for punitive damages.  It would violate public policy to do otherwise.”  But in Nevada, the correct answer is “It depends.”  Leave it to Las Vegas!

No Good Deed Goes Unpunished? An Overview of Workers’ Compensation Benefits for Volunteers in Nevada

Author: Allison Lawrence

Guest Editor: Raymond K. Wilson Jr.

April 27, 2018 3:03pm

Workers’ compensation is a widely utilized form of insurance in the United States for employees injured during the course of their employment. Although most of the public is familiar with the general principles of workers’ compensation, the inner workings of its concepts are complex and require specialized knowledge to fully comprehend.

Nevada was one of the earliest states to adopt a set of industrial insurance laws, which included regulations governing a workers’ compensation program. Since 1913, Nevada has provided its citizens with workers’ compensation benefits. In the last 100 years, the state’s workers’ compensation laws have been in flux and have constantly changed. Because of this, courts are constantly called upon to decide matters regarding benefits for individuals injured on the job.

Aliante Decision is Good News for Nevada HOAs

Author: Tom McGrath

April 4, 2018 9:33am

Homeowners Associations (HOAs) in Nevada have become accustomed to their involvement as parties in quiet title and declaratory relief litigation, arising from HOA foreclosure sales.  In HOA foreclosure litigation, the primary dispute is between the real estate investors who purchased properties at the HOA foreclosure sales and the lenders who claim their first deed of trust interest survived the sale and continues to encumber the property.  The HOA foreclosure litigation exists primarily because before October 2015, Nevada’s HOA foreclosure statute (NRS 116.3116) did not expressly clarify whether the “super-priority” portion of an HOA’s lien for delinquent assessments, could include attorneys’ fees and costs. 

The Latest Wrinkle in Nevada Medical Liens

April 4, 2018 9:28am

It is bad enough in Nevada plaintiff gets to board the actual amount billed by providers for medical treatment as opposed to the amount received.  It is doubly bad the number can be the amount put on a lien with the medical provider, as the lien number is typically higher than the amount would have been if billed through an insurance carrier.  Before a provider will take the case on a lien, it often seeks details to evaluate the risk, since if plaintiff does not win, the provider does not get paid.  The doctor will ask about the amount of coverage, whether liability is disputed and whether their potential patient has a history of prior accidents or preexisting issues.  At least, at time of trial, defense counsel is allowed to ask whether the patient treated on a lien to attempt to establish bias due to the doctor having a financial investment in the outcome of the case.  Khoury v. Seastrand, 377 P.3d 81, 132 Nev. Adv. Op. 52 (2016).

Nevada Supreme Court Clarifies an HOA’s Obligation to Notify New Homeowners of Foreclosure Proceedings

Author: Margaret Schmidt

Guest Editor: Jeremy Freedman

March 5, 2018 2:27pm

SFR Investments Pool 1, LLC v. First Horizon Home Loans, 409 P.3d 891 (Nev. 2018)

The Nevada Supreme Court recently reversed a district court’s decision to set aside a homeowner’s association (HOA) foreclosure sale in favor of the mortgage lender.  Upon purchasing the subject property at its own foreclosure sale, the lender claimed it was entitled to be re-served all NRS Chapter 116 notices as the property’s new owner.  On appeal, the Nevada Supreme Court clarified that an HOA need not start the entire foreclosure process anew each time the property changes ownership.

Claim Preclusion is Not Triggered by Declaratory Judgment in Nevada

Author: Christopher Lund

February 5, 2018 3:20pm

Boca Park Martketplace Syndications Group, LLC v. Higco, Inc., 133 Nev.Adv.Op. 114, No. 71085 (December 28, 2017).

Background

This case involves a commercial landlord-tenant dispute. In 2002, plaintiff Higco, Inc. (“Higco”) became one of Boca Park Martketplace Syndications Group, LLC’s (“Boca Park”) tenants in a Las Vegas shopping center. The parties entered into a 20-year written lease agreement in which the parties agreed Higo would have the exclusive right to operate a tavern in the shopping center. In addition, the agreement gave Higco the exclusive right to provide gaming services (i.e., gambling) in the shopping center, excluding any current tenants which were permitted to continue providing gaming facilities if already operating the same.

When Should a UM/UIM Carrier Intervene in its Insured’s Lawsuit against a Tortfeasor in a Nevada Court?

Author: Tom McGrath

February 5, 2018 3:14pm

When an uninsured/underinsured (UM/UIM) carrier’s insured files a third party claim against an alleged tortfeasor, the adjudication of liability and damages will be binding on the same issues regarding the insured’s first party claim for UM/UIM benefits against his/her own carrier.  In many cases, if the tortfeasor timely appears in the third party case, the UM/UIM carrier may not intervene because, presumably, the tortfeasor and/or his/her insurance carrier will be motivated to defend, liability and damages  adequately. But, in third party cases where the UM/UIM carrier has concerns about the tortfeasor’s presentation of defenses to liability and damages (such as a case where the UM/UIM carrier’s insured’s alleged damages exceed the tortfeasor’s applicable insurance limits), it may intervene to protect its interests.

UIM Claim Not Ripe When Plaintiff’s has Pending Third Party Claims

Author: Tom McGrath

January 12, 2018 4:38pm

In Theresa Malone v. State Farm Mutual Insurance Company, 2017 WL 518420, the Nevada Federal District Court recently granted Defendant State Farm’s Motion to Dismiss its insured’s federal lawsuit, asserting first party underinsured motorists claims arising from State Farm’s alleged failure to pay UIM benefits.

Nevada Supreme Court Raises New Issues in HOA Foreclosure Litigation

Author: Margaret Schmidt

January 12, 2018 4:34pm

Nationstar Mortgage, LLC v. Saticoy Bay LLC Series 2227 Shadow Canyon, 405 P.3d 641 (Nev. 2017)

Background

Nevada’s homeowners association (HOA) lien statute, NRS 116.3116, is a creature of the Uniform Common Interest Ownership Act of 1982 (UCIOA), which Nevada adopted in 1991 and codified as NRS Chapter 116.  As it existed prior to 2015,[1] NRS 116.3116 provided an HOA with a statutory lien against a unit for unpaid assessments, and for a portion of that lien to be prior to a first deed of trust (aka the “superpriority” lien).

Nevada Now Has a Court of Appeals! How Does it Work?

January 12, 2018 4:28pm

Until 2014, all appeals from decisions of the Nevada District Courts were heard by the Nevada Supreme Court.  (Nevada is broken into eleven judicial districts; Clark County, which includes Las Vegas, is in the Eighth Judicial District.)  The case of Figueroa v. IDS Prop. and Cas. Ins. Co. provides a good example of how the trial, appellate and supreme court works in Nevada. It is what is known as a “push down” model.   

NOSHA Adopts The “Rule Of Access” Standard To Determine PPE Training Requirements

Author: Christopher Lund

December 1, 2017 4:55pm

The Nevada Supreme Court recently issued an opinion interpreting the language of a federal regulation which requires employers to provide personal protective equipment (PPE) to employees and training on how to use the PPE in certain workplace situations. The case came about due to an anonymous complaint sent into the Nevada Occupational Safety and Health Administration (NOSHA), in which the complainant stated Sierra…

COWABUNGA: Nevada Alter Ego Liability

December 1, 2017 4:53pm

On November 22, 2017 the Nevada Supreme Court held that managers of a limited liability corporation (LLC) may be subject to suit for personal negligence as tortfeasors under an alter ego theory of liability.

In the case of Gardner v. Henderson Water Park, LLC dba Cowabunga Bay Water Park, 133 Nev. Adv. Op 89, the Gardners’ minor child suffered injuries resulting from a near-drowning at Cowabunga Bay Water Park in Henderson, Nevada.  The Gardners filed suit against Henderson Water Park, LLC dba Cowabunga Bay Water Park and its two managing members, West Coast Water Parks, LLC and Double Ott Water Holdings, LLC.  The 7 managers of West Coast and Double Ott LLCs have an ownership interest in, or manage, the member-LLCs and also serve on the management committee governing the water park itself.

Nevada Legislature Approves Increase of Minimum Insurance Limits to 25/50

Author: Tom McGrath

November 5, 2017 11:05am

On June 1, 2017, Nevada Governor Brian Sandoval approved Nevada Senate Bill 308, which increases the requirements for minimum insurance limits for motor vehicle owners in Nevada.  The new law, which takes effect on July 1, 2018, requires auto insurance policies to afford a minimum of $30,000.00 in coverage for bodily injury or death to one person and $50,000.00 for bodily injury or death to more than one person.  Nevada’s current law requires auto insurance policies to afford limits of $15,000.00 per person and $30,000 aggregate.  The new law also increases the minimum limits for property damage from $10,000.00 to $20,000.00

Nevada Supreme Court Broadens Scope of Determining Innkeepers’ Duty to Protect Patrons from Injuries Caused by Third Parties on Its Premises

Author: Margaret Schmidt

November 5, 2017 11:03am

In the early morning hours of April 10, 2010, Carey Humphries (“Humphries”) was walking through the casino floor at New York-New York Hotel & Casino (NYNY) when another patron, Erick Ferrell (“Ferrell”), made unwanted advances and lewd comments towards her.  After Humphries made a “spitting gesture” and turned to walk away, Ferrell attacked her, resulting in a skull fracture and other injuries.  Lorenzo Rocha (“Rocha”) was playing at a nearby slot machine and attempted to intervene, receiving injuries to his face and head from doing so.

Nevada Affirms Use Of Consumer-Expectation Test In Design Defect Cases

Author: Christopher Lund

November 5, 2017 10:52am

The Ford Motor Company (Ford) appealed a jury verdict in a strict liability design defect case, in which Ford unsuccessfully argued an alternative design defect test should have been included in the jury instructions. The plaintiff Teresa Gacia Trejo was driving a 2000 Ford Excursion on a highway with her husband Rafael Trejo sitting in the passenger seat. When Ms. Trejo attempted to change lanes, the trailer she was pulling fishtailed causing her to lose control of the vehicle. The Excursion rolled between 1.5 and 2.5 times before resting upside down. Ms. Trejo stated “the roof was so crushed that [she] was unable to see Rafael.” Ms. Trejo was able to climb out of the vehicle, but her husband died at the scene.

Optimizing Use Of Damages Experts In Multi-Defendant Lawsuits

Author: Emily Straub

September 29, 2017 4:37pm

Multi-party litigation provides co-defendants with an opportunity to optimize the use of damages experts. Such environment, by its nature, necessarily encourages joint expert retention and fee sharing. Why? No defendant wants multiple repetitive expert opinions on damages – it is a waste of time and it will bore the jury. Additionally, no defendant wants to take the chance of there being divergent defense expert opinions on damages. Competing opinions could undermine the credibility of all defense opinions on a particular subject simply because they are not unified. Opinion considerations aside, the sheer cost of damages experts provides great incentive to share in their fees. But coordinating joint retention and fee sharing can be a challenge at times. Here are some suggestions to streamline such an arrangement.

Nevada Supreme Court Confirms NRCP 16.1 “Computation of Damages” Requirement Applies to Future Medicals

Author: Tom McGrath

September 29, 2017 4:26pm

Nevada’s Rules of Civil Procedure closely mirror federal court civil procedural rules.  Nevada Rule of Civil Procedure 16.1 generally requires parties to serve initial disclosures of witnesses and exhibits without awaiting a discovery request from other parties.  And NRCP 16.1(a)1(C) requires parties to provide with their initial disclosures, “a computation of any category of damages claimed by the disclosing party.”

Does it Matter to HOAs how Courts Interpret the Bourne Valley Holding?

Author: Tom McGrath

September 5, 2017 1:22pm

Nevada Federal District Judges continue to interpret and apply Bourne Valley differently in cases involving quiet title disputes arising from HOA non-judicial foreclosures under the previous version of Nevada’s HOA lien statute (NRS 116.3116).  At least half of the judges in Nevada Federal District Court require lenders to establish the HOA’s collection agent failed to provide them actual notice of the disputed HOA foreclosure sale.  When the lenders fail to meet their burden in this regard, these judges hold that the lenders lack standing to assert a Constitutional substantive Due Process argument.  But other judges interpret Bourne Valley to hold that NRS 116.3116 is facially unconstitutional and therefore, lenders are not required to prove lack of actual notice of the foreclosure sale for the Court to invalidate the same.

HOA Update: Sufficient Tender Of Super Priority Liens

Author: Christopher Lund

September 5, 2017 1:17pm

Wynn Resorts, Ltd. v. Eighth Judicial Dist. Court of Nevada, and Kazuo Okada, et al, No. 70050 and 70452, 133 Nev., Advance Opinion 52 (Nev., July 27, 2017).

The Nevada Supreme Court recently provided guidance on two evidentiary issues important to any company who retains an attorney to assist in a matter currently the subject of a lawsuit or that the company believes may lead to a lawsuit. These two evidentiary issues are: (1) when a party may obtain an opposing party’s documents otherwise protected by the attorney-client privilege if the opposing party asserts the “business judgment rule” as a defense, and (2) “under what circumstances a document may be protected by the work-product privilege even if it is at issue in the litigation.”

Semantic Changes Do Not Allow Class Action Claims To Circumvent Need Jurisdiction

Author: Christopher Lund

July 30, 2017 11:12am

In a recent unpublished opinion, the Nevada Court of Appeals reversed a district court’s denial of a homeowner association’s motion to dismiss a class action complaint. The court of appeals affirmed that claims involving the interpretation of an HOA’s covenants, conditions, and restrictions (CC&Rs) must be submitted to the Nevada Real Estate Division’s (NRED) alternative dispute resolution program before a district court has jurisdiction.  In addition, a court should look to the substance of a complaint to determine whether it involves interpreting CC&Rs and not blindly accept a plaintiff’s assertion in its complaint that its claims do not involve interpreting CC&Rs.

U.S. Supreme Court Denies Writ Re: Bourne Valley; What Now?

Author: Tom McGrath

July 30, 2017 11:03am

On June 26, the U.S. Supreme Court denied Bourne Valley Trust’s Writ of Certiorari, challenging the Ninth Circuit Court of Appeal’s decision in Bourne Valley Trust v. Wells Fargo.  In Bourne Valley, the Ninth Circuit held the “opt-in notice” language in Nevada’s previous version of its HOA foreclosure statute (NRS 116.3116), did not provide lenders with adequate notice and therefore, deprived them of their substantive Due Process rights under the Constitution.  Therefore, it overturned a Nevada Federal District Court Judge’s Order granting summary judgment in favor of Bourne Valley Trust, an investment company who acquired a property at an HOA foreclosure sale.  Bourne Valley Trust’s Writ was based on the fact that Wells Fargo admitted receiving actual notice of the foreclosure sale.

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