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Nevada Supreme Court Rejects Application of Anti-Stacking Rules for Concurrent Negligence

Steve Klearman — Thu, 05 Nov 2009 15:16:39 GMT

In Delgado v. American Family Ins. Group, 125 Nev. Adv. Op. No. 44 (October 1, 2009), the Nevada Supreme Court was faced with the question of whether the passenger in an automobile who is injured by the concurrent negligence of the drivers in a two-car accident "may recover under the permissive driver's insurance policy both liability benefits based on the policyholder's negligence and underinsured motorist benefits based on the other driver's underinsured status."

The plaintiff passenger had made a claim against both at-fault drivers' insurance policies and recovered the liability limits under those policies. She then made a claim against the permissive driver's underinsured motorist policy, alleging that the at-fault policies did not cover the extent of her damages.

The Court rejected the application of the anti-stacking rules under the Nevada case law. In Nevada, once a passenger has recovered under the vehicle owner's liability policy--whether that policy is the permissive driver's policy or the passenger's own policy--the passenger may not also recover under the owner's uninsured/underinsured motorist policy, although the guest passenger may stack their own UM/UIM coverage with the benefits they receive from the owner's policy. Baker v. Criterion Insurance, 107 Nev. 25, 805 P.2d 599 (1991).

Distinguishing the anti-stacking situation, the Court concluded that "a passenger who is injured by two concurrently negligent drivers may recover from both the permissive driver's single insurance policy liability benefits based on the permissive driver's negligence and underinsured motorist benefits based on the other driver's underinsured status."

The Court clarified that the antistacking rule under Nevada law was not implicated by this case. Thus, a passenger whose injuries are attributable to two jointly negligent drivers and who exhausts the liability limits of the permissive driver's policy without satisfying his damages may seek recovery under the permissive driver's underinsured motorist policy based on the other driver's underinsured status.

Originally posted at InjuryBoard by Steve Klearman

Nevada Supreme Court Reviews Dram Shop Liability

Steve Klearman — Tue, 10 Nov 2009 13:29:17 GMT

The Nevada Supreme Court addressed the liability of a hotel for injuries occurring in an automobile accident after evicting intoxicated persons from the hotel premises in Rodriguez v. Primadonna Company, 125 Nev. Adv. Op. No. 45 (October 1, 2009).

In Rodriguez, 17 year old Fabian Santiago had been drinking with his two adult uncles, Manuel and Daniel Garibay, on hotel property where they were checked in as guests. They became disruptive, and hotel security intervened. The hotel security officers' requested that Fabian and his uncles leave the property. Hotel security accompanied the three men as they retrieved their belongings. Manuel told another guest that the three of them were going to their car in the parking lot to "sleep it off." Manuel had not intended to drive, as he did not have valid license and he believed he was too intoxicated. When the men were escorted to their vehicle, Manuel told Daniel he was sober enough to drive. Hotel security personnel informed the men, seated in their car, that they had to leave the hotel parking lot and exit hotel property. After leaving the property, Manuel rolled the vehicle while driving at approximately 80 miles per hour. 17 year old Fabian suffered extreme spinal injuries and, as a result, is quadriplegic.

In addressing the claim of negligent eviction, the Court was faced with the issue of whether the hotel owed an affirmative duty to ensure Fabian's safety after he was evicted from hotel property. The Court reviewed Nevada law regarding intoxicated patrons:

In Nevada, hotel proprietors have the statutory right to evict from the premises anyone who acts in a disorderly manner or who causes a public disturbance in or upon the premises. NRS 651.020.[1]

In Nevada, commercial liquor vendors, including hotel proprietors, cannot be held liable for damages related to any injuries caused by the intoxicated patron, which are sustained by either the intoxicated patron or a third party, including when the intoxicated patron is a minor.

Nevada subscribes to the rationale underlying the nonliability principle--that individuals, drunk or sober, are responsible for their torts.

The Court concluded that "when a hotel proprietor rightly evicts a disorderly, intoxicated patron, the hotel proprietor is not liable for any torts that an evicted patron commits after he or she is evicted that result in injury." The proprietor does not have the duty to prevent injuries caused by the intoxicated patron that are sustained either by the patron or by third parties after the eviction has been executed.

The Court did recognize that hotel proprietors do have a duty to act reasonably under the circumstances. The Court stated, however, that in accordance with the principles underlying Nevada's rejection of dram-shop liability, so long as a proprietor does not use unreasonable force in evicting a patron, the hotel proprietor is not required to consider a patron's level of intoxication in order to prevent speculative injuries that could occur off the proprietor's premises.

Thus, although the hotel may have known that Fabian's step-uncle was intoxicated and could not safely drive, the Court concluded, "as a matter of law, that Primadonna did not have the duty to arrange safer transportation, prevent an intoxicated driver from driving, or prevent Fabian, a passenger, from riding with a drunk driver."

Originally posted at InjuryBoard by Steve Klearman

CAUTION! READ BEFORE SIGNING: Releasing Property Damage Claims

Steve Klearman — Fri, 27 Mar 2009 12:49:39 GMT

After an accident, a party will often accept a given sum of money for repairs in exchange for which he or she releases the right to sue for any and all present and future property damages arising out of that accident. If the indication to release liability for only property damage is not made clear, however, a party may also unknowingly sign away his or her right to sue for bodily injuries that may present themselves several weeks or months after an accident.

Common language in a Release of Property Damage includes a statement discharging a party from "any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever, which the undersigned now has/have or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, property damage and the consequences thereof resulting or to result from the accident, or event which occurred on or about [date of incident]."

Alone, however, this language leaves open the interpretation that the party is also signing away all liability for personal injury resulting from said incident.

There is an even greater risk of misinterpretation if the document includes further ambiguous language, such as indemnification from "any and all further liability, loss, damage, claims of subrogation and expense, arising because of any damages, and, if necessary, and, ... to satisfy on their behalf any judgment against them arising in any way out of aforesaid accident." Such language alone does not make it clear that the release is for property damage only.

A document purporting to release a party from property damage only should include a provision making such intention clear. For instance, the party can require acknowledgement that "this is a complete release of property damage only and it is understood and agreed that it does not constitute a release for any bodily injury resultant from this accident."

Without a clear indication that the release is for property damage only and not for bodily injury, titling a document "Release in Full of All Property Damage Claims" is not enough.

Originally posted at InjuryBoard by Steve Klearman

Fall and Night Driving Safety Tips

Steve Klearman — Wed, 29 Oct 2008 21:07:00 GMT

Helpful safety tips for fall and night driving from John Myre's SAFETY TIMES NEWSLETTER

Fall driving presents a variety of obstacles, and more drivers die from September through November than during the winter months of December through February. Slick roads, foggy mornings, and roaming wildlife are just some of the increased hazards. You must also contend with less daylight and morning and evening sun glare.

1. Clean and check your headlights regularly. Headlight dirt or misalignment can reduce the distance a driver can detect objects at night by about thirty percent.

2. Get your headlights aligned during a regular maintenance stop. If you can't get to a technician, the National Safety Council suggests the following steps:
-You need 35-40 feet of flat or constantly sloped driveway.
-Shine your low beams on a garage door two to three feet away.
-Outline the bright spots with a soft pencil or tape.
-Back the car about 25 feet from the door. The top of the low beams should shine no higher than the top of the marks on the door or lower than the center of the marked circle. If you have two headlights, the high beams are also aimed.
-If you have four headlights, aim the low beams first. Adjust the high beams until the center of the high is at the top of the low beam.

3. To minimize the glare problems at sunrise and sunset, use your visor, and wear sunglasses if necessary. Never wear sunglasses or tinted glasses at night. Also:

4. Be wary of drivers who are driving into a glare at your back. Give yourself plenty of room to come to a controlled stop.

5. Turn on your headlights whenever you wonder if it's dark enough to use headlights. It will help you see and be seen.

Originally posted at InjuryBoard by Steve Klearman

Winter Safety Tips: Driving

Steve Klearman — Fri, 19 Dec 2008 13:00:00 GMT

Although the best practice is to avoid driving in hazardous winter weather, that does not always coincide with life's necessities. When driving in bad winter weather is unavoidable, allow the snow plows time to clear the roads and lay out salt and sand. Also, be sure to leave extra travel time. When conditions become icey, try to heed the following advice:

Driving safely on icey roads:

1. Decrease your speed and leave yourself plenty of room to stop. You should allow at least three times more space than usual between you and the car in front of you.

2. Brake gently to avoid skidding. If your wheels start to lock up, ease off the brake.

3. Turn on your lights to increase your visibility to other motorists.

4. Keep your lights and windshield clean.

5. Use low gears to keep traction, especially on hills.

6. Don't use cruise control or overdrive on icy roads.

7. Be especially careful on bridges, overpasses and infrequently traveled roads, which will freeze first. Even at temperatures above freezing, if the conditions are wet, you might encounter ice in shady areas or on exposed roadways like bridges.

8. Don't pass snow plows and sanding trucks. The drivers have limited visibility, and you're likely to find the road in front of them worse than the road behind.

9. Don't assume your vehicle can handle all conditions. Even four-wheel and front-wheel drive vehicles can encounter trouble on winter roads.

For more winter weather driving tips please go here.

Originally posted at InjuryBoard by Steve Klearman

Get Drunk and Ride Free in Reno

Steve Klearman — Fri, 17 Mar 2006 08:30:50 GMT

The Reno Gazette Journal http://rgj.com reports today that residents are encouraged by our local government to go out and tie one on for St. Patrick's Day.

Well, more specifically, and with good intent: the Northern Nevada DUI Task Force and the Regional Transportation Commission are sponsoring free rides on Citifare to help reduce alcohol-related traffic accidents among St. Patrick's Day revelers tonight.

Servers and bartenders at the following businesses in Reno will provide bus passes at customer request:

Corrigan's Bit O' Ireland, 1526 S. Wells Avenue; Murphy's of Reno, 3127 S. Virginia St.; 50 Yard Line Bar & Grill, 400 S. Rock Blvd.; Fitzgeralds Casino-Hotel, 255 N. Virginia St.; Foley's Irish Pub, 2780 S. Virginia St.; Harrah's Reno, 219 N. Center St.; Lucke's Saloon, 1455 S. Wells Avenue; Mr. O's, 1495 S. Virginia St.; Napper Tandy's Irish Pub, 541 E. Moana Lane, Ryan's Saloon, 924 S. Wells Avenue; Shea's Tavern, 715 S. Virginia St.; Silver Peak Restaurant, 124 Wonder St. and 135 N. Sierra St. and 1099 Club, 1099 S. Virginia St.

Sparks establishments taking part are as follows:

Great Basin Brewing Co., 846 Victorian Avenue; O'Ski's Pub & Grille, 840 Victorian Avenue and Paddy & Irene's Irish Pub, 1218 Victorian Avenue.

Additionally, some streets will be closed to motorists today through Sunday for St. Patrick's Day celebrations, city officials said.

North Virginia Street between Second and Plaza streets and Commercial Row between Center and North Virginia streets are scheduled for closure through 8 p.m. Sunday. Fitzgeralds Casino-Hotel will have music, an arts and crafts fair and other activities.

Vesta Street from South Wells to Holcomb avenues also will be closed Friday afternoon for festivities at Rapscallion Seafood House & Bar.

Just watch yourself getting on the bus...

Originally posted at InjuryBoard by Steve Klearman

Hospital Liens Do Not Attach to UM Coverage in Nevada

Steve Klearman — Mon, 23 Mar 2009 15:40:00 GMT

Under Nevada law provides statutory authority for hospitals to place a lien on certain insurance proceeds. NRS 108.590 provides that "Whenever any person receives hospitalization on account of any injury, and he, or his personal representative after his death, claims damages from the person responsible for causing the injury, the hospital has a lien upon any sum awarded the injured person or his personal representative by judgment or obtained by a settlement or compromise to the extent of the amount due the hospital for the reasonable value of the hospitalization rendered before the date of judgment, settlement or compromise."

This statutory lien provision does not extend to underinsured motorist coverage, although in some states hospital liens do attach to UM coverage. Why not in Nevada?

The Nevada Supreme Court addressed the issue in Washoe Medical Center, Inc. v. Reliance Ins. Co., 112 Nev. 494 (1996). There, the Court articulated why hospital liens do not attach to first-party UM coverage.

The Court noted that the express language of the statute does not authorize attachment to UM coverage. NRS 108.590, quoted above, refers to "damages from the person responsible for causing the injury." An injured party's own insurance provider, through which received UM coverage, cannot be included as a person responsible for causing the injury. Thus, the Court concluded that "hospital liens do not attach unless an injured person claims damages from the third-party tortfeasor and the injured person is subsequently awarded damages pursuant to a judgment, settlement or compromise with the third-party tortfeasor or the third-party tortfeasor's insurance carrier."

Originally posted at InjuryBoard by Steve Klearman

Nevada's Teen Drivers Get Into More Auto Accidents

Steve Klearman — Sat, 24 Dec 2005 14:51:41 GMT

A Reno Gazette-Journal study of state and federal accident data shows accident rates among Nevada's teen drivers are increasing, with a particular increase among the state's 17-year-old drivers. Fifteen-year-old drivers also showed high accident-rate increases.

The Gazette-Journal reported that this problem appears to be particularly bad in Washoe County, where the accident rate for teen drivers is well ahead of the rate for teen drivers in the rest of the state. The percentage of those accidents that are resulting in injuries is also climbing. In 2002 -- the last year for which complete records were available -- Washoe teen drivers' injury accident rate when they had teen passengers on board was nearly twice the statewide rate.

The number of passengers being injured in these accidents is increasing as well. The injury rate when the injured passenger is a teen jumped 20 percent from 2000 to 2002 and the injury rate when the passenger is either an adult or a child doubled between 1999 and 2002.

Five years ago, Washoe's teen drivers' accident rate was just 2 percent higher than everyone else's. But by 2002, more than 1 in 5 teen drivers in Washoe County were having driving mishaps. Their accident rate of 20.79 percent was more than 10 percent higher than the rest of the teens in the state.

Although that's discouraging, it was an improvement; in 2001 the accident rate for Washoe's teens was almost 18 percent higher than their counterparts elsewhere in Nevada.

The accident rate for 17-year-olds in Nevada is the highest of any age group in the state -- 10 percent higher than 16-year-old drivers and nearly three times the rate for 15-year-old drivers.

Seventeen-year-olds have the highest accident rates for all categories measured -- injury accidents, property-damage-only accidents and fatal accidents. The only good news: 17-year-olds' rate for DUI-related accidents was lower than all groups except 16-year-olds and was half the rate of the leaders -- 22-year-old drivers.

Originally posted at InjuryBoard by Steve Klearman

National Highway Traffic Safety Administration Announces Ratings Updates

Steve Klearman — Tue, 12 Aug 2008 22:14:00 GMT

In an effort to provide consumers with more complete safety information and encourage car manufacturers to design safer cars, the U.S. Department of Transportation has revised its five star rating system.

The changes include reporting an overall safety rating, taking into account an automobile's performance in frontal, side, and rollover tests, instead of just reporting those results separately. A new side poll test will simulate an automobile collision with a tree.

For the first time, female crash test dummies will be tested, to represent women and larger children, and a new test for leg injuries will be implemented.

The updated system will include ratings for new technologies, such as electronic stability control, lane departure warning systems, and forward collision warning systems.

The changes in vehicle testing will be implemented beginning with 2010 model automobiles.

For more information, visit For more information, visit the National Highway Traffic Safety Administration

Originally posted at InjuryBoard by Steve Klearman

Most Dangerous Vehicles

Steve Klearman — Tue, 15 Jul 2008 13:34:37 GMT

KCTV.com posted an interesting article discussing dangerous automobiles.

While the greater likelihood of rollovers make SUVs, vans, and pickups more hazardous in single vehicle crashes, smaller cars have a disadvantage in multi-car accidents.

Keep reading for the full text of the article, entitled "20 Most Dangerous Autos Named: SUVs, Small Autos Increase Risk for Drivers."

Want to stay safe as you navigate the open --or congested -- road? You may want to avoid certain vehicles.

Some cars are considered unsafe because of a lack of safety features, others because young, risky drivers seem to gravitate toward them.

One example of a vehicle that gets a bad rap is the Nissan 350z, because it has a death rate that is nearly double the rate for other sports cars. The reason for this isn't a lack of safety; it's that young, inexperienced and risky drivers are frequently behind the wheel when these cars are involved in fatal crashes.

"When they're in crashes, they're particularly serious ones," said Russ Rader, communications director for the Insurance Institute for Highway Safety.

Experts look at side-impact protection, stability control and rollover risk when assessing vehicles in order to predict safety. The 20 most dangerous vehicles compiled here were assessed in this way by Forbes.com.

The vehicle that tops the list could make Tiger Woods blush. The Buick Rendezvous -- Woods is a spokesman for the vehicle -- is ranked as the least safe vehicle available in the U.S. Its followed by other SUVs including Ford Escape, Mercury Mariner, Jeep Liberty and Nissan Xterra.

"What makes a vehicle unsafe today is a lack of side-impact protection," said Radar. "Whiplash is not a life-threatening injury, but head injuries -- from side impact -- are commonly life-threatening."

Because of this danger, side-curtain bags are mandatory for all 2009 autos. The National Highway Traffic Safety Administration suggests that these will help reduce fatal head injuries caused by side-impact crashes by 45 percent. This safety measure could potentially save 1,000 lives anually.

Autos need more than just head-protecting airbags. A well-built side structure that can handle an impact from vehicles of different heights is essential for safety. This brings up an important side note: larger vehicles are at an advantage in a crash, especially when the crash involves small, light vehicles like a Toyota Yaris or Chevrolet Cobalt. Other light autos at risk include Suzuki Forenza, Pontiac G5, Toyota Scion tC, Ford Focus, Suzuki Reno, Chevrolet Aveo, Kia Rio, Toyota Matrix and Hyundai Accent.

However, those small cars may be at an advantage in another area. Their handling and maneuverability can help avoid an accident if the driver is alert.

"A more nimble, better-handling vehicle is likely going to be easier to control in an emergency and help the driver avoid the dangerous situation," said John Linkov, managing editor of Consumer Reports.

Before you rush out to buy the biggest SUV you can find, it's important to know that SUVs and pickups are at a noticeable disadvantage when involved in single-vehicle accidents -- when the driver swerves to miss an object or animal, or falls asleep behind the wheel. The danger is that these vehicles have an increased -- more than double - chance of rolling over.

In this type of accident, SUVs and pickups have more than double the chance of rolling over, according to NHTSA data. This risk relates closely to overall federal fatality data, showing that SUVs and pickups generally have a higher fatality rate than cars of a similar weight.

Technological advances have been made to help counteract these dangers. Electronic stability control systems, which apply brake pressure where it is most needed to prevent loss of vehicle control, have become more common among non-luxury vehicles. The NHTSA calls this advance "the most significant since the seat belt," and the federal government is requiring that all new cars have the feature, starting in 2012. This mandate is estimated to be able to prevent over 9,000 auto fatalities each year.

"Electronic stability control is one of those rare safety features that's having a dramatic effect on saving lives," said Rader. "Stability control alone can reduce the risk of fatal single-vehicle crashes by 56 percent. And it can reduce fatal single-vehicle rollovers by 80 percent for SUVs, 77 percent for passenger cars."

SUVs and small autos aren't the only vehicles to be wary of.

"Pickups have a rollover problem," said Radar. "They have a high center of gravity and a high propensity to roll over." And making matters worse, "They're the laggards in electronic-stability control," he said. Pickups ranked as most dangerous include Ford Ranger, Nissan Frontier and Dodge Dakota.

Any vehicle, even the safest autos on the road, can be dangerous if it's not used as it was intended. Poorly trained drivers can increase the risk.

Information on this report is based on available data by the IIHS, covering 2001 to 2004 models. Some manufacturers have made significant changes and/or redesigns of vehicles.

http://www.kctv5.com/automotive/15856467/detail.html

Originally posted at InjuryBoard by Steve Klearman