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

Steve Klearman

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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.