Reno Personal Injury Lawyer - Insurance Bad Faith

Nevada Equitable and Legal Claims at Trial

Steve Klearman — Fri, 15 Feb 2008 10:10:44 GMT

On December 27, 2007 the Nevada Supreme Court clarified in Awada v. Shuffle Master, Inc., 123 Nev. Adv. Op. No. 57, the manner in which a Nevada District Court may handle mixed claims for legal and equitable relief at trial and found as follows:

In this appeal, we consider the primary issue of whether a district court has the authority to bifurcate the legal and equitable claims presented in a single action, conduct a bench trial on an equitable claim, and then use the findings of fact and conclusions of law from that bench trial to dispose of the case. On this issue of first impression, we conclude that Nevada district courts have discretion to bifurcate legal and equitable claims in a single action and to first conduct a bench trial on an equitable claim. Furthermore, a district court that exercises such discretion may then use its findings of fact and conclusions of law as a basis for disposing of claims remaining in the case, so long as it does so in a manner consistent with Nevada law and our rules of civil procedure.

We also consider whether the district court abused its discretion by sua sponte disposing of the remaining claims in a summary judgment-like manner after conducting a bench trial on respondents' counterclaim for rescission. In this case, the district court did not abuse its discretion when it first considered respondents' counterclaim for rescission and rescinded the parties' agreement. Based on its findings and conclusions, the district court properly disposed of all of appellants' contract-based claims against respondent Shuffle Master, Inc., because those claims could not stand absent a valid contract. However, the district court improperly granted summary judgment as to the claims against respondent Mark Yoseloff and appellants' remaining claims against Shuffle Master because those claims can survive absent a valid contract between the parties. Additionally, the district court erred in resolving those claims without satisfying the procedural requirements of NRCP 56.

Accordingly, we affirm the district court's judgment as to appellants' claims for breach of contract and contract-based claims for breach of the implied covenant of good faith and fair dealing; we reverse the district court's judgment as to appellants' claims for fraud, civil conspiracy, conversion, unjust enrichment, and tortious interference with contractual relations/prospective economic advantage and as to appellants' claims against Yoseloff; and we remand this case to the district court for further proceedings consistent with this opinion.

Originally posted at InjuryBoard by Steve Klearman

Update on Nevada Allstate Attorney Misconduct Case

Steve Klearman — Thu, 14 Feb 2008 10:00:57 GMT

In the ongoing squabble over Allstate defense attorney Phil Emerson's repeated misconduct in arguing cases at trial, the Nevada Supreme Court rendered its latest decision on January 17, 2008.

In its introduction to Lioce v. Cohen, 124 Nev. Adv. Op. No. 1, the Court stated:

On December 28, 2006, this court issued an opinion in these consolidated appeals.[2] The defendants in each of the four underlying personal injury cases were represented by the same attorney, who gave substantially the same closing argument on behalf of his clients at each trial. Asserting that defense counsel's closing arguments constituted misconduct, the plaintiffs sought new trials, with varying success.

In that opinion, we revised the standards under which district courts are to evaluate requests for new trials based on attorney misconduct. Next, we reversed the denial of the motions for new trials in Lioce v. Cohen and Lang v. Knippenberg, and affirmed the grant of new trials in Castro v. Cabrera and Seasholtz v. Wheeler. Additionally, we determined that the defendants' attorney's closing arguments in Castro and Seasholtz amounted to misconduct, and we remanded those cases with instructions to the district courts to calculate and impose monetary sanctions on defense counsel and his clients.[3] Finally, we referred defense counsel to the State Bar of Nevada for disciplinary proceedings. This petition for rehearing followed. Having considered the petition, answers, amici curiae briefs, and the replies, we conclude that en banc rehearing is warranted in part under NRAP 40(c). We therefore grant the petition in part, vacate our prior opinion in this matter, and issue this opinion in its place. On rehearing, we reach substantially the same conclusion as in our prior opinion, but we decline to impose monetary sanctions on defense counsel and his clients.

Because defense counsel's closing arguments encouraged the jurors to look beyond the law and the relevant facts in deciding the cases before them, we agree that they amounted to misconduct. In determining whether the district courts properly decided that this misconduct warranted new trials or not, we take the opportunity to revise our attorney misconduct jurisprudence. New trial requests based on attorney misconduct must be evaluated differently depending upon whether counsel objected to the misconduct during trial. When a party successfully objects to the misconduct, the district court may grant a subsequent motion for a new trial if the moving party demonstrates that the misconduct's harmful effect could not be removed through any sustained objection and admonishment. With respect to unobjected-to misconduct, we conclude that the district court may grant a motion for a new trial only if the misconduct amounted to plain error, so that absent the misconduct, the verdict would have been different. When ruling on a motion for a new trial based on attorney misconduct, district courts must make express factual findings, applying the above standards.

In these consolidated appeals, we conclude that in Castro and Seasholtz, the district courts did not abuse their discretion by granting the plaintiffs' motions for a new trial, and therefore, we affirm the district courts' orders in those matters. In Lang and Lioce, however, we are unable to ascertain from the record whether the district courts abused their discretion in denying the plaintiffs' motions for a new trial. Accordingly, we vacate those orders and remand those two matters for a new decision on the new trial motions, based on the standards announced today. In addition, we refer defense counsel to the State Bar of Nevada.

Originally posted at InjuryBoard by Steve Klearman

Allstate Gets the Boot in Florida

Steve Klearman — Fri, 18 Jan 2008 09:05:34 GMT

Here's a plug for Trial Guides at www.trialguides.com. The following interesting news comes from their enewsletter of today's date.

This week, Florida Insurance Commissioner Kevin McCarty announced that he is suspending Allstate Insurance companies from writing new insurance in Florida. McCarty's choice follows Allstate's refusal to comply with subpoenas served October 16 by the Office of Insurance Regulation.

The subpoenas seek disclosure of the McKinsey Documents, in which McKinsey & Co. instructed Allstate how to systematically underpay claims starting in the mid 1990s. The content of the documents is so explosive that Allstate has already ignored a $25,000 per day fine in Missouri for its ongoing failure to provide the McKinsey Documents in that state.

Trial Guides landmark book, From Good Hands to Boxing Gloves, is the only book that provides a full discussion, as well as reproductions, of the McKinsey documents. Written by the only lawyer who has obtained the McKinsey Documents unprotected, David Berardinelli, the book gives plaintiff lawyers the edge in personal injury and bad faith claims by disclosing the content of the McKinsey Documents and how you can use them in trying or settling your case. From Good Hands to Boxing Gloves has been the most widely publicized legal book of 2007, serving as a source for feature stories with CNN, PBS, BusinessWeek, Bloomberg, and many more. More media coverage is coming in 2008, following the suspension of Allstate in Florida.

For more information on this subject, please refer to the section on Car and Motorcycle Accidents

Originally posted at InjuryBoard by Steve Klearman

Deleted Emails and Production

Steve Klearman — Wed, 26 Dec 2007 10:12:00 GMT

Ah the new and complicated world of how email production is handled by courts.

Scott Roseland, at cybercontrols (www.cybercontrols.net), cites to Benton v. Dlorah, Inc., 2007 U.S. Dist. D. Kan, Oct. 30, 2007. There, the plaintiff informed defendant at her deposition that she had deleted e-mails, and defendant filed a motion to compel plaintiff to produce relevant documents, to produce her hard drive, and for sanctions for spoliation of evidence.

Initially, the court ruled that the requesting party (defendant) had not adequately shown that the requesting party had refuted producing party's (plaintiff) assertions that she had produced all relevant documents, but allowed requestor to amend if further discovery demonstrated that producer had not produced all documents or "had spoliated relevant evidence." Id. at *3-*4.

On their subsequent motion to compel, requestors asserted that producer had admitted failing to produce a relevant e-mail, that she used her personal account instead of her work e-mail and admitted deleting "hundreds" of possibly relevant e-mails. Producer responded that requestor's request was not sufficiently tailored, that her personal computer contained personal and privileged information, and that the request constituted a "fishing expedition", not outweighing the harm to her.

The court ruled that producer must produce the relevant e-mails, which were responsive to requestor's request.

Deleting these e-mails, even if done in good faith and at a time before Plaintiff contemplated her legal action, does not necessarily remove the e-mails from her possession, custody or control. Deleted documents should be retrievable from her computer system and thus remain within in her control.

Id. at *7. The court ordered that if she could not produce the e-mails, "she shall produce for inspection her computer hard drive from which the deleted e-mails were sent. This will allow Defendants to use the services of a computer forensic specialist, if necessary, to retrieve them." Inspection of the drive would be limited to the subject of requestor's request. Id.

The court made no reference to any distinction between accessible and inaccessible data. In effect, deleted e-mails may now have moved into the realm of "accessible" data.

There is and will continue to be lack of uniformity in the way that courts handle production of email and other electronic data.

Originally posted at InjuryBoard by Steve Klearman

No Private Right of Action Under Prompt Pay Law

Steve Klearman — Thu, 29 Nov 2007 12:15:14 GMT

The Nevada Supreme Court examined Nevada's so-called "prompt-pay" statute, NRS 690B.012, in a decision dated November 21, 2007. See, Allstate Ins. Co. v. Thorpe, 123 Nev. Adv. Op. No. 52.

That statute "requires casualty insurers to approve and pay, or deny, casualty claims, including claims for medical payment benefits, within a limited time frame. Under the statute, an insurer must pay interest on any untimely claims payments."

In the appeal before them, "the Court considered whether NRS 690B.012 grants private rights of action to medical services providers who administer care to persons insured under contracts of "casualty insurance,"[2] so that the medical services providers may sue the person's insurer, if that insurer fails to promptly pay claims."

The Court held that "NRS 690B.012 does not expressly create a private right of action in favor of an insured's medical provider to sue an insurer who fails to make prompt payments to the insured or the insured's medical providers. Instead, the statutory scheme contemplates an exclusive administrative procedure for resolving claims concerning alleged violations of NRS 690B.012, under which those persons with a direct and immediate pecuniary interest in prompt payment may proceed. We therefore conclude that (1) there is no private right of action in the district court under the statute, but (2) medical providers, as persons with a direct and immediate pecuniary interest in the prompt payment of medical payment benefits, may seek administrative remedies before the Nevada Department of Insurance (NDOI), subject to judicial review under the Nevada Administrative Procedure Act."

Originally posted at InjuryBoard by Steve Klearman

Fallon Nevada's Arsenic Problem

Steve Klearman — Mon, 26 Nov 2007 06:44:18 GMT

In Fallon, Nevada (about an hour and a half away from Reno) residents have been experiencing high numbers of cancer diagnoses. Although the town has a population of roughly 8,500 people, 12 children were diagnosed with leukemia over a course of approximately three years. According to the American Cancer Society approximately 1.27 percent of the population (1 in 79) will come down with the disease sometime in their lifetimes, but the median (average) age for which it is diagnosed in humans is 67. The ACS also states that in the year 2007 roughly 3,800 children will develop leukemia. Considering the number of these cases occurring in Fallon alone puts it at a small percentage of the total US population, this news is alarming local residents.

Theories abound as to the causes of the leukemia, but the most prevalent is one that states that because the Air Force base is in close proximity to the town, jet fuel and exhaust fumes are causing the leukemia. Benzene has been shown to be a major cause of leukemia and it is commonly found in the fuels that jets use to fly.

Another theory is based upon the city's arsenic tainted water supply. Fallon's water supply exceeded 90 parts per billion of arsenic, while exceeding a mere 50 ppb (parts per billion) has been quoted by the EPA as being dangerous. In fact, some experts believe that any level exceeding 10 ppb is dangerous. Thirty four percent of the residents of Clark County were tested with over 50 ppb of arsenic in their urine in 2003 and although both the Air Force base and the city of Fallon have taken steps to reduce the amount of arsenic in the water supply, the damage from the high levels (100+ ppb) that were previously recorded still remains.

According to the EPA, "On November 23, 1999, EPA Region 9 issued a Findings and Notice of Violation stating that the City of Fallon was in violation of the Safe Drinking Water Act for exceeding the arsenic maximum contaminant level (MCL) of 50 ppb from 1977 to present. On August 30, 2000, Fallon received an Administrative Order requiring compliance with the arsenic MCL by September 15, 2003. This Administrative Order was replaced by a subsequent Administrative Order on August 28, 2002 that extended the deadline to April 15, 2004."

The Centers for Disease Control and Prevention state that arsenic exposure has not been linked to leukemia in adults or children. However, the Centers state that arsenic poisoning is still capable of causing cancer, even if inhaled.

Even though cancer is possible and in fact highly probable considering the possibility of exposure to arsenic, benzene or even tungsten that is occurring in Fallon, leukemia is harder to track. Part of the difficulty in tracing down a specific cause of leukemia lays in tracing down the causative agent. But Fallon itself presents something of a mystery because military families are exposed to the same substances that civilians are exposed to. Being more mobile makes the source of military families' exposure more difficult to trace because they could have been exposed prior to their entry to Fallon. In addition, the symptoms of leukemia may not become immediately apparent because they may take months or even years to present themselves.

In addition, tracing the source of exposure for military families is more difficult for a second reason: their symptoms may not start until after they've relocated to a completely new area. Any doctor that a military family approaches would have to take a systematic approach to every place that the family has been and find a commonality with other leukemia patients in terms of the area of exposure to determine definitively that being in Fallon was the "smoking gun" that caused the leukemia. It is entirely possible that a child of a military family has developed leukemia and that the family won't be aware of it for another few years. It is also possible that the same child already has leukemia and that the current doctor is looking for the causes solely in his current jurisdiction, even though the exposure actually occurred far from his office and even the town where he is practicing.

In any case, the best approach to staying healthy if you have been in Fallon for a prolonged period of time is to consult a doctor and have regular checkups. Also, if you leave Fallon it would be best if you told your current doctor that you were in Fallon. You can provide him with a copy of this blog.

Originally posted at InjuryBoard by Steve Klearman

Health Insurer Encourages Survival of Fittest

Steve Klearman — Sat, 24 Nov 2007 15:38:59 GMT

Why is it little surprise that a health insurer would work to exclude sick people?

According to the American Association of Justice, quoting Lisa Girion, writing for the Los Angeles Times, "one of the state's largest health insurers set goals and paid bonuses based in part on how many individual policyholders were dropped and how much money was saved.

Woodland Hills-based Health Net Inc. avoided paying $35.5 million in medical expenses by rescinding about 1,600 policies between 2000 and 2006. During that period, it paid its senior analyst in charge of cancellations more than $20,000 in bonuses based in part on her meeting or exceeding annual targets for revoking policies, documents disclosed Thursday showed."

Originally posted at InjuryBoard by Steve Klearman

Nevada Uninsured Drivers Higher Than Expected

Steve Klearman — Fri, 16 Nov 2007 10:42:44 GMT

According to an article by the Better Business Bureau dated October 19, 2007, the number of drivers across the United States, but especially in Nevada, without insurance is higher than would be expected.

In a recent study by the Insurance Research Council, one out of seven at-fault drivers is uninsured. In Nevada this number rises even more with seventeen percent of drivers uninsured. This can be compared with a fourteen percent national average.

While the article does not go into details about why this is the case, it does offer some suggestions for any driver to protect himself in the event of an accident.

When a motorist is uninsured, the victim of the accident has the responsibility to pay for everything himself. The BBB recommends that every driver gets uninsured motorist coverage on their policy so that he can be protected from the majority of these high costs. It also suggests getting rental car coverage so the motorist does not have to be without a vehicle while it is being repaired.

The last recommendation of the article is for all motorists to get underinsured motor vehicle coverage. In the event that an at-fault driver only has the bare minimum coverage on their policy, the victim of an accident may still have to pay for some of the damages himself. Underinsured motorist coverage pays the difference between the at-fault driver's limits and the actual costs of the damages. It also gives protection to a motorist who hits a pedestrian.

To see the full article, please click here.

For more information on this subject, please refer to the section on Car and Motorcycle Accidents

Originally posted at InjuryBoard by Steve Klearman

Businesses Fighting Fewer Suits

Steve Klearman — Wed, 07 Nov 2007 13:08:37 GMT

The following comes from the American Associaiton of Justice quoting Sheri Qualters at the National Law Journal:

American businesses are filing and fighting fewer lawsuits, according to Fulbright & Jaworski's fourth annual Litigation Trends Survey. Seventeen percent of respondents have not defended a lawsuit in the past year, compared with 11% in the prior year. The rate of corporations bringing at least one new lawsuit dropped to 65%, compared with more than 70% in the prior year and 88% in 2004. Only 22% of in-house counsel expect their companies to be involved in more legal disputes during the next year."

Originally posted at InjuryBoard by Steve Klearman

Why Binding Arbitration Can Forfeit Your Rights

Steve Klearman — Tue, 06 Nov 2007 12:56:17 GMT

Yesterday I blogged on some of the negative aspects of binding arbitration. Here's more information on why this often misunderstood form of alternative dispute resolution can be problematic.

Buried in the fine print of most consumer contracts - such as credit cards, insurance plans and car deals - is a clause, which waives the buyer's constitutional right to trial by jury. These contracts mandate that consumers give up their rights before a dispute even occurs - this is called "mandatory, binding, pre-dispute arbitration." Arbitration was conceived as an informal, expedited process for resolving routine disputes between businesses. But when it is imposed on a weaker party, such as a consumer, arbitration can be used to defeat valid claims. Arbitration has several unique characteristics that stack the deck against consumers, making it harder for individuals to prevail in a dispute with a business.

Costs are high:An injured party must pay steep filing fees just to initiate a case--seldom less than $750. These fees do not cover the arbitrator's hourly charges, which are generally in the range of $200 to $300 per hour, split between the parties. All these fees must be deposited in advance, and almost always amount to thousands of dollars. Because the injured person has usually sustained a serious loss in the dispute with the business--foreclosure on a home, firing from a job, denial of medical care--most individuals covered by an arbitration clause cannot afford these costs and are forced to drop their cases.

Biased Arbitrators: Even though arbitrators are supposed to be impartial, they are often biased toward business, since only businesses will be repeat users of a particular arbitrator. If an arbitrator knows that a business may use them again and again, they are inclined to rule in their favor.

Limited discovery: Discovery is the process by which parties in a legal dispute obtain information and evidence in the possession of their opponent or third parties. In arbitration, discovery is a privilege, not a right, and many businesses draft arbitration clauses to severely restrict the consumer's ability to obtain necessary evidence. Moreover, since arbitrators do not have the power to enforce subpoenas, claimants must sometimes file lawsuits to get compliance--defeating the purpose of arbitration.

Prohibition of class actions: Nearly every arbitration clause prohibits participation in class action lawsuits. Class actions are the only effective remedy for wide-scale scams that rip off individual consumers or farmers in small amounts. Individuals do not have the time or resources to recognize, investigate, or prove the existence of such fraudulent practices.

Inconvenient locations: Arbitration clauses often require that hearings be held in a location inconvenient to the injured consumer or worker. Individuals may have to bear the cost of long-distance travel to have their case heard. For example, the Internet auction site e-Bay requires its customers to travel to its home turf of San Jose, California, to arbitrate any dispute.

One-way requirements. Most arbitration clauses require only the weaker party (the consumer, employee, or franchisee) to arbitrate his or her claims, while allowing the dominant party (the corporation) to sue in court on its claims. Thus, a sexual harassment victim can be forced to arbitrate a discrimination claim against a former employer, but if the employer sues to stop her from joining a competitor, the employer's claims are heard in court.

No public record. While proceedings and records of the courts are open to the public, most arbitration clauses and provider organizations require that proceedings be kept confidential. As a result, only the businesses that impose arbitration can track past decisions and know which arbitrators have ruled for them. Public discussion of the fairness of an arbitration ruling is discouraged, even if the case raises policy issues of wide concern. Moreover, arbitration sets no legal precedents to guide companies' future conduct.

Limited judicial review. Parties are allowed only limited judicial review of an arbitration award. A decision may only be overturned when there is fraud or "manifest disregard of the law." This is a very high hurdle to overcome because arbitrators are not required to issue written findings of fact or legal conclusions. Oddly enough, courts will refuse to hear appeals of arbitration decisions even when both sides have agreed to let a court do so!

Limited remedies. Courts can provide a range of remedies that are not available to a claimant in arbitration. Injunctive relief--a court order compelling the offending party to do something, or prohibiting that party from taking some action--cannot be obtained through arbitration. Arbitrators often split the difference between the two sides in awarding damages instead of determining the true costs of injuries. As a result, arbitration awards to consumers and employees are substantially lower than court awards.

Information for this blog comes from http://www.peopleoverprofits.org

Originally posted at InjuryBoard by Steve Klearman