STATE LAW SUMMARY Overview of the State of Nevada

Updated 2013 Preparers: Bruce S. Dickinson, Michael Hottman Stephenson & Dickinson, P.C. Las Vegas, Nevada Table of Contents Overview of the Nevada Court System A. Trial Courts B. Appellate Courts

Procedural A. Venue B. Statute of Limitations C. Time for Filing an Answer D. Dismissal Re-Filing of Suit Liability A. Negligence B. Negligence Defenses C. Gross Negligence, Recklessness, Willful and Wanton Conduct D. Negligent Hiring and Retention E. Negligent Entrustment F. Dram Shop G. Joint and Several Liability H. Wrongful Death and/or Survival Actions I. Vicarious Liability J. Exclusivity of Workers’ Compensation Damages A. Statutory Caps on Damages B. Compensatory Damages for Bodily Injury C. Collateral Source D. Pre-Judgment / Post Judgment Interest E. Damages for Emotional Distress F. Wrongful Death and/or Survival Action Damages G. Punitive Damages H. Diminution in Value of Damaged Vehicle I. Loss of Use of Motor Vehicle Evidentiary Issues A. Preventability Determination B. Traffic Citation from Accident C. Failure to Wear a Seat Belt

D. Failure of Motorcyclist to Wear a Helmet E. Evidence of Alcohol or Drug Intoxication F. Testimony of Investigating Police Officer G. Expert Testimony H. Collateral Source I. Recorded Statements J. Prior Convictions K. Driving History L. Fatigue M. Spoliation Settlement A. Offer of Judgment B. Liens C. Minor Settlement D. Negotiating Directly With Attorneys E. Confidentiality Agreements F. Releases G. Voidable Releases Transportation Law A. State DOT Regulatory Requirements B. State Speed Limits C. Overview of State CDL Requirements Insurance Issues A. State Minimum Limits of Financial Responsibility B. Uninsured Motorist Coverage C. No Fault Insurance D. Disclosure of Limits and Layers of Coverage E. Unfair Claims Practices F. Bad Faith Claims G. Coverage - Duty of Insured H. Fellow Employee Exclusions Endnotes Overview of the State of Nevada Court System

A. Trial Courts Nevada has nine district courts with general jurisdiction over all legal disputes, including civil matters. Nevada does not have intermediate court of appeals. All appeals are heard by the Nevada Supreme Court.

Whenever a civil case is commenced in a judicial district whose county has a population of 100,000 or more, the case is automatically entered into the Court Annexed Arbitration Program.1 This is a non-binding arbitration program that is mainly for civil cases with probable jury verdicts of less than $50,000, per plaintiff exclusive of interest and costs, but more than $10,000.2 In general, cases with a probable jury verdict less than $10,000 are heard in a municipal, justice or small claims court, depending on the county. A party may move to have a case removed from the arbitration program by filing motion with summary of facts detailing why the case should be removed.3 Reasons for removal include: the probable jury verdict exceeds $50,000; the case involves significant issues of public policy; or unusual circumstances that constitute good cause for removal.4 If the case is not exempt from this arbitration program, the parties are sent a list of five potential arbitrators (which are generally practicing attorneys). And each party is allowed to strike two of the five potential arbitrators.5 The arbitration hearing is generally held within six to nine months from the appointment of arbitrator.6 After an arbitration award is filed, any party may file a request for trial de novo within 30 days.7 The Nevada Rules of Civil Procedure govern matters in the district courts as well as discovery in the arbitration program.8 The rules of evidence are found in Chapters 47 through 56 of the Nevada Revised Statutes. However, the discovery and evidence rules are more relaxed in the arbitration setting.

B. Appellate Courts There are seven justices sitting on Nevada Supreme Court. In civil case appeals, unless an appellate is exempted by law, or has filed a supersedes bond or other undertaking which includes security for their payment of costs on appeal, the appellant shall file a bond for costs on appeal or equivalent security on the district court with the notice of appeal. But a bond shall not be required of an appellant who is not subject to costs.9 The bond or equivalent security shall be $500 unless the district court fixes a different amount. A bond for costs on appeal shall have sufficient surety, and it or any equivalent security shall be conditioned to secure the payment of costs if the appeal is finally dismissed or the judgment affirmed or of such costs as the Supreme Court may direct if the judgment is modified.10 After a bond for costs on appeal is filed, a respondent may raise for determination by the district court clerk objections to the form of the bond or to the sufficiency of the surety.11

As stated in Section IV(D) below, post judgment interest accrues from the date of judgment until satisfied. Unless the rate is provided by contract or law the rate is equal to the prime rate as determined by the Commissioner of Financial Institutions on January 1 or July 1 immediately preceding the date of judgment, plus two percent. The rate must be adjusted accordingly on each January 1 and July 1 thereafter until the judgment is satisfied.12 Procedural

A. Venue Complaints for a personal injury action are to be filed in the county where at least one of the defendants resides.13 If the defendant(s) does not reside in Nevada, or if the plaintiff does not know where the defendant resides, then the plaintiff may designate the venue.14

B. Statute of Limitations

Statutes of limitation bar suits after a fixed period of time following an occurrence or discovery of an injury. The Nevada statutes of limitation for several commonly raised causes of action are discussed below.

1. Bodily Injury/Property Damage Claims

A claim for personal injury must be brought within two years of the date of loss.15 A claim for personal property damage must be brought within three years of the date of loss.16 The key point, however, is determining the date the loss occurred because the statute of limitations does not begin to run until the injured party knew, or reasonably should have known, of facts giving rise to the damage or injury.17

2. Wrongful Death

In general, a claim for wrongful death must be brought within two years after the plaintiff discovers the death of the decedent.18 One important exception to this rule is that the statute of limitations on a minor’s claim for wrongful death does not start to run until the minor reaches majority.19

3. Breach of Contract and Bad Faith

A claim for breach of contract or bad faith must be brought within four years.20

4. Breach of Written Contract

A cause of action on written contract has a six-year statute of limitations.21 For example, there is a six-year statute of limitations on a cause of action for benefits under an uninsured motorist provision of an automobile policy. The statute of

limitations does not begin to run until insurer’s breach of the insurance contract (until the insurer refuses to pay claim).22

C. Time for Filing An Answer Answers are to be filed within twenty days of being served with the Complaint.23

D. Dismissal Re-Filing of Suit Prior to a party answering or filing a motion for summary judgment, an action may be dismissed by the plaintiff, without order of court by filing a notice of dismissal. Once a party appears, a stipulation of dismissal signed by all parties must be filed. 24 Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.25 Any action shall be dismissed by the court on the court’s own motion, after due notice to the parties, unless such action is brought to trial within 5 years after the plaintiff has filed the action, except where the parties have stipulated in writing that the time may be extended. A case dismissed under this rule is a bar to another action upon the same claim for relief against the same defendants unless the court otherwise provides.26 Subrogation Actions A subrogation action by an insurer is considered a tort action rather than a contract action and must be filed within two years of the date of loss.27 Liability

A. Negligence

1) Negligence Standards

In order to prevail on a theory of negligence, the plaintiff must generally show that: (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached that duty; (3) the breach was the legal cause of plaintiff’s injury; and (4) the plaintiff suffered damages.28

Whether a defendant owes a plaintiff a duty is a question of law.29 The court has the responsibility of defining the scope of duty in relation to the particular circumstances as well as defining “the legal standard of reasonable conduct in

light of the apparent risk.”30 Foreseeability of harm is a predicate for establishing the existence of a duty.31

However, breach of duty and causation are questions of fact to be decided by a jury or, in the case of a bench trial, the judge.32 Negligence is a question of law only when the evidence does not support any other inference.33

2) Type of Comparative Fault System

Nevada has adopted a 51% comparative negligence statutory scheme, whereby the plaintiff may not recover if his comparative negligence is greater than the negligence of the defendant, or the combined negligence of multiple defendants.34 Conversely, if a plaintiff is found to be 50% or less at fault, he is not barred from recovering damages; however the total amount of his recovery is reduced by his percentage of fault. In other words, a plaintiff can be 50% liable and still recover 50% of the total damage award. If the plaintiff is 51% liable, he cannot recover.

3) Negligence Per Se

When a defendant violates a statute which was designed to protect a class of persons to which the plaintiff belongs, and thereby proximately causes injury to the plaintiff, such a violation constitutes negligence per se.35 Negligence per se shifts the burden to defendants to show excuse or justification, thereby relieving plaintiff of the burden of establishing actual negligence.36

Therefore, trucking cases brought in Nevada commonly include causes of action for violations of the Nevada traffic laws.37 An example of such a statute is NRS 484D.260, which requires that all brakes on vehicles be maintained in good working order.38

4) Premises Liability

Landlords must exercise reasonable care not to subject others to an unreasonable risk of harm. A landlord must act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk.39

However, because an owner is not an insurer of a visitor’s safety, the risk must be foreseeable.40

An accident occurring on the property does not in of itself establish negligence, and in the absence of negligence, there is no liability.41

Nevada has also adopted the “mode of operation” as an approach to premises liability for self-service operations. Under the “mode of operation” approach, “the plaintiff’s burden to prove notice is not eliminated. Instead, the plaintiff satisfies the notice requirement if he establishes that an injury was attributed to a

reasonably foreseeable dangerous condition on the owner’s premises that is related to the owner’s self-service mode of operation.”42

B. Negligence Defenses

In general, a defendant is required to file and serve an Answer within 20 days after being served with Summons and Complaint. The Answer should include every defense, in law or fact, which the defendant may have, with some exceptions that are addressed further below.43

1) Affirmative Defenses

All affirmative defenses a defendant may have must be pled in a defendant’s Answer to Complaint, except for the following, which may be made by motion: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; (4) insufficiency of service of process; (5) failure to state a claim upon which relief can be granted; and (6) failure to join a party under Rule 19.44

Affirmative defenses include, but are not limited to, accord and satisfaction; arbitration and award; assumption of risk; contributory negligence; discharge in bankruptcy; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches; license; payment; release; res judicata; statute of frauds; statute of limitations and waiver.45

If an affirmative defense is not pled in the original Answer or an Amended Answer, or asserted by motion under N.R.C.P. 12(b), it is waived unless the parties agreed to try the defense by consent.46 The defense of comparative negligence is commonly asserted in motor vehicle accidents in Nevada.

• Until just recently, the implied assumption of risk doctrine was considered subsumed by the comparative negligence doctrine.47 There are two types of implied assumption of risk: primary and secondary.48 Primary assumption of risk is where plaintiff impliedly assumes those risks that are inherent in a particular activity.49 Primary assumption of risk “goes to the initial determination of whether the defendant’s legal duty encompasses the risk encountered by the plaintiff.”50 In other words, primary implied assumption of risk remains an absolute bar to the plaintiff’s recovery, whereas secondary assumption of risk becomes a question of comparative negligence.51 Express assumption of risk is still a viable defense in Nevada. Express assumption of risk stems from a contractual undertaking that expressly relieves a defendant from any duty of care to an injured party who voluntarily agreed to assume a known risk.52

• The failure to wear a seat belt may not be considered as negligence or as causation in a civil action, or as negligent or reckless driving under NRS 484B.653.53 On the other hand, although Nevada law makes it unlawful to

ride in a passenger car without wearing a seatbelt under most circumstances (NRS 484.641(2)).

• The failure to mitigate damages is an affirmative defense. A plaintiff has a general duty to mitigate his damages; that is, an affirmative burden to act in a way that minimizes his damages.54

• The defense of sudden emergency is available in motor vehicle accident cases. This defense is available when a person is confronted with a sudden emergency which he does not create, acts according to his best judgment or, because of insufficient time, fails to act in the most judicious manner, but instead exercises the care of a reasonably prudent person in like circumstances.55 Nevada has a Uniform Jury Instruction on sudden emergency which provides as follows:

A person who, without negligence on his part, is suddenly and unexpectedly confronted with peril arising from either the actual presence of, or the appearance of, imminent danger to himself or to others, is not expected nor required to sue the same judgment and prudence that is required of him in the exercise of ordinary care in calmer and more deliberate moments. His duty is to exercise only the care that an ordinarily prudent person would exercise in the same situation. If at that moment he does what appears to him to be the best thing to do and if his choice and manner of action are the same as might have been followed by any ordinarily prudent person would exercise in the same situation. If at that moment he does what appears to him to be the best thing to do, and if his choice and manner of action are the same as might have been followed by any ordinarily prudent person under the same conditions, he does all of the law requires of him; although in the light of after-events, it should appear that a different course would have been better than safer.56

• Election of remedies is an affirmative defense that must be pled.57

2) Other Defenses

As previously mentioned, the following defenses can either be asserted in a responsive pleading (usually the Answer) or may be made by motion: (1) lack of jurisdiction over the subject matter of the action, (2) lack of jurisdiction over the defendant, (3) insufficiency of process, (4) insufficiency of service of process, (5) failure to state a claim upon which relief can be granted, and (6) failure to join a party needed for just adjudication.58 A motion making any of these defenses shall be made before pleading if a further pleading is permitted.59 No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.60

In the past, a special appearance was required for personal jurisdiction defenses. In other words, a separate motion had to be filed to challenge lack of jurisdiction,

insufficiency of process, or insufficiency of service of process. However, in 2000, the Nevada Supreme Court abrogated the general/special appearance doctrine.61 This ruling by the Court is consistent with the language of N.R.C.P. 12(b), as amended in 1988.

Thus, before a defendant files a responsive pleading such as an answer, the defendant may move to dismiss for lack of personal jurisdiction, insufficiency of process, and/or insufficiency of service of process. These defenses are not waived by being joined with one or more other defenses. However, a defendant may also raise his defenses, including those relating to personal jurisdiction and service, in a responsive pleading (the answer).62 These defenses are only waived if a defendant fails to raise them in either a pre-answer motion or answer.

In contrast, a defense of failure to state a claim upon which relief can be granted, a defense of failure to join an indispensable party and an objection of failure to state a legal defense to a claim may be made at any point, including at trial.63

3) Motion for More Definite Statement

If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before filing the responsive pleading. In the alternative, the party may simply deny allegations of uncertain meaning under Nevada law.64

4) Any Special Defenses to a Particular Type of Lawsuit

If a party wishes to challenge the legal existence of any party (such as in the case of a corporation or similar statutorily-created entity) or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, the party must do so in the Answer and include all supporting details that are within the party’s knowledge.65 The issue of capacity can be waived if it is not raised by specific negative averment in the Answer.66 In addition, if a party wishes to raise a defense of fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity.67 The circumstances that must be stated in detail include the allegations as to time, place, the identity of the parties involved, and the nature of the fraud or mistake.68 Malice, intent, knowledge and other condition of mind may be averred generally.69

C. Gross Negligence, Recklessness, Willful and Wanton Conduct “Gross negligence is substantially and appreciably higher in magnitude and more culpable than ordinary negligence. Gross negligence is equivalent to the failure to exercise even a slight degree of care. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of

an aggravated character, as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or absence of slight diligence, or the want of even scant care.”70 Recklessness is a level of misconduct below that of malice. It is sometimes defined in terms of being merely careless or heedless; sometimes it refers to the mental state of indifference to consequences, under circumstances involving danger to life or safety to others, although no harm was intended.71 (Willful and)Wanton misconduct involves an intention to perform an act that the actor knows, or should know, will very probably cause harm.”72 In other words, “To be wanton such conduct must be beyond the routine. There must be some act of perversity, depravity or oppression.”73

D. Negligent Hiring and Retention

Nevada recognizes a cause of action under the theories of negligent hiring, training and supervision in the employment context. For an employer to be liable under these theories, the person involved must actually be an employee.74

The tort of negligent hiring imposes a general duty on the employer to conduct a reasonable background check on a potential employee to ensure that the employee is fit for the position.75 This duty is breached when an employer hires an employee when the employer knew, or should have known, of an employee’s dangerous propensities.

When the cause of action is for negligent supervision, as opposed to respondeat superior, it does not matter if the employee’s actions occurred within or without his scope of employment.76 A cause of action for negligent hiring, training and/or supervision charges the employer with negligence in hiring and retaining an incompetent and unfit employee and, thus, focuses on the conduct of the employer rather than the employee.77 The employer has a duty to use reasonable care in training, supervising, and retaining employees to ensure that the employees are fit for their positions.

In cases where it is admitted that an employee was in the course and scope of his employment at the time of the accident/incident, negligent hiring and retention claims (along with negligent entrustment claims) are not allowed.78

1) Negligent Supervision – The Parent/Child Relationship

There is only one case in which the Nevada Supreme Court has touched upon the tort of negligent supervision of a child. In that case, the Court ultimately declined to decide the issue of whether Nevada recognizes the tort of negligent supervision, concluding that the plaintiff failed to allege sufficient facts to establish a prima facie case of negligence.79

However, the Nevada legislature had concluded that a parent can be held responsible for a minor’s willful misconduct. Under Nevada statute, a minor’s willful misconduct can be “imputed to the parents or guardian having custody and control of the minor for all purposes of civil damages. . . .”80 Nevada statute defines the “parent and child relationship” as “the legal relationship existing between a child and his natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties and obligations.”81 Additionally, “no parent may voluntarily assign or otherwise transfer to another his rights and duties with respect to the permanent care, custody and control of a child less than 18 years of age, unless parental rights and duties have been terminated by order of a court.”82

E. Negligent Entrustment

Nevada recognizes negligent entrustment as a cause of action. Under this doctrine, a person who knowingly entrusts a vehicle to an inexperienced or incompetent person may be found liable for damages resulting thereby.83 The key elements are whether the entrustment occurred and whether the entrustment was negligent.84 The entrusting person need not have known that the motor vehicle was going to be driven on a public roadway. In fact, a parent who entrusts her child with a motor vehicle may be found liable for negligent entrustment even when the parent expressly instructs the child not to use the vehicle on a public roadway.85

Nevada also has a statute which provides that any liability imposed upon an immediate family member of a vehicle’s owner that arises out of his or her driving and operating a motor vehicle with the owner’s permission, express or implied, is also imposed on the owner. Thus, the owner will be held jointly and severally liable for any damages proximately resulting from negligence or willful misconduct by his or her immediate family member and this negligence or willful misconduct will be imputed to the owner.86

F. Dram Shop Nevada does not recognize either first person dram shop liability (where a patron claims damages); or third person dram shop liability (where a third person seeks damages for an injury caused by an intoxicated patron).87 There is also no liability if the patron served was underage.88

G. Joint and Several Liability

Under common law, the concept of joint and several liability applied in situations where two or more defendants were found liable for the same injury. Under joint and several liability, each defendant was held responsible for the entire injury, irrespective of the negligence actually attributable to him. In other words, a

defendant may have been 1% responsible for the plaintiff’s injuries, but will held 100% responsible for paying the damages awarded to the plaintiff.

Many states, including Nevada, have changed this historical practice by statute. Nevada law provides that, where recovery is allowed against more than one defendant, each defendant is severally liable to the plaintiff only for that portion of the judgment which represents the percentage of negligence attributable to him.89 This rule does not affect the joint and several liability of the defendant in an action for the following: strict liability; an intentional tort; the emission; disposal or spillage of a toxic or hazardous substance; the concerted acts of the defendants; or an injury to any person or property resulting from a product which is manufactured, distributed, sold or used in this state.90

To be jointly and severally liable for concerted action, two or more defendants must have agreed to engage in conduct that is inherently dangerous or poses a substantial risk of harm to others.91 This requirement is met if the plaintiff can show that there was an agreement between the defendants “to engage in an inherently dangerous activity, with a known risk of harm that could lead to the commission of a tort.92 Mere joint negligence or an agreement to act jointly is not sufficient.93 Two defendants may be concurrently negligent without acting in concert.

Several liabilities only apply to actions in which contributory negligence (comparative negligence) may be asserted as a defense. If the facts do not permit the assertions of a contributory negligence (comparative negligence) defense as a bona fide issue in the case, the defendants are jointly and severally liable.94 For example, in a leading Nevada case, a stalled car was struck by a bus after the lights of a Good Samaritan’s pick-up truck temporarily blinded the bus driver. Three-year-old twin girls were asleep in the backseat of the car when it was hit. The court held that the verdict against the defendant bus driver and truck driver should have been joint and several as to the two children.95

Furthermore, if the successive negligence of two or more defendants causes a single injury to the plaintiff, the burden to apportion the extent of damage caused by each defendant shifts to the defendants once the plaintiff has proved that the actions of each defendant are a cause of the damage. If the plaintiff’s damage is incapable of being apportioned, the defendants are deemed jointly and severally liable.96 This situation can be distinguished from the scenario in which two or more tortfeasors act nearly simultaneously and it is unclear which one of the two caused the injury. In that situation, the burden shifts to the defendants to show causation as well as apportionment of damages.97

H. Wrongful Death and/or Survival Actions

When the death of any person is caused by the wrongful act or neglect of another, Nevada permits the heirs and personal representatives of the decedent to maintain an action for damages against the person who caused the death.98 Nevada law defines an “heir” as a person who would be entitled to succeed to the separate property of the decedent if he had died intestate.99

Each heir may be awarded damages for grief or sorrow, loss of probable support, companionship, society, comfort and consortium, and damages for pain, suffering or disfigurement of the decedent. Any damages awarded to an heir are not liable for any debt of the decedent.100

The personal representatives of a decedent may recover, on behalf of the decedent’s estate (a) any special damages, such as medical expenses, which the decedent incurred or sustained before his death, and funeral expenses; and (b) any penalties, including, but not limited to, exemplary or punitive damages, that the decedent would have recovered if he had lived, but not including damages for pain, suffering or disfigurement of the decedent. Damages recovered by the personal representatives are liable for debts of the decedent unless exempted by law.101

1. Survival Actions When a person who has a cause of action dies before a judgment is obtained, his cause of action may be maintained by his executor or administrator.102 Similarly, a cause of action against a decedent may be maintained against the decedent’s executor or administrator.103 However, punitive damage claims do not survive a deceased tortfeasor and cannot be sought from his estate.104

I. Vicarious Liability

In Nevada, respondeat superior (also commonly referred to as “vicarious liability”) attaches only when the employee is under the control of the employer and when the act is within the scope of employment.105

The element of control requires that the employer have control and direction, not only of the employment but all of its details and the method of performing the work.106 An employee may be under the control of two different employers at the same time for purpose of respondeat superior.107

Whether an employee is acting within the scope of his or her employment is a question of fact. However where undisputed evidence exists concerning the employee’s status at the time of the tortious act, the issue may be resolved as a matter of law.108

• An employee who is traveling to or from work is outside the scope of his employment unless the employee is performing an errand for his employer or otherwise conferring a benefit upon the employer.109

• Only travel for which an employee receives actual hourly wages is conduct occurring in the course and scope of employment; an employee who receives compensation only for the expense of travel is not acting within the course of employment during that travel.110

• If an employee has embarked on a trip off the employer’s premises for both business and personal reasons, the employee may be within the scope of his employment if the business nature of the excursion is bona fide.111

An employer is not liable for the intentional tort of an employee if the employee’s conduct: 1) was truly an independent venture; 2) was not committed in the course of task assigned to the employee; and 3) was not reasonably foreseeable under the facts and circumstances considering the nature and scope of employment.112 The conduct is reasonably foreseeable if “a person of ordinary intelligence and prudence could have reasonably anticipated the conduct and probability of injury.”113

A release signed by an employee does not automatically release the vicariously liable employer from responsibility. Intent to release the employer must be included in the express terms of the release. 114

1) Vicarious Liability for Unauthorized Passenger

A corporation may be held liable for injuries to a passenger who was not authorized by the corporation to be present in a vehicle driven by an employee if, at the time of the accident, the driver was acting within the scope of his employment.115 Furthermore, when an employee, without the employer’s consent, lets an unauthorized person drive an employer’s automobile in furtherance of the employer’s purpose, and the employee is present, the employer is liable for the negligence of the unauthorized driver.116

J. Exclusivity of Workers’ Compensation

Under Nevada’s statutory workers’ compensation scheme, a claim for workers’ compensation benefits is an employee’s only remedy against his employer and co-employees for an on-the-job injury.117 However, an injured worker may pursue a common law tort action against any tortfeasor who is not his statutory employer or co-employee.118 In non-construction cases, “the normal work test” is used to determine an employee’s statutory employer or employers for the purposes of workers’ compensation.119 The normal work test is whether the worker was injured doing a work activity which is, in that business normally carried on through employees rather than independent contractors.120 A third party being sued by an employee for damages may sue the employer for express indemnity if the employer has a contracted duty to indemnify the third-party.121

Damages

A. Statutory Caps on Damages Except in the case of punitive damages (see below), Nevada has no statutory cap on damages.

B. Compensatory Damages for Bodily Injury In a personal injury action, damages which are potentially recoverable include: reasonably incurred medical expenses, damages for lost earning capacity or wage loss, damages for pain and suffering, including mental pain and suffering, and any other specifically identifiable harm that has resulted from the tort, such as special expenses. Damages for loss of life’s pleasure or loss of enjoyment of life (hedonic damages) are permitted as an element of the general award for pain and suffering.122

1) Right of Contribution

Nevada allows for a right of contribution where two or more persons become jointly or severally liable in tort for the same injury.123 This right exists only for the tortfeasor who has paid more than his equitable share of the common liability and his total recovery is limited to the amount paid by him in excess of his equitable share.124 In addition, intentional tortfeasors, as opposed to negligent tortfeasors, have no right to contribution.125

A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability is not extinguished by the settlement nor for any amount paid in a settlement that is in excess of what was reasonable.126

C. Collateral Source Nevada follows the collateral source rule. Accordingly evidence of insurance or other third-party payments of medical bills to plaintiffs is not admissible for any reason.127 There is one limited exception. Evidence of payments made by either a Nevada;128 or out-of-state workers’ compensation carrier can be admitted.129

Evidence that a defendant was or was not insured against liability is not admissible upon the issue of whether he acted negligently or otherwise wrongfully.130 However, evidence of liability insurance is admissible, when relevant to another purpose, such as proof of agency, ownership or control, or bias or prejudice of a witness.131

D. Pre-Judgment/Post judgment Interest

Pre-judgment interest is applied to damages and costs, except future damages Interest accrues from the date of service of the summons and complaint until the date that the judgment is satisfied. Unless the rate is provided by contract or otherwise by law, the rate is equal to the prime rate as determined by the Commissioner of Financial Institutions on January 1, or July 1, immediately preceding the date of judgment, plus 2 percent.132

Pre-judgment interest can also be awarded on attorneys’ fees if the fees are awarded as an element of damages. 133

Interest on costs runs from the time when the costs were incurred. If a party cannot prove when costs were incurred, then interest on costs should only be awarded from the time of the judgment.134

Because the amount of punitive damages to be awarded is not known until the judgment is rendered, prejudgment interest may not be awarded on punitive damage awards.135

Post-judgment accrues from the time of judgment until actual payment of the award of damages.136 Post-judgment interest is applied to future damages137; attorneys’ fees not awarded as element of damages138; and punitive damages.139

E. Damages for Emotional Distress

In Nevada there are two types of infliction of emotional distress; Negligent Infliction of Emotional Distress and Intentional Infliction of Emotional Distress. Under both torts, when the emotional distress damages precipitate physical symptoms, as opposed to being secondary to physical injuries, then either a physical impact must have occurred, or, in the absence of physical impact, a plaintiff must present proof of “serious emotional distress” causing physical injury or impact.140

Absent physical impact and “the less extreme the outrage, the more appropriate it is to require evidence of physical injury or illness from emotional distress.”141 Insomnia, general physical discomforts, or general emotional discomforts are insufficient to satisfy this requirement. 142

1) Intentional Infliction of Emotional Distress

To recover for intentional infliction of emotion distress, a plaintiff must show (1) extreme and outrageous conduct by the defendant; (2) the defendant’s intent to cause emotional distress or reckless disregard as to the probability of emotional distress; (3) plaintiff’s severe emotional distress; and (4) actual and proximate causation between defendant’s conduct and plaintiff’s emotional distress.143

1) Negligent Infliction of Emotional Distress

Nevada also recognizes a cause of action for negligent infliction of emotion distress. One variety of this cause of action arises when a plaintiff is a witness to a defendant inflicting injure on a close relative of the plaintiff.144 Under this circumstance, the plaintiff must show that he or she (1) was located near the scene; (2) was emotionally injured by the contemporaneous sensory observance of the accident; and (3) was closely related to the victim.145 “Closeness of relationship” between a victim and bystander is a question of law, and is determined based upon family membership, whether by blood or marriage.146 Thus immediate family members have standing to bring an action, whereas non-family relationships fail as a matter of law for standing.147 However, there are a few cases where standing is a question of fact, and the trier of fact determines whether a relationship, beyond the immediate family, is close enough to infer standing.148 Direct victims of a defendant’s negligent conduct may also recover for negligent infliction of emotional distress.149

F. Wrongful Death and/or Survival Action Damages

In a wrongful death action, the heirs may recover pecuniary damages for grief or sorrow, loss of probable support, companionship, society, comfort and consortium, and damages for pain, suffering or disfigurement of the decedent.150

The personal representatives may recover any special damages, such as medical expenses, which the decedent incurred prior to his death, funeral expenses, and any penalties the decedent would have recovered if he had lived, excluding damages for pain, suffering and disfigurement.151

G. Punitive Damages

1) Basic Standard for Recovery

Under Nevada statute, in an action for the breach of an obligation not arising from contract, punitive damages may be awarded in situations where it is proven by clear and convincing evidence that the defendant is guilty of oppression, fraud or malice, express or implied.152

“Oppression” is defined as “despicable conduct that subjects a person to cruel and unjust hardship with conscious disregard of the rights of the person.”153 “Fraud” is defined as “an intentional misrepresentation, deception or concealment of material fact known to the person with the intent to deprive another person of his rights or property or to otherwise injure another person.”154 “Malice, express or implied” is defined as “conduct which is intended to injure a person or despicable conduct which is engaged in with a conscious disregard of the rights or safety of others.”155

“Conscious disregard” is an element of both oppression and implied malice, and is defined as “the knowledge of the probable harmful consequences of a wrongful act and a willful and deliberate failure to act to avoid those consequences.”156

Thus, pursuant to the Nevada punitive damages statute, implied malice is a discrete basis from express malice for assessing punitive damages when conscious disregard is demonstrated.157 Conscious disregard is clearly defined within the statute, and it “denotes conduct that, at a minimum, must exceed mere recklessness or gross negligence.”158

2) Punitive Damages – Driving Under the Influence

In addition to the general punitive damages statute, a specific Nevada statute also provides that punitive damages may be imposed against an individual driver who causes an injury by the operation of a motor vehicle, in violation of the Nevada DUI statute, after willfully consuming alcohol or another substance, knowing that he would thereafter operate the motor vehicle.159 An action brought pursuant to this statute is not subject to the provisions of the general punitive damages statute.160

3) Recovery Against an Employer

An employer may be liable for punitive damages based on the wrongful act of his employee. However, by Nevada statute, the employer is not to be found liable unless:

a) The employer had advance knowledge that the employee was unfit for the purposes of the employment and employed him with a conscious disregard of the rights or safety of others;

b) The employer expressly authorized or ratified the wrongful act of the employee for which the damages are awarded; or

c) The employer is personally guilty of oppression, fraud or malice, express or implied.161

In other words, an employer can only be subjected to punitive damages for vicarious liability “if, among other things, the employer expressly authorized or ratified the employee’s wrongful conduct or the employer is personally guilty of oppression, fraud, or malice, express or implied.”162

However, when the employer is a corporation, the employer is not liable for punitive damages unless the elements are met by a person in a managerial position. Whether an individual was in a managerial position depends on “what the individual is authorized to do by the principal and whether the agent has the discretion as to what is done and how it is done.”163 This is generally an officer, director or managing agent of the corporation who was expressly authorized to direct or ratify the employee’s conduct on behalf of the corporation.164

It should be noted, however, that corporate limitations on liability do not apply to an action brought against an insurer for bad faith regarding its obligations to provide insurance coverage. However, proof of an insurer’s bad faith, in and of itself, does not establish liability for punitive damages. The plaintiff must still prove that the insurer acted with oppression, fraud or malice.165

It should not be overlooked that this statute applies to respondeat superior or vicarious liability of an employer for the acts of its employees.166 An employer, corporate or otherwise, can be found liable for punitive damages in its own right.167

Finally, the death of the employee or agent directly responsible for the conduct that leads to punitive damages does not relieve the employer of liability for the deceased employee’s actions.168

4) Limitations on Amount of Recovery of Punitive Damages

In instances where the amount of compensatory damages awarded a plaintiff is $100,000.00 or more, an award of exemplary or punitive damages may not exceed three times the amount of compensatory damages.169 The “award” refers to the award of actual damages, not the net award calculated after equitable offsets.170

On the other hand, if the amount of compensatory damages awarded is less than $100,000, the limit on punitive damages if $300,000.171 However, there are a few statutory exceptions to these limitations, and such limitations do not apply to: a manufacturer, distributor or seller of a defective product; bad faith claims brought against an insurer regarding its obligation to provide coverage; if the law provides for damages in excess of the statutory amount in cases involving the violation of a federal or state law prohibiting discriminatory housing practices; actions against a person for damages or injury caused by the emission, disposal or spilling of a toxic, radioactive or hazardous material or waste; and defamation actions.172

Evidence of the financial condition of a defendant is not admissible for the purpose of determining the amount of punitive damages to be assessed until the commencement of separate proceedings to determine the amount of exemplary or punitive damages.173

However, punitive damages cannot be rewarded unless a plaintiff is first awarded compensatory damages.174

5) Insurability of Punitive Damages

By statute, an insurer may insure against legal liability for exemplary or punitive damages that do not arise from a wrongful act of the insured committed with the intent to cause injury to another.175

However, absent specific language covering punitive damages, a typical commercial general liability policy does not provide indemnification for punitive damages. The language of a typical commercial general liability policy encompasses only compensatory damages, not punitive damages.176 The purpose behind punitive damages is to punish and deter those persons who are guilty of oppression, fraud or malice (express or implied). Thus, the public policy concerns underlying the award of punitive damages are unrelated to the injured party’s entitlement to compensation. The party whose conduct was so outrageous as to merit punishment by an award of punitive damages should bear the burden of paying the award.177

H. Diminution in Value of Damaged Vehicle

The measure of diminished value damages is the difference between the value of the property immediately before the underlying action that caused the injury, and the value of the property immediately after such action.178 For example, in a breach of contract action involving a lease agreement, the proper measurement of diminished value of the landlord property was the difference between the worth of the property with the lease (prior to breach) and the worth of the property without the lease (after breach).179 In order to prove diminished value, the party seeking the damages must prove the fact of the damages and the amount thereof.180 In other words, evidence only showing the fact of diminution in value will not, by itself, suffice to prove an award of damages.181

I. Loss of Use of Motor Vehicle

A party can recover loss of use damages for the time period in which that party lost use of its chattel as a result of damages caused by the underlying injury.182 Such damages can include, for example, reasonable costs for a rental car for a reasonable period of time within which to repair the party’s vehicle.183 However, such party does not have to actually rent a vehicle in order to recover loss of use damages if the party was financially unable to rent a vehicle.184 In other words, loss of use damages may be awarded for the inconvenience and deprivation of right of the party to possess and use its chattel whether or not a substitute was obtained.185 The party has to show diligence in having its chattel repaired “as early as reasonably possible.”186

“Loss of use damages may also be awarded for the inconvenience of loss of use based on individual circumstances, to which the party can testify.”187 Thus, expert testimony is not required in proving loss of use damages if the party has some basis for valuation.188

Nevada also has a Uniform Jury Instruction on loss of use of personal property which provides as follows:

“Damage to plaintiff as a result of being deprived of the use of his property during the time reasonably necessary for repairing the damage proximately resulting from the accident. In determining the amount you may want to consider the reasonable rental value of the property for the period of time just mentioned.”189 Evidentiary Issues

A. Preventability Determination

There is no Nevada Case law on this issue.

Discovery Generally

Nevada Rules of Civil Procedure require that all parties meet and confer at an early case conference within 30 days after the service of the answer by the first answering defendant. At this conference, the attorneys must exchange all documents then reasonably available to a party which are then contemplated to be used in support of the allegations or denials of the pleading filed by that party, including rebuttal and impeachment documents.190

Both parties may request any discoverable documents and, in most instances, items such as photographs, accident reports, and tangible objects related to the accident must be produced. The parties must also discuss the identity of discoverable matter, exchange witness lists, propose a plan for discovery, and discuss the possibility of settlement.191 No discovery, including interrogatories and requests for production, may be conducted by the parties until after the early case conference is held and a case conference report is filed.

B. Citation from Accident Evidence that a party received a traffic citation is inadmissible in a civil case.192 In addition, convictions based on a traffic citation may not be used to establish civil liability.193

C. Failure to Wear a Seat Belt

A violation for failure to wear a seatbelt may not be considered as negligence to causation in any civil action or as negligent or reckless driving.194 However in secondary-collision product-liability actions, i.e., where plaintiff alleges that a vehicle defect and not the accident itself caused plaintiff’s injuries, seatbelt nonuse may necessarily “be admissible to show, or, as in this action, rebut, the essential element of causation.195

D. Failure of Motorcyclist to Wear a Helmet However, the law is not so clear when it comes to the admissibility of failure to wear a helmet. In Nevada, motorcyclists are required to wear helmets.196 A violation of this law is considered a misdemeanor.197 Thus, while the conviction of failing to wear a helmet may not be admissible, the fact that a motorcyclist was not wearing a helmet may be admissible.

E. Evidence of Alcohol or Drug Intoxication Evidence of intoxication is relevant as to the cause of an accident except in a strict product liability action. This is because evidence or intoxication is not relevant as to whether a design defect caused injuries.198 Where a Plaintiff is passenger of a driver he knows or in exercise of due care should know, is so intoxicated as to incapacitate him for safely and prudently driving; the passenger is contributory negligent.199

F. Testimony of Investigating Police Officer Unless the court determines the investigating police officer is a qualified accident reconstructionist that reconstructed the subject accident, he cannot testify as to causation.200

G. Expert Testimony

Although Nevada does not adopt the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. that decision may provide persuasive authority. In order to admit expert testimony in Nevada, the proposed testimony must meet three requirements: 1) qualification; 2) assistance; and 3) limited scope.201

In order to meet the qualification requirement, an expert must be qualified in an area of scientific, technical or other specialized knowledge. Some factors in considering whether an expert is qualified include formal schooling, licensure, employment experience, and practical experience and specialized training.202

In order to meet the assistance requirement, the proposed testimony must be relevant and the product of reliable methodology. Although each case depends upon varying factors, some factors for the court to consider include whether the opinion is: 1) within a recognized field of expertise; 2) testable and has been tested; 3) published and subjected to peer review; 4) generally accepted in the scientific community (not always determinative); and 5) based more on particularized facts rather than assumption, conjecture, or generalization.203 In order to meet the limited scope requirement, the proposed testimony must be limited to matters within the expert’s scope of specialized knowledge.204

H. Collateral Source

See Section IV(C) above.

I. Recorded Statements

Documents such as in-house reports prepared shortly after an accident must be produced for the adverse party.205 The same is true for incident reports or occurrence reports prepared in the ordinary course of business.206 Such documents are not protected by the attorney work-product doctrine unless they were created in anticipation of litigation at the direction of an attorney.207 The fact that the contingency of litigation was anticipated does not automatically qualify an in-house report as attorney work-product.208 Moreover, it appears that the attorney must be actively involved in the investigative process in order to invoke the work-product privilege.

In addition, witness statements resulting from an insurance company’s investigation are not privileged unless the insurer’s investigation has been performed at the request of an attorney and was gathered in anticipation of litigation.209 Materials resulting from an insurance company’s investigation are not made “in anticipation of litigation” unless the insurer’s investigation has been performed at the request of an attorney.210

J. Prior Convictions For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a felony is admissible if a period of less than 10 years has elapsed since the date of the release of the witness from confinement; or the expiration of the period of the witnesses’ parole, probation or sentence, whichever is the later date.211 Evidence of prior convictions for crimes that reflect untruthfulness or dishonesty is admissible once the Court balances the probative value and prejudicial effect of the convictions.212

K. Driving History A driver’s history is not admissible in order to prove negligence. However it may be admissible in order to show an employer’s negligent entrustment or negligent hiring and supervision.213

L. Fatigue There are no Nevada cases addressing the issue of what evidence is admissible to show driver fatigue.

M. Spoliation

In Nevada, even where an action has not yet commenced and there is only a potential for litigation, the litigant is under a duty to preserve evidence that it knows or reasonably should know is relevant to the action.214 Where a party is on notice of potential litigation, the party is subject to sanctions for actions taken which prejudice the opposing party’s discovery efforts.215

There are two types of spoliation/destruction of evidence: intentional or willful destruction of evidence, and negligent destruction of evidence. The willful or intentional spoliation of evidence “requires the intent to harm another party through the destruction and not simply the intent to destroy evidence.”216 The party seeking the presumption that the evidence would be adverse if produced must demonstrate that the evidence was destroyed with the intent to harm.217 In order to rebut this presumption, the destroying party must prove by a preponderance of evidence that the destroyed evidence was not unfavorable.218 If not rebutted, then the evidence is presumed as adverse to the destroying party.219 On the other hand, when evidence is negligently lost or destroyed, an adverse inference is permitted.220 Once a party has a duty to preserve evidence, and fails to do so, an adverse inference is permitted that the evidence negligently destroyed would have been adverse to the destroying party.221 Settlement

A. Offer of Judgment

1) When Can They Be Made?

Nevada allows for an offer of judgment to be made at any time more than 10 days before the trial or arbitration hearing begins. Any party may serve an offer, in writing, to allow judgment to be taken in accordance with the terms and conditions stated at that time. A party may accept the offer up to ten days after the offer is made, or prior to trial, whichever occurs first.222

2) Effect of an Offer of Judgment

If an offer of judgment is accepted, the judge of the court in which the action is pending shall enter judgment accordingly unless the party accepting the offer requests dismissal of the claim instead of entry of judgment and the party pays the amount of the offer within a reasonable time after the offer is accepted.223

If an offer is not accepted within 10 days of service, then the offer is deemed rejected.224 If an offer of judgment is rejected, the party rejecting the offer must obtain a judgment more favorable than the offer. If the party that rejects the offer does not obtain a more favorable judgment that party will be liable for the costs of the other party and may be ordered to pay the attorney’s fees from the date of the service of the offer to the date of the entry of judgment. The rejecting party

may also be ordered to pay the costs of the other party’s experts’ trial preparation.225

Examples of reasonable costs allowed in Nevada include deposition fees, expert witness fees, costs for telecopies, photocopies, long distance telephone calls and travel and lodging expenses incurred during discovery.226

Nevada has another rule that may result in one party paying the other party’s attorney’s fees. When a party is awarded $20,000 or less at trial that party may be awarded attorney’s fees assuming that a money judgment was rewarded.227

B. Liens

1) Who Is Entitled to Assert a Lien?

a) Hospitals

A hospital is statutorily authorized to assert a lien against a person who has received hospitalization on account of any injury and now claims damages from the person responsible for the injury.228 A 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.229

A hospital lien cannot attach to a patient’s uninsured motorist benefits.230 In addition, a hospital lien is not valid against anyone coming under the provisions of Nevada’s workers’ compensation insurance statute.231

b) Attorneys

Attorneys may also assert a lien for reasonable attorney’s fees for services which have been rendered by the attorney.232

c) Nevada Worker’s Compensation

The State Industrial Insurance System (now the Employer’s Insurance Company of Nevada) or a self-insured employer may assert a subrogation lien in compensation paid to an employee by a third-party tortfeasor where a work-related injury caused a legal liability in a third party.233

Note: In Nevada, a medical payments subrogation clause in an automobile insurance policy contravenes public policy and is void.234 On the other hand, an offset provision reducing uninsured motorist coverage by the amount paid under workers’ compensation, disability benefits, or similar law is considered consistent with public policy.

2) When Is a Lien Enforceable Against a Defendant?

a) Hospitals

In order for the hospital’s lien to be enforceable against a defendant, there are a few requirements which must be followed by the hospital to insure that the lien is perfected. The hospital must first file a notice of lien with the county recorder of the county in which the hospital is located and in the county in which the injury was suffered. Next, the hospital must serve a copy of the notice of lien on the person or entity that allegedly caused the injury. Service must be made before the date of judgment, settlement or compromise. Finally, the hospital is responsible for serving a copy of the notice of lien upon the insurance carrier. Service on the insurance carrier must also be made before the date of judgment, settlement or compromise.235

b) Attorneys

In order for an attorney to enforce a lien, he must give notice of the lien, in writing, to his client and the party against whom his client’s action is brought.236

c) Nevada Worker’s Compensation

A lien belonging to the State Industrial Insurance System (now the Employer’s Insurance Company of Nevada “EICON”) or self-insured employer is enforceable against a third-party tortfeasor. The EICON or the employer is allowed to recover monies it has spent for medical bills, lost income and other expenses incurred as a result of the accident to the plaintiff.237

C. Minor Settlement

The parents or legal guardian may maintain an action for the injury of a minor child.238 The parents or legal guardian has the right to compromise or settle the claim. Such a compromise is not effective until it is approved by the district court of the county where the minor resides, or if the minor is not a resident of the State of Nevada, then by the district court of the county where the claim was incurred, upon a verified petition in writing, regularly filed with the court.239 The petition must set forth: a) The name, age and residence of the minor; b) The facts which bring the minor within the purview of this section, including: c) The circumstances which make it a disputed claim for money; d) The name of the third person against whom the claim is made; and e) If the claim is the result of an accident, the date, place and facts of the

accident; f) The names and residence of the parents or the legal guardian of the minor;

g) The name and residence of the person or persons having physical custody or control of the minor;

h) The name and residence of the petitioner and the relationship of the petitioner to the minor;

i) The total amount of the proceeds of the proposed compromise and the apportionment of those proceeds, including the amount to be used for:

j) Attorney's fees and whether the attorney's fees are fixed or contingent fees, and if the attorney's fees are contingent fees the percentage of the proceeds to be paid as attorney's fees;

k) Medical expenses; and l) Other expenses, m) whether these fees and expenses are to be deducted before or after the

calculation of any contingency fee; n) Whether the petitioner believes the acceptance of this compromise is in the

best interest of the minor; and o) That the petitioner has been advised and understands that acceptance of the

compromise will bar the minor from seeking further relief from the third person offering the compromise.240

If the claim involves a personal injury suffered by the minor, the petitioner must submit all relevant medical and health care records to the court at the compromise hearing. The records must include documentation of:

a) The injury, prognosis, treatment and progress of recovery of the minor; and

b) The amount of medical expenses incurred to date, the nature and amount of medical expenses which have been paid and by whom, any amount owing for medical expenses and an estimate of the amount of medical expenses which may be incurred in the future.241

If the court approves the compromise of the claim of the minor, the court must direct the money to be paid to the parent or guardian of the minor, with or without the filing of any bond, or it must require a general guardian or guardian ad litem to be appointed and the money to be paid to the guardian or guardian ad litem, with or without a bond, as the court, in its discretion, deems to be in the best interests of the minor.242 Once the proceeds of the settlement are ordered to be paid, the parent or guardian shall establish a blocked financial investment for the benefit of the minor. Within 30 days after receiving the proceeds of the compromise, the parent or guardian shall file with the court proof that the blocked financial investment has been established.243 If the balance of the investment is more than $10,000, the parent, guardian or person in charge of managing the investment shall annually file with the court a verified report detailing the activities of the investment during the previous 12

months. If the balance of the investment is $10,000 or less, the court may order the parent, guardian or person in charge of managing the investment to file such periodic verified reports as the court deems appropriate. The court may hold a hearing on a verified report only if it deems a hearing necessary to receive an explanation of the activities of the investment.244 The beneficiary of a block financial investment may obtain control of or money from the investment:

a) By an order of the court which held the compromise hearing; or b) By certification of the court which held the compromise hearing that the

beneficiary has reached the age of 18 years, at which time control of the investment must be transferred to the beneficiary or the investment must be closed and the money distributed to the beneficiary.245

D. Negotiating Directly With Attorneys

In Nevada, claims adjusters may negotiate directly with Plaintiff’s attorneys.

E. Confidentiality Agreements In Nevada, Confidentiality agreements are enforceable. The interpretation of a confidentiality agreement is a question of law and will be interpreted the same as any other contract.246

F. Releases Because a settlement agreement is a contract, its construction and enforcement are governed by principles of contract law.247 The interpretation of a contract is a question of law; but the question of whether a contract exists is one of fact.248 A settlement agreement will be enforced once the parties have verbally agreed to the material terms, even though the contract's exact language is not written until later.249 However, what is considered an “essential term” of a settlement agreement varies with the nature and complexity of the case and must, therefore, is determined on a case-by-case basis.250

1) Effect on Non-Settled Co-Defendants

Payments in settlement by one or two or more persons liable for the “same injury” do not discharge the liability of non-settling parties unless the settlement agreement so provides, but payments by one tortfeasor reduces the claim against the other tortfeasors to the same extent.251 Furthermore, where there has been a settlement between a plaintiff and one of several defendants, a jury may not be informed of either the fact of the settlement or the amount paid.252

Consistent with this logic, if a defendant settles with the plaintiff before entry of judgment, the judge must deduct the amount of the settlement from the net sum otherwise recoverable by the plaintiff pursuant to the jury’s verdict.253

2) Good Faith Settlements

Under Nevada statute, when a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death, it discharges that tortfeasor to whom it is given from all liability for contribution and for equitable (or implied) indemnity to any other tortfeasor.254

In order to enforce the terms of this statutory provision, a settling tortfeasor must file with the court a Motion for Determination of Good Faith Settlement to obtain judicial confirmation that the settlement was, in fact, reached in good faith.  Generally speaking, in determining whether a settlement is in good faith the Court will look at all relevant facts available, including but not limited to:

a) The amount paid in settlement; b) The allocation of the settlement proceeds among plaintiffs; c) The insurance policy limits of settling defendants; d) The financial condition of settling defendants; e) The existence of collusion, fraud or tortuous conduct aimed to injure the

interests of non-settling defendants255, f) “The relative liability permutations of the particular contribution or

indemnity action known to it, including the strengths and weaknesses of the contribution or indemnity claims.”256

G. Voidable Releases

There is no Nevada case law directly on the issue of when settlement agreements may be voided. However, in light of Nevada Courts’ policy of interpreting settlement agreements under the same principles as contracts; the same reasons for voiding contracts should apply to voiding settlement agreements. Transportation Law

A. State DOT Regulatory Requirements The State of Nevada has not adopted the FMSCR. Nevada Statutes regarding the regulation and licensing of commercial motor carriers is found in N.R.S. Chapter 706 (http://www.leg.state.nv.us/nrs/NRS-706.html). The rules and regulations governing commercial motor carriers are found in N.A.C. Chapter 706 (http://www.leg.state.nv.us/nac/NAC-706.html).

There are three agencies primarily responsible for the regulation and licensing of commercial motor carriers: The Nevada transportation Authority; The Nevada Department of Public Safety; and Department of Motor Vehicles.257 The Nevada Transportation Authority (NTA) administers and enforces state laws pertaining to fully regulated carriers.258 Fully regulated carriers include passenger transportation, household goods movers, storage of household goods, and tow cars; along with taxi cabs stationed outside Clark County.259 NTA’s website is http://tsa.nv.gov/. The Department of Motor Vehicles and the Department of Public Safety regulates the activities of common and contract carriers of property other than fully regulated carriers and operators of tow cars.260 In addition, the Department of Motor Vehicles regulates the licensing of private motor carriers of property used for private commercial enterprises on any highway in this State.261 The website for the Department of Public Safety is http://dps.nv.gov/. The website for the Department of Motor Vehicles is http://www.dmvnv.com/.

B. State Speed Limits It is unlawful for any person to drive or operate a vehicle of any kind or character at:

1) rate of speed greater than is reasonable or proper, having due regard for the traffic, surface and width of the highway, the weather and other highway conditions;

2) Such a rate of speed as to endanger the life, limb or property of any person; 3) A rate of speed greater than that posted by a public authority for the particular

portion of highway being traversed; 4) In any event, a rate of speed greater than 75 miles per hour.262

When school is in session, and between ½ hour before the beginning and ½ after the end of a school day, a person shall not drive a motor vehicle at a speed in excess of 15 miles per hour in an area designated as a school zone; and at a speed in excess of 25 miles per hour in an area designated as a school crossing zone.263 A person driving a motor vehicle during the hours of daylight at a speed in excess of the speed limit posted by a public authority for the portion of highway being traversed shall be punished by a fine of $25 if:

1) The posted speed limit is 60 miles per hour and the person is not exceeding a speed of 70 miles per hour.

2) The posted speed limit is 65 miles per hour and the person is not exceeding a speed of 75 miles per hour.

3) The posted speed limit is 70 miles per hour and the person is not exceeding a speed of 75 miles per hour.264 A violation of the speed limit under any of the circumstances above must not be recorded by the Department on a driver’s record and shall not be deemed a moving traffic violation.265 The above statute does not apply to a violation that occurs in a county whose population is 100,000 or more if the portion of highway being traversed is in:

1) An urban area; or 2) An area which is adjacent to an urban area and which has been designated as

an area that requires strict observance of the posted speed limit to protect public health and safety.266

C. Overview of State CDL Requirements In addition to passing a vision test and basic CDL knowledge test, applications for Nevada CDL must meet the following requirements:

1) Be at least 18 years of age for intrastate commerce only and cannot transport passengers for hire or hazardous materials

2) Be at least 21 years of age for intrastate commerce; 3) Be at least 25 years of age to drive an over-length combination vehicle

(70feet); 4) If engaged in interstate commerce, a current, valid Medical Examiners’

Certificate is required; 5) Certification that the applicant does not have a driver’s license from more

than one state; 6) Provide a list of states where the applicant has held a driver’s license for

the previous ten years; 7) Certification that the applicant’s license is not currently suspended,

revoked or cancelled in any state; and 8) Provide proof of identity.

Additional tests are available for those applicants seeking specific endorsements and vehicles equipped with air brakes.267 Insurance Issues

A. State Minimum Limits of Financial Responsibility

By Nevada statute, the mandatory minimum limits for bodily injury, property damage and UM/UIM are:

1) $15,000 for bodily injury/death of one person;

2) $30,000 for bodily injury/death of two or more persons; and

3) $10,000 for property damage.268

B. Uninsured Motorist Coverage

There are no Nevada statutes or case law focusing specifically on the issue of UM/UIM coverage in a commercial setting. However, the following include Nevada rules applicable to personal insurance policies.

Insurance companies transacting motor vehicle insurance in the State of Nevada must offer, on a form approved by the commissioner, uninsured and underinsured vehicle coverage in an amount equal to the limits of coverage for bodily injury sold to an insured under a policy of insurance covering the use of a passenger car.269

One limit on the use of UM/UIM coverage is that underinsured motorist coverage only becomes effective when the insured’s damages exceed the tortfeasor’s bodily injury coverage limits. The insured has no duty to pursue the tortfeasor or exhaust the tortfeasor’s coverage limits prior to making a claim for UIM benefits. However the UIM carrier is entitled to a set-off for the total policy limits of the tortfeasor(s).270

Secondly, stacking of UM/UIM coverage is permissible. However, stacking of coverage may be limited if the insurer follows the rules for drafting enforceable anti-stacking provisions.271 In order for this type of limitation to be valid, the provision must be clearly written and not “difficult to understand; more prominently displayed that the other provisions of the policy or amendment; and the named insured must not have purchased separate coverage on the same risk and has paid a premium calculated for full reimbursement of that coverage.272

Stacking is not permitted where multiple polices are purchased and recovery under them would give the insured a double recovery.273 In addition, the stacking of no-fault and uninsured motorist benefits is permitted, but only when the insured’s damages exceed the no-fault coverage limits.274 To this end, medical payments set-off or crediting provision contained in an automobile insurance policy is enforceable and prevents an insured from recovering twice for medical payments under separate provisions of the policy (i.e., med pay and uninsured motorist coverage).275

1) Effect of Workers’ Compensation Benefits On Availability of Coverage An insurance carrier is not a third-party tortfeasor that owes a duty to the Employer’s Insurance Company of Nevada. Therefore, EICON may not subrogate against a carrier’s proceeds available to the employee through his employer’s insurance policy.276 However, an offset provision in an insurance policy that reduces insurance benefits by the amount of workers’ compensation benefits that an insured received from EICON is valid.277

C. No Fault Insurance

Nevada is not a no-fault insurance state.

D. Disclosure of Limits and Layers of Coverage Defendants’ insurance information must be disclosed or made available for copying in the initial disclosure. In addition, information regarding any disclaimer or limitation of coverage, or reservation of rights, under the insurance agreement must be provided in the initial discovery.278

E. Unfair Claims Practices Other than for insurance policies subject to ERISA, engaging in any of the following activities is considered to be an unfair practice:

1) Misrepresenting to insureds or claimants pertinent facts or insurance policy provisions relating to any coverage at issue;

2) Failing to acknowledge and act reasonably promptly upon communications with respect to claims arising under insurance policies;

3) Failing to adopt and implement reasonable standards for the prompt investigation and processing of claims arising under insurance policies;

4) Failing to affirm or deny coverage of claims within a reasonable time after proof of loss requirements have been completed and submitted by the insured;

5) Failing to effectuate prompt, fair and equitable settlements of claims in which liability of the insurer has become reasonably clear;

6) Compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by such insureds, when the insureds have made claims for amounts reasonably similar to the amounts ultimately recovered;

7) Attempting to settle a claim by an insured for less than the amount to which a reasonable person would have believed he or she was entitled by reference to written or printed advertising material accompanying or made part of an application;

8) Attempting to settle claims on the basis of an application which was altered without notice to, or knowledge or consent of, the insured, or the representative, agent or broker of the insured;

9) Failing, upon payment of a claim, to inform insureds or beneficiaries of the coverage under which payment is made;

10) Making known to insureds or claimants a practice of the insurer of appealing from arbitration awards in favor of insureds or claimants for the purpose of compelling them to accept settlements or compromises less than the amount awarded in arbitration;

11) Delaying the investigation or payment of claims by requiring an insured or a claimant, or the physician of either, to submit a preliminary claim report, and then requiring the subsequent submission of formal proof of loss forms, both of which submissions contain substantially the same information;

12) Failing to settle claims promptly, where liability has become reasonably clear, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage;

13) Failing to comply with the provisions of NRS 687B.310 to 687B.390, inclusive, or 687B.410;

14) Failing to provide promptly to an insured a reasonable explanation of the basis in the insurance policy, with respect to the facts of the insured's claim and the applicable law, for the denial of the claim or for an offer to settle or compromise the claim;

15) Advising an insured or claimant not to seek legal counsel; 16) Misleading an insured or claimant concerning any applicable statute of

limitations.279 The statute expressly grants insureds a private right of action against insurance companies that violate this statute.280 However, Third-party claimants have no cause of action directly against tortfeasor's insurer for unfair claims practices.281

F. Bad Faith Claims

1) First-Party Bad Faith Claims

In Nevada there is an implied covenant of good faith and fair dealing in ever contract.”282 This covenant is imposed on insurers by law, not by contract. 283 A breach of this covenant is the basis for a bad faith tort claim

“Bad Faith” means “an actual or implied awareness of the absence of a reasonable basis for denying benefits of the [insurance] policy.”284 In other words, in order to establish a prima facie case of bad faith involving refusal of the insurer to pay an insurance claim, the plaintiff must prove that: 1) the insurer had no reasonable basis for disputing coverage; and 2) the insurer knew, or recklessly, disregarded, the fact that there was no reasonable basis.285

In addition, an insurer’s failure to adequately inform the insured of a settlement offer is a factor in considering a bad faith claim. This duty to adequately inform is based upon the special relationship between an insured and insurer, which is similar to a fiduciary relationship. Misconduct on behalf of the insurer, such as misrepresentation or concealment of facts, is also considered a breach of the fiduciary duty.286

In one Nevada case, the court found that there was ample evidence of bad faith where experts in investigation management testified that an insurer’s investigation was improper, non-objective, incomplete, poorly done, and in violation of the insurer’s own procedures.287

It is important to keep in mind that a bad faith claim is a separate tort cause of action separate from breach of the insurance contract action. “The duty to act in good faith does not arise from the terms of the insurance contract.”288 “Rather, the duty of good faith and fair dealing is imposed by law and the violation of this duty is a tort.”289

2) Third-Party Bad Faith Claims Nevada has not adopted the tort of third-party bad faith. Third-party claimants lack standing to sue because they have no contractual relationship with the insurer.290 However, a third-party claimant who is an express third-party beneficiary of an insurance policy might have a contractual relationship to support a bad faith claim, if the claimant relied on the actions or representations of the insurer to his or her detriment.291

G. Coverage – Duty of Insured An insured has a duty to:

1) Pay a premium when due; 2) Not commit a crime that increases a hazard insured against; 3) Not commit fraud or material misrepresentation in the obtaining of the

policy or in the presentation of a claim; or 4) Commit an act or omission that violates a condition of the policy292; and 5) Complete or attempt to complete proof of loss forms provided by

Insurer.293

H. Fellow Employee Exclusions Nevada has not addressed the issue on whether fellow employee exclusions in insurance policies are for or against public policy.

Endnotes 1 N.A.R. 1 2Id.; N.A.R. 3(A) 3 N.A.R. 5 4 N.A.R. 5(A) 5 N.A.R. 6(C)

6 N.A.R. 12(A), (B) 7 N.A.R. 18 8 N.R.C.P. 1; N.A.R. 11 9 NRAP 7(a) 10 NRAP 7(b) 11 NRAP 7(c) 12 NRS17. 130(2) 13 N.R.S. 13.040 14 Id. 15 N.R.S. 11.190(4)(e). 16 N.R.S. 11.190(3)(c). 17 G and H Assoc. v. Arnest W. Hahn, Inc., 934 P.2d 229, 233 (Nev. 1997); Petersen v. Bruen, 792 P.2d 18, 20 (Nev. 1991). 18 N.R.S. 11.190(4)(e); Gilloon v. Humana, Inc., 687 P.2d 80, 81 (Nev. 1984). 19 N.R.S. 11.250; Parker v. Chrysler Motors Corp., 502 P.2d 111, 112 (Nev. 1972). 20 N.R.S. 11.190(2)(c); Davis v. State Farm Fire and Cas. Co., 545 F.Supp 370, 372 (D. Nev. 1982). 21 N.R.S. 11.190(1)(b). 22 Grayson v. State Farm Mut. Auto. Ins. Co., 971 P.2d 798, 800 (Nev. 1998). 23 NRCP 4(d)(1). 24 NRCP 41. 25 Id. 26 NRCP 41(e).

27 See N.R.S. 11.190; N.R.S. 41.100; and State Farm Mut. Auto. Ins. Co. v. Wharton, 495 P.2d 359, 361 (Nev. 1972). 28 Scialabba v. Brandise Constr. Co, 921 P.2d 928, 930 (Nev. 1996). 29 Id. (citing Dubus v. Dresser Indus., 649 P.2d 198, 202 (Wyo. 1982)). 30 Ashwood v. Clark County, 930 P.2d 740, 742 (Nev. 1997). 31 Id., at 743. 32 Joynt v. Cal. Hotel & Casino, 835 P.2d 799, 801 (Nev. 1992). 33 Id. (quoting Shepard v. Harrison, 678 P.2d 670, 672 (Nev. 1984)). 34 N.R.S. 41.141(1). 35 Brannan v. Nevada Rock & Sand Co., 823 P.2d 291, 293 (Nev. 1992). 36 Del Piero v. Phillips, 769 P.2d 53, 53 (Nev. 1989). 37 N.R.S. 484, et seq. 38 See Brannan v. Nevada Rock & Sand Co., 823 P.2d 291, 292-293 (Nev. 1992). 39 Moody v. Manny’s Auto Repair, 871 P.2d 935, 941 (Nev. 1992); (overruled on other grounds). 40 Rockwell v. Sun Harbor Budget Suites, 925 P.2d 1175, 1182 (Nev. 1996). 41 Sprague v. Lucky Stores, 849 P.2d 320, 322 (Nev. 1993). 42 FGA, Inc. v. Giglio, 278 P.3d 490, 496 (Nev. 2012); (citing Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780, 863, N.E.2d 1276, 1283 (2007)). 43 N.R.C.P. 12 (a)(1); NRCP 12(b). 44 N.R.C.P. 12(b). 45 N.R.C.P. 8(c). 46 Id.; Second Baptist Church v. First Nat’l Bank, 510 P.2d 630, 632 (Nev. 1973). 47 See Mizushima v. Sunset Ranch, Inc., 737 P.2d 1158, 1161 (Nev. 1987).

48 Turner v. Mandalay Sports Entm't, LLC, 124 Nev. 213, 220, 180 P.3d 1172, 1177 (2008). 49 Id. 50 Id. 51 Id. 52 See Mizushima v. Sunset Ranch, Inc., 737 P.2d 1158, 1161 (Nev. 1987). 53 N.R.S. 484D.495(4)(b). 54 Beales v. Hillhaven, Inc., 825 P.2d 212, 215 (Nev. 1987). 55 Brascia v. Johnson, 781 P.2d 765, 768 (Nev. 1989). 56 Nev. J.I. 4NG.34. 57 N.R.C.P. 8(c); Second Baptist Church, 510 P.2d at 631. 58 N.R.C.P. 12(b). 59 Id. 60 Id. 61 N.R.C.P. 12(b); N.R.C.P. 12(h)(1); Hansen A/S v. Eighth Judicial District Court, 6 P.3d 982, 986 (Nev. 2000). 62 Id. 63 N.R.C.P. 12(h)(2). 64 See Northern Nevada Association for Injured Workers v. S.I.I.S., 807 P.2d 728, 733 (Nev. 1991); N.R.C.P. 12(e); and NRCP 8(b). 65 N.R.C.P. 9(a). 66 Shaw v. Stutchman, 771 P.2d 156, 158 (Nev.1989). 67 N.R.C.P. 9(b). 68 Brown v. Kellar, 636 P.2d 874, 874 (Nev. 1981).

69 N.R.C.P. 9(b). 70 Johns v. McAteer, 85 Nev. 477, 481, 457 P.2d 212, 214 (1969). 71 Craigo v. Circus-Circus Enterprises, Inc., 786 P.2d 22, 30 (Nev. 1990). 72 Davies v. Butler, 602 P.2d 605, 610 (Nev. 1979) (Quoting Rocky Mt. Produce v. Johnson, 369 P.2d 198, 202 (Nev. 1962)). 73 Id. (Quoting Bearden v. City of Boulder City, 507 P.2d 1034, 1036 (1973) 74 Rockwell v. Sun Harbor Budget Suites, 925 P.2d 1175, 1181 (Nev. 1996) 75 Id. 76 Id. 77 Id. 78 Adele v. Dunn, 2013 WL 1314944, at 2 (D.Nev. 2013); Cruz v. Durbin, 2011 WL 1792765 (D.Nev 2011) 79 Bowman v. Clark, 792 P.2d 1136 (Nev. 1990). 80 N.R.S. 41.470. 81 N.R.S. 126.021(3). 82 N.R.S. 424.080. 83 Zugel by Zugel v. Miller, 688 P.2d 310, 312 (Nev. 1984). 84 Id. 85 Id. 86 N.R.S. 41.440. 87 Rodriguez v. Primadonna Co., LLC, 216 P.3d 793, 799 (Nev. 2009). 88 Yoscovitch v. Wasson, 645 P.2d 975, 976 (Nev. 1982) 89 N.R.S. 41.141(4). 90 N.R.S. 41.141(5)(a)-(e). 91 GES, Inc. v. Corbitt, 21 P.3d 11, 15 (Nev. 2001).

92 Id. 93 Id. 94 Buck v. Greyhound Lines, 783 P.2d 437, 443 (Nev. 1989). 95 Id. 96 Kleitz v. Raskin, 738 P.2d 508, 510 (Nev. 1987). 97 Id. 98 N.R.S. 41.085(2). 99 N.R.S. 41.085(1). 100 N.R.S. 41.085(4). 101 N.R.S. 41.085(5). 102 N.R.S. 41.100(1). 103 N.R.S. 41.100(2). 104 Summa Corp. v. Greenspun, 607 P.2d 569, 575 (1980). 105 Rockwell v. Sun Harbor Budget Suites, 925 P.2d 1175, 1179 (Nev. 1996). 106 Id., at 1180. 107 Id. at fn. 4. 108 Id., at 1180. 109 Evans v. Southwest Gas Corp., 842 P.2 719, 721 (Nev. 1992) (overruled on other grounds) 110 N.R.S. 616b.612(3). 111 Schepcoff v. S.I.I.S., 849 P.2d 271, 274 (Nev. 1993). 112 Woods v. Safeway, Inc., 121 P.3d 1026, 1034-1035 (Nev. 2005) (Citing N.R.S. 41.745). 113 Id.

114 VanCleave v. Gamboni Construction Co., 706 P.2d 845, 849 (Nev. 1985). 115 See Van Cleave v. Gamboni Constr. Co., 706 P.2d 845 (Nev. 1985). 116 Meagher v. Garvin, 391 P.2d 507, 508 (Nev. 1964). 117 NRS Chapters 616A through 616C, et seq. 118 GES, Inc. v. Corbitt, 21 P.3d 11, 13 (Nev. 2001). 119 Meers v. Haughton Elevator, 701 P.2d 1006, 1007-1008 (Nev. 1985). 120 Id. 121 Am. Fed. Sav. Bank v. County of Washoe, 802 P.2d 1270, 1276 (Nev. 1990). 122 Banks v. Sunrise Hospital, 102 P.3d 52, 64 (Nev. 2004). 123 N.R.S. 17.225(1). 124 N.R.S. 17.225(2). 125 Evans v. Dean Witter Reynolds, Inc., 5 P.3d 1043, 1050 (Nev. 2000) 126 N.R.S. 17.225(3). 127 Proctor v. Castelletti, 911 P.2d 853, 854 (Nev. 1996). 128 Cramer v. Peavy, 3 P.3d 665, 669 (Nev. 2000) (finding that NRS616c.215 allows for a jury to be informed that the plaintiff has received Nevada workers’ compensation benefits and that there is a procedure in place for repaying them). 129 Tri-County Equip. & Leasing v. Klinke, 2012 WL 2459701 (Nev. June 28, 2012); (finding that NRS616C.215 allows for a jury to be informed that plaintiff has received out-of-state worker’s compensation benefits and that there is a procedure in place for repaying them). 130 N.R.S. 48.135(1). 131 N.R.S. 48.135(2). 132 N.R.S. 17.130 133 Albios v. Horizon Communities, Inc., 132 P.3d 1022, 1034 ( Nev. 2006).

134 Gibellini v. Klindt, 885 P.2d 540, 545 (Nev. 1994). 135 Ramada Inns, Inc. v. Sharp, 711 P.2d 1, 2 (1985). 136 N.R.S. 17.130 137 Id. 138 Waddell v. L.V.R.V. Inc., 125 P.3d 1160, 1167 (Nev. 2006). 139 Ramada Inns, Inc. at 2. 140Olivero v. Lowe, 995 P.2d 1023, 1026 (Nev. 2000); (quoting Barmettler v. Reno Air, Inc., 956 P.2d 1382, 1386-1387 (Nev. 1981)). 141 Nelson v. City of Las Vegas, 665 P.2d 1141, 1145 (1983) 142 Chowdhry v. NLVH, Inc., 851 P.2d 459, 462 (1993) 143 Shoen v. Amerco, Inc., 896 P.2d 469, 476 (Nev. 1995). 144 Grotts v. Zahner, 989 P.2d 415, 415 (Nev. 1999). 145 Id. 146 Id. 147 Id. 148 Id. 149 Shoen 896 P.2d at 477 (Nev. 1995). 150 N.R.S. 41.085(4). 151 N.R.S. 41.085(5). 152 N.R.S. 42.005(1). 153 N.R.S. 42.001(4) 154 N.R.S. 42.001(2). 155 N.R.S. 42.001(3).

156 N.R.S. 42.001(1); see Countrywide Home Loans, Inc. v. Thitchener, 192 P.3d 243, 253 (Nev. 2008). 157 Id. 158 Id. 159 N.R.S. 42.010(1). 160 N.R.S. 42.010(2). 161 N.R.S. 42.007(1). 162 Countrywide, 192 P.3d at 258. 163 Id. 164 Id. 165 United Fire Ins. Co. v. McClelland, 780 P.2d 193 (Nev. 1989). 166 Countrywide, 192 P.3d at 258. 167 See Coughlin v. Tailhook Assoc., 112 F.3d 1052 (9th Cir. 1997); see also Granite Construction v. Rhyne, 817 P.2d 711 (Nev. 1991); Austin v. C & L Trucking, Inc., 610 F.Supp 465 (D. Nev. 1985). 168 Summa Corp. v. Greenspun, 98 Nev. 528, 535, 655 P.2d 513, 517 (1982)

169 N.R.S. 42.005(1)(a). 170 Evans v. Dean Witter Reynolds, Inc., 5 P.3d 1043, 1054 (Nev. 2000). 171 N.R.S. 42.005(1)(b). 172 N.R.S. 42.005(2). 173 N.R.S. 42.005(4). 174 City of Reno v. Silver State Flying Serv., Inc., 438 P.2d 257, 264 (Nev. 1968). 175 N.R.S. 681A.095. 176 Lombardi v. Maryland Cas. Co., 894 F.Supp. 369, 371 (D. Nev. 1995).

177 Id. 178 Hornwood v. Smith’s Food King No. 1, 807 P.2d 208, 211 (Nev. 1991). 179 Id. 180 Mort Wallin of Lake Tahoe, Inc. v. Commercial Cabinet Co., Inc., 784 P.2d 954, 955 (Nev. 1990). 181 Id. 182 Dugan v. Gotsopoulos, 22 P.3d 205, 207 (Nev. 2001). 183 Id. 184 Id. 185 Id., at 207-8. 186 James Hardie Gypsum (Nevada) Inc. v. Inquipco, 929 P.2d 903, 908 (Nev. 1996). 187 Dugan, 22 P.3d at 208. 188 Id. 189 Nev. J.I. 10.11. 190 N.R.C.P. 16.1. 191 Id. 192 Frias v. Valle, 698 P.2d 875, 876 (Nev. 1985). 193 Langon v. Matamoros, 111 P.3d 1077, 1079 (2005) 194 N.R.S. 484D.495(4) 195 Bayerische Motoren Werke Aktiengesellschaft v. Roth, 252 P.3d 649, 660 (Nev. 2011). 196 N.R.S. 486.231 197 N.R.S. 486.381 198 Andrews v. Harley Davidson, Inc. ,796 P.2d 1092, 1095 (Nev. 1990).

199 Downing v. Marlia, 417 P.2d 150, 153 (Nev. 1966). 200 Frias v. Valle, 698 P.2d 875, 876, (Nev. 1985) 201 NRS 50.275; Hallmark v. Eldridge, 189 P.3d 646, 650 (Nev. 2008) 202 Hallmark at 650. 203 Id. at 651-652. 204 Higgs v. State, 222 P.3d 648, 660 (Nev. 2010). 205 Soeder v. General Dynamics Corp., 90 F.R.D. 253, 255 (D. Nev. 1980). 206 Columbia/HCA Healthcare Corp., 936 P.2d 844, 848 (Nev. 1997). 207 Id. 208 Soeder, 90 F.R.C. at 255 (D. Nev. 1980). 209 Ballard v. Eighth Judicial District Court, 787 P.2d 406, 407-8 (Nev. 1990). 210 Id. 211 N.R.S. 50.095 212 Wesley v. State, 916 P.2d 793, 799 (Nev. 1996) 213 Vincent v. United Parcel Service, Inc., District Court of Nevada, Clark County, October 05, 2011, Case No. A561132 214 Fire Ins. Exchange v. Zenith Radio Corp., 747 P.2d 911, 913-14 (Nev. 1987); Banks v. Sunrise Hospital, 102 P.3d 52, 58 (Nev. 2004). 215 Id. 216 Bass-Davis v. Davis, 134 P.3d 103, 106 (Nev. 2006). 217 Id., at 107. 218 Id. 219 Id. 220 Id.

221 Id., at 108. 222 N.R.S. 17.115(2); NRCP 68(a). 223 N.R.S. 17.115(2). 224 N.R.S. 17.115(3). 225 N.R.S. 17.115(4); NRCP 68(f). 226 N.R.S. 18.005. 227 N.R.S. 18.010(2)(a); Singer v. Chase Manhattan Bank, 890 P.2d 1305, 1308 (Nev. 1995). 228 N.R.S. 108.590. 229 Id. 230 Washoe Medical Center, Inc. v. Reliance Ins. Co., 915 P.2d 288, 289 (Nev. 1996); NRS 108.590(1). 231 N.R.S. 108.590(5)(a). 232 N.R.S. 18.015(1). 233 Breen v. Caesar’s Palace, 715 P.2d 1070, 1071-2 (Nev. 1986). 234 Maxwell v. Allstate Ins. Co., 728 P.2d 812, 814-15 (Nev. 1986). 235 N.R.S. 108.610. 236 N.R.S. 18.015(2). 237 Breen, 715 P.2d at 1075. 238 N.R.S. 12.080. 239 N.R.S. 41.200. 240 Id. 241 Id.

242 Id. 243 Id. 244 Id. 245 Id. 246 Hopkins v. Selznick, 281 P.3d 1182 (Nev. 2009) 247 May v. Anderson, 119 P.3d 1254, 1257-58 (Nev. 2005) 248 Id. 249 Id. 250 Id. 251 N.R.S. 17.245(1)(a). 252 N.R.S. 41.141(3); Moore by Moore v. Bannen, 799 P.2d 564 (Nev. 1990). 253 N.R.S. 41.141(3). 254 N.R.S. 17.245(1)(b); See also The Doctors Company v. Vincent, 98 P.3d 681,683 (Nev. 2004). 255 In re MGM Grand Hotel Fire Litig., 570 F. Supp. 913, 927-28 (D. Nev. 1983), 256 The Doctors Co. v. Vincent, 98 P.3d 681, 686-87 (Nev. 2004). 257 N.R.S. 706.171 258 N.R.S. 706.1514; N.R.S. 706.166 259 N.R.S. 706.072 260 N.R.S. 706.169 261 Id. 262 N.R.S. 484B.600 263 N.R.S. 484B.363

264 N.R.S. 484B.617 265 Id. 266 Id. 267 Nevada Commercial Driver’s License Manual (January 2012) 268 N.R.S. 485.185. 269 N.R.S. 687B.145(2); N.R.S. 690B.035. 270 White v. Continental Ins. Co., 65 P.3d 1090, 1092 (Nev. 2003); see also Mann v. Farmers Ins. Exchange, 836 P.2d 620 (Nev. 1992). 271 N.R.S. 687B.145(2); Bove v. Prudential Ins. Co. of America, 799 P.2d 1108, 1110-11 (Nev. 1990). 272 Serrett v. Kimber, 874 P.2d 747, 750-51 (Nev. 1994). 273 Mid-Century Ins. Co. v. Daniel, 705 P.2d 156, 159 (Nev. 1985). 274 Id., at 160. 275 Ellison v. Cal. State Automobile Assoc., 797 P.2d 975, 977-78 (Nev. 1990). 276 Phelps v. State Farm Mutual Automobile Ins. Co., 917 P.2d 944, 947 (Nev. 1996); Silvera v. Employers Ins. Co. of Nevada, 40 P.3d 429, 430-31 (Nev. 2002). 277 Id. 278 N.R.C.P. 16.1(a)(1)(D). 279 N.R.S. 686A.310. 280 Id.; Turk v. TIG Ins. Co., 616 F. Supp. 2d 1044, 1052 (D. Nev. 2009) 281 Gunny v. Allstate Ins. Co., 830 P.2d 1335, 1336 (Nev. 1992). 282 Pemberton v. Farmers Insurance Exchange, 858 P.2d 380, 382 (Nev. 1993). 283 Id. 284 Am. Excess Ins. Co. v. MGM Grand Hotels, Inc., 729 P.2d 1352, 1354 (1986)

285 Powers v. United Servs. Auto. Ass'n, 962 P.2d 596, 604 (1998) opinion modified on denial of reh'g, 115 Nev. 38, 979 P.2d 1286 (1999) 286 Allstate Ins. Co. v. Miller, 212 P.3d 318, 322 (2009)

287 Powers at 604.

288 Pulley v. Preferred Risk Mutual Insurance, 897 P.2d 1101, 1103 (Nev. 1995). 289 Id. 290 Gunny v. Allstate Ins. Co., 830 P.2d 1335, 1336-37 (Nev. 1992). 291 Id., at 1337. 292 N.R.S. 687B.320. 293 N.R.S. 687B.220