Nevada Insurance Law

LexisNexis NAMES NEVADA INSURANCE LAW AS A TOP INSURANCE LAW BLOG FOR 2011

The Advisory Board of the LexisNexis Insurance Law Community has selected Mills & Associates' Nevada Insurance Law as one of the nation’s Top Insurance Law Blogs for 2011.  The Advisory Board described what it saw in the winning blogs.

The Top Blogs contain some of the best writing out there on insurance law.  They contain a wealth of information for the insurance law community with timely news items, practical information, expert analysis, practice tips, frequent postings, and helpful links to other sites.  These blogsites demonstrate how bloggers can impact the world of insurance law. 

Mills & Associates is proud to be among that group of great bloggers.  In the Nevada Insurance Law blog, Mills & Associates strives to provide its readers with concise, informative posts on Nevada’s most current insurance law developments and trends. 

We thank the Board for recognizing the Mills & Associates Nevada Insurance Law Blog as one of the best in the country.

THE BURDEN ON APPORTIONMENT OF DAMAGES SHIFTS TO THE DEFENDANT WHERE TWO SEPARATE ACCIDENTS CAUSE AN INSEPARABALE INJURY

The Plaintiff usually has the burden to prove that the Defendant was negligent and that the Defendant’s negligence caused him injury.  However, in cases where two accidents happen so close together that one cannot tell which accident caused which injury, what is a Plaintiff to do?  This was the question posed to the Nevada Supreme Court in the case of Kleitz v. Raskin, 103 Nev. 325, 728 P.2d 508 (1987). In Kleitz, the Plaintiff sustained injury in two successive automobile accidents, one December 23, 1981 and a second on January 25, 1982. 

Plaintiff Kleitz sued both tortfeasors.  He settled with the first Defendant.  The Defendant in the 
second accident then filed a Motion for Summary Judgment, arguing that since the IME doctor had testified that Plaintiff’s condition remained unchanged between the first and second accidents, that Plaintiff would not be able to sustain the burden of proof regarding which accident had caused the injury. 

On the other hand, Plaintiff Kleitz’s doctor argued that the Plaintiff had suffered injury in both accidents and each accident contributed to the one injury that the doctor was treating.  The trial Court granted Defendant’s Motion for Summary Judgment finding that Plaintiff would not be able sustain his burden of proof at trial. 

The Nevada Supreme Court reversed the trial court’s decision.  Following the rule stated in Phennah v. Whalen, 621 P.2d 1304 (Wash.Ct.App. 1980) and in the Restatement (Second) of Torts §433B(2), the Supreme Court found that where a Plaintiff can show that both accidents contributed to his injury but can’t apportion the damages, then the burden of proof as to apportionment shifts to the Defendant.  The court quoted the applicable section of the Restatement as follows:

The Restatement (Second) of Torts § 433B (1965) provides:
Burden of Proof.
            (1) Except as stated in Subsections (2) and (3), the burden of proof that the tortious conduct of the defendant has caused the harm to the plaintiff is upon the plaintiff.
            (2) Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor.

103 Nev. 328, fn.1.  The Supreme Court went on to hold that if the Defendant fails to meet this burden, that Defendant is jointly and severally liable for the entirety of the plaintiff’s damages. If trier of fact finds that it cannot apportion damages then it is incumbent on the court to apply a credit in the amount that the first Defendant paid in settlement as an offset to the unapportioned verdict.

 

GOT QUESTIONS?

These posts on the Mills & Associates Nevada Insurance Law blog are published to provide useful insights on Nevada insurance law to our clients and other subscribers. Many times the topics are suggested by recent case law, or issues raised by litigation. 

As part of our ongoing effort to provide both timely and helpful information, we invite all our readers to submit issues which they would like to see addressed in future blog posts. 

Likewise, please submit questions concerning prior posts.  We will do our best to provide additional information or updates on those topics. 

If you would like to submit a question, or a suggestion for a future blog post, please contact us at Mail@MCMillsLaw.com.

 

OTHER INSURANCE OFFSETS

Policy provisions that require the underlying policy to be exhausted are against public policy.  However, where a UIM policy is involved, an offset is allowed for the full amount of the underlying insurance policy, even if it was not paid.  Mann v. Farmers Insurance, 108 Nev. 648; 836 P.2d 620 (1992).

An offset is allowed against personal UM / UIM where the employer provides the UIM coverage.  Phelps v. State Farm, 112 Nev. 675; 917 P.2d 944 (1996).

No offset is allowed if the worker's compensation provider is entitled to reimbursement from the recovery.  Rubin v. State Farm, 118 Nev. 299, 43 P.3d 1018 (2002).

And no offset allowed where the person bought their own insurance and paid premiums for the same.

Phelps, supra.

OFFSETS

Offsets or credits are allowed against UM or UIM settlements for medical payments, according to Ellison v. CSAA, 106 Nev. 601; 797 P.2d 975 (1990), so long as the insurance contract allows it and the contract language is clear and understandable.

A tortfeasor cannot claim an offset or credit for medical bills paid by the injured party's own insurance.  That insurance is considered a collateral source.  Procter v. Castelletti, 112 Nev. 88, 90, 911 P.2d 853, 854 (1996).