Automobile Insurance SubrogationAutomobile Total Loss ThresholdsDeductible ReimbursementDiminution of ValueFirst Come, First Served: Subrogating Multiple Claims in Excess of Policy LimitsFuneral Procession Traffic LawsImputing Contributory Negligence of Driver to Vehicle OwnerLaws Regarding using Cell Phones/Headphones/Texting While DrivingLoss Of UseMed Pay/PIP SubrogationOwner Liability For Stolen VehiclesPayment of Sales Tax After Vehicle Total LossPedestrian and Crosswalk LawsRental Car Company Physical Damage and Loss of Use ClaimsRental Car Company’s Liability Insurance Primary or ExcessSlower Traffic Keep RightSudden Medical Emergencies While DrivingSuspension of Drivers’ LicensesUse of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Federal , State, and Local Governmental EntitiesMunicipal/County/Local Governmental Immunity and Tort LiabilityState Sovereign Immunity And Tort Liability
General Tort Laws/StatutesAnti-Indemnity StatutesContribution ActionsContributory Negligence/Comparative FaultDog Bite LawsEconomic Loss DoctrineParental ResponsibilitySpoliationStatute of LimitationsStatute of Limitations Exceptions
Health Insurance SubrogationHealth and Disability Insurance
InvestigationAdmissibility of Expert TestimonyPre-Suit Disclosure of Liability Policy Limits in Third-Party ClaimsRecording Conversations
Product Liability SubrogationProduct Liability Law
Property Subrogation“Matching Regulations” And Laws Affecting Homeowners Property ClaimsCondominium/Co-Op Waiver of Subrogation LawsDamage to Property Without Market ValueGeneral Contractor Overhead And Profit Payments In First-Party ACV Property Damage ClaimsLandlord/Tenant Subrogation
Subrogation GenerallyAnti-Subrogation RuleCriminal RestitutionMade Whole DoctrineMedical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Workers’ CompensationEmployee Leasing LawsHospital Lien LawsOCIP/CCIP Subrogation In Workers’ Compensation Construction CasesRecovery Of Increased Workers’ Compensation Premiums By EmployerWhich Workers’ Compensation “Benefits” Can Be Subrogated?Workers’ Compensation Subrogation Waiver EndorsementsWorkers’ CompensationWorkers’ Compensation Claims by Undocumented Employees
Automobile Insurance Subrogation
Automobile Total Loss Thresholds
Percentage of Value: 65%
Vehicle damage exceeds 65% of the fair market value. N.R.S. § 487.790(1)(b).
Automobile: Pro-Rata. Nev. Admin. Code § 686A.680 provides: “An insurer shall, upon claimant’s request, include first-party claimant’s deductible, if any, in subrogation demands. A subrogation recovery must be shared on proportionate basis with first-party claimant, unless deductible amount has been otherwise recovered. No deduction for expenses may be made from deductible recovery unless an outside attorney is retained to collect recovery. The deduction may then be for no more than pro-rata share of allocated loss adjustment expense.”
An insurer is not required to add an insured’s deductible or uninsured loss to its subrogation action; maintaining two separate suits (i.e., one by insured and another by insurer) is not considered a “splitting of actions.” Smith v. Hutchins, 566 P.2d 1136 (Nev. 1977).
In State Farm Ins. Co. v. Ramos, 2018 WL 3089891 (Nev. Dist. Ct. 2018), the court made the assumption that the subrogated carrier had included the insured’s deductible in its subrogation claim because it was “necessary to satisfy Nevada’s ‘made-whole’ policy and the insurer’s obligation not to take prior to or diminish the insured’s recovery from a tortfeasor.”
Deductible must be included in any collision subrogation demand upon claimant’s request.
Diminution of Value
First Party: Currently no applicable Nevada court decisions can be found regarding recovery allowed for diminution in value in a first-party claim. However, Nevada statutory law provides that when an insurer elects to repair a vehicle, the only requirement is that the insurer restores the damaged vehicle to its condition before the loss. No mention is made of payment for residual diminished value. Nev. Admin. Code § 686A.680.
Third Party: No court decisions regarding recovery allowed for diminution in value of a damaged vehicle in a third-party claim.
First Come, First Served: Subrogating Multiple Claims in Excess of Policy Limits
Failure to settle one of several claims against an insured isn’t necessarily bad faith, but Nevada imposes a duty upon an insurer to notify its insured of potential settlement demands from the victim, including the option of interpleader. Allstate Ins. Co. v. Miller, 212 P.3d 318 (Nev. 2009). “Bad faith” is not capable of a legal definition, but depends on the facts of a particular case. However, the failure of an insurer to inform its insured of a settlement offer is a proximate cause of an insured’s damages suffered later as a result of a failure to settle. Id. Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability, and insurers are encouraged to utilize interpleader in order to avoid exposure to their insureds. Balish v. Farnham, 546 P.2d 1297 (Nev. 1976).
Funeral Procession Traffic Laws
Nevada is the only state which specifically allows the lead or escort vehicle in a funeral procession to go through a red light. The law authorizes a vehicle escorting a funeral procession to (1) go through a red light or stop sign after slowing down as necessary, (2) exceed the posted speed limit by up to 15 miles per hour to overtake the procession and direct traffic at the next intersection, and (3) disregard regulations on direction of movement or turning when directing the movement of the other vehicles in the procession. Nev. Rev. Stat. § 484B.700. While these privileges are part of the law authorizing special actions by police and other emergency vehicles, the law does not expressly require a funeral escort vehicle to be such a police or emergency vehicle.
Imputing Contributory Negligence of Driver to Vehicle Owner
Imputed Contributory Negligence Law: Contributory negligence of driver of vehicle is not imputed to owner in action for damages by owner against third party. Rockey Mountain Produce Trucking Co. v. Johnson, 369 P.2d 198 (Nev. 1962).
Family Purpose Statute is “liability” statute and does impute family-purpose driver’s contributory negligence to family-purpose owner in suit against third party for damages. White v. Yup, 458 P.2d 617 (Nev. 1969).
Vicarious Liability/Family Purpose Doctrine: No Vicarious Liability Statute.
Family Purpose Statute expanded to impose liability on owner for any negligence of wife, husband, son, daughter, father, mother, brother, sister, or other immediate member of family operating vehicle with permission. Does not require a “family purpose.” N.R.S. § 41.440; Arata v. Faubion, 123 Nev. 153, 161 P.3d 244 (2007).
Sponsor Liability for Minor’s Driving: N.R.S. § 483.300: Joint and several liability imposed on parents who signs a child’s driver’s application and child willfully or negligently causes injury or property damage while operating motor vehicle.
Laws Regarding using Cell Phones/Headphones/Texting While Driving
Cell Phone/Texting: No person shall operate a motor vehicle while manually using a hand-held device to send, read, or type a non-voice communications message. No person shall operate a vehicle while using a hand-held device in a hand-held manner. Exceptions include emergency personnel, emergency situations or situations that require immediate action. N.R.S. § 484B.165(1)(a) and (b).
Other Prohibitions: No Applicable Laws.
Comments: No agency, board, commission, or political subdivision of the state or local government may regulate the use of telephonic devices by drivers operating motor vehicles. N.R.S. § 707.375.
Loss Of Use
Loss of Use: Yes. Loss of use damages may be recovered for the time period for which an individual cannot use their vehicle. Damages are measured by the reasonable rental car costs for the reasonable time period it takes to repair the vehicle. Actual rental of a vehicle is not required in order to recover loss of use damages. Dugan v. Gotsopoulos, 22 P.3d 205 (Nev. 2001). No case law or statutory authority available on whether loss of use is recoverable when vehicle is a total loss.
Lost Profits: No case law or statutory support for lost profits as a measure of loss of use damages.
Med Pay/PIP Subrogation
Med Pay: Subrogation clauses violate public policy and are void. Maxwell v. Allstate Ins. Co., 728 P.2d 812 (Nev. 1986).
PIP: Coverage not applicable. First-party Med Pay coverage available instead.
Made Whole: Doctrine applies. Canfora v. Coast Hotels & Casinos, Inc., 121 P.3d 599 (Nev. 2005).
- No-fault repealed in 1980. Nevada is a quasi-“add-on” state with limited benefits.
Statute of Limitations: The two (2) year personal injury statute of limitations runs from the date of the insured’s accident. N.R.S. § 11.190.
Owner Liability For Stolen Vehicles
Key In The Ignition Statutes: N.R.S. § 484B.530.
Common Law Rule: The owner or bailee of a vehicle is ordinarily not, as a matter of law, liable for injuries caused by the negligent operation of the vehicle by a stranger who steals the car. Elliott v. Mallory Electric Corp., et. al., 571 P.2d 397 (Nev. 1977).
Payment of Sales Tax After Vehicle Total Loss
Sudden Emergency Doctrine. Only appropriate when an unexpected condition confronts the driver while they were exercising reasonable care. Defendant must show they were suddenly placed in a position of peril through no negligence of their own. Posas v. Horton, 228 P.3d 457 (Nev. 2010).
No cases using the sudden emergency defense for a medical emergency.
Pedestrian and Crosswalk Laws
N.R.S. § 484B.283: Vehicle must yield to pedestrians close to or in vehicle’s half of crosswalk. Pedestrians must not leave crosswalk in front of vehicle if vehicle does not have time to stop.
N.R.S. § 484B.287: Pedestrians must yield to vehicles when crossing outside crosswalk. Pedestrians must use crosswalk at intersections with traffic control devices. Pedestrians must not cross diagonally.
Summary: Pedestrians violation of statute did not automatically preclude pedestrian’s recovery for injuries. Anderson v. Baltrusaitis, 944 P.2d 797, 113 Nev. 963 (Nev. 1997).
Rental Car Company Physical Damage and Loss of Use Claims
Recovery From Renter: Physical damage recovery limited by statute. Limited to FMV or costs of repairs less discounts, estimated cost for labor, and estimated cost of repair, all on crash book times. Physical damage cannot be processed on renter’s credit card unless renter agrees to amount after the accident, and it is processed on separate charge slip. Cannot be recovered if the damages have already been collected from physical damage insurer or third-party liability carrier. Renter presumed to have no liability for theft if he produces ignition key and theft reported within 24 hours. This statute does not limit recover from third-party tortfeasor. Nev. Stat. § 482.31535. Car rental company allowed to recover loss of use damage and administrative fees (limited by statute) from renter. Such damages accrue on a daily basis, at the renter’s daily rental fee, exclusive of optional charges. This daily rate is then applied during the estimated period of time necessary to repair or replace the vehicle, with eight hours constituting a day. Nev. Stat. § 482.3154(d).
Recovery From Third-Party: A party may recover loss of use damages for the time period in which that party has lost use of her personal vehicle as a result of damages to her auto, and these damages may be measured by reasonable rental car costs for a reasonable period within which to repair the vehicle; however, a party need not actually rent a vehicle to recover loss of use damages if that party is financially unable to rent a substitute vehicle. Loss of use is awarded for the inconvenience of loss of use based on individual circumstances, to which the party can testify. Expert testimony is not required. Rental car costs are probative of loss of use damages, even though the owner does not actually rent a replacement vehicle if he is financially unable to. Dugan v. Gotsopoulos, 22 P.3d 205 (Nev. 2001).
Rental Car Company’s Liability Insurance Primary or Excess
Summary: No case or statutory law dealing specifically with car rental companies. Terms of rental agreement and renter’s liability policy should be compared to determine which is primary. The car rental company’s policy will be primary when both it and the renter’s policy contain “other insurance” clauses. Alamo Rent-A-Car v. State Farm, 953 P.2d 1074 (Nev. 1998). There is nothing in Nevada’s statutory scheme governing short-term vehicle lessors that establishes priority of coverage between a rental agency and the renter’s own auto liability insurer. A short-term car rental company is jointly and severally liable with the renter and his permissive drivers, if the car rental company does not provide the required minimum liability coverage. Nev. Stat. § 482.305. If a plaintiff accepts a settlement from the renter’s policy, he cannot then also recover the limits of the car rental company’s policy. Hall v. Enterprise Leasing Company-West, 122 Nev. 685 (Nev. 2006).
Slower Traffic Keep Right
Statute: N.R.S. § 484B.200, N.R.S. § 484B.627 and N.R.S. § 484B.207.
Summary: Drivers must drive in the right lane except when overtaking another vehicle, when the right half of the highway is closed to traffic; on a highway with three marked traffic lanes; upon a roadway designated for one-way traffic, or when the highway is not of sufficient width. Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle upon observing the overtaking vehicle or hearing a signal. Slow moving vehicles must travel in the right lane if impeding traffic.
Sudden Medical Emergencies While Driving
Sudden Emergency Doctrine. Only appropriate when an unexpected condition confronts the driver while they were exercising reasonable care. Defendant must show they were suddenly placed in a position of peril through no negligence of their own. Posas v. Horton, 228 P.3d 457 (Nev. 2010).
No cases using the sudden emergency defense for a medical emergency.
Suspension of Drivers’ Licenses
Administrative Suspension: If Department determines that the operator did not have insurance, it will suspend the driver’s license of a resident driver or the operating privilege of a non-resident driver, unless the uninsured driver deposits security in an amount determined by the Department. N.R.S. § 485.190(2). License remains suspended until two (2) years have elapsed and no action is filed against the uninsured driver, or evidence of a release or adjudication of non-liability is filed with the Department. N.R.S. § 485.230.
Judgment: Upon receipt of the unsatisfied judgment, the Department will suspend the license of the judgment debtor. N.R.S. § 485.302(1). Suspension will continue until the judgment is stayed or satisfied, and proof of financial responsibility is shown. N.R.S. § 485.303.
Contact Information: Nevada Dept. of Motor Vehicles, Driver’s License, 555 Wright Way, Carson City, NV 89711, (775) 684-4830, http://www.dmvnv.com/nvdl.htm.
Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Authority: Nev. ADC § 686A.240.
Summary: The written estimate must notify the insured that non-OEM parts were used in the repair and that the warranty for non-OEM parts is provided by the manufacturer or distributor, not the auto manufacturer.
Federal , State, and Local Governmental Entities
Municipal/County/Local Governmental Immunity and Tort Liability
Nevada Tort Claims Act: N.R.S. §§ 41.031 through 41.0337 (1965). Includes “political subdivisions” (counties, cities, school districts, etc.). N.R.S. § 41.031.
Notice Deadlines: None. A claim must be filed with the governing body of the local jurisdiction within two (2) years after cause of action accrues. Filing a claim isn’t a condition precedent to bringing an action against political subdivision. N.R.S. § 41.036.
Claims/Actions Allowed: State waives the immunity of political subdivisions and consents to have their liability determined in accordance with the same rules of law as are applied to civil actions against natural persons, except as otherwise provided. N.R.S. § 41.031. Decision to divert storm water into ditch involved individual judgment or choice and was immune. Warner v. City of Reno, 367 P.3d 832 (Nev. 2010). Operating motor vehicle is not discretionary. Decision to install traffic sign is discretionary, but not duty to maintain. Nevada Power Co. v. Clark Cty., 813 P.2d 477 (Nev. 1991).
Comments/Exceptions: No action may be brought against the political subdivision or its employees which are based upon: (1) the performance of a discretionary act (involves element of individual judgment or choice and is based on considerations of social, economic, or political policy); (2) failure to inspect any building, structure, vehicle, street, public highway or other public work, to determine any hazards, deficiencies or other matters, whether or not there is a duty to inspect; and (3) injury sustained from a public building or public vehicle by a person who was engaged in any criminal act. N.R.S. §§ 41.032, 41.033, 41.0334.
Damage Caps: Damages against political subdivision may not exceed the sum of $100,000, exclusive of interest. The political subdivision will not pay punitive damages. N.R.S. § 41.035.
State Sovereign Immunity And Tort Liability
Tort Claims Act: Nevada Tort Claims Act. N.R.S. §§ 41.031 through 41.0337 (1965).
Notice Deadlines: A claim must be filed with the Attorney General within two years after the cause of action accrues. Filing a claim is not a condition precedent to bringing an action against the State. N.R.S. § 41.036.
Claims/Actions Allowed: Nevada hereby waives its immunity from liability and action and consents to have its liability determined in accordance with the same rules of law as are applied to civil actions against natural persons, except as otherwise provided. N.R.S. § 41.031.
Comments/Exceptions: No action may be brought against the State or its employees which are based upon:
(1) an act or omission of an officer or employee exercising due care, in the execution of a statute, or in the performance of a discretionary act;
(2) failure to inspect any building, structure, vehicle, street, public highway or other public work, to determine any hazards, deficiencies or other matters, whether or not there is a duty to inspect;
(3) an injury sustained from a public building or public vehicle by a person who was engaged in any criminal act.
N.R.S. § 41.032, § 41.033 and § 41.0334.
Damage Caps: Damages against the State may not exceed the sum of $100,000. The State will not pay punitive damages. N.R.S. § 41.035.
General Tort Laws/Statutes
Prohibits Broad Indemnity. Applies to Residential Construction Contracts. N.R.S. § AB 125, § 2 (2015).
Effective 2/24/15, indemnification clauses in residential construction contracts requiring a subcontractor to indemnify the general contractor/developer for the contractor’s negligence (whether active, passive, or intentional) are void and unenforceable as against public policy. However, AB 125 specifically states that its anti-indemnity provision does not apply to indemnity and defense agreements that require a subcontractor to indemnify and defend the general contractor or the developer for claims based on the subcontractor’s scope of work.
Modified Joint and Several Liability. Several liability, except for (1) strict liability, defendants acting in concert, (2) environmental torts, or ordinary negligence where the plaintiff is fault free – then joint and several liability applies to all at-fault defendants. N.R.S. § 41-141; GES, Inc. v. Corbitt, 21 P.3d 11 (Nev. 2001); Buck by Buck v. Greyhound Lines, Inc., 783 P.2d 437 (Nev. 1989).
Where two or more persons become jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them. The right of contribution exists only in favor of a tortfeasor who has paid more than his equitable share of the common liability, and the tortfeasor’s total recovery is limited to the amount paid by the tortfeasor in excess of his equitable share. No tortfeasor is compelled to make contribution beyond his own equitable share of the entire liability. A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability for the injury or wrongful death is not extinguished by the settlement nor in respect to any amount paid in a settlement which is in excess of what was reasonable. N.R.S. § 17.225. Joint tortfeasor has right of contribution unless he settles with the claimant prior to judgment. Judgment against one tortfeasor does not discharge the other tortfeasors from liability, nor does the satisfaction of the judgment impair the right of contribution. N.R.S. § 17.225; Van Cleave v. Gamboni Construction, 706 P.2d 845 (Nev. 1985). Contribution plaintiff may seek contribution during the original proceeding or in separate proceeding filed within one (1) year of final judgment.
Contributory Negligence/Comparative Fault
Modified Comparative Fault: 51% Bar. Damaged party cannot recover if it is 51% or more at fault. If 50% or less at fault, it can recover, although its recovery is reduced by its degree of fault. If plaintiff’s negligence is less than combined negligence of the defendant’s fault, he can only recover damages not attributable to his own fault. N.R.S. § 41-141.
Dog Bite Laws
No civil liability statute for an average dog bite. The common law for liability, however, states that if the plaintiff can prove that the dog owner’s negligence led to the dog bite injury, the plaintiff may recover damages for the dog bite injury. Section 202.500 makes owner guilty of felony if “vicious” dog (has previously inflicted serious personal injury) bites as opposed to merely a “dangerous” (two bites within 18 months) dog. Nev. Stat. Ann. § 202.500.
Economic Loss Doctrine
Majority Rule Majority Rule (exception for owners of new homes). The Supreme Court of Nevada has explained that the ELD marks the fundamental boundary between contract law, which is designed to enforce the expectancy interests of the parties, and tort law, which imposes a duty of reasonable care and thereby generally encourages citizens to avoid causing physical harm to others. Terracon Consultants W., Inc. v. Mandalay Resort Grp., 206 P.3d 81 (Nev.2009). To accomplish this purpose, the ELD bars unintentional tort actions when the plaintiff seeks to recover purely economic losses. Id. A plaintiff may not recover economic loss under theories of strict products liability or negligence. Calloway v. City of Reno, 993 P.2d 1259 (Nev.2000), overruled on other grounds by, Olson v. Richard, 89 P.3d 31 (Nev.2004). When an integrated component of a product, such as a building’s heating or plumbing system, fails and causes damage to the larger product but not to other property, only economic loss has occurred. Tharaldson Fin. Grp., Inc. v. AAF McQuay Inc., 2014 WL 4829649 (D. Nev. 2014). When an integral component of a product – including a building – fails and damages the larger product, only economic loss occurs and, thus, tort recovery is barred. Fireman’s Fund Ins. Co. v. Sloan Valve Co., 2011 WL 5598324 (D. Nev. 2011).
Whether an HVAC unit which had been installed in the property for over a year is considered an integral part of the property is a question of fact. In Calloway, the Supreme Court of Nevada specifically held that “a building’s heating and plumbing system is a necessary and integrated part of the greater whole. Consequently, when a heating and plumbing system damages the building as a whole, the building has injured itself and only economic losses have occurred.” Calloway, 993 P.2d at 1268. A toilet flush valve is an integrated and integral part of a building. Sloan Valve Co., supra. Therefore, while it may be a question of fact whether some products installed in buildings retain their separate identity as products, in Nevada, an installed HVAC unit is an integrated and integral part of the building, and damage to the property caused by the HVAC is purely economic loss. Damage to other property beyond the building in which the HVAC unit is an integrated part is not a purely economic loss. Callaway, supra.
Property Damage / Personal Injury. Joint and several liability imposed on parents when a child willfully causes injury to person or damage to property. N.R.S. § 41.470.
The limit of liability is $10,000.00.
Firearms. Liability imposed on parents for a child’s negligent or willful misuse of a firearm, if child has been adjudicated delinquent or convicted of criminal offense, parent knows of child’s propensity to commit violent acts, and parent knows that child intends to use firearm, or permits child to use firearm. N.R.S. § 41.472.
There is no limit to liability.
Auto Liability. Joint and several liability imposed on parents who signs a child’s driver’s application and child willfully or negligently causes injury or property damage while operating motor vehicle, or motorcycle. N.R.S. §§ 483.300, 486.101.
There is no limit to liability.
Child must be under 18-years-old.
Tort of Spoliation: Nevada does not recognize a separate tort for first-party or third-party spoliation of evidence. Timber Tech Engineered Bldg. Products v. The Home Ins. Co., 55 P.3d 952, 953-54 (Nev. 2002). However, a negligence claim for spoliation may exist where the circumstances of the case show that the defendant owed a duty to the plaintiff to preserve evidence. Contreras v. Am. Family Mut. Ins. Co., 135 F. Supp.3d 1208 (D. Nev. 2015).
Adverse Inference: “It is well-established that a party is entitled to jury instructions on every theory of her case that is supported by the evidence.” Bass-Davis v. Davis, 117 P.3d 207, 209 (Nev. 2005). In Reingold v. Wet ‘N Wild Nevada, Inc., 113 Nev. 967, 970, 944 P.2d 800, 802 (Nev. 1997), the Nevada Supreme Court recognized that under N.R.S. § 47.250(3), when evidence is willfully destroyed, the trier of fact is entitled to presume that the evidence was adverse to the destroying party. It further held that evidence is “willfully” destroyed even if the evidence is destroyed pursuant to an established company policy. Bass-Davis v. Davis, 117 P.3d at 210. One of the purposes of an adverse inference jury instruction is to level the playing field by putting the prejudiced party in the same position it would have been if the evidence had not been lost. Brown v. Albertsons, LLC, 2017 WL 1957571 (D. Nev. 2017).
Statute of Limitations
Personal Property3 YearsN.R.S. § 11.190
Personal Injury/Death2 YearsN.R.S. § 11.190
Personal Injury/Against Health Provider/After Injury Date3 YearsN.R.S. § 41A.097(2)
Personal Injury/Against Health Provider/After Discovery Date1 YearN.R.S. § 41A.097(2)
Breach of Contract/Written6 YearsN.R.S. § 11.190(1)
Breach of Contract/Oral4 YearsN.R.S. § 11.190(2)(c)
Breach of Contract/Sale of Goods4 YearsN.R.S. § 104.2725
Statute of Repose/ProductsN/AN/A
Statute of Repose/Real Property6 YearsN.R.S. § 11.202(1) and (2)*
Breach of Warranty/Express6 YearsN.R.S. § 11.190
Breach of Warranty/Implied4 YearsN.R.S. § 11.190
Workers’ Comp Third Party Case2 YearsN.R.S. § 616C.215
Strict Product Liability4 YearsN.R.S. § 11.190
Statute of Limitations Exceptions
* 10 years from substantial completion of improvement to real property. N.R.S. § 11.202(1). Exception for fraud. N.R.S. § 11.202(2). Nevada has adopted the definition of the term “substantial completion” offered by the American Institute of Architects (AIA). ,An improvement is “substantially complete” pursuant to the common law at “the stage in the progress of the Work when the Work or designated portion thereof is sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work for its intended use.” Owners Ass’n v. Somersett Dev. Co., 492 P.3d 534 (Nev. 2021). The statute of repose applies to either (1) injury to real or personal property or (2) injury to or the wrongful death of a person.
Health Insurance Subrogation
Health and Disability Insurance
Statute of Limitations: 2 Years. N.R.S. § 11.190. Action Against Health Care Provider – 3 years from injury date or 1 year from date of discovery. N.R.S. § 41A.097(2).
Subrogation of Medical and Disability Benefits are allowed. Canfora v. Coast Hotels & Casinos, Inc., 121 Nev. 771, 774, 121 P.3d 599, 601 (2005).
Made Whole Doctrine does apply, but doctrine can be overridden by clear policy language. See Canfora v. Coast Hotels & Casinos, Inc., 121 Nev. 771, 778, 121 P.3d 599, 604 (2005); See also, Welday v. Summerlin Life & Health Ins. Co., 127 Nev. 1185 (2011). Common Fund Doctrine applies. State, Dep’t of Human Res., Welfare Div. v. Elcano, 106 Nev. 449, 452, 794 P.2d 725, 726 (1990).
Admissibility of Expert Testimony
Admissibility Standards: Other
Case/Statutory Law: Higgs v. State, 222 P.3d 648 (Nev. 2010).
Comments: To the extent that Daubert promulgates a flexible approach to the admissibility of expert witness testimony, the Supreme Court of Nevada has held it is persuasive.
Pre-Suit Disclosure of Liability Policy Limits in Third-Party Claims
Duty To Disclose: Yes.
Failure To Disclose A Basis For Bad Faith: Policy limits must be disclosed in the initial discovery disclosure and not before. 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. N.R.C.P. 16.1(a)(1)(D).
N.R.C.P. 16.1(2) provides, “At the written request of the claimant or the attorney of the claimant, copies of all medical reports, records and bills obtained by a written authorization pursuant to subsection 1 must be provided to the claimant or the attorney of the claimant within 30 days after the date they are received by the party, any attorney of the party or the insurer. If the claimant or the attorney of the claimant makes a written request for the medical reports, records and bills, the claimant or the attorney of the claimant shall pay for the reasonable costs of copying the medical reports, records and bills.”
Comments: Up until 2015, N.R.S. § 690B.042 required insurers to disclose their limits to claimants if certain conditions were met. However, the law was repealed by Nevada’s 2015 legislature. In 2019, Nevada passed NRS § 690B.024, which provides that “Within 10 days after receipt of a written authorization pursuant to subsection 1, the insurer who issued [a policy of motor vehicle insurance] shall, upon request, provide the claimant or any attorney representing the claimant with all pertinent facts or provisions of the policy relating to any coverage at issue, including policy limits.” Note: As a result of N.R.C.P. 16.1(2), various insurance companies have stopped asking for medical authorizations during the pre-litigation phase of a claim.
Mixed: It is unlawful to surreptitiously record any private in-person oral communication without the consent of one of the parties to the conversation. Nev. Rev. Stat. § 200.650.
The consent of all parties is required to record or disclose the content of a telephonic communication. Exception: emergency situation where a court order is not possible.
The Nevada Supreme Court held in Lane v. Allstate that an individual must have the consent of all parties in order to lawful record a telephonic communication even if they are a party to said communication. Lane v. Allstate Ins. Co., 114 Nev. 1176, 969 P.2d 938 (1998).
Product Liability Subrogation
Product Liability Law
Statute of Limitations/Repose: 2 years for personal injury and wrongful death. N.R.S. § 11.190(4)(e). Discovery Rule applies.
Liability Standards: Negligence, Strict Liability, Warranty
Fault Allocations: Modified Comparative. N.R.S. § 41-141(5)(a) and (3).
Non-Economic Caps/Limits On Actual Damages: No.
Punitive Y/N and Limits: Yes (Limits).
Heeding Presumption?: No. Rivera v. Philip Morris, Inc., 209 P.3d 271 (Nev. 2009).
Innocent Seller Statute: No.
Joint and Several Liability: Yes. N.R.S. § 41-141.
Available Defenses: Assumption of Risk; Misuse; Alteration; Learned Intermediary; Inherently Unsafe Products; State of the Art; Government Contractor Defense; Presumption; Compliance With Government Standards; Alcohol/Drugs.
Restatement 2nd or 3rd?: Both.
“Matching Regulations” And Laws Affecting Homeowners Property Claims
Condominium/Co-Op Waiver of Subrogation Laws
Associations’ insurance policies must insure each unit owner in regards to the common elements. The insurer also must waive right of subrogation against unit owners and members of their household. N.R.S. § 116B.570.
Damage to Property Without Market Value
Service Value: Plaintiff is entitled to damages based upon the property’s special value to the plaintiff. Countrywide Home Loans, Inc. v. Thitchener, 192 P.3d 243 (Nev. 2008).
Intrinsic Value: When property’s value to the owner exceeds its market value, the owner may be compensated for its special value, which is measured by “factors apart from those entering into exchange value that cause the article to be more desirable to the owner than to others.” Countrywide Home Loans, Inc. v. Thitchener, 192 P.3d 243 (Nev. 2008).
Sentimental Value: Sentimental damages are recoverable. Countrywide Home Loans, Inc. v. Thitchener, 192 P.3d 243 (Nev. 2008).
General Contractor Overhead And Profit Payments In First-Party ACV Property Damage Claims
Payment and Depreciation Of GCOP/Sales Tax: No applicable case law, statutes, administrative rules, or other guidance with regard to the calculation and/or depreciation of GCOP.
It is not uncommon for the lessor to provide fire insurance on leased property. As a matter of sound business practice, the premium to be paid had to be considered in establishing the rental rate. Such premiums would be chargeable against the rent as an overhead or operating expense. Accordingly, the tenant actually paid the premium as part of the monthly rental. Courts consider it an undue hardship to require a tenant to insure against his own negligence, when he is paying, through his rent, for the fire insurance which covers the premises. A fire insurer is not entitled, as subrogee, to bring an action against a tenant to recover for amounts paid to the landlord for fire damage to rental premises caused by the tenant’s negligence in absence of express agreement between the landlord and tenant to the contrary. The landlord and tenant are co-insureds under fire policy. Safeco Ins. Co. v. Capri, 705 P.2d 659, 661 (Nev. 1985). Absent an express provision in the lease establishing the tenant’s liability for loss from negligently started fires, courts find that the premises insurance was obtained for the mutual benefit of both parties and that the tenant stands in the shoes of the insured landlord for the limited purpose of defeating a subrogation claim. In short, they are an “implied co-insured.” Rizzuto v. Morris, 592 P.2d 688 (Wash. App. 1979); Liberty Mutual Fire Ins. Co. v. Auto Spring Sup. Co., 59 Cal.App.3d 860 (1976).
An insurer cannot subrogate against its own insured. Harvey’s Wagon Wheel, Inc. v. MacSween, 606 P.2d 1095 (Nev. 1980). An insurer may not subrogate against a co-insured of its insured. While case law indicates that an insurer also may not subrogate against a “coinsured” of its insured, this is only the case when the very loss which is the subject of the subrogated policy is covered by a policy which names the “coinsured” as such. Lumbermen’s Underwriting All. v. RCR Plumbing, Inc., 969 P.2d 301 (Nev. 1998).
Nevada courts may award restitution to a “victim” when proper, in an amount they determine appropriate. N.R.S. § 176.033(1)(c). Nevada case law, however, has determined that an insurer does not qualify as a “victim” for restitution purposes. Martinez v. State, 115 Nev. 9, 974 P.2d 133 (1999).
Made Whole Doctrine
Until recently, Nevada had not addressed the application of the Made Whole Doctrine. In previous decisions, the court seemed to discount the application of a Made Whole Doctrine in the context of an ERISA subrogation action. Trustee of Hosp. Employees & Restaurant Employees Int’l Union Welfare Fund v. Kirby, 890 F. Supp. 939 (D. Nev. 1995). However, in 2005, the Supreme Court of Nevada declared that the Made Whole Doctrine was a general equitable principle of insurance law that prevented an insurance company from enforcing its subrogation rights before the insured had been fully reimbursed for their losses. Canfora v. Coast Hotels and Casinos, Inc., 121 P.3d 599 (Nev. 2005). However, the court went on to say that if a contract exclusively excludes the Made Whole Doctrine, the doctrine will not apply to limit an insurance company’s subrogation rights. Id.
Medical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Collateral Source Rule: The common law CSR provides that when an injured party receives collateral sources, these payments will not be deducted from the verdict, and evidence of collateral source payments are not allowed for any purpose. Proctor v. Castelleetti, 911 P.2d 853 (Nev. 1996).
Recovery Of medical Expenses Rule:
Private Insurance: Write-downs made by third-party insurers are collateral sources and inadmissible as to the issue of the reasonable value of the medical services. Tri-County Equip. & Leasing v. Klinke, 286 P.3d 593 (Nev. 2012). Another case says that both hospital liens and insurance write-downs are collateral sources inadmissible under the CSR. That language, however, is arguably dicta, and case law regarding insurance write-downs is still evolving. Defendants, therefore, will argue the existence of a hospital lien as a source of potential bias for the medical experts. Khoury v. Seastrand, 377 P.3d 81 (Nev. 2016); Cornell v. Wal-Mart Stores, Inc., 2010 WL 11591395 (D. Nev. 2010).
Medicare/Medicaid: Nevada has not directly addressed the application of the Nevada CSR to Medicare and Medicaid benefits. Until it does, the CSR applies to these payments.
Workers’ Compensation: When workers’ compensation benefits are paid, Nevada has an exception to the CSR that allows the jury to hear evidence that the victim has received workers’ compensation benefits. The jury is instructed to base the award on the full amount of medical expenses, however, because the compensation benefits must be repaid. This is because the jury knows that plaintiff receives workers’ compensation when the injury is work-related, but is usually under the mistaken belief that plaintiff is not required to repay the benefits from the verdict. N.R.S. § 616C.215(10). Write-downs are negotiated between the medical provider and health care provider. Therefore, evidence of the write-downs would lead a jury to infer the existence of a collateral source and shouldn’t be allowed. Tri County Equip & Leasing, LLC v. Klinke, 2011 WL 1620634 (Nev. 2011) (unpublished order).
Employee Leasing Laws
Provided there is a written agreement between the employee leasing company and the client company, as well as meeting several other conditions set forth in the Nevada’s statute, an employee leasing company in compliance with the leasing provisions set forth in the Act is considered the employer for purposes of the Act. N.R.S. § 616B.691.
Hospital Lien Laws
Statute: Nev. Stat. §§ 108.585 to 108.660. Liens of Hospitals.
To perfect a lien in Nevada under § 108.590, the hospital must comply with § 108.605(2) and do the following:
(1) Send notice of intent to file lien under § 108.605(1) and comply with § 108.605(2) if there is health insurance policy.
(2) Record notice of lien in form prescribed by § 108.620 and filed with the county recorder where the hospital is located and the county recorder where the injury was suffered.
(3) Service certified copy of the notice of lien by registered or certified mail on the tortfeasor before any third-party settlement is paid.
(4) Service copy of the notice of lien by registered or certified mail on the third-party insurance carrier for the tortfeasor.
NOTE: § 108.620 provides the form of notice that must be given.
Comments: When a patient claims damages from a third party, the hospital has a lien on any recovery to the extent of the amount due the hospital for reasonable value of the hospitalization rendered before date of any third-party recovery, unless workers’ compensation benefits are paid. § 108.590. No lien is allowed for hospitalization received by a patient after a third-party settlement. § 108.600. Lien does not extend to any sum incurred by the patient as attorneys’ fees, costs, and expenses. § 108.600. If patient has health insurance and hospital has a contractual agreement with that health insurer and wishes to perfect a lien, the hospital must send, within 90 days after discharge, notice of intent to file a lien by registered or certified mail to third-party carrier, if known, and the patient and his attorney. § 108.605. Within 30 days after sending notice of intent, hospital must first attempt to collect from health insurance under § 449A.159. § 108.605(2). If patient receives tort settlement after notice of intent to file a lien is received, he must provide written notice to the hospital of the recovery and the third-party carrier must proceed as if lien is perfected. § 108.605(3). Tortfeasor and third-party carrier liable to hospital for 180 days after settlement if they don’t pay hospital lien. § 108.620. If patient eligible for Medicare, Medicaid, etc., hospital limited to 55% of the charges billed. § 108.655.
OCIP/CCIP Subrogation In Workers’ Compensation Construction Cases
OCIP Law: Section 616A.020(3) provides that the Exclusive Remedy Rule applies to an owner (statutory employer) who provides an OCIP pursuant to § 616B.710, to the extent that that OCIP covers employees of the contractors and subcontractors who are engaged in the construction of the project.
Statutory Employer Law: An owner who hires a contractor to construct improvements to real property and secures compensation for the contractor’s injured employees is deemed to be a statutory employer and entitled to workers’ compensation immunity. N.R.S. § 616B.612. All “subcontractors, independent contractors and the employees of either shall be deemed to be employees of the principal contractor for the purposes of [the NIIA].” N.R.S. § 616A.210(1). This exclusive remedy protection applies even if the owner does not actually pay the benefits. Oliver v. Barrick Goldstrike Mines, 905 P.2d 168 (Nev. 1995); N.R.S. § 616A.020(3).
Comments: Section 616B.603 now provides an exception to the general rule that principal contractors are statutory employers. The owner is not an employer if he enters into a contract with another person or business which is an independent enterprise which is not in the same trade, business, profession, or occupation as the independent contractor. However, this exception does not apply when the principal contractor is licensed pursuant to Chapter 624. Billmayer v. Newmont Gold Co., 963 F. Supp. 938 (D. Nev. 1996).
Recovery Of Increased Workers’ Compensation Premiums By Employer
Recovery For Increased Premiums? Undecided.
Statute/Case Law: No.
Rule Summary: There is no authority or precedent regarding the attempted recovery of damages for increased workers’ compensation insurance premiums by an employer from a third-party tortfeasor.
Which Workers’ Compensation “Benefits” Can Be Subrogated?
There is no precedent or discussion in case law regarding whether nurse case management fees or other allocated costs which may benefit the employer and/or employee can be recovered in subrogation. Section 616C.215 describes a workers’ compensation carrier’s subrogation lien as follows:
(6) The lien provided for pursuant to subsection 1 or 5 includes the total compensation expenditure incurred by the insurer, the uninsured employers’ claim account or a subsequent injury account for the injured employee and his dependents. N.R.S. § 616C.215(6).
Workers’ Compensation Subrogation Waiver Endorsements
Subrogation Statute: N.R.S. § 616C.215
Waiver Allowed? Nothing in the Nevada Workers’ Compensation Act or applicable case law prohibits the use or efficacy of a waiver of subrogation.
Effect Of Waiver Endorsement on Carrier’s Right To Assert A Lien On Claimant’s Recovery: The effect of a waiver of subrogation on the carrier’s rights, including its right to enforce its statutory lien, has not yet been decided.
Other Applicable Law: None.
Statute of Limitations: 2 Years. N.R.S. § 616C.215.
Can Carrier Sue Third Party Directly: Yes.
Right to Intervene: Possibly.
Recovery from UM/UIM Benefits: Employer’s Policy Only.
Subrogation Against Medical Malpractice: Yes.
Subrogation Against Legal Malpractice: Undecided.
Recovery Allocation/Equitable Limitations: None.
Employer Contribution/Negligence: No.
Attorney’s Fees/Costs: Breen Formula
Future Credit: Yes.
Auto No-Fault: No.
Workers’ Compensation Claims by Undocumented Employees
Statute: The statute expressly includes “aliens” and includes their status as “legal” and “illegal.” Nev. Rev. Stat. Ann. § 616A.105.
Case Law: Tarango v. State industrial Ins. Sys., 25 P.3d 175 (Nev. 2001).
Comments/Explanation/Other: *Tarango held that vocational benefits were covered due to the fact that the employee could get employment outside of the U.S.