Vegas Personal Injury Law Blog

Recently, I have had a number clients who have been involved in auto accidents where they have been partially at fault for an accident and have not been treated fairly by their own insurance company.

NRS 687B.385 states: “An insurer shall not cancel, refuse to renew, or increase the premium for renewal of a policy of motor vehicle insurance covering private passenger cars of commercial vehicles as a result of any claims made under the policy with respect to which the insured was not at fault.”

What is an “at-fault accident”?

This statute was interpreted by the Nevada Supreme Court in the case of State Division of Ins. vs. State Farm Mut. Auto. Ins. Co., 116 Nev. 290, 995 P.2d 482(2000).  This case interpreted NRS NRS 687B.385 to include accidents in which the insured was 50% at fault or less.  This case put NRS 687B.385 in conformance with NRS 41.141, Nevada’s comparative negligence statute.  This decision means that an insured is at fault for an accident when his liability for a two-vehicle  accident is exactly 50/50, even though he can still recover 50% of his damages from the other driver under NRS 41.141.

Therefore, an assessment of 50% liability (or more) by your insurance company for an accident as an at-fault accident and  will probably result in an increase in your auto insurance rates.  If you are involved in another at-fault accident, your policy will probably be cancelled. Let me give you a real life example.

A vehicle making a lefthand turn going southbound to eastbound at an intersection enters a very wide lane, and stays to the left hand side of that lane.  Another vehicle, at about the same time, traveling northbound makes a right hand turn and enters the same lane but stays to the right hand side of the same lane.  The driver of the vehicle on the right then comes face to face with roadway signs indicating that the roadway lane is narrowing and she must merge to the left.  She does so and collides with the other vehicle traveling on the left hand side of the lane.

Both drivers are insured by the same insurance company. The vehicle on the right was forced to merge left because the lane narrowed into a single lane width. Roadside hazard/warning signs forced the driver on the right to merge to her left. The vehicle on the left was already on the left side of the roadway and did not have to change it’s position within the lane to enter the narrowed portion of the lane.

Anyone reading this fact pattern would automatically assume that the driver on the right hand side of the travel lane is more at fault for this accident than the driver on the left.  However, the insurance carrier, who was the same company for both parties, determined liability at 50/50 and assessed both drivers with an at-fault accident and raised both drivers’ insurance rates.

The insurance company’s assessment of 50/50 liability for this accident is unrealistic because:

1. The driver on the left had no duty to anticipate the fact that the  driver on the right was going to swerve into her vehicle;
2. If the vehicle on the right did use her left hand turn signal, the vehicle on the left, could not see it because the vehicle on the right was not in front of her vehicle; and
3. The accident occurred eighty-six (86) feet east of the intersection where both vehicles entered the same roadway.

According to Nevada case law the adverse effect of a 50/50 assessment of liability will result in the increase of both drivers’ insurance rates for an at-fault accident.  In the event that there was  an assessment of 51/49 liability in favor of the driver on the left and against the driver on the right, the insurance company could not raise the rates for the driver on the left for an at fault accident.

Obviously, there is no exact science to assessment liability for any accident, however based on the facts and circumstances of this accident, a 50/50 liability assessment is completely unrealistic.

So, why did the insurance company raise the rates of both drivers? The only reason is for an economic benefit. Raising the rates of both drivers results in the insurance company recouping its losses for this accident more quickly from the increased insurance premiums from both drivers, as compared to raising the rates for only one driver. And, the insurance company only has to pay 50% of each party’s property damage, thus forcing the insured drivers to pay their own collision deductibles in order to have their vehicles repaired.

After the insurance company was asked to review the facts and circumstances surrounding this accident and to change it’s liability decision by one percent in favor of the vehicle on the left, they refused.

Now, if in the future, liability can be determined by a trier of fact in favor of the vehicle on the left, will the insurance company return the driver on the left’s increased premiums and collision deductible?  Did the insurance company act in bad faith concerning their liability apportionment decision?

Therefore, if you are in an at-fault accident where your insurance company assesses liability against you at 50/50 (or more), you will be assessed with an at fault accident. You should also  be aware of the adverse consequences of increased rates and cancellation of your policy.  You should also consult an attorney for legal advice concerning the insurance company’s decision.

If you or your children are involved with a fender bender accident where you are at fault, or partially at-fault, and  nobody is hurt, and law enforcement isn’t involved;  you should consider working out the property damage with the other driver to avoid increased insurance rates and/or cancellation of your policy.

Are there automobile accidents where auto insurance coverages do not apply?  The answer to that question is, unfortunately, yes.

On December 30, 2004, a young man was driving his pickup truck westbound on Hacienda.  The adverse driver, prior to the accident, was driving his pickup truck northbound in the southbound lanes on Rainbow (on the wrong side of the road), ran a red light at a very high rate of speed and collided with the driver’s side of the young man’s vehicle.  The young man died almost instantly.  The collision between the adverse vehicle and the decedent’s vehicle prevented the adverse vehicle from colliding head-on with the other vehicles that were stopped in the southbound lanes of Rainbow for a stop light.

The adverse driver claims to have experienced a seizure just prior to the accident.

The traffic accident report approximates the adverse driver’s speed at approximately sixty-nine to seventy-three (69-73) miles per hour.

The adverse driver was taken to University Medical Center after the accident. His Dilantin level was below therapeutic range.

In the litigation that followed this fatal accident, the Defendants (the adverse driver and his employer) asserted the affirmative defense of “sudden medical emergency” or “blackout”.

The sudden medical emergency defense was established by the Supreme Court of Ohio in a case dating back to 1956, Lehman v.  Haynam, 133 N.E 2d 97 (1956). The Ohio Supreme Court stated, “where the driver of an automobile is suddenly stricken by a period of unconsciousness which he had no reason to anticipate and which renders it impossible for him to control the car he is driving, he is not chargeable with negligence as to such lack of control.”

In that case, the Defendants Affirmative Defense stated “The subject accident and Plaintiffs’ damages, if any, were caused by an unavoidable sudden emergency and not by Defendants’ negligence or other actionable conduct, the existence of which is denied.”

The Ohio Supreme Court reviewed the sudden medical emergency defense in the case of Roman v. State of Gobbo, 99 Ohio St. 3d 260, (2003). This involved an accident where the Defendant Walter Roman suffered an incapacitating heart attack prior to the accident. In that accident, the Roman vehicle caused a multiple vehicle car accident resulting in the death of Nino Gobbo and his wife Frances.

The “sudden medical emergency” defense has not been adopted by the Nevada Supreme Court.  Public policy in Nevada dictates that it should not be adopted in the state of Nevada.  However, in several cases filed in our District Court, the Defendants have raised this defense.

The rational behind the adoption of the sudden medical emergency defense is based upon the premise that to find a Defendant liable for the effects of an unforeseen medical emergency that causes sudden unconsciousness is to impose strict liability for the violation of traffic statutes.

To that extent the doctrine may be logical, however in equating no negligence with no liability the doctrine is not sensible.

In the Roman case, the decedents and injured parties were not negligent either. They did nothing wrong except to be in the Defendant’s path when they died or were injured. Yet these individuals bear the harsh consequences of the sudden medical emergency doctrine.

Because of this defense they could not recover damages from the person who caused them death and destruction, even though they were completely innocent victims of a motor vehicle accident. They also can not recover from their uninsured motorist coverage, since this coverage is fault based. This also does not make sense.  See my prior post  on Uninsured Motorist Underinsurance Coverage.

The prohibition against driving left of center, speeding and driving through a red light are some of our most important traffic rules established for the protection of the public.  Nobody would be willing to drive on our roadways without the expectation that others will comply with these traffic laws.  Yet, even these laws are trumped by the Sudden Medical Emergency Doctrine. The questions is, “Why?”.

No valid public policy is served by applying the “Sudden Medical Emergency Doctrine.”  The doctrine prevents accident victims from pursuing damages from the person who caused their death and injury. The doctrine prevents accident victims from collecting uninsured motorist coverage on their own automobile insurance policies, which they purchased to protect themselves and their families from just such a catastrophe.

The end result of the adoption of the sudden medical emergency defense is that accident victims involved in these unfortunate accidents, regardless of the degree of their injuries, would not be able to collect their damages from any liability insurance or from their own uninsured motorist coverage. This makes absolutely no sense. The “Sudden Medical Emergency Doctrine” is not logical and should not be accepted.

A better rule would be to allow innocent victims, like the Plaintiffs in the first example case, to pursue damages against the auto insurance coverage of the person who’s sudden medical emergency resulted in a violation of traffic safety laws which were the proximate causes of death or injury.

Nevada Public Policy concerning epilepsy is expressed by our traffic laws.

In the state of Nevada one of the qualifications to drive a commercial motor vehicle and obtain a Commercial Drivers License is that the applicant does not have an established medical history or clinical diagnoses of epilepsy or any other condition which is likely to cause loss of consciousness or any loss of ability to control a motor vehicle. See, NRS 391.41 (d)(8).

This statute states that “epilepsy is a chronic functional disease characterized by seizures or episodes that occur without warning, resulting in loss of voluntary control which may lead to loss of consciousness and/or seizures. Therefore, the following drivers can not be qualified:

(1) A driver who had a medical history of epilepsy;

(2) A driver who has a current clinical diagnoses of epilepsy; or,

(3) A driver who is taking anti-seizure medication.

The sudden medical emergency defense is contrary to Nevada’s financial responsibility laws.

NRS 484.185 states as follows:

Every owner of a motor vehicle which is registered or required to be registered in this state shall continuously provide, while the motor vehicle is present or registered in this state, insurance:

1. In the amount of $15,000.00 for bodily injury of one person in any accident;

2. Subject to the limit for one person in the amount of $30,000.00 for bodily injury to or death of two or more persons in any one accident;

3. In the amount of $10,000.00 for injury to or destruction of property of others in any one accident, for the payment of tort liabilities arising from the maintenance or use of the motor vehicle. (emphasis added)

The purpose of this section is to ensure that motor vehicles carry continuous liability insurance. State, Dep’t of Motor Vehicles v. Lawlor, 101 Nev 616, 707 P 2d 1140 (1985).

The sudden medical emergency defense creates an exemption from Nevada’s financial responsibility law. This is a windfall to the liability insurance carriers of the person claiming “sudden medical emergency.”

The purpose of the motor vehicle financial responsibility law is to guarantee protection to one who is injured by an automobile not covered by liability insurance.  A.G.O. 250 (3-27-1957).

If the “sudden medical emergency” defense is adopted by our State Legislature or by Nevada Case law, the burden of financial responsibility will fall upon the deceased or injured individuals and their families because they will not be able to rely upon their own uninsured motorist coverage to recover their damages.  Innocent victims would then have to rely on other collateral sources for payment of their lost earnings, medical bills, funeral expenses, etc. The financial burden of the sudden medical emergency defense then fall upon first party health insurance companies.  Since this defense extinguishes fault (negligence), it extinguishes the right of subrogation.  Subrogation is a fault-based legal concept which allows insurance companies paying medical bills or property damage bills to recover their payments from the third-party tortfeasor.

Nevada law is replete with cases protecting the rights of injured parties, See, e.g, State Farm v. Hinkle, 87 Nev. 478, 488 P.2d 1151 (1971) (Restriction on uninsured motorist coverage for a minor injured while riding a motorcycle by an exclusionary provision violated express public policy); Buck v. Greyhound Lines, Inc., 105 Nev. 756, 783 P.2d 437 (1989) (Affirming joint and several liability for negligence-free passengers protecting the rights of innocent victims of accidents); Rockwell v. Sun Harbor Budget Suites, 112 Nev. 1217, 925 P.2d 1175 (1996) (Non-deligible duty to provide responsible third-party security personnel); Allison v. Merck and Co., Inc., 110 Nev. 762, 878 P.2d 948 (1994) (Public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those that market them and be treated as a cost of production against which liability insurance can be obtained).

Assuming that no first party insurance is available in situations where the sudden medical emergency defense is asserted, then the burden of financial responsibility falls upon the general public. Our tax dollars in the form of public assistance will pay for medical care and living expenses of “sudden medical emergency” victims.

Whatdoyado to prevent the “Sudden Medical Emergency” defense from being adopted in Nevada?  Speak to your Legislators.

Obviously, from the get go of a personal injury claim, it is very important to determine its potential value. An even more important question is, how much can I recover on my personal injury auto accident claim? The value and the potential recovery of your personal injury claim are not the same. The first question that must be answered is, what is the maximum potential recovery of my personal injury claim?

To determine what the maximum potential recovery of your personal injury claim, you must first know how much insurance is available. The first thing to determine is how much liability insurance does the adverse driver have? In the State of Nevada, this can be determined by the use of NRS 690B.042, which simply states that an adverse carrier must release proof of liability insurance upon receipt of a medical authorization and a list of your health care providers. Sometimes, we can get a general idea of how much insurance is available by taking a look at the adverse driver’s insurance company. Generally speaking, major insurance carriers like State Farm, Farmers, and Allstate, are companies that will write liability policies above the statutory minimum. The minimum liability insurance in the State of Nevada is $15,000.00 per person and $30,000.00 per accident. Other company’s only write minimum policies, because these company’s are not as financially solvent as the major carriers. These marginal insurance companies try to limit their exposure by only writing minimum liability coverage policies.

Once you have determined how much liability insurance the adverse driver has, the next thing to do is to look for additional liability insurance policies that may be applicable to your personal injury claim. In the event that you have an adverse driver who is not the owner of the vehicle, the owner’s liability coverage will provide primary liability coverage, and the driver’s liability insurance policy will provide secondary liability coverage. We also know that commercial policies will generally carry higher limits that personal auto policies. In the event where you have an employee driving his employer’s vehicle, this may be a case where there are two liability insurance policies available for your personal injury claim.

When you determine that the adverse insurance policy is at least a $100,000.00/$300,000.00 policy, this is a sign that there may be an umbrella policy available that can provide additional liability coverage. An umbrella policy generally provides excess liability coverage in the amount of $1,000,000.00. In cases involving large businesses, their coverage is generally layered, so there may be one company that writes the initial liability policy and other companies that write layered excess policies.

After your attorney has determined how much liability coverage is available on your claim, the next thing to do is to look at your own insurance coverages. In the event that you have med pay coverage on your Nevada auto policy, you do not pay back your insurance company for the medical bills that they pay from any recovery that you receive from the adverse party. Med pay will generally increase your net recovery. However, off-sets for med pay coverage will apply under circumstances where you make an uninsured motorist claim or an underinsurance claim with your own company. For additional information on this subject, please refer to my blawgs on auto insurance coverage.

After you have determined all of the available insurance on your personal injury claim, you will be able to determine your maximum potential gross recovery. In rare cases, the person who caused the personal injury may have the ability to pay beyond any insurance coverage he or she may have. However, this should never be counted on as a source of compensation.

The reality of personal injury claims is that many of them have a value in excess of applicable liability coverages and underinsurance coverage.

Can you get more from the adverse insurance company rather than the adverse liability limits? In the event that any insurance company receives an offer to settle your claim within it’s liability policy limits and they refuse to settle your claim within their liability limits, and you obtain a judgment against the adverse carrier party in excess of his insurance coverage, you can attempt to receive an assignment from the adverse party of his bad faith cause of action against his own insurance company. This will allow you to file suit against the adverse in an attempt to make the insurance company liable for the excess judgment. This does not happen very often, and this is the exception rather than the rule on personal injury claims.

After you determine the maximum potential gross recovery for your personal injury claim, the next step is to determine how much your personal injury case is worth. This is difficult to determine at the beginning of a personal injury claim. However, there are some basic rules that apply.

The first general rule is that the greater the amount of property damage to the vehicles involved in an automobile accident, the greater the insurance companies perceive the potential is injury and, therefore, for a higher recovery. Insurance companies do not like to take cases to trial where the property damage to the involved vehicles is devastating.

With the application of new technology to the bumper systems of vehicles, a person can be involved in an injury accident without visible property damage to the involved vehicles. Insurance companies hate these cases. Insurance companies refer to them as “minimal impact soft tissue cases” or “low impact cases.” In the event that you have a low impact claim, the insurance company will most likely only make a minimal offer to settle your claim. In the event that you do not have med pay coverage to cover your bills, your case will generally end up in litigation. Juries may not be sympathetic to individuals who claim to be injured in low impact cases. Defense attorneys try to convince the jury that injuries are not to be believed or that the motivation in bringing the lawsuit is for secondary gain.

For example, if you are involved in a low impact accident and you have a spinal surgery, the insurance company will hire doctors, engineers and biomechanical experts who are willing to testify that the accident did not create an injury potential.

Another important factor increasing the value of your personal injury claim is egregious behavior on the part of the adverse driver. Was he drunk? Was he using drugs? Was he engaging in a speed contest or reckless driving at the time of your accident? Does he have a felony record? Egregious conduct on the part of the adverse driver can raise the value of your claim. Juries don’t like these Defendants.

Your pre-existing injury and prior treatment, if any, can effect the value of your claim. If you have no pre-existing conditions related to your injury and you had no prior treatment for a similar injury, your claim will be worth more. If you are claiming a neck or back injury and you have had prior treatment for conditions involving your neck and back, or if you had prior claims involving injury to these body parts, an insurance company will offer less money to settle these claims.

As previously mentioned in my insurance blawgs, all accident claims are indexed on a nationwide computer database that is used by most insurance companies. Once an adverse carrier receives your date of birth and/or your Social Security number, they can obtain information on your prior claims.

Auto accidents with no comparative fault are worth more. If you were involved in an auto accident where comparative fault on your part is involved, this will also decrease the value of your claim. Insurance company’s will fight claims involving comparative negligence. If your comparative negligence for an accident was minor, such as 10%, the adverse insurance company will try to magnify that comparative negligence in their favor, and this will drastically reduce the value of your claim. In Nevada, If your comparative negligence is 51% or greater, you cannot recover from the adverse driver.

You can usually determine how much contempt an insurance company and their computers have for your auto accident personal injury claim by the amount of their initial offer to settle your claim. If you have medical bills that are in excess of $15,000.00, and the insurance company makes an initial offer of $1,000.00 to settle your claim, you will generally be involved in litigation in order to resolve your claim.

Many people think that the more medical bills they have on a personal injury case, the higher their recovery will be. This is not always true. In the event that you have $15,000.00 of physical therapy or chiropractic treatment, without a referral to an M.D., and without a positive diagnostic test, the treatment will generally be considered excessive by the insurance company. Remember, the adverse driver is only responsible for medical treatment that is both medically necessary and not excessive. Therefore, your claim has more value if you have further substantiation of your injuries through diagnostic testing and evaluation by a medical doctor. Keep in mind that if you have a high medical bills relating to an auto accident claim and your treatment is on a lien basis, you will still be responsible for your medical bills in the event that you lose your case.

There are additional factors which have a tendency to increase the value of your personal injury claim.

Insurance company’s do not like visible injury, or injuries that can be clearly depicted by diagnostic tests such as x-rays. In the event that you have black and blue marks, swelling, open wounds, scarring, broken bones, deformity, etc., resulting from an auto accident, your case is more likely to settle. Claimed injuries that have no visual component to them, are generally worth less. Visible injuries are very easy for juries to understand. If they are present, jurors have a tendency to assess more value to visible injuries, than non-visible injuries.

If you have verifiable wage loss from an accident, this will give your claim more value. If you are unable to work, this usually validates a more serious injury.
Permanent physical disability, such as the loss of function of a part of your body, or disfigurement will add value to your claim. A permanent partial disability evaluation can add to the value of your claim.

Loss of family, social, and educational opportunities such as missing school, missing work related training, inability to go on a vacation, or to attend a recreational or special events, will add value to your claim.

In the event that you have emotional damages such as stress, embarrassment, depression, or strains on family relationships, inability to take care of your dependents, inability to take care of a young child, or interference with sexual relations can add value to your claim.

Medical expenses are called “special damages” or “specials”. General damages are for pain, suffering, inconvenience, and loss of opportunities.

Most people think that personal injury auto accident claims are worth some multiple of their medical bills. In other words, if you have $5,000.00 in medical bills, that you multiply that figure by 3 to get the value of your claim. Insurance company’s do not like these multiplier arguments, because increased medical expenses will result in a higher value of your claim.

Wage loss is generally compensated dollar for dollar. In the event that you use a sick day for paid time off as a result of your injuries or treatment, or if you lost wages as a result of your injuries, this is generally compensable on a dollar for dollar basis. No multipliers are used to evaluate lost income damages.
Most people think that our civil justice system will award them adequate compensation for their auto accident related losses. As a personal injury attorney, I have seen circumstances where juries award very little compensation to an auto accident victim. On the other hand, I have also seen situations where the jury will award much more than what a claim is actually worth, especially in situations involving egregious conduct on the part of the Defendant.

I have been told that to a certain extent, the reputation of a personal injury attorney goes into the formula for determining the value of a claim. The peer rating of your attorney or his success in trying personal injury cases, can add value to your claim. However, sometimes good attorney’s will actually lose cases, and bad attorney’s will sometimes win bad cases.

If you have an injury that will cause you to have pain and suffering in the future and cause you to incur future medical bills, this will add value to your claim. (Caveat: insurance companies don’t like future damages and have a tendency to downplay them.”)

As you can see, calculating the total amount of the value of your personal injury auto accident claim is not easy. Juries struggle with placing a price on things that do not normally carry a monetary value.

Consider these things in your decision to litigate your personal injury claim.
Some insurance adjuster’s will make a commission on your claim, in the event that they settle your claim for less than the authority provided to them by the insurance company. Therefore, adverse adjusters under certain circumstances may have a monetary stake in your claim.

Unfortunately, it is a very expensive and time consuming to take a personal injury claim to trial. Most medical experts will charge $5,000.00 to $10,000.00 for their trial testimony. You may need several experts or treating physicians to testify on your behalf at the time of trial.

In my experience, I find that in personal injury cases, you will either end up with juries that are sympathetic to an injured individual, or they will not be sympathetic. As soon as a juror during voir dire(questioning) mentions that he has had a claim for injury, he will probably be stricken by the defense. Pro-Plaintiff prospective jurors are usually more honest and forthcoming during questioning than jurors that are defense oriented. Defense oriented jurors generally have some hidden agenda or prejudicial feeling toward injured parties that may or may not be discovered during the voir dire questioning process.

Most personal injury accident claims settle before litigation. In order for a personal injury attorney to successfully settle a personal injury claim, it is sometimes necessary for the attorney, the health care providers, and health insurance carriers to compromise their financial positions on a personal injury claim in order to provide adequate compensation to the injured party.

The information provided in this blawg can assist you in determining the worth of your personal injury claim. It can also assist you in making the critical decision to either settle or litigate your personal injury claim.