Archive for the ‘personal injury’ Category

Nevada Wrongful Death Cases – What Do They Involve?

When I was a rookie attorney, I handled my first wrongful death case. That case involved an engine part that came off a moving car and penetrated the windshield of a vehicle approaching in the opposite direction and hit a front seat passenger in the head killing her instantly.

Initially I had to do a lot of research to be able to understand what was involved with a wrongful death suit. After having initiated several of these cases, I can now state that wrongful death cases are not much different than a normal liability injury lawsuit with a few procedural exceptions.


Heirs and personal representatives can file a wrongful death lawsuit. An “heir” is anyone that can inherit from the decedent, if the decedent died without a will. This often includes the decedent’s surviving spouse or domestic partner, children, parents or brothers and sisters of the decedent. The right to file a wrongful death lawsuit is controlled by the laws of intestate succession NRS 134.030-NRS 134.210. For example, if there is a surviving spouse and children then NRS 134.040 would apply.

NRS 134.040 Surviving spouse and issue

1.If the decedent leaves a surviving spouse and only one child, or the lawful issue of one child, the estate goes one-half to the surviving spouse and one-half to the child or the issue of the child.

2.If the decedent leaves a surviving spouse and more than one child living, or a child and the lawful issue of one or more deceased children, the estate goes one-third to the surviving spouse and the remainder in equal shares to the children and the lawful issue of any deceased child by right of representation.

People who cannot file wrongful death suits are fiances, foster children, unadopted step children and unmarried partners, even if they are beneficiaries under the decedent’s will.


Every person has the duty imposed by case law to abstain from injuring another person or his property.

A wrongful death case can be based upon: intentional conduct, negligence (not intentional conduct) or strict liability for ultra hazardous activities or defective products which cause a person’s death.

Therefore, a wrongful death case is a liability case that results in the death of the injured person.

Nevada’s has a wrongful death statute states as follows:

NRS 41.085 Heirs and Person representatives may maintain action.

1. As used in this section, “heir” means a person who, under the laws of this State, would be entitled to succeed to the separate property of the decedent if the decedent had died intestate. The term does not include a person wo is deemed to be a killer of the decedent pursuant to chapter 41B of NRS, and such a person shall be deemed to have predeceased the decedent as set forth in NRS 41B.330.

2. When the death of any person, whether or not a minor, is caused by the wrongful act or neglect of another, the heirs of the decedent and the personal representatives of the decedent may each maintain an action for damages against the person who caused the death, or if the wrongdoer is dead, against the wrongdoer’s personal representatives, whether the wrongdoer died before or after the death of the person injured by the wrongdoer. If any other person is responsible for the wrongful act or neglect, or if the wrongdoer is employed by another person who is responsible for the wrongdoer’s conduct, the action may be maintained against that other person, or if the other person is dead, against the other person’s personal representatives.

3. An action brought by the heirs of the decedent pursuant to subsection 2 and the cause of action of that decedent brought or maintained by the decedent’s personal representatives which arose out of the same wrongful act or neglect may be joined.

4. The heirs may prove their respective damages in the action brought pursuant to subsection 2 and the court or jury may award each person pecuniary damages for the person’s grief or sorrow, loss of probable support, companionship, society, comfort and consortium, and damages for pain, suffering or disfigurement of the decedent. The proceeds of any judgment for damages awarded under this subsection are not liable for any debt of the decedent.

5. The damages recoverable by the personal representatives of a decedent on behalf of the decedent’s estate include:

(a) Any special damages, such as medical expenses, which the decedent incurred or sustained before the decedent’s death, and funeral expenses; and

(b) Any penalties, including, but not limited to, exemplary or punitive damages, that the decedent would have recovered if the decedent had lived, bu do not include damages for pain, suffering or disfigurement of the decedent. The proceeds of any judgment for damages awarded under this subsection are liable for the debts of the decedent unless exempted by law.

The Nevada legislature passed our wrongful death statute to compensate immediate family members for specific losses resulting from the death of a close relative and to provide financial support to widows and orphans of people killed by a wrongdoer’s actions.

Various statutes of limitation may apply to wrongful death claims. Generally, if the case is not filed within two (2) years of the date of death the plaintiffs will lose the right to file an action.


An individual’s financial compensation for wrongful death can include:

  • Grief and sorrow;
  • Loss of probable support;
  • Loss of companionship, society, comfort and consortium; and
  • Pain suffering and disfigurement of the decedent.

The decedent’s estate can recover for:

  • Decedent’s medical expenses;
  • Funeral expenses; and
  • Punitive damages – for the egregious conduct of the defendant causing the decedent’s death.


1. Obtain copies of all official reports and photographic evidence related to the accident.

2. If liability is not very clear, hire necessary experts to evaluate the liability causes of action (e.g. tire blow out case – hire an accident reconstruction expert and a tire expert).

3. In the event that no formal probate is required on the decedent’s estate, appoint a Special Administrator for the Decedent Estate and publish a Notices to Creditors as required by probate law.

4. Obtain any copies of the decedent’s medical bills and records and, if necessary, and hire a medical expert who can render opinions that the decedent’s cause of death was caused by the accident.

5. Hire an economist to render opinions on the value of claims for probable support and the value of non-economic damages for grief, sorrow, etc.

6. Submit a demand for settlement to any applicable liability insurance carrier.

7. If the case doesn’t settle, file and serve a wrongful death suit within the applicable statute of limitations.

8. If the case settles or goes to judgment and the decedent’s estate receives compensation, go back to probate and follow the required procedures to close out the decedent’s estate.


As you can see from this blog, wrongful death cases can be very expensive and time consuming. What needs to be done at the beginning of these cases is to determine how much insurance coverage is available to cover damages. Sometimes there may be multiple claimants (with each retaining separate counsel) when the decedent has a large family.

When liability insurance coverage is high, then the advance of expenses by the attorney may be justified. However, when the adverse party has limited coverage and limited assets, the decision must be made to accept or reject the minimum liability limits and pursue the individual or entity in litigation in an attempt to obtain judgment against the adverse party’s assets. There is nothing that prevents the adverse party or entity to file bankruptcy in an effort to extinguish any claim or judgment against them.
Sometimes on auto accident wrongful death cases we can accept minimum auto insurance liability limits, so that we can pursue first party coverages such as underinsured motorists coverages to provide further compensation to our clients.

The reality of wrongful death claims is that in many of these cases there is insufficient insurance to fully compensate the heirs and the decedent’s estate for their damages.

Remember that criminal charges against the adverse party causing the wrongful death are separate from civil actions for wrongful death. O.J. Simpson was acquitted of murder charges for the death of his wife Nicole Brown because the standard of proof in criminal cases is beyond a reasonable doubt. But, Nicole Brown’s family prevailed in their civil suit against Simpson where the standard of proof was the preponderance of evidence, a much lower standard.

Hopefully, this blog provided you with a better understanding of what is involved with a wrongful death case in Nevada, in the event that you have the misfortune to be directly affected by one.

Las Vegas Metropolitan Police Department Will Not Respond To Non-Injury Fender Benders

The Las Vegas Metropolitan  Police Department announced Monday, February 24, 2014, that beginning March 3, 2014,officers will no longer be responding to minor non-injury fender bender car accidents.

Metro Police says officers are being stretched too thin, trying to get to these types of crashes.  According to Metro Police, an average of 250 man-hours per week is dedicated to these types of wrecks.

Officers will continue to respond to injury accidents and hit-and-run incidents.  They will also respond when a driver in a wreck refuses to exchange insurance information.

Almost everyone knows that fender bender accidents do produce injuries.  The problem with this new policy is that many spinal musculoskeletal injuries do not manifest their symptoms until 24 to 48 hours after involvement in a traumatic event.  Often these musculoskeletal spinal injuries involve nerve root irritation or spinal disc involvement as a pain generator and lead to expensive treatment and diagnostics.  Some people become chronic from these injuries.  This new Metro policy degrades the injury producing potential of fender bender accidents.  Although the police reports and accompanying citations issued by Metro is not 100% conclusive to insurance companies in confirming liability for an accident, they go a long way in resolving an insurance company’s determination of the liability aspect of a claim, so that property damage claims can be resolved in a expeditious manner.  The new Metro policy will mean that accidents investigated by insurance adjusters will take longer.  Accident victims whose vehicles are dangerous to drive, are illegal to drive, or are non-driveable will be either forced to drive their unsafe, illegal and/or damaged vehicles or be without transportation in cases where victims do not carry their own rental coverage or cannot afford to pay their deductible to have their care repaired through their own insurance.

So who makes the decision that the accident is a “non-injury fender bender?”  How will Metro decide if an accident is an injury producing accident?  For Metro to respond to an accident, does a victim need to be transported from the accident scene to the hospital, thus incurring medical bills for the transport, hospital, ER doctor and radiologist?  The bills for emergent care can average at least $3,000 to $5,000.

The number one reason that most residents of Las Vegas get involved with Metro is their involvement in a motor vehicle accident.  So, if it now takes 250 hours a week to investigate all minor traffic accidents, that doesn’t seem like a lot of time and manpower to devote to traffic accident investigation.

If you have one of these non-investigated fender bender accidents, the adverse insurance company will most likely deny the accident injury claim because there is no traffic accident report.

If injuries arise from these accidents and these cases go to trial, a jury will probably be influenced by the fact that the accident wasn’t investigated by the police and impliedly reduce the significance of the accident.

Accident victims will need to hire attorneys to initiate more litigation to resolve these claims.  Under this new policy, Metro will lose revenue because traffic citations will not be issued to the at-fault drivers.  Even minor traffic violations now have fines in the $200 to $500 range.  If it takes an officer  two (2) hours to investigate an accident, the citations issued are compensation back to the City for the use of the officer’s time.

Because of the current economy, a great percentage of drivers on our roads have no insurance or they have expired or lapsed insurance.  The fines on these “no insurance” tickets are high.  In order to reduce the ticket from a fine above $1,000.00, the uninsured driver must obtain insurance after the fact.  This makes uninsured drivers obtain insurance which is a benefit to everyone.

Metro charges $10.00 for a copy of a traffic accident report.  The two insurance companies will order one and the drivers and injured passengers usually pick one up.  Certainly, the attorney representing the injured party has to order one.  This is additional revenue to the City.

If other cities are not investigating minor accidents, this should not be the standard in Las Vegas.  The general rule is that if the accident is not your fault then you want the police to investigate.  If the accident is your fault, don’t involve the police, if that is possible.

I know that there are a certain percentage of motor vehicle accidents where the parties decide to exchange information and don’t call Metro.  In these cases there is no ability to take written statements and document the facts of how each party describes the accident at the scene, when their  memory of the events is at it’s freshest.

Let’s talk about safety.  When there is a car accident out on the street traffic will still be  flowing.  Of course, you don’t want to move the vehicles until information is gathered and photographs are taken.  This creates a dangerous situation because law enforcement is not there at the scene to direct traffic.

Let’s talk about time.  Now, on most uninvestigated accidents, the parties are required by state law to file a station report of accident at a Metro substation or a SR1 form with the Department of Motor Vehicles.  This takes time.  Your time should be as valuable as traffic officer’s time.

It is likely that on uninvestigated accidents that there will be two (2) divergent reports of the accident after a time lapse which occurs when the drivers involved file their own reports.  It is a crime to give a false statement to a police officer, so having an officer at the scene promotes truthful reporting by the involved parties.  These accidents aren’t going to be reported accurately, and there is no way to reduce bias in self-reporting an accident unless an officer is present.

How will the new policy reduce fatal accidents?  All of this according to Metro is supposed to allow police to proactively enforce traffic laws in hopes of bringing down the number of fatal crashes.  However, if you are ticketed for an accident, this should cause the sensible person to reevaluate their driving habits so that the distraction (accidents are always caused by some type of distraction) that cased the instant accident does not cause another more serious accident.

How will the new policy reduce fatal accidents?  This new policy by Metro is bad for everyone.  Previously, Metro adopted the policy that it does not respond to motor vehicle accidents that occur on private property.  That policy makes those property damage claims and/or injury claims much more difficult.  I know that Metro’s budget has experienced cuts because of current economic conditions.  However, the investigation of minor property damage traffic accidents should not be eliminated.  Many criminals are taken off the streets because of minor accidents.  They may have bench warrants for serious crimes, suspended or revoked driver’s licenses, or they may be fugitives from justice skipping bail.  There may be illegal contraband in vehicles that can be seized.  If one party to an accident was drinking before an accident, then the investigation will take that driver off the street so that he can’t cause another accident.

Obviously, Metro has brought attention to their budget cuts by adopting this new policy.  I don’t see how this new policy promotes safety and prevents additional accidents, because when people causing accidents know the police won’t be involved, they are most likely to leave the scene or be inclined to give incomplete or false information to the victim.

Did you know Metro no longer investigates house burglaries?  The victim must fill out his own report.  What service will be cut next?

Low Property Damage Motor Vehicle Accidents- Why Are People Injured In These Accidents?

Anybody that tells you that people cannot be  injured in low property damage-bumper kiss type accidents is presenting a generic and biased point of view.

Human logic has a tendency to equate the severity of auto accident property damage to the  severity of injury potential produced by these accidents. This is a common misunderstanding of intuitive reasoning.

Most jurors have this bias, however they still tell us during voir dire that they can be fair and impartial jurors.

Just about everyone that has been driving long enough has rear-ended someone. It isn’t a pleasant experience to have a claim brought against you for a minor property damage car accident for which you were at fault. Personal integrity is often compromised when the person who caused the accident fails to take responsibility for their negligence. They take the position that,  Yes, I rear ended him but he didn’t get hurt.

Logically, you can’t say that neck and back injuries that develop within 24 hours after a low property damage accident have no causal connection to the accident that preceded them.

Insurance companies take the advantage of this intuitive misunderstanding in defending these cases. They use biomechanical experts, who make a good living expressing opinions that low property damage equates to no injury potential despite their lack of medical training.

If that proposition is true, then there should be a direct correlation between the accident-related  property damage and the severity of injuries sustained by the occupants of a vehicle. However, some people walk away unscathed from a motor vehicle accident where their vehicle is totaled while others are injured in accidents with low property damage.  So there is no direct correlation between property damage and injury potential.

Some people do walk away from minor property damage rear-end car accidents without injury. In my experience, however, many are legitimately injured, and some never recover from their injuries.

Do we fully understand the connection between low property damage accidents and the musculoskeletal injuries that follow them? The answer to that is, no.  However, today we know more about how people are hurt in these accidents than we did in the past.

Whiplash injuries commonly referred to as Cervical Acceleration De-acceleration trauma (CAD trauma) cause unusual spinal movement. Sudden acceleration of the occupant’s body is followed by sudden de-acceleration of the body (whiplash).  If the rear of a vehicle is not hit straight on, there can be oblique forces of rotation further complicating the biomechanical sequence of a whiplash body movements  which increases injury potential.

Torso overspeed means that energy released  form a compressed seat back during a rear-end collision can occur at the same time as forward movement of the body, which occurs during de-acceleration phase of a rear-end accident.  This recoil of the seat back adds energy to the forward movement of the body during de-acceleration and contributes to the potential to injure the lower back.  Older  governmental standards for stiffer seat backs have contributed to this injury potential sequence.

Vascoelasticity is a property of human tissue’s reaction to  forces and loads. Under  loading the tissue becomes stiffer and more brittle.   Since acceleration and de-acceleration loading and unloading, including path reversals, occur in one-third of a second, this makes  normal muscles, cartilages, tendons and ligaments more prone to injury when exposed to whiplash body movements. The most vulnerable tissues to vascoelasticity injuries are the discs, facet joints and supportive ligaments of the spine.

The problem with crash testing is that these tests cannot be done at increasing incremental speeds until an actual spinal  injury occurs.  This would increase energy imposed upon the volunteers to the point where they would actually be injured.  This approach would be highly unethical and would violate  human rights and result in legal consequences to the researchers. Cadavers and crash test dummies can’t provide us with 100% accurate crash test results. Therefore, due to these research limitations and the complexity of head and torso movement during a rear end collision, the threshold collision changes of velocity that produce spinal injury at this juncture have not be accurately determined.

The most accurate way for jurors to determine the injury potential of a low property damage rear end motor vehicle accident is to compare the plaintiff’s physical condition before the accident  to the plaintiff’s physical condition that develops after the accident. If there is no evidence of any other trauma in the interim between the accident and the appearance of spinal symptoms, then this lends credence to the proposition that the low property damage accident was the cause of the injuries claimed by the plaintiff.

Therefore, contrary to popular belief, and contrary to what intuitive logic suggests, low speed rear end impacts often do result in cervical, thoracic and lumbar spine injuries.

What Jurors Should Know About Low Property Damage Auto Accidents (Alleged By the Insurance Industry to be Minimum Impact Soft Tissue Motor Vehicle Accidents

Unless you have had to unfortunate experience of being an injured victim of a low property damage motor vehicle accident, you may have difficulty understanding that people do get injured as a result of these accidents.

The purpose of this blog is to educate readers, who may end up on a jury, that there are two sides to every low property damage motor vehicle accident.

The definition of a low property damage accident over the years has expanded from cases where the property damage was under $500.00 to cases involving thousands of dollars worth of damage. The definition is whatever the insurance company representing the at fault driver defines it to be.

In my experience with auto accident claims and litigation for approximately 30 years,  I have seen hundreds of victims develop serious spinal and other musculoskeletal injuries from low property damage accidents.

Obviously, insurance companies hate these case claims, and they will force the victims of personal injury accidents into litigation and even Trial.  Many personal injury attorneys won’t take them – or won’t keep them if they cannot settle them without resorting to litigation.

Once, while backing out of a driveway and moving very slowly, I ran into a pole supporting a basketball backboard.  The impact was to the rubber part of my steel bumper.  The bumper of my car was  the older type which incorporated bumper shock absorbers. The shock of this impact was so great that I thought that I would develop injury symptoms.  Although I was fortunate not to have been injured in the accident, the impact  really rang my bell mainly because of the unexpected nature of the collision.

I did get hurt from rear end collision where that was part of a four vehicle chain reaction rear end accident. My new Corvette was first in line at an intersection when I was struck from behind and pushed out in to the intersection.  I thought that the rear end of my Corvette was demolished.  When I got out  of the car the only damage that  was visible was a crack in my bumper cover about 2 inches long and the rear quarter panel red lights popped out of their of their sockets.  After this accident  my back started hurting, and it kept getting worse with time. I kept denying that I  was injured but eventually had to get some chiropractic treatment because of horrible low back and leg pain.

Insurance companies often deny these low property damage claims, or offer very little to settle them.  They know that many attorneys will not dedicate the time and expense to litigate them. Juries that hear these cases often do not understand the medical complexities involved with whiplash injuries and  are predisposed to think that people who make claims for these types of accidents are trying to take advantage of the system.  As a result it is difficult to obtain a fair verdict that compensates the victims for the injuries they suffer as a result of these car accidents. However, it is my experience that jurors are reluctant to admit this prejudice during voir dire examination.

Skilled defense attorneys defend these cases.   So, the insurance companies motive in strongly defending these claims is an effort to discourage victims of injury accidents from seeking compensation and attorneys from representing those who do.  The advantage to the insurance company is the production of a ripple effect though the legal community.

Since so many people are hurt in these rear-end low property damage accidents, it cannot be said that these accidents do not produce injury.  It is true that some people walk away from them without injury.  Most adverse drivers that cause these accidents often do not get injured because they have the opportunity to see them coming and prepare for the impact. Their bodies also move in different directions than those whose cars they hit.

Many factors enter into the injury potential of these accidents.  Factors that can increase susceptibility to injury include: body position at the time of impact, lack of head rests, seatbelts locking on shoulder harness straps that only go over only one shoulder, bracing, unexpected nature of the collision, susceptibility to injury due to prior injuries or  pre-existing conditions, weight, age, sex (women have more susceptibility to cervical injuries) or presence of osteoarthritis or other degenerative conditions.

Whiplash injuries are caused by the unique and unusual head and spinal movement produced by rear end, side, and frontal impacts.  The symptoms associated with sprain and strain injuries to the supporting structures of the spine may come on hours or even days after the accident. Delayed symptoms associated with spinal injuries are the rule rather than the exception.  Despite this medical truth, insurance companies hire doctors who will testify that the victim of an injury accident may not have been injured, or may have been only slightly injured if they did not complain of pain immediately after the accident.

Insurance companies will argue that there is a scientific correlation between the amount of visible damage sustained to a vehicle’s components, which are  mostly metal and plastic,  and the seriousness of injury sustained to the flesh and connective tissue of a human occupant.

The simple defense argument presented in thousands of courtrooms across the country each day is that injury victim could not possibly have been injured because there was no or very little property damage to the victim’s vehicle.

Insurance companies spend millions of dollars on their commercials talking about fakes, frauds and cheaters who are trying to exploit and defraud  an insurance company out of billions of dollars. They always take the position that injury claims are exaggerated.  Insurance companies make money selling insurance and investing that money in the stock market and other investments. They advertise about fake and fraudulent claims in an attempt to  give the impression that they are actually losing money. In  reality insurance companies have us convinced us that we should not make a claims even against our own policies because our rates will go up, or our policies will be cancelled. Jurors think that if they award money damages to auto accident victims that this may indirectly affect their own insurance rates.

To analyze the effect of a low property damage auto accident one cannot compare apples to oranges.  Trying to make a statistical correlation between damage to  inanimate objects like an automobile and a human body is comparing apples to oranges. Metal and human tissue share little  similarities. Some people herniate a disc when bending over to tie their shoes. And some people walk away from accidents where their cars are totaled.  Therefore, there is no correlation between property damage and human  injury.

In order validate the proposition that little vehicle property damage equates to little injury, the analysis must also  include the proposition that major vehicle  damage must equate to major bodily injury.  Insurance companies will deny such a direct correlation in high property damage cases.  Body movement in a low impact accident can be incredibly complex.  The injury potential of any accident is a matter of medical opinion.  The opinions of treating physicians and defense experts concerning the injury potential of any accident will be divergent.  Defense experts are called upon to provide favorable answers on critical injury potential issues – and are paid to do so. Insurance company experts won’t get repeat business unless they give favorable opinions to their insurance company clients.  Accident Reconstructionists and Biomechanical Engineers can make a lot of money rendering these opinions.  A cottage industry of low property damage auto accident experts has evolved in this country which is supported financially by the insurance companies.  There certainly is money to be made,  however the perceived legitimacy of these experts rests upon the application of junk science.

A multi-disciplinary education involving medicine, physics and biomechanics should be required to qualify a  low property damage expert.  Seldom does the expert have credentials in all three areas. A person who has not treated the victim of the personal injury car accident should be required to be an accident reconstructionist,   medical doctor, engineer,  and mechanical engineer  to render injury potential opinions on low property damage accidents.

Cars absorb energy of a crash by crushing.  Energy is not absorbed by the car if it does not crush. The less crush the  more energy is transferred by the crash to the occupants.

Harmful hyper-extension followed by immediate hyper-flexion  of the head and neck results  from a low property damage rear end accident.  This causing a shearing force to the supporting structures of the spine.  But, insurance experts take the position that a change  of velocity of the impacted vehicle under 5 mph  means that someone that who was legitimately injured and sought medical treatment is always a fake or a fraud.

So, potential jurors should not automatically accept the defense arguments on a low property damage impact auto accident.  They should look to the injured party’s medical condition before the accident.  Was the victim predisposed to injury from a motor vehicle accident  because of arthritis or some other medical condition that would make them more susceptible to injury from a low impact accident?   Are the injuries that are reflected in the post-accident medical records supported by standard orthopedic and neurologic testing?  What was the  range of motion deficit identified by the treating physician and to what extent does it  to verify the musculoskletal injury? Do the x-rays show loss of the normal curvature of the spine caused by muscle spasm?    Does the doctor relate it the injuries to the  accident even considering the low property damage and why?  Was the injured party symptom free prior to the accident? If so, is there any other explanation for the development of the symptoms other than the subject accident? Does the MRI show disc bulges or herniation?  Do the bulges or herniations cause nerve root impingement or irritation consistent with the patient’s symptoms? Did the symptoms develop within a few days of the accident? In determining what injury was caused by the accident, jurors must compare the patient’s condition before the accident to how the patient’s condition after the accident.

Since your job as jurors is to be fair and impartial, you must consider both sides of the story on low property damage motor vehicle accident cases in rendering your verdict.

The picture above is from an accident in which we represented a client in a low property damage accident.  The repairs totaled less than $500.00 to replace the bumper.  The case was tried to a Jury in the Short Trial Program. After considering the facts, including our client’s long history of similar, and chronic, back pain the Jury awarded $3,000.00 to compensate him for the medical bills incurred as a result of the accident and $9,000.00 in pain and suffering as a result of the accident.

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