Archive for the ‘when to litigate’ Category

One Good Change Deserves (Needs) Another

In 2015, the Nevada Legislature raised Nevada Justice Courts’ Jurisdictional limit from $10,000.00 to $15,000.00 effective on January 1, 2017. This statute requires any cases filed until December 31, 2016 seeking damages up to $10,000.00 should be filed in Justice Court. The Statute, as amended, will require that any cases filed on or after January 1, 2017 seeking damages up to $15,000.00 should be filed in Justice Court.

An issue this brings up is when should a case seeking damages between $10,000.00 and $15,000.00 be filed? Attorneys and their clients should analyze which Court will give them better advantages to determine if they should file before or after the January 1, 2017 if they fall within this range of damages and the decision will not be effected by the relevant Statute of Limitations.

NRS 4.370(a) governs Justice Courts’ Jurisdictional limits. For cases filed until December 31, 2016, it states:

For cases filed on or after January 1, 2017, it states:

It all seems plain and simple until you look to a Rule which governs Pleadings in Nevada. One of the statements in Nevada Rules of Civil Procedure requires Complaints filed in Nevada District Courts to aver Jurisdiction in that Court. Specifically, the NRCP 8(a) states:

Where a claimant seeks damages of more than $10,000, the demand shall be for damages “in excess of $10,000” without further specification of amount.

This rule requires the Plaintiff to allege the Jurisdictional basis for a case being heard by the District Court while forbidding her from alleging a specific amount of damages in excess of the Jurisdictional limit for Justice Courts. A District Court Judge could dismiss a Complaint or require a Plaintiff to amend her Complaint if she alleges a specific amount in excess of $10,000.00

I have checked the Nevada Supreme Court’s website and do not see any changes, or proposed changes to NRCP 8(a) that would amend the required Jurisdictional Statement to comport with the new Jurisdictional limit of Juste Courts. Crafty counsel could take advantage of this inconsistency.

If a Plaintiff drafts her Complaint to comply with NRCP 8(a), Defense Counsel could file a Motion to Transfer Jurisdiction to Justice Court pursuant to NRS 3.221 since the claim for damages will be “in excess of $10,000.00 which falls within the Justice Courts’ Jurisdiction. This may turn out unsuccessful and a waste of the Court’s time, but some attorneys and their clients won’t have a problem doing so.

On the other hand, if the Plaintiff files her Complaint stating that the case has a value in excess of $15,000.00 to demonstrate that the District Court has Jurisdiction, Defense Counsel can file a Motion to Dismiss citing a violation of NRCP8(a) as currently written.

While I have not see it yet, I am sure that the Nevada Supreme Court Justices will resolve this inconsistency to prevent gamesmanship by Counsel and their clients from taking advantage of a technicality and wasting valuable Court time and resources.

First Trial of 2013

Well, I’m about two weeks out from My first Trial of the new year. This time it’s a conventional trial. It should last  about 4 or 5 days. My client was injured when a grocery store employee struck him in the ankle while pushing carts into place.

My client attempted conservative care. When that failed, he had to have surgery on his ankle to repair  a torn tendon. The surgery improved his condition, but he continued to experience pain and discomfort in his ankle for some time.

We will be seeking compensation for the medical bills, lost wages, and poison and suffering caused by the accident.

Short Trial is Over – We Won

The Short Trial I have been preparing for went forward today and the Jury found in our favor and awarded my client $12,136.50.  In addition to this, my client is entitled to: Attorneys Fees (up to $3,000.00) as a result of the Defendant’s rejecting a prior Arbitration Award; Costs of Litigation in the area of $1,500.00; and prejudgment interest  in excess of $700.00. Now…this may seem like a small victory, but it’s as important as any other.

In this case, my client was driving down the road when the other driver came out of a parking lot making a left turn into my client’s lane.  My client felt an impact between his car and the guy who pulled out of the lot then, between that impact and my client’s reaction to the car coming into his lane, he hit a full sized pickup truck to his right.  The Defense admitted liability for the Trial (as if there was any question) but challenged the Damages caused by the accident.  Basically, the Defense argued that it was a minor impact that could not have caused my client much, if any injury and that either he was faking or that the injuries were pre-existing.  For those in the know…the same ole same ole.

My client would probably have accepted the Arbitrator’s $8,373.50 award and would certainly have done so if it was increased by attorneys fees, costs and interest.  Not too long ago, we offered to settle the case for $10,000.00.  The Defendant (or should I say his insurer) would not pay that nor would they pay the $8,373.50 plus costs of about $1,000.00.  Now, they have to pay in the ball park of $17,000.00.

Why is this important? First, because it’s a fair outcome for my client.  He was injured at no fault of his own.  He has had to wait three years for justice to be served. He was called a faker and a cheat and his credibility was challenged at the Arbitration and Trial.  Second, cases that go to Trial (even small ones) successfully show the adjusters that not everything goes their way and they have to consider this when trying to pay as little as possible on claims.  In this case, doing so would have saved their company at least $8,000.00 – not a big number in the big picture, but it demonstrates the possibilities and tendencies of Juries to award money to compensate Plaintiff’s for their injuries. The Adjuster on the case sat through the trial and saw the outcome.  I wonder if he was shocked.

Oh…the Trial took a bit more than 3 hours from the time the Jury came in until they went to decide.  They were out making their decision for another 3 hours or so.  I love it when Juries actually take the time to consider cases and render fair verdicts.

It’s Lovely Dealing With Insurance Companies

Since a lot of my practice is Plaintiff’s personal injury cases, I have to deal with insurance companies and their adjusters on a  regular basis.  Some are pleasant…others are not.  Here’s an example of regarding a case I recently had to file in Clark County District Court.  Here’s what happened. . .

My client was rear ended and there is no question that the other driver was at fault.  My client got treated for her injuries and incurred nearly $6,000.00 in medical bills as a result of the two 5000 pound trucks colliding and  moving my client’s body.  Yes…that’s 5 TONS of weight acting on my client’s 120 pound body.  I make a demand for $20,000.00.  The insurer counter offers $4,500.00.  I tell the adjuster no way the client will accept this (rather insulting) offer.  I talk to client and counter at $18,000.00.  The insurer comes back with….drum roll, please…..$4,750.00 on a Wednesday – another insult and, to be honest not a real increase of any value. I don’t like going back and forth wasting time on these, so-called, negotiations.  Based on history, I knew that the insurer was never going to offer anything reasonable and would probably not even make an offer in the $7,000.00 range.  Based on that and my client’s response, I write to the adjuster telling her that I want the top offer by Friday or I will file suit on the next Monday.  Friday comes and goes with no word.  I file suit on behalf of my client.

On 11/10 the adjuster calls and leaves a message that she want to negotiate.  I return the call and leave a message just to give me (or any member of the staff) the top offer.  She calls back again – does not leave a message with the offer – but asks for me to be told that she “wants to talk about the case.” I tell her I know her reasoning, as I have since the start of negotiations, and just want the top dollar.  I eventually get it……$5,500.00 and a threat that they will do a “statutory offer” and will never offer this amount again once the time to accept has expired.  I tell her that I can accept the offer if she (the adjuster) is willing to sit in a chair in the parking lot and let me hit her with a  car at 5 mph with my 4,400 pound car.  She’s not willing to do so…..and my client was hit by more than twice that amount. The adjuster advises that she will send me a letter confirming our conversation.  That letter comes today and states:

 This letter is regarding claim status. We extended an offer of $4,750.00 for your client’s bodily injury claim.  It appears that you have responded to our offer by filing a lawsuit against our insured.  If you are interested in resolving Ms. XXXX’s claim for a  fair and reasonable amount, without having to incur the unnecessary cost of proceeding with litigation we urge you to contact the undersigned.

I did exactly what I said I would.  I wonder if she actually believes that this letter or her other threats will make my client accept a lousy offer…

Well…what should I do? Ignore the wishes of my client and accept an offer that will get her to break even IF I and the medical providers grant a 30% reduction in bills/fees? Or should I continue to do as I said: sue until the insurer gets reasonable.  Mind you, the bed of my client’s FULL SIZED pickup truck hit the back of the cab and kinked it.  I wonder what will happen with this one? I know one thing: I’m not going to crump and abandon this client.

We’ll have to wait and see what happens with this.


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