Our News Archive
  • Aug 22, 2014
    Lowry Discusses HIPAA Compliance in DRI YLC Newsletter

    LAS VEGAS – Medical records are often the key to evaluating the potential exposure in any personal injury case. Medical records often, by definition, contain highly personal information about patients that is covered by HIPAA. HIPAA itself often creates uncertainty and roadblocks lawyers must overcome when obtaining needed medical information.

    DRI’s Young Lawyers’ Committee published an article written by Las Vegas attorney Michael Lowry to address these problems. Getting the Medical Record Information You Need and Complying with HIPAA explores the four primary methods HIPAA creates to obtain medical information. “There should be no reason to fear HIPAA. If lawyers use the authority it provides appropriately, then the needed medical information can be obtained,” said Mr. Lowry.


  • Jul 17, 2014
    Lowry Publishes in DRI Trucking Committee Newsletter

    LAS VEGAS – Commercial transportation providers are often a target of lawsuits and the firm’s transportation practice group is just as often asked to defend clients who are involved. Las Vegas attorney Michael Lowry, a member of the transportation practice group, published Defeating Claimants’ Attempts to Apply FMCSR to Intrastate Operators in the July, 2014 newsletter of the DRI Trucking Committee discussing one defense consideration.

    Claimants often use perceived violations of the Federal Motor Carrier Safety Regulations as evidence that a transportation defendant has acted negligently. However, these regulations only apply to interstate operators and intrastate operators like mass transit systems may be exempt. “Just because a regulation exists does not mean it applies to all defendants,” said Mr. Lowry. “In some cases involving intrastate operations, transportation clients may be able to defend on the ground that the regulation does not apply to them.”


  • Jul 11, 2014
    Armstrong & Barkley Named to Mountain States Super Lawyers

    Thorndal Armstrong Delk Balkenbush & Eisinger is proud to announce that James Armstrong and Thierry Barkley, were included among the 2014 Mountain States Super Lawyers. Mr. Armstrong was selected in the area of Personal Injury General Defense and Mr. Barkley for Insurance Coverage.

    Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations. The designation is an honor, in that only 5% of all lawyers in each region are named to this list annually. Super Lawyers magazine recognizes quality in the practice of law by use of a rigorous selection process that incorporates peer recognition and professional achievement, Only a very small number of attorneys receive the Super Lawyer designation.


  • Jul 9, 2014
    Lowry Presents Webinar on HIPAA Compliance

    LAS VEGAS – HIPAA compliance can frustrate even the most well conceived discovery plans. Medical information favorable to a client is worthless if it cannot be obtained. Recognizing HIPAA’s impact upon the discovery process, Strafford Publications asked Las Vegas attorney Michael Lowry to co-host a CLE webinar exploring how to obtain the information clients need while complying with HIPAA.

    Insurance Litigation: Navigating Complex HIPAA Privacy Rules in the Discovery of Key Medical Records was presented to a national audience of lawyers and clients who routinely encounter these problems. “HIPAA should not be feared,” said Mr. Lowry. “Compliance does add a couple steps to the discovery process, but the regulations were designed with litigation in mind and can still permit clients to obtain the information they need to assess a case.”


  • Jun 18, 2014
    Lowry Featured in ABA Pretrial Practice & Discovery Committee Newsletter

    LAS VEGAS – Las Vegas attorney Michael Lowry was featured in the Spring, 2014 newsletter of the American Bar Association’s Pretrial Practice & Discovery Committee. His article, The Problem of the Old Deposition and a New Party at Trial, discussed procedural complications that arise when attempting to use at trial a deposition taken before all parties are joined to a case.

    “As lawsuits move through the system, parties are sometimes added to the case. The problem arises at trial when someone tries to use a deposition against a party who was not a party when the deposition was taken,” Mr. Lowry explained. “Clients want to avoid getting to trial and not being able to use their best testimony.”

    Thorndal Armstrong Delk Balkenbush & Eisinger is a Martindale-Hubbell AV-peer-rated law firm committed to providing the highest quality legal representation to its clients. With attorneys statewide, the firm is capable of assisting in all manner of Nevada legal needs.


  • Feb 28, 2014
    In Memoriam: James J. Jackson 1958-2014

    LAS VEGAS – It is with profound sadness that Thorndal Armstrong Delk Balkenbush & Eisinger announces the passing of its President James J. Jackson. JJ expired unexpectedly in his sleep on February 28, 2014. A memorial service will occur on March 8, 2014 from 11:00 to 1:00 p.m. at Palm Mortuary's downtown location at 1325 N. Main St., Las Vegas, NV 89101. Information concerning the services and a virtual guest book are available here.

    The manner in which JJ conducted his law practice and his lobbying efforts, the kindness with which he treated his friends and others, and the way he brought smiles to those surrounding him will forever be a great source of pride to the Thorndal Armstrong family. His legacy is one of love and respect.

    Our thoughts and prayers are with JJ's many, many friends and family, especially his wonderful son Jeffrey and Jeff's fiance Monica, and his sister Mary. Anyone who spent more than two minutes with JJ learned how much he adored them.


  • Feb 6, 2014
    Lund Earns AV® Preeminent Rating

    LAS VEGAS – Thorndal Armstrong Delk Balkenbush & Eisinger announces senior associate Ken Lund has joined 14 other firm attorneys in earning an AV® Preeminent rating by Martindale-Hubbell. Martindale-Hubbell is the facilitator of a peer review rating process. Ratings reflect the anonymous opinions of members of the Bar and the Judiciary. Martindale-Hubbell Peer Review Ratings fall into two categories - legal ability and general ethical standards. Martindale-Hubbell indicates “[a]n AV® certification mark is a significant rating accomplishment - a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence.”

    "Receiving this rating is a true honor from my colleagues of the bench and bar, and I look forward to many more years of spirited litigation as we collectively strive to efficiently, effectively, and ethically resolve disputes in our clients’ favor." noted Mr. Lund.

    Thorndal Armstrong Delk Balkenbush & Eisinger is a Martindale-Hubbell AV-peer-rated law firm committed to providing the highest quality legal representation to its clients. With attorneys statewide, the firm is capable of assisting in all manner of Nevada legal needs. More than 50 percent of the firm’s attorneys have achieved an AV® Preeminent rating.


  • Nov 25, 2013
    Lowry Named to ABA Journal’s 7th Annual Blawg 100

    LAS VEGAS – This morning the ABA Journal named senior associate Michael Lowry’s Compelling Discovery blog to their 7th Annual Blawg 100 list for top legal industry blogs. Blogs are nominated for consideration by their readers and selected by the ABA Journal’s editors from among the thousands of legal blogs online.

    “This is a surprising honor,” said Mr. Lowry. “There are many good lawyers who write excellent blogs. I am humbled just as much to be nominated by Compelling Discovery’s readers as I am by the ABA Journal’s editors’ selection.” Compelling Discovery launched in June, 2012 and sought to discuss the discovery issues that commonly confront many lawyers. Since then the blog has posted at least once a week about best practices in discovery and the sometimes spectacular consequences when those practices are not followed.

    Thorndal Armstrong Delk Balkenbush & Eisinger is a Martindale-Hubbell AV-peer-rated law firm committed to providing the highest quality legal representation to its clients. With attorneys statewide, the firm is capable of assisting in all manner of Nevada legal needs.

    For more information about Thorndal Armstrong Delk Balkenbush & Eisinger or Michael Lowry, visit us online at www.thorndal.com or contact us at (702) 366-0622.


  • Sep 3, 2013
    Lowry Publishes in Litigation Management

    LAS VEGAS – Whenever a personal injury case is filed, one of the key questions is always what are the value of the medical damages? The answer to this question often drives how the parties and courts handle the case. The answer, however, varies significantly from jurisdiction to jurisdiction, causing substantively similar claims to be treated differently.

    Recognizing the difficulties clients may have litigating these matters in various jurisdictions, senior associate Michael Lowry teamed with the director of risk management for two high-profile Las Vegas resorts and published an article on this topic. The article, What Are the Medical Damages? It Depends surveyed the various approaches certain states used as compared to others and highlighted the different results each state would produce for the same case. The article was published in the fall, 2013 edition of Litigation Management magazine, published by the Claims and Litigation Management Alliance. The magazine is published quarterly and has more than 18,000 subscribers.

    Thorndal Armstrong Delk Balkenbush & Eisinger is a Martindale-Hubbell AV-peer-rated law firm committed to providing the highest quality legal representation to its clients. With attorneys statewide, the firm represents clients in all manner of Nevada legal needs.

    For more information about Thorndal Armstrong Delk Balkenbush & Eisinger or Michael Lowry, visit us online at www.thorndal.com or contact us at (702) 366-0622.


  • Sep 3, 2013
    Diamond Invited to Speak About Trial Preparation

    LAS VEGAS – Las Vegas shareholder Kevin Diamond was invited to speak about the importance of trial preparation to a group of in-house counsel and their paralegals for a major national insurance company. Mr. Diamond's presentation stressed the importance of thinking about trial and trial related issues from the first day the case comes to the firm. He further explained how to gear both an attorney’s investigation and discovery towards how the results will be utilized and handled at the time of trial. Diamond said “litigating a case while keeping the effect of trial in mind can assist an attorney in representing their client not only when trial occurs, but also throughout the entire life of the case.”

    Thorndal Armstrong Delk Balkenbush & Eisinger is a Martindale-Hubbell AV-peer-rated law firm committed to providing the highest quality legal representation to its clients. With attorneys statewide, the firm represents clients in all manner of Nevada legal needs.

    For more information about Thorndal Armstrong Delk Balkenbush & Eisinger or Kevin Diamond, visit us online at www.thorndal.com or contact us at (702) 366-0622.


  • Jun 27, 2013
    Nevada Restricts Liability for Design Professionals

    LAS VEGAS – The voluminous litigation about the failed construction of the Harmon tower at City Center continues and today the Supreme Court weighed in with an opinion further refining the economic loss doctrine.

    Halcrow, Inc. v. Dist. Ct., 129 Nev. Adv. Op. 42 (2013) concerned a structural engineering firm retained to prepare drawings and perform inspections during the tower’s construction. Various parties alleged Halcrow failed to detect and prevent the flawed reinforcing steel installation that ultimately plagued the tower. Halcrow argued the claims against it should be dismissed as barred by the economic loss doctrine. The Supreme Court noted its prior rulings did not decide whether the economic loss doctrine barred negligent misrepresentation claims against design professionals. Ultimately the court decided “in commercial construction defect litigation, the economic loss doctrine applies to bar clams against design professionals for negligent misrepresentation where the damages alleged are purely economic.”

    “This is an important clarification from the Supreme Court,” observed Michael Lowry of the Las Vegas office. “The Court recognized the hole in the case law its prior decisions created and resolved it in a manner that fairly protects design professionals.”

    Thorndal Armstrong Delk Balkenbush & Eisinger is a Martindale-Hubbell AV-peer-rated law firm committed to providing the highest quality legal representation to its clients. With attorneys statewide, the firm is capable of assisting in all manner of Nevada legal needs. For more information about Thorndal Armstrong Delk Balkenbush & Eisinger or Michael Lowry, visit us online at www.thorndal.com or contact us at (702) 366-0622.


  • May 1, 2013
    Lowry Published in Communique

    LAS VEGAS – Senior associate Michael Lowry has once again been published in the Communique, the official journal of the Clark County Bar Association. Mr. Lowry’s article, The Unanswered Question: What is the Standard of Review When Objecting to a Discovery Commissioner's Report and Recommendations?, discussed an issue frequently encountered by many local lawyers. In Las Vegas and Reno discovery disputes are handled by Discovery Commissioners. If a party objects to a Discovery Commissioner’s ruling, it may object before the district court. The standard of review applicable to these objections is unknown and appears to vary depending upon the district court, creating uncertainty and increasing the cost of litigation.

    “This issue comes up often in my practice as one party or another must object to a Discovery Commissioner’s ruling to preserve their right to appeal. I just hope this question is eventually answered so as to lend further predictability to the discovery process, hopefully lowering its cost,” stated Mr. Lowry.

    Thorndal Armstrong Delk Balkenbush & Eisinger is a Martindale-Hubbell AV-peer-rated law firm committed to providing the highest quality legal representation to its clients. With attorneys statewide, the firm is capable of assisting in all manner of Nevada legal needs.

    For more information about Thorndal Armstrong Delk Balkenbush & Eisinger or Michael P. Lowry, visit us online at www.thorndal.com or contact us at (702) 366-0622.


  • Apr 25, 2013
    Medical Malpractice Liability Expanded

    LAS VEGAS – Today the Supreme Court of Nevada again changed the standard an injured patient must meet in order to file a medical malpractice suit. When a medical malpractice lawsuit is filed, NRS 41A.071 requires it must be supported by an affidavit from a substantially similar medical expert, or the case may be automatically dismissed. In Egan v. Chambers, 129 Nev. Adv. Op. 25 (2013) the complaint was not supported by an affidavit from a substantially similar medical expert and was dismissed.

    On appeal, the court determined although NRS 41A.071 applies to allegations of medical malpractice, its plain language does not apply to allegations of “professional negligence.” The Supreme Court stated its prior cases inappropriately indicated “medical malpractice” and “professional negligence” were equivalent for the purpose of NRS 41A.071. The terms were separate because, for example, Nevada statutes define “physician” and podiatrist differently. Egan sued her physician and a podiatrist. The court concluded a physician, as defined by statute, is covered by the affidavit requirement of NRS 41A.071. Because a podiatrist, however, is not defined as a “physician,” but is instead a “professional,” the plain language of NRS 41A.071 did not require an affidavit to support claims against the podiatrist.

    Shareholder Christopher Curtis actively defends medical professionals in malpractice cases. He stated “This case relies upon a literal reading of the statute. It seems likely it will lead to an increase in lawsuits filed against medical professionals who happen to be defined separately by other statutes.”

    Thorndal Armstrong Delk Balkenbush & Eisinger is a Martindale-Hubbell AV-peer-rated law firm committed to providing the highest quality legal representation to its clients. With attorneys statewide, the firm is capable of assisting in all manner of Nevada legal needs. For more information about Thorndal Armstrong Delk Balkenbush & Eisinger or Chris Curtis, visit us online at www.thorndal.com or contact us at (702) 366-0622.


  • Apr 4, 2013
    Lowry Publishes on Criminal Charges v. Civil Discovery

    LAS VEGAS – Michael Lowry, a senior associate in the Las Vegas office, has published concerning recent changes to Nevada law concerning the competing interests of criminal charges and civil discovery. The article, Criminal Charges v. Civil Discovery: Who Wins?, discussed the tension that exists for those facing criminal charges and possible civil liability for the same event.

    “I am very pleased to have this article published by USLAW Magazine as the Supreme Court of Nevada recent ruling on this issue is indicative of larger national trends,” said Mr. Lowry. USLAW Magazine is the official publication of USLAW Network, a national organization composed of 64 independent, defense-based law firms with over 4,000 attorneys covering the United States and Latin America.

    Thorndal Armstrong Delk Balkenbush & Eisinger is a Martindale-Hubbell AV-peer-rated law firm committed to providing the highest quality legal representation to its clients. With attorneys statewide, the firm is capable of assisting in all manner of Nevada legal needs.

    For more information about Thorndal Armstrong Delk Balkenbush & Eisinger or Michael Lowry, visit us online at www.thorndal.com or contact us at (702) 366-0622.


  • Feb 14, 2013
    Peremptory Challenge Rule Narrowed

    LAS VEGAS – This Valentine’s Day the Supreme Court of Nevada interpreted and narrowed Supreme Court Rule 48.1, which provides parties to a lawsuit one, limited opportunity to request a different judge hear a case. Morrow v. Dist. Ct., 129 Nev. Adv. Op. 10 (2013) arose from a family law case. A wife filed for divorce. When she filed her complaint for divorce she also filed a motion for determination of temporary child custody. The motion was set for hearing and both the complaint and motion were served upon the husband. The husband then appeared and filed a peremptory challenge, requesting a different judge hear the case. The court rejected the challenge, ruling it was too late. This ruling was appealed.

    The Supreme Court first determined the time within which to file a peremptory challenge can expire before a party even appears in a case. Here, the 10 day window within which to challenge began running pursuant to SCR 48.1 when the motion for determination of temporary child custody was served with the complaint. Although the husband had 20 days to answer the complaint, he had only 10 days to file a peremptory challenge. The court found this was acceptable within the rule. The Supreme Court then determined the computation of time rules established by NRCP 6 governed when the 10 day window expired.

    “Potential defendants should be cognizant of this ruling,” observed senior associate Michael Lowry. “Although they may have 20 days to answer, the defendants may only have 10 days to file a peremptory challenge depending upon the circumstances of the case.”

    Thorndal Armstrong Delk Balkenbush & Eisinger is a Martindale-Hubbell AV-peer-rated law firm committed to providing the highest quality legal representation to its clients. With attorneys statewide, the firm is capable of assisting in all manner of Nevada legal needs. For more information about Thorndal Armstrong Delk Balkenbush & Eisinger or Michael Lowry, visit us online at www.thorndal.com or contact us at (702) 366-0622.


  • Feb 11, 2013
    Diamond & Lund Judge Mock Trial Tournament

    LAS VEGAS -- The State Bar of Nevada's 2013 southern Nevada regional high school mock trial tournament occurred Saturday, February 9. It is the first competition of the season and presents each team an opportunity to try a case. This year ten teams participated in a fictional criminal case involving the alleged murder of one student by another. During the competition each team tries the case four times. The luck of the draw determines which team is prosecuting or defending during each trial. Three team members participate as attorneys and another three as witnesses subject to cross-examination. The winning team competes against the winner of the northern Nevada tournament. The state champion then competes in a national tournament.

    The trials are judged by local volunteer attorneys, including TADBE attorneys Kevin Diamond, and Ken Lund. Mr. Diamond presently serves as a board member of the Bar's mock trial committee. He commented "each year this is a rewarding experience and is a great way for the volunteer attorney judges to brush up on trial techniques." Mr. Lund commented "the students’ hard work and preparation are apparent. Their compelling presentation, their grasp of the rules of evidence, and their composure in front of a large audience are always impressive.”

    Thorndal Armstrong Delk Balkenbush & Eisinger is a Martindale-Hubbell AV-peer-rated law firm committed to providing the highest quality legal representation to its clients. With attorneys statewide, the firm is capable of assisting in all manner of Nevada legal needs.

    For more information about Thorndal Armstrong Delk Balkenbush & Eisinger or Kevin R. Diamond, visit us online at www.thorndal.com or contact us at (702) 366-0622.


  • Feb 11, 2013
    Lowry Invited to Join Claims and Litigation Management Alliance

    LAS VEGAS – Thorndal Armstrong Delk Balkenbush & Eisinger is pleased to announce that the prestigious Claims and Litigation Management Alliance has invited senior Las Vegas associate Michael Lowry to join its organization. The CLM is a nonpartisan alliance comprised of thousands of insurance companies, corporations, Corporate Counsel, Litigation and Risk Managers, claims professionals and attorneys. Through education and collaboration the organization’s goals are to create a common interest in the representation by firms of companies, and to promote and further the highest standards of litigation management in pursuit of client defense. Selected attorneys and law firms are extended membership by invitation only based on nominations from CLM Fellows.

    "I am honored that my colleagues and peers have nominated me to join this organization. It serves a worthy cause and I look forward to contributing," said Mr. Lowry.

    Thorndal Armstrong Delk Balkenbush & Eisinger is a Martindale-Hubbell AV-peer-rated law firm committed to providing the highest quality legal representation to its clients. With attorneys statewide, the firm is capable of assisting in all manner of Nevada legal needs.

    For more information about Thorndal Armstrong Delk Balkenbush & Eisinger, visit us online at www.thorndal.com or contact us at (702) 366-0622.


  • Jan 31, 2013
    Issue & Claim Preclusion Updated

    LAS VEGAS – The legal system typically wants to address a dispute between parties once and then be done with it. This is known in Nevada as claim and issue preclusion. In today's Garcia v. Prudential Ins. Co. of America, 129 Nev. Adv. Rep. 3 (2013) opinion, the Supreme Court of Nevada further clarified when these doctrines apply.

    The case arose from an insurance dispute. There was a prior lawsuit in a federal court in New Jersey about the dispute, which was dismissed. The claimant then refiled the lawsuit in Nevada's state courts. Prudential sought to dismiss the lawsuit, asserting the dispute had already been resolved by the New Jersey federal court.

    The Supreme Court of Nevada concluded it might, depending upon certain factors.

    In this appeal, we examine whether preclusive effect should be given to an order, entered by a federal district court sitting in diversity, dismissing a complaint without prejudice for failure to state a claim. In doing so, we clarify that our holding in Bower v. Harrah's Laughlin, 125 Nev. 470, 482, 215 P.3d 709, 718 (2009), which broadly required Nevada courts to apply federal law in determining whether a prior federal court determination should be given preclusive effect, applies only to federal question cases. When the federal court decides a case under its diversity jurisdiction, we recognize that the United States Supreme Court's decision in Semtek International Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508 (2001), governs the treatment of claim and issue preclusion.

    "Garcia is a helpful clarification as to how to determine whether a claim or issue has been settled due to prior federal litigation. This should clients help streamline what had been an uncertain analysis in the past," said senior associate Michael Lowry.

    Thorndal Armstrong Delk Balkenbush & Eisinger is a Martindale-Hubbell AV-peer-rated law firm committed to providing the highest quality legal representation to its clients. With attorneys statewide, the firm is capable of assisting in all manner of Nevada legal needs.

    For more information about Thorndal Armstrong Delk Balkenbush & Eisinger or Michael Lowry, visit us online at www.thorndal.com or contact us at (702) 366-0622.


  • Dec 27, 2012
    Nevada's Open & Obvious Doctrine Clarified

    LAS VEGAS – In its last opinion of 2012, the Supreme Court of Nevada has clarified the application of the "open and obvious" doctrine. Foster v. Costco Wholesale Corporation, 128 Nev. Adv. Op. 71 (2012) arose from a trip and fall accident. The customer tripped over a pallet, with boxes stacked on it, which was sitting in an aisle. Based upon deposition testimony that the customer had been aware of the presence of the pallet before he fell, the district court concluded any hazard posed by the pallet had been open and obvious to the customer. Therefore Costco was not required to warn the customer again about the pallet and the case was dismissed.

    The Supreme Court reversed and, in doing so, clarified the application of the open and obvious rule. It first adopted the Restatement (Third) of Torts: Physical and Emotional Harm § 51 and then determined "the open and obvious nature of a dangerous condition does not automatically relieve a landowner from the general duty of reasonable care. The fact that a dangerous condition may be open and obvious bears on the assessment of whether reasonable care was exercised by the landowner." It then concluded an open and obvious hazard does not automatically relieve the store of a duty to warn. "[T]the fact that a dangerous condition is open and obvious does not automatically shield a landowner from liability but rather bears on whether the landowner exercised reasonable care with respect to that condition and issues of comparative fault."

    Senior Associate Michael Lowry, who has an active retail liability defense practice, noted "Foster seems to further narrow the open and obvious defense and retailers should carefully assess its impact upon current cases."

    Thorndal Armstrong Delk Balkenbush & Eisinger is a Martindale-Hubbell AV-peer-rated law firm committed to providing the highest quality legal representation to its clients. With attorneys statewide, the firm is capable of assisting in all manner of Nevada legal needs.

    For more information about Thorndal Armstrong Delk Balkenbush & Eisinger or Michael Lowry, visit us online at www.thorndal.com or contact us at (702) 366-0622.


  • Dec 26, 2012
    Federal Court Broadens Coverage for Construction Defects

    LAS VEGAS – Today Judge Miranda Du of Nevada’s federal district court issued an unpublished order interpreting an additional insured endorsement that limited coverage to the liability arising out of the named insured’s sole negligence. Jaynes Corp. v. Am. Safety Indem. Co., 2012 U.S. Dist. LEXIS 182389 (D. Nev. Dec. 26, 2012) arose from a subcontract between Stewart and Sundell Concrete (S&S) and general contractor Jaynes Corporation for concrete work during the construction of the Sun City Anthem in Henderson, Nevada. S&S agreed to name Jaynes as an additional insured under the liability policies issued to S&S by American Safety Indemnity Company. When Jaynes was later sued in a construction defect suit concerning Sun City Anthem, it tendered its defense to American Safety. The tender was refused and Jaynes filed suit.

    Judge Du’s order considered two questions. First, did the “ongoing operations” provisions of the policy preclude coverage entirely? If not, did the additional insured endorsement’s “sole negligence” language preclude coverage? As to the ongoing operations question, Judge Du relied upon two other unpublished orders, Tri-Star Theme Builders, Inc. v. One Beacon Ins. Co., 426 Fed. Apx. 506, 510 (9th Cir. 2011); and McMillin Constr. Srvcs. LP v. Arch Specialty Ins. Co., 2012 U.S. Dist. Lexis 8339 (S.D. Ca. 2012). These decisions concluded similar policies which covered liability performed by a subcontractor were caused by the subcontractor’s “ongoing operations.” The “arising out of” language in the “ongoing operations” clause was key to both decisions. Judge Du relied upon the other courts’ analysis of these decisions to reject American Safety’s construction of the “ongoing operations” language. Judge Du ruled the policy did provide coverage for damages arising after the completion of the operations.

    As to the “sole negligence” language of the additional insured endorsement, Judge Du applied the broad form duty of defense to determine whether there was a sufficient potential for coverage to trigger the duty of defense. The endorsement at issue was quite different than the broad form additional insurance endorsement construed by the Supreme Court of Nevada in Federal Ins. Co. v. Am. Hardware Mut. Ins. Co., 124 Nev. 319, 184 P.3d 390 (2008). Judge Du reviewed the four corners of the construction defect complaint filed against Jaynes and the list of alleged defects supporting it, Judge Du concluded a jury could potentially find that S&S’s sole negligence on its concrete work gave rise to the damages alleged in the underlying action. Therefore coverage was available.

    “This unpublished order may not be binding precedent, but it is a significant departure from the trend in the industry regarding the interpretations of exclusionary additional insurance endorsements,” noted Thierry Barkley, of counsel in the firm’s Reno office. Mr. Barkley explained in rejecting California’s Pardee decision, Judge Du’s order may open the door for a broader interpretation of the scope of ongoing operations to include occurrences after the completion of operations. This may mean typical arguments as to the time frame of occurrence under the completion of operations clause would not defeat the duty of defense. The order is also significant in that Judge Du recognized Nevada’s broad duty of defense requirements may invalidate additional insurance endorsements limited to the sole negligence of the named insured.

    Thorndal Armstrong Delk Balkenbush & Eisinger is a Martindale-Hubbell AV-peer-rated law firm committed to providing the highest quality legal representation to its clients. With attorneys statewide, the firm is capable of assisting in all manner of Nevada legal needs. For more information about Thorndal Armstrong Delk Balkenbush & Eisinger or Thierry Barkley, visit us online at www.thorndal.com or contact us at (702) 366-0622.


  • Nov 9, 2012
    Diamond Discusses Effective Trial Presentation

    LAS VEGAS – A case may have many defense-friendly facts and witnesses, but if not presented to the jury in an effective manner, these facts may not have the desired impact or, worse, could be ignored. Las Vegas shareholder Kevin Diamond has tried many cases to verdict and the importance of presenting the defense case in the best, ethical manner possible. These were some of the reasons Mr. Diamond was asked to participate as a panelist for the National Business Institute’s continuing legal education seminar, “May it Please the Court: Effective Case Presentation at Trial.”

    Mr. Diamond specifically addressed the appropriate use of objections from jury selection through closing argument as well as the multitudes of ethical considerations that arise during trial. “Objecting, and doing so ethically, is not simply reacting to what your opponent is doing, it must also be part of your theory of defense,” said Mr. Diamond.

    Thorndal Armstrong Delk Balkenbush & Eisinger is a Martindale-Hubbell AV-peer-rated law firm committed to providing the highest quality legal representation to its clients. With attorneys statewide, the firm is capable of assisting in all manner of Nevada legal needs.

    For more information about Thorndal Armstrong Delk Balkenbush & Eisinger or Kevin Diamond, visit us online at www.thorndal.com or contact us at (702) 366-0622.


  • Oct 1, 2012
    Lowry Publishes on Nevada's New Expert Disclosure Rules

    LAS VEGAS – Today the Supreme Court of Nevada’s revisions to expert disclosure requirements take effect. These changes are substantive and are designed to promote greater transparency in the litigation process, permitting all parties a clearer understanding of the facts and arguments to be presented at trial.

    Michael Lowry, a senior associate in the Las Vegas and author of the civil discovery blawg Compelling Discovery, participated in the public comment process and attended the Supreme Court’s final hearing as to these rules. “The proposed rule change was intended to address a variety of problems the Court encounters concerning expert witness disclosures. These rules were written with the intent that all parties to the lawsuit should know whom the opposing parties intend to call as experts, and what they will say. Transparency seems to have been an important goal to the court in enacting these changes,” observed Mr. Lowry.

    Mr. Lowry’s analysis of these changes and the potential impact was published today in the October, 2012 issue of Communique, the official journal of the Clark County Bar Association. The article, Expert Disclosure Rules: They Are A Changin’, addresses each of the rule changes in detailed and notes problem areas local counsel may experience in transitioning from the old rules.

    Thorndal Armstrong Delk Balkenbush & Eisinger is a Martindale-Hubbell AV-peer-rated law firm committed to providing the highest quality legal representation to its clients. With attorneys statewide, the firm is capable of assisting in all manner of Nevada legal needs.

    For more information about Thorndal Armstrong Delk Balkenbush & Eisinger or Michael P. Lowry, visit us online at www.thorndal.com or contact us at (702) 366-0622.