Our News Archive
- May 27, 2016
Firm Helps Nevada Army National Guard
It is with great pride and pleasure that Thorndal Armstrong Delk Balkenbush & Eisinger attorneys and staff members recently collected 80 pounds/8 large boxes of various snacks, magazines, and personal hygiene items to be shipped to the firm’s long-time friend and vendor Sergeant Lee Fuller as a care package for him and his Nevada Army National Guard unit who were recently deployed to Kuwait.
JoAnn Ozanic, an Administrative Assistant, who has worked closely with Lee over the course of her 26-year tenure with the firm, sought suggestions from Lee’s wife as to items most needed and appreciated by the troops. Ms. Ozanic, with the assistance of the firm’s Receptionist Diana Daniels and Office Services personnel Joshua Kephart and Edgar Ramirez, organized and coordinated collection of donations, packing, shipping, and completing customs requirements.
Thorndal Armstrong proudly supports our troops, and sincerely appreciate their sacrifices, keep them in our thoughts, and look forward to their safe return home.
- Mar 15, 2016
Firm Helps Denim Recycling Charity
Thorndal Armstrong Delk Balkenbush & Eisinger is happy to announce it recently completed a denim drive for a charitable recycling program, Blue Jeans Go Green. The drive collected more than 50 pairs of jeans that may have otherwise been sent to a landfill.
Blue Jeans Go Green started in 2006 and strives to collects denim to recycle it into natural cotton fiber, an environmentally-friendly insulation. In addition to helping the environment, the program claims the up cycled insulation has about a 30% better sound absorption than traditional fiberglass insulation. To date Blue Jean Go Green states it has recycled more than 600 tons of denim, generating more than 2,000,000 square feet of insulation. This insulation was provided to over 30 Habitat for Humanity affiliates around the country.
- Oct 8, 2015
Practical Guidance for Nevada Insurers post-Hansen
At the end of last month, the Supreme Court of Nevada ruled an insured is entitled to independent counsel in situations where there is an actual conflict of interest between the insurer and the insured. State Farm Mut. Auto. Ins. Co. v. Hansen, 131 Nev. Adv. Op. 74 (2015) creates new conundrums and requirements for Nevada insurers.
What does Nevada consider a conflict of interest requiring independent counsel?
The Supreme Court rejected the idea that all reservations of rights created a conflict. Instead, the Court borrowed from California law and adopted Civil Code § 2860(b). In each case, if the three factor analysis below is satisfied, the insurer must pay for independent counsel selected by the insured.
1.Has a reservation of rights been issued?
2.Does the insurer-provided counsel havecontrol over an issue in the case that will also decide the coverage issue?
3.The perceived conflict must be significant, not merely theoretical, actual, not merely potential. Coverage issues that are only extrinsic or ancillary to the issues actually litigated in the underlying action do not create a conflict of interest.
Do punitive and excess damages create a conflict of interest in Nevada?
The Supreme Court did not answer this question. However, Hansen did borrow heavily from California Civil Code § 2860(b). If Nevada continues to follow California’s lead in this area, it may also adopt § 2860(b)’s statement that “[n]o conflict of interest shall be deemed to exist as to allegations of punitive damages or be deemed to exist solely because an insured is sued for an amount in excess of the insurance policy limits.”
Mere allegations of excess and/or punitive damages do not create an “either / or” scenario, where one argument benefits the insured and the other benefits the insurer. Both the insured and insurer want to argue for lower damages and no punitive damages. Where excess or punitive damages are sought, the insurer-assigned attorney is not placed in a position of benefiting either the insured or the insurer.
How much can independent counsel charge?
Hansen did not answer this question. The normal checks and balances in an attorney-client relationship are not present when independent counsel is involved. Normally, if a lawyer’s bill is too high, a client becomes unhappy and may terminate the relationship. But independent counsel has no such restraint because the party that pays him (the insurer) has no control over whether to retain him in the first place and cannot fire him later. Independent counsel also has little prospect of repeat business, which further reduces the incentive to restrain billing.
If Nevada continues to follow California’s lead, it may adopt two other provisions in California Civil Code § 2860. One limits independent counsel’s rate to that normally paid by the insurer for defense of similar matters in the same geographic area. The other requires binding arbitration to resolve billing disputes. The arbitration requirement is less likely to be adopted via a judicial ruling and may require legislative action to implement.
Can the insurer audit independent counsel’s bills?
Hansen did not answer this question. Normally, an insurer’s assigned counsel is subject to auditing and bill review. This means the insurer will meticulously review all bills to detect overbilling or inappropriate billing. This benefits the insurer and insured by ensuring defense costs are reasonable and appropriate.
Yet what can an insurer do with independent counsel? If an exorbitant rate is charged and the billing provided is insufficient to evaluate what work was done and how it benefited the insured, can a insurer refuse to pay the bill? This area is fraught with peril, however it seems reasonable to insist that independent counsel utilize the litigation code set issued by the ABA and others, as well as to follow the billing guidance these professional bodies have issued.
What qualifications must independent counsel have?
Hansen did not answer this question. Insurers are a wealth of experience in selecting appropriately qualified attorneys to defend their insureds. Insureds, especially in personal lines, typically have little, if any, experience with the legal process or experience in evaluating which attorney is qualified to represent them in a particular case. A legitimate fear exists that the insured may select an independent counsel with minimal, if any, qualifications to defend the case.
If Nevada continues to follow California’s lead, Civil Code § 2860 allows the insurer to require 1) at least five years experience; 2) substantial defense experience in the areas of law at issue in the suit against the insured; and 3) independent counsel have errors and omissions coverage. These requirements do not affect the independence of the lawyers retained by the policyholder. Instead, it creates a safety net for the insured.
Must independent counsel cooperate with assigned counsel?
Hansen did not answer this question. In California, independent counsel must share all information except privileged information relating to coverage and panel counsel may fully participate in the defense alongside independent counsel. Even if independent counsel is involved, the insurer still has a strong interest because ultimately the insured will want it to pay any settlement or verdict. Further, Hansen did not extinguish the insurer’s contractual right to control settlement. Nor did Hansen extinguish the insured’s duty to cooperate with the insurer’s defense. This means, at a minimum, that the insurer will need its own counsel to review materials as the case proceeds and be present at settlement discussions and mediation.
- Oct 2, 2015
Supreme Court Upholds Medical-Malpractice Reform
The Nevada Supreme Court has now reinforced the Legislature’s intent to limit recovery for medical malpractice damages to $350,000 and keep quality affordable healthcare in Nevada. In Tam v. Dist. Ct., 131 Nev. Adv. Op. 80 (2015) the Supreme Court evaluated various challenges to NRS 41A. $350,000 limit on noneconomic damages that a plaintiff can recover in a professional negligence action. The Court also addressed issues of whether it could apply to multiple plaintiffs and defendants in the same matter and if the statute violated the Equal Protection Clause.
By carefully examining the Nevada legislature’s intent when drafting the statute, the Court determined that not only did the statute not violate any Equal Protection claims, but that it was the intent that the statutory cap be made to limit damages so that Nevadans could have access to quality affordable healthcare by keeping professional negligence claim payouts to a reasonable, yet fair, amount. In doing so, the Court also stated that this statute expressly limits the cap of any given action, “regardless of the number of plaintiffs, defendants or theories upon which liability may be based.”
Las Vegas shareholder Chris Curtis has tried multiple medical malpractice cases to verdict and supported the Court’s interpretation. “By maintaining the intent behind the statute, the Nevada Supreme Court was able to reaffirm an aspect of fairness towards healthcare providers that will both provide for claimants that are wrongfully injured, and limit the recovery they can be awarded to keep adequate and affordable healthcare in the State of Nevada for years to come.”
- Sep 24, 2015
Nevada Adopts Cumis-like Requirements
Today the Supreme Court of Nevada decided it will follow the lead of other jurisdictions and require insurers to hire two different defense attorneys for the insured, in certain circumstances. State Farm Mut. Auto. Ins. Co. v. Hansen, 131 Nev. Adv. Op. 74 (2015) was unanimously decided to adopt this requirement after examining similar rules in other states.
We conclude that Nevada law requires an insurer to provide independent counsel for its insured when a conflict of interest arises between the insurer and the insured. Nevada recognizes that the insurer and the insured are dual clients of insurer-appointed counsel. When the insured and the insurer have opposing legal interests, Nevada law requires insurers to fulfill their contractual duty to defend their insureds by allowing insureds to select their own independent counsel and paying for such representation. We further conclude that an insurer is only obligated to provide independent counsel when the insured's and the insurer's legal interests actually conflict. A reservation of rights letter does not create a per se conflict of interest.
This is the first time the Supreme Court has applied this rule in Nevada and represents a shift in how some insurers may need to defend their insureds. We are examining the opinion’s implications and will be updating our website soon with a more in depth analysis.
- Jun 15, 2015
Armstrong & Lowry Named to Mountain States Super Lawyers
Thorndal Armstrong Delk Balkenbush & Eisinger is proud to announce that James Armstrong was included among the 2015 Mountain States Super Lawyers. Mr. Armstrong was selected in the area of Personal Injury General Defense.
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.
- May 14, 2015
Diamond Appointed to State Bar of Nevada's Continuing Legal Education Committee
Shareholder Kevin Diamond was appointed by the State Bar of Nevada Board of Governors to the State Bar’s Continuing Legal Education Committee. Lawyers in Nevada must complete a number of continuing legal education hours per year, including hours related to ethics issues. Over the years Diamond has presented legal education courses on various topics to Nevada attorneys, and has taught courses at local law firms. He also organizes and facilitates in house education seminars for his firm's legal education credits. “Our profession is constantly changing. Rulings by our appellate courts, or new statutes enacted by the Legislature, make it vital to an attorney’s practice to continue their education throughout their career,” said Diamond. “I look forward to serving the State Bar on this Committee,” he added.
- Mar 27, 2015
Shareholders Strive for Gym Safety
Shareholder Kevin Diamond gave a presentation to a local circuit training facility regarding risk management and incident response. The presentation focused on how to deal with clients, waiver issues, health concerns during workouts and the handling of injury accidents. The two offered numerous legal and safety tips to protect the facility from incidents and ultimately claims or suits.
Diamond said “we wanted to ensure that the facility was aware of the legal ramifications of the unique safety standards for gyms, and that they knew how to comply for the safety of their clients."