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.
- Jul 21, 2015
Lowry Presents About Spoliation for Nevada RIMS Chapter
Spoliation of evidence is sometimes known as the civil death penalty and can drastically impact the course of a case. Clients may encounter difficulty recognizing it early in the claim process, when its impact might be better mitigated. Recognizing this, the Nevada RIMS chapter invited shareholder Michael Lowry to present on this topic, ways front-line employees can be provided information to help get ahead of the game and how claim handlers might quickly identify the potential argument and then attempt to mitigate it.
“This is a frustrating topic for everyone involved because there is no set standard,” said Mr. Lowry. “But given the potential impact on each case, it is yet another factor for clients to consider when evaluating litigation.”
- Jul 20, 2015
Lowry Discusses How to Reduce Legal Spend
It is unlikely any lawyer has ever been told “your bill is not high enough.” Clients across the country are always looking for ways to reduce and better manage how much they spend each year on legal fees and costs. The biggest expense is rarely trial. Instead the biggest expense is typically the wide open discovery process in American courts. The expense of discovery can often dwarf the expense of trial.
Shareholder Michael Lowry blogs extensively about best discovery practices and teamed with a national client to discuss ways to limit discovery and its expense while still obtaining a fair result. Controlling Your Legal Spend by Limiting Discovery was published in DRI’s In-House Defense Quarterly’s summer, 2015 edition. The article discusses the statistical correlation researchers found between longer discovery periods and higher expenses. Even if an opponent will not voluntarily agree to limiting the scope of discovery, even just limiting the length of the discovery period could help better control cost.
“It seems counterintuitive that a lawyer would be advocating ways to reduce legal fees, but the reality of the ‘new normal’ in the legal industry means the old way of doing things no longer works. Hopefully those law firms that identify more efficient ways to serve their clients will be able to succeed in this environment,” said Mr. Lowry.
- Jun 18, 2015
Lowry Presents at CLM Transportation Conference
One of the hottest debates within the trucking industry is whether on-board video systems provide any value to companies and drivers. The CLM Transportation committee selected shareholder Michael Lowry to discuss this topic at its 2015 conference in Omaha. Mr. Lowry presented with Tamara Warn, Vice President of Risk Management for C&K Trucking and Tom McLaughlin, Director of Claims for Transport America.
The presentation was entitled “You Decide! Are On-Board Video Systems Worth It?” It covered the experiences other transportation segments, such as mass transit, have had with on-board video. The debaters discussed some of the positive reasons on-board video could benefit the industry, as well as potential concerns about its use.
“As new technologies emerge, the industry needs to evaluate how these technologies might be appropriately used to help mitigate risk,” said Mr. Lowry.
- 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.
- Apr 9, 2015
Lowry Discusses Franchising Risks
Franchising is one of the most popular ways to rapidly expand a business while also gaining the benefit of local market insight. A franchisor, like McDonald’s, will enter into a franchise agreement with an independent company. That company then operates a restaurant using McDonald’s trademarks. The arrangement helps the independent business get established and helps McDonald’s expand the availability of its products to its customers.
If the independent company is negligent and injures a customer, is McDonald’s also responsible? Shareholder Michael P. Lowry discussed that question and a split in case law across the country about how to answer it. In Franchising Risk Factors: Is the Franchisor Responsible for a Franchisee's Negligence?, published this week in USLAW Magazine. “When drafting franchise agreements and implementing trademark protections, it is important for the franchisor to be aware of the different standards that might be used to determine who is responsible for what,” said Mr. Lowry.
- 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."
- Mar 26, 2015
Lowry Presents & Publishes at CLM Annual Conference
The law changes quickly and Las Vegas shareholder Michael P. Lowry discussed two hot topics at the 2015 CLM Annual Conference in Palm Desert. First, Mr. Lowry led a panel discussion entitled E-Discovery & Transportation: The Changing Scope of the Post-Event Investigation. Post-event investigations once consisted primarily of photographs and witness statements. This evidence is merely the tip of the iceberg now as electronic data feature more and more in daily life. Mr. Lowry’s panel discussed the evolving nature of post-event investigations and tips for finding useful information. Only 30% of the proposed panels were accepted for this conference.
Second, Mr. Lowry was published in the spring, 2015 edition of CLM’s Litigation Management magazine, that debuted at the conference. The article, Resisting Assumed Negligence in Falling Merchandise Claims, was co-authored with Norma Lufkin, the now retired Director of Claims for Costco Wholesale. The article discussed the complexities that retail entities confront in defending falling merchandise claims where a plaintiff is permitted to rely upon res ipsa loquitur.
- Mar 2, 2015
ABA Publishes Lowry’s Article on Expert Witness Discovery
LAS VEGAS – Expert witnesses are a fact of modern litigation, for better or worse. In 2010 Federal Rule of Procedure 26 was significantly revised to limit the scope of discovery when expert witnesses were retained. The idea was that by limiting this discovery, the substantive merits of the case would not be impacted but litigation costs would be reduced. Have the rule changes lived up to expectations?
Shareholder Michael P. Lowry’s most recent article, How Far Do the Protections of the Rule 26 Amendments Go? was published in the ABA Section of Litigation, Pre-Trial Practice and Discovery Committee’s winter, 2015 newsletter and examined how federal courts have applied these rule changes since their enactment. Unsurprisingly, what some thought the rule changes meant is not necessarily how the courts are interpreting them. “As with any rule change, there is some lag between implementation and court interpretation. Attorneys need to be aware that what they thought the rules changes meant is not necessarily what the courts have determined they meant,” said Mr. Lowry.
- Feb 23, 2015
Lowry Discusses Spoliation in DRI’s For The Defense
LAS VEGAS – Spoliation is a thorn to many defendants. It is also a rapidly evolving area of law as technology changes and methods of evidence gathering seek to keep up. Courts are also struggling to keep pace, leading to often conflicting rulings, even from judges who share office space.
Shareholder Michael P. Lowry has been on the front lines of this issue as he represents retail and hospitality clients in Las Vegas, the country’s entertainment capital. His article A Retailer’s Guide to the Spoliation Quagmire was published in the February, 2015 edition of DRI’s flagship publication, For The Defense, and discussed the conflicts between various court rulings across the country. It also noted successes some retailers have achieved when the presiding judges were provided accurate information about the reality of modern claim management.
“I am very happy to contribute to For The Defense and especially the conversation about what role spoliation of evidence can or should play in civil litigation,” said Mr. Lowry.
- Feb 11, 2015
Lowry Discusses Questionable Subpoenas in DRI’s The Voice.
LAS VEGAS – If you are a party to a lawsuit, can your opponent subpoena you? This question can confound lawyers and clients alike because the time a client has to respond to a subpoena can be drastically less than other discovery options. It can also subject a client to multiple but conflicting obligations.
The Defense Research Institute has now published shareholder Michael P. Lowry's article discussing the problems subpoenas to parties can create. Is a Subpoena Duces Tecum to a Party Enforceable? was contained in today’s edition of The Voice, DRI’s membership newsletter. In the article Mr. Lowry discussed strategies for handling with these subpoenas and whether they are even enforceable.
- Feb 6, 2015
Lowry Presents on Spoliation at CLM Conference
LAS VEGAS – Spoliation of evidence continues to be a hot topic in many industries as they grapple with court rulings sanctioning defendants. This is a particularly prevalent problem to retail and hospitality establishments where evidence of the event may only be fleeting at best. As litigation costs continue to increase, what can a retailer do?
Shareholder Michael P. Lowry was selected to present on this exact topic at CLM’s 2015 Retail, Restaurant & Hospitality conference in Orlando. Mr. Lowry presented “Spoliation in Retail and Hotel Post-Incident Investigations: When is it Really Spoliation?” with risk and claim handlers from M Resort in Las Vegas and J.C. Penney Corporation. “Education about current court trends and effective preservation strategies is key,” said Mr. Lowry. “This area of law is evolving rapidly and it seems something changes every day.”
- Nov 24, 2014
ABA Journal Honors Lowry's Blog Again
LAS VEGAS - Today Michael Lowry’s blog Compelling Discovery was included among the country’s top 100 legal blogs for 2014, as determined by the editors of the ABA Journal. This is the second time the ABA Journal has honored this blog, the first time was in 2013. In announcing the honor, the ABA Journal used a reader’s description as to why the blog is helpful in his practice.
"Simple, practical and succinct," writes Jorge Marquez of the Puerto Rico Department of Justice. Las Vegas lawyer Michael Lowry "takes issues that every litigator has to deal with and gives a detailed analysis on how he has had to address these obstacles. Great starting point for issue spotting, regardless of what jurisdiction you practice in."
“I am just as stunned this year as I was in 2013,” said Mr. Lowry. “There are thousands of legal blogs discussing many issues. I am honored that the blog’s readership thinks enough of it to nominate it, let alone that the ABA Journal’s editors selected as one of the top blogs again.”
The ABA Journal is now allowing readers to vote for their favorites among the top 100 through December 19. Votes may be cast here.
- Oct 8, 2014
Lowry Earns AV® Preeminent Rating
LAS VEGAS – Thorndal Armstrong Delk Balkenbush & Eisinger announces Michael Lowry has joined 15 other firm attorneys in earning an AV® Preeminent rating from 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.”
"I am honored that my colleagues in this peer review process elected to assign this rating to me. It is a result of years of mentoring and guidance provided by those in the community and I truly appreciate it,” said Mr. Lowry.
- Sep 29, 2014
Diamond Teaches Young and Old
LAS VEGAS – Shareholder Kevin Diamond gave a presentation to a group of 40 attorneys regarding effective and efficient ways to find a resolution to a litigated case prior to trial. The presentation included a class on Nevada's mandatory, non-binding arbitration program, and provided the attorneys with continuing legal education credits.
The next day Diamond, who is a member of the Nevada high school mock trial board, presented a seminar to about 30 students and 10 teachers on how to cross-examine witnesses at trial. "I find that teaching is not only a way to give back to the community, but also serves as a refresher and helps me to become a better attorney," said Diamond.
- 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.