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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

RENO – Today the Supreme Court of Nevada again addressed the appropriate method of calculating an injured worker’s average monthly wage (“AMW”). Sierra Nevada Administrators v. Negriev, 128 Nev. Adv. Rep. 45 (2012) arose from a claim by a bartender who was working at a sports bar. Although the bartender consistently reported to the sports bar any tip income he received, the sports bar failed to include this reported income on his paychecks for tax purposes. The bartender did not declare the tip income in his individual tax returns. As a result, during his workers’ compensation claim the bartender’s AMW calculation included only his taxed wage income, resulting in a lower benefit. The AMW governs the amount of monetary benefits under a workers’ compensation claim.

The bartender appealed and claimed the AMW should have included his untaxed tip income. The Supreme Court agreed. It determined NRS 616B.227 expressly permits untaxed tip income that an employee reports to his employer to be included in the AMW calculation.

This decision is follows upon another recent AMW decision, City of North Las Vegas v. Warburton, 127 Nev. Adv. Rep. 62, 262 P.3d 715 (2011). Warburton concerned the relationship between NAC 616C.444 and NAC 616C.435(7). Reading them together, the court found when an employee was promoted at or before the time she was injured such that no 12-week or 4-week history of past earnings was available for her new position, NAC 616C.444 required the wage basis for the newly promoted position be used to calculate the employee's average monthly wage.

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 Bob Balkenbush, visit us online at www.thorndal.com or contact us at (775) 786-2882.

LAS VEGAS – Today shareholder Paul Eisinger was recognized by the State Bar of Nevada for 10 years of service as a member of its Fee Dispute Arbitration Committee for the Las Vegas area. The State Bar states its "Fee Dispute Arbitration Program is an informal, free program designed to resolve fee disputes of $250 or more between attorneys and their clients." The goal is to eliminate costly lawsuits between attorneys and clients as to the payment for services.

Mr. Eisinger first joined the committee in 2002 and was selected as a regional chair in 2004. He remained in that position through 2012. As a regional chair Mr. Eisinger was responsible for managing a panel of 30 to 35 arbitrators and the cases assigned to each for resolution. Over the years Mr. Eisinger handled hundreds of fee disputes, saving many local attorneys and clients the time and expense of filing lawsuits over attorneys fees.

“I have met and worked with some truly outstanding people over the last 10 years and I wish the committee nothing but continued success in the future,” said Mr. Eisinger.

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 Paul Eisinger, visit us online at www.thorndal.com or contact us at (702) 366-0622.

LAS VEGAS - Today the Supreme Court of Nevada permitted the admission of evidence, in limited circumstances, of how much was actually paid to satisfy an injured person's medical bills.

Tri-County Equipment & Leasing v. Klinke involved a woman/employee who was injured, by a third-party, while within the course and scope of her employment. The employee received workers' compensation benefits and then sued the third-party for negligence. At trial the employee admitted evidence that her medical providers billed her a certain amount. The defense then sought to admit evidence that the medical providers had accepted, as payment in full, a lesser amount from workers’ compensation. The district court refused to admit the amount paid and the issue was appealed.

The Supreme Court reversed. "Applying Nevada law, we conclude that evidence of the actual amount of workers’ compensation benefits paid should have been admitted and that a clarifying jury instruction provided by statute should have been given."

In resolving this case, the court ruled narrowly. It seems to say evidence of the amount billed and the amount paid is admissible based under NRS 616C.215(10). Meaning the employee could tell the jury how much the providers billed, but the defense can state how much the providers accepted as payment in full. “Applying Nevada law, we conclude that evidence of the actual amount of workers’ compensation benefits paid should have been admitted and that a clarifying jury instruction provided by statute should have been given. “ Once this evidence is admitted, the jury decides the reasonable value of the services.

The court did not address any other context like Medicaid or other governmental programs with similar discounts. “Because the amount of workers’ compensation payments actually paid necessarily incorporates the written down medical expenses, it is not necessary to resolve whether the collateral source rule applies to medical provider discounts in other contexts.” This issue remains to be resolved in other 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. 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.

LAS VEGAS – The Supreme Court of Nevada recently clarified the standards of care applicable to real estate licensees as well as the damages recoverable against them in professional liability claims.

Davis v. Beling, 128 Nev. Adv. Rep. 28, 278 P.3d 501 (2012) arose from a series of residential property transactions gone awry. The owners of a property sought to sell their home, build another and purchase a second home as a temporary residence. They hired a realtor to assist them in this process and, when the deals fell apart, sued the realtor.

The realtor argued NRS 645.251 “shields real estate licensees from common law forms of liability.” Id. at 505. “We conclude that although the statute does not, in all instances, shield real estate licensees from common law forms of liability, it precludes such liability when the type of conduct complained of is covered by NRS 645.252, 645.253, or 645.254.” Id. As a result, realtors in Nevada are subject to statutory or common law liability depending upon the nature of the allegations.

The Court also considered “the damages that are recoverable for a real estate licensee's breach of the duties set forth in NRS 645.252-645.254, in light of NRS 645.257's declaration that ‘actual damages’ may be recovered for such violations. We conclude that the term ‘actual damages’ is synonymous with the term ‘compensatory damages.’ Thus, although punitive damages may not be recovered under NRS 645.257, we conclude that compensatory damages are recoverable under the statute in accordance with the measure of damages that appropriately compensates the injured party for the losses sustained as a result of the real estate licensee's violations.” Id. Again, the potential exposure of a Nevada realtor now requires consideration of the allegations and whether these qualify under the statutes as this will determine the damages available. .

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. 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.

LAS VEGAS - The Supreme Court of Nevada has now clarified an aspect of premises liability that had led to a $3,526,545.19 judgment. A couple went to a restaurant where they drank, ate and the woman was eventually injured in a slip and fall incident. The trial court instructed the jury as to

the "mode of operation" approach to premises liability, under which the plaintiff does not have to prove the defendant's knowledge of a particular hazardous condition if the plaintiff can prove that the nature of the defendant's business tends to create a substantial risk of the type of harm the plaintiff suffered, extends beyond the self-service context. Because the mode of operation approach is premised on the idea that business owners should be held responsible for the risks that their choice to have customers serve themselves creates, we conclude that it does not extend to "sit-down" restaurants.

FGA, Inc. v. Giglio, 128 Nev. Adv. Op. 26, 278 P.3d 490 (2012).

The court also explored Nevada's relationship to other jurisdictions using this form of premises liability analysis. It noted Nevada has not adopted the mode of operation analysis nor the competing recurrent risk analysis. "However, while they may have different labels, both the "recurrent risk" and "mode of operation" approaches involve essentially the same analysis: to determine whether owners are liable to injured patrons by analyzing whether there was a "recurrent" or "continuous" risk on the premises associated with a chosen mode of operation."

This ruling may impact Nevada premises cases by ruling out potential mode of operation jury instructions in the future. An injured customer may not simply allege that liability attaches due to a self-service store being self-service. The customer must still demonstrate the store had notice of the hazard that caused the injury.

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. 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.

LAS VEGAS – This morning Las Vegas associate Michael Lowry launched a new legal blog, a “blawg,” aimed at the discovery issues that commonly confront many lawyers. Compelling Discovery seeks to reduce the knowledge gap that exists because local Discovery Commissioners are unable to publish their decisions and the Supreme Court of Nevada is rarely able to consider these same problems. The result has been confusion and frustration as parties to lawsuits attempt to guess as to their discovery obligations under certain rules. This leads to unnecessary work for the parties, lawyers and the courts that might be avoided if more information was publicly available.

“The goal of Compelling Discovery is to reduce the knowledge gap and, hopefully, make the discovery process a little bit easier for all sides to a lawsuit,” said Mr. Lowry. “Discovery is frequently the most expensive stage in a lawsuit. I hope the blawg might help litigants and the courts to reduce that cost and promote speedy, efficient justice.”

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.

RENO – The June issue of Nevada Business published its 2012 Legal Elite list for Nevada. The magazine described those on the list as “attorneys that have received favorable reviews from the attorneys across the state they work with day-in and day-out. These are top attorneys in Nevada as voted by their peers. The list this year includes the top 150 Southern Nevada attorneys, the top 75 Northern Nevada attorneys, the 50 best Up and Coming attorneys and the 15 best Government attorneys.” It also noted the attorneys selected to this list were statistically among the top two percent of Nevada attorneys.

Thorndal Armstrong Delk Balkenbush & Eisinger is very pleased to announce associates Kevin Pick and Brandon Price were among those selected for this recognition. It is their reputation and rapport with their colleagues and clients that led to this distinction. “I would like to thank my colleagues for this honor. It is reflection of all the resources and opportunities the firm has provided me to truly excel as an attorney and offer the best services possible to my clients,” said Mr. Price.

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 (775) 786-2882.

LAS VEGAS – Starting in the just released May issue of the Clark County Bar Association’s monthly magazine, the Communique, shareholder Jim Armstrong will publish a three-part series concerning best practices for successful mediation. The goal of these articles will be to help parties and their attorneys implement good planning and strategy to produce a positive result. Mr. Armstrong has practiced primarily as a mediator since 2000 and has mediated hundreds of cases.

The first article in May’s Communique concerns the strategy of when and why to mediate a case. The second article will appear in the June/July issue and address the importance of appropriate preparation by counsel and the parties. The third article in the August Communique will discuss conducting the actual mediation hearing.

Mr. Armstrong noted, “I have truly enjoyed bringing parties together and mediating so many cases over the years. Along the way I have observed the good, the bad and the ugly in terms of mediation strategy. I am hopeful that by sharing these tips and best practices, more people will successfully reach resolution.”

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. Jim Armstrong himself is AV-rated and was named a Super Lawyer in 2007 and 2011 for his work. For more information about Thorndal Armstrong Delk Balkenbush & Eisinger or Jim Armstrong, visit us online at www.thorndal.com or contact us at (702) 366-0622.

LAS VEGAS – The firm's Las Vegas office is proud to congratulate Kevin Diamond for publishing in the May, 2012 edition of the Clark County Bar Association’s monthly magazine, the Communique. HIs article focuses on the unique challenges Nevada’s short-trial program creates for voir dire.

In an effort to alleviate some of the judicial backlog in Las Vegas and Reno, the Supreme Court of Nevada created a diversion program for cases with a preliminary value of no more than $50,000. Shareholder Jim Armstrongwas a member of the committee that created the program. The culmination of this program is sometimes a “short-trial” which, by rule, must be completed in a single day. To accomplish this goal, strict time restrictions are imposed upon the parties, including a restriction upon voir dire. In Nevada, the right of parties to voir dire a jury is protected by statute. Mr. Diamond writes about how best to effectively conduct voir dire to empanel a jury within these time constraints.

“The short-trial program is a good program for all parties as it can take what might be a three or four year process and can reduce it to nine months. It is important, however, that the parties be prepared to use the little time that they have effectively and I hope this article helps to make that a little simpler,” 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. 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.

LAS VEGAS – A common point of contention in many first-party, uninsured motorist and/or underinsured motorist claim scenarios is whether the carrier owes a duty to pay the undisputed benefits owed to the policyholder. In Nevada the plaintiffs’ bar has consistently argued NRS 686A.310 requires the carrier to make partial payment of at least the undisputed amount owed prior to the full resolution of the claim. In practice, if the carrier concludes the claim has a value of X, but the claimant asserted the value was Y, the plaintiffs’ bar argued NRS 686A.310 obligated the carrier to at least pay X pending full resolution of the claim. The Supreme Court of Nevada has yet to interpret this statute.

Nevada’s federal district court has now issued its interpretation of this statute. In an unpublished order, available on Lexis at 2012 U.S. Dist. LEXIS 12457 or Westlaw at 2012 WL 359748, the court concluded the claimant’s interpretation of the statute was erroneous. “Defendant argues that these provisions state that an insurer cannot hold payment under one section of a policy such as property damage, while attempting to influence resolution of another portion such as bodily injury. The plain language of the statute is in accordance with Defendant’s reading. Plaintiff has not provided any evidence which would persuade the Court that Nevada law requires Defendant to make partial payments before fully evaluating Plaintiff’s claim.”

“The firm has argued for many years NRS 686A.310 means exactly as the federal court has now ruled. There may be a time and a place for partial payments, however they are not legally required in Nevada,” explained shareholder Craig Delk.

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

LAS VEGAS - Las Vegas shareholder Kevin Diamond was recognized this week for his most current contribution to the Children's Attroneys Project of the Legal Aid Center of Southern Nevada. CAP attempts to match volunteer attorneys to children with pending cases in the family court system so as to help ensure their interests, which sometimes are different than their parents, are protected. Mr. Diamond has volunteered his services to CAP since its inception. Most recently, Mr. Diamond volunteered to represent two children under the age of five who the State had removed from their parents. Mr. Diamond successfully fought for the children's interest in being reunited with their mother. This successful outcome was specifically recognized by LACSN's Pro Bono Project newsletter.

"I have always believed that the law must work for the weakest among us if it is to work for all of us," said Mr. Diamond. "I am happy to have successfully reunited these children with their mother and resume their lives together."

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. Mr. Diamond himself has also received the prestigious Martindale-Hubbell AV rating. 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.

RENO – Thorndal Armstrong Delk Balkenbush & Eisinger announces Reno shareholder Brian Brown has joined 12 other firm attorneys in earning an AV® Preeminent rating by Martindale-Hubbell. Three other firm attorneys received this presitigous rating in 2011, Las Vegas shareholder Kevin Diamond, associate Kathy Maynard and Reno Of Counsel attorney Thierry Barkley. 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," noted Mr. Brown. Nearly 50% of the firm’s attorneys have achieved an AV® Preeminent rating.

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 Brian Brown, visit us online at www.thorndal.com or contact us at (775) 786-2882.

LAS VEGAS – Today founding shareholder John Thorndal was honored at a luncheon hosted by the Clark County Bar Association for 45 years of legal practice in Nevada. The luncheon honored Mr. Thorndal and other local attorneys who have been practicing at least 40 years. “Las Vegas has changed dramatically over the last 45 years, however the professionalism of the practice has always remained strong,” he observed.

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

LAS VEGAS -- Shareholder Kevin Diamond has been appointed by the Supreme Court of Nevada as a mentor for its new Transitioning Into Practice program. Administered by the State Bar of Nevada, “TIP is designed to provide transitional support to newly admitted attorneys as they enter practice.” The goal is to assist newly admitted attorneys to acclimate themselves to the rigors of a professional and ethical practice that delivers quality legal services to their clients.

“As my family and I have lived in Las Vegas for many years, I enjoy giving back to the community; here, the legal community. I have always taken great interest in helping new lawyers develop the skills and techniques that will benefit them in their careers. I am honored the Supreme Court appointed me as a mentor for this new program and look forward to continuing this work,” 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. Mr. Diamond himself has also received the prestigious Martindale-Hubbell AV rating. 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.

LAS VEGAS -- Associate Michael Lowry, was published today in the March, 2012 issue of Communique, the official journal of the Clark County Bar Association. The focus of this issue was on privacy law. Privacy is a concern that routinely appears in many cases as most will involve, at some point, medical records, employment information or corporate information.

Mr. Lowry's article, Discovering & Protecting Personally Identifying Information: The Basics, focused upon Nevada's statutory requirements for the protection of private information in court filings, as well as the federal counterpart. The article then discussed methods by which such information might be obtained in the discovery process and methods to protect both the information gathered, and the attorney, from the risks of inadvertent disclosure.

"This is the second time I have been selected for publication in the Communique and I am again happy to help educate the bar as to the importance of handling sensitive information carefully. Given the increasing ease with which information is shared in a digital world, privacy is an increasing concern to all of us," 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 or Michael P. Lowry, visit us online at www.thorndal.com or contact us at (702) 366-0622.

LAS VEGAS – Today the Supreme Court of Nevada issued a decision impacting the reach of Nevada’s comparative negligence statute, NRS 41.141. Café Moda v. Palma, 128 Nev. Adv. Op. No. 7 (2012) arose from a case where two customers at a café engaged in a physical altercation that resulted in Palma’s stabbing. At trial, the jury determined the assailant was 80% responsible whereas the café was 20% responsible. The district court, however, imposed joint & several liability, meaning Palma could recover all of his damages from the café despite the fact it was only 20% responsible.

The Court was asked to determine whether NRS 41.141 “permits liability to be apportioned between a negligent tortfeasor and an intentional tortfeasor.” It concluded the statute did in fact allow such an apportionment. “After reviewing NRS 41.141’s legislative history, we believe that the most effective way to carry out the Legislature’s intent is to construe NRS 41.141(4)’s use of the word 'negligence' to mean 'fault.' Having done so, we determine that appellant Café Moda is severally liable for 20% of respondent Donny Palma’s damages and that respondent Matt Richards is jointly and severally liable for 100% of Palma’s damages.”

“This case reached the right result” said Las Vegas shareholder Craig Delk. “It is simply unfair, as the Court noted, to hinge the civil liability of one party upon the mental state of an alleged criminal. This appears to be an implicit rejection of the contrary principle set out in Restatement (Third) of Torts: Apportionment of Liability § 14.”

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

LAS VEGAS -- The State Bar of Nevada held its annual regional high school mock trial tournament for southern Nevada on Saturday, January 14. It was again the first competition of the year for teams participating in the Bar's mock trial program and presents each team an opportunity to "try" a case. The trials are judged by local volunteer attorneys, including TADBE attorneys Kevin Diamond, Ken Lund, and Meghan Goodwin.

Mr. Diamond presently serves as a board member of the Bar's mock trial committee. He noted, “year after year I am impressed with how hard the students work to understand the facts and law of their case to present a vigorous trial.” Ms. Goodwin added “This was the second year in a row I’ve had the opportunity to serve as a mock trial judge and I really enjoyed it. I was very impressed with every teams' performance. The hard work and passion that the participating students put into this competition was evident."

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.

LAS VEGAS -- Shareholder James Jackson has been selected to join the prestigious Claims & Litigation Management Alliance. The Alliance 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 Alliance Fellows.

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. Mr. Jackson himself has also received the prestigious Martindale-Hubbell AV rating. 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 James Jackson, visit us online at www.thorndal.com or contact us at (702) 366-0622.

LAS VEGAS --In one of its final cases of 2011, the Supreme Court of Nevada has now adopted the "efficient proximate cause" standard utilized in other jurisdictions. The test is used to determine when an event is covered by an insurance policy.

Factually, Fourth St. Place v. Travelers, 127 Nev. Adv. Op. No. 86 (2011) concerned damage sustained to a building. The building's roof was under renovation when a storm destroyed temporary protection. The building was left exposed to rain and sustained significant damage. Travelers denied coverage for the damage, stating the damage did not result from a covered cause of loss. Suit was filed and the district court agreed with Travelers.

On appeal the Supreme Court agreed with Travelers, but took the opportunity to adopt the "efficient proximate cause" test. "Under the doctrine of efficient proximate cause, where covered and noncovered perils contribute to a loss, the peril that set in motion the chain of events leading to the loss or the 'predominating cause' is deemed the efficient proximate cause or legal cause of loss." Nevada agreed with California, noting the "doctrine prevents the absurd result that would occur if coverage was denied “even though an insured peril ‘proximately’ caused the loss simply because a subsequent, excepted peril was also part of the chain of causation.”

The impact of this ruling may complicate future coverage opinions as it expands coverage in certain situations. It could be necessary for these opinions to expand their scope as, if the claim involved both covered conduct and non-covered conduct, and the covered conduct initiates the series of events (including non-covered conduct) leading to the ultimate harm, the covered conduct could deemed to be the "efficient proximate cause" of the ultimate harm.

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 Craig Delk, visit us online at www.thorndal.com or contact us at (702) 366-0622.

RENO – Thorndal Armstrong Delk Balkenbush & Eisinger announces Thierry Barkley, Of Counsel in the Reno office, has been awarded the 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.” Mr. Barkley has practiced in Nevada since 1980.

"I am deeply honored by this recognition from colleages and members of the bench." noted Mr. Barkley, who is the 11th firm attorney to have achieved this recognition and the second in 2011.

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 (775) 786-2882.

LAS VEGAS – On December 2, the Legal Aid Center of Southern Nevada hosted its 2011 luncheon honoring its volunteer attorneys. In 2011, TADBE accepted an invitation from the Legal Aid Center to become a partner law firm in the Center’s Children’s Attorneys Project. The CAP attorneys represent the needs and interests of children involved in child protection cases.

At the luncheon, six TADBE attorneys, Chris Curtis, Kevin Diamond, Ken Lund, John Hooks, and Meghan Goodwin were honored for their work assisting the CAP project and other pro-bono matters. Mr. Lund’s work was especially noted as he donated more than 50 hours assisting children in need and helping tenants in landlord-tenant disputes. “Pro bono service is one of the most rewarding aspects of practicing law," said Mr. Lund. "The Legal Aid Center has made it easy to become involved. They have provided me with great training, great resources, and some wonderful clients, including the great children in the CAP program. I am simply happy to do what I can to help these clients get the best result possible.”

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 representing clients in all manner cases, 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.

LAS VEGAS – Today the Supreme Court of Nevada clarified liability for innkeepers in Nevada. Given the large number of hotels serving millions annually in Las Vegas, the Nevada Legislature enacted NRS 651.015, which governs the civil liability of innkeepers for the independent acts of third-parties. The statute requires the district courts to make certain determinations as a matter of law prior to trial in an effort to resolve cases before the expense of trial.

Smith v. Mahoney’s Silver Nugget, 127 Nev. Adv. Op. 76, 265 P.3d 688 (2011) arose from a shooting in the casino section of a hotel. The statute generally imposes liability against the hotel if it was on notice of the potential for this type of event, but failed to take precautions. “The legislative history of NRS 651.015(3)(a) likewise indicates that the circumstances surrounding the commission of a wrongful act may provide the requisite foreseeability for imposing a duty even where no prior incidents of similar wrongful conduct have occurred on the premises.” Evaluating the record before it, the Court determined “the Silver Nugget took basic minimum precautions to ensure the safety of its patrons.” Id. “Thus, we are convinced that the circumstances leading up to Smith’s murder did not provide the requisite foreseeability for imposing a duty upon the Silver Nugget under NRS 651.015(3)(a).” Id.

The statute also provides a secondary means of imposing liability. “NRS 651.015(3)(b) provides that foreseeability may be determined by an owner’s knowledge of prior similar wrongful acts. However, it does not provide any guidance as to which acts should be considered ‘similar.’” The court provided this guidance and concluded the hotel did not have knowledge of prior, similar acts. Summary judgment in favor of the hotel was affirmed.

“This case is an important development for many large hotels that I represent in Las Vegas,” noted shareholder James Jackson. “It clarifies a statute that had been ambiguous and provides more guidance to the hotels, their guests and the courts as to what must be shown to impose liability for the intentional acts of a guest.”

Thorndal Armstrong Delk Balkenbush & Eisinger is a Martindale-Hubbell AV-peer-rated law firm committed to providing the highest quality legal representation to hospitality clients. For more information about Thorndal Armstrong Delk Balkenbush & Eisinger or James Jackson, visit us online at www.thorndal.com or contact us at (702) 366-0622.

LAS VEGAS – The Las Vegas office of Thorndal Armstrong Delk Balkenbush & Eisinger is pleased to announce Greg Schulman has now joined the firm. Mr. Schulman has practiced in Las Vegas since 1995 and is also licensed in Arizona and California. Mr. Schulman's litigation practice focuses primarily construction defect, personal injury and premises liability as well as defense of employment related claims.

"It is fitting that with the Thanksgiving holiday nearing I have joined Thorndal Armstrong," noted Mr. Schulman. "I am thankful to have this opportunity to work with a dedicated group of professionals to protect the interests of our clients."

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 Gregory M. Schulman, visit us online at www.thorndal.com or contact us at (702) 366-0622.

LAS VEGAS – A frequent issue faced in Las Vegas construction defect suits is how to serve contracting entities who have dissolved or otherwise gone out of business. In Canarelli v. Dist. Ct., 127 Nev. Adv. Op. 72 (2011) the plaintiff homeowners sought to file sought against a dissolved developer. To effectuate service, homeowners applied for and received an order of the district court involuntarily appointing one of the developer's former directors as a trustee.

The trustee objected and asked the Supreme Court to invalidate this order. The Court agreed. It examined Nevada's corporate survival statutes and concluded the director could not be forced to act as a trustee. "We conclude that NRS 78.600 does not confer authority upon the district court to appoint an unwilling director trustee of a dissolved corporation because, once the director trustee has completed winding up the affairs of the corporation as provided for in NRS 78.590, his or her power to act on behalf of the corporation terminates."

Thorndal Armstrong Delk Balkenbush & Eisinger is a Martindale-Hubbell AV-peer-rated law firm committed to providing the highest quality legal representation to its construction clients. For more information about Thorndal Armstrong Delk Balkenbush & Eisinger or Christopher Curtis, visit us online at www.thorndal.com or contact us at (702) 366-0622.

LAS VEGAS – The Supreme Court of Nevada has now ruled in certain cases health insurance providers are not liable for the subsequent malpractice of their panel physicians. The two opinions issued today arose from claims arising from a 2008 hepatitis-C outbreak at certain Las Vegas endoscopy clinics resulted in hundreds of lawsuits. Some of these claims alleged the health insurance companies failed to adequately screen their panel physicians or establish a quality control program before referring patients to the clinic.

In Pacificare of Nevada v. Rogers, 127 Nev. Adv. Op. 71 (2011) a Medicare recipient sought to impose the quality assurance theory of liability against her Medicare Advantage Plan provider. The provider sought to enforce an arbitration clause in the policy, however the client argued the clause was unconscionable and therefore unenforceable. On appeal the focus was whether 42 U.S.C. § 1395w-26(b)(3) preempted an analysis of the unconscionable nature of clause. The Court noted ruling otherwise would create conflicting interpretations of the same materials between federal and state governments.

Cervantes v. Health Plan of Nevada, 127 Nev. Adv. Op. No. 70 (2011) brought similar allegations, however this health insurance plan was provided through the patient’s union. Health Plan of Nevada argued this preempted claims against it pursuant to ERISA sections 502(a) and 514(a). 29 U.S.C. §§ 1132(a), 1144(a) (2006). “We agree with the analyses adopted by the federal circuit courts and conclude that when a plaintiff’s claim is predicated on administrative decisions made in the course of administering an ERISA plan, the claim is necessarily preempted.” The Court also noted ERISA section 514(a) preempted NRS Chapter 695G in some circumstances. As a result, summary judgment in favor of Health Plan of Nevada was upheld.

A large number of cases remain pending in both district courts and the Supreme Court of Nevada arising from the hepatitis-C outbreak. Each of them, such the two discussed today, have the potential to substantially redefine the liability of both health insurance providers, doctors and pharmaceutical manufacturers in Nevada.

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

LAS VEGAS – James Jackson and Michael Lowry, attorneys in the Las Vegas office, have published an article about potential impediments to consumer class-action lawsuits based upon a recent ruling by the Supreme Court of the United States. The article, entitled Did the Supreme Court Kill Consumer Class-Actions? explored the impact of the Court’s AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011) decision. It noted the basis for the ruling was the Court’s decision the Federal Arbitration Act invalidated state court rulings refusing to enforce class-action waivers contained in certain contracts. The Court noted the goal of such clauses is to foster orderly and efficient resolution of claims, something it found class-action suits impeded.

“I am very pleased to have this article published by USLAW Magazine as the issues raised by Concepcion have a direct impact upon our clients,” said Mr. Jackson. 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. Mr. Lowry added, “given the magazine and article’s focus on issues facing commercial and corporate clients who routinely enter into contracts such as was decided by the Supreme Court, I am glad to raise awareness as to how this case might change the way business is conducted.”

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 James J. Jackson, visit us online at www.thorndal.com or contact us at (702) 366-0622.

LAS VEGAS – Thorndal Armstrong Delk Balkenbush & Eisinger announces Las Vegas shareholder Kevin Diamond has been awarded the 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.” Mr. Diamond has practiced in Nevada since 1993.

“I am quite honored to receive this rating as it is the result of anonymous surveys of attorneys and judges with whom I work on a regular basis. It is a privilege to be recognized by my colleagues in this manner,” noted Mr. Diamond. Mr. Diamond is the 10th firm shareholder to have achieved this recognition.

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.

LAS VEGAS – On September 1 Thorndal Armstrong Delk Balkenbush & Eisinger celebrated 40 years serving Nevada’s legal needs. In 1971 the firm opened in Las Vegas as Austin and Thorndal with two attorneys and a single secretary. “It is exceedingly difficult for attorneys to open their own firm and survive. The early days of this firm were no different,” commented founding shareholder John Thorndal. Since its founding the firm has repeatedly expanded both its reach, adding offices in Reno in 1986 and Elko in (year), and scope of practice. On its 40th anniversary the firm consists of 27 attorneys serving clients across the state.

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 John L. Thorndal, visit us online at www.thorndal.com or contact us at (702) 366-0622.

LAS VEGAS - The Supreme Court of Nevada has now added a new wrinkle to the claims-handling process for many carriers: a judicial assignment of bad-faith rights. Gallegos v. Malco Enterprises of Nevada, 127 Nev. Adv. Op. 51 (2011) arose from a car accident. The driver was purportedly insured however he failed to answer the summons and complaint, nor was any appearance entered on his behalf. Plaintiff then obtained a default judgment against the driver in excess of $400,000.

Plaintiff began efforts to collect on the judgment, all of which failed. He then filed a motion requesting that the district court assign to him and any all rights for bad faith causes of action against the insurance carrier the driver may have possessed. The court granted the motion and the plaintiff commenced a separate bad faith suit against the carrier. The carrier successfully challenged plaintiff's standing for such a claim, the case was dismissed and resulted in this appeal.

In resolving the question, the Supreme Court simply applied Nevada's collections statutes. The Court determined these statutes explicitly permitted the transfer of these rights, just as any other form of non-exempt property. "[W]e conclude that rights of action held by a judgment debtor are personal property subject to execution in satisfaction of a judgment." The plaintiff was thus permitted to proceed with the bad faith lawsuit.

Clearly this has a direct impact upon carriers in weighing whether to provide coverage to certain losses. Even where the insured cannot be located to participate in the defense, if a default judgment is entered against the insured, the carrier may find itself defending against a bad faith suit once any such rights are judicially assigned.

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

LAS VEGAS - In a first of its kind decision in Nevada, the Supreme Court has determined that before an insurance carrier may deny coverage for late notice under the terms of the policy, it must also demonstrate a prejudicial impact. LVMPD v. Coregis Insurance Co., 127 Nev. Adv. Op. 47 (2011) arose from claim that was first asserted against the insured police department in 1996. The police department had a self-insured retention of $1,000,000 and was only required to notify the carrier of claims once their probable value exceeded 50% of this retention.

After 10 years of procedural battles, the claimants issued a demand in excess of the threshold amount that was then reported to the carrier. The carrier denied coverage based upon late notice, a decision approved by the district court. On appeal the Supreme Court reversed finding a genuine issue of material fact existed as to the timeliness of notice. Furthermore "we conclude that when an insurer denies coverage of a claim because the insured party failed to provide timely notice of the claim, the insurer must demonstrate that notice was late and that it was prejudiced by the late notice in order to assert a late-notice defense to coverage."

The Court also provided guidance to district court's seeking to resolve these claims in the future. "[W]e adopt a notice-prejudice rule: in order for an insurer to deny coverage of a claim based on the insured party’s late notice of that claim, the insurer must show (1) that the notice was late and (2) that it has been prejudiced by the late notice. Prejudice exists where the delay materially impairs an insurer’s ability to contest its liability to an insured or the liability of the insured to a third party. The issue of prejudice is an issue of fact." (citations and quotations omitted).

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

LAS VEGAS - The Supreme Court of Nevada has now rejected attempts to restrict or exclude the scope of opinions offered by medical experts. Williams v. Dist. Ct., 127 Nev. Adv. Op. 45 (2011) arose from a hepatitis-C outbreak at a local endoscopy clinic that spawned dozens of personal injury lawsuits. In Williams an issue arose as to a nurse may testify as to medical causation as well as whether medical experts designated by the defendants and offering alternative causation theories must testify to a reasonable degree of medical probability.

As to the nurse, the Court concluded "a nurse can testify regarding matters within his or her specialized area of practice, but not as to medical causation unless he or she has obtained the requisite knowledge, skill, experience, or training to identify cause."

The Court's conclusion as to the second issue is likely to have a greater impact. Some district courts had excluded medical experts designated by defendants if all of their testimony was not to a reasonable degree of medical probability. The Supreme Court decided such blanket rulings are inappropriate. "[T]he standard differs depending on how the defendant utilizes the expert’s testimony. When a defense expert traverses the causation theory offered by the plaintiff and purports to establish an independent causation theory, the testimony must be stated to a reasonable degree of medical probability pursuant to Morsicato. However, when a defense expert’s testimony of alternative causation theories controverts an element of the plaintiff’s prima facie case where the plaintiff bears the burden of proof, the testimony need not be stated to a reasonable degree of medical probability, but it must be relevant and supported by competent medical research."

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. 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.

LAS VEGAS -- Shareholder Paul Eisinger has been re-appointed by the State Bar of Nevada to continue his service as a chair of its Fee Dispute Arbitration Committee for the Las Vegas area. The State Bar states its "Fee Dispute Arbitration Program is an informal, free program designed to resolve fee disputes of $250 or more between attorneys and their clients." The goal is to eliminate costly lawsuits between attorneys and clients as to the payment for services.

Mr. Eisinger stated "I am pleased to be re-appointed to this worthy program. In my time on this committee I have been happy to help countless attorneys and clients resolve differences as to fees without the need for costly lawsuits. I look forward to continuing this work."

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 Paul Eisinger, visit us online at www.thorndal.com or contact us at (702) 366-0622.

LAS VEGAS - Mountain States Super Lawyers today announced the selections of attorneys James Armstrong, Craig Delk and Thierry Barkley for recognition as 2011 Super Lawyers. Mr. Armstrong was selected in the area of personal injury defense and was previously recognized by Nevada Super Lawyers in 2007. Mr. Delk was selected for civil litigation defense. He was previously recognized by Mountain States Super Lawyers in 2009 and by Nevada Super Lawyers in 2007 and 2008. Mr. Barkley was selected in the area of insurance coverage, this is his first selection for this prestigious list. Each year, only five percent of lawyers in the state are recognized by Super Lawyers.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. Each year, the research team at Super Lawyers undertakes a rigorous multi-phase selection process that includes a statewide survey of lawyers, independent evaluation of candidates by the attorney-led research staff, a peer review of candidates by practice area, and a good-standing and disciplinary check. The Mountain States region includes Nevada, Utah, Montana, Idaho and Wyoming.

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

LAS VEGAS - The question of what liability do pharmaceutical manufacturers and distributors face has been a hot topic in Nevada in recent years. A 2008 hepatitis-C outbreak at certain Las Vegas endoscopy clinics resulted in hundreds of claims against manufacturers of Propofol for purportedly failing to sufficiently warn against antiseptic practices. The generic manufacturers argued it had adequately warned the doctors, as required by the federal agency regulating such manufacturers. In a highly publicized verdict, a jury ultimately awarded more than $500,000,000 against the manufacturers, this result is being appealed.

The Supreme Court of the United States has now issued a ruling that may overturn this huge verdict. Pliva, Inc. v. Mensing, 131 S. Ct. 1672 (2011) considered claims against generic manufacturers of another drug. Plaintiffs developed severe side effects they claimed were caused by the drug and the generic manufacturer's failure to adequately warn them of these potential side effects. The generic manufacturers argued such claims were preempted by federal law that specifically governed the warnings they could place on their products. The Court agreed with the manufacturers. In short, generic manufacturers are required to ensure their warnings are the same as the brand name drug against which they are competing. This requirement preempts state tort claims concerning failure to warn.

This ruling may have a direct impact upon the viability of the remaining endoscopy claims that continue to inundate the local courts as it seems to explicitly the key charge against the manufacturers. It will also be of a benefit to other generic manufacturers as they litigate the adequacy of warnings in the future.

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

LAS VEGAS - The Nevada Legislature enacted NRS 40.600 et seq. creating a statutory system for handling residential construction defect claims. These statutes permit a prevailing homeowner to recover his attorneys' fees and costs incurred in proving the defects. This statute has significant impact upon defendants when evaluating a case. General contractors attempted to create contracts with subcontractors to pass any such award through.

Reyburn Lawn & Landscape Designers v. Plaster Dev. Co., 127 Nev. Adv. Op. 26, 255 P.3d 268 (2011) arose from a construction defect suit where a subcontractor was hired on a project. The general contractor was later sued for construction defects. It sought to enforce a standard indemnification clause in their contracts and issued a tender of defense to the subcontractor. The subcontractor refused to defend, as the alleged defects were not within its scope of indemnity. Despite this, the district court had enforced the clause and held Reyburn responsible for all of Plaster's fees and costs incurred defending the suit.

The Court first reiterated its prior case law that Reyburn, as the subcontractor, was not obligated to defend Plaster, the general contractor, from its own negligence as explicit language to this effect was not included in the contract.

The Court also determined Reyburn was not required to pay all of Plaster's fees and costs incurred in defense. "Finally, based on our conclusion that the duty to defend extended only to claims connected with Reyburn's potential negligence, we further conclude that any award of attorney fees to Plaster should have been limited to those fees and damages incurred defending against the causes of action concerning Reyburn's scope of work, not the entire amount of damages and all attorney fees and costs Plaster incurred throughout this eight-year litigation."

This conclusion may potentially have far reaching impact upon Nevada's construction defect suits. A common settlement tactic against subcontractors had been to argue, if they refused to settle and lost at trial, the single subcontractor could be responsible for all of the general contractor's attorneys' fees and costs incurred pursuing the case. Reyburn seems to clarify this argument to indicate the subcontractor is only responsible for those fees and costs directly related to the subcontractor's negligence.

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

LAS VEGAS - Today the Supreme Court of Nevada refined the requirements a party must satisfy to utilize Doe pleadings under NRCP 10(a), as interpreted through Nurenberger Hercules-Werke v. Virostek, 107 Nev. 873, 822 P.2d 1100 (1991). Sparks v. Alpha Tau Omega Fraternity 127 Nev. Adv. Op. No. 23 (2011) specifically examined the "due diligence" requirement imposed by Nurenberger and concluded the plaintiff had failed to satisfy it.

The Court noted the plaintiffs filed their initial complaint in February 2004, and discovery commenced in December 2004. The identity of one of the Doe defendants was learned approximately on one year and seven months later, causing a motion to amend to be filed. Plaintiffs then waited eight more months after leave was granted to actually file the amended complaint. "Thus, we determine that the [plaintiffs'] inexplicable delay in ascertaining the identity of the [Doe defendants] and their failure to promptly amend their complaint once they ascertained the proper identity of the [Doe defendants] demonstrates a lack of reasonable diligence."

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. 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.