Our Results Archive
- Feb 17, 2016
Eisinger & Parks Win Subsidiary Liability Case
Earlier today a Nevada federal judge granted summary judgment in a case against a resort company that sought to hold it liable for alleged negligence of its subsidiary in Aruba. A Canadian citizen traveled to a resort on Aruba owned by a subsidiary. While there she tripped, fell and asserted an injury. Rather than suing the subsidiary in Aruba, the guest returned home, and then filed suit in Nevada against the subsidiary’s parent company. She claimed the parent and subsidiary were alter egos, meaning the parent could be liable for the subsidiary’s negligence.
Paul Eisinger and Kathy Parks represented the resort parent company. They repeatedly noted throughout the case that the wrong company was sued, that Nevada lacked jurisdiction over the Aruba subsidiary, and that Dutch personal injury law would likely apply. The guest ignored these warnings and proceeded with the lawsuit. At the end of discovery, Mr. Eisinger and Ms. Parks argued to the court that there was no evidence of anything but a typical corporate parent-subsidiary relationship. There was no basis to find the parent was an alter ego of the subsidiary or to hold the parent liable if the subsidiary had actually been negligent.
The court agreed and dismissed the case. First, the court noted that the guest’s alter ego argument was based upon an incorrect reading of the company’s form 10-K filings about its corporate structure. Second, the fact that the two companies had two directors in common was insufficient. Finally, there was no evidence that corporate formalities to establish and maintain separation had been breached.
- Dec 18, 2015
Diamond Helps Kids in Pro Bono Case
Shareholder Kevin Diamond accepted a pro bono case to represent three children in a trial seeking to terminate their parents’ parental rights. Sadly, the children’s mother had fallen victim to drug abuse and the father was incarcerated for numerous offenses. Nevada’s Department of Family Services concluded the children were at risk in this environment and would be best served if they were removed from their parents. The Department went to court to accomplish this and Mr. Diamond was appointed to separately represent the children.
Before trial, Mr. Diamond successfully terminated the mother’s rights. The father insisted upon trial. At trial, Mr. Diamond was assisted by law clerk Matthew Winters. Mr. Winters volunteered to help and was permitted to participate in trial by Nevada’s program encouraging law students to gain experience by participating in pro bono work. The trial was a success for the children as the father capitulated and agreed to terminate his rights shortly before Mr. Winters was to cross-examine him. All three children may now be formally adopted by a loving family member in the near future.
“Assisting children as clients is a difficult situation,” says Winters. “Here they were too young to understand what was happening other than that they might go to live with a family member. Our goal was to provide these children a better opportunity in the future by providing them stability in their home life they never had before.” Diamond added, “here, stability is exactly what was achieved as the children will all be adopted by a family member and continue to grow up together as opposed to living in split foster homes. Pro bono cases like these are exactly what makes practicing law very rewarding, especially right before the holidays.”
- Sep 22, 2015
Plaintiff Spoliates Evidence; Case Dismissed
Today a local court dismissed a product liability case brought against a mobility device manufacturer. A person with disabilities was using a power scooter and was injured. The person asserted the injuries occurred because the power scooter was defective and notified the manufacturer. The manufacturer wrote the person and asked that he preserve the power scooter so it could be inspected.
The person later filed a lawsuit and the manufacturer hired shareholder Brian K. Terry to defend it. When Mr. Terry asked to inspect the power scooter, as had been anticipated, the person advised the power scooter had been discarded. No inspection was ever performed.
Mr. Terry asked the court to dismiss the case. The person alleged the power scooter was defective but the manufacturer was never given an opportunity to evaluate the power scooter and determine what happened. The person argued for an adverse inference or presumption in lieu of dismissal, which may be appropriate in mere negligence cases. The court agreed with Mr. Terry that such an analysis does not apply to product liability cases. The court then dismissed the case.
- Sep 4, 2015
Court of Appeals Affirms Dismissal
Legal malpractice claims can harm a lawyer’s public and private reputations. A strong defense is important to protecting those hard earned reputations. Shareholder Brian Terry routinely defends these cases and was retained to defend a local judge who was sued by a client arising from a conviction when the judge was in private practice. Mr. Terry successfully moved to dismiss the case, before discovery ever started, because the judge had been appointed to defend the criminal via a public defender program. The Supreme Court of Nevada has ruled attorneys functioning in that capacity are protected by sovereign immunity.
The plaintiff then appealed, arguing the case should be reinstated. The case was assigned to Nevada’s Court of Appeals that opened in 2015 to relieve the appellate backlog. After briefing from Mr. Terry, the Court unanimously concluded the client had either waived these arguments or, even if not, then the errors still did not overcome the various hurdles to reinstating the case.
“This was an extremely dubious claim, and the newly instituted Court of Appeals brought the appeal to resolution expeditiously,” said Mr. Terry.
- Aug 18, 2015
City Vindicated Before EEOC
In April 2012 a former City of West Wendover employee filed a discrimination claim against the City with the with the U.S. Equal Employment Opportunity Commission. The employee alleged the City discriminated against him due to his national origin and disabilities under the Americans with Disability Act. The EEOC investigated for three years and recently advised the City it will not proceed with any further investigation of the employees allegations.
Shareholder Philip Goodhart represented the City in this investigation. Although the EEOC’s investigation was lengthy, he was pleased that justice was eventually served. "Throughout this investigation the City complied with every EEOC request. City made every reasonable attempt to accommodate the employee's physical restrictions and limitations," said Mr. Goodhart.
- Jul 30, 2015
Supreme Court Rules on Third-Party Bad Faith in Nevada
For years, claimants’ counsel in Nevada have argued that NRS 485.3091 gives standing to a third-party claimant to sue a third-party insurer for bad faith. Nevada Direct Insurance Company hired Douglas J. Duesman to defend it against one case that argued this point. The district court agreed with Mr. Duesman that NRS 485.3091 does not provide standing and dismissed this section of the complaint. The remainder of the case was tried and defensed.
On appeal the claimant continued to argue NRS 485.3091 provided standing. The Supreme Court of Nevada concluded “nothing in the statute grants a third-party claimant an independent cause of action for bad faith against an insurer.” Although the Court did conclude that the insured’s failure to cooperate in defense did not eliminate Nevada’s mandatory minimum coverage, it refused to permit the independent cause of action for bad faith.
“The Court answered a question that has been driving a lot of litigation locally,” said Mr. Duesman. “This ruling appropriately defines to whom an insurer owes a duty.”
- Jun 11, 2015
Court Dismisses Bad Faith Claim Defended by Terry
Merely moving from state A to state B does not mean you get to then sue people from state A in state B. Yet this is the factual scenario confronting an insurance company who hired Brian K. Terry to defend it from a bad faith claim. The company operated exclusively in one east coast state. Two residents of that state bought an insurance policy. They later moved to Nevada and tried to sue the insurance company for allegedly breaching its obligations under the insurance policy.
Mr. Terry recommended the company file a motion to dismiss for lack of jurisdiction. The company had never done business in Nevada. It instead sold a policy to people in another state based on that state’s laws.
Today United States District Court Judge Andrew Gordon granted the motion. “The key question is one of due process: would it be fair, based on [the company]’s contacts with Nevada, for it to expect to have to defend itself in a Nevada court. I find that it would not be fair.”
- Jun 5, 2015
Plaintiff Folds Days Before Trial
The mere fact that an accident happened does not mean that someone was negligent and responsible for the damage. A guest at a casino in Las Vegas tripped, fell and was injured in the parking lot. The fall was on video and the injury was a broken bone, but the casino found nothing wrong with the parking lot and denied the guest’s request for compensation.
The guest filed a lawsuit and the casino hired Las Vegas shareholder Kevin Diamond to defend it. Throughout discovery, Diamond too found nothing wrong with the parking lot. The guest hired an expert witness who examined the scene three years later and argued a joint in the parking lot’s surface was 0.125” too tall. Under deposition questioning, the expert conceded that because the joint was designed to move and he could not correlate his finding to the date when the guest fell three years earlier.
As trial neared, Mr. Diamond filed a motion to exclude all of the guest’s medical damages because she had not disclosed expert witnesses to discuss them. After a contentious hearing, the judge granted the motion almost completely. The guest claimed the fall had cost her more than $62,000 in medical costs, but because she had not properly disclosed expert witnesses, at trial she could only discuss $2,300 of these costs. After this ruling, the case settled on very favorable terms for the casino.
“I credit the client for sticking to its defense in this case,” said Diamond afterwards. “The casino did nothing wrong and the guest never proved otherwise.”
- Jun 1, 2015
Court of Appeals Affirms Litigation Privilege Ruling
The Nevada Court of Appeals affirmed a judgment attorneys Brian Terry and Greg Schulman won for their client. The attorney-client had recorded a lis pendens on the claimant’s Nevada property based upon litigation claims in a California lawsuit. The property owner then sued the attorney, arguing he had slandered the property’s title because the lis pendens prevented the property’s sale for a profit before the Nevada real estate market crashed.
The district court had granted summary judgment to the attorney for several reasons, including that the lis pendens was covered by the litigation privilege. This absolute privilege protects people from civil liability based upon communications published during the course of a lawsuit. The plaintiff appealed but the Court of Appeals affirmed.
- May 21, 2015
Diamond Helps Contractor Obtain License
Shareholder Kevin Diamond appeared in front of the Nevada State Contractors Board for a client attempting to obtain a concrete cutting contractors license. The client's application had been denied on three prior occasions, before Diamond’s involvement. The client’s Qualified Employee was involved in an altercation seven years ago which resulted in a misdemeanor battery conviction. The prior denials were based upon the Contractors Board’s belief that the prior misdemeanor rendered the qualifying employee and therefore the client unfit for a license. Diamond argued that the employee was forthright about the prior conviction, paid his restitution and acknowledged a poor decision. However, the qualifying employee had no problems in seven years and is an active member of a number of charitable organizations. Diamond further argued that the Board should allow the employee and the company the ability to move forward. The Board agreed, granting the license.
Diamond stated “I believe the Board realized that the qualifying employee paid his dues, owned up to his mistake and as a result should be allowed to be a productive member of the construction community in Las Vegas”.
- Feb 12, 2015
Terry Wins 3 Cases in 1 Day
LAS VEGAS – Winning one case is an accomplishment, winning three in one day is an extremely rare feat. Las Vegas shareholder Brian Terry was hired to defend three different local lawyers each sued for malpractice in different lawsuits. Each lawsuit had fatal weaknesses to the theory against the attorney and Mr. Terry moved for summary judgment as to all three.
In the first case, a criminal defendant unhappy with his public defender sued the public defender for malpractice. This effectively stopped the criminal prosecution because the defendant’s constitutional right to counsel was impacted because he and counsel could not communicate. Mr. Terry moved to dismiss. Nevada’s public defenders are state employees protected by sovereign immunity. Further, even had they been private attorneys, the accused must demonstrate he was convicted due to the malpractice. Here, however, the accused had not yet been convicted. Summary judgment was entered dismissing the case.
In the second case, two former clients of a private attorney alleged advice he provided and that they followed caused them to be criminally convicted of various crimes. Each served time in prison and filed unsuccessful petitions for writs of habeas corpus. After the legal malpractice suit was filed, however, the former clients delayed ever serving it. Despite years of stewing about the attorney’s negligence, the legal malpractice lawsuit was dismissed for failure to timely serve. As the statute of limitations had expired, the former clients were barred from re-filing.
Finally, Mr. Terry was retained to defend an attorney from a malpractice claim arising from a tax lien negotiation matter. A client hired one attorney to negotiate a tax lien. The terms of the retainer provided the attorney certain incentive payments if the liens were reduced quickly. The tax lawyer claimed he reduced the liens within these times but the client refused to pay the incentives. The attorney sued for his bonus and then the client filed a third-party complaint against another attorney claiming he committed malpractice as her family lawyer.
Nevada strictly limits third-party complaints to claims for contribution and equitable indemnity. The court first agreed with Mr. Terry that all claims except for equitable indemnity could not be pled in the third-party complaint. It then also agreed that for equitable indemnity to apply, Mr. Terry’s client had to be responsible for whatever damages the client caused the tax lawyer. This was impossible: the client affirmatively chose not to pay the tax lawyer. The case was then dismissed.
- Jan 5, 2015
Eisinger Starts 2015 With a Win
LAS VEGAS – Everyone wants to have their day in court, but that day must be earned per court rules. This was the situation Paul Eisingerencountered in defending a Laughlin casino from a lawsuit filed by a Canadian guest who claimed she had fallen and been injured on the property. The guest filed the lawsuit but failed to meet any of the court deadlines imposed upon her to move the case forward to trial. Most importantly, she failed to open the discovery period for nearly 2 years. This prevented the casino from conducting its investigation of the merits of the case and defending itself.
Mr. Eisinger asked the court to dismiss and argued that the guest’s delays had materially prejudiced the casino’s ability to defend itself due to the passage of time. By the time the motion to dismiss was heard, more than four years had passed since the fall. The court rejected the guest’s sole excuse: a family illness that arose only after the deadlines had expired.
The court concluded the guest had her opportunity to earn a day in court, but failed to earn it. The case was dismissed.
- Dec 4, 2014
Diamond Obtains Dismissal for Hotel
LAS VEGAS - Shareholder Kevin Diamond obtained a dismissal of a lawsuit brought by a man who claimed to have slipped and fallen on a French fry in a bowling alley of a hotel/casino. Diamond and his client maintained throughout the case that the maintenance and inspection procedures were proper in the bowling alley, and as a result the hotel/casino is not at fault for the claimed fall. As Diamond stated “the law in Nevada is clear that the fact that someone may have fallen in a hotel does not automatically mean the hotel is at fault. If the hotel can prove that it had reasonable procedures in place, the hotel should not be found at fault.”
The local court agreed with Mr. Diamond and dismissed the case against his client.
- Nov 13, 2014
Delk Wins for Southwest Airlines
LAS VEGAS - The mere fact that an accident happens does not mean that it was due to someone’s negligence. Yet this is exactly why one Nevada airline passenger sought to hold Southwest Airlines responsible for her fall on a jetway. She blamed the airline and filed a lawsuit.
Southwest hired shareholder Craig Delk to defend it. Mr. Delk deposed the passenger who acknowledged that she could not identify the specific defect, hazard, or other condition that caused her to fall. Nor when viewing photographs of the jetway was she able to identify precisely where she fell, although she believed it was near one of the “metal strips” running across the jetway floor. Plaintiff’s granddaughter, who was with her at the time, gave similar testimony. If a passenger cannot identify what caused her to fall, the airline cannot be responsible for failing to protect her against some unidentified and unknown hazard.
At Mr. Delk’s recommendation, Southwest filed a motion for summary judgment that the court granted.
- Nov 10, 2014
Balkenbush Wins in Supreme Court
RENO – Today the Supreme Court of Nevada ended more than six years of litigation over who has the right to access certain beaches within the Incline Village General Improvement District and if an ordinance codifying the acquisition of these beaches was constitutional.
In 1968 the District acquired certain lake front beach properties but the purchase was subject to a restriction that limited beach access to people living within the District’s 1968 boundaries. When another district merged with the Incline Village district, the new members who lived outside the 1968 boundaries were not permitted beach access, nor were they assessed for beach improvements.
Reno shareholders Steve Balkenbush & Kathy Parks were retained to defend the District against a lawsuit filed by a resident who resided outside the 1968 boundaries but demanded beach access. The resident argued the ordinance preventing him from accessing the beach was unconstitutional because the District only had authority to obtain property for “public recreation.”
The District successfully defended against the claim in district court, but the resident appealed. In a 14 page ruling, the Supreme Court, sitting en banc, unanimously agreed the resident had not met his burden of proof. As a result, the Supreme Court affirmed.