Don't Judge MGM Too Harshly for Filing Suit on the Route 91 Shootings


This past week, it was announced that MGM was “suing” the victims of the Route 91 Harvest Festival shootings that occurred on October 1, 2017. The headlines were shocking, and the reactions on social media condemned MGM for its heartless legal maneuvering. In a world of “hot takes” where people want to get angry instead of informed, this is becoming all too common. Before you judge MGM, though, I would humbly suggest you consider three things.

1. MGM is Seeking Declaratory Relief, Not Money Damages.

MGM isn’t “suing” the victims in the traditional sense. MGM is filing for something called “declaratory relief.” Declaratory relief is what you seek when there is a dispute over the interpretation or application of the law and you want a judge to sort it out for you to give you finality and certainty. This is a departure from the typical rule stating that judges will not give “advisory opinions,” which means that you can’t just ask a judge what he or she thinks about an issue without actually having a claim.

MGM is trying to get a determination from a federal judge that a federal law on terrorism prevention applies to MGM to shield it from liability. In order to give the victims a fair chance to argue in opposition of this, MGM is required to include the victims in the lawsuit. It’s a concept that is incredibly important in the law: notice. MGM is placing all the victims on notice that they are asking the judge to rule that MGM is shielded from liability because they hired an appropriate third party to take anti-terrorism measures. MGM is required to bring the victims in and give them a full and fair opportunity to tell the judge why MGM should not be shielded from liability. If MGM didn’t include the victims in the suit, the ruling would not be effective against the victims because they would have had no chance to oppose MGM.

2. MGM Didn’t File First.

MGM was already facing hundreds of claims by victims and they waited almost a year to file for declaratory relief. Admittedly, this may have been a strategy in order to move every claim into federal court (which would likely be perceived as a more favorable venue for MGM in this case), but it also is worth remembering that MGM didn’t file the first lawsuit here – it is reacting to the lawsuits filed against it. The victims have every right to file suit, and we all sympathize with them. But when you start the war, the response is going to be... well, war-like. MGM’s lawyers have an obligation to the company to get the best result, and MGM’s board of directors have an obligation to its shareholders to preserve MGM’s assets as best as they can.

I know, it’s not a popular opinion to defend a large corporation or its lawyers, but I’m not trying to defend them – I’m trying to say that if the lawyers and the board decided not to file because they want to be “nice” to the victims, they’d arguably be violating their duties to the company. If this option exists, and the option appears to be the best plan to preserve MGM’s assets (when compared to the public relations hit they will take), the lawyers and the board are actually duty-bound to take the option. MGM is a corporation. No matter how many nice signs they post around Las Vegas or how much they tell you they care about you, the only people a company actually is supposed to care about are its shareholders. 

To put it another way – are the same people who are upset at MGM for filing this declaratory relief suit also upset that MGM was defending the state court lawsuits? Should MGM have just filed an Answer to the Complaint admitting liability and handing over all of its money? Certainly not. We expect that when you get sued, you will defend yourself and a jury of your peers will decide who prevails. It doesn’t mean you don’t sympathize with the victims, it doesn’t even always mean you don’t think you did anything wrong. I’ve defended wrongful death claims where my client was 100% to blame and we all knew it. You defend the case respectfully, and professionally, and you try and find a solution where your client can live with the result and the victims’ families receive something that makes their lives a little more bearable after their loss.

3. This Will Likely be the Fastest Way to Resolve these Lawsuits.

People unfamiliar with the litigation process likely have no concept of just how long cases like this would take to resolve in state court. When you have 20 different lawsuits with hundreds of different plaintiffs, you are almost guaranteed that these suits would take the full five years allowed under the law to complete – or even longer, in some cases. By going directly to federal court and seeking declaratory relief for its primary defense, MGM is actually fast-tracking the resolution here. The sole or primary issue in its federal suit will be the application of that federal law, and the discovery and briefing on that one issue will almost certainly resolve well in advance of any of the individual state court suits. When you have one issue to brief that is purely legal and not factual, you bypass a lot of things that cause litigation to drag on and on. Given the high visibility of this case and how many individual claims are reliant on the resolution, I would expect that the issue would get resolved in less than two years and possibly even sooner than that if the attorneys press the matter.

What this means is that MGM is actually going to speed up the resolution one way or the other. If MGM wins the declaratory relief suit, then they’ll argue they should be dismissed from all the state court actions immediately. This would leave Live Nation and the other defendants as the sole remaining parties, and would exert enormous pressure on those parties to settle because MGM will no longer be there with their massive pockets to share the potential burden. The state court suits currently involve finger-pointing at each other among the defendants and that usually is a substantial impediment to settlement because no one can agree on who should pay the most money. If you read my prior article on this, I think the best arguments are against Live Nation for the lack of appropriate emergency exits, not against MGM anyway.

If MGM loses, then MGM will remain in the state court suit and would know that its plan of raising this defense is likely no longer viable. This will likely cause MGM to evaluate its fact-based defenses (since its legal defense is out the window), and when a company is left solely with fact-based defenses against massive potential exposure, they usually are more willing to come to the bargaining table. MGM is trying to avoid going to trial here because they know that a jury will likely sympathize with the victims and may punish a large corporation at trial regardless of what fact-based defenses MGM can raise.


A Long-winded Explanation of a Long-winded Process: What to Expect if you Decide to File a Lawsuit

I’ve chosen to tackle this subject based on consistent misunderstandings I have observed with new clients. Perhaps it is due to the swift justice we see on television shows where a suit is filed, investigated, and tried all in the span of 60 minutes (minus commercials). In reality, the process can take months or years, even in relatively simple cases. This blog isn’t meant to dissuade you from filing a suit, but rather to just inform you of what you need to expect in most circumstances so you go in with eyes open. Here’s what you can expect if you decide to step into the shoes of a plaintiff and file suit in Nevada:

1.            Your attorney will likely first try and engage the defendant in settlement negotiations prior to filing. Rarely can you settle anything but the smallest cases outside of litigation, since insurance companies will often try the ol’ “ignore it and maybe it’ll go away” defense. Still, it is worthwhile to try and open these discussions before shelling out the filing fees and beginning discovery. This process can take anywhere from two weeks to a couple of months while a claims file is opened and the defendant or adjuster asks for basic case information and records.

2.            If those negotiations do not result in a settlement, then you go ahead and file a Complaint. That is the document that begins your action. The filing fees in Las Vegas are around $250.00 depending on your case, and the defendant gets 20 days to file an Answer. Often, though, a Defendant will request an extension to file an Answer because there is a delay between receiving the Complaint and getting an attorney on board and up to speed. Good lawyers grant these extensions instead of playing hardball for no reason. This initial process should be expected to take three to six weeks.

3.            The next question in Las Vegas litigation is whether your case is required to be litigated in arbitration or not. If your case is very small, it likely will get pulled into the mandatory arbitration program. This means you do not usually get a jury trial, but you get a quicker case resolution before an arbitrator – usually about 6-9 months for an arbitration compared 18 – 24 months (or longer) for trial. The arbitrator can only award up to $50,000.00 for your claim, though. If your case does not qualify for arbitration, though, then your lawyer needs to file a request to remove it from arbitration. This should be expected to take 25 – 45 days based on the back log for the ADR commissioner we have seen recently. Since arbitration is a quicker, easier, and cheaper process, I’ll just focus on what happens if your case is taken out of arbitration for the remainder of this blog.

4.            Now, you will start moving into “discovery.” This is the phase of a case that can last 6 – 12 months (or longer, based on motion filings later) wherein each side gets to investigate the claims and defenses. Most defendant law firms have standard discovery requests they will issue to you called interrogatories (written questions you have to answer under oath), requests for production (written requests for you to give them documents), and requests for admission (written questions they want you to admit to settle certain issues for certain). Good firms tailor these questions to the actual case and limit them to only questions they really want answers to. Bad firms just pull up their standard list, use “find and replace” to put your name instead of the last party’s name, and send them out. We handle a lot of defense cases here at MLO, and our policy is to always tailor the discovery requests to the specifics of the case and not try and harass or burden the plaintiff just to be difficult. What goes around comes around, after all. But many defense firms use these requests more as a way to make money for the firm than as a way to investigate the case, unfortunately.

5.            The next phase of discovery will usually involve depositions. Depositions are like a dry run of trial testimony but in a more informal and friendly manner. The other side’s lawyer will issue a notice to your lawyer saying they want to sit you (or your witnesses, family members, etc.) down and ask you a bunch of questions under oath and with a court reporter present. Depositions are far more useful than written discovery requests because you have to answer the questions in real-time without your attorney assisting you. Your attorney will sit next to you and try and protect you from bad or improper questions, but for the most part you will have to answer the vast majority of questions asked on your own. If you’re the plaintiff, these questions can be about your injuries, your family, and even some very embarrassing things. Your attorney needs to sit down with you beforehand and explain the process and let you know what types of questions to expect so you aren’t caught off-guard. Your deposition may be videotaped, also. But your attorney should let you know well in advance whether it will be videotaped. Most depositions are not videotaped, but rather just rely on a court reporter to transcribe the proceedings.

6.            Once the fact witness depositions are completed, the next phase of discovery usually involves expert witnesses. This is where the parties have an opportunity to find experts in their fields who will support the arguments offered by each side. A plaintiff in a personal injury case may get an expert to explain to the jury how the injuries were caused and what kind of treatment was necessary and reasonable. A defendant in that same case may get experts to explain to the jury why the accident was not the fault of the defendant or to tell the jury that the treatment sought by the plaintiff was not justified, reasonable, or related to the accident. Experts are expensive, though. They will usually charge you to issue their “expert report” and then they will also usually get deposed by the other side, which is expensive. They can eat into your recovery by a substantial amount, even though your attorney usually will front the expenses. Because of this, it can sometimes make sense to try and discuss settlement with the other side before you sink too much money into expert witnesses. This is the same for both plaintiffs and defendants; we advise plaintiff and defendant clients that the best chance to settle can often come before the parties sink a lot of non-refundable money into expert costs.

7.            Settlement and mediation are tricky things these days. The fundamental problem with mediation and settlement is that you are asking an attorney for the defendant to do something against his or her own self-interest; if you settle the case, the defense attorney no longer gets to bill on the file and make money. Additionally, the plaintiff’s lawyer cannot speak directly to the defendant, but rather has to go through his or her attorney, so you have no idea whether the defense attorney is actually properly communicating the strengths of your case to his or her client and/or insurer. Good defense attorneys realize that you get more work by doing the right thing for your client than you do by dragging cases out to make more money. Smart clients and smart insurance adjusters can tell when a defense attorney is dragging out a case or making more work than necessary. Our firm’s philosophy when we work for defendants is that the best marketing you can do is to get your client a good result and save them money, even if that means settling early. They will usually come back and may refer you even more work in the industry because you’ve done a good job for them. Unfortunately, there are many firms we deal with when we represent plaintiffs that do not share this philosophy. We routinely get insulting, ridiculous settlement offers from these firms and watch them try and bury us in discovery requests and excessive depositions. Often, these firms will bill more than the case was ever possibly worth but their clients never realize it. It’s frustrating, but it’s just part of the business these days.

8.            If settlement fails and you get through expert witness reports and depositions, there isn’t much left between you and trial. Discovery will be closed, so it’ll be less about determining the facts at this point and more about your lawyer fighting the other side over what evidence can be considered by the jury.  This phase is called the pre-trial phase, and it consists of Motion In Limine (a Latin phrase meaning “at the threshold,” where you ask a judge to determine an evidentiary issue before you get to trial) and Motions for Summary Judgment (where you ask a judge to just end the case now because your arguments are so awesome a jury will always agree with you, essentially – these rarely win, but are still worth a shot in the right circumstances). The pre-trial phase usually lasts 60-90 more days.

9.            Then comes trial. Very few cases actually get to trial, however. If your case goes to trial, you should expect that your lawyer will want you present for the entire trial because the jury needs to see you there, invested in your case. The jury will pay very close attention to your behavior at trial, so make sure to dress appropriately, don’t react too much at what is happening, and try and do your best to appear friendly/polite/professional in every interaction. You would be amazed how much a jury will care about this; they need to think they’re doing the right thing by finding in your favor, so don’t give them any reason to dislike you.

10.          After the trial, you would think you’re done – but that isn’t always true.  Depending on the result, the actual final phase is oftentimes an appeal. An appeal is when one party (usually the losing side) says that the trial court messed up an important issue and they want a higher court to change the decision. Appeals are done for a lot of reasons, but one of the more common reasons is to force the winning party to take something less than they won at trial. Appeals can take months or years and require a lot of work and money. The winning party may decide it would rather not risk the appeal winning and potentially having to go through trial all over again, so that party may agree to settle the case for a lower value.

All in all, the litigation process usually takes at least two years from start to finish, and our office has handled cases that take more than five years from start to finish. This can feel like an eternity when it is your life that is disrupted.

What should you do while this is all playing out?

The key for you is to stay involved and stay in communication with your lawyer throughout the process. Your lawyer is (hopefully) busy and has a lot of cases. It’s not personal if your lawyer hasn’t contacted you in a while with an update – litigators function on a “what’s hot right now” schedule of communication and review. We’d go crazy if we were looking too far down the road all the time, so we focus on what’s in front of us and rely on our staff to keep us abreast of deadlines. You make your case “hot” by sending a quick e-mail to your lawyer every few weeks saying “Hey, anything going on? What’s coming up next?” It forces your lawyer to sit down and evaluate your case and make sure nothing is being missed. It also ensures that your case remains a priority for your lawyer, even if your case may not be his or her largest file. As long as you’re not overdoing the “check-ins” or being unreasonable, most litigators I know appreciate the client staying involved.

- Andy Muehlbauer

The Legal Implications of the Route 91 Harvest Festival Shooting

It’s now been a little over a week since Las Vegas suffered the Route 91 shootings on October 1, 2017. It’s been an incredibly difficult week for us here in Las Vegas, especially as we still sit here wondering what on earth could make someone commit such a profoundly evil act against a group of strangers who were just trying to enjoy music and the company of friends.

There is more than enough already written about the deranged individual who meticulously plotted the shooting, but the point of this blog post is to address the inevitable legal ramifications of the shooting. I’ve already been asked by my family and friends about who will get sued over this tragedy and if the victims can win. There is no perfect answer at the moment, but this post is an attempt to break down who, if anyone, could be held potentially liable and why.

The shooter

Obviously, the shooter is liable for his intentional acts. There is more than enough proof to demonstrate who was shooting and what the results of that were. The victims of the shooting should obviously be making claims against the estate of the shooter to ensure that his money does not go to his heirs. One of the victims has already sued to freeze the shooter’s assets to ensure this does not happen.

This is a unique situation in a sense because the shooter evidently was financially well off when he died. Usually suing the estate of a shooter would be a relatively futile act because most deranged lunatics do not amass the type of wealth that he evidently did.

The manufacturer of the bump stock

At least one lawsuit has already been filed against the manufacturer of the bump stock. This likely was done for the sake of completeness in naming parties and also to garner headlines, but it is unlikely that the manufacturer of the bump stocks used here would be liable. Many, many people have tried to sue gun manufacturers before without success. As long as the government allowed them to be sold, the manufacturer will have a strong defense. This is especially true since the manufacturer would have no direct interaction with the shooter and thus could not have been placed on notice of the shooter’s possible intent.

Still, the law is changing all the time and the standard of care is a concept that evolves continuously. The tobacco industry was thought to be immune from lawsuits until they weren’t. The argument here is better than the usual argument against gun manufacturers, since it appears the bump stock was manufactured specifically to circumvent federal law banning sales of fully automatic weapons manufactured after 1986. Liability for the manufacturer still remains relatively unlikely in my opinion, however.

Gun stores that sold the guns

Current evidence suggests that all the guns were purchased legally from several different stores. Absent some compelling new evidence showing that the shooter made his intentions known or demonstrated clear and unequivocal signs of mental instability, the gun stores should not even be named in a lawsuit. No court is going to make a gun retailer the insurer against bad acts by the purchaser.

Mandalay Bay

The most common question out there seems to be whether Mandalay Bay and MGM could be held liable for the deaths and injuries here. It’s impossible to give a perfect answer because we do not yet have perfect information on the timeline leading up to the shooting. There are essentially two distinct arguments against Mandalay Bay, based on the current information known.

The first argument is that they should have known that the shooter was bringing that arsenal up to his room. The problem here is that the standard of care for hotels does not include evaluating the contents of any guests’ bags. There’s no reasonable expectation that security at Mandalay Bay should have been scanning the bags or boxes brought up by the shooter. The standard of care in the industry is based on what everyone else in the region does, and no hotel that I’m aware of has you pass your bags through any type of scanner before taking them to your room. Unless the shooter was walking in with an armful of rifles, it’s hard to argue Mandalay Bay should have been on notice of his intentions.

The second argument involves the chronology of the shooting, and may carry a little more weight depending on how the facts play out. Original reports were that the shooting began and then Mandalay Bay’s security went up to the 32nd floor to investigate. The security guard was shot by the shooter, called the police, and the police arrived shortly thereafter. Now, though, the chronology is shifting to suggest that perhaps Mandalay Bay’s security officer went up to the 32nd floor before the shooting. Then he radioed down to call for the police, but at the date of publishing this post it is unclear whether Mandalay Bay’s security actually did call the police or not at that point.

If Mandalay Bay called the police immediately upon learning of the shooting, it’s hard to argue that Mandalay Bay did anything that violated the standard of care. We do not expect hotels to handle violent criminals without police intervention. If, however, the police were not called following the shooting of the Mandalay Bar security officer, this could implicate Mandalay Bay in the liability because that delay could have potentially contributed to the deaths or injuries of the over 500 victims. A six-minute delay doesn’t seem like much, but the shooting evidently lasted a span of approximately 10-12 minutes in total. Reducing the response time by six minutes could have potentially limited the number of casualties.

Facts are still being sorted out, though, so it’s difficult to say whether Mandalay Bay will be held at all responsible. I would say that any lawyer who thinks he or she can sue Mandalay Bay under the first theory and get a quick settlement is delusional. Las Vegas hotels and casinos are intimately aware of the precedent set by their litigation decisions and MGM has too much at stake to roll over and pay a settlement simply because they sympathize with the victims. If this was two or three people injured, it may be a different story. Lawyers are a predictable group, and if MGM pays a settlement under a questionable theory of liability, MGM will be facing 500 more copycat suits in short order.

Festival organizer

The last potential party responsible here would be the festival organizer for Route 91. This was the only avenue of liability I could see early on because of all the stories of people unable to escape the festival grounds. While it would take substantial expert testimony and analysis to prove, it is not unreasonable to conclude that a festival organizer should anticipate a panic situation like this and provide a reasonable amount of emergency exits from the festival with clear markings and easy access in such an event. How many exits is enough, though? How much signage is required? How does a festival balance the need for ample exits with the countervailing need to keep out people who didn’t pay to attend the festival? These are difficult questions and factually intensive, but there is certainly a factual scenario I could envision where the festival organizers are held responsible for the injuries.


In summary, the shooter’s estate will certainly be liable for the deaths and injuries here. The gun stores are highly likely to not be liable. The bump stock manufacturer’s liability is up in the air, but if the lawsuit goes like virtually every other suit before it, the prospects don’t look good. A suit against Mandalay Bay would need a clear chronology demonstrating that Mandalay Bay failed to act reasonably in response to learning of the shooter’s presence in their hotel, but it’s unlikely they can be held liable for not screening the bags taken up by the shooter unless it was so obvious what was occurring that any reasonable person would have been suspicious. Finally, the festival organizer may be held liable if there is sufficient evidence to show that a lack of planning or design of the festival grounds contributed to the injuries incurred by the victims.

As I said above, though, the standard of care evolves continuously as our understanding changes. The above analysis holds true as to this incident only. Everyone in the world now knows that it’s possible to commit a heinous act like this in a new way that was never really pondered before, and every hotel operator will be charged with that knowledge. This makes a similar incident more reasonably foreseeable than the Route 91 shooting ever was. This potentially changes the standard of care moving forward. Hotels and casinos are currently struggling to decide how much this incident warrants changes in their procedures.

- Andrew R. Muehlbauer, Esq.

Update 10/17/2017: More lawsuits are rolling in, but the question has come up as to how you can sue for money damages when companies like Zappos are paying funeral costs and something like $10,000,000.00 is waiting to be distributed to victims. Setting aside the ethical question of whether you should be suing when you may already receive full compensation from charitable sources, these payments likely would never come into evidence in Nevada. Nevada uses the collateral source rule in cases like this, which says that receiving compensation from a third party is legally irrelevant to the claims of a plaintiff. 


Common Misconceptions on Nevada Employment Law and Things Every Employee Should Know

            I am routinely amazed at the amount of smart, educated people who have drastic misconceptions about their employment rights. The following is a brief discussion in plain English of a few things that everyone should know about employment law in Nevada and some advice on how to handle a potential employment dispute.

Nevada, like virtually every state, is an “at-will” employment state.

                Many people I encounter think that Nevada employers need to have a good reason to fire you, but that simply is not true. The truth is they just need to not have a “bad reason” to fire you. “At-will employment” means that you and your employer can terminate your employment relationship at any point, for any reason, with or without notice. A lot of people automatically feel like this is unfair – shouldn’t your employer need a good reason to fire you? Most of us would agree, but what about the other side of the equation: do you need a good reason to quit? In an at-will employment position, you can quit whenever you want without giving notice, just like your employer can fire you whenever it wants (subject to some limitations discussed below) without notice. It seems unfair when you’re on the wrong end of an arbitrary termination, but it doesn’t seem unfair when you quit your job to get higher pay somewhere else. If you were subject to an employment contract, you could be denied the opportunity to take that higher paying job or you could theoretically owe money to your employer for the costs incurred by you breaking your contract. So I always tell people to be careful what you wish for – employment contracts aren’t always everything they’re cracked up to be. 

At-will employment and “right to work” are two very different things.

                Because Nevada is such a strong union state, a lot of people confuse “at-will” employment and “right to work,” but these are actually two very different things. “Right to work” just means that Nevada does not allow anyone to compel you to join a union to secure employment.  At-will employment is discussed above. Nevada is both an at-will employment state and a right to work state.

At-will employment does not mean there are no limitations on why your employer can fire you.

                Nevada has some exceptions to the at-will employment doctrine, however, that can potentially protect you: implied contracts and public policy exceptions. Implied contracts arise when your employer, through written or oral communications, indicates to you that your job is secure in some way. These types of implied contracts can be found in a variety of circumstances, such as when an employer states that you will only be fired for just cause, if the employee handbook includes a finite list of reasons for which you can be terminated, or if your employer pledges to only terminate you after progressive discipline is enacted. Trying to prove such contracts can be an uphill battle, though, and most employers are smart enough to write their employee handbooks with disclaimers.

                Public policy exceptions are situations where a court determines that Nevada has a strong interest in stopping someone from being fired for some act. Reporting illegal behavior, refusing to violate the law, or filing a worker’s compensation claim are a few of these exceptions. As you can probably tell, however, these exceptions usually only arise in “last resort” situations. You don’t want to plan to rely on public policy, because by that point you’re probably already in a bad position with your employer.

Advice on Handling a Potential Employment Dispute

                Employment law is one field of the law where the so-called “bright-line rules” can be elusive. This field involves a case-by-case analysis that considers the entire context of your situation, so it’s difficult to give blanket advice on how to handle any given situation – and be wary of those who tell you otherwise. The best advice you can get is:

·         Take a conservative approach when it comes to evaluating your rights and remedies in the workplace. This means you shouldn’t rely on anything unless you’ve got it in writing or there has been clear and convincing support given by someone with the power to speak on behalf of your employer.

·         Don’t listen to what happened to someone else and assume it applies to you – that person had his or her own context that you may not fully appreciate.

·         Document everything. If you think you’re headed for an employment dispute, start keeping notes of conversations and save e-mails on a separate device if you can.

·         Don’t consider suing anyone for revenge or because you feel you were treated unfairly. Only file suit if you have concrete and provable money damages. Otherwise litigation is guaranteed to be more headache than redemption.


Nevada Car Insurance from a Lawyer’s Perspective

Most people think of car insurance as something similar to a registration fee – it’s something that the government requires you to carry in order to drive a car on public roadways. Any litigator will tell you, however, that your insurance decisions are some of the most important decisions you can make when it comes to your future financial well-being. The first and most important issue any litigator will consider in the event of a car crash is the insurance status of all involved parties.

Based on my experience litigating auto accidents here in Las Vegas, I recommend getting at least 100/200 in bodily injury liability coverage, matching it with your Uninsured/Underinsured coverage, and $50,000.00 in property damage coverage. I also recommend getting $10,000.00 in Medical Payments coverage if you can afford it. Remember – the base coverage for your policy is the most expensive part. Upping your limits is comparatively cheap.

It is extremely unwise to drive around in a city like Las Vegas with the minimum Nevada coverage of $15,000 per person/$30,000 total bodily injury coverage. Here are some things to consider when picking your coverage:

1.       Unless you’re “judgment proof,” you risk having a catastrophic hit to your financial future if you only carry the minimums.

  • “Judgment proof” is the colloquial term to describe someone who has little to risk in a lawsuit. Maybe someone can get a huge judgment against you if you hit them, but there’s nothing they can do to collect it because you have no home equity, an old car, and no property worth anything.

  • I carried minimum limits when I was in college because I knew that I had nothing of value anyone could take and sell, and we no longer have “debtors’ prisons.”

  • Judgments hang around a long time, though. Even if you’re judgment proof today, you might not be in 2-3 years and the plaintiff in that case can usually still enforce his or her judgment against you at that time. The last thing you want is to finally be making good money only to find out that the plaintiff is garnishing your wages three years later. 

2.       Even a minor fender-bender can blow through $15,000.00 in bodily injury coverage in a matter of days or weeks.

  • The trend in Las Vegas is to seek out a pain management specialist immediately after an accident and get him or her to conduct a round of spinal injections at anywhere from $3,000.00 - $10,000.00 per session even in a very minor accident.

    • Although it’s ultimately up to the physician, I do not recommend this course of action to my plaintiff clients. You should always go with a conservative course of treatment first and only start injections if conservative methods fail. Not only is it healthier for you, but it also builds a better damages case if you have to go through litigation.

  • I had a case recently where my client rear-ended a woman at a stop light and caused some minor damage to her vehicle, but by the time we even got notice of the claim, she had racked up $100,000.00 in spinal injections because she had a sore neck and back.

    •  If my client only had $15,000.00 in limits, the insurer would have “tendered” (offered up) its $15,000.00 insurance limits and my client would be forced to pay the rest of it. Luckily my client was smart and had adequate coverage.

3.       Uninsured/Underinsured Motorist Coverage is great.

  • When you think about getting into an accident, who do you expect to hit you in Las Vegas? The cardiologist on his way to the hospital? An investment broker coming home from a long day at work? Or, more likely, a teenager texting his friends while he drives home or a drunk coming off a 12-hour bender?

  • Teenagers and drunks don’t exactly prioritize insurance in their monthly budget. You’ll be lucky if they even have the minimum insurance coverage.

  • If you have a good Uninsured/Underinsured policy, though, it doesn’t matter. That’s because you’ll get the at-fault driver’s insurance limits and then turn around and tell your insurer that they owe you the rest of your damages.

  • In Nevada, the Uninsured/Underinsured motorist coverage has to cover all damages you could recover from the at-fault driver if he was adequately insured. This means your insurer steps into the shoes of the drunk guy that hit you.

  • Don’t expect your insurer to just cough up the money, though. If you are dealing with them directly, they’re some of the most difficult adjusters you can find, in my experience. If you are dealing with them without a lawyer, expect them to offer you pennies on the dollar because they assume you’re bluffing. If you were serious about filing suit, you’d have a lawyer and they know it.

  • As long as your lawyer understands the policy, the laws of Nevada, and can lay out (“blackboard”) your damages you will present at trial, you can get a great recovery from your insurance carrier.

  • Be careful, though – talk to a lawyer before settling with the at-fault driver’s insurer. If you don’t know what you’re doing, you can screw up your claim.

4.       Medical payments coverage is also great. If you can afford it, bump up this coverage.

  •  “Medpay” coverage is fantastic because you can use it to pay your medical bills and your insurer has no right of subrogation in Nevada. This means you can sue the at-fault driver, collect damages for the bills you ran up and paid with Medpay, and your insurer doesn’t get a dime of that money.

  • You can also use it as bait with the medical providers to get them to reduce their liens and put more money in your pocket if you know how to handle the situation.

  • Everything in this world is negotiable if you have the right leverage. To a good lawyer, medical bills for your injuries are just an opening offer and not set in stone. 

Changes to Nevada’s Construction Defect Law – What Does it Mean for Homeowners?

As you probably have heard, Governor Sandoval recently signed into law Assembly Bill No. 125 (“AB 125”) that drastically changed the landscape of construction defect claims in Nevada. Nevada had been at the forefront of pro-homeowner legislation for about two decades in this field. Lawyers flocked to Nevada to practice construction defect law because of the drastic increase in the number of cases Nevada’s “Chapter 40” statute had brought about.  AB 125 was passed for many reasons, but the primary purpose was undoubtedly to curb that trend.

There are many provisions of the Bill that will have a substantial impact on litigation in Nevada, but the most important provision for the general public is certainly the changes to the statute of repose. A statute of repose is a lot like a statute of limitation, which is the more familiar term to most. It sets a deadline for an injured party to bring his or her claim. If you don’t file a lawsuit or do something else to toll (postpone) the statute, then you could be barred from filing a lawsuit.

Under the old system, homeowners would have anywhere from 6-12 years after purchasing their new home from a builder to bring a construction defect lawsuit. Construction defect lawsuits included everything from minor issues, like paint peeling, all the way to the big problems, like foundation cracking. Due to the statute of repose, you would see homeowners that were nearing the end of their statutory period filing lawsuits to “preserve” the statute and get the builder to come out and repair anything that was wrong with their home (or, in the alternative, write a check). Many times these lawsuits will act as a whole-home checkup and facelift because the definition of a “construction defect” under the statute was so broad that almost anything could qualify. The threat of attorney fees and expert fees encouraged homebuilders to pay substantial settlements just to get rid of the claims.

The problem with the old statute of repose was that the language of the statute was so poorly written that no one could be 100% certain of when their home was beyond the statute. I won’t bore you with the finer points of the law here, but the concept of the statute was a good one: defects that were obvious had shorter statutory periods and hidden/concealed defects had longer periods. The execution of this plan was horrible, however, and most lawyers in Las Vegas just assumed that any owner of a home built less than 12 years ago was capable of filing a lawsuit. 

This is all gone now. In AB 125, the legislature has changed it to one uniform statute of repose: six years from substantial completion of your home. Substantial completion is essentially the date that your home is fit for occupancy, and is defined in the statute in more detail. This statute is going to apply retroactively, meaning that it will apply even to homes that were built before AB 125 was passed.  So if your home was built from 2003 - 2009, this law will bar you from filing a lawsuit against the builder in the very near future.

There is a one-year grace period built into the new statute, however, to protect homeowners who may be affected by this drastic change of policy. If your statute of repose is set to expire this year and your claim “accrued” prior to the effective date of AB 125 (which is February 24, 2015) you may still be able to file a lawsuit as long as you do it quickly.   

I have litigated thousands of homes in construction defect litigation here in Nevada, representing clients who sue and who get sued, and I was initially very happy to see reforms being made to construction defect law in Nevada. The system that was designed to protect homeowners was routinely abused to the point where even well-built, quality homes were joining construction defect litigation and putting small businesses into bankruptcy. The majority of the changes are good ones, which should help builders and insurance companies return to Nevada and help our economy grow over the next decade.

I believe the change to the statute of repose was a mistake, however. There needed to be revisions to the statute of repose, but reducing it to a blanket six years goes too far. I have litigated hundreds of homes that didn’t show any signs of soil movement or structural damage until the homes were at least 4-5 years old. My top civil engineer expert witness has repeatedly said that many homes with expansive soils will not show their full signs of damage until five years or more after construction.

The best advice I can give you if your home was built from 2003-2009 is to take the time now to investigate your home. Have a home inspector come out and check your home or talk to a construction expert and have him or her take a look around your home if possible. Most of us cannot possibly identify signs of problems that are on the horizon; we can only spot the most obvious of defects. Hopefully your home is in great shape and you’ll have the peace of mind that comes with having it inspected. If not, the time to act is now. There is no guarantee you will succeed on your claim, but you will lose your right to even try if you don’t take action this year. 

- Andrew R. Muehlbauer, Esq.