Personal Injury

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.

 

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.