Vegas Personal Injury Law Blog

It is very difficult to be in a rational state of mind following a motor vehicle accident. The first question that may come into your mind following an auto accident is, “Do I have to stop”? The law says that you must stop after an accident. It doesn’t matter if the auto accident involves a pedestrian, a moving car, a parked car or other real or personal property. If you drive away from an accident you can be charged with “hit-and-run”. Even if the accident is not your fault, “hit-and-run” penalties are severe. You may be stuck with a large fine or be picked up and taken to jail. You could even lose your driver’s license. If you hit a parked car, try to find the owner. If you cannot locate the owner, you may only drive away after leaving behind your name, address and an explanation of the accident. You must also notify the local police either by telephone or in person.

The most important thing to do following a motor vehicle accident is to keep track of the facts.

You should always keep a note pad and a pen in your vehicle. It is extremely helpful to have either a cell phone or a disposable camera to take pictures following an accident.

At the accident scene, before you even get out of the vehicle, try to write down the license plate, year, make and model of the other vehicle or vehicles involved in the accident. After an accident the adverse vehicle may leave the scene, especially in situations where adverse driver has a bench warrant or has no insurance or no driver’s license.

Before the police arrive at the accident scene try to obtain and exchange information with all other drivers. Obtain their name, address, home, work and cell phone numbers, license plate number and insurance company information, including their policy number. Keep a record of all names, addresses, phone numbers and e-mail addresses for any witnesses to the accident.

Take photographs of the damage to the vehicles involved in the accident and also take photographs of the other drivers. They may try to leave the scene without providing you with their information. It is also helpful to have photographs of the accident scene in general. Typically, it takes law enforcement between our 15 minutes to an hour to arrive at the accident scene.

After the police arrive at the accident scene they will ask you to fill out a written statement. While you are waiting for the police to arrive you can start preparing your statement.

Eventually the police will ask you about how the accident happened. They will also ask you if you need medical attention. While you’re at the accident scene your adrenaline will be pumping and you may not experience any symptoms of a neck or back injury. These symptoms may not appear until hours after the accident and often appear after you have left the accident scene. If you have any sign of trauma after the accident, you should relate that to the investigating officer. If you decline medical attention, advise the officer that you will seek medical attention after you leave the scene of the accident with your private physician, quick care facility or your local hospital. If you have symptoms of dizziness, numbness, headache, disorientation or even minor neck and back pain, this should be reported to the investigating officer. If any part of your body made contact with the interior of your vehicle report that to your investigating officer.

In most cases the investigating officer will provide you with either a driver exchange card or a computer printout with basic information concerning the parties and vehicles involved in the accident. Always get the event number before you leave the scene from the officer so that you can obtain a copy of the traffic accident report.

You will either leave the accident scene by ambulance, by a ride in the tow truck, by a ride from a friend or relative, or you will drive your own vehicle away from the accident scene.

At some point after you leave the accident scene you must contact your own insurance company to report the accident.

If your injuries are severe or you have a concern about your health, go to a hospital.

If you have any signs of injury that require medical attention, this should be your first priority after being involved in an accident. See your family doctor, a quick care facility or chiropractor, if your injuries are not severe enough for you to go to the emergency room.

If you go to a hospital, you will need to know that you will probably incur three bills. The first is the hospital bill itself. The second is the bill from the emergency-room doctor, and the third is a bill from the radiologist who reads your x-rays. While you’re at the hospital you should try to obtain information concerning the identity of the healthcare providers related to these three bills. Oftentimes, it is difficult to obtain copies of the bills related to the emergency-room doctor and radiologist, because these bills most often are submitted to health insurance and the injured party never receives a copy. It is important for you to tell your attorney that he had x-rays at the hospital, so that he can order the radiologist’s bill.

If your symptoms continue, you should seek follow-up medical care. This may involve going to a chiropractor, doctor of osteopathy or medical doctor who is familiar with personal injury claims. If you go to a general practitioner who is not experienced in personal injury claims, the record keeping and the ability of the healthcare provider’s office to fully address your personal injury claim may not be sufficient.

If you lose time from work, keep a log of the time that you’ve taken off work as a result of the accident. If you use sick days, or if you use PTO or FMLA, this should be documented. Always require your treating physician to provide you with a doctor’s excuse, whether or not one is required by your employer. In the event that you have an inability to function properly at work due to your injuries, this should be documented by your supervisor. Also, a letter from your employer verifying and income loss, use of sick days, use of paid time off, or use of FMLA is extremely important to document your wage loss claim.

If you are a student, and you miss time from school, document missed school time and your inability to perform your schoolwork.

If you have visible injuries continue to take photographs of your injuries periodically and document the date of each photograph.

Keep a daily log of your pain, discomfort, emotional distress, fatigue, tenderness and inconveniences. Write down your feelings and experiences on a day-to-day basis documenting how the injuries have interfered with your daily life and relationships. This information should also be reported to your health care providers so that it can get into your medical records. See my Blog Post, “How Will Your Auto Accident Claim Be Evaluated?”

In the event that your vehicle is driveable, there is no rush in getting your vehicle repaired. Most people are anxious about getting their vehicle quickly repaired after an accident. If your vehicle is driveable, try to have the adverse driver’s insurance carrier take care of the property damage. This way the property damage will not be subjected to the deductible of your own automobile collision coverage. Ask the adverse insurance company if they utilize preferred shops? In the event that your vehicle is repaired at a preferred shop, the insurance company is on hook for any delay in the repair of your vehicle. In the event that your vehicle takes longer than expected to be repaired, the insurance company has to eat the delay by paying for your rental car during the entire time that your vehicle is being repaired. If you choose your own repair shop, the adverse insurance company will most likely only pay you for the reasonable amount of time that it should take to have your vehicle repaired. Believe me when I say that these delay issues are common problems on personal injury claims.

It is important to obtain a copy of the property damage estimate. In event they have a preliminary estimate from an insurance company and you take the vehicle to a repair facility, that repair facility will determine whether or not they can repair the vehicle for the amount of the preliminary estimate. If they can not, the proper procedure is that the repair facility will contact the adverse carrier to have a follow-up appraisal of the vehicle, especially after the vehicle is torn down and exterior parts are removed to reveal underlying damage.

Keep track of all of your out-of-pocket expenses for things such as ice packs, heating pads, bandages based bandages, childcare expenses, cancellation of vacations or loss of pre-paid trips, replacement of clothing, taxi service, or payments to others for transportation.

Are there automobile accidents where auto insurance coverages do not apply?  The answer to that question is, unfortunately, yes.

On December 30, 2004, a young man was driving his pickup truck westbound on Hacienda.  The adverse driver, prior to the accident, was driving his pickup truck northbound in the southbound lanes on Rainbow (on the wrong side of the road), ran a red light at a very high rate of speed and collided with the driver’s side of the young man’s vehicle.  The young man died almost instantly.  The collision between the adverse vehicle and the decedent’s vehicle prevented the adverse vehicle from colliding head-on with the other vehicles that were stopped in the southbound lanes of Rainbow for a stop light.

The adverse driver claims to have experienced a seizure just prior to the accident.

The traffic accident report approximates the adverse driver’s speed at approximately sixty-nine to seventy-three (69-73) miles per hour.

The adverse driver was taken to University Medical Center after the accident. His Dilantin level was below therapeutic range.

In the litigation that followed this fatal accident, the Defendants (the adverse driver and his employer) asserted the affirmative defense of “sudden medical emergency” or “blackout”.

The sudden medical emergency defense was established by the Supreme Court of Ohio in a case dating back to 1956, Lehman v.  Haynam, 133 N.E 2d 97 (1956). The Ohio Supreme Court stated, “where the driver of an automobile is suddenly stricken by a period of unconsciousness which he had no reason to anticipate and which renders it impossible for him to control the car he is driving, he is not chargeable with negligence as to such lack of control.”

In that case, the Defendants Affirmative Defense stated “The subject accident and Plaintiffs’ damages, if any, were caused by an unavoidable sudden emergency and not by Defendants’ negligence or other actionable conduct, the existence of which is denied.”

The Ohio Supreme Court reviewed the sudden medical emergency defense in the case of Roman v. State of Gobbo, 99 Ohio St. 3d 260, (2003). This involved an accident where the Defendant Walter Roman suffered an incapacitating heart attack prior to the accident. In that accident, the Roman vehicle caused a multiple vehicle car accident resulting in the death of Nino Gobbo and his wife Frances.

The “sudden medical emergency” defense has not been adopted by the Nevada Supreme Court.  Public policy in Nevada dictates that it should not be adopted in the state of Nevada.  However, in several cases filed in our District Court, the Defendants have raised this defense.

The rational behind the adoption of the sudden medical emergency defense is based upon the premise that to find a Defendant liable for the effects of an unforeseen medical emergency that causes sudden unconsciousness is to impose strict liability for the violation of traffic statutes.

To that extent the doctrine may be logical, however in equating no negligence with no liability the doctrine is not sensible.

In the Roman case, the decedents and injured parties were not negligent either. They did nothing wrong except to be in the Defendant’s path when they died or were injured. Yet these individuals bear the harsh consequences of the sudden medical emergency doctrine.

Because of this defense they could not recover damages from the person who caused them death and destruction, even though they were completely innocent victims of a motor vehicle accident. They also can not recover from their uninsured motorist coverage, since this coverage is fault based. This also does not make sense.  See my prior post  on Uninsured Motorist Underinsurance Coverage.

The prohibition against driving left of center, speeding and driving through a red light are some of our most important traffic rules established for the protection of the public.  Nobody would be willing to drive on our roadways without the expectation that others will comply with these traffic laws.  Yet, even these laws are trumped by the Sudden Medical Emergency Doctrine. The questions is, “Why?”.

No valid public policy is served by applying the “Sudden Medical Emergency Doctrine.”  The doctrine prevents accident victims from pursuing damages from the person who caused their death and injury. The doctrine prevents accident victims from collecting uninsured motorist coverage on their own automobile insurance policies, which they purchased to protect themselves and their families from just such a catastrophe.

The end result of the adoption of the sudden medical emergency defense is that accident victims involved in these unfortunate accidents, regardless of the degree of their injuries, would not be able to collect their damages from any liability insurance or from their own uninsured motorist coverage. This makes absolutely no sense. The “Sudden Medical Emergency Doctrine” is not logical and should not be accepted.

A better rule would be to allow innocent victims, like the Plaintiffs in the first example case, to pursue damages against the auto insurance coverage of the person who’s sudden medical emergency resulted in a violation of traffic safety laws which were the proximate causes of death or injury.

Nevada Public Policy concerning epilepsy is expressed by our traffic laws.

In the state of Nevada one of the qualifications to drive a commercial motor vehicle and obtain a Commercial Drivers License is that the applicant does not have an established medical history or clinical diagnoses of epilepsy or any other condition which is likely to cause loss of consciousness or any loss of ability to control a motor vehicle. See, NRS 391.41 (d)(8).

This statute states that “epilepsy is a chronic functional disease characterized by seizures or episodes that occur without warning, resulting in loss of voluntary control which may lead to loss of consciousness and/or seizures. Therefore, the following drivers can not be qualified:

(1) A driver who had a medical history of epilepsy;

(2) A driver who has a current clinical diagnoses of epilepsy; or,

(3) A driver who is taking anti-seizure medication.

The sudden medical emergency defense is contrary to Nevada’s financial responsibility laws.

NRS 484.185 states as follows:

Every owner of a motor vehicle which is registered or required to be registered in this state shall continuously provide, while the motor vehicle is present or registered in this state, insurance:

1. In the amount of $15,000.00 for bodily injury of one person in any accident;

2. Subject to the limit for one person in the amount of $30,000.00 for bodily injury to or death of two or more persons in any one accident;

3. In the amount of $10,000.00 for injury to or destruction of property of others in any one accident, for the payment of tort liabilities arising from the maintenance or use of the motor vehicle. (emphasis added)

The purpose of this section is to ensure that motor vehicles carry continuous liability insurance. State, Dep’t of Motor Vehicles v. Lawlor, 101 Nev 616, 707 P 2d 1140 (1985).

The sudden medical emergency defense creates an exemption from Nevada’s financial responsibility law. This is a windfall to the liability insurance carriers of the person claiming “sudden medical emergency.”

The purpose of the motor vehicle financial responsibility law is to guarantee protection to one who is injured by an automobile not covered by liability insurance.  A.G.O. 250 (3-27-1957).

If the “sudden medical emergency” defense is adopted by our State Legislature or by Nevada Case law, the burden of financial responsibility will fall upon the deceased or injured individuals and their families because they will not be able to rely upon their own uninsured motorist coverage to recover their damages.  Innocent victims would then have to rely on other collateral sources for payment of their lost earnings, medical bills, funeral expenses, etc. The financial burden of the sudden medical emergency defense then fall upon first party health insurance companies.  Since this defense extinguishes fault (negligence), it extinguishes the right of subrogation.  Subrogation is a fault-based legal concept which allows insurance companies paying medical bills or property damage bills to recover their payments from the third-party tortfeasor.

Nevada law is replete with cases protecting the rights of injured parties, See, e.g, State Farm v. Hinkle, 87 Nev. 478, 488 P.2d 1151 (1971) (Restriction on uninsured motorist coverage for a minor injured while riding a motorcycle by an exclusionary provision violated express public policy); Buck v. Greyhound Lines, Inc., 105 Nev. 756, 783 P.2d 437 (1989) (Affirming joint and several liability for negligence-free passengers protecting the rights of innocent victims of accidents); Rockwell v. Sun Harbor Budget Suites, 112 Nev. 1217, 925 P.2d 1175 (1996) (Non-deligible duty to provide responsible third-party security personnel); Allison v. Merck and Co., Inc., 110 Nev. 762, 878 P.2d 948 (1994) (Public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those that market them and be treated as a cost of production against which liability insurance can be obtained).

Assuming that no first party insurance is available in situations where the sudden medical emergency defense is asserted, then the burden of financial responsibility falls upon the general public. Our tax dollars in the form of public assistance will pay for medical care and living expenses of “sudden medical emergency” victims.

Whatdoyado to prevent the “Sudden Medical Emergency” defense from being adopted in Nevada?  Speak to your Legislators.

Rental car coverage is a fairly inexpensive coverage which you can add to your auto insurance policy. Generally, this coverage will provide you with a finite sum of rental car coverage in the event your vehicle is involved in an accident and it needs repair or if it is a total loss. The upper limit on this coverage is generally less than $1,000.00. There is also a limit on the daily cost of the rental car. Generally speaking, most policies will pay up to $30.00 per day and will provide a maximum of $500.00 – $800.00 of coverage.

Another inexpensive coverage is towing coverage. In the event your vehicle breaks down, or if it is involved in an accident and needs towing, this coverage will pay your towing bill.

In the event you are involved in an accident, it is comforting to know you can have your vehicle towed to a repair shop, and that you can obtain a rental car without the detriment and delay involved with relying on the adverse driver’s insurance to pay for your towing and rental car expenses. Oftentimes, your carrier will arrange a direct billing with the rental car company. When they do allow for direct billing, the rental car company bills your insurance carrier directly instead of you. Most first-party and third-party carriers have this arrangement with Enterprise Rental Car.

In the event your auto insurance company pays under your collision coverage, rental car coverage, and towing coverage, they have the ability to subrogate against the at-fault party’s insurance company. They can be paid by the adverse carrier up to the limits of the adverse driver’s property damage liability limits. Many of the insurance companies have agreements under which they resolve these disputes outside of the court system.

Wage loss coverage is available on most auto policies. It will provide you with a finite sum of wage loss coverage. Each insurance company is different regarding the amount of wage loss coverage that they offer. In most cases, it can be as little as $1,000.00 or as high as $10,000.00. The premium for this coverage is reasonable. In most cases, there usually is a ten (10) day or two (2) week period that must elapse before this coverage becomes effective. Wage loss coverage pays only a portion of your wage loss, such as 2/3′s of the actual wages, and will only pay up to the limit of your coverage.

Once again, you should check your policy or consult your agent to determine the costs of these coverages and the terms and conditions associated with them.

Collision coverage pays for the repair of your automobile if you are involved in an accident. It is not fault-based. It will pay for the repair or total loss of your vehicle if you are involved in either an at-fault or a not at-fault accident.

Generally speaking, there are no coverage limits associated with collision coverage. If your insurance company insures your new Mercedes, and that vehicle is a total loss as a result of the accident, they will pay the actual cash value of your vehicle.

On collision coverage, most people believe an insurance company would pay you the Kelley Blue Book price on your vehicle. Insurance companies do not use retail value to determine the total loss value of the vehicle. They use something called “Actual Cash Value”. Actual Cash Value lies somewhere between the price that you would pay if you purchased the vehicle from a private owner and the retail value of your vehicle.

Obviously, if a vehicle is sold for retail value on a car lot, it will be more expensive than what you pay when you buy the same vehicle for from a private owner. Used car dealers usually invest at least $1,000.00 of repairs into vehicle before they place it on the lot to sell it for retail value. All insurance companies subscribe to computer services which determine the actual cash value of vehicles.

With collision coverage, one problem often arises. In the event you buy a new vehicle, and you drive it off the lot, the vehicle is worth less than what you paid for it. This is due to the depreciation in value between a new vehicle and a used vehicle. If you have a loan on your vehicle, the actual cash value of your vehicle can be less than your loan. We call this difference in value “a Gap”. If your vehicle is financed, you can purchase Gap insurance from your finance company. When a vehicle is leased, the residual payments on a lease can be greater than the actual cash value. If you are leasing a vehicle, once again, you should consider Gap insurance.

In the event you have a “classic” vehicle or a “collectors” vehicle, an insurance company will not pay you the value of that vehicle. For example, if you have a 1962 fuel-injected Corvette, which is in pristine condition, and it is worth $250,000.00, rest assured your insurance company will not pay you the value of that vehicle. If you own this type of vehicle, you should obtain “Stated Value” insurance for that vehicle. This insurance, in the event of a total loss or theft, will pay the stated value of that vehicle. There are companies that specialize in insuring classic vehicle such as Hagerty Insurance. My partner, Donald C. Kudler, Esq. had a good experience using them to insure his classic vehicles.

Comprehensive coverage will pay for the repair or replacement of your vehicle in the event your vehicle is damaged by anything other than an auto accident. For example, if a tree falls over on your vehicle, and your vehicle is damaged, this loss or total loss will be covered under your comprehensive coverage.

Collision and comprehensive coverages usually have deductibles associated with them. Your deductible can be zero, $250.00, $500.00, $1,000.00, or higher. Collision and comprehensive coverages with no deductible are more expensive than collision and comprehensive coverage with a $1,000.00 deductible. You should consider your financial status and the differences in premiums to determine which deductible is best for you