Vegas Personal Injury Law Blog

Between the dates of September 5, 2008 and October 9, 2008 five infants, all under the age of 3 months died from similar symptoms.  Each of the infants lived in a separate building of this Section 8 apartment complex. One infant died in each five of the  separate  buildings of the six-building complex.

All the infants passed away within one week one week of experiencing the first symptoms.

Adults living with the infants experienced skin rash similar in appearance to poison ivy, fatigue and headaches.

It is reported that weird looking flies appeared from the air conditioning ducts.

The pesticide utilized in these buildings possibly contained Bifenthrin. A product sold by Nu-Calgon was used to clean the coils of the apartment air conditioners. The Nu-Calgon product consists of aqua ammonia, diethylene glycol monethyl ether, etheline glycol, n-butyl ether tetrasodium EDTA, caustic soda sodium metasilicate, sodium nitrate, butane and propane (volatile components are butane and propane).

Just prior to Thanksgiving 2008 all of the air conditioning duct work, water heaters and water heater water lines were replaced in these apartment buildings.

Toxic mold, Sudden Infant Death Syndrome and Radon have been ruled out as causes of death.

As revealed by autopsies, common symptoms and pathology  experienced by the infants prior their death were as follows:

Some prospective clients expect the attorney to get all their documentation. This undoubtedly will slow down the progress of their claim. Others are very meticulous and come to initial appointment very prepared. Obviously, this preparation will expedite the successful conclusion of their claim.

This Blog will provide you with valuable information so that you can be fully prepared for your initial consultation with your attorney. Your attorney will be impressed if you provide him with all this documentation at your initial consultation.

1. The Accident Report.

One of the most important documents in assessing the liability aspect of a personal injury claim is the accident report. On auto accident cases, the traffic accident report contains useful information concerning the identity of the involved vehicles and the identity and contact information for the parties for your attorney to report your claim to your insurance carrier and the adverse insurance carrier. It contains information concerning how the accident occurred, the issuance of citations and factors contributing to the occurrence of the accident. This information is helpful to the attorney in determining who was at fault for the accident. It can provide information on comparative negligence. (Sometimes, more than one driver causes an accident.) Contact information of independent witnesses is also contained on the report. Before an adverse insurance company will pay for your property damage, they need to take a statement from their insured and/or driver; and, they need to have a copy of the traffic accident report.

Unfortunately the traffic accident report will not be available from law enforcement agencies in Las Vegas for approximately ten days to two weeks after your accident. If the accident involves a DUI or hit and-run, the report won’t be available until the accident investigation is complete. It may take a month or longer before these reports are available.

Your investigating officer should give you a computer printout that has the identity of the drivers, owners and passengers; and, the names of the auto insurance companies and their telephone numbers of the insurance companies, or the insurance agents or brokers. No addresses or telephone numbers of the drivers are contained on the printout. The is printout also contains the event number which will be helpful to your attorney in obtaining a copy of our traffic accident report, so bring the printout to your attorney.

On premises liability cases, the business owner or managers may complete an accident report. You should always request a copy. If you fill out a statement always request a copy. Most businesses will not give you a copy of their report. In most cases, your attorney will not be able to get a copy of your report until after litigation has been commenced. So, be persistent and assertive about getting a copy of your report. This report is helpful to our attorney for the same reasons that an auto accident report is helpful. Casinos are generally self-insured, so you generally do not find insurance information on premises accident reports.

2. Your notes regarding the accident.

Your notes will contain information concerning the details of the accident, what happened at the accident scene, your symptoms and how they came on, the effect the injury is having on our daily life, witness identity and contact information, license plate numbers and conversations with involved parties. This is why it is important to keep a pen and writing pad in your car. Your notes may contain the names and addresses of your medical providers. You should bring your notes with you to your attorney consultation. I find that most people don’t know or can’t remember which ambulance company transported them the hospital. Your notes may contain this information. Your notes also may contain information about how your body moved during the collision, or may contain a description of any contact your body made with the interior of your vehicle.

3. Photographs.

It’s a good idea to keep a disposable camera in your car in case you’re involved in an accident. Today, almost everyone has a cell phone. Most modern cell phones contain a digital a camera. A picture is worth a thousand words. So, take some photos of your vehicle, and the other vehicles involved in the accident. Take a picture of the adverse driver and his passengers, his license plate, especially if there is an issue concerning who was driving the adverse vehicle, or if the adverse driver decides to leave the scene.

You should also provide the attorney with photos of your visible injuries. Some visible
injuries will dissipate with time. Some may not appear until the next day. (Black and blue marks and swelling). Some injuries, like seat belt injuries, may appear on or near your private parts. These photos, if they have to be taken at the attorney’s office, may be embarrassing to you, or they may be inappropriate to take at the attorney’s office.

4. The Declarations Page of Your Auto Insurance Policy.

This document is something that you get as every six months from your carrier. It is sometimes referred to as a premium renewal notice. This document is helpful into to your attorney in determining what coverages that you have available for the accident, such as med pay, uninsured/underinsurance coverages and collision coverage and the applicable deductible. If you have an umbrella policy bring a copy of that dec page with you. Umbrella policies should provide you with additional uninsured/underinsured coverages. If you reside with any relative that has auto insurance on their vehicle, bring that dec page, because their auto insurance may apply to afford you with additional coverage, especially when your injuries are severe.

5. Your Health Insurance Card.

Your attorney needs to know if your have health insurance available to pay your medical bills. The interplay between your health insurance coverage and your med pay can literally save you thousands of dollars on a n auto accident claim. Also, your health insurance will likely have a subrogation lien associated with the use of your health insurance on an auto accident claim. (Note: some private health policies do not contain a subrogbation clause.) To inquire about subrogation liens, your attorney will needs an address or telephone number, which will be found on your health insurance card.

6. Medical Bills or Records.

You may be given discharge instructions from the hospital. These may contain your patient number or medical records number which will be helpful to your attorney in ordering your emergent bills and records. Bring your prescription receipts. Pharmacies will charge exorbitant fees to produce copies of your prescriptions, so bring these receipts to your attorney.

7. Pay Stub.

If you missed work, or will miss work because of your injuries, your attorney will need this info to verify your wage loss, Your pay stub will contain contact information concerning the entity that processes our payroll. This can be an in-house or an independent company.

8. Clothing or Damaged Clothing.

If you are involved in a slip/trip and fall accident the shoes that you were wearing are an important piece of evidence. Provide your attorney with the shoes of photos of them. These shoes should not be discarded until your claim or case has been completed.

If your clothing was damaged in a slip/ trip and fall or auto accident, this can provide proof concerning the severity of the fall or collision and the location of your injuries.

Recently, I received a telephone call from a woman who was involved in an accident in her boyfriend’s garage. Her boyfriend had recently purchased a new home.  The girlfriend lived with the boyfriend about 75% of the time.  While the boyfriend was hospitalized, the girlfriend went into the garage to put some kitchen appliances in a cabinet that was hung on the wall.  As she was doing so the cabinet fell and landed on her foot causing an injury requiring surgery.

Although the girlfriend  had health insurance, her personal responsibility on her medical bills is in excess of $50,000.00, and her treatment is ongoing; and, she is still experiencing persistent pain and will require future medical treatment.   An inspection made after the girlfriend’s  accident showed that the cabinets were improperly secured to the wall.  The couple that sold the house to the boyfriend are elderly and now reside in a remote state.
The initial question that had to be answered was whether the boyfriend’s homeowners policy would provide any coverage for the girlfriend? There are two types of coverage on a homeowners policy that could possibly provide coverage for the girlfriend.  These two types of coverage are premises med pay and liability coverage. Premises med pay coverage (usually between $1,000.00 and $10,000.00 on a homeowner’s policy) will pay for the medical bills of a visitor that is injured while on your property, regardless of fault.  However, this coverage excludes resident relatives and non-relatives who live at the residence on a regular basis. Therefore, the girlfriend was not eligible for premises med pay coverage.

Liability homeowner’s coverage provides recovery for persons who are injured on your property. This coverage is fault-based.  So, for this coverage to apply the owner must be negligent in causing an accident.  Since the boyfriend did not hang the cabinets and did not know about  the defect that caused the cabinet to fall, liability coverage from the boyfriend’s policy was not available to the girlfriend for her accident on the boyfriend’s homeowner’s policy.

The second question that had to be answered was whether or not the sellers’ homeowner’s policy would provide liability coverage for the girlfriend?

Virtually all homeowner’s coverages and automobile coverages are “occurrence policies.”  With this type of coverage, the occurrence (negligent act and accident) must occur within the policy coverage period or term of the policy.  The girlfriend’s accident occurred the after the house was sold. The seller’s homeowners policy was not in effect at the time of the occurrence and the girlfriend’s accident  did not happen  within the coverage term.  So, the sellers’ homeowner’s carrier will deny liability coverage for the girlfriend’s accident.

If the same negligent act occurred within the coverage period, lets say during the walk-through, prior to the closing of the sale, then the negligent act and the girlfriend’s accident would have occurred within the coverage term or period, and there would have been liability coverage from the seller’s policy for the girlfriend’s loss.

With an occurrence policy, if the occurrence happens within the coverage period, and the policy then terminates, even if the a claim or lawsuit is made years later, the occurrence policy provides coverage.  For example, if you are in an injury producing  automobile accident today and you don’t like the way that your carrier is handling the accident, and you cancel your policy tomorrow, and the injured party sues you one year later, you will still have liability coverage for this accident. Your liability coverage will cover the costs of your legal defense and damages up to the limits of your liability coverage.

Therefore, occurrence coverage will cover incidents arising during the coverage period, regardless of when those claims are reported, so long as they are made within the applicable statute of limitations, which can range from one year to three years for  negligence, depending on which state the accident occurs.

So occurrence coverage has a tail coverage period which makes it more expensive than “claims-made” coverage which has no tail.  For that reason, claims-made coverage is cheaper than occurrence coverage.  We see claims-made policies on professional liability coverage, such as malpractice policies or business liability policies.  Claims-made policies cover incidents arising during the policy period which are also reported during the term of the policy.  You can purchase an endorsement on a claims-made policy that responds to incidents which occurred before the policy start date (also known as retroactive date).  You can also purchase a tail coverage on a claims-made policy which covers incidents that occur during the policy term, that have not been reported to your carrier during the policy term. So, if there are no prior acts or retroactive endorsements or tail endorsements on a claims-made policy, it will be  cheaper than occurrence coverage.

For example, many hospitals will purchase claims-made coverage for their doctors malpractice insurance.  On a claims-made basis, if the doctor leaves the hospital to enter private practice,  he should purchase tail coverage to cover occurrences that happened while he was working for the hospital that are reported after his employment with the hospital ends.

Getting back to the girlfriend’s accident, her only remedy is to file suit against the uninsured elderly sellers who reside out of state. If she could  afford to pay an attorney to obtain  a judgment against the sellers, she may never be able to collect on it.  So, before a suit is filed against the sellers, an asset check should be done to determine if the sellers are candidates for filing bankruptcy to avoid the judgement.  Remember, the sellers can liquidate all their assets and use them pay down their mortgage.  If the seller’s state has homestead laws; or, if the sellers file for bankruptcy, the girlfriend may not be able to execute on any judgment against the sellers.

Recently, I have had a number clients who have been involved in auto accidents where they have been partially at fault for an accident and have not been treated fairly by their own insurance company.

NRS 687B.385 states: “An insurer shall not cancel, refuse to renew, or increase the premium for renewal of a policy of motor vehicle insurance covering private passenger cars of commercial vehicles as a result of any claims made under the policy with respect to which the insured was not at fault.”

What is an “at-fault accident”?

This statute was interpreted by the Nevada Supreme Court in the case of State Division of Ins. vs. State Farm Mut. Auto. Ins. Co., 116 Nev. 290, 995 P.2d 482(2000).  This case interpreted NRS NRS 687B.385 to include accidents in which the insured was 50% at fault or less.  This case put NRS 687B.385 in conformance with NRS 41.141, Nevada’s comparative negligence statute.  This decision means that an insured is at fault for an accident when his liability for a two-vehicle  accident is exactly 50/50, even though he can still recover 50% of his damages from the other driver under NRS 41.141.

Therefore, an assessment of 50% liability (or more) by your insurance company for an accident as an at-fault accident and  will probably result in an increase in your auto insurance rates.  If you are involved in another at-fault accident, your policy will probably be cancelled. Let me give you a real life example.

A vehicle making a lefthand turn going southbound to eastbound at an intersection enters a very wide lane, and stays to the left hand side of that lane.  Another vehicle, at about the same time, traveling northbound makes a right hand turn and enters the same lane but stays to the right hand side of the same lane.  The driver of the vehicle on the right then comes face to face with roadway signs indicating that the roadway lane is narrowing and she must merge to the left.  She does so and collides with the other vehicle traveling on the left hand side of the lane.

Both drivers are insured by the same insurance company. The vehicle on the right was forced to merge left because the lane narrowed into a single lane width. Roadside hazard/warning signs forced the driver on the right to merge to her left. The vehicle on the left was already on the left side of the roadway and did not have to change it’s position within the lane to enter the narrowed portion of the lane.

Anyone reading this fact pattern would automatically assume that the driver on the right hand side of the travel lane is more at fault for this accident than the driver on the left.  However, the insurance carrier, who was the same company for both parties, determined liability at 50/50 and assessed both drivers with an at-fault accident and raised both drivers’ insurance rates.

The insurance company’s assessment of 50/50 liability for this accident is unrealistic because:

1. The driver on the left had no duty to anticipate the fact that the  driver on the right was going to swerve into her vehicle;
2. If the vehicle on the right did use her left hand turn signal, the vehicle on the left, could not see it because the vehicle on the right was not in front of her vehicle; and
3. The accident occurred eighty-six (86) feet east of the intersection where both vehicles entered the same roadway.

According to Nevada case law the adverse effect of a 50/50 assessment of liability will result in the increase of both drivers’ insurance rates for an at-fault accident.  In the event that there was  an assessment of 51/49 liability in favor of the driver on the left and against the driver on the right, the insurance company could not raise the rates for the driver on the left for an at fault accident.

Obviously, there is no exact science to assessment liability for any accident, however based on the facts and circumstances of this accident, a 50/50 liability assessment is completely unrealistic.

So, why did the insurance company raise the rates of both drivers? The only reason is for an economic benefit. Raising the rates of both drivers results in the insurance company recouping its losses for this accident more quickly from the increased insurance premiums from both drivers, as compared to raising the rates for only one driver. And, the insurance company only has to pay 50% of each party’s property damage, thus forcing the insured drivers to pay their own collision deductibles in order to have their vehicles repaired.

After the insurance company was asked to review the facts and circumstances surrounding this accident and to change it’s liability decision by one percent in favor of the vehicle on the left, they refused.

Now, if in the future, liability can be determined by a trier of fact in favor of the vehicle on the left, will the insurance company return the driver on the left’s increased premiums and collision deductible?  Did the insurance company act in bad faith concerning their liability apportionment decision?

Therefore, if you are in an at-fault accident where your insurance company assesses liability against you at 50/50 (or more), you will be assessed with an at fault accident. You should also  be aware of the adverse consequences of increased rates and cancellation of your policy.  You should also consult an attorney for legal advice concerning the insurance company’s decision.

If you or your children are involved with a fender bender accident where you are at fault, or partially at-fault, and  nobody is hurt, and law enforcement isn’t involved;  you should consider working out the property damage with the other driver to avoid increased insurance rates and/or cancellation of your policy.