One Injury, Two Claims
What rules may apply in complex cases?
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What rules may apply in complex cases?
Sometimes the injury in a lawsuit happens quickly and in a crystal clear fashion. But, in other cases, the injury event is not so clear.
A person suffers a painful back but they were involved in two car accidents, either of which could have caused the back injury.
A boat propeller chops off an individual's foot but this is possibly due to carelessness on the boat operators part and because a repair shop had botched a repair making the boat more dangerous to handle.
In these cases the Plaintiff, or injured person, wants everyone in any way connected to the injury to be "jointly and severally liable." This means that the Plaintiff can collect his entires damages from any of the defendants which usually means the defendant with the deepest pocket can stuck with the entire bill.
The defense and the insurance companies hate the concept of "joint and several liability." They want each Defendant to only be liable for the percentage the Defendant is at fault. But, they also want more: If the fault for an injury cannot reasonably be apportioned or divided up among the Defendants, the defense and the insurance companies want the claim thrown out.
This is where experienced attorneys distinguish themselves and this is also where lobbyists do battle. Below are a list of some of the rules:
Traditionally, when doctors and surgeons worked together to help a patient, the Plaintiff in a medical malpractice action could claim that all the doctors were jointly and severally liable for any harm that resulted from malpractice. But doctors and their insurance companies several years ago were successful in getting a law passed in Nevada to change this. N.R.S. 41A.045 specifically changed the law. Now if Doctor A is 5% at fault and Doctor B is 95% at fault, Doctor A can only be held liable for 5% of the patient's damages. N.R.S. 41A.045 killed joint and several liability for medical malpractice cases.
In the Nevada Supreme Court case of Kleitz v. Raskin, 738 P.2d 508, 103 Nev. 325 (Nev., 1987) a Plaintiff we represented was involved in two car accidents and sustained serious back injury, but his doctor couldn't say which accident was responsible for his injury. Of course, the defense asked the trial judge to rule that therefore Plaintiff had no case. The trial judge agreed. We appealed this case to the Nevada Supreme Court which agreed with me that my client could sue and collect from either or both accident defendants if the injury could not be apportioned between them. This case is still good law. This case means that joint and several liability is still alive in many areas.
A lot of people and lawyers do not realize that a common pleasure boat accident resulting in injury can be pursued either in state court or in federal court under the ancient rules of admiralty (also called maritime) law if the accident occurred in interstate navigable waters of the U.S. This means that virtually any boating accident that happens in a lake or a river that touches more than one state, if even small boats can travel on it, happens in interstate navigable waters of the U.S. Naturally any ocean or ocean bay boating accident also qualifies. Under admiralty law all wrong-doers are jointly and severally liable which may, depending on the state, be an improvement from the Plaintiff's viewpoint over state law. See Boating Accidents
N.R.S. 17.245 often destroys "joint and several liability" in a back door approach, but fortunately for the Plaintiff, the Plaintiff must cooperate in this destruction. Suppose Defendant A negligently causes a car accident which hurts Plaintiff's back and the next day Defendant B does the same thing. Now, in this case Plaintiff can sue both and collect his damage from either Defendant A or Defendant B. But, suppose Defendant A offers Plaintiff $10,000 for his injuries. Now Plaintiff and Defendant A go into court and ask the court to approve this $10,000 settlement as a good faith settlement. If the Court approves--and it almost always does--Defendant A has no further liability and the Plaintiff is limited to making his claim for all his damages against Defendant B who will get a $10,000 offset against whatever the Court says are Plaintiff's damages.