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Mark Albright named Top Rated Lawyer in Banking & Finance Law

 
 

On behalf of American Lawyer Media and Martindale-Hubbell™, we would like to congratulate you on being selected as a ‘2013 Top Rated Lawyer in Banking & Finance Law’.

American Lawyer Media, a leading provider of news and information to the legal industry has teamed with Martindale-Hubbell™ to highlight “Top Rated Lawyer” in the September issue of The American Lawyer & Corporate Counsel magazine which will inform the readers about your achievements with content that is both informative and engaging.

July 2013 

3 Children Hit by Texting Driver

 
3 children hit by texting driver
by Alex Cabrero • May 14 - 10:30pm
KSL.com
MIDVALE — Three children were hit by a vehicle Tuesday afternoon in Midvale.

Around 3:35 p.m., the three girls, ages 9, 10 and 14, were hit at about 700 W. Wasatch Street in Midvale by a 28-year-old male driver who was texting, according to Unified Police Lt. Justin Hoyal. The man said he never saw the girls, Hoyal said.

"Unfortunately, the situation here is we have three children who are seriously hurt as a result of somebody being distracted, possibly while texting," he said.

The youngest of the girls, Sophia, suffered a head injury and remained in the hospital Tuesday evening. Doctors said her condition was improving from critical, and she could be released Wednesday.

Jennifer O'Dell, 14, and 10-year-old Stacy Smith were taken to an area hospital by ambulance. They were treated and released Tuesday evening.

Witnesses said the girls were crossing the street on the way to a swimming pool when they were hit. "We were gonna go over to my house and play in the sprinklers and wash our car," Stacy said. "And that really ruined our plans."

Stacy said she did not remember much from accident, but that she "kind of jumped on the car" before she blacked out momentarily. She said she was scared for her friends.

Her mother said she is angry, and the driver is lucky he did not kill the girls.

"I'm not sure what's going to happen to the gentleman that did this to all of our children, but it's a serious crime and something more than piddily charges need to come about," Cheryl Segler, Stacy's mother, said. "We're totally relieved that nothing worse happened to the children."

Jennifer's aunt said she can't believe someone would text and drive in an area with so many kids around.

"Makes me upset because I see lots of kids all the time crossing the street back and forth from school," Jaime Ammons, the girl's aunt, said.

The driver said he never saw the girls, Hoyal said. He was in police custody Tuesday night.

Contributing: McKenzie Romero and Stephanie Grimes


 

Open story on full site

Five Members of Family Killed in Apparent DUI Accident on I-15

 
 

Five members of a Southern California family were killed Saturday when their van was rear-ended near Mesquite by an 18-year-old driver who was later arrested on suspicion of driving under the influence, authorities said.

The dead were among seven family members who were in the van, authorities said. The other two — the 40-year-old female driver and a 15-year-old boy — were hospitalized in critical condition.

Jean Soriano of California was booked into the Clark County Detention Center after he was treated and released at University Medical Center, Nevada Highway Patrol trooper Loy Hixson said.

The crash happened about 3 a.m. on Interstate 15 near the Utah line.

Soriano’s sport utility vehicle struck the van from behind, causing both vehicles to spin out of control and roll some 80 miles northeast of Las Vegas, investigators said.

A 23-year-old passenger in Soriano’s SUV was treated at the hospital and released.

Authorities think Soriano was returning from a visit with family in Utah to his home in California at the time of the crash, Hixson said. They didn’t immediately release his hometown or the names or hometowns of the victims.

Beer bottles were found in the SUV, Hixson said, and troopers performed a blood-alcohol test on Soriano at the hospital. The results won’t be known for a couple of weeks, he said.

Hixson said only two of the seven people in the van were wearing seat belts. The five who were not buckled in were thrown from the vehicle, but one survived.

“Unfortunately, so many in the van weren’t wearing seat belts, and some might have survived had they been wearing them,” Hixson said. “We see it so many times where people can survive simply by having a seat belt on.”

The van was carrying a couple, their children and some aunts and uncles, he said. Three men in their 40s, a teenage girl and a woman were killed.

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah. Our firm’s practice includes a strong emphasis on personal injury accidents. Call us at 888-927-8551.

Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services. Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

10 Year Old Boy attacked by three dogs in St. George, Utah

 
 

Editor's note: Images in photo gallery may be graphic to some viewers

 

ST. GEORGE — Three people were recovering Tuesday from serious injuries after a young boy fell into a yard with three dogs and was mauled.

The wild scene happened about 5:30 p.m. Monday when 11-year-old KJ Reid climbed up on a wall dividing his property and a neighbor's yard while playing hide-and-seek with friends.

"I was up on a wall, and I fell off," the boy said. "I couldn't get back up on the wall. (The homeowners) didn't know I was back there. They let the dogs out. The big one came over to me and grabbed a hold of my chest. And the other two came over and started helping him beat me up."

St. George Police Sgt. Sam Despain said three full-grown rottweilers were in the yard, and at least one of the dogs weighed about 100 pounds.

"This young man, from what I understand, was just playing a game of hide-and-seek. And two of those rottweilers began to attack and bite this young man," Despain said.

KJ said all three dogs tried to bite him. A woman who lives at the house, the dogs' owner, ran to the boy's rescue as soon as she heard the commotion.

"And the mom went over and immediately went on top of him and covered him up with her body so he wouldn't get injured," neighbor Joanna MacLennan said.

Enlarge image
(Photo: Chidester family)

But the dogs did not stop their attack.

"Those dogs then turned on the homeowner. She received some pretty significant bites to her arms," Despain said.

That's when the woman's 10-year-old daughter saw the boy and her mother being bitten and ran outside.

"In an attempt to help, (she) grabbed a kitchen knife and went out and actually ended up stabbing one of the dogs," Despain said.

"She came out with a little kitchen knife, and she ran over to us and started stabbing the dogs," KJ said. "But it didn't really stop the dogs that much. And when she finally got them to (stop), they started attacking the mom."

With the dogs' attention distracted, KJ said he attempted to make a run for the gate. But one of the dogs spotted him, ran over and bit him on the thigh and attempted to drag him back into the yard. That's when the young girl tried to stab that dog, KJ said, and the dog turned and bit her.

(KJ had) bite marks pretty much all over his body — his legs, arms, his side and his head, which did require him to go into surgery (Monday) night.
–Sam Despain, St. George Police

"(KJ had) bite marks pretty much all over his body — his legs, arms, his side and his head, which did require him to go into surgery (Monday) night," Despain said.

But KJ said he was more worried about the woman who tried to help him and received serious bite marks on her arms.

"She was one of the people who helped me and she got hurt a lot. So I thought it was kind of my fault she was going to go to the hospital," he said.

The young daughter, whose injuries looked worse than they were, was treated and released Monday for bite marks to her hands, Despain said.

"She was covered in blood," MacLennan said of the young girl. "And she said that she needed towels because the dog had gotten them and mauled on them.

"It was scary. She was covered in blood. Her flesh wounds and her arms were all ripped apart," she said.

MacLennan said it was possible that the dogs went into a "pack mentality" once the attacks started.

Two of the dogs were taken by St. George Animal Control officers. Despain was unsure Monday what, if any, charges might be filed. He noted, however, that city ordinance allows residents to own a maximum of two dogs.

Despain said the dogs were not part of any dogfighting operation or running wild. MacLennan described the homeowner as being very kind and caring.

"The dogs were in an enclosed yard. It was fenced off," Despain said. "They weren't out running around the neighborhood."

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah. Our firm’s practice includes a strong emphasis on personal injury accidents. Call us at 888-927-8551.

Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services. Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Pat Reavy, Crime Reporter
Pat is a police and crime reporter. He interned at KSL Radio in 1989. He was hired by KSL Radio for a part-time position in 1991 and later a full-time position a couple of months later. Pat was hired by the Deseret News in 2000. Full Bio »
 

Mark Albright in Top 1% of Most Viewed LInkedIn Profiles

 

                                                      

                                                       Top 1%

Congratulations to Mark Albright from LinkedIn!  You have one of the top 1% most viewed LinkedIn profiles for all of 2012!  LinkedIn now has over 200 Million Members.  Thanks for being such a unique part in our community of business leaders! 

LinkedIn,

February 11, 2013

 

 

Nevada Supreme Court Ethics Opinion Dec. 2012

 

Unpublished Disposition

2012 WL 6138581

In re DISCIPLINE OF Vicenta E. MONTOYA, Esq.

No. 58571.

Dec. 7, 2012.

Synopsis

Background: In attorney disciplinary proceeding, disciplinary board hearing panel entered recommendation for discipline.

Holding: On automatic review, the Supreme Court held that attorney's violation of rules of professional conduct requiring competence, diligence, and communication, and governing bar admission and disciplinary matters, warranted five-year suspension from practice of law.

Attorney suspended.

West Headnotes

Change View

1Attorney and Client

 

Review

Attorney's opening brief in disciplinary proceedings was inadequate and subject to being stricken; attorney's brief lacked any citation to record in support of her arguments, and arguments raised therein were raised for first time on appeal, as attorney failed to respond or appear to assert her arguments in district court despite having received proper notice of complaint and disciplinary hearing. Rules App.Proc., Rules 28(e), 28(j); SCR 105(3)(a).

Definite Suspension

Clear and convincing evidence supported disciplinary panel's findings that attorney violated rules of professional conduct requiring competence, diligence, and communication, and governing bar admission and disciplinary matters, warranting five-year suspension from practice of law; attorney was retained to assist client with immigration matter, filed incomplete paperwork that was rejected by immigration court, led client to believe that she would be appealing rejection, and missed appeal deadline, resulting in lapse of client's immigration status and client being fired from her job as registered nurse due to her lack of status, and attorney failed to respond to disciplinary complaint. RPC 1.1, 1.3, 1.4, 8.1(b).

0 Case that cites this headnote

 

Attorneys and Law Firms

Jeffrey R. Albregts, Chair, Southern Nevada Disciplinary Board

David A. Clark, Bar Counsel

Kimberly K. Farmer, Executive Director, State Bar of Nevada

Vicenta E. Montoya, Esq.

Perry Thompson, Admissions Office, U.S. Supreme Court

Opinion

 

ORDER OF INJUNCTION AND GRANTING MOTION TO STRIKE

*1 This is an automatic review, pursuant to SCR 105(3)(b), of the Southern Nevada Disciplinary Board hearing panel's recommendation that attorney Vicenta E. Montoya be enjoined from practicing law in Nevada for five years, including being prohibited from maintaining an office in Nevada, appearing before any court or administrative entity in Nevada, and from holding herself out to the public as someone authorized to practice law in this state. The panel further recommended that Montoya pay restitution in the amount of $8,000, pay the costs of the disciplinary proceedings, and provide the State Bar with a list of current and past clients from April 13, 2009, to the present.1

The panel's recommendation was based on its conclusion that Montoya violated RPC 1.1 (competence), RPC 1.3 (diligence), RPC 1.4 (communication), and RPC 8.1(b) (bar admission and disciplinary matters). Despite receiving proper notice of the complaint and disciplinary hearing below, Montoya neither responded to the complaint nor appeared at the disciplinary hearing.2 However, Montoya did file an opening brief in this court, as allowed by SCR 105(3)(b). The State Bar moved to strike the brief and Montoya failed to oppose the motion.

1 Cause appearing, we grant the State Bar's motion to strike Montoya's opening brief. Montoya's opening brief, in large part, failed to comply with the requirements of NRAP 28. See SCR 105(3)(a) (“[A]n appeal from a decision of a hearing panel shall be treated as would an appeal from a civil judgment of a district court and is governed by the Nevada Rules of Appellate Procedure”); NRAP 28(j). Among other deficiencies, Montoya's brief lacks any citation to the record in support of her arguments, as required by NRAP 28(e). See also M.C. Multi–Family Dev. v. Crestdale Assocs., 124 Nev. 901, 908 n. 2, 193 P.3d 536, 541 (2008) (arguments in briefs must present appellant's contentions with citations to the parts of the record upon which appellant relied). Further, although Montoya received proper notice of the complaint and the disciplinary hearing, she failed to respond or appear to assert her arguments in the district court. Thus, the arguments Montoya makes in her brief are raised for the first time in this appeal. See In re AMERCO Derivative Litigation, 127 Nev. ––––, –––– n. 6, 252 P.3d 681, 697 n. 6 (2011) (declining to address an issue raised for the first time on appeal); Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) (“A point not urged in the [district] court ... is deemed to have been waived and will not be considered on appeal”). Accordingly, we direct the clerk of this court to strike Montoya's opening brief, entitled “Response Brief,” from the record in this matter.

2 After reviewing the record related to the instant disciplinary proceedings, we conclude that clear and convincing evidence supports the panel's findings. See SCR 105(3)(b); Matter of Discipline of Droz, 123 Nev. 163, 168, 160 P.3d 881, 884–85 (2007) (this court's review of an SCR 105 petition is de novo and a panel's findings of misconduct must be supported by clear and convincing evidence). The record indicates that Montoya was retained to assist her client, Lisa Bailes, with an immigration matter, wherein Montoya filed incomplete paperwork that was rejected by the immigration court. Montoya then led Bailes to believe that she would be appealing the rejection; however, Montoya missed the appeal deadline which resulted in the lapse of Bailes's immigration status.3 Bailes was fired from her job as a registered nurse due to her lack of status. Bailes paid Montoya approximately $8,000 for her services. Subsequently, the State Bar filed a complaint against Montoya in the instant matter and, despite proper notice, Montoya failed to respond to the complaint or attend the disciplinary hearing.

*2 Accordingly, we approve the panel's recommendation in its entirety. For five years from the date of this order, Montoya is hereby enjoined from: practicing law in Nevada; appearing before any court or administrative entity in this state, including but not limited to, all federal and state courts and administrative agencies; and from holding herself out to the public as someone who is authorized to practice law in this state. Montoya is required to petition this court to lift the injunction after the five-year period has expired. Montoya shall pay restitution to Bailes in the amount of $8,000. Within 15 days of the date of this order, Montoya shall provide a copy of this order to all of her current and past clients, and certify to bar counsel that she has done so. If the certification is not forthcoming, bar counsel shall notify this court. Finally, Montoya shall pay the costs of the disciplinary proceedings within 30 days of receipt of the Nevada State Bar's bill of costs. SCR 120.

It is so ORDERED.4

Footnotes

1

Montoya was, at all times pertinent to this matter, licensed to practice law in California. At no time pertinent to this matter was Montoya a licensed attorney in Nevada. This court has jurisdiction to impose discipline upon Montoya, despite the fact that she was, and is not, a member of the State Bar of Nevada. See SCR 99(1); Matter of Discipline of Droz, 123 Nev. 163, 167–68, 160 P.3d 881, 884 (2007).

2

As a result of this failure, the hearing panel deemed the allegations in the complaint admitted. See SCR 105(2).

3

Montoya was issued a letter of private reprimand in Nevada in 2004, and assessed a fine of $500 for violations of former SCRs 152 (scope of representation), 153 (diligence), 154 (communication), 187 (responsibilities regarding nonlawyer assistants), and 189 (unauthorized practice of law). In this particular immigration matter, Montoya's secretary prepared a motion and signed Montoya's name to it and, after learning of this misconduct, Montoya failed to take action to bring it to the court's attention. Further, Montoya failed to file the opening brief in an appeal to the Board of Immigration Appeals, resulting in the dismissal of the appeal and the issuance of an order of deportation for her client. Montoya received a public reprimand in California for this same instance of misconduct.

4

This is our final disposition of this matter. Any new proceedings concerning Montoya shall be docketed under a new docket number.

Mark Albright Receives AV Preeminent Rating--Highest Possible from Martindale-Hubbell

 

Attorney G. Mark Albright has Achieved the AV Preeminent® Rating - the Highest Possible Rating from Martindale-Hubbell®.

G. Mark Albright, a lawyer based in Las Vegas, NV whose primary area of practice is Civil Litigation, has earned the AV Preeminent® rating from Martindale-Hubbell®

Las Vegas, NV (PR Newswire) January 31, 2013 - Martindale-Hubbell, a division of LexisNexis®, has confirmed that attorney G. Mark Albright still maintains the AV Preeminent Rating, Martindale-Hubbell's highest possible rating for both ethical standards and legal ability, even after first achieving this rating in 1996.

For more than 130 years, lawyers have relied on the Martindale-Hubbell AV Preeminent® rating while searching for their own expert attorneys. Now anyone can make use of this trusted rating by looking up a lawyer's rating on Lawyers.com or martindale.com. The Martindale-Hubbell® AV Preeminent® rating is the highest possible rating for an attorney for both ethical standards and legal ability. This rating represents the pinnacle of professional excellence. It is achieved only after an attorney has been reviewed and recommended by their peers - members of the bar and the judiciary. Congratulations go to G. Mark Albright who has achieved the AV Preeminent® Rating from Martindale-Hubbell®.

G. Mark Albright commented on the recognition: "The Martindale-Hubbell AV Preeminent Rating is a credential highly valued and sought after in the legal world. It used to be a sort of secret among attorneys who used the rating as a first screen when they needed to hire a lawyer they did not personally know. Now, thanks to the Internet, the Rating is a great way for anyone – lawyers or lay people - to use to screen lawyers. I am thankful to my peers who nominated me for this distinction, and proud to have earned this, the highest possible Martindale-Hubbell rating."

Add a special "About Us" paragraph to this news release telling all of your customers and potential customers all about you and your business.

The plaque shown here commemorates G. Mark Albright's recognition.

To find out more or to contact G. Mark Albright of Las Vegas, NV, call 908-203-3711, or visit http://www.albrightstoddard.com.

As a result of this honor, American Registry LLC, has added G. Mark Albright to The Registry™ of Business and Professional Excellence. For more information, search The Registry™ at http://www.americanregistry.com.

This press release was written by American Registry, LLC, with approval by Martindale-Hubbell as well as approval and/or contributions from G. Mark Albright; it was distributed by PR Newswire, a subsidiary of UBM plc.

Contact Information:
G. Mark Albright

Phone: 908-203-3711

Email Address: gma@albrightstoddard.com

Website: http://www.albrightstoddard.com

Supreme Court Addresses Duty to Indemnify and Defend Provision

 

 

128 Nev. Advance Opinion 59

 

IN THE SUPREME COURT OF THE STATE OF NEVADA

UNITED RENTALS HIGHWAY

TECHNOLOGIES, INC., A DELAWARE

CORPORATION,

Appellant,

vs.

WELLS CARGO, INC., A NEVADA

CORPORATION,

Respondent.

UNITED RENTALS HIGHWAY

TECHNOLOGIES, A DELAWARE

CORPORATION,

Appellant,

vs.

WELLS CARGO, INC., A NEVADA

CORPORATION,

Respondent.

UNITED RENTALS HIGHWAY

TECHNOLOGIES, A DELAWARE

CORPORATION,

Appellant,

vs.

WELLS CARGO, INC., A NEVADA

CORPORATION,

Respondent.

 

Consolidated appeals from district court orders and a

judgment in a negligence and indemnity action.

 

Eighth Judicial District

Court, Clark County; Susan Johnson, Judge.

 

Reversed.

 

BEFORE SAITTA, PICKERING and HARDESTY, JJ.

 

In these appeals, the Nevada Supreme Court considered what effect specific contract

language has on an indemnitor's duty to indemnify and defend an

indemnitee in a personal injury action, where that language provides that

indemnification will occur "to the extent" that any injury or damage is

"caused" by the indemnitor.

 

Appellant United Rentals Highway Technologies, Inc.,

contracted to provide traffic control on a road improvement project

coordinated and facilitated by respondent Wells Cargo, Inc. The parties'

contract required United Rentals to indemnify, defend, and hold harmless

Wells Cargo to the extent that United Rentals caused any injury or

damage. A woman was injured in connection with the road improvement

project and sued United Rentals, Wells Cargo, and other defendants for

negligence. Wells Cargo sought indemnification and defense from United

Rentals, but United Rentals consistently denied that it was obligated to

provide indemnification and defense.

 

The Nevada Supreme Court concluded that a plain reading of the contractual indemnity

language imposed a causal limitation on United Rentals' duty to indemnify

and defend Wells Cargo. Because the jury found that United Rentals did

not proximately cause the underlying accident, the court concluded that United

Rentals did not have a duty to indemnify or defend Wells Cargo, and the

Court reversed the judgment of the district court.

 

FACTS AND PROCEDURAL HISTORY

 

In 2004, Wells Cargo entered into a contract with project

owner Howard Hughes Corporation to perform work as a general

contractor on a road improvement project. Shortly after , Wells Cargo and

United Rentals executed a contract whereby United Rentals would act as

a subcontractor on the project to assist with traffic control. The contract,

which was drafted by Wells Cargo, contained the following indemnification

provision relevant to this appeal:

 

The Subcontractor ... shall indemnify, defend

and hold the General Contractor [and]

Owner ... harmless from and against all claims,

losses, costs and damages, including but not

limited to attorneys' fees, pertaining or allegedly

pertaining to the performance of the Subcontract

and involving personal injury ... or damage to

tangible property ... , including loss of use of

property resulting therefrom, economic loss, or

other claims or damages, to the extent caused in

whole or in part by the negligent acts or omissions

or other fault of the Subcontractor .... This

indemnification agreement is binding on the

Subcontractor ... to the fullest extent permitted

by law, regardless of whether any or all of the

persons and entities indemnified hereunder are

responsible in part for the claims, damages, losses

or expenses for which the Subcontractor ... is

obligated to provide indemnification.

(Emphasis added.)

 

Further, the contract required that Wells Cargo be

named as an additional insured on certain liability insurance policies

procured by United Rentals.

 

During construction of the road project, Antonette Kodera was

driving her motorcycle when she allegedly hit an unmarked bump in the

road, lost control of the motorcycle, and sustained serious injuries. Kodera

filed a complaint against multiple defendants, including Wells Cargo and

Howard Hughes Corporation, alleging negligence. Wells Cargo and

Howard Hughes Corporation each filed an answer denying liability.

Kodera later amended her complaint to name additional defendants,

including United Rentals. She alleged that Howard Hughes Corporation,

Wells Cargo, United Rentals, and other defendants were negligent because

the unmarked bump was dangerous, the defendants failed to provide

appropriate warning of the bump's presence, and/or the defendants failed

to remove the dangerous or hazardous condition that caused her injuries.

Soon after Kodera added United Rentals as a defendant, Wells

Cargo tendered its defense to United Rentals and an insurance carrier for

United Rentals. Both tenders allegedly went unanswered. As a result,

Wells Cargo filed an answer to Kodera's first amended complaint and

cross-claimed against United Rentals for contribution, equitable

indemnity, express or contractual indemnity, and breach of contract.

United Rentals, who had already answered Kodera's complaint, answered

the cross-claim denying liability.

 

Wells Cargo moved for partial summary judgment on its cross-claim

for contractual indemnification. It argued that because Kodera's

claims were at least in part based on United Rentals' negligent acts,

United Rentals had a contractual duty to defend, indemnify, and hold

harmless Wells Cargo and Howard Hughes Corporation. Relying on the

contract's indemnification provision and the provision adding Wells Cargo

to United Rentals' insurance policies, Wells Cargo argued that United

Rentals was required to indemnify Wells Cargo and Howard Hughes

Corporation even if Wells Cargo itself was found partially liable. United

Rentals opposed the motion, arguing that the bump signage was not

contemplated in the original indemnification contract, that Wells Cargo

failed to demonstrate that United Rentals' conduct caused Kodera's

accident, that insurance principles of indemnification did not apply, and

that the indemnification provision did not clearly permit Wells Cargo to be

indemnified for its own negligence. Wells Cargo replied, arguing that the

contract applied to all traffic control, that there was sufficient evidence

that United Rentals caused the accident, and that any alleged concurrent

negligence by Wells Cargo and Howard Hughes Corporation was

immaterial to United Rentals' duties.

 

The district court ordered United Rentals to indemnify Wells

Cargo and Howard Hughes Corporation unless Wells Cargo or Howard

Hughes Corporation was determined to be solely negligent. Further,

it concluded that United Rentals was "obligated to defend Wells

Cargo and Howard Hughes Corporation [from the date of the first

tender] ... irrespective of any ultimate determination of liability, because

the obligation to defend is not outcome driven." Thus, it ordered United

Rentals to defend Wells Cargo and Howard Hughes Corporation

throughout the entire lawsuit. It also ordered United Rentals to hold

harmless Wells Cargo and Howard Hughes Corporation.

On the same day the district court entered its order, Wells

Cargo, Howard Hughes Corporation, and codefendant the Nevada

Department of Transportation (NDOT) again tendered their defenses to

United Rentals. These defendants asked United Rentals to indemnify

them "for any damages owed [to Kodera], irrespective of allocations of

fault and potential findings of sole negligence," to assume all of the

current and the previous defense costs, and to waive its appellate rights

against the tendering defendants. After allegedly not receiving a response

from United Rentals, these defendants sought district court approval of a

$1,000,000 settlement with Kodera, which was the policy limit of Wells

Cargo's primary insurer. United Rentals opposed this motion, arguing

that the settlement amount was not made in good faith and that it was

grossly disproportionate to the settling defendants' share of damages.

After a hearing, the district court granted the motion and permitted Wells

Cargo, Howard Hughes Corporation, and NDOT to settle for $1,000,000.

Kodera and United Rentals went to trial, and the jury

returned a verdict in favor of United Rentals. Specifically, the jury found

United Rentals was negligent, but that its negligence was not the

proximate cause of the accident. The district court entered judgment on

the jury verdict and awarded United Rentals its associated attorney fees

and costs.

 

Notwithstanding the jury verdict, Wells Cargo filed a motion

to enforce indemnification on behalf of the settling defendants, seeking

reimbursement of the $1,000,000. It argued that the jury's finding of

negligence on the part of United Rentals necessarily meant neither Wells

Cargo nor Howard Hughes Corporation could be solely negligent, and

thus, United Rentals was required to indemnify Wells Cargo and Howard

Hughes Corporation. It also argued that United Rentals was bound by the

settlement because it breached its duty to defend. United Rentals opposed

the motion and filed another motion for summary judgment on Wells

Cargo's cross-claim for indemnification, arguing again that its duties to

indemnify and defend were contingent on a finding that the company itself

caused Kodera's damages, which contingency was expressly negated by

the jury when it found United Rentals' negligence was not the proximate

cause of Kodera's injuries.

 

The district court concluded that because United Rentals

knew about the $1,000,000 settlement and had an opportunity to defend

against it, Wells Cargo only needed to show that United Rentals was

potentially liable, and not actually liable, when Wells Cargo tendered its

defense. Further, the district court reiterated its prior holding that

because the settling defendants "demonstrated potential liability existed,

their defense was seasonably tendered, and [United Rentals] was notified

in reasonable fashion of the possibility of settlement and the negotiations,"

United Rentals had a duty to indemnify regardless of the ultimate

outcome of the case. The district court's analysis of Wells Cargo's sole

liability was limited to an interpretation that proof of same might be

evidence to thwart a showing of potential liability, but would not act to

relieve United Rentals of indemnification. The district court concluded

that United Rentals "presented no evidence to suggest a lack of [its]

potential liability under the contract," and thus, the court granted Wells

Cargo's motion to enforce indemnification and denied United Rentals'

countermotion for summary judgment.

Wells Cargo then filed a motion seeking attorney fees. After

the parties briefed the issue and the district court held a hearing on the

matter, the district court entered an order awarding Wells Cargo

$424,782.87 in attorney fees. The district court subsequently entered an

amended judgment in favor of Wells Cargo for $1,000,000 plus interest.

United Rentals appealed from the orders and judgment in favor of Wells

Cargo.

 

DISCUSSION

 

In these appeals, we interpret a contractual indemnification

clause limiting the indemnitor's duty to indemnify and defend "to the

extent" that any injury or damage is "caused" by the indemnitor.

The indemnification clause specifically provides that United

Rentals shall indemnify Wells Cargo for claims, losses, and damages

relating to personal injury or other claims or damages "to the extent

caused in whole or in part by the negligent acts or omissions or other fault

of [United Rentals]."   The Court concluded that the strict construction of this

indemnification language prohibits an interpretation that includes

indemnity for Wells Cargo without a finding of United Rentals' causation.

 

 

The Court further concluded that the district court's error in determining that

United Rentals was required to indemnify Wells Cargo resulted in an

unfair burden being cast onto a party that the jury found was not at fault.

See Brown Ins. v. Star Ins. Co., 126 Nev. _, _, 237 P.3d 92, 97 (2010).

 

The court explained that a provision in a contract purporting to indemnify

the indemnitee for the indemnitee's own negligence must be strictly

construed. See id. at _, 255 P.3d at 275 (stating this court "must strictly

construe the indemnity clause's language").

United Rentals' duty to indemnify Wells Cargo is limited to the

extent United Rentals caused the damages

As noted, the indemnification clause within the parties'

contract provided that United Rentals shall indemnify Wells Cargo for

claims, losses, and damages relating to personal injury or other claims or

damages "to the extent caused in whole or in part by the negligent acts or

omissions or other fault of [United Rentals]." United Rentals argues that

under a plain reading of this contract language, United Rentals only has

an obligation to indemnify Wells Cargo to the extent that it caused the

underlying accident and related damages. The Supreme Court agreed

.

The effect of a "to the extent caused" contractual limitation

appears to be an issue of first impression in Nevada. However, while the

indemnity provision at issue in Reyburn was not identically worded to the

provision at issue here, the holding in that case strongly suggests that,

here, United Rentals' duty to indemnify Wells Cargo is limited to the

extent that United Rentals actually caused the injury. 127 Nev. at _,

255 P.3d 268 at 275. Specifically, in Reyburn, th court concluded that

because the indemnity provision did not explicitly indemnify the

indemnitee against its own negligence, and because this court strictly

construed the indemnity clause, "there must be a showing of negligence on

[the indemnitor's] part prior to triggering [the indemnitor's] duty to

indemnify [the indemnitee]," id., and the indemnitee "may be indemnified

only for damages associated with [the indemnitor's] negligence." Id. at

_, 255 P.3d at 279. Limiting United Rentals' duty to indemnify "to the

extent" that it "caused" the accident or injury is also consistent with this

court's refusal to "'attempt to increase the legal obligations of the parties

where the parties intentionally limited such obligations.'" Griffin v. Old

Republic Ins. Co., 122 Nev. 479, 483, 133 P.3d 251, 254 (2006) (quoting

Senteney v. Fire Ins. Exchange, 101 Nev. 654, 656, 707 P.2d 1149, 1150-51

(1985).

 

Other courts examining contract language virtually identical

to the provision at issue here have concluded that limiting a duty to

indemnify "to the extent" that an injury is "caused" by the indemnitor

requires a determination of the indemnitor's degree of fault and invokes

the duty only to the extent that the indemnitor is negligent. In Greer v.

City of Philadelphia, the Supreme Court of Pennsylvania interpreted a

provision which provided for "indemnity from claims for damages 'only to

the extent caused in whole or in part by negligent acts or omissions of the

[indemnitor],' and 'regardless of whether or not such claim ... [was]

caused in part by a party indemnified hereunder.'" 795 A.2d 376, 379 (Pa.

2002). The court explained that "the 'to the extent' language ... [was] in

the plain text of the contract and clearly must be given effect." Id. at 380.

Based on that language, that court concluded that the intent of the parties

was to limit any indemnification to that portion of damages attributed to

the negligence of the indemnitor and held that the indemnitor was not

required to provide indemnification due to the negligence of an

indemnitee. Id. at 379. Further, the court interpreted the provision "that

the indemnity clause [would] apply 'regardless of whether or not such

claim ... [was] caused in part by a party indemnified hereunder'" as

simply a clarification "that any contributory negligence by [the

indemnitees would] not bar their indemnification for damages due to [the

indemnitor's] negligence." Id. at 380. Thus, in construing the entire

provision, the Pennsylvania court held that the "language ... easily read

to only indemnify [the indemnitees] for that portion of damages caused by

the negligence of [the indemnitor]." Id. at 381.

 

The Court of Appeals of Arizona has also interpreted an

indemnification provision containing an almost identical "to the extent

caused" limitation. MT Builders v. Fisher Roofing, 197 P.3d 758, 764

(Ariz. Ct. App. 2008). The court there explained that the limiting

"language create[d] what is known as a 'narrow form' of indemnification the

indemnitor's obligation only covers the indemnitee's losses to the

extent caused by the indemnitor .... " Id. at 765. As such, the court

concluded that "to obtain indemnity, [the indemnitee] was required to

prove the extent of [the indemnitor's] fault." Id.

 

Similarly, the Court of Appeals of Minnesota has examined an

indemnification provision with a similar limitation. Braegelmann v.

Horizon Development Co., 371 N.W.2d 644, 645-46 (Minn. Ct. App. 1985).

There, the court explained that the "to the extent caused" language

"suggest [ed] a 'comparative negligence' construction under which each

party [was] accountable 'to the extent' their negligence contribute[d] to the

injury." Id. at 646. That court also examined the contract language:

"'regardless of whether it is caused in part by a party indemnified

hereunder,'" and held the equivocal nature of the wording "fail[ed] under

the strict construction standard." Id. Finally, the court concluded that

"[u]nder the terms of this indemnification clause, the [indemnitee was] not

contractually entitled to indemnification from the [indemnitor] to the

extent damages were caused by the [indemnitee]'s own negligence." Id. at

646-47.

 

The Nevada Supreme Court agreed with the rationale of these other courts, and

held that the "to the extent caused" language in an

indemnification clause must be strictly construed as limiting an

indemnitor's liability to cover the indemnitee's losses only to the extent

the injuries were caused by the indemnitor. As such, the court concluded that

this contract's indemnification provision limits United Rentals' duty to

indemnify only to the extent that United Rentals caused Kodera's

accident. Since the jury found that United Rentals' negligence was not the

proximate cause of Kodera's accident, and thus it was zero percent liable

for negligence, the court concluded that Wells Cargo was entitled to zero

indemnification. Thus, the district court erred in determining that United

Rentals was required to indemnify Wells Cargo for any portion of the

$1,000,000 settlement.

Duty of Care owed for Open and Obvious Dangers--New Nevada Supreme Court Position

 

 

128 Nev., Advance Opinion 7 (Dec. 27, 2012)

IN THE SUPREME COURT OF THE STATE OF NEVADA

STEPHEN L. FOSTER,

Appellant,

vs.

COSTCO WHOLESALE

CORPORATION,

Respondent

Legal OPINION

Summary of Facts:

 During a trip to a Costco membership warehouse store,

appellant Stephen L. Foster tripped and fell over a wooden pallet, which

had been positioned in an aisle of the warehouse by a Costco employee.

Thereafter, Foster filed a complaint against Costco for injuries sustained

from his fall. Costco subsequently moved for summary judgment. The

district court granted summary judgment to Costco, holding that Costco

had not breached its duty of care because the hazard created by the pallet

was open and obvious to Foster. Foster appealed.

Summary of Decision:

In its opinion, the last decision issued during 2012, the Nevada Supreme Court examined the legal evolution of a landowner's

duty of care to entrants on the landowner's property and refined the current

status of that duty in Nevada. Traditionally, a landowner had no duty to protect

entrants on the landowner's property from open and obvious dangers.

Nevada, along with the vast majority of jurisdictions, has since

embraced an exception when the landowner should anticipate the harm

despite the hazard's open and obvious nature. By modifying the

traditional rule, negligence laws throughout the country have progressed

in favor of upholding the general duty of reasonable care. See Moody v.

Manny's Auto Repair, 110 Nev. 320, 333, 871 P.2d 935, 943 (1994) ("[A]n

owner or occupier of land should be held to the general duty of reasonable

care when another is injured on that land .... [and] determinations of

liability should primarily depend upon whether the owner or occupier

acted reasonably under the circumstances."). In recognition of the

continuing development of the law governing landowner liability, the Court adopted

the rule set forth in the Restatement (Third) of Torts: Physical and

Emotional Harm section 51, and consequently, the court concluded that a

landowner owes a duty of reasonable care to entrants for risks that exist

on the landowner's property.

In accordance with this position, the court held that the open and

obvious nature of a dangerous condition does not automatically relieve a

landowner from the general duty of reasonable care. The fact that a

dangerous condition may be open and obvious bears on the assessment of

whether reasonable care was exercised by the landowner. Here, the Supreme Court found that the

district court erred when it found as a matter of law that Costco did not

breach a duty of care because the hazard created by the pallet was open

and obvious to Foster. Questions remain as to whether the pallet over

which Foster tripped was in fact an open and obvious condition, whether

Costco acted reasonably under the circumstances by allowing a pallet to

impede Foster's path through the aisle without warning, and whether

Foster failed to exercise reasonable self-protection in encountering the

pallet. Accordingly, the Supreme Court reversed the district court's summary judgment and

remanded this case for further proceedings.

THE FACTS

In October 2005, Foster visited a Costco store in Henderson,

Nevada, to purchase paper goods and groceries.

While searching for trash bags in the paper goods aisle, Foster's left toe

caught the corner of a wooden pallet, which was covered by a slightly

turned box. Foster fell and sustained injuries. He subsequently sued

Costco in district court, alleging that Costco was negligent in creating a

dangerous condition and in failing to warn him of the existence of the

dangerous condition. Foster claimed that Costco owed him a duty to

maintain an establishment free of dangerous conditions, including exposed

pallets throughout the aisles.

Foster's deposition was taken, and Costco then filed a motion

for summary judgment, contending that the presence of the pallets was

open and obvious and that it was not liable for injuries arising from an

open and obvious hazard. According to Costco's summary judgment

motion, it is undisputed that Foster was in the paper goods section of the

warehouse shopping for, among other things, trash bags, when the

incident occurred. Foster testified in his deposition that, as he entered the

aisle, he saw approximately three pallets on the right side and two pallets

on the left side. Each of the pallets had boxes on them. Foster observed a

Costco employee moving boxes from the pallets onto the shelves. There

were no barricades placed to warn customers or to prevent them from

entering the aisle while the Costco employee was restocking the shelves.

Foster also testified that a slightly turned box was hanging

over the edge of the pallet that caused his fall. Foster further stated that

he was able to see some of the wood comprising the pallet in question and

that he was aware that the subject pallet was obscured by a box.

However, Foster claimed that he did not see the corner of the pallet.

Foster then testified that he looked at the Costco employee moving the

boxes, looked up at the displayed products on the shelves, and when he

walked around the employee and the pallet, stepped around the slightly

turned box thinking that he had bypassed the pallet. But "somehow [his]

left toe caught on the corner of the pallet," and he fell. As a result of the

accident, Foster sustained injuries to his left knee, right shoulder, and

right-hand ring finger.

In opposing Costco's summary judgment motion, Foster

argued that there were material questions of fact as to whether the

dangerous condition was obvious, because even though he could see some

of the pallet underneath the boxes, he could not see the corner of the pallet

due to the way the box was positioned. Foster also asserted that even if

the condition was obvious, there were further material questions of fact as

to whether Costco was liable in creating or subjecting him to the peril.

The district court granted Costco's motion for summary

judgment, finding that the peril created by the pallet was open and

obvious to Foster, that the boxes partially concealing the pallet created

notice to Foster of the potential hazard, and that Foster's testimony

demonstrated his comprehension of the dangerous condition. Citing

Gunlock v. New Frontier Hotel, 78 Nev. 182, 185, 370 P.2d 682, 684

(1962), the district court concluded that Costco did not breach its duty of

care because under the circumstances, it had no duty to warn Foster or to

remedy the open and obvious condition. Therefore, the court concluded

that Costco's actions were not negligent.

LEGAL DISCUSSION ON APPEAL

The court took the opportunity to examine the development of the

open and obvious doctrine and held that landowners are not free from the

duty to exercise reasonable care solely because the danger posed was open

and obvious. In doing so, the court adopted the approach taken by section 51 of the

Restatement (Third) of Torts: Physical and Emotional Harm: a landowner

owes a duty of reasonable care to entrants for risks that exist on the

property. Thus, the fact that a dangerous condition is open and obvious

does not automatically shield a landowner from liability but rather bears

on whether the landowner exercised reasonable care with respect to that

condition and issues of comparative fault.

Standard of Review on Appeal

This court reviewed the district court's grant of summary

judgment de novo, without deference to the findings of the lower court.

Klasch v. Walgreen Co., 127 Nev. _, _, 264 P.3d 1155, 1158 (2011). As

part of this de novo review, the court considered the evidence "in a light most

favorable to the nonmoving party." Wood v. Safeway, Inc., 121 Nev. 724,

729, 121 P.3d 1026, 1029 (2005). Summary judgment is proper only if no

genuine issue of material fact exists "and the moving party is entitled to

judgment as a matter of law." Cervantes v. Health Plan of Nevada, 127

Nev. _, _, 263 P.3d 261, 264 (2011); see NRCP 56(c).

THE LEGAL HISTORY OF THE  OPEN AND OBVIOUS DOCTRINE

The court then noted that the development of the open and obvious doctrine

has roots in English and early American common law, and

most likely derived from the political power of landowners prior to the

twentieth century, the open and obvious doctrine eliminates landowner

liability to business visitors resulting from open and obvious dangers.

Michalski v. Home Depot, Inc., 225 F.3d 113, 118-19 (2d Cir. 2000)

(outlining the transformation of the open and obvious doctrine); see

Restatement of Torts § 340 (1934) (providing that "a possessor of land is

not subject to liability to his licensees ... for bodily harm caused to them

by any dangerous condition thereon, whether natural or artificial, if they

know of the condition and realize the risk involved therein"); James P.

End, Comment, The Open and Obvious Danger Doctrine: Where Does It

Belong in Our Comparative Negligence Regime?, 84 Marq. L. Rev. 445,

457 (2000) ("Landowner sovereignty resulted from the belief that

landowners possessed the right to use their land as they so chose."). "The

rationale of the open and obvious doctrine is that the defendant should not

be held liable for harm caused by a danger that was open and obvious to

the person suffering the harm." Robert A. Sedler, The Constitution, the

Courts and the Common Law, 53 Wayne L. Rev. 153, 172 (2007).

    The court explained that the open and obvious doctrine was widely criticized by legal

scholars and courts as being too harsh, however, and courts began to

depart from it in the mid-twentieth century. See James Fleming, Jr., Tort

Liability of Occupiers of Land: Duties Owed to Licensees and Invitees, 63

Yale L.J. 605, 628 (1954); Page Keeton, Personal Injuries Resulting from

Open and Obvious Conditions, 100 U. Pa. L. Rev. 629, 642-43 (1952); see,

Hanson v. Town & Country Shopping Center, Inc., 144 N.W.2d 870,

874 (Iowa 1966) ("To arbitrarily deny liability for open or obvious defects

and apply liability only for hidden defects, traps, or pitfalls, is to adopt a

rigid rule based on objective classification in place of the concept of the

care of a reasonable and prudent man under the particular

circumstances.").

The court noted that in 1965, the Restatement (Second) of Torts was published,

recognizing this trend and modifying its assessment of the open and

obvious doctrine so that "[a] possessor of land is not liable to his invitees

for physical harm caused to them by any activity or condition on the land

whose danger is known or obvious to them, unless the possessor should

anticipate the harm despite such knowledge or obviousness." Restatement

(Second) of Torts § 343A(1) (1965). As a result, jurisdictions throughout

the country have retreated from strict application of the open and obvious

doctrine, departing "from the traditional rule absolving, ipso facto, owners

and occupiers of land from liability for injuries resulting from known or

obvious conditions, and [moving] toward the standard expressed in section

343A(1) of the Restatement (Second) of Torts (1965)." Ward v. Kmart

Corp., 554 N.E.2d 223, 231 (1990) (listing cases from state supreme courts

that have adopted the Second Restatement approach); see Kentucky River

Medical Center v. McIntosh, 319 S.W.3d 385, 390 (Ky. 2010) ("the modern

trend, as embodied in the Restatement (Second) of Torts, is the better

position"); but see Jones Food Co., Inc. v. Shipman, 981 So. 2d 355, 363

(Ala. 2006) (holding that no duty was owed with regard to open and

obvious dangers); Armstrong v. Best Buy Co., Inc., 788 N.E.2d 1088, 1091

(Ohio 2003) (same).

The court explained that under the Second Restatement, a landowner should

anticipate, and is liable for failing to remedy, the risk of harm from

obvious hazards when an invitee could be distracted from observing or

avoiding the dangerous condition, or may forget what he or she has

discovered, and the landowner has "reason to expect that the invitee will

nevertheless suffer physical harm." Restatement (Second) of Torts § 343A

cmt. f (1965). This principle is known as the distraction exception to the

open and obvious rule. Id.; see Kenneth R. Swift, I Couldn't Watch the

Ball Because I Was Watching the Ferris Wheel in Centerfield, 22 Ent. &

Sports Law. Winter 2005, at 1, 34 (noting that comment f has been

extensively applied by numerous jurisdictions). For example, a landowner

should anticipate that, in certain circumstances, store displays will

distract customers and potentially prevent them from discovering and

avoiding even conspicuous dangers.

The general duty of reasonable care is the focus of the newly

adopted Restatement (Third) of Torts: Physical and Emotional Harm

section 51 (2012):

[A] land possessor owes a duty of reasonable care

to entrants on the land with regard to:

(a) conduct by the land possessor that

creates risks to entrants on the land;

(b) artificial conditions on the land that pose

risks to entrants on the land;

(c) natural conditions on the land that pose

risks to entrants on the land; and

(d) other risks to entrants on the land when

any of the affirmative duties ... is applicable.

The court explained that the duty espoused in the newest iteration is similar to, and includes, both

the general landowner's duty imposed with regard to invitees in the

Restatement (Second) of Torts section 343, and the "distraction exception"

to the open and obvious rule reflected in the Restatement (Second) of Torts

section 343A. Restatement (Third) of Torts: Phys. & Emot. Harm § 51

cmts. a and k (2012). However, the duty imposed in the Third

Restatement is amplified, as it is extended to all entrants on the land

(except for flagrant trespassers, see Restatement (Third) of Torts: Phys. &

Emot. Harm § 52 (2012», not just invitees. Restatement (Third) of Torts:

Phys. & Emot. Harm § 51 cmt. a (2012).1 Thus, under the Restatement

(Third), landowners bear a general duty of reasonable care to all entrants,

regardless of the open and obvious nature of dangerous conditions

CONCLUSION

The court therefore reversed the judgment of the district

court and remanded the matter for further proceedings consistent with this

opInIon. The court further held that on remand, Costco's alleged negligence should be determined

pursuant to the Third Restatement.

 

 

 

 

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