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
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By MARTIN GRIFFITH
THE ASSOCIATED PRESS
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.
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.
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.
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February 11, 2013
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.
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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.
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.
San Francisco Federal Amps Up E-Discovery
By JONNY BONNER
(CN) - In a move designed to "keep pace with rapidly evolving technology," the Northern District of California has unveiled new e-discovery guidelines.
A bench-bar committee chaired by U.S. Magistrate Judge Elizabeth Laporte developed the procedures, and the entire court unanimously approved them.
Counsel and litigants are to familiarize themselves with the guidelines, and to "immediately" begin using a
revised standing order when preparing case-management statements and the guidelines'
checklist, as appropriate, when meeting and conferring, the court said Tuesday.
"The guidelines are designed to establish best practices for evidence preservation in the digital age and to ensure that local practices regarding the discovery of ESI [electronically stored information] keep pace with rapidly evolving technology and to be flexible enough to be used in a wide variety of cases," the court said in a statement.
The
package of ESI-related documents includes
guidelines, a checklist for use during the Rule 26(f) meet-and-confer process, and a three-page
model order regarding the discovery of electronically stored information.
"These tools are designed to promote cooperative e-discovery planning as soon as practicable that is tailored and proportionate to the needs of the particular case to achieve its just, speedy and inexpensive resolution, consistent with Rule 1 of the Federal Rules of Civil Procedure," Laporte said in a statement.
Also serving on the committee were U.S. Magistrate Judge Donna Ryu; Kathryn Dickson, with Dickson Geesman; Stephanie Mendelsohn, director of corporate records and e-discovery at Genentech Inc.; Ed Reines, with Partner, Weil Gotshal & Manges; Joseph Saveri, with Saveri Law Firm; and Assistant U.S. Attorney Neill Tseng.
"The court requires counsel to be familiar with these tools and confirm in the initial case management statement that they have reviewed the guidelines regarding preservation and decided whether to enter into a stipulated order governing e-discovery, in light of the model stipulated order," Laporte added.
The court noted that it "hopes that the model stipulated order will be a widely-used tool for litigants just as the court-approved stipulated protective have been in patent and other cases."
Tseng declined a request from Courthouse News to comment on the guidelines.
The guidelines apparently apply to any case in the Northern District that has not reached the Rule 26(f) conference phase, given their immediate effect.
Civility and Ethics in Business and the Law
Mark Albright
Friday Dec 14, 2012
11:30 Registration & Networking
11:45 Lunch is available. 12:20–1:00 Speaker
at Brady Industries, 7055 Lindell Road
rsvp: dwinters@bradshawsmith.com
register: https://marriottschool.byu.edu/mgtsoc/members/calendar/
$30 for members, $35 for non-member, $25 student rate
$5 discount with rsvp by Dec 12
Mark Albright has been awarded Martindale-Hubble’s highest “AV” peer-rated lawyer-rating, which is based on his reputation among other members of his profession. He also enjoys AVVOs highest Superb rating, has been recognized by Who’s Who in American Law, and this year was granted a Fellowship as one of the top one-half percent of attorneys by Litigation Counsel of America. Earlier this year Mr. Albright was included in the Top Rated Construction Lawyers in Nevada by The American Lawyer Magazine and Corporate Counsel Magazine. Mr. Albright has litigated a wide variety of business cases in Nevada’s State and Federal Courts and has been involved in many of the largest class action cases in Nevada.
Mr. Albright has published widely on a variety of legal topics, including articles in the BYU Law Review, Nevada Lawyer Magazine, Nevada Civil Practice Manual, Clark County Bar Communiqué Magazine, Construction Company Strategist magazine, and has written dozens of other legal articles for his firm blog. He also publishes a regular weekly article in the online Meridian Magazine regarding LDS missionary work. He recently returned from presiding over the Washington D.C. South Mission where he supervised over 500 LDS missionaries during the last three years.