Sample Form Nevada Joint Defense Agreement
Posted by: Mark Albright on Wed, Mar 27, 2013Share this post
JOINT DEFENSE AGREEMENT
This Joint Defense Agreement (hereinafter “Agreement”) is made and entered into effective this ____ day of ______________ 20__, by and among MC Development, LP, and LV Management Inc. on the one hand (jointly hereinafter the “Developer”) and Las Vegas Bank (jointly hereinafter the “Lender”) on the other hand.
WHEREAS, the Developer has been named in certain actions by certain purchasers of Condominium Units in the development commonly known as the ____ condominium development, including, to date, as follows: ____; Clark County Nevada Case No. A___, and to include other anticipated filings to be filed hereafter (collectively hereinafter “the Matters”); and
WHEREAS, it is anticipated that Lender, having taken over the ownership of the development, may come to also be named as a defendant in certain of the Matters; and
WHEREAS, the Developer has retained the law firm of Albright, Stoddard, Warnick & Albright to represent it in certain of the Matters and the Lender will be retaining the law firm of _____ to represent it in certain of the Matters; and
WHEREAS, certain of the interests of the Developer and of the Lender are aligned as to defending against the Matters; and
WHEREAS, it is the intent of the Parties to cooperate in the defense of the Complaints, and, to that end, the Parties, by and through their respective counsel, hereby agree to abide by the terms and conditions that are set forth below; and
WHEREAS, the Parties are both defendants in certain of the Matters, or it is anticipated that Lender will become a party in certain of the Matters; and
WHEREAS, it is the intent of the Parties to cooperate in the defense of the Matters in that the sharing of joint defense materials is in the Parties’ common interest and is reasonably necessary to achieve the purpose for which the attorneys were engaged, and, to that end, the Parties, by and through their respective counsel, hereby agree to abide by the terms and conditions that are set forth below, which terms and conditions apply only in any of the Matters in which the below signing attorneys are retained as counsel.
TERMS AND CONDITIONS
For good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties, upon full execution of the Agreement, stipulate and agree as follows:
1. Each Parties’ Cross-Claims and/or Third-Party Claims, as against each other whether asserted or not, and each Parties’ Affirmative Defenses, whether asserted or not, are reserved and may be asserted in any subsequent action(s). Additional Cross-Claims, Third-Party Claims and Affirmative Defenses which may not have been asserted, but which existed before the Parties entered into this Agreement are preserved.
2. The Parties agree that any applicable statute of limitations on any of the causes of action asserted by the Parties in their respective Cross-Claims and/or Third Party Claims against each other are tolled.
3. The Parties agree to waive affirmative defenses in any subsequent action(s) which are based upon Res Judicata and Collateral Estoppel arising from the Arbitration or Trial of the Matters, of their respective Cross-Claims and/or Third-Party Claims and from any of the Parties’ failure to assert those claims during their participation in the defense of Plaintiff’s Second Amended Complaint.
4. The Parties agree to coordinate their respective and collective defenses to the Matters in such a way as to minimize the liability of the Parties. While discovery may be conducted which reflects upon each others’ respective liability or degree of fault, the Parties agree to reserve such evidence for a subsequent action(s). Additionally, evidence, including expert testimony, to support an assertion that another Party fell below the standard of care applicable to the incidents which are the subject of the Matters is reserved for any subsequent action(s). Failure to present evidence, including, but not limited to, expert testimony, concerning another Party’s standard of care, respective liability or respective degree of fault in defense of Matters will not be construed as a waiver with respect to the presentation of such evidence in any subsequent action(s). No Party is precluded, however, from offering evidence in defense of Matters that it met its own standard of care, provided, again, that in so doing, no Party comments upon another Party’s failure to meet its standard of care.
5. In furtherance of their Agreement to coordinate their respective and collective defenses so as to minimize liability of them all, the Parties agree to share equally the costs and fees associated with the retention of any joint defense experts retained by the Parties in this matter.
6. Should there be a global settlement which includes a dismissal of the parties’ claims against each other as a result of Mediation and/or settlement negotiations between the Parties and any Plaintiff (i.e., one that includes both Plaintiff and each of the Parties before judgment is entered by the trier of fact), this Agreement will become null and void solely as to that suit and as to the claims of the Plaintiff in that suit only, and the Parties agree to abide by the terms of the Settlement Agreement with respect to all claims therein, whether or not those claims were being withheld by one of the Parties or otherwise.
7. No Party is precluded from negotiating a settlement on its own behalf with any Plaintiff. However, the party purporting to have reached a settlement with a Plaintiff will still be required to obtain an Order of Good Faith Settlement from the Court, and any other Party to this Agreement may produce evidence which would have been reserved pursuant to Paragraph No. 5 above in opposition to the Motion for Good Faith Settlement.
8. Any determination of liability as to the Parties, including any remaining causes of action which exist between the Parties, by the arbitrator following arbitration, or by the jury following trial, of the Matters, will not be binding on the Parties in any subsequent action(s). No defense of Res Judicata or Collateral Estoppel may be raised by any of the Parties based upon the liability determination of the arbitrator following arbitration, or by the jury following trial, of Matters. This applies even if the arbitrator or jury determines there to be no liability on the part of one of the Parties.
9. In the event that the Parties cannot agree on their relative contributions toward a judgment or award, within 60 days following the Arbitration Award in the arbitration of, or Order of Judgment in the trial of, Matters, the Parties agree to submit to binding arbitration to establish their relative contributions toward the award or judgment before an arbitrator agreed to by all Parties. The cost of arbitration will be shared equally among the Parties. If no agreement can be reached as to the arbitrator within 60 days following the Arbitration Award in the arbitration of, or Order of Judgment in the trial of, Matters, then any Party is free to file a subsequent action in District Court to pursue the claims which were reserved and tolled as a result of this Agreement.
10. During any subsequent action(s), the trier of fact may order reallocation of amounts not yet paid and/or may order that some or all of the amounts previously paid by any of the Parties to this Agreement to be repaid in whole or in part. The trier of fact will also make a determination as to whether fees and/or costs are owed by any Party to any other Party, included, but not limited to attorney fees and costs for defending Matters, and may apportion those fees and costs. Such allocation will be binding on the Parties and is to be based upon any pertinent contract provisions, applicable case law or statutory law and the ultimate liability allocation of each of the Parties as determined by the trier of fact in the subsequent action(s).
11. Nothing contained in this Agreement shall be deemed to be an admission by any of the Parties to any wrongdoing or liability on their behalf.
12. The Parties shall each bear their own attorneys’ fees and costs incurred in participating in any post-award or post-judgment binding arbitration, appeal and/or litigation referenced in Paragraphs 9 through 11 above. The trier of fact costs to be incurred in any subsequent action(s) shall be allocated between the Parties on a pro-rata basis in conjunction with, and as a part of, the allocation of indemnity, contribution, apportionment and/or defense percentages set forth above.
13. This Agreement is intended to be dispositive of the rights and obligations of the Parties and any insurer which agrees to assume in writing, the obligations of its named insured hereunder. No benefit is intended to nonparticipating insurers or entities.
14. It is agreed that each Parties’ counsel can sign on behalf of their respective clients and counsel’s signature herein is understood by the Parties to be a representation to all other Parties that counsel’s client has been fully appraised of this Agreement and that his/her client agrees to be bound by this Agreement.
15. This Agreement may be executed in duplicate counterparts, following which all of the signature pages bearing signatures may be attached to a single original of this Agreement, all of which together shall constitute one and the same agreement. A facsimile transmitted copy of an original signature shall be deemed an original signature for purposes of this Agreement.
16. The parties and their counsel mutually understand and agree that the defense materials prepared by the Parties in relation to the above-mentioned matter will not be disseminated to any other party to this matter or any counsel representing individuals or entities involved in this matter unless each of the Parties with rights to such materials consent in writing and the other party and/or counsel has executed a copy of this Agreement. It is further understood and agreed that if a party retains other counsel, defense materials will not be disclosed to such other counsel until that counsel has executed a copy of this Agreement. It is our further mutual understanding and Agreement that any disclosure in accordance with this paragraph will not diminish in any way the confidentiality of the defense materials disclosed and will not constitute a waiver of any applicable privilege or protection.
17. The parties and their counsel mutually understand and agree that this Agreement is confidential by and between the Parties and their respective counsel of record and that this Agreement is subject to amendment and modification by further written agreement among counsel of record in this action.
18. We mutually understand and agree that specific performance and/or injunctive relief is an appropriate remedy to compel compliance with the provisions of this Agreement.
19. It is mutually understood and agreed upon by the Parties that nothing within the Agreement is intended to nor does the Agreement create an attorney-client relationship between an attorney and client other than the pre-existing client of that attorney, and that no such relationship will be deemed to arise by implication.
20. This Agreement shall be construed in accordance with the law of the State of Nevada, and the Parties agree that the District Court for Clark County, Nevada, shall be the venue of any action which may be filed with respect to this Agreement.
Dated this _____ day of May, 20__.
WARNICK & ALBRIGHT
G. Mark Albright, Esq.
Nevada Bar No.001394
801 S. Rancho Dr, Suite D-4
Las Vegas, Nevada 89106
Ph: (702) 384-7111
Fax: (702) 384-0605
Attorneys for Vegas Management Inc.
Dated this _____ day of May, 2009.
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 702-384-7111.
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