[Rev. 2/10/2015 4:01:44
PM--2014R2]
CHAPTER 42 - DAMAGES
NRS 42.001 Definitions;
exceptions.
NRS 42.005 Exemplary
and punitive damages: In general; limitations on amount of award; determination
in subsequent proceeding.
NRS 42.007 Exemplary
and punitive damages: Limitations on liability by employer for wrongful act of
employee; exception.
NRS 42.010 Exemplary
and punitive damages: Injury caused by operation of vehicle after consumption
of alcohol or controlled substance.
NRS 42.021 Actions
based on professional negligence of providers of health care: Introduction of
certain evidence relating to collateral benefits; restrictions on source of
collateral benefits; payment of future damages by periodic payments.
NRS 42.030 Court
approval of agreement to transfer structured settlement required.
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NRS 42.001 Definitions; exceptions. As
used in this chapter, unless the context otherwise requires and except as
otherwise provided in subsection 5 of NRS 42.005:
1. “Conscious disregard” means the
knowledge of the probable harmful consequences of a wrongful act and a willful
and deliberate failure to act to avoid those consequences.
2. “Fraud” means an intentional
misrepresentation, deception or concealment of a material fact known to the
person with the intent to deprive another person of his or her rights or property
or to otherwise injure another person.
3. “Malice, express or implied” means
conduct which is intended to injure a person or despicable conduct which is
engaged in with a conscious disregard of the rights or safety of others.
4. “Oppression” means despicable conduct
that subjects a person to cruel and unjust hardship with conscious disregard of
the rights of the person.
(Added to NRS by 1995, 2668)
NRS 42.005 Exemplary and punitive damages: In general; limitations on
amount of award; determination in subsequent proceeding.
1. Except as otherwise provided in NRS 42.007, in an action for the breach of an
obligation not arising from contract, where it is proven by clear and
convincing evidence that the defendant has been guilty of oppression, fraud or
malice, express or implied, the plaintiff, in addition to the compensatory
damages, may recover damages for the sake of example and by way of punishing
the defendant. Except as otherwise provided in this section or by specific
statute, an award of exemplary or punitive damages made pursuant to this
section may not exceed:
(a) Three times the amount of compensatory
damages awarded to the plaintiff if the amount of compensatory damages is
$100,000 or more; or
(b) Three hundred thousand dollars if the amount
of compensatory damages awarded to the plaintiff is less than $100,000.
2. The limitations on the amount of an
award of exemplary or punitive damages prescribed in subsection 1 do not apply
to an action brought against:
(a) A manufacturer, distributor or seller of a
defective product;
(b) An insurer who acts in bad faith regarding
its obligations to provide insurance coverage;
(c) A person for violating a state or federal law
prohibiting discriminatory housing practices, if the law provides for a remedy
of exemplary or punitive damages in excess of the limitations prescribed in
subsection 1;
(d) A person for damages or an injury caused by
the emission, disposal or spilling of a toxic, radioactive or hazardous
material or waste; or
(e) A person for defamation.
3. If punitive damages are claimed
pursuant to this section, the trier of fact shall make a finding of whether
such damages will be assessed. If such damages are to be assessed, a subsequent
proceeding must be conducted before the same trier of fact to determine the
amount of such damages to be assessed. The trier of fact shall make a finding
of the amount to be assessed according to the provisions of this section. The
findings required by this section, if made by a jury, must be made by special
verdict along with any other required findings. The jury must not be instructed,
or otherwise advised, of the limitations on the amount of an award of punitive
damages prescribed in subsection 1.
4. Evidence of the financial condition of
the defendant is not admissible for the purpose of determining the amount of
punitive damages to be assessed until the commencement of the subsequent
proceeding to determine the amount of exemplary or punitive damages to be
assessed.
5. For the purposes of an action brought
against an insurer who acts in bad faith regarding its obligations to provide
insurance coverage, the definitions set forth in NRS
42.001 are not applicable and the corresponding provisions of the common
law apply.
(Added to NRS by 1989, 486; A 1995, 2669)
NRS 42.007 Exemplary and punitive damages: Limitations on liability by
employer for wrongful act of employee; exception.
1. Except as otherwise provided in
subsection 2, in an action for the breach of an obligation in which exemplary or
punitive damages are sought pursuant to subsection 1 of NRS
42.005 from an employer for the wrongful act of his or her employee, the
employer is not liable for the exemplary or punitive damages unless:
(a) The employer had advance knowledge that the
employee was unfit for the purposes of the employment and employed the employee
with a conscious disregard of the rights or safety of others;
(b) The employer expressly authorized or ratified
the wrongful act of the employee for which the damages are awarded; or
(c) The employer is personally guilty of
oppression, fraud or malice, express or implied.
Ê If the
employer is a corporation, the employer is not liable for exemplary or punitive
damages unless the elements of paragraph (a), (b) or (c) are met by an officer,
director or managing agent of the corporation who was expressly authorized to
direct or ratify the employee’s conduct on behalf of the corporation.
2. The limitations on liability set forth
in subsection 1 do not apply to an action brought against an insurer who acts
in bad faith regarding its obligations to provide insurance coverage.
(Added to NRS by 1995, 2668)
NRS 42.010 Exemplary and punitive damages: Injury caused by operation of
vehicle after consumption of alcohol or controlled substance.
1. In an action for the breach of an
obligation, where the defendant caused an injury by the operation of a motor
vehicle in violation of NRS 484C.110,
484C.130 or 484C.430 after willfully consuming or
using alcohol or another substance, knowing that the defendant would thereafter
operate the motor vehicle, the plaintiff, in addition to the compensatory
damages, may recover damages for the sake of example and by way of punishing
the defendant.
2. The provisions of NRS 42.005 do not apply to any cause of action brought
pursuant to this section.
(Added to NRS by 1965, 1143; A 1967, 738; 1981, 1928; 1989, 487; 2005, 161)
NRS 42.021 Actions based on professional negligence of providers of health
care: Introduction of certain evidence relating to collateral benefits;
restrictions on source of collateral benefits; payment of future damages by
periodic payments.
1. In an action for injury or death
against a provider of health care based upon professional negligence, if the
defendant so elects, the defendant may introduce evidence of any amount payable
as a benefit to the plaintiff as a result of the injury or death pursuant to
the United States Social Security Act, any state or federal income disability
or worker’s compensation act, any health, sickness or income-disability
insurance, accident insurance that provides health benefits or
income-disability coverage, and any contract or agreement of any group,
organization, partnership or corporation to provide, pay for or reimburse the
cost of medical, hospital, dental or other health care services. If the
defendant elects to introduce such evidence, the plaintiff may introduce evidence
of any amount that the plaintiff has paid or contributed to secure the
plaintiff’s right to any insurance benefits concerning which the defendant has
introduced evidence.
2. A source of collateral benefits
introduced pursuant to subsection 1 may not:
(a) Recover any amount against the plaintiff; or
(b) Be subrogated to the rights of the plaintiff
against a defendant.
3. In an action for injury or death
against a provider of health care based upon professional negligence, a
district court shall, at the request of either party, enter a judgment ordering
that money damages or its equivalent for future damages of the judgment
creditor be paid in whole or in part by periodic payments rather than by a
lump-sum payment if the award equals or exceeds $50,000 in future damages.
4. In entering a judgment ordering the
payment of future damages by periodic payments pursuant to subsection 3, the
court shall make a specific finding as to the dollar amount of periodic
payments that will compensate the judgment creditor for such future damages. As
a condition to authorizing periodic payments of future damages, the court shall
require a judgment debtor who is not adequately insured to post security
adequate to assure full payment of such damages awarded by the judgment. Upon
termination of periodic payments of future damages, the court shall order the
return of this security, or so much as remains, to the judgment debtor.
5. A judgment ordering the payment of
future damages by periodic payments entered pursuant to subsection 3 must
specify the recipient or recipients of the payments, the dollar amount of the
payments, the interval between payments, and the number of payments or the
period of time over which payments will be made. Such payments must only be
subject to modification in the event of the death of the judgment creditor.
Money damages awarded for loss of future earnings must not be reduced or
payments terminated by reason of the death of the judgment creditor, but must
be paid to persons to whom the judgment creditor owed a duty of support, as
provided by law, immediately before the judgment creditor’s death. In such
cases, the court that rendered the original judgment may, upon petition of any
party in interest, modify the judgment to award and apportion the unpaid future
damages in accordance with this subsection.
6. If the court finds that the judgment
debtor has exhibited a continuing pattern of failing to make the periodic
payments as specified pursuant to subsection 5, the court shall find the
judgment debtor in contempt of court and, in addition to the required periodic
payments, shall order the judgment debtor to pay the judgment creditor all
damages caused by the failure to make such periodic payments, including, but
not limited to, court costs and attorney’s fees.
7. Following the occurrence or expiration
of all obligations specified in the periodic payment judgment, any obligation
of the judgment debtor to make further payments ceases and any security given
pursuant to subsection 4 reverts to the judgment debtor.
8. As used in this section:
(a) “Future damages” includes damages for future
medical treatment, care or custody, loss of future earnings, loss of bodily
function, or future pain and suffering of the judgment creditor.
(b) “Periodic payments” means the payment of
money or delivery of other property to the judgment creditor at regular
intervals.
(c) “Professional negligence” means a negligent
act or omission to act by a provider of health care in the rendering of
professional services, which act or omission is the proximate cause of a
personal injury or wrongful death. The term does not include services that are
outside the scope of services for which the provider of health care is licensed
or services for which any restriction has been imposed by the applicable
regulatory board or health care facility.
(d) “Provider of health care” means a physician
licensed under chapter 630 or 633 of NRS, dentist, licensed nurse, dispensing
optician, optometrist, registered physical therapist, podiatric physician,
licensed psychologist, chiropractor, doctor of Oriental medicine, medical
laboratory director or technician, licensed dietitian or a licensed hospital
and its employees.
(Added to NRS by 2004 initiative petition, Ballot
Question No. 3; A 2011, 1511)
NRS 42.030 Court approval of agreement to transfer structured settlement
required.
1. An agreement to transfer the right to
receive payments pursuant to a structured settlement to a transferee is valid
and enforceable only if the transfer is approved by a district court. The
transferee must petition the district court for such approval and the court
shall approve the transfer if it determines that:
(a) The transfer is in the best interest of the
payee, considering the totality of the circumstances, including, without
limitation, the welfare and support of the dependents of the payee;
(b) The payee has been advised in writing by the
transferee to seek independent professional advice regarding the transfer and
has received such independent professional advice or has knowingly waived such
advice in writing; and
(c) The transfer does not violate any applicable
law or the order of any court.
2. An action pursuant to subsection 1 must
be commenced in the district court:
(a) Located where the original claim which gave
rise to the structured settlement was filed; or
(b) Within the county in which the payee resides.
3. Not later than 7 days before a hearing
on a petition pursuant to subsection 1, the transferee must file with the
district court and serve on all interested parties and any attorney who
represented the payee in the action which resulted in the settled claim a
notice of the proposed agreement and the petition for authorization of the
proposed agreement. The notice must include, without limitation:
(a) A copy of the petition of the transferee;
(b) A copy of the proposed agreement;
(c) A copy of the disclosure required pursuant to
subsection 4;
(d) A list which includes the name and age of
each dependent of the payee;
(e) A statement that any interested party may
support, oppose or otherwise respond to the petition of the transferee by
appearing in person or by counsel during the hearing on the petition or by
submitting written comments to the court; and
(f) Notice of the time and place of the hearing, the
manner in which a written response to the application must be filed and the
date by which a written response to the petition must be filed for
consideration by the court.
4. A transferee who commences an action
pursuant to subsection 1 must provide to the court with the proposed agreement
a disclosure setting forth:
(a) The amounts and due dates of the payments
under the structured settlement proposed to be transferred;
(b) The aggregate amount of the proposed payments
to be transferred;
(c) The amount to be paid to the payee for the
transfer before deducting any expenses;
(d) An itemized list of all expenses that the
payee will be required to pay other than attorney’s fees and which will be
deducted from the amount paid to the payee for the transfer, including, without
limitation, any commission owed to a broker, service charges, application or
processing fees, costs of closing on the agreement, filing or administrative
charges and fees paid to a notary public;
(e) The amount to be paid to the payee for the
transfer after deducting the expenses;
(f) The amount of any liquidated damages which
the payee is required to pay if the payee breaches the transfer agreement;
(g) The discounted present value of the payments
under the structured settlement that are proposed to be transferred and the
discount rate used to determine that value; and
(h) If adverse tax consequences exist, a
statement which informs the payee that such a transfer may subject the payee to
adverse tax consequences with regard to the payment of federal income tax.
5. Compliance with the requirements set
forth in this section may not be waived.
6. As used in this section:
(a) “Annuity issuer” means an insurer who has
issued a contract to fund periodic payments under a structured settlement;
(b) “Dependents” include, without limitation, the
spouse of a payee, any minor child of a payee and any other person for whom the
payee is legally obligated to provide support, including, without limitation,
alimony;
(c) “Independent professional advice” means
advice of an attorney, certified public accountant, actuary or other licensed
professional adviser;
(d) “Interested parties” means the payee, any
beneficiary irrevocably designated under the annuity contract to receive
payments following the death of the payee, the annuity issuer, any person who
is obligated to make payments pursuant to the structured settlement and any
other party who has continuing rights or obligations under the structured
settlement;
(e) “Payee” means a person who is receiving
tax-free payments under a structured settlement and proposes to make a transfer
of the right to receive payments under that structured settlement;
(f) “Periodic payments” includes, without
limitation, both recurring payments and scheduled future lump-sum payments;
(g) “Settled claim” means the original tort claim
or workers’ compensation claim resolved by a structured settlement;
(h) “Structured settlement” means an arrangement
for periodic payment of damages for personal injuries or sickness established
by settlement or judgment in resolution of a tort claim or for periodic
payments in settlement of a workers’ compensation claim;
(i) “Transfer” means any sale, assignment,
pledge, hypothecation or other alienation or encumbrance by a payee for
consideration of the right to receive payments pursuant to a structured
settlement; and
(j) “Transferee” means a party acquiring or
proposing to acquire the right to payments pursuant to a structured settlement
through a transfer.
(Added to NRS by 2003, 1665)
