USA Statutes : nevada
Title : Title 03 - REMEDIES; SPECIAL ACTIONS AND PROCEEDINGS
Chapter : CHAPTER 42 - DAMAGES
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 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)
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)
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
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 him 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)
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 484.379 , 484.3795 or 484.37955 after willfully consuming or using alcohol or another
substance, knowing that he 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 )
[This section was proposed by an
initiative petition and approved by the voters at the 2004 General
Election and therefore is not subject to legislative amendment or repeal
until after November 23, 2007.]
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 his 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 his 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, or a licensed hospital and its
employees.
(Added to NRS by 2004 initiative petition, Ballot Question No. 3)
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 he 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 him 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 )
