Civil litigation attorneys are all generally familiar with NRS 42.005, the statute on punitive damages. Among other things, this statute discusses a bifurcated trial separated into two different phases (compensatory and punitive damages); the clear and convincing evidentiary standard; a finding of oppression, fraud, or express/implied malice; and a cap on certain punitive damages awards. Lurking beneath this more generalized statute, however, is another punitive damages statute—NRS 42.010—which sets forth a completely different presumptive process when an accident is caused by a driver who willfully consumed alcohol or another substance.
What does NRS 42.010 really mean?
While subsection 1 of NRS 42.010 provides the requirements for determining the applicability of the statute, more interesting is subsection (2), which provides that
“[t]he provisions of NRS 42.005 do not apply to any cause of action brought pursuant to this section [emphasis added].” So what does subsection 2 of this statute really mean, not only by its plain language, but also from a litigation perspective? On its face, NRS 42.010(2) appears to strip away the provisions of NRS 42.005, including the bifurcation requirement; heightened evidentiary standard; a finding of oppression, fraud, or express/implied malice; and any caps. If true, this application of the statute would completely change the litigation process and many traditionally-held litigation strategies. Therefore, let’s dig deeper.
Don’t forget about legislative history
Although case law in Nevada is increasing, pointed precedent is not always available. That’s why it’s important to not forget about legislative history. While legislative history may sometimes be difficult to find or seemingly unnecessary when the statute’s language is clear, it may assist in explicitly confirming the interpretation of a statute, like here. See A.J. v. Eighth Judicial District Court, 133 Nev. 202, 206, 394 P.3d 1209, 1213 (2017) (“‘[A]mbiguity is not always a prerequisite to using extrinsic aids.’” (quoting 2A Norman J. Singer & Shambie Singer, Statutes and Statutory Construction § 48:1, at 554 (7th ed. 2014))).
After digging through hundreds of pages of legislative history, it became clear that the Nevada Legislature expressly excluded the provisions of NRS 42.005 when an intoxicated driver is involved. See AB 307, 65th Sess. (Nev. 1989). At a Senate Committee meeting regarding AB 307, a deputy legislative counsel of the Legislative Counsel Bureau explained that NRS 42.010(2) was added to “mak[e] it clear that . . . punitive damages against persons that have caused injury as a result of [DUI] of alcohol or controlled substance are not subject to the limitations on the caps, to the bifurcation, to the clear and convincing evidence standard that is set forth in [NRS 42.005] [emphasis added].” See Senate Committee on Judiciary on AB 307, 65th Sess. 32 (May 18, 1989); see also Assembly Daily Journal on AB 307, 65th Sess. 32 (May 8, 1989) (Assemblyman Sader stating, “[t]here is extremely strong public sentiment to keep drunk drivers off the roads. Criminal penalties are not enough. People who elect to drink and drive must also realize they will be punished financially, without regard to limitations.”).
NRS 42.010’s impact on the litigation process
No Supreme Court of Nevada decisions exist on the interpretation of NRS 42.010 and its impact on the litigation process, but the plain language of the statute (and its legislative history) is clear. Depending on the stage of litigation, below are different considerations and strategies to keep in mind when a civil case involves an intoxicated driver:
- Commencement of Action: Allege punitive damages in the complaint and cite to NRS 42.010 to immediately highlight its applicability.
- Discovery: Request financial documents early and raise NRS 42.010 as a basis to obtain them.
- Dispositive Motions: File a motion for summary judgment as to punitive liability early in the case and argue the applicability of NRS 42.010, as well as its effect on the litigation process.
- Bench Brief: A bench brief can raise this statute and its applicability to the court.
- Motions in Limine: Submit a motion to pre-admit financial documents for use at trial.
- Jury Instructions: Submit pre-instructions or jury instructions on NRS 42.010.
- Verdict Form: Submit one verdict form with both compensatory and punitive damages.
- Trial Presentation: Evidence at trial could include financial information typically reserved for a separate punitive damages phase.
Laws and procedures commonly evolve or change, so by digging deeper and pursuing answers, it might just change your outlook on the overall litigation process and ultimately result in a better outcome for your clients.
About this article: This article was originally published in the Communiqué, the official publication of the Clark County Bar Association, (August 2022). See https://clarkcountybar.org/member-benefits/communique-2022/communique-august-2022/.
About the author
Mona Kaveh, Esq. is a partner at Kemp Jones, LLP and practices primarily in the areas of complex civil and commercial litigation. She also dedicates a portion of her practice to pro bono legal services, and is actively involved with the Children’s Attorneys Project through the Legal Aid Center of Southern Nevada.
Breanna Switzler, Esq. is an associate at Kemp Jones, LLP and practices primarily in the areas of complex civil and commercial litigation.
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