Jonathan Barlow, Author at Clear Counsel Law Group

Jonathan Barlow

Clear Counsel Law Group / Jonathan Barlow

702-522-0696

service animal, ada, service dogs, veterans, pug, cute

A Service Animal and Public Places

In a previous episode (Part I), we discussed what exactly a service animal is, and the difference between an emotional support animal and a psychiatric service animal. Today I hope to provide even more clarity into service animal law, particularly with respect to service dogs.

Last week¹⁾true story I was at a restaurant in Henderson with a nice couple that brought along their cute, small pug. After placing an order at the counter, the couple²⁾neither of the people had a visible disability, not to imply that all disabilities are visible sat down at a table with the little dog in tow. A restaurant employee came over saying “Is that a service animal?” After an affirmative response, the employee said, “I need to see the papers for your dog.” Each of the customers got a guilty look on their faces, then claimed to have forgotten the papers at home. The employee than asked them to sit outside, or leave altogether.

It is possible³⁾assuming the young couple was lying that everyone involved broke the law. Do not let this happen to you! Let us now go over how public businesses are required to treat service animals⁴⁾and their owners, and the law regulating this type of fraudulent behavior in Nevada.

Do I really have to let this creature in my store?

Oh you better believe it. The Americans with Disability Act (ADA) supersedes local and state law, meaning you, as a business owner, have to abide by the ADA. The ADA applies to businesses, local government entities, and non-profits⁵⁾this is not an exclusive list that serve the public. I will describe the most important elements of the law to help clear up a lot of the confusion out there.

What am I allowed to ask?

This is the most import part of this discussion! Please, please be careful. The Justice Department permits two questions to be asked of a person that arrives at your place of business with a service animal:

Is the dog a service animal required because of a disability?
What task has the dog been trained to perform?

That is it! No other questions are permitted. Questions like “do you have a disability?” or “do you have proof that your dog is a service animal?” are both inconsiderate and illegal⁶⁾Ask FIFA, it is not worth messing around with the Justice Department.

Other good facts to know

Not all service animals have papers evidencing their training. Not all service animals wear the special vests commonly seen on television. In turn, you cannot eyeball a dog coming into your store and know for sure if the animal is one of service.

Additionally, there seem to be a few internet enterprises out there offering to send official-looking certificates/dog vests⁷⁾A quick internet search will confirm this for a service animal. These have no legal relevance, and do not make a dog any more or less a service animal.

There are a few legally permissible reasons for disallowing a service animal:

If dog is behaving in a way that threatens other customers⁸⁾barking, growling and so on
If the area in question is one that needs to be kept sterile, like a kitchen or operating room⁹⁾the seating area of a restaurant does not count
If the dog fundamentally alters the nature of a business. The Justice Department cites a dog barking during a movie as an example.

What about people pretending their pet is a service animal?

Nevada has a statute governing this scenario:

NRS 426.805 Fraudulent misrepresentation of animal as service animal or service animal in training unlawful; penalty.

      1. It is unlawful for a person to fraudulently misrepresent an animal as a service animal or service animal in training.

      2. A person convicted of fraudulently misrepresenting an animal as a service animal or service animal in training is guilty of a misdemeanor and shall be punished by a fine of not more than $500.

      (Added to NRS by 2005, 626)

Pretending your dog is a service animal is a misdemeanor. In addition¹⁰⁾although not legally relevant, pretending your dog is a service animal really upsets folks that need service animals. Look at the comments of this article written by a woman confessing that she lies to merchants about her dog being a service animal. Service dog confession

I know as much as I want to take my dog everywhere with me, I have no desire to hurt peoples' feelings to that extent.

Footnotes[+]

Footnotes
↑1	true story
↑2	neither of the people had a visible disability, not to imply that all disabilities are visible
↑3	assuming the young couple was lying
↑4	and their owners
↑5	this is not an exclusive list
↑6	Ask FIFA, it is not worth messing around with the Justice Department
↑7	A quick internet search will confirm this
↑8	barking, growling and so on
↑9	the seating area of a restaurant does not count
↑10	although not legally relevant

General Interest / Nevada Law - 06/04/2015

community property, ademption, estate planning, probate

Community Property and Ademption: What You Need to Know

Let me tell you a story of unintended consequences in a recent case that I handled. Jim and Mary (husband and wife) each had children from prior marriages. Jim and Mary had agreed that if Mary died before Jim, the house that Mary and Jim lived in would be divided one-third for Jim, one-third for Mary’s son Michael, and one-third for Mary’s son John. In accordance with their agreement, Mary signed a will in 2001 that included the following gift of their house:

“I give, devise and bequeath my real property located at 1234 Anywhere St., Henderson, Nevada, as follows:

(a) one-third to my husband Jim;

(b) one-third to my son Michael; and

Mary’s will then provided that all of the “rest, residue, and remainder” of Mary’s estate shall be given to her husband.

In 2003, Jim and Mary sold the house on Anywhere Street and purchased a new house located at 5678 Elsewhere Ln., Henderson, Nevada. Jim and Mary agreed that the Elsewhere Lane house should be titled in Mary’s name only as her “sole and separate property”. Mary later died in 2013 having never changed her 2001 will. What happens to the Elsewhere Lane house now that Mary has died? Though totally unintended by Mary, Mary’s sons, Michael and John, face two major problems.

First, Nevada law provides that all property “acquired after marriage by either husband or wife, or both, is community property” unless husband and wife otherwise agree in a written agreement between them or unless a court order says otherwise.¹⁾NRS 123.220 Community property means that both spouses have a “present, existing and equal interest” in the property, even if the property is titled in the name of only one of the spouses. ²⁾NRS 123.225 Thus, when Jim and Mary purchased the Elsewhere Lane house in 2003, because they were married when it was purchased, Nevada law treats the Elsewhere Lane house as community property even though they agreed to put the deed in Mary’s name as her “sole and separate property”.

The first community property problem

Now that Mary has died, the first unintended consequence arises. Even though the Elsewhere Lane house was in Mary’s name only at the time of her death, Nevada law provides that one-half of the Elsewhere Lane house is automatically Jim’s property by virtue of community property. The remaining one-half interest in the house is “subject to the testamentary disposition of the decedent.” ³⁾NRS 123.250[1] This means that Mary’s will (i.e., her “testamentary disposition”) controls what happens to only the remaining one-half interest⁴⁾As a side note, if Mary did not have a will, the remaining one-half interest would have also gone to her husband Jim, thus causing the entire house to be Jim’s property upon Mary’s death.

In other words, Mary’s will does not control what happens with the entire house, just one-half of it.

Thus, even though it appears that Mary intended for her sons, Michael and John, to each get one-third of her house, the most they can get is one-third of the remaining one-half of the house, or, in other words, only one-sixth⁵⁾1/2 of 1/3 for those scoring at home of the total house. Meanwhile, Jim gets the first one-half due to community property and at least one-third of the remaining one-half, or, in other words, a total of four-sixths⁶⁾1/2 + 1/3 of the house.

The second community property problem

Second, it is quite likely that Mary’s sons will receive NO interest in the Elsewhere Lane house, even though Jim and Mary agreed that Mary’s sons should each get one-third, and even though Mary put in her will that they should each get one-third. The problem arises because Mary specifically described which property she was gifting in her will. Mary said, “I give my real property located at 1234 Anywhere St., Henderson, Nevada.” At the time of Mary’s death, Mary did not own the Anywhere Street house.

A principle of law called ademption provides that if a testator (a person who creates a will) gives a gift in the will of a specifically described property, and if the testator does not own that property at the time of her death, the gift is adeemed and the gift fails. In Mary’s case, because she described the gift as a gift of the Anywhere Street house specifically, the law provides that this gift is adeemed and has no effect at Mary’s death, as if she had never written it into her will. Consider, on the other hand, if Mary had said in her will, “I give my real property to my husband, my son Michael, and my son John in equal one-third shares.” In this situation, because Mary gave “my real property” in general, rather than a specific property, the law determines that whatever real property Mary owned at her death would be subject to the gift.

Thus, the second, and more important, unintended consequence of Mary’s will is that it is very likely that the court will determine that the gift of the Anywhere Street house is adeemed⁷⁾It is important to note that there are some narrow exceptions to the doctrine of ademption that could save the gift of Mary’s house to her sons. I will revisit those exceptions in a later blog entry. Mary’s interest in the Elsewhere Lane house would be transferred in accordance with the “rest, residue, and remainder” of her estate, which according to her will goes to Jim. Even though Jim and Mary agreed that Mary’s sons should each receive one-third of her house, and even though Mary signed a will where she surely thought that she was giving one-third of her house to each of her sons, the end result is that her husband Jim will receive the entire house because of the community property and ademption doctrines, while her sons receive nothing.

When creating a will, it is extremely important that you carefully consider the language that you use to avoid unintended consequences. An experienced estate planning attorney should advise you about the effect of the community property, and the effect of specifying gifts of property so that all of the consequences are understood and accounted for within the will.

Footnotes[+]

Footnotes
↑1	NRS 123.220
↑2	NRS 123.225
↑3	NRS 123.250[1]
↑4	As a side note, if Mary did not have a will, the remaining one-half interest would have also gone to her husband Jim, thus causing the entire house to be Jim’s property upon Mary’s death
↑5	1/2 of 1/3 for those scoring at home
↑6	1/2 + 1/3
↑7	It is important to note that there are some narrow exceptions to the doctrine of ademption that could save the gift of Mary’s house to her sons. I will revisit those exceptions in a later blog entry

Estate Planning / Nevada Law - 06/04/2015

service animals, mini horse, ADA, service dogs

What are Service Animals Anyway?

There is a lot of misinformation out there about what service animals are. Ask ten different people about the rules regarding a service animals, and you will get eleven different responses¹⁾I am assuming there is an economist in the mix speaking out of each side of his mouth. I kid my economist brothers!

This post will help you understand what exactly a service animal is; stay tuned for later posts that will discuss service animals and different types of public accommodations.

What are Service Animals?

By service animals, the Congress means to say service dogs²⁾there is a very cute exception we will get to shortly. It does not matter if your cute service monkey or cat has a neat little vest and can do any number of functions, these other creatures are not considered service animals under the Americans with Disabilities Act (ADA)³⁾the law that dictates what a service animal is.

The Justice Department defines service animals as “dogs that are individually trained to do work or perform tasks for people with disabilities.” Assisting folks who are blind or deaf are obvious examples. Bring trained to do specific tasks is what distinguishes a service dog from just a smart dog.

However, not all disabilities are physical. Our brothers and sisters suffering from PTSD, for example, may travel with a service dog that is trained to assist them if they happen to suffer an emotional episode⁴⁾the dog may be trained to notice when his or her owner is suffering an emotional episode and will jump into the owner’s lap and start licking the owner’s face as a means to pull the person out of the episode; pretty neat stuff.

Emotional Support Animals vs. Psychiatric Service Dogs

Only the latter is protected by the ADA, so it is important to understand the difference. The easiest way to understand the distinction is to remember that psychiatric service animals are trained to perform a specific function, like in the example above, the dog knew how to recognize a PTSD episode and react accordingly.

Emotional support animals, on the other hand, primarily comfort folks that are feeling bad. Being cute and/or friendly is not sufficient training for the animal to be considered a psychiatric service animal⁵⁾Do not blame the messenger here; if it was up to me, we would all live with Portland-esq tolerance, where dogs were allowed to come and go as they please.

Miniature Horses!

Lastly, we cannot conclude a discussion of service animals without covering the newest service animals in the game, as of 2010, miniature horses⁶⁾The Justice Department defines miniature horses as those that range in height from 24 to 34 inches, weighing 70 to 100 pounds.

Public business must reasonably accommodate a disabled person and his or her miniature horse so long as the four assessment factors are met:

The horse is housebroken
The horse is controlled by the owner
The facility in question can accommodate the horse’s type, size, and weight
The horse’s presence does not “compromise legitimate safety requirements necessary for safe operation of the facility”

To conclude, the ADA does not cap the number of service animals permitted to accompany a person. Therefore, you will not have to choose if you want to take along your service dog or service miniature horse.

Footnotes[+]

Footnotes
↑1	I am assuming there is an economist in the mix speaking out of each side of his mouth. I kid my economist brothers!
↑2	there is a very cute exception we will get to shortly
↑3	the law that dictates what a service animal is
↑4	the dog may be trained to notice when his or her owner is suffering an emotional episode and will jump into the owner’s lap and start licking the owner’s face as a means to pull the person out of the episode; pretty neat stuff
↑5	Do not blame the messenger here; if it was up to me, we would all live with Portland-esq tolerance, where dogs were allowed to come and go as they please
↑6	The Justice Department defines miniature horses as those that range in height from 24 to 34 inches, weighing 70 to 100 pounds

General Interest - 06/03/2015

Slayer Rule Part II: This Time for Keeps

Previously in Part I, we discussed what happens to the dispensation of an estate if a beneficiary happens to have killed the grantor. You may recall that the rule preventing the murdering-beneficiary from receiving any estate assets is called the “Slayer Rule.” Now that we know why and how the transfer of assets to the sinning beneficiary is prohibited, it may be a good time to discuss what happens if the killer transfers or sells the property to another party? Does the acquiring party have to give the asset back? Is the acquiring party liable to be sued for value of the asset that he or she has no legal right to? We will now unpack the rest of Chapter 41B of the Nevada Revised Statutes, and find out how the slayer rule applies.

So you bought property from a killer, how will the slayer rule affect you?

So you have come across a hot deal for land, a home, or a valuable asset¹⁾please do not interpret this to mean that the assets we are discussing have to be worth a lot of money, and you did what most Americans do when offered such a deal, acted quickly and snatched it up. The next day you are sitting at home, reading the paper, and see a picture of the person you purchased the asset from on the front page. Turns out the seller happened to have murdered the person who granted him the property to sell. Because you are a loyal reader of the Clear Counsel law blog, your mind immediately thinks of the slayer rule. Now what happens? Let us take a look at the end of Chapter 41B of the NRS:

NRS 41B.400 Payor or other third person who pays or transfers forfeited property, interest or benefit. Except as otherwise provided by specific statute, if a payor or other third person, in good faith, pays or transfers any property, interest or benefit to a beneficiary in accordance with the provisions of a governing instrument, the payor or other third person is not liable to another person who alleges that the payment or transfer to the beneficiary violated the provisions of this chapter unless, before the payment or transfer, the payor or other third person had actual knowledge that the beneficiary was prohibited from acquiring or receiving the property, interest or benefit pursuant to the provisions of this chapter.

(Added to NRS by 1999, 1354)

NRS 41B.410 Person who acquires or receives forfeited property, interest or benefit without legal right or authorization.

1. Except as otherwise provided in subsection 2, if a person, without legal right or authorization, acquires or receives any property, interest or benefit forfeited by a killer pursuant to the provisions of this chapter, the person is required to transfer the property, interest or benefit to the beneficiary who is entitled to it pursuant to the provisions of this chapter, or the person is liable to such beneficiary for the value of the property, interest or benefit.

2. The provisions of subsection 1 do not apply to a person who:

(a) Acquired the property, interest or benefit for value and without notice; or

(b) Received the property, interest or benefit in full or partial satisfaction of a legally enforceable obligation and without notice.

(Added to NRS by 1999, 1354)

Ok, let us start here. A quick definition: a payor is “one who pays, or who is to make a payment; particularly the person who is to make payment of a bill or note.”²⁾Black’s Law Dictionary. If you are wondering why a distinction needs to be made between someone who pays, and someone who “acquires or receives,” remember that a person may be a payor for a third party.

Neither a payor or receiver of the property in question is liable to the rightful owner³⁾the proper beneficiary of the gift now that the killer no longer has legal rights to the property if:

The acquisition is done in good faith
The purchaser/receiver does not know that the property in question may not be sold or transferred by the killer
He or she pays more than a nominal amount for the property

Whew, that is good to know. Carry yourself above board, and everything should be alright.

Does the slayer rule protect the beneficiaries?

But what about the poor beneficiaries left in the will that have lost a valuable asset that they should have been entitled to. What recourse do they have?

NRS 41B.420 Killer who transfers forfeited property, interest or benefit to third person; effect of preemption by federal law.

1. If a killer, for value or otherwise, transfers to a third person any property, interest or benefit forfeited by the killer pursuant to the provisions of this chapter, the killer is required to recover and transfer the property, interest or benefit to the beneficiary who is entitled to it pursuant to the provisions of this chapter, or the killer is liable to such beneficiary for the value of the property, interest or benefit.

It is always nice when the law is just. The killer is liable for the value of the forfeited property, meaning he or she can reacquire the property and transfer it to the rightful owner or be sued for the value by the asset by the remaining, legitimate beneficiaries.

Crime continues not to pay, at least here in Nevada.

Footnotes[+]

Footnotes
↑1	please do not interpret this to mean that the assets we are discussing have to be worth a lot of money
↑2	Black’s Law Dictionary
↑3	the proper beneficiary of the gift now that the killer no longer has legal rights to the property

Probate - 06/03/2015

The Slayer Rule in the News

A couple of weeks ago, we all lost one of the great musicians of American history ¹⁾and a personal hero of mine. Although his greatness and legacy cannot be tarnished, there has been an unfortunate development with reference to the distribution of his estate. ²⁾This is not a discussion of the specifics of that case, but a general discussion of the law. Beneficiaries of his estate have stated publicly that other potential beneficiaries murdered the deceased whose estate is now in question. Although I have no personal knowledge of the circumstances, this may be an opportune time to discuss, hypothetically, what happens if a beneficiary of an estate murders the grantor (the original owner of the estate assets).

The slayer rule

The law regarding the hypothetical above goes back a long way. In 1886, the U.S. Supreme Court first established what is called the “Slayer Rule.” ³⁾Mutual Life v. Armstrong 117 U.S. 591, 600. In 19^th century language, the court stated that is against the interests of public policy for a murderer to profit from his crime. The law caught on in popularity; as of now, forty-eight states have some version of a slayer rule.

In Nevada, Chapter 41B of the Nevada Revised Statutes codifies the principles of the ‘Slayer Rule’⁴⁾See Holliday v. McMullen, 104 Nev. 294, 296, 756 P.2d 1179, 1179 (1988) for a common law example of Nevada’s slayer rule; it states in pertinent part:

NRS 41B.200 General rule; killer cannot profit or benefit from wrong; anti-lapse statute and right of representation; contingent, residuary and other beneficiaries; common law.

1. Notwithstanding any other provision of law, the provisions of this chapter apply to any appointment, nomination, power, right, property, interest or benefit that accrues or devolves to a killer of a decedent based upon the death of the decedent. If any such appointment, nomination, power, right, property, interest or benefit is not expressly covered by the provisions of this chapter, it must be treated in accordance with the principle that a killer cannot profit or benefit from his or her wrong.

Simple enough, the law states that the “killer cannot profit or benefit” from the crime. But does the murderer need to be convicted of the crime before above statute applies? Not necessarily.

The plot thickens with respect to the slayer rule

Am I claiming then that if a beneficiary is accused of murder then he or she will lose interest in the estate? No. The answer is a bit more nuanced. Later in Chapter 41B, there is clarification on this point:

  NRS 41B.260 Civil action: Parties; burden of proof; evidence; stay of proceedings; limitation on time for commencement.

      1. For the purposes of this chapter, an interested person may bring a civil action alleging that a person was a culpable actor in the felonious and intentional killing of a decedent. An interested person may bring such a civil action whether or not any person who is alleged to be a killer in the civil action or any other person is or has been, in a separate criminal action, charged with or convicted or acquitted of being:

      (a) A culpable actor in the felonious and intentional killing of the decedent; or

      (b) A culpable actor in any other offense arising out of the facts surrounding the killing of the decedent.

      2. If an interested person brings a civil action pursuant to this section, the court shall determine, by a preponderance of the evidence, whether a person who is alleged to be a killer of the decedent was a culpable actor in the felonious and intentional killing of the decedent. If the court finds by a preponderance of the evidence that a person who is alleged to be a killer of the decedent was a culpable actor in the felonious and intentional killing of the decedent:

      (a) The finding of the court conclusively establishes for the purposes of this chapter that the person feloniously and intentionally killed the decedent; and

      (b) The person shall be deemed to be a killer of the decedent.

      3. If, in a separate criminal action, a person is charged with being a culpable actor in the felonious and intentional killing of a decedent or with any other offense arising out of the facts surrounding the killing of the decedent and:

      (a) The person is acquitted of the charge;

      (b) The charge is dismissed; or

      (c) A verdict or judgment is not reached or entered on the charge for any reason, evidence concerning any such matter is not admissible in a civil action brought pursuant to this section.

      4. Upon its own motion or the motion of an interested person, the court may, in whole or in part, stay the proceedings in a civil action brought pursuant to this section during the pendency of any separate criminal action that has been brought against a person who is alleged to be a killer in the civil action. The provisions of this subsection do not limit the power of the court to stay the proceedings in the civil action for any other reason.

Subsection 1 states that a beneficiary may lose interest in the estate if he or she has been “charged with or convicted or acquitted” of murder of the estate’s grantor. Subsection 1(b) expands the possibilities further to include a “culpable actor…arising out of the facts surrounding the killing.” As you can see, charged with and acquitted, are standards far less strenuous than a conviction.

Subsection 2 establishes that a court shall use a “preponderance of the evidence” standard ⁵⁾meaning the event occurred more likely than not in determining if Chapter 41B shall be applied to exclude the murdering beneficiary from the will. If you are attempting to think of an example of when a murderer could be acquitted, but still found culpable by a preponderance of the evidence, think of a certain Heisman Trophy winner currently in a Nevada prison.

Subsection 4 allows the court to pause the proceedings if the judge cannot make a preponderance determination at present time to allow the criminal proceedings to continue, in hopes that more evidence may come to light.

These probate challenges are as sensitive as they are complicated. With a large enough estate, a 41B slayer rule challenge could contest a serious amount of money.

Footnotes[+]

Footnotes
↑1	and a personal hero of mine
↑2	This is not a discussion of the specifics of that case, but a general discussion of the law
↑3	Mutual Life v. Armstrong 117 U.S. 591, 600
↑4	See Holliday v. McMullen, 104 Nev. 294, 296, 756 P.2d 1179, 1179 (1988) for a common law example of Nevada’s slayer rule
↑5	meaning the event occurred more likely than not

Nevada Law / Probate - 06/02/2015

May an Insurance Carrier Take Surveillance Video of Me?

So, unfortunately, you have been in an auto accident. In case the pain and suffering you are going through is not enough, now there is a tricky-looking fellow¹⁾an employee of the insurance company taking surveillance video of you. Is this permissible?

Yes.

In Nevada, an insurance carrier, their hired representative, or anyone else, may record surveillance video of you as long as they are in a public place, even from the curb in front of your house on a public street. They may use this information for their own internal purposes to get to know you and verify your claims of injuries due to the car accident, but they may also keep this video on file to see if your statements are consistent with what their video shows.

The bigger questions involve what the video means for your claim and whether or when you can require the insurance carrier or their hired representative to show or disclose the video.

First, let us discuss what the video means for your claim.

Will my claim lose now because I got caught on surveillance video?

So you were hurt in a car collision, you went to the hospital or urgent care clinic because your back and neck hurt from the whiplash and you called a personal injury attorney to represent you. Your treatment is going well and you are feeling better, but not completely back to normal. You go outside and shovel snow, move your trash bin, work on your vehicle, pull some weeds, play catch with your children or something similar.

Then you realize that there appears to be a person in a car taking pictures and video of you. You call your attorney who asks you to describe the car and license plate, but you do not remember because you were distracted by the person taking the video. You ask your attorney, “is my claim ruined because I was caught doing…?”

The short answer is probably not. What were you doing? If you participated activities that required significant physical ability and strength, such as performing back-flips on your trampoline or dirt jumping on your motorcycle during a time period in which you claimed that you had difficulty sitting, standing, bending over, sleeping, walking, and so on, your claim probably will be in trouble.

More likely, you were observed in the video doing typical chores such as shoveling snow, moving your trash, etc. The severity of your injuries in comparison to the amount of strength and exertion required by the activity will largely dictate how much the video might affect your case. The insurance carrier may have been verifying your claims of injury for their own purposes, seeking to catch you participating in activities you should not be, or both. You should speak with your attorney about the potential impact of the video.

Show me the surveillance video

When you called your attorney about the surveillance video, you demanded to see the video. Unfortunately, the person generally has a right to take such photographs or video from a public place in Nevada. Furthermore, the photographs or video are private property of the person who took them; thus, you cannot require them to turn the photos/videos over to you. Your attorney probably will not be able to get the video either, at least at first. Just because another person caused the car crash and hurt you, and you made a claim through their insurance, it does not initially entitle you to obtain the results of their investigation.

Of course, in the above paragraph, the key qualifiers are “at first” or “initially” because video can usually be obtained if you file a properly pled lawsuit within the requisite time period. Under Nevada’s rules of discovery, anything that is “not privileged which is relevant” may be obtained by any other requesting party. This includes video.

Even if requested, a Defendant may object to disclosure until trial or at least until after your deposition on the grounds that it is impeachment evidence. Impeachment evidence is something that shows you are or have not told to truth, and its use is often depicted in movies as the “gotcha” moment. Nevada case law is unclear about whether a party is permitted to withhold disclosure of a video where not specifically requested, but the surveilling party must generally disclose it if requested before trial, but not necessarily before your deposition. Your deposition may not be until one, two, or maybe even three years after the surveillance video incident; thus, you may forget what happened that day.

There may be actions you can take to help prepare you for your deposition if you suspect someone took video of you, and you should contact an attorney to help you with this.

Clear Counsel Law Group is experienced in guiding people who have suffered injuries from car accidents through the difficult process of attaining financial restitution for the harm they endured.

Footnotes[+]

Footnotes
↑1	an employee of the insurance company

Nevada Law / Personal Injury - 06/01/2015

Motorcycle Helmet Laws and Liability

Previously, we discussed what the current Nevada statutes are regulating motorcycle riders, and how, in an accident, not following those laws may affect the outcome and amount of a potential settlement. However, we did not cover the helmet law. Let us do so now.

Does Nevada have a helmet law for motorcyclists?

Yes, indeed. In fact, the law has been in effect for more than forty years. Unlike other states, Nevada requires all passengers, of all ages, to wear a helmet. The statute is as follows:

   NRS 486.231 Protective headgear and glasses: Standards; when use required.

      1. The Department shall adopt standards for protective headgear and protective glasses, goggles or face shields to be worn by the drivers and passengers of motorcycles and transparent windscreens for motorcycles.

      2. Except as provided in this section, when any motorcycle, except a trimobile or moped, is being driven on a highway, the driver and passenger shall wear protective headgear securely fastened on the head and protective glasses, goggles or face shields meeting those standards. Drivers and passengers of trimobiles shall wear protective glasses, goggles or face shields which meet those standards.

      3. When a motorcycle or a trimobile is equipped with a transparent windscreen meeting those standards, the driver and passenger are not required to wear glasses, goggles or face shields.

      4. When a motorcycle is being driven in a parade authorized by a local authority, the driver and passenger are not required to wear the protective devices provided for in this section.

      5. When a three-wheel motorcycle on which the driver and passengers ride within an enclosed cab is being driven on a highway, the driver and passengers are not required to wear the protective devices required by this section.

      (Added to NRS by 1971, 1469; A 1973, 1194; 1975, 1083; 1979, 857; 1985, 1959)

As you can see, the only exception to the law is if the driver is authorized to appear in a parade. Note also that the law requires “protective glasses” to be worn by all passengers.

How will not wearing a helmet affect a personal injury claim?

The answer to this inquiry depends upon the type of injuries that resulted from the accident.

No helmet, with a head injury: Because Nevada has a helmet law, and this is seen as a codification of a duties one has as a motorcyclist, not wearing a helmet might be seen by the law as the motorcyclist contributing toward his or her own injuries.

However, NRS 484D.495(4)(b) states that not wearing a seat-belt "[m]ay not be considered as negligence or as causation in any civil action or as negligent or reckless driving under NRS 484B.653." Given that a seat-belt and a helmet function in a very similar manner¹⁾as a preventative measure to protect the rider in the unlikely instance that there is an accident, it seems unreasonable to assign liability to the helmet-less victim of a motorcycle accident when the same assignment of liability is expressly prohibited for a seat-belt-less victim of an automobile accident.

No helmet, without a head injury: Even with the law requiring a helmet, if the injuries stemming from an accident do not include a head injury, then the fact the rider was not wearing a helmet is irrelevant²⁾Do not take this chance; please wear a helmet.

Will the legislature change the helmet law?

In the current 2015 legislative session, State Senator Don Gustavson, through Senate Bill 142, attempted to repeal Nevada’s requirement that motorcyclists wear a helmet at all times. He proposed allowing motorcyclists the freedom to choose to wear a helmet if the rider is over twenty-one, and has at least one year of driving experience. However, SB 142 was amended, deleting this provision, and the helmet law discussed above still stands in the version of the law signed by Governor Sandoval. This no-helmet trend is worth keeping an eye on.

Footnotes[+]

Footnotes
↑1	as a preventative measure to protect the rider in the unlikely instance that there is an accident
↑2	Do not take this chance; please wear a helmet

Nevada Law / Personal Injury - 06/01/2015

Will the Estate Tax Apply to You?

There are very few certainties in life, yet the cliche of 'death and taxes' seems to be more true with time. After the death of a loved one, many family members are concerned about taxes that may be due; it is not an accident that the disparaging term 'death tax' has caught on with such fervor. This is a real issue for very few, but seems to concern nearly everyone¹⁾As to why, is a pregnant inquiry not relevant to this discussion.

Who is affected by the estate tax, and why?

There is a misconception in the United States that every estate will be taxed. The reality is that less than 0.2% of estates actually owe any “death taxes.” The government implemented the estate tax to prohibit wealthy families from continuing to hand down vast amounts of wealth, mostly from unrealized gains on property or equities, to family members for generations without incurring any tax liability.

When property is inherited, it is worth the fair market value at the time of the decedent’s death. Without an estate tax affecting property, the heir could sell the homestead and avoid tax liability. Congress decided that this was an acceptable outcome for many, but truly wealthy families need to pay for this gain in value prior to the transfer of ownership to the heirs or beneficiaries by way of the estate tax.

Congress clearly defines “wealthy” families as those having more than $5.43 million per person (effectively $10.86 million per couple). This means that any individual with more than $5.43 million, or a couple with more than $10.86 million, will incur the estate tax. The amount of the tax is 40% of any amount that exceeds $5.43 million for an individual, or exceeds $10.86 million for a couple.

Two examples of estate tax law

Parent A dies with $5 million estate in 2014. Parent B dies with $5 million estate in 2015. The heirs or beneficiaries of the estate for parent A and for parent B would not incur any estate tax.

But the reality is that most married couples own their property as joint owners.

For example, Parent A and B own all property as joint owners and the value of the assets is $10 million. Again, Parent A dies in 2014 and Parent B dies in 2015. The heirs or beneficiaries for Parent A would not owe any estate tax in 2014. Likewise, the heirs or beneficiaries for Parent B would not owe any tax in 2015, even though Parent B’s estate exceeds the individual $5.43 million exemption. Congress allows the exemption from the first Parent A to transfer to Parent B allowing the surviving member of the couple to use the entire $10.86 million exemption.

As indicated above, and as you might have suspected, there are very few families in the United States that have accumulated that amount of wealth during his or her life. However, for those fortunate families that have been blessed with such wealth, there are several large loopholes that have enabled many of the largest estates to avoid or significantly decrease estate tax liability.

Footnotes[+]

Footnotes
↑1	As to why, is a pregnant inquiry not relevant to this discussion

Estate Planning - 05/29/2015

The Growth of Crossbow Use (and Injuries)

The use of crossbows for target practice and hunting has grown significantly in the past ten years. This could be due to a number of factors.

First, as more and more predators have been eliminated from the North American continent, the deer population has been significantly enlarged. In turn, state governments, as a matter of public policy, have been trying to encourage more folks to hunt. One may surmise, however, that permitting the use of crossbows would not only reduce, but destroy the deer population. This does not seem to be the case (although the data is limited). In Ohio, where crossbow hunting has been legal since 1976, there has been concurrent growth in both the number of hunters, and the deer population.

The Most Comprehensive Crossbow Data Available

Image by Capri23auto from Pixabay

The state of Michigan has the most comprehensive statistics on crossbow use. Michigan first legalized crossbow hunting in 2008, then commissioned a study to see the effect on hunters preferences through 2011. The report, authored by Brian Frawley and Brent Rudolph¹⁾You can read the report here: Michigan Crossbow Report, provides some interesting takeaways, especially given that they had a survey population of nearly 1,500:

Between 2009 and 2011, the proportion of archers using a crossbow increased from 19% to 37%.
Between 2009 and 2001, the number of folks hunting during archery season (this is when hunting with firearms is not permitted, but using a bow [and now crossbow] is permitted) increased by 13%.
Between 2009 and 2011, 25% of the hunters surveyed said that they had not hunted during previous archery seasons.
For the same period, 19% of the people surveyed stated that they had never hunted with anything other than a firearm before crossbow use was permitted during archery season.
Of the hunters surveyed, 88% said that the use of crossbows during hunting “met all or most of their expectations.”
Of the hunters surveyed, 96% of those surveyed said they would use a crossbow again in the future.

There is no reason to believe that the statistics from Michigan would not be applicable to hunters in the other states of the union, as Michigan hunters do not have traits that differentiate themselves from other hunters. Correspondingly, it is reasonable to posit that if crossbow hunting continues to expand across the country, folks in other states would adopt the trends shown in Michigan.

The National Growth in Crossbow Hunting

Twenty-three states now permit crossbow hunting during all parts of archery season. An additional eleven states, including Nevada, permit crossbow hunting during firearm season (the part of hunting season where guns are allowed). An additional four states permit crossbows for at least part of the archery season. All in all, only one state (Oregon), has a complete prohibition against crossbows. It certainly seems the national trend is toward permitting more crossbow hunting and crossbow use.

But at What Cost?

The rise of crossbow use has come with a correlated rise in crossbow injuries. After a quick internet search, one will see that these product liability cases against crossbow manufacturers are popping up in venues throughout the country: From multiple reported injuries in Texas, to Florida, to Wisconsin, crossbow hunters have suffered severe injuries to fingers and thumbs from the (alleged) manufacturing defects of the crossbows in question. Even Clear Counsel Law Group's own personal injury attorneys have represented people hurt by crossbows. One wonders if the crossbow manufacturers have accounted for the high percentage of firearm converts to crossbows without recognizing the difference in operation. ²⁾Note the 19% of people surveyed in the Michigan study that converted to crossbows once they were permitted to use them in archery season.

It is hard to say that the manufactures are not aware of the high conversion rate, as modern crossbows look more and more like rifles. Hopefully, more will be done in the design stage to prevent the rash of these injuries, especially as crossbow use continues to trend upward.

Footnotes[+]

Footnotes
↑1	You can read the report here: Michigan Crossbow Report
↑2	Note the 19% of people surveyed in the Michigan study that converted to crossbows once they were permitted to use them in archery season

General Interest / News - 05/29/2015

The Effect of a Lien on Trailer Homes in Bankruptcy

A former client recently found himself in a situation where a creditor sued him for an old debt that he had failed to pay. He never responded to the lawsuit and the creditor soon obtained a lien against him. The creditor then recorded the judgment with the county recorder. When the former client came to consult with me about proceeding with filing a bankruptcy case, he was curious to know what effect the recorded judgment would have, if any, on his personal residence. He lived in a trailer (or mobile home). In order to answer his question, we turned to the controlling Nevada law on the subject, which is found in Nevada Revised Statutes (“NRS”) 17.150 (2), and which states in pertinent part:

A transcript of the original docket or an abstract or copy of any judgment or decree of a district court of the State of Nevada or the District Court or other court of the United States in and for the District of Nevada, the enforcement of which has not been stayed on appeal, certified by the clerk of the court where the judgment or decree was rendered, may be recorded in the office of the county recorder in any county, and when so recorded it becomes a lien upon all the real property of the judgment debtor not exempt from execution in that county, owned by the judgment debtor at the time, or which the judgment debtor may afterward acquire, until the lien expires. (emphasis added).

In other words, the creditor that recorded the judgment created a lien against any real estate owned by the former client that was not exempt (i.e., protected by law). The former client had no real estate or land holdings to speak of besides the trailer, which itself sat upon land that he rented from a mobile home park. By reviewing another Nevada statute, I was able to show this client that the trailer itself was exempt property. NRS 21.090(m) states that the following property is exempt:

The dwelling of the judgment debtor occupied as a home for himself or herself and family, where the amount of equity held by the judgment debtor in the home does not exceed $550,000 in value and the dwelling is situated upon lands not owned by the judgment debtor.

How to apply the NRS with respect to the bankruptcy lien

Because this individual was living in the trailer and using it as his home, and he was renting the space where he parked the trailer, the trailer was exempt from the judgment that was recorded with the county recorder and no lien attached to the property. Moreover, after the bankruptcy was successfully completed, a discharge order was entered by the bankruptcy court creating an injunction against any type of collections on debts that were in existence at the time that the bankruptcy case was filed. In other words, even though the creditor had recorded its judgment prior to the filing of the bankruptcy case, no lien was created at the recording because there was no property owned by the former client at the time of the recorder and the debt was subsequently “wiped out” with the filing and successful completion of a chapter 7 bankruptcy case.

Bankruptcy / Nevada Law - 05/28/2015

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