If you are pursuing a personal injury settlement, there are a few things you need to make sure you understand about ERISA. Particularly how an ERISA lien may impact the amount of money you may receive from your personal injury claim.

What is ERISA and why do you need to be aware of it in a personal injury case?

ERISA – the Employee Retirement Income Security Act of 1974 – is a federal law that sets standards for most retirement and health care plans in private industry. ERISA’s goal is to provide protection for the individuals enrolled in the plans. It does so by requiring plans to provide participants with plan information and features, setting minimum standards for participation, establishing fiduciary responsibilities for those who control plan assets, and requiring the establishment of a grievance process for participants, among other things. While the goal of the legislation was to protect employees of companies and the money they contributed to plans via payroll, the companies have used the law to aid in collecting repayment for medical care in personal injury cases.

In a personal injury case, a plaintiff is often reimbursed for their medical expenses. However, if an ERISA health plan originally paid for medical care, existing law allows your health insurer to collect money recovered from the at-fault party, this is called an ERISA lien.

In the past, plaintiffs’ attorneys have argued that the amount of money spent on attorney’s fees should be subtracted from the amount of reimbursement the health plan receives. This would prevent the health plan from being unjustly enriched by being fully reimbursed and benefiting from the attorney’s work at the same time. However, the United States Supreme Court has held that self-funded employee benefits plans are not subject to state law. Thus, if a plan is self-funded, only federal law applies. FMC Corp. v. Holliday (1990) 498 U.S. 52. A recent United States Supreme Court decision, US Airways v. McCutchen (2013) 133 S. Ct. 1537, held that for reimbursement actions under self-funded ERISA plans, the ERISA plan’s terms govern and that equitable principles such as unjust enrichment will not override the language of the applicable contract. When the language of the contract does not specifically preclude or is silent as to a term, such as the allocation of attorney’s fees, equitable defenses are still available.

How do ERISA liens work in personal injury cases?

The key to whether a plan falls under these rulings is its funding status. Some plans are insured, whereas others are self-funded. Insured plans are usually used by smaller employers with fewer workers. In insured plans, employees pay their premiums to a health insurance company which subsequently pays their claims. These companies are subject to state law for health care liens and reimbursements. Most government employee plans are also insured.

Self-funded plans, on the other hand, are used by larger employers who collect premiums directly from their workers and pay for claims from their own funds. While the companies usually outsource the work, the pool of money used to pay claims is employee money. Health care liens under these plans are governed by federal law and ERISA. Thus, the single most important thing to determine before you start your personal injury settlement negotiation is whether your health care plan is insured or self-funded. If it is insured, you will not need to worry about an ERISA lien however, there may be a subrogation lien under state law. If it is self-funded, you will likely need to plan on paying some of your settlement back to the health insurance company for your medical plans due to an ERISA lien.

What should you think about in negotiating your personal injury settlement?

Hiring a good attorney knowledgeable in both personal injury law and ERISA liens will help ensure that you make well-informed decisions regarding your settlement. An experienced personal injury attorney who understands ERISA liens can analyze your health insurance plan to determine the funding status and whether the language of the contract specifically precludes equitable defenses.

The first step in preparing your ERISA lien defense is obtaining your insurance plan documents, including the Master Plan Document (MPD) and the Summary Plan Document (SPD). The MPD language controls when there are conflicting clauses, so it is vital to understand what each says. The MPD will also lay out the funding mechanism and recovery terms.

Your personal injury attorney will also help you review your medical bills to ensure that there were no overcharges or mistakes. They will also help you to reduce unreasonable charges and obtain credit for any money you have already paid for co-pays, deductibles, and co-insurance. This review and documentation will aid in reducing the amount of an ERISA lien.

Your attorney will use the knowledge of the potential ERISA lien in negotiating your personal injury settlement. Knowing that you may have to reimburse your self-funded health insurance plan for medical expenses covered is important when going into negotiations so that you’re not left with a smaller settlement than expected when a lien is paid back.

Finally, your personal injury attorney will be able to identify if there are any equitable defenses still available based on the contract language that will help reduce the amount of the lien. If the MPD is silent regarding issues of comparative fault, the made whole doctrine, and common fund defenses, you may be able to argue for a reduction in the expenses owed. Consulting with an experienced ERISA personal injury attorney will help you navigate the complicated waters of ERISA liens and facilitate getting you the best outcome possible.

Call the captain to reach out right away for a free case consultation.

Whether it’s signing up for a trail horseback ride, joining a gym, taking a scuba diving lesson, going skydiving, riding on an all-terrain vehicle, or jumping on a trampoline there are many activities that will require you to sign a release of liability waiver. Once you sign these liability waivers, you consent to take on the risk of the activity you wish to partake in. Essentially, you are signing a document that says you will not sue those in charge of the activity should you get injured while participating. A liability waiver means that YOU are assuming the risk of the activity. But what are the real legal effects of signing this document, and are liability waivers always upheld? Read on to learn more about the ins and outs of a release of liability waiver, as well as what will happen if you ever get hurt after signing one of these documents.

How Does a Liability Waiver Work?

Liability waivers are legal contracts that you are expected to read before signing. While liability waivers are legal contracts, not all liability waivers are created equal and not all are legally enforceable. The strength of a liability waiver largely depends on how well it is used in conjunction with negligence prevention by the company or organization asking you to sign it.

The following are the general rules of liability waivers:

1. The waiver should be clearly worded and unambiguous regarding the intent to relieve any and all legal liability, even regarding negligence.
2. The waiver should be prominent and not misleading through a fine print contract.
3. The waiver must be signed by the person it will be used against.

The Many Aliases of a Liability Waiver

Don’t be fooled when signing a release of liability waiver, these little documents go by a number of different names. The most common aliases of a liability waiver are:

• Indemnity agreement
• Release of liability
• Waiver
• Waiver of rights
• Waiver of liability
• Hold harmless agreement
• Assumption agreement
• Pre-injury release
• Exculpatory agreement
• Assumption of risk

Before signing any document labeled as such, understand that all of these types of documents essentially mean the same thing. Signing these types of documents is a way that a company will argue that YOU are assuming the risk of an activity and that you will not sue for any personal injuries sustained.

Should I Sign a Release of Liability Waiver?

If you want to participate in any activity that is associated with any type of risk, you will most likely be expected to sign a liability waiver. If you want to participate in the activity, most companies will not allow you to avoid signing the waiver. In many circumstances, there is nothing wrong with signing a liability waiver. However, always be sure to read the agreement carefully before giving your signature to know what exactly the activity or risk that you are waiving. The main purposes of a liability waiver are to document in writing that you have been warned about potential risks and that the company is attempting to remove their responsibility if you are injured during the activity.

Is a Release of Liability Waiver Always Upheld?

In the situation where you have signed a liability waiver and were injured, there are circumstances that could lead to the waiver not being upheld. These cases are often complex, and the assistance of an experienced personal injury attorney will be needed to navigate the case.

The Nevada Supreme Court has ruled that in order for a litigant to have assumed the risk, two requirements must be met. First, there must have been voluntary exposure to the danger. Second, there must have been actual knowledge of the risk assumed. See Sierra Pacific v. Anderson, 77 Nev. 68, 358 P.2d 892 (1961). Considerations should include but are not limited to, the following: the nature and extent of the injuries, the haste or lack thereof with which the release was obtained, and the understandings and expectations of the parties at the time of signing. See Renaud v. 200 Convention Center Ltd., 102 Nev. 500, 506, 728 P.2d 445, 441 (1986).

The following are the most common situations where a release of liability waiver would not be upheld:

1. Defective Products

In the case that you were injured due to defective products provided by the company or organizations that required you to sign a release of liability waiver, you may retain the ability to sue the manufacturer of the product under product liability. Nevada is a strict products liability case. In Nevada, the elements for a claim strict product liability are: 1) that the product was defective; 2) that the defect existed when the product left the defendant’s possession; 3) that the product was used in a manner that was reasonably foreseeable by the defendant; and 4) that the defect was a cause of the damage or injury to the plaintiff.

2. Gross Negligence

In the case that your injury is a result of gross negligence, such as extreme recklessness or complete disregard for safety, you may retain the right to sue even after signing a liability waiver.

3. Misrepresentation

In the case that the company or organization misrepresented their service or activity, you may be able to file a fraud case against them. In this situation, the liability waiver would not be upheld as the document was misleading in nature. Misrepresentation or concealment of important facts is one of the most common ways to void a liability waiver. For example, if you are going on an ATV ride and the company represents that their vehicles are well maintained and in excellent mechanical condition and it later turns out that you were injured because the brake pads were worn down to an unsafe point, you will be able to argue that the waiver should not be enforced because you were not waiving the risk of the vehicles being rented to you in an already unsafe condition.

Consult with an Experienced Personal Injury Attorney Today

While we hope you never find yourself in a situation where you have been injured after signing a release of liability waiver, we are here to help if the situation does arise. This can be a difficult situation to navigate alone. Working with an experienced personal injury attorney will be your best chance at reaching your desired outcome. Do not leave your personal injury case up to chance. Contact us today to schedule a consultation.

Court TV had our lead attorney, Craig Drummond, on their Court TV show regarding the upcoming trial of Kelsey Turner who is accused of murder.

 

If you’ve been injured, you may know that the clock is ticking when it comes to exploring your legal options to recoup your losses and receive compensation for the injury. Because the state of Nevada has a personal injury statute of limitations for legal recovery, it’s important to move quickly and make sure that you get your case active as soon as you can.

Understanding the personal injury statute of limitations in Nevada can help you understand your range of options more fully. Sometimes an injury takes time to show up, so it is important to understand not only the way that the statute of limitations works from the date of an injury but also from the date that it is discovered.

What is a Statute of Limitations?

Put simply, a statute of limitations is a window of time within which an injured party can file a lawsuit to recover damages. Generally speaking, the statute of limitations starts at the time of injury. Cases must be filed before that window closes, or the injured party may lose the ability to recoup losses from the injury.

What Happens if You Miss the Statute of Limitations?

Often, cases that are brought after the statute of limitations has ended will be thrown out, and the person seeking damages will not be successful. However, there are some exceptions to this general rule. A statute of limitations can be paused — which is called being “tolled” — in specific situations. For example, if there is a malpractice suit and the party responsible for the damages worked to conceal an unlawful act that contributed to the damages, the statute of limitations may be extended.

If the statute of limitations was still active at the time of the injured party’s death, the family members generally have one year to bring charges on the injured party’s behalf — even if the statute of limitations would have run out earlier had the person remained living.

How Long is the Statute of Limitations in Nevada?

If you have a personal injury in the state of Nevada, the time you have to file a claim depends on the type of lawsuit.

• Generally, the timeline for a negligence action is 2 years from the date of injury to a person.

How Can an Attorney Help with the Statute of Limitations?

As you can see from the above list, the rules surrounding the statute of limitations in Nevada are complex. There are often multiple elements to any given case, and it is possible that a case that seems to be outside the statute of limitations may be able to be brought as a contract breach instead, which often has a longer statute of limitations. An experienced attorney can help injured parties determine if their case meets the statute of limitations or if there are any additional possibilities for how to file.

In addition, having an attorney can be extremely helpful when it comes to arguing that the statute of limitations should be tolled or extended. Much of the language surrounding the discovery rule is vague and subject to interpretation. The legal details say that the statute of limitations often begins when the injured party “should” have noticed the injury. Determining when someone should have noticed the effects of an injury is not always a straightforward process, and an experienced attorney can help navigate these complexities and potentially extend the statute of limitations.

In general, the sooner you are able to begin the legal process from the date of injury or the date of discovering an injury, the more likely you are to get your case settled before the statute of limitations runs out. If you have questions about whether your case qualifies or how to make sure that you have explored all of your legal options after suffering a personal injury in Nevada, reach out today to schedule a consultation.

Please know that every case is unique and that this post is not intended to be legal advice as the facts and circumstances of a particular case may not apply to the above general rules.

Even if you drive everywhere you go in Las Vegas, you become a pedestrian at some point in your day. You stroll along city sidewalks and jog to the park. You walk through shopping centers and across parking lots. Walking is an easy aerobic exercise and it’s a cost-free way to reach your destination. Unfortunately, as a pedestrian, you’re at risk of being hit by a car each time you cross the street or navigate a public space.

A single encounter with a negligent driver can leave you with serious or catastrophic injuries, costly medical bills, and impairments that change your life.

Pedestrian Accidents in Las Vegas

The most recent National Highway Traffic Safety Administration statistics show that of the 59 traffic fatalities in the Las Vegas Metro area, 23 were pedestrians. As the Nevada Office of Traffic Safety explains, increased traffic, moderate congestion, millions of tourists, and limited pedestrian facilities contribute to rising pedestrian accident numbers in the area.

Pedestrian accidents are a problem across the country. Nationally, the NHTSA’s statistics show that one pedestrian traffic fatality occurs every 84 minutes. Their recent annual statistics reveal that 6,283 pedestrians lost their lives in vehicle crashes.

What Should You Do If You’re Hit by a Car?

When you’re a pedestrian, you must be watchful and cautious. There’s always a chance that a distracted, drunk, or speeding driver will take you by surprise. If you’re hit by a car, it’s important to retain as much control over the situation as you can. First, make sure you’re not in the street and in additional danger. Next, if your phone is working, dial 911 for police assistance and request an ambulance so there’s no delay.

If You’re Hit By a Car Never Admit Fault

In the hectic atmosphere following an accident, injured people often respond impulsively. Some automatically say “I’m sorry.” Others admit fault without fully understanding the liability issues. Before you say something you regret, remember that your words will likely end up in a police report.

Whatever you say at an accident scene could jeopardize your right to recover damages when you make a claim. Courts, police officers, and insurance companies often perceive polite, post-accident apologies as admissions of fault. Whether you’re talking to a witness, a bystander, or a police officer, never say anything that sounds like you might have caused or contributed to your own injuries.

Document Whatever You Can

A pedestrian accident attorney can conduct a thorough investigation on your behalf. In the meantime, you should do whatever you can to prove your version of what happened. Drivers leave the scene. Witnesses fade into the crowd. Accident scenes begin to change immediately. It’s important to preserve whatever proof you can while you have the opportunity.

If you’re physically able, document relevant information. If you can’t do it yourself, ask a bystander for assistance. Your phone is a great investigative tool.

• Take photos of the vehicle that hit you, the car’s license plate, the accident scene, and anything else you can.
• Take a picture of the vehicle operator, his/her driver’s license, and insurance card.
• Ask witnesses to add their numbers or email addresses to your phone contact list.
• Use your phone’s digital recorder to explain what happened and describe your injuries.

Get Immediate Medical Attention

Even if you don’t feel injured, never say “I’m Okay.” Get an opinion from a medical professional. Some injuries present immediate symptoms, while others take days to manifest. Depending on a vehicle’s speed and body type, a vehicle impact can shove you, throw you to the pavement, or roll you onto the car’s hood. The most severe impacts can injure multiple body parts and cause internal injuries. Your age, height, and physical condition also determine how well your body can withstand the impact.

Know the Signs of Traumatic Brain Injury

A blow to the head or a severe body jolt often causes a mild TBI (more commonly known as a concussion.) Emergency Room professionals often focus on visible external injuries and damage they can see on an X-ray or a scan. It’s usually up to you to report mild brain injury symptoms. These are the most common symptoms of an mTBI/concussion.

• Thinking/Remembering: Concentration difficulties, short term memory issues, lack of clarity
• Physical: Headaches, dizziness, vision difficulties, balance issues
• Emotional/Mood: Irritability, anxiety, mood changes
• Sleep: Sleeping more or less than usual, trouble sleeping

When a person sustains a moderate to severe TBI, the symptoms vary and increase in intensity. The injured person often loses consciousness and experiences impairments that last a lifetime.

Report the Accident to Your Auto Insurer

Even if you are a pedestrian when you get hurt, you may have auto insurance coverages that apply.

Medical Payments Coverage

Many personal auto policies have a medical benefit that pays when an insured is injured in an auto accident. Even if you have other health coverage, your auto policy medical payments benefit can help you cover your deductible and co-pays.

Uninsured Motorist Coverage

If you have uninsured motorist coverage on your auto policy, it will pay your liability injury claim under certain circumstances:

• The person who hit you has no liability coverage.
• The driver who hit you left the scene without identifying himself
• The liability insurer denies the driver’s coverage or becomes insolvent.
• The negligent driver is underinsured because they have less than the state-required liability coverage minimum.

Personal auto insurers in Nevada must offer Uninsured Motorists coverage to new insurance applicants, but they don’t have to purchase it.

Contact a Pedestrian Accident Attorney

As you decide how to move forward with your injury claim, you should consult with a pedestrian accident attorney as soon as possible. Attorneys investigate accidents, evaluate liability issues, and protect their clients’ legal rights while they take the time to heal.

As you’ll establish a close working relationship with your lawyer, you must select a professional with whom you feel comfortable. You should also have confidence in your choice of legal representatives. They will interact with insurers, negotiate your case, and they may eventually present your case in a courtroom. Our attorneys will fight for you and our team of case managers will make sure to help you every step of the way.

If you have been hit by a car or injured in any other accident be sure to contact us right away for a case consultation.

PERSONAL INJURY

• Craig Drummond | Drummond Law Firm | 702-357-9754 | drummondfirm.com

Nicholas Farah, 36, died March 31, 2019, while in custody at the Clark County Detention Center …Nicholas Farah, 36, died March 31, 2019, while in custody at the Clark County Detention Center after four Metropolitan Police Department corrections officers restrained him. The Clark County coroner’s office was ruled his death was a homicide resulting from the restraint.

Clark County authorities will hold a public case review next week in the March 2019 death of a Wisconsin man who was restrained by Las Vegas corrections officers when he stopped breathing.

Nicholas Farah, 36, died at University Medical Center, and the Metropolitan Police Department confirmed after his March 31, 2019, death that Clark County Detention Center corrections officers had him restrained in the jail just before a medical staffer noticed Farah was no longer moving.

Nearly a year after Farah’s death, the Clark County district attorney’s office will present the case 9 a.m. Monday in commission chambers at the Clark County Government Center. The presentation will be streamed live on the county’s YouTube channel and aired on Clark County Television, Channel 4, the county announced.

The Clark County coroner’s office ruled Farah’s death a homicide; asphyxia during restraining procedures was the primary cause of his death.

The district attorney’s office previously determined none of the officers involved would be charged with crimes.

The review board is selected by Clark County Manager Yolanda King. Attorney Craig Drummond will preside over the board, attorney Carl Arnold will serve as the board’s ombudsman, and Chief Deputy District Attorney Pamela Weckerly will represent the district attorney’s office, according to a county news release.

The purpose of the review is to give members of the public more information about the use of force in this case, according to the news release. People who attend the case review will be able to submit written questions to Drummond.

There will be no formal determination about the manner or cause of death after the review, the release said.

Contact Dalton LaFerney at dlaferney@reviewjournal.com or at 702-383-0288. Follow @daltonlaferney on Twitter.

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SHOULD I STILL SEEK TREATMENT FOR AN INJURY DURING THE CORONAVIRUS OUTBREAK?

At the Drummond Law Firm, we have recently received many questions from current clients, and some new clients, regarding obtaining medical treatment during the coronavirus outbreak. Questions like, “should I treat,” “do I have to continue my regular treatment program,” and “will not treating hurt my case.” These are all great questions and we wanted to provide some input. First, we recommend you discuss your medical condition and treatment needs with your medical provider. Only a medical provider can give you medical advice. Regarding the impact on your case, our recommendation is that you need to make the decision in coordination with your medical doctor. We have been notified that most chiropractic, physical therapy, and other medical offices are instituting additional cleanings and steps to minimize the impact of COVID-19. These include, additional handwashing, disinfecting surfaces on a regular basis and encouraging their own employees to stay home if they or a family member are experiencing illness symptoms.

Assessments

As in any injury, we still recommend an initial medical assessment early in the case to 1) fully evaluate any injury and treatment needs and 2) document the date, location and mechanism of injury. An initial medical assessment remains an important component of addressing a physical injury and documenting the event. However, after that, the ultimate decision of whether to delay additional treatment is up to the patient and their provider.

Don’t Delay Treatment

If you choose to delay your treatment, we highly recommend you contact the provider and ask them to note in your file the reason for the delay, i.e. self quarantining or social distancing based on the coronavirus outbreak with plans to return at a later date. We also recommend that you ask your provider for some at-home home health recommendations, such as stretching, hot/cold packs, rest, over the counter medications, and ask them to also note any such recommendations in the file.

For more information regarding the Coronavirus, please check the CDC website.

The coronavirus outbreak has affected all of us. The Drummond Law Firm stands with our clients and remain ready to assist current clients, and new clients with their case, medical treatment, and claim. If you have questions regarding your case, or would like to discuss a recent injury and making a claim, give us a call at 702-4-INJURY (702-4-46587).

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Scholarship Winner Announcement

 

Las Vegas, NV — The experienced lawyers at The Drummond Law Firm have always been dedicated to providing opportunities for the betterment of the community. As a former U.S. Army JAG officer, lead attorney Craig W. Drummond decided another way to contribute back would be to fund a scholarship aimed at assisting military college students and Veterans as they pursue their post-secondary education.

We are pleased to announce that the winner of our annual scholarship opportunity is Joshua Keruski. Congratulations Joshua! A $1,000 merit-based scholarship has been awarded based on the student’s academic achievements and essay. We are delighted to select Joshua as the 2018 recipient and wish him all the best on his way to become a JAG officer.

“I am deeply humbled by your selection and thank you sincerely. I look forward to the privilege of serving our great nation as an Army JAG.”
– Joshua Keruski, Drummond Law Firm Scholarship Recipient

Congratulations Joshua and keep up the great work!

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See the full press release: Nevada Business Magazine

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Our lead attorney, Veteran, and author Craig W. Drummond appeared with fellow veteran Byron Brooks on NPR, brook is  a Las Vegas businessman and Veteran Court Advocate, known as the Nevada Public Radio with Heidi Kyser on November 12, 2018. The news segment highlighted the ten year anniversary of the Nevada Veterans Treatment Court. The program aired this Veterans’ Day on KNPR 88.9.

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