Strategies, Challenges, and Answers

Is It Constitutional To Sue Hulk Hogan?

You may have seen in the news that former professional wrestler Hulk Hogan was sued in Florida.  He wasn’t being sued for his wrestling exploits.  Rather, Mr. Hogan was being asked to answer for the negligence of his son who allegedly injured a friend while driving the Hogan car.  Like Nevada, Florida adopted a law that makes the owner of a car vicariously liable for injuries caused by the negligence of a family member when driving the family car.

21036 Wrestler Nevada’s “family purpose” law is very broad.  It reads as follows:

NRS 41.440   Imposition of liability.  Any liability imposed upon a wife, husband, son, daughter, father, mother, brother, sister or other immediate member of a family arising out of his or her driving and operating a motor vehicle upon a highway with the permission, express or implied, of such owner is hereby imposed upon the owner of the motor vehicle, and such owner shall be jointly and severally liable with his or her wife, husband, son, daughter, father, mother, brother, sister or other immediate member of a family for any damages proximately resulting from such negligence or willful misconduct, and such negligent or willful misconduct shall be imputed to the owner of the motor vehicle for all purposes of civil damages.

The statute makes the owner of a car vicariously liable for the negligent acts of one of the designated family members who is operating with the owner’s express or implied permission.

The recent Nevada Supreme Court Case Arata v. Faubion, 123 Nev. 153, 161 P.3d 244 (2007) considered the constitutionality of Nevada’s family purpose statute.  In that case, 19 year-old Andrew Arata lived with his mother and stepfather (the “Puccis”).  Plaintiff alleged that Andrew’s negligent driving caused him injury.  Plaintiff sued Andrew and also named the Puccis pursuant to NRS 41.440.  The Puccis filed for summary judgment, claiming that NRS 41.440 is unconstitutional.  The step-father also argued that he should not be liable because he was not an “immediate member of the family”.

The Puccis argued that NRS 41.440 violated the constitutional principles of substantive due process and equal protection.  However, the Nevada Supreme Court, found the statute constitutional, pointing out that it is “rationally related to a legitimate purpose”.  The court said that the purposes were to give a negligence free injured party a remedy against a financially responsible defendant and to encourage family members to exercise greater scrutiny in deciding whether to loan the family car to a financially irresponsible driver.

The Court overruled the trial court’s finding that the step father was an “immediate family member” as a matter of law.  Rather, the court said that the question of whether the step-father should be subject to the effects of the law was a factual issue, to be decided by the jury.

So whether you are a Nevada driver or Hulk Hogan, be wary of who you let drive your car. . .especially family members.

About Michael Mills

Mr. Mills practices in the area of civil litigation and appeals, with particular experience in matters involving trucking liability, insurance defense, insurance coverage, premises liability, products liability and defense of personal injury. Mr. Mills is a member of the Trucking Insurance Defense Association, the Defense Research Institute Trucking Committee and the Nevada Motor Transport Association. Mr. Mills is licensed to practice before the Nevada Supreme Court and the Utah Supreme Court. He is also licensed to appear before the United States Supreme Court, the U.S. District Courts for the Districts of Nevada and Utah, as well as the U.S. Court of Appeals for the Ninth Circuit. Mr. Mills has created 3 Blogs for the benefit of the insurance industry. He serves as editor and publisher of the Nevada Insurance Law Blog, the Nevada Coverage and Bad Faith Blog and the Nevada Trucking Law Blog.

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