Strategies, Challenges, and Answers

Will The Howell Doctrine Come To Nevada?

In an earlier post HERE we reported that in Howell v. Hamilton Meats & Provisions, Inc., the California Supreme Court faced the question of what was the appropriate amount of an injured plaintiff’s recovery.  Should plaintiff recover the amount billed for the medical treatment?  Or should the Plaintiff recover the reduced amount that the health care insurance company had paid to satisfy the doctor’s bill?  In Howell, the California Supreme Court found that an injured plaintiff could recover only the amount that the health care insurance provider paid and not the amount of unreduced bill.

Tri-County Equipment & Leasing, LLC v. Klinke, Tri-County v. Klinke, Nevada Insurance Law, Mills & Associates Nevada Insurance and Coverage Lawyers 702-240-6060That same issue is currently before the Nevada Supreme Court.  In the case of Tri-County Equipment & Leasing, LLC v. Klinke, Case No. 55121, plaintiff Klinke was injured in a motor vehicle accident.  A California worker’s compensation provider paid her medical bills.  As written by the providers, the bills totaled $17,510.00.  However, the actual payment for services that satisfied those bills totaled only $12,162.26.

Knowing the game that was afoot, Plaintiff filed a motion in limine arguing that the amount paid was not admissible because it violated the collateral source rule.  Because the workers’ compensation provider was a California provider, NRS 616C.215(10) was not applicable.  The trial court granted that motion in limine to prevent the introduction of the amount paid.

In spite of the motion in limine, defendant Tri-County made another assault at trial, arguing that the amount paid was the appropriate measure of damages and not the amount billed.  Again the defendant’s arguments were shut down.  Following the four-day jury trial, Tri County filed a post-trial motion requesting the verdict be reduced by the difference in the two amounts, namely $5,347.74.  The trial court denied the post-trial motion.

Defendant brought the issue to the Nevada Supreme Court in June, 2010.  The answering brief and the reply brief were filed in July, 2010 and September, 2010 respectively.  In a 2-1 decision, the three member panel the Nevada Supreme Court entered an Order of Affirmance of the trial court’s rulings on April 27, 2011.  Justice Pickering filed a dissenting opinion.

Tri-County filed a Petition for Rehearing en banc.  After the briefing was done but before the Nevada Supreme Court had acted on the Petition for Reconsideration, the California Supreme Court ruled in the Howell case.  Defendant Tri-County supplemented that decision to the record.  Based upon the filings, the Court vacated the earlier Order of Affirmance and granted the Petition for en banc Reconsideration..  You can find the original briefing by searching the Nevada Supreme Court Case Management Website HERE.

It is interesting to note that the Nevada Justice Association, a plaintiffs’ bar organization, appeared as an amicus asking the court to publish the Order of Affirmance.  However, they arrived too late.  Because the Court had already vacated the Order and the Petition for Reconsideration had been granted, the motion for publication was denied.

We will keep an eye on this issue and inform you about any upcoming decisions.  Please stay tuned.  In the meantime, if you need questions answered on this topic, please give us a call and we will gladly assist you in your search for answer.

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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