FEDERAL INSURANCE COMPANY v. AMERICAN HARDWARE MUTUAL INSURANCE COMPANY, 124 Nev. Adv. Op. No. 31 (May 29, 2008)

In an opinion issued in May, the Nevada Supreme Court addressed the issue of whether, under Nevada law, an additional insured endorsement provides coverage for an injury caused by the sole independent negligence of the additional named insured.

Clark Lift West, Inc. was issued a liability insurance policy by American Hardware Mutual Insurance Company. Clark Lift provided maintenance and repair services at Southern Wine and Spirits of America, Inc., so Southern Wine was listed as an additional insured on Clark Lift's insurance policy with American Hardware. The policy covered Southern Wine, as an additional insured, for liability only arising out of Clark Lift's ongoing operations performed for Southern Wine.

Charles Pierce, a Clark Lift employee, was injured while working at Southern Wine's facility. Pierce initiated a personal injury claim against Southern Wine seeking damages for Southern Wine's negligence in causing his injuries. American Hardware refused to defend the lawsuit, asserting that its additional insured policy did not extend to Southern Wine's negligence.

Using traditional interpretation for ambiguous insurance contracts, in favor of the insured and favoring coverage, the Court held that "when the term "arising out of the operations" of a named insured is included in an additional insured provision, that term must be read to include coverage for acts arising from the additional insured's own negligence."

The Court concluded that "unless the contrary intent is demonstrated by specific language excluding or limiting coverage for injuries caused by the additional insured's independent negligent acts, there is coverage."

See the full opinion here.

The New York Times fielded questions for "Traffic" author Tom Vanderbilt.

Several of the answers were of particular relevance to Nevada drivers.

"Keep to the right, pass only on the left" laws

Q. After driving in Europe -- mostly Germany -- for a number of years, I'm convinced that most highway congestion problems in the United States are caused by failure to observe or enforce "keep to the right, pass only on left" laws. Traffic flows smoothly on autobahns because slow vehicles stay in the right lane. Faster drivers always have the right of way. It works beautifully! Your thoughts? -- Fred Bothwell

That said, even for drivers going within relative bands of the speed limit, but with slightly different speeds, there's a good logic to assigning some order to those speeds, in the same way there's a logic to doing this on things like people movers on airports (one of my pet peeves is the "road hogs" who treat it like a place to stand, blocking all the "lanes"). But in traffic there are always weird exceptions, like an exit or entrance on the left, etc. There's also the notion that someone is always going to want to go faster than someone else, so it raises the question of that one person's desire is really equivalent to the cost of all the other people having to make lane changes, raising the crash risk for every other driver.

55 m.p.h. Speed Limit in light of increasing gas prices

Q. In light of current gas prices and the likelihood of ongoing increases, do you think bringing back the 55 m.p.h. speed limit is a good idea? Do you think it feasible? -- Stephen

A. As this debate could fill an entire book, I'll just say if you're interested in reducing fuel usage (and thus prices) and road casualties, it's a good idea. On the feasibility question, I think we'd need much, much higher fuel prices, speed governors or I.S.A. (intelligent speed adaption) technology in cars, or automated speed camera rollouts. Appealing to people's altruism or common sense (e.g., burning less fossil fuel) seems to fail as an abstract principle, in traffic as elsewhere.

"Anti-civility suit"

Q. Mr. Vanderbilt, do you believe, as I do, that as many people enter their vehicles they feel they're putting on a kind of "anti-civility suit" that somehow absolves them of all requirements to function as polite, humane participants in society? -- Sixto Fernandez

A. By all means. Walt Disney got at this brilliantly in Motor Mania, the 1950 short that shows Goofy changing from "Mr. Walker" to "Mr. Wheeler." I think the reasons are varied, ranging from the sensorial isolation of being in a car to lingering class issues to anonymity and lack of feedback or consequences for acting rudely in traffic, to the very stress of driving itself, amongst other things. Of course, some people simply act in the car like they do off-road. It's been shown, for example, that people with more off-road criminal violations are more likely to commit on-road violations.

For more of Vanderbilt's discussion, in which he addresses roundabouts, geographical differences in honking behavior, ramp meters, and traffic light timing, check out the full question/answer session here.

In Hallmark v. Eldridge, 124 Nev. Adv. Op. No. 48 (published July 24, 2008), the Nevada Supreme Court reviewed the often dubious role of so-called "biomechanical engineers" as experts and concluded that (1) the district court below abused its discretion when it allowed a physician with an engineering background to testify as a biomechanical expert against a personal injury plaintiff because, among other reasons, the testimony did not assist the jury in understanding the evidence as the testimony was not based on a reliable methodology; (2) prejudice stemming from errors in the admission of evidence bearing upon a damage claim requires reversal when the error substantially affects the rights of the complaining party on appeal; and (3) such an error substantially affects those rights when the appellant establishes, based upon a sufficient appellate record, the reasonable probability of a different result in the absence of the error.

The Court's entire decision can be read HERE.

Surprisingly, state budget cuts to doctors' reimbursement rates for Medicaid patients have not discouraged physicians from seeing Medicaid patients. The state cuts will result in reductions in reimbursements for some physicians.

The Las Vegas Sun reported the results of a survey conducted by the state Health Care Financing and Policy Division, in its article entitled "No pay hike, but specialists seem OK with Medicaid," written by David McGrath Schwartz and Cy Ryan. Overall, the survey found that the number of specialists seeing Medicaid patients had actually increased.

Among other findings of the survey:

Increases

--Among Nevada's obstetrician/gynecologists, 93.6% have signed up to serve Medicaid recipients this year, up from 71% in 2006.

--Psychiatrists increased to 88 % from 58%.

--Dermatologists, gastroenterologists and neurologists seeing Medicaid patients increased by 20%.

Decreases

--General practice physicians declined from 71 percent participation to 68 percent

--General surgeon participation decreased from 77 percent to 58 percent

--Internist participation dropped from 94 percent to 79 percent.

--Not a single urology surgeon is signed up with Medicaid.

The American Association for Justice (AAJ) released a report on the top ten worst insurance companies in America, based on an investigation of court documents, SEC and FBI records, news, and testimony of former insurance agents and adjusters. According to the article, Allstate's "concerted efforts to put profits over policyholders" propelled the company to the top of the list of the country's worst insurance companies.

The report paints a dismal picture of Allstate:

According to CEO Thomas Wilson, Allstate's mission is clear: "our obligation is to earn a return for our shareholders." Unfortunately, that dedication to shareholders has come at the expense of policyholders. The company that publicly touts its "good hands" approach privately instructs agents to employ a "boxing gloves" strategy against its own policyholders.1 In the words of former Allstate adjuster Jo Ann Katzman, "We were told to lie by our supervisors--it's tough to look at people and know you're lying."

The name of the game is deny, delay, defend--do anything, in fact, to avoid paying claims. For companies like Allstate, there are corporate training manuals explaining how to avoid payments, portable fridges awarded to adjusters who deny the most claims, and pizza for parties to shred documents.

AAJ's complete top ten:

1. Allstate
2. Unum
3. AIG
4. State Farm
5. Conseco
6. WellPoint
7. Farmers
8. UnitedHealth
9. Torchmark
10. Liberty Mutual

Check out the full report here

This comes directly from The New York Times. A version of this article ran on August 17, 2008 on page A1 of the New York edition. This was written by Erik Eckholm and Olga Pierce.
You can find the story online with additional references, at methadone story.
Suffering from excruciating spinal deterioration, Robby Garvin, 24, of South Carolina, tried many painkillers before his doctor prescribed methadone in June 2006, just before Mr. Garvin and his friend Joey Sutton set off for a weekend at an amusement park.
On Saturday night Mr. Garvin called his mother to say, "Mama, this is the first time I have been pain free, this medicine just might really help me." The next day, though, he felt bad. As directed, he took two more tablets and then he lay down for a nap. It was after 2 p.m. that Joey said he heard a strange sound that must have been Robby's last breath.
Methadone, once used mainly in addiction treatment centers to replace heroin, is today being given out by family doctors, osteopaths and nurse practitioners for throbbing backs, joint injuries and a host of other severe pains.
A synthetic form of opium, it is cheap and long lasting, a powerful pain reliever that has helped millions. But because it is also abused by thrill seekers and badly prescribed by doctors unfamiliar with its risks, methadone is now the fastest growing cause of narcotic deaths. It is implicated in more than twice as many deaths as heroin, and is rivaling or surpassing the tolls of painkillers like OxyContin and Vicodin.
"This is a wonderful medicine used appropriately, but an unforgiving medicine used inappropriately," said Dr. Howard A. Heit, a pain specialist at Georgetown University. "Many legitimate patients, following the direction of the doctor, have run into trouble with methadone, including death."
Federal regulators acknowledge that they were slow to recognize the dangers of newly widespread methadone prescribing and to confront physician ignorance about the drug. They blame "imperfect" systems for monitoring such problems.
In fact, a dangerously high dosage recommendation remained in the Food and Drug Administration-approved package insert until late 2006. The agency has adjusted the label and is now considering requiring doctors to take special classes on prescribing narcotics.
Between 1999 and 2005, deaths that had methadone listed as a contributor increased nearly fivefold, to 4,462, a number that federal statisticians say is understated since states do not always specify the drugs in overdoses. Florida alone, which keeps detailed data, listed methadone as a cause in 785 deaths in 2007, up from 367 in 2003. In most cases it was mixed with other drugs like sedatives that increased the risks.
The rise of methadone is in part because of a major change in medical attitudes in the 1990s, as doctors accepted that debilitating pain was often undertreated. Insurance plans embraced methadone as a generic, cheaper alternative to other long-lasting painkillers like OxyContin, and many doctors switched to prescribing it because it seemed less controversial and perhaps less prone to abuse than OxyContin.
From 1998 to 2006, the number of methadone prescriptions increased by 700 percent, according to Drug Enforcement Administration figures, flooding parts of the country where it had rarely been seen.
But too few doctors, experts say, understand how slowly methadone is metabolized and how greatly patients differ in their responses. Some prescribe too much too fast, allowing methadone to build to dangerous levels; some fail to warn patients of the potential dangers of mixing methadone with alcohol or sedatives, or do not keep in contact during the perilous initial week on the drug. And some patients do not follow the doctor's orders.
"Those problems were not soon recognized," said Dr. Bob Rappaport, a division director at the Food and Drug Administration. He added: "Methadone is an extremely difficult drug to use, even for specialists. People were using it rather blithely for several years."
Dr. James Finch, an addiction specialist in Durham, N.C., said, "In the clinical and regulatory communities, everyone is trying to run and catch up with and deal with the causes of methadone overdoses."
This year the federal government started sponsoring voluntary classes that teach doctors the elaborate precautions they should take with methadone, like inching upward from low starting doses and screening patients for addictive behavior. (While Robby Garvin's doctor could argue that the dosage he was taking was reasonable -- one to two 10-mg tablets, three times a day -- and he was cleared by his state medical board, many specialists would have started him on a lower dose.)
In what critics call a stunning oversight, the F.D.A-approved package insert for methadone for decades recommended starting doses for pain at up to 80 mg per day. "This could unequivocally cause death in patients who have not recently been using narcotics," said Dr. Robert G. Newman, former president of Beth Israel Medical Center in New York and an expert in addiction.
The F.D.A. says that in the absence of reports of problems by doctors or surveillance systems, "we would have no reason to suspect that the dosing regimen" might need to be adjusted.
In November 2006, after reports of overdoses and deaths among pain patients multiplied and The Charleston Gazette reported on the dangerous package instructions, the F.D.A. cut the recommended starting limit to no more than 30 mg per day. "As soon as we became aware of deaths due to misprescribing for pain patients, we began the process of instituting label changes," Dr. Rappaport said.
Methadone, which is made by Roxane Laboratories Inc. of Columbus, Ohio, and Covidien-Mallinckrodt Pharmaceuticals of Hazelwood, Mo., creates dependency and is sometimes sought by abusers who say they experience a special buzz when mixing it with Xanax.
While the greatest numbers of methadone-related deaths have occurred among the middle-aged, the fastest growth -- an elevenfold jump between 1999 and 2005, to 615 -- occurred among those age 14 to 24, which experts say may be mainly a result of pill abuse.
Pain experts say the country is seeing a reprise of the abuse and tragedies that followed the introduction of OxyContin, a time-release form of oxycodone that was heavily marketed in the late 1990s. It became a factor in hundreds of deaths and a focus of law enforcement.
OxyContin is still widely prescribed, but a survey of Medicare plans in 2008, by the research firm Avalere Health LLC, found that many did not even include OxyContin on the list of reimbursable drugs. Critics like Dr. June Dahl, professor of pharmacology at the University of Wisconsin, fault the insurance companies for favoring methadone simply because of its monetary cost. "I don't think a drug that requires such a level of sophistication to use is what I'd call cheap, because of the risks," Dr. Dahl added.
Yet for the right patients, methadone can be a godsend. Alexandra Sherman, a patient of Dr. Heit's at his Fairfax, Va., clinic, suffered for years from hip and shoulder pain that "felt like somebody stabbing me with a knife," she said. Pain began to rule and ruin her days.
Dr. Heit gave her OxyContin and later, because it seemed to work better and because of the expense, switched her to methadone. Her insurance at one point covered only $500 in prescriptions, which paid for just one month's worth of OxyContin, compared with methadone's cost of $35 a month.
Methadone "has given me my life back," Ms. Sherman said.
But Dr. Heit did not just throw drugs at her problem. He told her that she would also have to try physical therapy as well. They signed a contract listing mutual obligations -- she would follow directions, he would be on call. He starts patients at low doses, makes them bring in their pill bottles so he can count how many are left, and may give urine tests to deter mixing drugs.
Some doctors, like Dr. Theodore Parran of Case Western Reserve University, also require methadone patients to give them the names of relatives or friends they can call from time to time.
But not all doctors have taken such precautions. Tony Davis, a contractor in Victorville, Calif., had just turned 38 in 2004 when, after years of migraines and back pain, he saw a new pain doctor in his Kaiser Foundation Health Plan. The doctor, who had already given him the sedative Xanax, prescribed methadone because of his continued pain.
The second day on the two medications, Mr. Davis said, "I'm feeling really weird,' " recalled his wife, Pebbles Davis. The two lay down for a nap and when she woke up, her husband was dead.
Ms. Davis recalled that the coroner had told her, "Given the medicines he was on, his brain forgot to tell his heart to beat and his lungs to pump." The case went to an arbitrator, who ruled that although Mr. Davis had overused his drugs in the past, the doctor had failed to warn him about the new risks of starting methadone together with Xanax and that the care was substandard. Ms. Davis was awarded more than $500,000. "I never had any idea of the risk nor did my husband," she said.
Another source of danger has been the conversion tables that doctors use when switching patients from one opioid to another -- telling, for example, how many milligrams of methadone would be equivalent to the level of morphine a patient had been taking. These charts, until recently, indicated dangerously high doses for methadone. Newer ones suggest lower levels but many experts say these may be useless because methadone affects patients so variably.
Now, as the government is making new efforts to teach methadone's challenges, some officials and doctors would go further, requiring prescribers to take a course before using methadone.
But many physicians and patient groups are wary of any steps that would slow access to pain treatments.
As early as 2003, alarmed by the rise in methadone-related deaths, the Substance Abuse and Mental Health Services Administration made an urgent call for more systematic and detailed state and national reporting about opioid deaths -- a call that still goes unanswered.
Misuse by abusers was first seen as the problem, but now, said Dr. H. Westley Clark, director of the Center for Substance Abuse Treatment of SAMHSA, "We know that a significant share of the methadone deaths involve doctors making well-intended prescriptions."
A majority of victims also used large quantities of alcohol or benzodiazepine sedatives but few would have died without an opioid as the primary culprit. "You can take a lot of benzodiazepines without dying," said Dr. Charles E. Inturrisi of Weill Cornell Medical Center, who said they strengthen the depressive effect of methadone.
Some doctors prescribe to patients who may be expected to court danger, like Anna Nicole Smith, who died from a drug cocktail including methadone.
Last February, Margaret Moore, 54, who lived alone in South Pasadena, Fla., with a history of alcoholism, depression and chronic back pain from a car accident, was found dead at home. Her doctor had prescribed methadone and valium and, he told investigators, warned her to stop drinking.
Her body was surrounded by empty vodka bottles and a host of pills including bottles of methadone tablets and sedatives. Her death was declared an accident from methadone toxicity.
Since April, SAMHSA has sponsored nine voluntary training courses on the safe prescribing of opioids, and many more are planned, though they will only reach a fraction of prescribers. The agency is also contracting with the American Society on Addiction Medicine to set up a mentoring program, through which prescribing physicians can receive expert advice. The State of Utah has a plan to educate every doctor and pain patient in the state about safe use of methadone and other opioids.
Nancy Garvin, Robby's mother, is one of many relatives of victims who, in the absence of a national registry, have started educational and pressure groups to fight bad prescribing and abuse of the drug.
Still, the death rate appears to be rising, raising the question of what more may be necessary, in law enforcement and in doctor training.
"Methadone can be important for patients when other drugs don't work," said Dr. Inturrisi, "but unless the doctor has the training and resources to manage the patient properly, he's going to get in trouble at a rate that's unacceptable."

My methadone blogs have received a great deal of attention and many comments. I have also received inquiries with respect to whether readers should take methadone.
I urge those with questions to consult doctors to answer questions regarding methadone. I am an attorney and attorneys are the wrong folks to ask for medical advice. I also urge you to be very careful about taking advice from people who are not licensed medical doctors.
Second opinions from doctors never hurt and are often a very good idea. Take the time to figure out whether the doctor you are talking to has a thorough enough background in methadone to give you good advice. Certain specialists, such as pain management doctors, may deal with methadone more regularly than other types of doctors.
And, of course, there is a great deal to read on the internet about this subject. Always consult physicians when possible for questions about whether you should or should not take a particular drug.

From the Reno Gazette Journal Today:
Local law enforcement agencies launch a region-wide drunk driving enforcement campaign beginning Monday that will consist of saturation patrols through Labor Day weekend.
Law enforcement officers urge people who drink to do so responsibly and not drive while under the influence. Instead they can use public transportation like a bus or taxicab or having non-drinking, designated drivers to prevent alcohol-related deaths or injuries. Most drunk drivers come from neighborhood bars and individual parties, Sgt. Pat Dreelan of the Reno Police Department traffic division said in a statement.

There were 1,592 DUI arrests by Reno police officers in 2007, a significant increase over the 1,014 arrests in 2006, the statement said. Reno police say this is noteworthy because about half of the 14 fatal vehicle accidents in the city of Reno in 2007 involved drugs or alcohol.

First time DUI offenders face penalties that can include arrest, impounding of the vehicle being driven, two days to six months in jail or community service, a fine of $400-$1,000.00, a chemical test fee, attending DUI school or substance abuse treatment, and participation before a victim impact panel. In addition, first-time offenders can have their drivers license revoked and have to pay license reinstatement and other related feeds and may see a substantial increase in vehicle insurance fees, if the insurance carrier retains the individual as a client. A DUI arrest and or conviction remain in criminal history files for the rest of the individuals life, and convictions and license revocations also remain in an individuals DMV record for the rest of their life. Repeat DUI offenders face increased penalties.

Law enforcement officers suggest people help law enforcement by reporting drivers who may be under the influence. When a potential drunk driver is seen the vehicles license plate number and vehicle description should be reported to dispatch by calling 334-COPS.

Paul Revere Life Insurance Company and UnumProvident Corporation were hit with a combined $60 million dollar verdict in a retrial of a disability insurance bad faith case originally tried in 2004. The June verdict in Las Vegas was six times the punitive damage award originally awarded to Plaintiff G. Clinton Merrick.

Summarized by Friedman, Rubin & White, attorneys for Merrick:

As vice president at General Foods in the 1970s, Merrick was instrumental in the development of the Kool-Aid Man and Country-Time Lemonade advertising campaigns and had thereafter become a successful venture capitalist. Merrick was a founder and managing director of Consumer Venture Partners of Greenwich, CT, and also a founding investor and director of Samuel Adams Brewing Co. He purchased a Paul Revere disability insurance policy in 1989. In 1991, Merrick began to suffer the affects of Lyme disease with chronic fatigue syndrome, though it went undiagnosed for a period of time. His work performance suffered and he tried to continue working. By 1994 he could not meet the grueling business travel and analytic requirements of a venture capitalist and he moved to Summerlin, NV, for his health. He put his insurer, Paul Revere on notice of claim in 1994 and filed his claim in 1995. Paul Revere accepted liability in 1995 and continued to pay benefits until December 1996. At that time, Paul Revere was in the process of being acquired by Provident Companies, Inc. which in 1999 became, UnumProvident Corp., which subsequently changed its name to Unum Group in 2007.

Merrick's lawyers alleged that improper claims handling practices begun at Provident were brought to Paul Revere and influenced its claim handling with respect to Merrick's claim both before the initial denial and afterward. These practices at the Unum Group of disability insurers have been the subject of media scrutiny including exposés on 60 Minutes and Dateline NBC as well as in multiple governmental investigations. "The jury heard evidence of a fifteen year scheme to cheat disabled people," said Rick Friedman, Merrick's lead trial attorney. "The money made off this scheme is in the hundreds of millions, if not billions of dollars. Jury after jury, and regulator after regulator has condemned their practices, but still they continue." According to Friedman, "The verdicts will keep coming until their practices change."

In an effort to provide consumers with more complete safety information and encourage car manufacturers to design safer cars, the U.S. Department of Transportation has revised its five star rating system.

The changes include reporting an overall safety rating, taking into account an automobile's performance in frontal, side, and rollover tests, instead of just reporting those results separately. A new side poll test will simulate an automobile collision with a tree.

For the first time, female crash test dummies will be tested, to represent women and larger children, and a new test for leg injuries will be implemented.

The updated system will include ratings for new technologies, such as electronic stability control, lane departure warning systems, and forward collision warning systems.

The changes in vehicle testing will be implemented beginning with 2010 model automobiles.


For more information, visit the National Highway Traffic Safety Administration