my name is and the eleven represents andrew ford over this case involves a automobile accident that occurred on july thirty first two thousand and twelve this record although it was in a residential street in las vegas thems a four lane road he was doing about forty five miles per hour another vehicle ran a stop sign two vehicles collided once they collided there was a second accident the vehicle spun around his car again no doubt about liability for the record make clear so tell us what's the standard for bad faith in the vada i'm having some difficulty in reading divided cases figuring out what the standard for bad faith is well the standard for b cordova's records right they had an m r i done they got records from the chiropractor and the orthopedic surgeon released his his recommendation for surgery and on the basis of that they denied the claim saying the injuries were preexisting it seems like a dumb decision to me i think the jury correctly awarded damages but why is that  faith because what what we did was we in most cases and about at least you have to hire an expert so we hired an individual and they were richard cass he wasn't a medical expert right he was just an expert on insurance practice and procedure exactly unreasonable and i didn't see that in and mr cass's report or in our briefings so is there some basis for that well it would be a few she's not qualified to know or say that this was a jury trial and she was given was a nurse on the stand  to give opinions or the peter surgeon opinions as to whether a labral terror so for a insurance company is their rule that the person giving them advice and claims information would have to have the same qualifications as if she were test him or if the experts testify at trial if there isn't there should be and that's what i don't think there's is there or there isn't one it's a claims practices and it varies from insurance company to insurance and dr katter sees me richard cass's opinion that i was negligent it was below the standard of care was unreasonable and it was done to intentionally was he makes these conclusions right but i didn't see what the basis was other than he just concluded that it was unreasonable to rely on a nurse as a medical expert in his or anything beyond his conclusion is there any case or is there any sed industry standard that is is published well there would be right in this case he had a two thousand and ten injury and argument i thought you were making was he had some underlying conditions but that two thousand and twelve accident significantly aggravated that's exactly right so with regard to the nurse whether she's qualified or not qualified what was the background in terms of the two thousand and ten accident had the chiropractor continued ongoing treatment of him in the timeframe immediately before the two thousand and twelve no in fact how long a time had been between his last treatment in the time of the two thousand and twelve accident seventeen months and has a hear looking to mitigate their damages no i'm just i'm trying to answer my question was there any investigation done by the insurance company as to whether or not the two thousand and twelve accident really aggravated prior injuries as opposed to whether he had prior to simply had  no i don't believe so the nurse opined she looked at the records and she said those chairs were preexisting right and so she she wrote a complete report based on their review of the twenty and i mean if they have been erroneous but it was based on her comparison of the twenty of that and a person and their own expert at the trial testified to the same thing that a purse and could live with that the rest of their life and be fine now mr cordova you have to understand he was heavy rigger in the convention industry and in vegas very labor intensive job for seventeen months between the first accident and the second accident there was in the single medical record insist single medical provider went back to work full time and was doing his job heavy labor full time so he was functioning at this i thought that was it was not disputed in fact they say it was disputed at the trial it wasn't disputed because he had tax returns to the show he made forty two thousand the year before and twenty thousand up until the time of the trial that was the trial that occurred after after the summ judgment in this case yes ok so let's go back to the time summary judgment which is i think the important time in this case mr cordova at least claims that he was had gone back to work right he had definitely gone we  trial the union steward that well the only union steward said is we really love and we look forward to his return that there's really not much in the union stewards could you tell me whether or not there were work records submitted to the insurance company that there was well there were there are work r there in the record i just can tell when they were submitted they were submitted prior to them denying the claim so i just i want to take i want to take you back to the first question because and it's important to me i would have no difficulty finding that there's a fact question in this case about whether the insurance company conducted a reasonable investigation as to say whether they were negligent in their investigation but is that the standard for bad faith in the fatah is negligence in conducting an investigation bad faith or is it just negligence in conducting an investigation well the standard is that they had no reasonable basis well i know you keep saying that but let me start me say that i think the nurses conclusions or the erroneous and perhaps arrived at without sufficient care provided them with a reasonable basis but it is in nevada if the investigation is negligent if the investigation isn't sufficiently robust if they don't look at reasonable alternatives does that give rise to a bad faith claim i think it was i don't know what case as well i don't think there is a specific case that says that but i found cases that say well this is sort of their negligence and their and their investigation but i think in opinion that they intentionally did they set out a course of action that led them to intentionally turn down a valid claim let me let me put it this way if an insurance company hired an in house nurse right and every single claim that came the nurse looked medical opinion or any other support for their denial none whatsoever they ever send them out for me now did they ever say that there was insufficient records to allow them to make a decision never s put in the brief they fall they said four times and i'm waiting to hear which i record they were missing did they give that claim up before the district court the claim that there was cooperate failure to cooperate yes th e judge found the mr cordova instead of giving an authorization went and got all of the medical records had they been the insurer in the two thousand and ten act yes yes so did they have all the medical records already from the two thousand and ten accident they you shift ground for a second you have a state statutory claim right and as i read the statute it basically says if you if the insured offers to settle at a certain amount and the insurance company refuses to do so when the insurer does then on you first having recovered it trial or having recovered a settlement no words the judge dismissed it but it seems to me it was just simply premature that you or you should be free today to go bring that claim but until you actually recovered more than what the insurance company offered you couldn't bring that claim and i thought about there's a case called sosa be that says you can't do that you have to bring them all in the beginning so if he did judge have dismissed it without prejudice and then he was the judge's order seems right  of that claim is that you recover more than was offered and then you offered to do and that hasn't occurred yet though if you could go in and follow whole nother lawsuit based upon the fact that the jury exactly what you say but my point is we we need to keep that claim alive in some way do we you we shouldn't rule in your favor on it but we need to keep it alive in some way well there's a case called salsa be the came out that says you can always when you go to a jury trial and you end up recovering more than what you had demanded and you can show that  right what do we do with that claim do we say that you get judgment on it and if so i want to mount well it's one of the unfair trade practices act and that the problem is is the judge prematurely ok i'm just going to tell me what you want us to do everything you're writing the last line in the opinion tell us what you harness i want you to reverse that word he says that there was no claim for the unfair trade practices act and remained that for a new trial on that issue in other words we can't your honors made it please the court my name is michael wall and i am counsel for american family and we thank you for the opportunity to be here today could you start with the issue because it's rather a relatively minor one that we ended with we have a statute that says if the insur for if you insured offers to settle and the insurance company doesn't settle and the insured is then forced to go to trial and gets a judgment that's at least the size of the settlement that the insurance companies statutorily liable under the  unfair trade act the judge said well you haven't recovered yet so i'm dismissing that claim they've now recovered what do we do with that claim the judge didn't say that they hadn't recovered yet and that's why deny the claim that motion was brought after discovery was all complete and at that point in time they had absolutely no evidence of an actual violation of the violation of hers under this statute when you fail to settle the claim better amount that he later recovers the statute the district courts have made quite clear the statute requires no bad face no violation of anything else it's merely an insurance code provision that was later turned into a private cause of action and it says as a consumer protection matter if you force somebody to go sue to obtain a settlement that he was willing to do in the first place it's violated the statute i have no idea what the remedy is that's a separate issue but i can't see that any basis for dismissing this claim with prejudice until we know what the plaintiff recovers there is no nevada supreme court case and there is no nevada law that we're seeing but there are plenty of district court cases right there are no district court cases that i'm aware of you think that you think this statute is equivalent to bad faith this statute is not equivalent to bad faith is not require this statute as a whole does not require bad faith for this provision what are the elements of the of the violation for this provision we do not have any specific statement in any let me get it exactly you force a person to litigation to obtain a settlement at least equal to the one that he previously was willing to tell the insurer to institute litigation to recover amounts to do under an insurance policy by offering substantially l alternately recovered in actions brought bribes such insured so it contemplating an act i'm just an action directly against the insurance company itself a first party action it could apply there but it also contemplates actions that would he was forced to bring suit to recover more than you are offered in an action by the insured so your defense in this case is that he really shouldn't should have sued the guy who ran into him rather than the insurance company is that your there be some wrongfulness in the contract this is a ok so so what you're saying excuse me what is this the nevada supreme court case that requires an additional element which is not stated in the plain language which is wrongful have addressed it and they have implied or found since it is wrongful conduct that you know if i say i think a cite the case for me that says that with respect to this subsection of the statute there must be some wrongful conduct other than failing to settle a claim at the levels i can cite you what you told me there were multiple district court cases that said so tell me which one says so recently  caliber versus american family alexander vs street vs american family we have decisions from the district courts so you didn't cite those cases or can we would you provide supplemental citations for those  they don't they don't directly address ok the issue because i wasn't able to find a case that directly a growing number and it's perfectly ok to say no case addresses the issue but you said the vote of supreme and if the time did you have any evidence that he was going in ongoing treatments and say six months before the two thousand and twelve accident no we didn't how could a nurse come to a conclusion that it was just  the two thousand and ten accident monday morning quarterbacking is great what we're you this is a paid nurse right she's your employee we didn't just rely on the nurse the nurses the red herring the there was that your line of staff in addition that in effect just go through whatever the evidence was in the record that was present and that there was no record at that point although your insurance company had his conversations with the with the plaintiff they had the records they were able to obtain which were were partial medical records or they didn't know whether or not they were partial medical records but the point is if you didn't have all the medical records how can you make a decision if they have if you don't have all the medical records it's premature to make the decision  monday morning parts so what what was the evidence on which the insurance company relied can you please just state what the evidence was the evidence was they couldn't get the medical records and they couldn't get them any authorization to get them  that is not evidence well ready evidence is evidence the medical records that they did have showed it had a serious accident previously with soldier search shoulder surgeries there's going to have to be a  the amount of the damages the fact that he had an accident and the fact that there was some exacerbation was not now was not something that we denied we the insurance company has a right to go to trial if they have a good big faith basis and if you read the transcript here you could see the jury could have gone the other way and that decision would have been supported by substantial evidence believe these were serious issues that were actually tried and it is not bad faith simply to go to trial saying it doesn't make it so but you didn't make any offer so you think it he had an underlying condition you just admitted that you the insurance company knew it had been aggravated by the two thousand and twelve accident but you didn't make a counter to say that we are for you twenty thousand or thirty in fact you just took the position you will offer you nothing he had already received twenty five thousand dollars and looking at the evidence that we had previous access because of the previous accident because and determining how much of that went to the first accident how much went to the second accident that they were requesting one hundred thousand dollars when it appeared that they don't tell me what they were requesting tell me what evidence you had you sent a letter on joy in two thousand and thirteen to mr cordova saying we're denying your claim because the only injuries that you suffered as a result of the two thousand and twelve accident where neither neither which to dealing with aggravation of the labor tears so that was your conclusion and that's why would i pay you any money so tell me tell me conclusion will tell me to tell me what evidence that conclusion was based on don't tell me what he was arguing don't tell me the mental factors tell me what evidence that conclusion it was based on all of the medical records that they were able to obtain which is what something better to become what records that they have they had the two thousand and ten records they had some of the two thousand and ten heard they had the records that were in their own file ok what else you can get to go out because of non cooperation and well make sure that you saying no operations the judge says there's a disputed fact about whether or not he provided authorizations to get medical stuff so that's not a basis for summary judgment but i'm trying to figure out what you had don't tell me what you didn't have we had a medical records we had for two thousand well some other medical records for two thousand and ten some of the remember call records for later we had some we did not have the films of the m r i we didn't have what we needed to go forward with an iou so why didn't the denial doesn't say i'm sorry you still haven't given eno us records they said we've concluded that the only injuries you suffered as a result of the two thousand and twelve claim are multiple abrasions on your face arms and legs acute moderate sprains bilateral shoulder on what basis in the absence of the two thousand and twelve records could you could the nurse make that conclusion because their only records that have been provided from this new accident were from that's what the diagnosis was from what was provided in the record shows the chiropractor send in a letter that says my opinion is a chiropractor by opinion is that these injuries were caused by the two thousand and twelve accident he says chiropractor also says he had the two thousand and twelve accident insurance companies have to make determinations as to whether or not they have a basis to pursue a matter to trial pursuing a matter to trial is not per se bad faith just because there's an excess verdict it's not bad faith they have to have had no reasonable basis to pursue these to trial the amount was disputed how do you push it between the two accidents was disputed whether or not he went back to work was disputed hotly disputed that becomes the number one thing and there were no records of him working all we have is him saying i'm working the only what your denial letter doesn't say that as it your denial letter doesn't say you suffered no damages because you're what you went back you were at work at the time of the denial letter the only thing we had about him not working was him calling up and saying i haven't been working and we asked from additional records to do to support that nothing not a thing so now fast forward to the time of trial he still doesn't have records and yet i'm not questioning the jury i think it could have could have should have gone the other way but the jury gets to decide that's the problem let me let me system then we have to look at the jury argument doesn't work i think but let me let me try this attempt to contact them is the notes that every other week attempting to get more and additional information it's not unreasonable to rely on a nurse who is highly trained to look at the records the fact that that nurse can't testify at trial has nothing to do with whether or not that was a reasonable thing to do with the records that we had at the time we had serious injury the last record that we had from that prior injury was he's still in pain and he's still not working and we and but he and we don't doesn't mean that he recovers everything we still a portion in nevada didn't make any offer at all though because he had been compensated and based on the records that we had at the time so yeah so your argument is that how much the have been medical bills that regarding the surgeries or what the surgeries have cost at that time he all we had was he had called up and said i need surgeries that's all the we had and he said they will be forty thousand dollars so how do you say the twenty five thousand from the tortfeasor is enough compensation if the surgeries are going to be forty thousand not to mention the wage loss how do you offer any money at all for surgeries when you have no evidence whatsoever that they are required and you have medical records that show that the surgeries were already done chiropractor and all you have is his word say i have the chiropractor and you have the orthopedist both saying that the surgeries are related to the twelve accident the chiropractor and the orthopedist didn't but you're in a position where you lost it and so now your argument is that you were justified in not having to face the bad faith line that's not the argument your argument is it was reasonable determination at the time it was made that we had reasonable two things they offered zero the jury came back with three hundred fifty one thousand the denial letter right they have the records because it's referenced right in there the labral tears in the left right shoulder president this action would be related they had all of the prior records so i just asked them when i was up or i said come and tell me and that's your question the opposite which record did you not have ok because the exact records of mr cordova gave to the insurance company the exact records that were utilized by them in denying th claim or the exact records that we use when we went to trial there was not the only one they didn't have was an ambulance report that we gave subsequent to find the lawsuit so with that with the district or the damages as part of the violation of the cover of good faith and fair dealing as part of the unfair trade practices act when you get into the unfair trade practices act yes you can under this section of the unfair trade i understand there's other sections that involve outrageous conduct i was there any case that says you can get punitive under this the sec the section we've been focusing on the one where the offer is less than the record is i think if you can show that it was intentional and that was it was i know that i just don't know is there any case it says that i don't know your honor i don't know i found cases that deal with other sections of the act but not with that one right i would assume yes because it ties back into the although they are separate and distinct cause of action that ties back into it by the way the nev that when you send a denial letter right if there are records like counsel keep saying and they have said from day one in this case that they were missing records and i've asked tell me what record where you missing under th nevada ministry of call they can send a letter and they can say we're missing records we need more time to process the claim they didn't do that they in their mind have sufficient records they had everything that they needed to deny the claim and they denied the claim wrongfully