SUPREME COURT 

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NEVADA 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

ROBERT LUCIANO, AN INDIVIDUAL, 

Appellant, 

vs. 

SAINT MARY'S PREFERRED HEALTH 

INSURANCE COMPANY, A NEVADA 

CORPORATION, D/B/A HEALTH 

CHOICE AND PREFERRED HEALTH 

CARE NETWORK, 

Respondent. 

No. 67501 

FILED 

MAY 0 6 2016 

TRACE K. LINDEMAN 

CLERK OF SUPREME COURT 

BY 

DEPUTY CLERK 

ORDER OF AFFIRMANCE 

This is an appeal from a district court's order granting 

summary judgment in a medical malpractice and negligence action. 

Second Judicial District Court, Washoe County; Elliott A. Sattler, Judge. 

We review de novo a district court's order granting summary 

judgment. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 

(2005). Summary judgment is proper if the pleadings and all other 

evidence on file demonstrate that no genuine issue of material fact exists 

and that the moving party is entitled to judgment as a matter of law. Id. 

On appeal, we must determine whether the district court erred in 

concluding that appellant was not "insane" under NRS 11.250, thereby 

tolling the statute of limitations for his negligence claim. We affirm. 

On June 21, 2007, appellant Robert Luciano went to Saint 

Mary's Regional Medical Center (Saint Mary's) with symptoms of a stroke. 

Before his stroke, Luciano was a successful engineer and businessman, 

working as the Chief Technology Officer for Bally Gaming, Inc., trustee for 

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the Robert A. Luciano Jr. Trust (Luciano Trust), and managing partner for 

several limited liability corporations (LLCs). Luciano alleged in his 

complaint that Saint Mary's was inadequately staffed and resourced to 

handle strokes, exacerbating his condition, as there were long wait-times 

at the hospital. At the time of his hospital visit, Luciano was insured 

through respondent Saint Mary's Preferred Health Insurance Company 

(SMPHIC). Shortly after his hospital visit, on June 29, 2007, Luciano 

resigned from his position as trustee of the Luciano Trust and temporarily 

stopped working at Bally Gaming and operating his LLCs. On March 28, 

2008, however, Luciano was reinstated as trustee of the Luciano Trust. 

In 2011, Luciano defended against an Internal Revenue 

Service (IRS) determination that he was "passive with respect to 

companies for which he was an owner/manager in 2008 and 2009." In a 

package seeking reconsideration by the IRS, Luciano wrote a letter to the 

IRS, along with five affidavits from family members and colleagues 

discussing his stroke and his return to work, in an effort to demonstrate 

that he was actively participating in his LLCs. Luciano stated in his 

letter that after his stroke he "returned home in April of 2008 [and] ran 

[his] companies on a regular and continuous basis through 2009." 

Although Luciano did not submit an affidavit, relying on his unsworn 

letter, Luciano's father and coworkers corroborated Luciano's letter to the 

IRS in sworn affidavits. For example, Luciano's father stated that he "was 

legally given temporary Power of Attorney over [Luciano's] affairs until 

the time came that he regained his abilities, both mentally and physically, 

sufficient to again manage his own affairs under his own recognizance." 

Luciano's co-worker, Mark Felte, stated: "In January of 2008, upon 

sufficient recovery from his stroke, Robert Luciano Jr. was involved in the 

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decision processes required for day to day operations. During and after 

this time[,] we had regular communications via phone, email, and fax." 

Despite these statements, on July 3, 2012, Luciano filed a 

complaint against Saint Mary's, the doctors at Saint Mary's, and 

SMPHIC, claiming: "As a result of the negligence and subsequent stroke, 

Robert Luciano suffered a mental disability and functional incapacitation 

which resulted in the inability to manage his affairs within the meaning of 

insanity under NRS 11.250." The district court dismissed Luciano's claims 

against the doctors and Saint Mary's because NRS 41A.097—a statute of 

limitations for providers of health care—does not include a tolling 

provision for insanity. The district court concluded that claims of 

negligence against SMPHIC, as an insurance company rather than a 

health care provider, fell under NRS 11.190(4)(e)'s two-year statute of 

limitations, which includes a tolling provision for periods of insanity. 

However, the district court determined that there was insufficient 

information at that time to demonstrate whether Luciano was insane. 

Thereafter, SMPHIC moved for summary judgment, arguing 

that Luciano's claims were time-barred and Luciano should be estopped 

from claiming insanity based on representations he made to the IRS. In 

opposition, Luciano did not dispute his representations to the IRS. 

Rather, Luciano alleged that he did not understand the nature of what he 

was signing because "merely signing a document such as the letter [he] 

signed. . . and sent to the IRS, or even 'making a decision,' does not mean 

that [he] had or has the cognitive capability to understand what is going 

on." The district court granted summary judgment in favor of SMPHIC, 

stating "that no reasonable jury would find in favor , of [Luciano] on the 

issue of tolling." The district court found that Luciano "protected his 

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rights on numerous occasions," by engaging counsel for other business 

affairs, purchasing millions of dollars of real property, managing the 

family trust, and contracting with corporations and real persons. The 

district court rejected Luciano's arguments that, while he did sign 

documents prepared by his family members and colleagues, he did not 

understand the nature of what he was signing. Luciano appeals. 

A two-year limitations period applies to "an action to recover 

damages for injuries to a person . . . caused by the wrongful act or neglect 

of another." NRS 11.190(4)(e). If a person is insane "at the time the cause 

of action accrued," however, "the time of such disability shall not be a part 

of the time limited for the commencement of the action." NRS 11.250; see 

Butler ex rel. Biller v. Bayer, 123 Nev. 450, 460 n.23, 168 P.3d 1055, 1062 

n.23 (2007). The term "insanity" "include[s] a mental disability resulting 

in the inability to manage one's affairs." Bayer, 123 Nev. at 460 n.23, 168 

P.3d at 1062 n.23 (quoting Smith ex rel. Smith v. City of Reno, 580 F. 

Supp. 591, 592 (D. Nev. 1984)); see also Tsai v. Rockefeller Univ., 137 F. 

Supp. 2d 276, 282 (S.D.N.Y. 2001) (defining "insanity" as being "of such a 

nature that plaintiff is unable to manage [his or her] business affairs and 

is incapable of comprehending and protecting [his or her] legal rights and 

liabilities"); Alcott Rehab. Hosp. v. Superior Court, 112 Cal. Rptr. 2d 807, 

812 (Ct. App. 2001) (defining "insane" as one being "incapable of caring for 

his [or her] property or transacting business or understanding the nature 

or effects of his [or her] acts" (quoting Pearl v. Pearl, 177 P. 845, 846 (Cal. 

1918))). 

Here, Luciano was actively engaged in managing his affairs, 

notably complex, multimillion dollar business dealings. SMPHIC 

submitted ample evidence demonstrating that Luciano was engaged in his 

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businesses, land purchases, stock transactions, extensive travel, tax 

issues, and legal battles with counsel regarding claims against 

governmental agencies. Luciano concedes SMPHIC is correct that these 

transactions occurred, but argues he was technically insane throughout all 

of these transactions, and that his family members and colleagues made it 

appear he was actively engaged in his businesses when he really was only 

signing documents. 

While Luciano's contradictory statements do not give rise to 

equitable estoppel as SMPHIC did not detrimentally rely on the 

statements made to the IRS, 1contradictory statements may be used 

against a party on a summary judgment motion when no reasonable 

justification exists to explain the contradiction. See Nutton v. Sunset 

Station, Inc., 131 Nev., Adv. Op. 34, 357 P.3d 966, 976 (Ct. App. 2015) 

("The general rule is that a party cannot defeat summary judgment by 

contradicting itself in response to an already-pending NRCP 56 motion."); 

Aldabe v. Adams, 81 Nev. 280, 282, 402 P.2d 34, 35 (1965) ("[A] genuine 

issue of material fact may not be created by the conflicting sworn 

statements of the party against whom summary judgment was entered."), 

overruled on other grounds by Siragusa v. Brown, 114 Nev. 1384, 1393, 

971 P.2d 801, 807 (1998); see also Nghiem v. Allstate Ins. Co., 664 S.E.2d 

'See Cheqer, Inc. v. Painters & Decorators Joint Comm., Inc., 98 

Nev. 609, 614, 655 P.2d 996, 998-99 (1982) (stating the fourth element of 

equitable estoppel requires that one "must have relied to his detriment on 

the conduct of the party to be estopped"); Ford v. Brown, 45 Nev. 202, 212, 

200 P. 522, 525 (1921) ("An essential element of. . . [equitable] estoppel is 

that the party relying upon it was influenced by the acts or silence of the 

other to act as he would not otherwise have done, to his prejudice. There 

is no [equitable] estoppel . . . when such is not the case."). 

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925, 928 (Ga. Ct. App. 2008) CIA] party's contradictory testimony is to be 

construed against him or her on motion for summary judgment unless a 

reasonable explanation for the contradiction is offered. .. . [W]hether this 

has been done is an issue of law for the trial judge." (internal quotation 

omitted)). 

Allowing contradictory statements to be used against a party 

in summary judgment proceedings comports with the genuine requirement 

to survive summary judgment. In Aldabe, this court stated: "When 

[NRCP] 56 speaks of a 'genuine' issue of material fact, it does so with the 

adversary system in mind The word 'genuine' has moral overtones. We 

do not take it to mean a fabricated issue." 81 Nev. at 285, 402 P.2d at 37. 

"A factual dispute is genuine when the evidence is such that a rational 

trier of fact could return a verdict for the nonmoving party." Wood, 121 

Nev. at 731, 121 P.3d at 1031. A party cannot escape summary judgment 

by attempting "to build a case on the gossamer threads of whimsy, 

speculation, and conjecture." Id. at 732, 121 P.3d at 1031 (internal 

quotation omitted). 

Here, Luciano contradicts the evidence he presented to the 

IRS that he was actively engaged in his businesses by offering evidence 

that he was, in fact, unable to manage his businesses after his stroke. 

While A/dabe discussed contradiction among sworn testimony, and, here, 

Luciano submitted an unsworn letter to the IRS, several family members 

and colleagues submitted signed affidavits, which the IRS undoubtedly 

relied upon when making its decision. A number of these affiants offered 

testimony in opposition to SMPHIC's motion for summary judgment 

contradicting their affidavits to the IRS. Although Luciano's justification 

for the contradiction concedes that many of the business transactions took 

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Saitta 

Pickering 1 J. , J. 

Hardesty 

Cherr 

Gibbons 

Parraguirre 

place in his presence or included his signature, he argues that he did not 

understand the nature of the transactions. The district court rejected 

Luciano's argument, finding that a reasonable jury would not believe that 

Luciano's friends and family members created an illusion that he was 

actively engaged in his business just to maintain his image. 

We agree that Luciano's justification was not reasonable to 

create genuine issues of material fact to survive a motion for summary 

judgment in light of his and his family and colleagues' past statements, 

coupled with the report of one of his experts stating that Luciano's current 

condition, while worse than before, does not sufficiently impair his 

"instrumental activities of daily living," which is a requisite for finding 

insanity. See Butler, 123 Nev. at 460 n.23, 168 P.3d at 1062 n.23 (defining 

"insane" as "a mental disability resulting in the inability to manage one's 

affairs"). Thus, Luciano is time-barred from filing his claim against 

SMPHIC. Accordingly, we 

ORDER the judgment of the district court AFFIRMED. 

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cc: Hon. Elliott A. Sattler, District Judge 

Paul F. Hamilton, Settlement Judge 

Brownstein Hyatt Farber Schreck, LLP/Reno 

Laxalt & Nomura, Ltd./Reno 

Second Judicial District Court Clerk 

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