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Welcome to Vegas Lawyer. This site is for people who were hurt in Nevada. Contact us for a free consultation. You may want to read the Nevada Personal Injury Law Introduction on our home page. Also, you can get an overview of the different types of claims such as Wrongful Death, Auto Accidents, Premises Liability, and Products Liability before you explore the Article below if you reached our site through this page.

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  • Negligence Explained In Easy Terms
  • Comparative Negligence In An Auto Accident
  • Auto Insurance Answers
  • Informed Consent In Behavioral Treatment
  • Staged Auto Accident Fraud
  • Negligent Entrustment Theory
  • Dog Bite Liability
  • Adverse Inference If Evidence Is Spoiled
  • Response To Low Impact Denial / Low Offer
  • Indemnity Issues


  • Indemnity Issues

    CLAIM FOR INDEMNITY ACCRUES UPON PAYMENT

    "A cause of action for indemnity or contribution accrues when payment has been made." Aetna Casualty & Sur. Co. v. Aztec Plumbing Corp., 796 P.2d 227, 228 (Nev. 1990)

    A claim for indemnification does not arise until the party seeking indemnification becomes liable on the underlying obligation. See, e.g., Borchard v. Wefco, Inc., 112 Idaho 555, 733 P.2d 776, 780 (Idaho 1987); EBI/Orion Group v. State Compensation Ins. Fund, 240 Mont. 99, 782 P.2d 1276, 1279 (Mont. 1989); Aetna Casualty & Sur. Co. v. Aztec Plumbing Corp., 106 Nev. 474, 796 P.2d 227, 229 (Nev. 1990); Travelers Ins. Co. v. L.V. French Truck Serv., 770 P.2d 551, 555 (Okla. 1988); Perry v. Pioneer Wholesale Supply Co., 681 P.2d 214, 218 (Utah 1984).

    MUST BE FREE FROM ACTIVE WRONGDOING TO GET INDEMNITY

    [I]ndemnity is only available "so long as the indemnitee is free from active wrongdoing regarding the injury to the plaintiff." Piedmont Equip. Co. v. Eberhard Mfg. Co., 99 Nev. 523, 527-28, 665 P.2d 256, 259 (1983)

    EXPRESS INDEMNITY CLAUSES IS STRICTLY CONSTRUED WHEN IT COVERS INDEMNITEE’S OWN NEGLIGENCE

    Calloway v. City of Reno, 113 Nev. 564, 576, 939 P.2d 1020, 1028 (1997) remanded by Calloway v. City of Reno, 114 Nev. 1157, 971 P.2d 1250 (1998):

    Indemnity clauses are strictly construed, Particularly when the indemnitee claims that it should be indemnified against its own negligence. See Pickhover v. Smith's Management Corp., 771 P.2d 664, 666 (Utah 1989); Cities Service Co. v. Northern Production Co. Inc., 705 P.2d 321, 327-28 (Wyo. 1985). Ambiguous indemnity contracts are construed against the indemnitee, Particularly when the indemnitee was the drafter of the agreement. Wyoming Johnson, Inc. v. Stag Industries, Inc., 662 P.2d 96, 101 (Wyo. 1983); see Calkins v. Lorain Division of Koehring Co., 26 Wash. App. 206, 613 P.2d 143, 145 (Wash. Ct. App. 1980); Carl T. Madsen, Inc. v. Babler Bros., Inc., 25 Wash. App. 880, 610 P.2d 958, 962 (Wash. Ct. App. 1980). In fact, when an indemnitee seeks indemnity for its own negligent acts based on an express indemnity clause, the indemnity clause must clearly and unequivocally express the indemnitor's assumption of liability for the negligent acts of the indemnitee. Keawe v. Hawaiian Elec. Co., Inc., 65 Haw. 232, 649 P.2d 1149, 1153 (Haw. 1982).

    RIGHT TO INDEMNITY NOT IMPAIRED BY GOOD FAITH SETTLEMENT

    Pursuant to N.R.S. 17.245, a "good faith" settlement by a tortfeasor establishes an affirmative defense to any claims for contribution by another joint tortfeasor found liable for damages to plaintiff. A right of indemnity "under existing law" is not, however, impaired. N.R.S. 17.265. See Reid v. Royal Insurance Company, 80 Nev. 137, 390 P.2d 45 (1964).

    DUTY TO DEFEND IS GREATER THAN THE DUTY TO INDEMNIFY

    An insurer's duty to defend is separate and distinct from its duty to indemnify. See Erie Ins. Exch. v. Transamerica Ins. Co., 516 Pa. 574, 583, 533 A.2d 1363, 1368 (1987). The duty to defend is broader than a duty to indemnify. The duty to indemnify arises only when the insured is found to be liable for damages covered by the policy. The burden of proving that a particular claim falls within the coverage of a policy is on the insured. See id. at 580, 533 A.2d at 1366-67.

    DUTY TO DEFEND, BUT MAY GET FEES/COSTS AGAINST INDEMNITOR

    Piedmont Equip. Co. v. Eberhard Mfg. Co., 99 Nev. 523, 528, 665 P.2d 256, 259 (1983):

    where an indemnitee would be entitled to recover from an indemnitor the amount of a judgment paid to the plaintiff, as determined by the facts as found by the trier of fact, the indemnitee is entitled to recover in indemnity at least some of the attorney's fees and court costs incurred in defending the primary action.

    INDEMNITY AND THIRD-PARTY CLAIMS

    Third-party practice rule is based upon theory of indemnity. -- A defendant is permitted to defend the case and at the same time assert his right of indemnity against the party ultimately responsible for the damage. Reid v. Royal Ins. Co., 80 Nev. 137, 390 P.2d 45 (1964).

    DISTINCTION BETWEEN CONTRIBUTION AND INDEMNITY

    There is a clear distinction between contribution and indemnity: the former is an equitable sharing of liability while the latter is a complete shifting of liability to the party primarily responsible. Medallion Dev. Inc. v. Converse, 113 Nev. 27, 930 P.2d 115 (1997). THE RESTATEMENT ON INDEMNIFICATION

    Restatement (Second) of Judgments §58 (1982) provides:

    (1) When an indemnitor has an obligation to indemnify an indemnitee (such as an insured) against liability to third persons and also to provide the indemnitee with a defense of actions involving claims that might be within the scope of the indemnity obligation, and an action is brought against the indemnitee involving such a claim and the indemnitor is given reasonable notice of the action and an opportunity to assume its defense, a judgment for the injured person has the following effects on the indemnitor in a subsequent action by the indemnitee for indemnification:

    (a) The indemnitor is estopped from disputing the existence and extent of the indemnitee’s liability to the injured person; and
    (b) The indemnitor is precluded from relitigating those issues determined in the action against the indemnitee as to which there was no conflict of interest between the indemnitor and the indemnitee.

    (2) A “conflict of interest” for purposes of this Section exists when the injured person’s claim against the indemnitee is such that it could be sustained on different grounds, one of which is within the indemnitor’s obligation to indemnify and another of which is not.

    *** Any law, statute, regulation or other precedent is subject to change at any time ***

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