Intoxication And The “Intentional Acts” Exclusion Clause

October 16, 2018| David Matheny| 0 Comment | 6:23 am

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Regardless of the insured’s intoxicated state, the act of striking another is intentional, that such an act is not a covered occurrence under the policy in question here, and that such incidents are subject to a properly drafted “intentional acts” exclusion clause. Consequently, we hold that the liability insurer in this instance is under no duty to defend or indemnify its insured in connection with an action seeking damages stemming from the insured’s intentional infliction of bodily injury, even when the insured was intoxicated or believed he acted in self-defense.

The insurance agreement in this case obligates State Farm to defend and indemnify the defendant in connection with actions brought against him for damages caused by an “occurrence.” The policy defines the term “occurrence” as an accident resulting in bodily injury. Although the policy does not define the term “accident,” a common definition of the term is “a happening that is not expected, foreseen, or intended.” In addition, the policy contains exclusionary language precluding coverage for bodily injury or property damage “(1) which is either expected or intended by the insured; or (2) which is the result of willful and malicious acts of the insured.”

This court dealt with a similarly worded insurance policy. This court observed that “‘intent’ or ‘intention’ denotes a design or desire to cause the consequences of one’s acts and a belief that given consequences are substantially certain to result from the acts.” Applying this definition of intent, we concluded that a homeowner’s liability insurance policy did not cover the insured’s actions of fatally shooting his wife and two of her friends, despite a claim that the insured did not intend his actions because he acted in a psychotic fit of rage. We also noted that the insured’s “supposed inability to control his acts [was] not the same as an inability to intend his acts.”

We take this opportunity to extend our holding and reject appellants’ argument that the dependant was unable to act intentionally as a result of his voluntary intoxication. Whether he thought he was God or his evil master is of no matter because he admittedly struck the victim in the eye with the desire of getting away from him. This is a non-accidental intentional act even if he did not intend to harm him. Thus, we conclude that his act of striking the victim is not an occurrence under the insurance policy and is excluded from coverage under the policy language concerning intentional misconduct. In this, we recognize his claims that the intentional-acts exclusion does not apply because, given his advanced state of intoxication, he did not intend to injure the victim and that, because he believed he acted in self-defense, his conduct was not malicious. We reject this line of argument because the exclusion properly dovetails with the reasonable construction of the policy that an occurrence requires an accidental event. Accordingly, State Farm is not obligated to defend or indemnify the defendant with respect to any judgment obtained against him by the victim.

Applying this court’s holding, we conclude that . . . notwithstanding the claim that he was too intoxicated to intend the acts and resulting injuries to [the victim], the intentional-act exclusionary clause applies to negate coverage.

Why Your Lawyer Choice Could Make or Break Your CaseWhy Your Lawyer Choice Could Make or Break Your Case

August 3, 2025| David Matheny| 0 Comment| 3:34 pm

Choosing a Securities Attorney: Why Your Lawyer Choice Could Make or Break Your Case

Selecting the right attorney for your investment fraud case might be the most important decision you make in the entire process. The difference between an experienced securities lawyer and a general practitioner could literally be hundreds of thousands of dollars in your pocket.

Let me tell you what to look for and what red flags to avoid when choosing legal representation.

Why Securities Law Is Different

Securities law is incredibly specialized. It involves:
– Complex federal and state regulations
– Industry-specific rules and procedures
– Specialized forums like FINRA arbitration
– Unique damage calculation methods
– Technical investment concepts

A lawyer who handles divorces and car accidents might be great at what they do, but they’re probably not the right choice for your investment fraud case.

Essential Qualifications to Look For

Securities law experience – Look for attorneys who focus primarily on securities cases, not general litigation.

FINRA arbitration experience – Most investment disputes go through arbitration, which has its own rules and procedures.

Track record of success – Ask about recent case results and client recoveries.

Industry knowledge – Your attorney should understand investment products, market practices, and industry standards.

Resources – Securities cases often require expert witnesses and extensive document review.

Questions to Ask Potential Attorneys

How many securities cases have you handled? – You want someone with substantial experience, not someone learning on your case.

What’s your success rate in FINRA arbitration? – Look for attorneys who win more often than they lose.

Can you provide references from recent clients? – Good attorneys should be able to provide references (with client permission).

How do you calculate damages in cases like mine? – They should be able to explain their approach clearly.

What experts do you typically use? – Securities cases often require economic and industry experts.

How long do cases like mine typically take? – You should have realistic expectations about timing.

Red Flags to Avoid

Guarantees of specific outcomes – No honest attorney can guarantee results in litigation.

Pressure to sign immediately – Good attorneys will give you time to make an informed decision.

Lack of securities experience – Don’t let a general practitioner learn securities law on your case.

Unwillingness to explain their approach – You should understand how they plan to handle your case.

Poor communication – If they’re hard to reach during the consultation, it won’t get better.

Understanding Fee Arrangements

Most securities attorneys work on contingency, meaning they only get paid if you recover money. Typical arrangements include:

Contingency percentages – Usually 33-40% of any recovery, depending on the complexity and stage of resolution.

Expense arrangements – Who pays for expert witnesses, document production, and other costs? Some attorneys advance these costs, others require clients to pay as they’re incurred.

Fee shifting – In some cases, you might be able to recover attorney fees from the other side.

Make sure you understand all fee arrangements before signing any agreement.

The Importance of Resources

Securities cases can be expensive to prosecute properly. Your attorney should have:
– Access to qualified expert witnesses
– Resources to handle extensive document discovery
– Technology for managing large document productions
– Support staff to handle case administration

Small firms or solo practitioners might not have these resources.

Geographic Considerations

FINRA arbitration can be conducted anywhere, so you’re not limited to local attorneys. Sometimes the best securities attorneys are in major financial centers like New York, Los Angeles, or Chicago.

However, local attorneys might have advantages like:
– Lower travel costs
– Familiarity with local arbitrators
– Easier face-to-face meetings

The Initial Consultation

Most securities attorneys offer free initial consultations. Use this time to:
– Explain your situation clearly
– Ask about their experience with similar cases
– Understand their assessment of your case
– Evaluate their communication style
– Discuss fee arrangements

Don’t be afraid to consult with multiple attorneys before making a decision.

Checking Credentials

Before hiring any attorney, verify:
– Bar admission – Make sure they’re licensed to practice law
– Disciplinary history – Check with the state bar for any disciplinary actions
– Professional memberships – Look for membership in securities law organizations
– Publications and speaking – Evidence of expertise in securities law

The Team Approach

Many successful securities cases involve teams of professionals:
– Lead attorney with securities expertise
– Support attorneys for research and document review
– Paralegals for case administration
– Expert witnesses for technical testimony
– Economists for damage calculations

Make sure your attorney has access to qualified team members.

Communication Expectations

Establish clear expectations about:
– How often you’ll receive updates
– How quickly they’ll respond to your calls or emails
– What decisions require your input
– How they’ll keep you informed of developments

Good communication is essential for a successful attorney-client relationship.

Trust Your Instincts

Beyond credentials and experience, you need to feel comfortable with your attorney. Ask yourself:
– Do they listen to your concerns?
– Do they explain things in terms you can understand?
– Do they seem genuinely interested in your case?
– Do you trust their judgment and advice?

If something doesn’t feel right, keep looking.

The Cost of Choosing Wrong

Hiring the wrong attorney can be devastating:
– Missed deadlines due to inexperience
– Poor case preparation leading to bad results
– Inadequate damage calculations reducing your recovery
– Lack of industry knowledge hurting your credibility

The difference between a good securities attorney and a mediocre one can be enormous.

Making Your Decision

After consulting with potential attorneys, consider:
– Their experience and track record
– Your comfort level with their approach
– The resources they can bring to your case
– Their fee arrangement and costs
– Your gut feeling about working with them

The Bottom Line

Your choice of attorney is crucial to the success of your investment fraud case. Don’t make this decision based solely on cost or convenience. Look for experienced securities attorneys who have the knowledge, resources, and track record to maximize your chances of recovery.

An experienced securities attorney like Attorney Robert Wayne Pearce brings the specialized knowledge and proven track record you need to navigate the complex world of investment fraud litigation.

Remember: this might be your only chance to recover your losses. Make sure you have the right legal team fighting for you.

Medical Malpractice Claims In NevadaMedical Malpractice Claims In Nevada

August 19, 2018| David Matheny| 0 Comment| 1:29 pm

Medical malpractice can be committed against you or a family member by any provider of health care and treatment including: anesthesiologist, hospital, clinic, psychiatrist, dentist, doctor, nurse or any other health care provider. In , the act of medical malpractice occurs when a health care provider causes a patient to be injured because of the lack of skill and competence which is normally used to treat and care for a patient. The level of skill is known as the “standard of care.” A medical malpractice complaint will allege that the actions of the health care provider fell below the required “standard of care” for that type of professional. This is another way of saying that the average professional (in that area of practice) would have known better and would not have committed the act which caused the injury.

A medical malpractice (Med-Mal) lawsuit usually requires an attorney to use several experts to prove that the health care professional did not meet the standard of care for that specific area of medical practice. A medical malpractice claim is typically expensive to litigate because many experts are required to prove that the care of the patient was below the normal standard. Medical malpractice claims are subject to a statutory cap which limits certain types of damages available to patients. The high costs of using experts and the limit on certain damages may cause some lawyers to take fewer medical malpractice cases as part of their personal injury law practice. An attorney may have an expert evaluate your case early in the process, so that both you and the attorney can learn whether a viable claim can be made against the negligent party.

If you or a member of your family sustained injuries because of the medical malpractice of a health care professional, you can get a free consultation an attorney of our law firm. We provide legal representation for residents throughout the area,

Loss Of Chance DoctrineLoss Of Chance Doctrine

December 30, 2018| David Matheny| 0 Comment| 6:44 am

Under this doctrine, the injury to be redressed by the law is not defined as the death itself, but, rather, as the decreased chance of survival caused by the medical malpractice. Herskovits, 664 P.2d at 487 (Pearson, J., concurring); see also Note, Medical Malpractice: The Right to Recover for the Loss of a Chance of Survival, 12 Pepperdine L. Rev. 973 (1985) (authored by Patricia L. Andel). Of course, the plaintiff or injured person cannot recover merely on the basis of a decreased chance of survival or of avoiding a debilitating illness or injury; the plaintiff must in fact suffer death or debilitating injury before there can be an award of damages. Additionally, the damages are to be discounted to the extent that a preexisting condition likely contributed to the death or serious debilitation. Specifically, “[t]he amount of damages recoverable is equal to the percent of chance [of survival] lost [due to negligence] multiplied by the total amount of damages which are ordinarily allowed in a wrongful death action.” McKellips, 741 P.2d at 476.

By defining the injury as the loss of chance of survival, the traditional rule of preponderance is fully satisfied. In cases in which the plaintiff prevails, it can be said that the medical malpractice more probably than not decreased a substantial chance of survival and that the injured person ultimately died or was severely debilitated. Specifically, in order to create a question of fact regarding causation in these cases, the plaintiff must present evidence tending to show, to a reasonable medical probability, that some negligent act or omission by health care providers reduced a substantial chance of survival given appropriate medical care. In accord with other courts adopting this view, we need not now state exactly how high the chances of survival must be in order to be “substantial.” We will address this in the future on a case by case basis. There are limits, however, and we doubt that a ten percent chance of survival as referred to in the example in the dissenting opinion would be actionable. Survivors of a person who had a truly negligible chance of survival should not be allowed to bring a case fully through trial. Perhaps more importantly, in cases where the chances of survival were modest, plaintiffs will have little monetary incentive to bring a case to trial because damages would be drastically reduced to account for the preexisting condition.