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Short Term Lessor’s Liability For Statutory Minimum

The short-term lessor of a motor vehicle who permits the short-term lessee to operate the vehicle upon the highways, and who has not complied with NRS 482.295 insuring or otherwise covering the short-term lessee against liability arising out of his negligence in the operation of the rented vehicle in limits of not less than $15,000 for any one person injured or killed and $30,000 for any number more than one, injured or killed in any one accident, . . . is jointly and severally liable with the short-term lessee for any damages caused by the negligence of the latter in operating the vehicle. . . .

NRS 482.305(1) creates a limited “safe harbor” protecting short-term lessors of motor vehicles that provide the minimum statutory coverage from being held jointly and severally liable for damages caused by a negligent lessee. The statute does not, however, expressly address the specific issue presented here. We are, nonetheless, able to discern the legislature’s intent from the broader context of Nevada’s financial responsibility law.

NRS 485.185 requires that every owner of a motor vehicle provide insurance in the minimum amounts set forth therein. Also, in lieu of the “owner’s policy” required by NRS 485.185, the driver may provide an “operator’s policy,” which essentially insures the driver while operating any motor vehicle, in the same minimum amounts. See NRS 485.186. Observing the foregoing in light of NRS 482.305(1), we infer that, in instances where the lessee of an automobile under a short-term lease agreement is covered by an owner’s or operator’s policy, the legislature was aware that more than one insurance policy would cover the automobile lessee — the driver’s personal policy pursuant to NRS 584.185 or NRS 485.186 and the lessor’s policy provided pursuant to NRS 482.305(1). We therefore conclude that, by enacting a scheme that contemplates dual coverage, the legislature intended that both policies provide coverage up to the respective statutory minimums.

Allstate counters that such a construction leads to the absurd result of providing a windfall for accident victims. We disagree. We first observe that a “windfall” describes a situation in which the recipient receives some benefit undeserved or unmerited. This term does not describe the recovery that accident victims may receive to compensate their actual losses. Furthermore, reason and public policy support our conclusion: the general spirit of Nevada’s financial responsibility law clearly favors protecting accident victims to the extent possible. See Hartz v. Mitchell, 107 Nev. 893, 896, 822 P.2d 667, 669 (1991) (“Nevada has a strong public policy interest in assuring that individuals who are injured in motor vehicle accidents have a source of indemnification.”).

Allstate cites Alamo for the proposition that, once the statutory minimum is paid by the lessee’s personal insurance, the lessor is absolved of further liability. See Alamo, 114 Nev. at 154, 953 P.2d at 1074. In Alamo, we held that in cases where the lessee’s own insurance policy and the policy provided by the lessor both contain mutually repugnant “other insurance” clauses, the driver’s personal insurance is the primary insurer up to the statutory minimum. See id. at 160, 953 P.2d at 1077. Accordingly, we stated that absent a personal policy covering the driver, the lessor “will step in and compensate the victim up to the minimum limits.” Id. In Alamo we determined that the lessee’s personal insurance is “primary” and the lessor’s insurance is “secondary,” but we did not address the specific scenario at hand, wherein the lessee’s personal insurance has been consumed to the statutory minimum and the damages incurred allegedly exceed that amount. Thus, Alamo does not guide our analysis of the instant matter.

Instead, we conclude that the legislature enacted a statutory scheme providing dual coverage in instances such as this. Sound public policy dictates that a short-term lessor of motor vehicles may be required to compensate the victim, at least up to the statutory minimum, in cases where the lessee’s personal insurance does not fully compensate the victim(s). Therefore, in this instance, where the lessee’s personal insurance policy has first been extinguished pursuant to Alamo, Allstate may still be required to compensate the victims up to an additional $30,000.00, the statutory minimum for one accident pursuant to NRS 482.305(1), depending on the damages proved.

Additur When The Compensation Is Shockingly Low

The trial court is afforded great discretion in deciding motions for additur. Such a decision will remain undisturbed absent an abuse of that discretion. Harris v. Zee, 87 Nev. 309, 486 P.2d 490 (1971) (abuse of discretion standard of review in remittitur).

Yet in spite of this discretion, we have granted additur on appeal. For example, in Drummond v. Mid-West Growers, 91 Nev. 698, 542 P.2d 198 (1975), this court recognized additur as a viable form of post-judgment relief where a jury award was “clearly inadequate” and a new trial on damages was warranted. In Drummond, a jury award of $9,640.35 was clearly inadequate because it did not compensate the plaintiff for pain, suffering, and future disability associated with the loss of his arm. Id. at 712-13, 542 P.2d at 208. The evidence established that plaintiff had approximately $4,000 of past medical expenses and $4,000 of estimated future medical expenses. Id.

Although Drummond articulates two threshold determinants before additur is available (clearly inadequate and ripe for new trial), in practical application there is only one primary consideration. In essence, if damages are clearly inadequate or “shocking” to the court’s conscience, additur is a proper form of appellate relief. See, e.g., Arnold v. Mt. Wheeler Power, 101 Nev. 612, 614, 707 P.2d 1137, 1139 (1985) (granting additur on appeal where damages did not include pain and suffering or loss of earnings attributable to loss of limb); see also Truckee-Carson Irr. Dist. v. Baber, 80 Nev. 263, 268, 392 P.2d 46, 48 (1964); Shere v. Davis, 95 Nev. 491, 596 P.2d 499 (1979) (where damages are clearly inadequate, new trial is warranted under NRCP 59(a)(5) because jury failed to follow court instructions). Moreover, when damages are so qualified, denial of additur is an abuse of the district court’s discretion and merits reversal.

After examining the prior cases, it is apparent that such decisions rest upon facts where the movant suffered personal physical injury–loss of limbs in particular. There are no reported Nevada decisions examining additur in the context of wrongful death causes of action and associated damages.

Anderson tries to capitalize upon this fact, arguing that loss of a limb and granting additur simply does not translate into granting additur for loss of consortium. Anderson characterizes pain, suffering, and future complications accompanying the loss of an appendage as tangible and measurable with some certainty, whereas loss of consortium is not. This is a distinction without substance.

We conclude that the fundamental additur rubric in Drummond applies to wrongful death and loss of consortium. Pain and suffering attributable to the loss of a child is similar to damages for loss of an appendage. This position is consistent with several jurisdictions outside Nevada that have granted or upheld additur on appeal in the wrongful death context (citations omitted).

Applying fundamental additur considerations to the facts of the instant case, we conclude that zero damages for lost consortium resulting from [the son’s] death is shocking and clearly inadequate. It is a rare life that is monetarily worthless and does not trigger some type of measurable sorrow in a surviving parent. The evidence presented at trial leaves no doubt that Jeremy’s life was not such a rarity.

There is an abundance of uncontroverted evidence establishing that [the son] was an intelligent, supportive, humorous, and outgoing son to the Donaldsons. In addition, there is uncontroverted evidence that his death triggered great grief and suffering in both parents. Contrary to Anderson’s contentions on appeal, nothing in the record justifies the award of zero damages.

Therefore, we conclude that the district court abused its discretion by rejecting the [parents’] motion for additur and alternative motion for a new trial.

Intoxication And The “Intentional Acts” Exclusion Clause

R]egardless 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 Beckwith 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 in Mallin v. Farmers Insurance Exchange [108 Nev. 788, 790, 839 P.2d 105, 106 (1992)]. In Mallin, 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 in Mallin and reject appellants’ argument that Beckwith was unable to act intentionally as a result of his voluntary intoxication. Whether Beckwith thought Reccelle was God or his evil master is of no matter because he admittedly struck Reccelle in the eye with the desire of getting away from him. This is a non-accidental intentional act even if Beckwith did not intend to harm Reccelle. Thus, we conclude that Beckwith’s act of striking Reccelle is not an occurrence under the insurance policy and is excluded from coverage under the policy language concerning intentional misconduct. In this, we recognize Beckwith’s claims that the intentional-acts exclusion does not apply because, given his advanced state of intoxication, he did not intend to injure Reccelle 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 Beckwith with respect to any judgment obtained against him by Reccelle.

Applying this court’s holding in Mallin, 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.