Pack v. LATOURETTE
128 Nev. 264
Nev.2012Background
- Zinni, not a party, was injured by Pack, Sun Cab's employee, in May 2006 automobile accident.
- Zinni sued Sun Cab; Sun Cab learned LaTourette may have aggravated injuries and sought to implead him.
- Sun Cab asserted equitable indemnity and contribution claims against LaTourette based on alleged medical malpractice.
- LaTourette moved to dismiss as time-barred under NRS 41A.097 and for failure to attach an expert affidavit under NRS 41A.071.
- District court dismissed Sun Cab's claims, including with prejudice for the indemnity claim and without prejudice for the contribution claim due to the affidavit issue.
- This appeal follows and raises whether the indemnity claim fails, whether the contribution claim is premature, and whether the affidavit requirement applies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether equitable indemnity requires a preexisting relationship | Sun Cab argues preexisting relation not required under law | LaTourette argues no preexisting relation and active negligence bar | Equitable indemnity fails for lack of preexisting relationship and active negligence; claim dismissed |
| Whether contribution can be asserted before payment toward a judgment | Sun Cab contends contribution may be sought in original action before judgment | LaTourette contends contribution premature absent payment | Contribution claim not premature; third-party contribution may be pursued before judgment |
| Whether expert affidavit under NRS 41A.071 applies to contribution based on medical malpractice | Sun Cab did not attach an expert affidavit and challenges application to third-party contribution | LaTourette argues affidavit prerequisite applies to medical malpractice-based contribution | Expert affidavit required; failure warrants dismissal without prejudice |
Key Cases Cited
- Rodriguez v. Primadonna Company, 125 Nev. 578 (Nev. 2009) (equitable indemnity distinctions; secondary vs primary liability)
- Doctors Company v. Vincent, 120 Nev. 644 (Nev. 2004) (preexisting duty requirement for indemnity; independent wrong bar)
- Black & Decker v. Essex Group, 105 Nev. 344 (Nev. 1989) (indemnity concepts and primary/secondary liability framework)
- Saylor v. Arcotta, Nev. _, 225 P.3d 1276 (Nev. 2010) (NRS 41A.097 does not apply to equitable indemnity and contribution claims)
- ANSE, Inc. v. Dist. Ct., 124 Nev. 862 (Nev. 2008) (third-party contribution in original action prior to judgment)
- Bell & Gossett Co. v. Oak Grove Investors, 108 Nev. 958 (Nev. 1992) (contribution methods under NRS 17.285)
- Washoe Med. Ctr. v. Dist. Ct., 122 Nev. 1298 (Nev. 2006) (NRS 41A.071 expert affidavit requirement; void ab initio when missing)
- Fierle v. Perez, 125 Nev. 728 (Nev. 2009) (affidavit requirement extended to malpractice-related claims)
- Truck Ins. Exchange v. Tetzlaff, 683 F. Supp. 223 (D. Nev. 1988) (malpractice-related prerequisites applied to indemnity actions)