Are there automobile accidents where auto insurance coverages do not apply? The answer to that question is, unfortunately, yes.
On December 30, 2004, a young man was driving his pickup truck westbound on Hacienda. The adverse driver, prior to the accident, was driving his pickup truck northbound in the southbound lanes on Rainbow (on the wrong side of the road), ran a red light at a very high rate of speed and collided with the driver’s side of the young man’s vehicle. The young man died almost instantly. The collision between the adverse vehicle and the decedent’s vehicle prevented the adverse vehicle from colliding head-on with the other vehicles that were stopped in the southbound lanes of Rainbow for a stop light.
The adverse driver claims to have experienced a seizure just prior to the accident.
The traffic accident report approximates the adverse driver’s speed at approximately sixty-nine to seventy-three (69-73) miles per hour.
The adverse driver was taken to University Medical Center after the accident. His Dilantin level was below therapeutic range.
In the litigation that followed this fatal accident, the Defendants (the adverse driver and his employer) asserted the affirmative defense of “sudden medical emergency” or “blackout”.
The sudden medical emergency defense was established by the Supreme Court of Ohio in a case dating back to 1956, Lehman v. Haynam, 133 N.E 2d 97 (1956). The Ohio Supreme Court stated, “where the driver of an automobile is suddenly stricken by a period of unconsciousness which he had no reason to anticipate and which renders it impossible for him to control the car he is driving, he is not chargeable with negligence as to such lack of control.”
In that case, the Defendants Affirmative Defense stated “The subject accident and Plaintiffs’ damages, if any, were caused by an unavoidable sudden emergency and not by Defendants’ negligence or other actionable conduct, the existence of which is denied.”
The Ohio Supreme Court reviewed the sudden medical emergency defense in the case of Roman v. State of Gobbo, 99 Ohio St. 3d 260, (2003). This involved an accident where the Defendant Walter Roman suffered an incapacitating heart attack prior to the accident. In that accident, the Roman vehicle caused a multiple vehicle car accident resulting in the death of Nino Gobbo and his wife Frances.
The “sudden medical emergency” defense has not been adopted by the Nevada Supreme Court. Public policy in Nevada dictates that it should not be adopted in the state of Nevada. However, in several cases filed in our District Court, the Defendants have raised this defense.
The rational behind the adoption of the sudden medical emergency defense is based upon the premise that to find a Defendant liable for the effects of an unforeseen medical emergency that causes sudden unconsciousness is to impose strict liability for the violation of traffic statutes.
To that extent the doctrine may be logical, however in equating no negligence with no liability the doctrine is not sensible.
In the Roman case, the decedents and injured parties were not negligent either. They did nothing wrong except to be in the Defendant’s path when they died or were injured. Yet these individuals bear the harsh consequences of the sudden medical emergency doctrine.
Because of this defense they could not recover damages from the person who caused them death and destruction, even though they were completely innocent victims of a motor vehicle accident. They also can not recover from their uninsured motorist coverage, since this coverage is fault based. This also does not make sense. See my prior post on Uninsured Motorist Underinsurance Coverage.
The prohibition against driving left of center, speeding and driving through a red light are some of our most important traffic rules established for the protection of the public. Nobody would be willing to drive on our roadways without the expectation that others will comply with these traffic laws. Yet, even these laws are trumped by the Sudden Medical Emergency Doctrine. The questions is, “Why?”.
No valid public policy is served by applying the “Sudden Medical Emergency Doctrine.” The doctrine prevents accident victims from pursuing damages from the person who caused their death and injury. The doctrine prevents accident victims from collecting uninsured motorist coverage on their own automobile insurance policies, which they purchased to protect themselves and their families from just such a catastrophe.
The end result of the adoption of the sudden medical emergency defense is that accident victims involved in these unfortunate accidents, regardless of the degree of their injuries, would not be able to collect their damages from any liability insurance or from their own uninsured motorist coverage. This makes absolutely no sense. The “Sudden Medical Emergency Doctrine” is not logical and should not be accepted.
A better rule would be to allow innocent victims, like the Plaintiffs in the first example case, to pursue damages against the auto insurance coverage of the person who’s sudden medical emergency resulted in a violation of traffic safety laws which were the proximate causes of death or injury.
Nevada Public Policy concerning epilepsy is expressed by our traffic laws.
In the state of Nevada one of the qualifications to drive a commercial motor vehicle and obtain a Commercial Drivers License is that the applicant does not have an established medical history or clinical diagnoses of epilepsy or any other condition which is likely to cause loss of consciousness or any loss of ability to control a motor vehicle. See, NRS 391.41 (d)(8).
This statute states that “epilepsy is a chronic functional disease characterized by seizures or episodes that occur without warning, resulting in loss of voluntary control which may lead to loss of consciousness and/or seizures. Therefore, the following drivers can not be qualified:
- A driver who had a medical history of epilepsy;
- A driver who has a current clinical diagnoses of epilepsy; or,
- A driver who is taking anti-seizure medication.
The sudden medical emergency defense is contrary to Nevada’s financial responsibility laws.
NRS 484.185 states as follows:
Every owner of a motor vehicle which is registered or required to be registered in this state shall continuously provide, while the motor vehicle is present or registered in this state, insurance:
- In the amount of $15,000.00 for bodily injury of one person in any accident;
- Subject to the limit for one person in the amount of $30,000.00 for bodily injury to or death of two or more persons in any one accident;
- In the amount of $10,000.00 for injury to or destruction of property of others in any one accident, for the payment of tort liabilities arising from the maintenance or use of the motor vehicle. (emphasis added)
The purpose of this section is to ensure that motor vehicles carry continuous liability insurance. State, Dep’t of Motor Vehicles v. Lawlor, 101 Nev 616, 707 P 2d 1140 (1985).
The sudden medical emergency defense creates an exemption from Nevada’s financial responsibility law. This is a windfall to the liability insurance carriers of the person claiming “sudden medical emergency.”
The purpose of the motor vehicle financial responsibility law is to guarantee protection to one who is injured by an automobile not covered by liability insurance. A.G.O. 250 (3-27-1957).
If the “sudden medical emergency” defense is adopted by our State Legislature or by Nevada Case law, the burden of financial responsibility will fall upon the deceased or injured individuals and their families because they will not be able to rely upon their own uninsured motorist coverage to recover their damages. Innocent victims would then have to rely on other collateral sources for payment of their lost earnings, medical bills, funeral expenses, etc. The financial burden of the sudden medical emergency defense then fall upon first party health insurance companies. Since this defense extinguishes fault (negligence), it extinguishes the right of subrogation. Subrogation is a fault-based legal concept which allows insurance companies paying medical bills or property damage bills to recover their payments from the third-party tortfeasor.
Nevada law is replete with cases protecting the rights of injured parties, See, e.g, State Farm v. Hinkle, 87 Nev. 478, 488 P.2d 1151 (1971) (Restriction on uninsured motorist coverage for a minor injured while riding a motorcycle by an exclusionary provision violated express public policy); Buck v. Greyhound Lines, Inc., 105 Nev. 756, 783 P.2d 437 (1989) (Affirming joint and several liability for negligence-free passengers protecting the rights of innocent victims of accidents); Rockwell v. Sun Harbor Budget Suites, 112 Nev. 1217, 925 P.2d 1175 (1996) (Non-deligible duty to provide responsible third-party security personnel); Allison v. Merck and Co., Inc., 110 Nev. 762, 878 P.2d 948 (1994) (Public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those that market them and be treated as a cost of production against which liability insurance can be obtained).
Assuming that no first party insurance is available in situations where the sudden medical emergency defense is asserted, then the burden of financial responsibility falls upon the general public. Our tax dollars in the form of public assistance will pay for medical care and living expenses of “sudden medical emergency” victims.
Whatdoyado to prevent the “Sudden Medical Emergency” defense from being adopted in Nevada? Speak to your Legislators.