Successive summary judgment motions OK in Nevada, too.
Successive dispositive motions weren’t exactly the issue in Dictor v. Creative Management Services, but the Court did cite the two week old 9th Circuit decision in Hoffman v. Tonnemacher, [discussed here] with approval. Therefore, it looks like the Court will follow the federal court lead on this issue.
In Dictor, the Nevada Supreme Court clarified the law of the case doctrine and choice of law decisions.
In this case, involving an insurance subrogation claim, the Court had previously determined in an unpublished decision that because the neither the insured nor the claimant were Nevada residents, NRS 687A.095, which bars suit against an insured of an insolvent insurer, did not apply.
On remand, the District court determined that a similar Missouri statute barred the suit, and granted summary judgment again.
Dictor appealed again, claiming that the Missouri law should not have applied, because the Supreme Court had decided that statutory defenses did not apply. It seems an amicus brief filed days before the oral argument in the first appeal had raised the Missouri statute. However, the Court had not considered or ruled on the applicability of that statute.
The Court stated the rule of the case doctrine bars reconsideration only of issues actually decided by the appellate court, and does not apply if the issue presented in a subsequent appeal differ from those previously presented. Application of the Missouri statute had not been addressed in the previous appeal, and the Court’s remand order had not prevent consideration of other statutory defenses.
The Court also addressed choice of law considerations for subrogation, adopting the comment d to Restatement of Conflicts, § 145, which states “the local law of the state where the parties are domiciled, rather than the local law of the state of conduct and injury, may be applied to determine whether one party is immune from tort liability to the other.” This is consistent with the Court’s previous adoption of the Restatement analysis for choice of law decisions in General Motors Corp. v. District Court, 122 Nev. 466, 134 P.3d 111 (2006), and emphasizes that whichever Restatement section is most specific to the facts should apply.
3-0 decision authored by Hardesty, with Parraguirre and Pickering concurring.
