                              IN THE SUPREME COURT OF THE STATE OF NEVADA


                      ROBERT LUCIANO, AN INDIVIDUAL,                          No. 67501
                      Appellant,
                      vs.
                      SAINT MARY'S PREFERRED HEALTH
                      INSURANCE COMPANY, A NEVADA
                      CORPORATION, D/B/A HEALTH
                                                                                     FILED
                      CHOICE AND PREFERRED HEALTH                                    MAY 0 6 2016
                      CARE NETWORK,                                                 TRACE K. LINDEMAN
                      Respondent.                                                CLERK OF SUPREME COURT
                                                                                BY
                                                                                      DEPUTY CLERK

                                              ORDER OF AFFIRMANCE

                                  This is an appeal from a district court's order granting
                      summary judgment in a medical malpractice and negligence action.
                      Second Judicial District Court, Washoe County; Elliott A. Sattler, Judge.
                                  We review de novo a district court's order granting summary
                      judgment. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029
                      (2005). Summary judgment is proper if the pleadings and all other
                      evidence on file demonstrate that no genuine issue of material fact exists
                      and that the moving party is entitled to judgment as a matter of law.          Id.
                      On appeal, we must determine whether the district court erred in
                      concluding that appellant was not "insane" under NRS 11.250, thereby
                      tolling the statute of limitations for his negligence claim. We affirm.
                                  On June 21, 2007, appellant Robert Luciano went to Saint
                      Mary's Regional Medical Center (Saint Mary's) with symptoms of a stroke.
                      Before his stroke, Luciano was a successful engineer and businessman,
                      working as the Chief Technology Officer for Bally Gaming, Inc., trustee for

SUPREME COURT
     OF
   NEVADA

I0 ) 194 7R cjiltim
                                                                                                 -1112 9 0
                    the Robert A. Luciano Jr. Trust (Luciano Trust), and managing partner for
                    several limited liability corporations (LLCs). Luciano alleged in his
                    complaint that Saint Mary's was inadequately staffed and resourced to
                    handle strokes, exacerbating his condition, as there were long wait-times
                    at the hospital. At the time of his hospital visit, Luciano was insured
                    through respondent Saint Mary's Preferred Health Insurance Company
                    (SMPHIC). Shortly after his hospital visit, on June 29, 2007, Luciano
                    resigned from his position as trustee of the Luciano Trust and temporarily
                    stopped working at Bally Gaming and operating his LLCs. On March 28,
                    2008, however, Luciano was reinstated as trustee of the Luciano Trust.
                                In 2011, Luciano defended against an Internal Revenue
                    Service (IRS) determination that he was "passive with respect to
                    companies for which he was an owner/manager in 2008 and 2009." In a
                    package seeking reconsideration by the IRS, Luciano wrote a letter to the
                    IRS, along with five affidavits from family members and colleagues
                    discussing his stroke and his return to work, in an effort to demonstrate
                    that he was actively participating in his LLCs. Luciano stated in his
                    letter that after his stroke he "returned home in April of 2008 [and] ran
                    [his] companies on a regular and continuous basis through 2009."
                    Although Luciano did not submit an affidavit, relying on his unsworn
                    letter, Luciano's father and coworkers corroborated Luciano's letter to the
                    IRS in sworn affidavits. For example, Luciano's father stated that he "was
                    legally given temporary Power of Attorney over [Luciano's] affairs until
                    the time came that he regained his abilities, both mentally and physically,
                    sufficient to again manage his own affairs under his own recognizance."
                    Luciano's co-worker, Mark Felte, stated: "In January of 2008, upon
                    sufficient recovery from his stroke, Robert Luciano Jr. was involved in the

SUPREME COURT
        OF
     NEVADA
                                                         2
(0) 1947A    eAto
                 decision processes required for day to day operations. During and after
                 this time[,] we had regular communications via phone, email, and fax."
                             Despite these statements, on July 3, 2012, Luciano filed a
                 complaint against Saint Mary's, the doctors at Saint Mary's, and
                 SMPHIC, claiming: "As a result of the negligence and subsequent stroke,
                 Robert Luciano suffered a mental disability and functional incapacitation
                 which resulted in the inability to manage his affairs within the meaning of
                 insanity under NRS 11.250." The district court dismissed Luciano's claims
                 against the doctors and Saint Mary's because NRS 41A.097—a statute of
                 limitations for providers of health care—does not include a tolling
                 provision for insanity. The district court concluded that claims of
                 negligence against SMPHIC, as an insurance company rather than a
                 health care provider, fell under NRS 11.190(4)(e)'s two-year statute of
                 limitations, which includes a tolling provision for periods of insanity.
                 However, the district court determined that there was insufficient
                 information at that time to demonstrate whether Luciano was insane.
                             Thereafter, SMPHIC moved for summary judgment, arguing
                 that Luciano's claims were time-barred and Luciano should be estopped
                 from claiming insanity based on representations he made to the IRS. In
                 opposition, Luciano did not dispute his representations to the IRS.
                 Rather, Luciano alleged that he did not understand the nature of what he
                 was signing because "merely signing a document such as the letter [he]
                 signed. . . and sent to the IRS, or even 'making a decision,' does not mean
                 that [he] had or has the cognitive capability to understand what is going
                 on." The district court granted summary judgment in favor of SMPHIC,
                 stating "that no reasonable jury would find in favor of [Luciano] on the
                                                                        ,




                 issue of tolling." The district court found that Luciano "protected his

SUPREME COURT
      OF
    NEVADA
                                                      3
(0) 1947A ser)
                rights on numerous occasions," by engaging counsel for other business
                affairs, purchasing millions of dollars of real property, managing the
                family trust, and contracting with corporations and real persons. The
                district court rejected Luciano's arguments that, while he did sign
                documents prepared by his family members and colleagues, he did not
                understand the nature of what he was signing. Luciano appeals.
                             A two-year limitations period applies to "an action to recover
                damages for injuries to a person . . . caused by the wrongful act or neglect
                of another." NRS 11.190(4)(e). If a person is insane "at the time the cause
                of action accrued," however, "the time of such disability shall not be a part
                of the time limited for the commencement of the action." NRS 11.250; see
                Butler ex rel. Biller v. Bayer, 123 Nev. 450, 460 n.23, 168 P.3d 1055, 1062
                n.23 (2007). The term "insanity" "include[s] a mental disability resulting
                in the inability to manage one's affairs." Bayer, 123 Nev. at 460 n.23, 168
                P.3d at 1062 n.23 (quoting Smith ex rel. Smith v. City of Reno,         580 F.
                Supp. 591, 592 (D. Nev. 1984)); see also Tsai v. Rockefeller Univ., 137 F.
                Supp. 2d 276, 282 (S.D.N.Y. 2001) (defining "insanity" as being "of such a
                nature that plaintiff is unable to manage [his or her] business affairs and
                is incapable of comprehending and protecting [his or her] legal rights and
                liabilities"); Alcott Rehab. Hosp. v. Superior Court, 112 Cal. Rptr. 2d 807,
                812 (Ct. App. 2001) (defining "insane" as one being "incapable of caring for
                his [or her] property or transacting business or understanding the nature
                or effects of his [or her] acts" (quoting Pearl v. Pearl, 177 P. 845, 846 (Cal.
                1918))).
                            Here, Luciano was actively engaged in managing his affairs,
                notably complex, multimillion dollar business dealings. SMPHIC
                submitted ample evidence demonstrating that Luciano was engaged in his

SUPREME COURT
        OF
     NEVADA
                                                      4
(0) I947A
                 businesses, land purchases, stock transactions, extensive travel, tax
                 issues, and legal battles with counsel regarding claims against
                 governmental agencies. Luciano concedes SMPHIC is correct that these
                 transactions occurred, but argues he was technically insane throughout all
                 of these transactions, and that his family members and colleagues made it
                 appear he was actively engaged in his businesses when he really was only
                 signing documents.
                             While Luciano's contradictory statements do not give rise to
                 equitable estoppel as SMPHIC did not detrimentally rely on the
                 statements made to the IRS, 1 contradictory statements may be used
                 against a party on a summary judgment motion when no reasonable
                 justification exists to explain the contradiction.    See Nutton v. Sunset
                 Station, Inc., 131 Nev., Adv. Op. 34, 357 P.3d 966, 976 (Ct. App. 2015)
                 ("The general rule is that a party cannot defeat summary judgment by
                 contradicting itself in response to an already-pending NRCP 56 motion.");
                 Aldabe v. Adams, 81 Nev. 280, 282, 402 P.2d 34, 35 (1965) ("[A] genuine
                 issue of material fact may not be created by the conflicting sworn
                 statements of the party against whom summary judgment was entered."),
                 overruled on other grounds by Siragusa v. Brown, 114 Nev. 1384, 1393,
                 971 P.2d 801, 807 (1998); see also Nghiem v. Allstate Ins. Co., 664 S.E.2d


                        'See Cheqer, Inc. v. Painters & Decorators Joint Comm., Inc., 98
                 Nev. 609, 614, 655 P.2d 996, 998-99 (1982) (stating the fourth element of
                 equitable estoppel requires that one "must have relied to his detriment on
                 the conduct of the party to be estopped"); Ford v. Brown, 45 Nev. 202, 212,
                 200 P. 522, 525 (1921) ("An essential element of. . . [equitable] estoppel is
                 that the party relying upon it was influenced by the acts or silence of the
                 other to act as he would not otherwise have done, to his prejudice. There
                 is no [equitable] estoppel . . . when such is not the case.").

SUPREME COURT
        OF
     NEVADA
                                                      5
(0) 1947A    e
                    925, 928 (Ga. Ct. App. 2008) CIA] party's contradictory testimony is to be
                    construed against him or her on motion for summary judgment unless a
                    reasonable explanation for the contradiction is offered. .. . [W]hether this
                    has been done is an issue of law for the trial judge." (internal quotation
                    omitted)).
                                 Allowing contradictory statements to be used against a party
                    in summary judgment proceedings comports with the genuine requirement
                    to survive summary judgment. In Aldabe, this court stated: "When
                    [NRCP] 56 speaks of a 'genuine' issue of material fact, it does so with the
                    adversary system in mind The word 'genuine' has moral overtones. We
                    do not take it to mean a fabricated issue." 81 Nev. at 285, 402 P.2d at 37.
                    "A factual dispute is genuine when the evidence is such that a rational
                    trier of fact could return a verdict for the nonmoving party."    Wood, 121
                    Nev. at 731, 121 P.3d at 1031. A party cannot escape summary judgment
                    by attempting "to build a case on the gossamer threads of whimsy,
                    speculation, and conjecture."    Id. at 732, 121 P.3d at 1031 (internal
                    quotation omitted).
                                 Here, Luciano contradicts the evidence he presented to the
                    IRS that he was actively engaged in his businesses by offering evidence
                    that he was, in fact, unable to manage his businesses after his stroke.
                    While A/dabe discussed contradiction among sworn testimony, and, here,
                    Luciano submitted an unsworn letter to the IRS, several family members
                    and colleagues submitted signed affidavits, which the IRS undoubtedly
                    relied upon when making its decision. A number of these affiants offered
                    testimony in opposition to SMPHIC's motion for summary judgment
                    contradicting their affidavits to the IRS. Although Luciano's justification
                    for the contradiction concedes that many of the business transactions took

SUPREME COURT
       OF
    NEVADA
                                                         6
(0) 1947A 9i1g0:4
                place in his presence or included his signature, he argues that he did not
                understand the nature of the transactions. The district court rejected
                Luciano's argument, finding that a reasonable jury would not believe that
                Luciano's friends and family members created an illusion that he was
                actively engaged in his business just to maintain his image.
                            We agree that Luciano's justification was not reasonable to
                create genuine issues of material fact to survive a motion for summary
                judgment in light of his and his family and colleagues' past statements,
                coupled with the report of one of his experts stating that Luciano's current
                condition, while worse than before, does not sufficiently impair his
                "instrumental activities of daily living," which is a requisite for finding
                insanity. See Butler, 123 Nev. at 460 n.23, 168 P.3d at 1062 n.23 (defining
                "insane" as "a mental disability resulting in the inability to manage one's
                affairs"). Thus, Luciano is time-barred from filing his claim against
                SMPHIC. Accordingly, we
                            ORDER the judgment of the district court AFFIRMED.




                                        Parraguirre



                Hardesty




                Cherr                                      Saitta



                Gibbons
                                           J.
                                                          Pickering     1            ,   J.



SUPREME COURT
         OF
      NEVADA
                                                      7
(0) 1947)1
                cc:   Hon. Elliott A. Sattler, District Judge
                      Paul F. Hamilton, Settlement Judge
                      Brownstein Hyatt Farber Schreck, LLP/Reno
                      Laxalt & Nomura, Ltd./Reno
                      Second Judicial District Court Clerk




SUPREME COURT
      OF
    NEVADA
                                                  8
0 1947A    e
