1 Fall 2013 Highlights Economic Loss Doctrine Precludes Claims for Negligent Misrepresentation In overruling a decision by the district court, the Nevada Supreme Court held that the duties of a design professional are contained within the applicable contract, and any duty arises from the contractual relationship only. To allow claims for purely economic losses based on a separate and distinct duty for claims for negligent misrepresentation would essentially nullify the economic loss doctrine. Alleged Breach of Duty to Insureds Results in Punitive Award in Excess of $500 Million A jury awarded punitive damages against Health Plan of Nevada and Sierra Health Services, Inc. arising out of an alleged failure to monitor a non-party clinic that was a preferred provider for defendants insureds. The plaintiffs specifically alleged that the defendants failed to monitor non-party clinic s mishandling of the anesthetic drug Propofol, and as a result the plaintiffs contracted Hepatitis C. Defense Verdict Rendered in Dental Malpractice Action The jury in a dental malpractice action returned a verdict for the defendant on plaintiff s claims that the defendant fell below the standard of care during the placement of dental implants. The plaintiff allegedly developed osteomyelitis as a result of the defendant s negligence. Nevada Supreme Court Decisions Negligence The Nevada Supreme Court Clarifies the Application of the Economic Loss Doctrine to Claims Alleging Negligent Misrepresentation The Nevada Supreme Court exercised its discretion and chose to consider a Writ of Mandamus regarding whether a negligent misrepresentation claim may be maintained against a design professional in a commercial construction setting. The matter arose from the construction and subsequent litigation involving the Harmon Tower, located in CityCenter in Las Vegas. The Harmon Tower is owned in part by MGM Mirage Design Group, who hired Perini Building Company (Perini) as the architectural firm and general contractor to assist in the development of the tower. Perini hired Halcrow, Inc. to design the structure of the Harmon Tower and perform ongoing structural engineering services, which included observations and inspections. Century Steel, Inc. was hired by Perini to provide steel installation. Century Steel assigned its assets, which included the Harmon Tower contract, to Pacific Coast Steel (PCS). The contractual agreements obligated Century Steel and PCS to follow Halcrow s design and specifications for installing the reinforcing steel in the Harmon Tower. Defects were subsequently discovered in the installation of the reinforcing steel. Perini subsequently filed a complaint against MGM Mirage for failure to make timely payments on the project. MGM Mirage filed a counterclaim against Perini for nonconforming work including the defects in the reinforcing steel. Perini also filed a third-party complaint asserting claims for contractual indemnity against Century Steel and PCS. PCS and Century Steel then filed third and fourth-party complaints against Halcrow and several other entities, alleging equitable indemnity, contribution and apportionment, and negligence, and seeking declaratory relief. Halcrow filed a motion to dismiss the complaints of Century Steel and PCS for failure to state a claim on which relief can be granted, based on the Nevada Supreme Court s holding in Terracon Consultants Western, Inc. v. Mandalay Resort Group, 125 Nev. 66, 206 P.3d 81 (2009). Halcrow contended that Terracon barred all negligence-based claims against design professionals in commercial construction projects when the claimant incurred purely economic losses. The district court granted Halcrow s motion and dismissed the claims for negligence, indemnity, In This Issue NEVADA SUPREME COURT Negligence...Page 1 Employment Law Page 2 NEVADA JURY VERDICTS Personal Injury...Page 3 Premises Liability...Page 4 Contracts...Page 5 Medical Malpractice...Page 5 COMMENTS...Page 5
2 Page 2 Nevada Legal Update contribution, and declaratory relief. In response to the district court s decision, PCS and Century Steel sought leave to amend their complaints to include a claim for negligent misrepresentation. PCS and Century Steel alleged that Halcrow failed to conduct timely inspections and erroneously stated onsite adjustments would alleviate errors in Halcrow s plans. PCS and Century Steel argued that Halcrow could be liable for negligent misrepresentation based on their foreseeable reliance on Halcrow s false representations. Halcrow filed an opposition arguing that Terracon did not create an exception to the economic loss doctrine for negligent misrepresentation. The district court granted the motions to amend, but stayed the proceedings pending the Supreme Court s decision on the petition for extraordinary writ. In Terracon, the Nevada Supreme Court explained that the intention of the economic loss doctrine was to mark the boundary line between contract law and tort law. Contract law was designed to enforce the expectancy interests of the parties. Tort law imposes a duty of reasonable care and generally encourages citizens to avoid causing physical harm to others. The Terracon court further explained that the economic loss doctrine protected parties from unlimited economic liability, which may result from negligent actions in commercial settings. Halcrow asserted that Terracon barred all negligence-based claims including negligent misrepresentation. Century Steel and PCS countered that the question of whether negligent misrepresentation was an exception to the economic loss doctrine was not answered by Terracon. Century Steel and PCS maintained that the Restatement (Second) of Torts section 552 (1977) imposed a duty of care on design professionals, separate from Harlow s contract with Perini, and because Halcrow breached that duty causing financial damages, they should have been permitted to amend their complaints to assert negligent misrepresentation. The Nevada Supreme Court acknowledged that the decision in Terracon recognized possible exceptions to the economic loss doctrine, but did not resolve whether the economic loss doctrine applied to bar claims such as negligent misrepresentation. Terracon created possible exceptions to the economic loss doctrine for negligent misrepresentation claims when strong countervailing considerations weigh in favor of imposing liability. Such an exception may exist in cases where economic losses were sustained as a result of intentional harm, negligent misstatements about financial matters, loss of consortium, and defamation. In the context of commercial construction design professionals, however, the Court found that contract law is better suited for resolving such claims. The Court reasoned that in commercial construction situations, the risks and liabilities were delineated in highly interconnected contracts which exerted significant financial pressure on the parties to avoid negligence. Moreover, these complex construction contracts generally addressed economic losses. Requiring parties to rely upon the contracts ensures that all parties to a complex project have a remedy and maintains the important distinction between contract and tort law. The Court concluded that a design professional s duty is set forth in the contract, and any duty arises from the contractual relationship only. To hold that design professionals have a separate and distinct duty would essentially allow any party to reassert its barred negligence claim as a negligent misrepresentation claim, and essentially nullify the economic loss doctrine. The Nevada Supreme Court therefore held that the district court erred in granting PCS and Century Steel s motions for leave to amend to assert negligent misrepresentation claims, and the district court was directed to vacate its previous order. Halcrow, Inc. v. Eighth Jud. Dist. Ct., 129 Nev. Adv. Op. 42 (2013). Employment Law The Nevada Supreme Court Clarifies Meaning of Off Work as Set Forth in NRS 616C.390 On January 13, 2006, Joseph Williams suffered a workplace injury in the course of his employment for United Parcel Services ( UPS ). Mr. Williams was standing on a ladder and working with live wires when he received an electric shock, causing him to fall to the ground landing on his back. Less than 30 minutes after the accident, Mr. Williams was treated by Dr. Allen Schwartz who diagnosed him with a left ankle/foot contusion, a lumbar abrasion, and electrical shock. Dr. Schwartz did not allow Mr. Williams to work for the remainder of the day or the next day. Mr. Williams was cleared to return to regular duty on January 15, and returned to work on January 16, After the accident, UPS insurer issued a notice of claim acceptance to Mr. Williams, indicating that it would provide compensation for the injuries he suffered to his left ankle/foot, left lower leg, and left hand. The notice did not include any mention of compensation for his alleged back injury. Mr. Williams had 70 days from the date the notice of claim was mailed to appeal the claim acceptance; Mr. Williams did not appeal. Subsequently, the insurer issued a notice of intent to close Mr. William s claim and notified him of his right to appeal the determination within 70 days of the date of that notice. The notice also informed Mr. Williams of his right to reopen his claim pursuant to NRS 616C.390. Mr. Williams did not appeal this determination. More than one year after Mr. Williams claim closed he experienced muscle and back pain as well as fatigue in his legs. He underwent medical procedures that revealed damage to his back. Mr. Williams therefore asked to reopen his claim, attributing the cause of his back injuries to his work-related accident in His request was denied because the insurer determined there was insufficient medical evidence to justify reopening the claim. Mr. Williams challenged the refusal to reopen his claim before a hearing officer who affirmed the denial. Mr. Williams then appealed the hearing officer s decision to an appeals officer who also affirmed the denial. The appeals officer interpreted NRS 616C.390(5) to mean that an employee was barred from applying to reopen his claim after one year from its closure if the employee did not miss at least five days of work as a result of the injury
3 Nevada Legal Update Page 3 and did not receive permanent partial disability benefits. The appeals officer concluded that since Mr. Williams did not satisfy these requirements he was not off work as contemplated by NRS 616C.390(5) and was barred from reopening his claim. Mr. Williams sought judicial review of the appeals officer s decision and the district court denied the petition. Mr. Williams then appealed to the Supreme Court of Nevada. The Nevada Supreme Court had not previously addressed NRS 616C.390(5), which provides that an application to reopen a claim must be made in writing within one year after the date the claim was closed if, (a) the claimant was not off work as a result of the injury; and (b) the claimant did not receive benefits for a permanent partial disability. The Court found that under the terms of the statute, if a claimant was off work or received permanent partial disability benefits, then the one-year limitations period did not apply to the reopening of the claim. The Court concluded that the plain meaning of NRS 616C.390(5) does not bar an employee from applying to reopen his claim after one year from the date the claim was closed if the employee missed time from work as a result of his injury. Further, NRS 616C.390(5) does not condition the right to apply to reopen a claim on losing a certain amount of time from work. As a result, Mr. Williams application to reopen his claim was not barred by NRS 616C.390(5), as he followed Dr. Schwartz s order prohibiting him from working the remainder of his shift on the date of the accident. The Court further reasoned Nevada Legal Update is published quarterly by Alverson, Taylor, Mortensen & Sanders 7401 W. Charleston Blvd. Las Vegas, Nevada (702) Fax (702) that, but for Mr. Williams fall and injuries, he would not have lost that time from work. The district court s denial of Mr. Williams petition for judicial review was therefore reversed and remanded. Williams v. United Parcel Services, 129 Nev. Adv. Op. 41. Nevada Jury Verdicts Personal Injury Plaintiffs Awarded $524,000, for Alleged Violation of Public Health and Safety Defendants Health Plan of Nevada and Sierra Health Services, Inc. contracted with non-party clinics to provide medical care to their insureds. Since 2004, the defendants allegedly encouraged their insureds to seek treatment from these non-party clinics. In April 2005, plaintiff Meyer, who was insured by Defendant Health Plan of Nevada, underwent an endoscopic procedure that required the use of anesthesia. Plaintiff Brunson, another Health Plan of Nevada insured, underwent the same endoscopic procedure in June The Southern Nevada Health District subsequently notified all patients who required anesthesia for a procedure at non-party clinics from March 1, 2004 to Jan uary 11, 2008 to undergo screening for blood-borne pathogens. Both plaintiffs were screened. In a personal injury action against the defendants, the plaintiffs alleged that as a result of defendants unsafe practices plaintiffs developed Hepatitis C and were at risk of contracting other bloodborne pathogens. The plaintiffs alleged that the defendants were negligent when they failed to establish and implement a quality assurance program designed and utilized to provide quality health care. The plaintiffs further alleged that the defendants failed to monitor non-party clinics mishandling of the anesthetic drug Propofol. According to the plaintiffs, the nonparty clinics also imposed rules that required single-use biopsy equipment to be used up to three times, if possible. Singleuse endoscopy scopes were allegedly washed in a detergent solution and reused on multiple patients. The plaintiffs alleged that the defendants knew or should have known of the non-party clinics unsafe practices which placed patients at risk of exposure to unsafe blood-borne pathogens. The defendants denied liability. Plaintiff Brunson s spouse asserted a claim for loss of consortium. During closing arguments, plaintiffs counsel asked the jury to award $2,500,000, Following a 44 day trial, the jury found for the plaintiffs and awarded plaintiff Meyer $9,000, in compensatory damages and plaintiff Brunson $12,000, in compensatory damages. Plaintiff Brunson s spouse was awarded $3,000, for loss of consortium. The plaintiffs were also awarded $270,000, in punitive damages against defendant Health Plan of Nevada and $230,000, in punitive damages against defendant Sierra Health Services. Meyer and Brunson v. Health Plan of Nevada, Inc. and Sierra Health Services, Inc., April 09, Defendants Succeed in Negligence Action During arbitration, the plaintiff was determined to be 20 percent at fault for a motor vehicle collision and awarded $12, in damages. The defendant appealed and the matter proceeded to a one day short trial. The plaintiff, a male limousine driver alleged that the defendant, a kitchen steward, negligently executed a right turn into plaintiff s path of travel. The defendant denied liability, arguing that the plaintiff negligently pulled to the right of the defendant s truck. The defendants asserted that the truck s right turn signal was visible and engaged. The defendant further alleged that the plaintiff knew or should have known that a large truck required a large turning radius when making a right turn. The plaintiff allegedly suffered soft tissue injuries to his cervical, thoracic, and lumbar spine and sought $9, in medical expenses. Prior to trial the
4 Page 4 Nevada Legal Update plaintiff demanded $12,254.34; the defendant refused to make an offer. The four member jury panel returned a verdict for the defendant. Sanchez v. MGM Grand Hotel, LLC; and Cruz, March 29, Plaintiff Loses $40,000 Arbitration Award on Short Trial Appeal On appeal of his arbitration award totaling $40,000.00, the plaintiff, a 33 year old male, alleged that he was a passenger in a vehicle rear-ended by the defendant, a 55 year old male Nevada resident. The defendant denied liability. As a result of the accident, the plaintiff claimed to have suffered a torn meniscus in his knee and at trial relied upon the medical report of an orthopedic expert. The defendant contended that the plaintiff was not injured and relied on the medical reports of a neuro-radiologist and orthopedic physician. The plaintiff demanded $45, prior to trial. The defendant offered $5, Four jurors deliberated at the conclusion of the one day short trial and returned a verdict for the defendant. Guerra v. Caser, January 31, Premises Liability Plaintiff Fails to Recover in Slip and Fall Action The plaintiff, a waitress, was at a night club with friends when she allegedly slipped and fell on a drink spilled on the dance floor by another patron. The defendant denied liability, arguing that it was provided no notice of the condition, as only eight seconds passed from the time of the spill to the time of plaintiff s alleged fall. Surveillance footage of the plaintiff s fall was shown to the jury. The plaintiff sustained a distal fibula fracture to her leg, which required surgery. Prior to trial, the plaintiff demanded $99, to settle her claims. The defendant offered $45, During closing arguments, the plaintiff s counsel argued that the defendant should not allow drinks on the dance floor and should have porters continually monitoring the dance floor for spills. After a three day trial the jury returned a verdict for the defendant. Cruz v. GNLV Corp. dba Golden Nugget Hotel & Casino, April 05, Plaintiff Awarded $1,291, in Premises Liability Action A 39 year-old plaintiff alleged that while on defendant s property, defendant s valet drove over his foot. The plaintiff also alleged that the valet driver subsequently tested positive for methamphetamine. The defendant denied liability, contending that the plaintiff stepped in front of the vehicle and was outside the crosswalk. During trial, the defendant called an accident reconstructionist, who was of the opinion that the plaintiff was outside the crosswalk. The defendant also called a toxicologist who believed that methamphetamine was not a factor in the subject incident. The plaintiff sustained a Lisfranc fracture dislocation to the bones in his foot, and alleged that he experienced residual pain and may develop arthritis. At trial, the plaintiff called an orthopedic surgeon who testified that the plaintiff sustained a devastating injury, and would likely experience chronic pain and future arthritis. The plaintiff alleged medical expenses of $89, and $1.2 million in lost wages. The plaintiff demanded $575, prior to trial. The defendant served an Offer of Judgment for $425,000.00, which was rejected. The jury found for the plaintiff at the end of the five day trial and awarded $1,291, in compensatory damages. This total included $86, for medical damages, $650, for lost wages, $380, for pain and suffering, and $175, for future pain and suffering. Moses v. New Castle Corporation db Excalibur Hotel and Casino, February 15, Defendant Succeeds in Slip and Fall Action A female, semi-retired senior health care aide allegedly slipped and fell at the residence of the defendant, a physician. The plaintiff had been hired by the defendant as a babysitter. The plaintiff alleged that as she walked to the defendant s garage, she slipped and fell on a twelve-inch diameter puddle of clear liquid. The plaintiff also alleged that the defendant negligently failed to remove the dangerous condition. The defendant denied liability, asserting that he had no notice of the puddle. The defendant also argued that the condition was open and obvious and the plaintiff assumed the risk. According to the plaintiff, she suffered soft tissue injuries to the cervical, thoracic, and lumbar areas of her spine. The plaintiff also allegedly sustained injuries to her legs and exacerbation of pre-existing conditions. Following a one day short trial, the jury found for the defendant. Fox v. Erisman, April 18, Short Trial Upholds Arbitration Finding in Favor of Defendant The plaintiff appealed an arbitration decision in favor of the defendant, and the matter proceeded to a one day short trial. The plaintiff, a female visitor to Nevada, alleged that the defendant hotel negligently maintained its premises. The plaintiff specifically claimed that as she was walking from her room to the ice machine, she slipped and fell on a puddle of melted ice that was on the floor. The defendant denied liability, asserting that it did not have notice of the puddle of melted ice. The defendant maintained that the puddle was caused by an unknown guest who spilled ice on the floor between regular inspections performed by defendant s employees. The defendant further asserted that the large puddle of water on the floor was open and obvious. The plaintiff countered that defendant did not maintain records of the inspections reportedly performed by its employees. As a result of the fall, the plaintiff allegedly sustained injury to her knee, cervical soft tissue injuries and a closed head injury. She relied on the medical records of her treating physicians at the short trial. The defendant argued that the plaintiff s cervical pain and headaches were pre-existing. The plaintiff claimed medical expenses of $22, Prior to trial, the plaintiff demanded $19,000.00, and the defendant served the plaintiff with an Offer of Judgment of $1, The four member jury panel returned a verdict for the defendant. Knudsen v. Mandalay Corp., dba Mandalay Bay Resort and Casino, March 1, 2013.
5 Nevada Legal Update Page 5 Contracts Plaintiff Prevails in Breach of Contract Action Against Insurance Carrier On September 11, 2007, the plaintiff parked his vehicle in the parking lot of nonparty Mediterranean Café. Approximately one hour later, the plaintiff exited the restaurant and discovered his vehicle and all its contents had been stolen. The plaintiff contacted his insurance company, the defendant, and informed the defendant of the theft. The police recovered the plaintiff s vehicle on October 15. The following day, the vehicle was towed to non-party National Auto Service Center, where it was determined that the vehicle s engine needed to be replaced. A few days later, the defendant s representative inspected the vehicle and prepared an estimate of the damages. The defendant proposed that the vehicle be repaired using an engine from a junkyard, even though the plaintiff s vehicle was less than two years old. The plaintiff therefore refused the defendant s proposal and requested a proven mechanically sound engine. The defendant had the vehicle inspected by a technical and forensic organization in November Nearly three months after the theft, the defendant still had not approved repair or replacement and the plaintiff had incurred $1, in storage fees. The plaintiff s counsel then informed the defendant that the plaintiff would move forward with repairs and expected the defendant to pay for the repairs. The defendant contacted the repair shop and requested the shop delay repairs to allow the defendant s representative to inspect the vehicle on December 10, In May 2008, the defendant denied the plaintiff s claim. During trial, the plaintiff specifically asserted that the defendant breached the insurance contract when it failed to compensate the plaintiff for damages to his vehicle. The plaintiff further claimed that the defendant breached the covenant of good faith and fair dealing by delaying payment of insurance benefits and failing to provide a detailed explanation regarding the basis for denial of the plaintiff s claim. The defendant denied liability. At the conclusion of a six day trial, the jury found for the plaintiff and awarded him $11, in compensatory damages. Dane v. Geico, February 4, Medical Malpractice Defendant Prevails in Wrongful Death Action On October 8, 2009, the decedent died of invasive bladder cancer. He was survived by his wife who brought an action for his wrongful death. The decedent began treating with the defendant physician on July 5, 2001 and reported a history of bladder tumors. Nearly two years later, the decedent returned to see the defendant for a regular surveillance cystoscopy. Over the span of several years, the defendant performed regular surveillance biopsies and cystoscopies that revealed a low grade carcinoma but with no evidence of muscle invasion. The defendant performed a third biopsy on April 28, 2006, removing all visible parts of the tumor. Pathology uncovered a high-grade carcinoma with no evidence of invasion. A fourth biopsy, performed on September 22, 2006, revealed the tumor was mixed low and high-grade carcinoma, and had invaded the muscle. The decedent s treatment and surgical options were significantly limited by his poor health. The defendant recommended surgical removal of the bladder but the decedent wanted a second opinion. The decedent returned to see the defendant twice more before deciding to have his bladder removed in January The surgery was successful and there were no signs of metastases. The decedent continued treatment with the defendant until September 20, The decedent continued to smoke cigars from the time of his diagnosis in 2000 until the time of his death. Prior to his death, the decedent also experienced poor kidney function, diabetes, and persistent urinary tract infections which disqualified him as a candidate for chemotherapy. The plaintiff alleged that the defendant fell below the standard of care by failing to timely diagnose the decedent s invasive bladder cancer. The plaintiff further alleged that the defendant failed to take adequate biopsies and unreasonably delayed surgery to remove the cancerous bladder. The defendant denied he fell below the standard of care and argued that the decedent succumbed to the natural progression of the disease. At the end of the six day trial, the jury found for the defendant. Brooks v. Leo, M.D., January 03, Plaintiff Fails to Recover in Medical Malpractice Action The plaintiff, a 66 year-old carpenter, alleged that the defendant dentist fell below the standard of care during the placement of mini dental implants. The plaintiff called an expert periodontist who testified that the placement of the implants was improper, leading to infection. The periodontist also testified that the plaintiff had an increased risk for infection due to his diabetes. The defendant denied falling below the standard of care. According to the Plaintiff, the defendant s negligence caused plaintiff to develop osteomyelitis. The defendant contended that the infection was an unpreventable complication. The defendant called a prosthodontist who testified that defendant met the standard of care, and a general surgeon who opined that the infection was unpreventable. The plaintiff alleged medical expenses totaling $217, Prior to trial, the plaintiff demanded $30, The defendant refused to make an offer. During closing arguments, the plaintiff s counsel asked the jury to award the plaintiff $500, The jury found for the defendant at the conclusion of the six day trial. Rightman v. Mersha, D.M.D., dba Discovery Dental, January 11, Comments While the Affordable Care Act (ACA) was signed into law in March of 2010, many of the final and perhaps most significant changes will take effect in 2014 and This includes planned access to affordable coverage through the new health insurance Marketplace starting on January 1, The following is a general overview of some of the new provisions
6 Alverson Taylor Mortensen & Sanders 7401 W. Charleston Blvd. Las Vegas, Nevada PRST STD U.S. POSTAGE PAID LAS VEGAS, NV PERMIT NO. 447 The information included in this newsletter is not a substitute for consultation with an attorney. Specific circumstances require consultation with appropriate legal professionals. of the ACA that may impact businesses. If an individual is self employed, he will be required to comply with the Individual Shared Responsibility provisions of the ACA. This means that he will need to have minimum essential health coverage, qualify for an exemption, or make a payment when filing his federal income tax return. Minimum essential coverage includes, but is not limited to, employer-sponsored coverage, Medicare Part A coverage and Medicare Advantage, coverage purchased in the individual market, and most Medicaid coverage. The exemptions include, but are not limited to, having a household income below the minimum threshold for filing a tax return, having a certified hardship, or the inability to afford coverage because the minimum amount he must pay for the premiums is more than 8% of the household income. An employer with fewer than 25 fulltime equivalents, who sponsors self-insured plans, must submit reports to the IRS providing detailed and specific information for each covered individual. This is in addition to the other notifications to employees that are already required under the ACA. The potentially good news is that if the employer pays below $50, in average annual wages, contributes 50% or more toward employees self-only health insurance premiums, and participates in the Small Business Health Options Program ( SHOP ), the employer may qualify for a tax credit of up to 50% to help offset the costs of insurance. Additionally, if the insurance company does not spend at least 80% or premium dollars on medical care rather than administrative costs, the employer may be entitled to a refund. An employer with less than 50 fulltime equivalents will have the same requirements and benefits as employers with fewer than 25 full-time equivalents, with the exception of the tax credit discussed above. An employer with 50 or more fulltime equivalents who does not offer affordable health insurance that provides minimum values, may be required to pay an assessment beginning in 2015, pursuant to the Employer Shared Responsibility provisions. In order to avoid having to pay an assessment, the employer must offer affordable coverage. This means that the health insurance provided pays at least 60% of allowed costs of benefits and the employees do not have to pay more than 9.5% of their annual household modified adjusted gross income. If the employer does not offer health insurance that pays at least 60% of allowed costs of benefits, if the employees have to pay more than 9.5% their annual household modified adjusted gross income, or if at least one employee receives a premium tax credit or cost sharing subsidy from the new health insurance Marketplace, the employer must pay an assessment for not providing coverage.