In re Estate of McConnell ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/05/2020 08:08 AM CDT
- 303 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
In re Estate of Timothy J.
McConnell, deceased.
Susan Wengert, appellee, v. Theresa A. Rajendran,
Personal Representative of the Estate
of Timothy J. McConnell,
deceased, appellant.
___ N.W.2d ___
Filed May 5, 2020. No. A-19-330.
1. Decedents’ Estates: Judgments: Appeal and Error. In the absence of
an equity question, an appellate court, reviewing probate matters, exam-
ines for error appearing on the record made in the county court. When
reviewing a judgment for errors appearing on the record, the inquiry is
whether the decision conforms to the law, is supported by competent
evidence, and is neither arbitrary, capricious, nor unreasonable.
2. Decedents’ Estates: Appeal and Error. The probate court’s factual
findings have the effect of a verdict and will not be set aside unless
clearly erroneous.
3. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court has an obligation to resolve the questions independently
of the conclusion reached by the trial court.
4. Abatement, Survival, and Revival: Wrongful Death. A wrong-
ful death action and a survival action are two distinct causes of
action which may be brought by a decedent’s personal representative.
Although they are frequently joined in a single action, they are concep-
tually separate.
5. Wrongful Death: Damages. A wrongful death action is brought on
behalf of the widow or widower and next of kin for damages they have
sustained as a result of the decedent’s death. Such damages include the
pecuniary value of the loss of the decedent’s support, society, comfort,
and companionship.
6. ____: ____. A wrongful death plaintiff may only recover for a pecuniary
loss, meaning a loss which has a money value.
- 304 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
7. Wrongful Death: Damages: Juries: Words and Phrases. The word
“pecuniary” is not to be construed in a strict sense; its exact measure
and the task of determining such must be left to the good judgment and
ordinary common sense of the jurors, based upon the circumstances of
each case.
8. Wrongful Death: Damages: Evidence: Juries. There is no require-
ment in a wrongful death case that there be evidence of the dollar value
of companionship, counseling, or advice, as that is a matter left to the
sound discretion of the jury.
9. Abatement, Survival, and Revival: Decedents’ Estates. An action
under the survival statute, Neb. Rev. Stat. § 25-1401 (Reissue 2016), is
the continuance of the decedent’s own right of action which he or she
possessed prior to his or her death. The survival action is brought on
behalf of the decedent’s estate and encompasses the decedent’s claim
for predeath pain and suffering, medical expenses, funeral and burial
expenses, and any loss of earnings sustained by the decedent, from the
time of the injury up until his or her death.
10. ____: ____. A survival action is personal to the decedent for damages
suffered by the decedent between the wrongful act and his or her death
and recovery for such damage belongs to the decedent’s estate and is
administered as an estate asset.
11. Wrongful Death: Damages. Damages for pain and suffering are
intangible and quite subjective elements which are not a mere matter
of computation.
12. Damages. The amount of damages is a matter solely for the fact finder.
13. Wrongful Death. The next of kin may recover in a wrongful death
action only those losses sustained after the injured party’s death by rea-
son of being deprived of what the next of kin would have received from
the injured party from the date of his or her death, had he or she lived
out a full life expectancy.
14. Antenuptial Agreements. Premarital agreements are contracts made in
contemplation of marriage.
15. Contracts. In interpreting contracts, the court as a matter of law must
first determine whether the contract is ambiguous.
16. Contracts: Words and Phrases. An instrument is ambiguous if a word,
phrase, or provision in the instrument has, or is susceptible of, at least
two reasonable but conflicting interpretations or meanings.
17. Contracts: Intent. If a contract is unambiguous, the intent of the parties
must be determined from the contents of the contract.
18. Contracts. The interpretation of a contract and whether the contract is
ambiguous are questions of law subject to independent review.
- 305 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
19. Wrongful Death: Decedents’ Estates: Antenuptial Agreements:
Waiver. Proceeds from a wrongful death action are not the property of a
decedent’s estate and are therefore not contemplated as a property right
waived in a premarital agreement unless the language of the premarital
agreement specifically waives such right.
20. Wrongful Death: Damages. There is no exact fiscal formula for deter-
mination of damages recoverable for loss of society, comfort, and com-
panionship, a loss which is not subject to some strict accounting method
based on monetary contributions, past or prospective.
21. ____: ____. Damages for loss of companionship and society must be
determined upon a consideration of the facts of each case.
22. Parent and Child. The relationship between parent and child has intrin-
sic value.
Appeal from the County Court for Douglas County:
Stephanie R. Hansen, Judge. Reversed and remanded with
directions.
Edward D. Hotz and Emily Dickson, Senior Certified Law
Student, of Pansing, Hogan, Ernst & Bachman, L.L.P., and
John S. Slowiaczek and Virginia A. Albers, of Slowiaczek
Albers, P.C., L.L.O., for appellant.
David A. Domina, of Domina Law Group, P.C., L.L.O., for
appellee.
Moore, Chief Judge, and Bishop and Arterburn, Judges.
Bishop, Judge.
I. INTRODUCTION
Theresa A. Rajendran, in her capacity as personal repre-
sentative of the estate of Timothy J. McConnell (the estate),
appeals from an order of the county court for Douglas County
determining the allocation of settlement proceeds associated
with McConnell’s death in 2014 from mesothelioma at age 73.
The proceeds derived from a court-approved stipulated settle-
ment in a separate action in Missouri relating to McConnell’s
death. The county court determined there was a lack of com-
petent evidence to support any apportionment under a survival
claim and distributed the entirety of the proceeds pursuant to
- 306 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
a wrongful death claim. The county court allocated 90 per-
cent of the proceeds to McConnell’s estranged wife, Susan
Wengert, and the remaining 10 percent to Rajendran (in her
capacity as McConnell’s daughter). We conclude that a por-
tion of the proceeds should have been distributed to the estate
pursuant to a survival claim for McConnell’s pain and suffer-
ing before his death. Further, we find error in the allocation of
the proceeds under the wrongful death claim. Therefore, we
reverse the judgment of the county court and remand the cause
with directions.
II. BACKGROUND
1. Events During McConnell’s Life
Wengert met and started dating McConnell in 1995.
Both McConnell and Wengert had been previously married;
McConnell had two children, Rajendran and another daughter
who died in 2004, and Wengert had a son. On February 24,
1999, McConnell and Wengert executed a premarital agree-
ment; they wed on February 27. At that time, McConnell
was 58 years old and Wengert was 37 years old. They lived
in Nebraska and had no children together. At the time of the
evidentiary hearing, Rajendran, age 50, was married and had
two children; she had lived in Colorado since 1995. Wengert
worked in sales before and during the marriage; however, she
resigned from her job in 2011, due to McConnell’s illness,
as described below. McConnell had been the chief executive
officer and principal owner of a plastic manufacturing com-
pany. Wengert said she sometimes joined McConnell at busi-
ness events and tried to help him solve work-related issues.
McConnell continued to work for the company after his inter-
est in it was sold.
McConnell was diagnosed with mesothelioma (in one or
both lungs) in late 2010. According to Wengert, in January
2011, McConnell had surgery to “glue[] the lining of [his] lung
to the lung” to prevent fluid buildup. McConnell was diag-
nosed with prostate cancer at the same time and treated for that
- 307 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
in 2011 and 2012. Rajendran’s husband, an anesthesiologist of
20 years at the time of the evidentiary hearing, recalled that
McConnell was “fairly asymptomatic” for the next 2 to 3 years
after his mesothelioma diagnosis. Wengert said that McConnell
relied on her to manage his medical appointments; in prepara-
tion for the evidentiary hearing, she made a list of the numer-
ous medical appointments and procedures McConnell had from
December 2010 to January 2014, and also noted commentary
about McConnell’s condition in another list she made about
family events.
Both Wengert and Rajendran’s husband indicated that
McConnell’s condition worsened in 2013. He experienced
more pain and discomfort and developed abdominal pain.
McConnell underwent surgery in October 2013; his gallbladder
and appendix were removed. Wengert noted that McConnell
went to the emergency room the day after surgery was com-
pleted due to anxiety and shortness of breath. Shortly after
that, “complications from the surgery” led to the admission
of McConnell to a hospital for 7 days. Rajendran’s husband
said that he and Rajendran went to visit McConnell during
that time. He recalled that McConnell received a “nasogas-
tric tube” to alleviate some discomfort, enable him to get up
and walk, and allow his bowels to start functioning again.
Rajendran’s husband said that a pathology report showed that
McConnell’s appendix had signs of mesothelioma and that a
surgeon deduced that either the mesothelioma in his abdomen
was a new occurrence or the mesothelioma in his lungs had
spread to his abdomen.
There were followup appointments. Chemotherapy was rec-
ommended. Rajendran’s husband recalled “[t]hey” decided
to try chemotherapy “but he was progressing pretty quickly,”
meaning he was becoming “more short of breath” and hav-
ing “significantly more chest and abdominal pain” and was
“fatigued.” After his hospitalization in October 2013, he was
on “some narcotics for pain management,” an antianxiety
medication, and a “blood thinner.” McConnell ended up
- 308 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
having a “pulmonary embolism,” which “added to the level of
discomfort and difficulty breathing that he was experiencing,
in addition to the physical chest pain that he was having”; he
was placed on “additional blood thinners.” He felt “slightly
better” after that but “very soon” required supplemental oxy-
gen. Wengert noted the last medical appointment she attended
with McConnell was on January 22, 2014, “although there
were more scheduled.” Wengert said that in 2014, McConnell
was “a little more tired” and “on more medication” than the
year before; he was on “Hydrocodone” for pain relief, an anti-
anxiety medication, and a blood thinner.
On March 17, 2014, McConnell filed for divorce in the
Douglas County District Court. Among other things, he
alleged that his marriage to Wengert was “irretrievably bro-
ken” with no remaining reasonable likelihood that it could be
preserved; Wengert admitted the same in her answer, and in
her “cross-complaint,” she asserted that “efforts of the par-
ties at reconciliation have wholly failed: further attempts at
reconciliation would be fruitless and the marriage should be
dissolved.” On May 14, the district court entered a temporary
order. At his request, McConnell was awarded exclusive pos-
session of the marital home. Wengert was ordered to vacate
the marital home by May 1; during the evidentiary hearing
in the present action, Wengert said she moved out on that
day. Upon Wengert’s request, McConnell had to pay $5,000
per month in temporary alimony; those payments would be
credited against the alimony owed under the premarital agree-
ment, if the court found that agreement enforceable (Wengert
disputed the enforceability of the agreement in the divorce
action; in the present action, she concedes the agreement
is valid).
Rajendran’s husband said that in 2014, McConnell was
“struggling to just walk around the house.” He had “attempted
some chemotherapy” about 3 or 4 weeks after his pulmo-
nary embolism was being treated. He became “anemic” and
had “several blood transfusions which added to the fact that
- 309 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
he was getting more fatigued and more short of breath.”
McConnell saw a therapist at some point to deal with the
“mental aspects” of his condition. Rajendran said that from
October 2013 through September 2014, she saw a deterioration
in McConnell’s mental and physical health. Rajendran’s hus-
band stated that within the last 3 to 4 weeks of McConnell’s
life, “it got pretty severe” and he was “no longer able to go
up the stairs.” Rajendran’s husband said, “[H]e got so weak
that he really needed assistance just getting out of [his] chair.”
McConnell had “home nurses and hospice nurses” caring
for him at his home near the end of his life. In his last 10
days of life, McConnell was still on pain medications and
was in a “very difficult pain management situation” due to
having mesothelioma in his chest and abdomen. The “opi-
oids” may have assisted chest pain but made abdominal pain
worse, Rajendran’s husband explained, “so he kind of endured
through a lot of the suffering that you see with mesothelioma
with a minimal amount of narcotics.”
McConnell died from pulmonary mesothelioma on
September 14, 2014. On September 24, the divorce action
was dismissed.
2. Events Following McConnell’s Death
Rajendran was appointed personal representative of the
estate on September 22, 2014, as set forth in the “Registrar’s
Statement of Informal Probate” filed in the county court for
Douglas County. In August 2016, she filed a lawsuit in that
capacity against multiple defendants in a Missouri circuit
court, alleging that McConnell’s death was the result of con-
tact with asbestos-containing products. Rajendran brought the
action under the “Missouri Wrongful Death Statute, Mo[.]
Rev. Stat. § 537.080 et seq.” and alleged that McConnell’s
mesothelioma was wrongfully caused and that, as a direct and
proximate result of any or all of the defendants’ wrongful acts
and omissions, McConnell suffered and sustained the follow-
ing injuries and damages:
- 310 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
(a) [McConnell] developed [m]esothelioma and suf-
fered physical pain and mental distress;
(b) [McConnell] sought medical care and treatment for
said injuries, and [Rajendran and/or McConnell] incurred
expenses related to medical care and treatment . . . and
funeral expenses;
(c) [McConnell] lost earnings and wages and
[Rajendran] sustained the loss of [McConnell’s] financial
contribution and support;
(d) [McConnell] lost enjoyment of life;
(e) [Rajendran] incurred damages by reason of the
death of [McConnell];
(f) [Rajendran] lost the services, consortium, compan-
ionship, comfort, instruction, guidance, counsel, training
and support of [McConnell].
Damages and/or punitive damages were sought from each
defendant.
On September 28, 2017, the Missouri circuit court entered a
stipulated order approving a settlement and attorney fees and
expenses owed to Rajendran’s counsel. Counsel for Rajendran
and counsel for Wengert, as an interested party, signed the
order. The Missouri court made no finding on the distribution
of funds between Rajendran and Wengert (both of whom the
court concluded could receive funds under a wrongful death
claim). The Missouri court ordered that all remaining settle-
ment proceeds, about $2.3 million net after attorney fees and
expenses, were to be paid to Rajendran as personal represent­
ative of the estate in the county court for Douglas County
to be held “pending allocation of those proceeds pursuant to
Nebraska law in the pending probate proceedings . . . involving
the [e]state.”
In February 2018, Wengert filed a “Motion to Require
Accounting for Recovery in Wrongful Death Proceedings and
for Determination of Distribution to Next of Kin” in the county
court estate case. She requested the county court to approve
the settlement from the Missouri action, hold an evidentiary
- 311 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
hearing, and distribute the “wrongful death recovery” net set-
tlement proceeds, plus interest, “substantially” all to her and to
Rajendran if appropriate. In March, as personal representative
of the estate, Rajendran filed a motion for, among other things,
(1) allocation of the settlement proceeds from the Missouri
action first under the survival action to compensate McConnell
for his “conscious pain and suffering” from having mesothe-
lioma and (2) allocation of the remaining proceeds under the
wrongful death claim to Rajendran and Wengert, asserting, in
part, the amount of Wengert’s pecuniary loss depended on the
validity of the premarital agreement.
An evidentiary hearing took place on July 13, 2018; all
exhibits offered were received. Wengert and five of her family
members testified, and Rajendran and her husband testified.
3. County Court’s Order
The county court issued its order on February 5, 2019.
To apportion the settlement proceeds, the court questioned
whether the proceeds flowed from both a survival and wrong-
ful death claim or solely the latter. The county court found
it was unclear whether a survival claim was contemplated
in the Missouri action but concluded it could not apportion
funds under a survival claim due to lack of “competent”
evidence. The county court awarded Wengert “90 [percent]
of the wrongful death proceeds” and Rajendran “10 [per-
cent] of the wrongful death proceeds.” No proceeds were
allocated to a survival claim. On February 12, Rajendran, as
personal representative, filed a motion to alter and amend
the February 5 order, to reexamine the evidence, or to have
a new “trial” because the order did not allocate any proceeds
to the survival claim despite “sufficient and overwhelming
evidence” to allow for allocation under such a claim. She fur-
ther challenged the allocation of 90 percent of the wrongful
death proceeds to Wengert when it was not supported by the
evidence “given the pending divorce proceeding and the . . .
[p]remarital [a]greement, and [Wengert’s] testimony that she
- 312 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
felt that if . . . McConnell had lived the divorce would have
become final.” On March 27, following a hearing, that motion
was denied.
In her capacity as personal representative of the estate,
Rajendran filed a notice of appeal on April 3, 2019, from
the county court’s March 27 order, and an amended notice
of appeal on April 5, from the county court’s February 5 and
March 27 orders.
III. ASSIGNMENTS OF ERROR
Rajendran claims the county court erred in (1) failing to
allocate any of the settlement proceeds to the estate under
the survivor claim to compensate for McConnell’s predeath
pain and suffering, (2) allocating 90 percent of the settlement
proceeds to Wengert when the prenuptial agreement between
her and McConnell governed the extent of her pecuniary
loss as a result of McConnell’s death, and (3) determining
Rajendran was only entitled to 10 percent of the settlement
proceeds for the loss of McConnell’s companionship, counsel-
ing, and advice.
IV. STANDARD OF REVIEW
[1] In the absence of an equity question, an appellate court,
reviewing probate matters, examines for error appearing on the
record made in the county court. In re Estate of Radford, 304
Neb. 205, 933 N.W.2d 595 (2019). When reviewing a judg-
ment for errors appearing on the record, the inquiry is whether
the decision conforms to the law, is supported by competent
evidence, and is neither arbitrary, capricious, nor unreason-
able. Id.
[2,3] The probate court’s factual findings have the effect of
a verdict and will not be set aside unless clearly erroneous. Id.
When reviewing questions of law, an appellate court has an
obligation to resolve the questions independently of the conclu-
sion reached by the trial court. In re Estate of Panec, 291 Neb.
46, 864 N.W.2d 219 (2015).
- 313 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
V. ANALYSIS
1. General Legal Principles
[4] A wrongful death action and a survival action are two
distinct causes of action which may be brought by a decedent’s
personal representative. Id. Although they are frequently joined
in a single action, they are conceptually separate. Id.
[5-8] A wrongful death action is brought on behalf of the
widow or widower and next of kin for damages they have sus-
tained as a result of the decedent’s death. Id. See, also, Neb.
Rev. Stat. §§ 30-809 and 30-810 (Reissue 2016) (wrongful
death statutes). Such damages include the pecuniary value of
the loss of the decedent’s support, society, comfort, and com-
panionship. In re Estate of Panec, supra. A wrongful death
plaintiff may only recover for a pecuniary loss, meaning a loss
which has a money value. Maloney v. Kaminski, 220 Neb. 55,
368 N.W.2d 447 (1985). However, the word “pecuniary” is not
to be construed in a strict sense; it is difficult to determine its
exact measure and the task of determining such must be left to
the good judgment and ordinary common sense of the jurors.
See id. It must be determined upon a consideration of the cir-
cumstances of each case. Id. There is no requirement that there
be evidence of the dollar value of companionship, counseling,
or advice, as that is a matter left to the sound discretion of the
jury. See id.
[9,10] In contrast, an action under our survival statute is the
continuance of the decedent’s own right of action which he or
she possessed prior to his or her death. In re Estate of Panec,
supra. See, also, Neb. Rev. Stat. § 25-1401 (Reissue 2016)
(survival statute). The survival action is brought on behalf of
the decedent’s estate and encompasses the decedent’s claim
for predeath pain and suffering, medical expenses, funeral
and burial expenses, and any loss of earnings sustained by the
decedent, from the time of the injury up until his or her death.
In re Estate of Panec, supra. A survival action is personal to
the decedent for damages suffered by the decedent between
the wrongful act and his or her death and recovery for such
- 314 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
damage belongs to the decedent’s estate and is administered as
an estate asset. See id.
The same individuals may stand to recover in both a wrong-
ful death and survival action, as the decedent’s next of kin may
also be beneficiaries of a survival claim under the decedent’s
will or the laws of intestate succession. Id.
2. Survival Claim
Rajendran argues that McConnell’s suffering far outweighs
any pecuniary loss suffered by either Rajendran or Wengert
and that McConnell’s suffering deserves to be compensated
under the survival claim. Rajendran contends the settlement
proceeds should be divided according to the damage suffered,
with “most” going to the survival claim. Brief for appellant at
19. Rajendran claims the county court erred when it did not
allocate any settlement proceeds to the estate based on the sur-
vival claim. We agree.
(a) Survival Claim Sufficiently Raised
We first address the dispute between Rajendran and
Wengert as to whether a survival claim was asserted in the
Missouri action and provided for under the stipulated order.
Notably, the county court pointed out that it was “unclear”
whether a survival action was contemplated in the peti-
tion filed in Missouri, because the “petition was filed by
Rajendran as a daughter, not as the [personal representa-
tive] of the estate. There is no mention in the petition of the
estate or Rajendran’s position as the [personal representa-
tive] that allows her to step in and recover for the estate of
McConnell.” Having made that observation, the county court
then stated, “However, the settlement order does make refer-
ence to Rajendran in both her beneficiary capacity and her
fiduciary capacity as [personal representative], though it only
refers to the proceeds of the settlement as wrongful death.”
The county court further noted that the settlement drew no
distinction between wrongful death and pain and suffering.
The county court then concluded: “No evidence was presented
- 315 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
to the court regarding McConnell’s medical expenses, funeral
and burial expenses, or loss of earnings. Based on the lack
of competent evidence provided regarding the survival claim,
the court cannot make a sound and reasonable apportion-
ment of the funds recovered.” Based on that conclusion, it is
evident the county court proceeded to consider the survival
claim as sufficiently raised, but determined the evidence to
support apportionment on such a claim was lacking. We note
that Wengert does not cross-appeal the county court’s implicit
conclusion that a survival claim was raised, but nevertheless
argues that the Missouri action was only for wrongful death
and failed to allege that it presented a survival action for
McConnell’s pain and suffering or any other claim accruing
during his life.
We find no error in the county court’s determination that
a survival claim was sufficiently raised, as there was com-
petent evidence to support it. As pointed out by Rajendran,
her complaint in the Missouri action “alleged facts sufficient
to give rise to a claim for [McConnell’s] pain and suffer-
ing.” Reply brief for appellant at 4. Although the complaint
stated the action was being brought under Missouri’s wrong-
ful death statute, Missouri law became irrelevant when the
stipulated order provided for allocation of the net settlement
proceeds “pursuant to Nebraska law.” Further, it is clear
that the complaint in the Missouri action set forth wrongful
death and survival claims. The complaint alleged, among other
things, that “[a]s a direct and proximate result of the wrong-
ful acts and omissions of Defendants, jointly and severally,”
McConnell suffered and sustained injuries and damages when
he “developed [m]esothelioma and suffered physical pain and
mental distress,” sought treatment and care for said injuries,
incurred medical and funeral expenses, and lost earnings, and
that he further “lost enjoyment of life.” Separate claims for
damages for Rajendran personally included her loss of “serv­
ices, consortium, companionship, comfort, instruction, guid-
ance, counsel, training and support of [McConnell].” Multiple
- 316 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
defendants contributed to the total settlement award, and the
checks for each defendant’s share were written to Rajendran
as the personal representative of McConnell’s estate, not to
Rajendran personally.
Thus, the record supports that a survival claim was raised
in the Missouri action. See In re Estate of Panec, 291 Neb.
46, 864 N.W.2d 219 (2015), (complaint regarding decedent’s
fatal injuries which alleged decedent experienced pain and
suffering and incurred medical expenses prior to decedent’s
death and which requested compensation under Nebraska
law is sufficient evidence to show survival claim had been
raised). Notably, pain and suffering and medical expenses
are relevant only to a survival claim and are not recoverable
in a wrongful death action. See id. The county court did not
err in determining that a survival claim was raised within the
Missouri action.
(b) Survival Claim Portion of
Settlement Proceeds
The remaining question is whether the county court erred
by not allocating any of the settlement proceeds to the sur-
vival claim. As set forth above, the county court determined
that there was no evidence regarding McConnell’s medical
expenses, funeral and burial expenses, or loss of earnings and
that therefore, “[b]ased on the lack of competent evidence
provided regarding the survival claim,” it could not make a
“sound and reasonable apportionment of the funds recovered.”
During the hearing on Rajendran’s motion for new trial or
to alter or amend, Rajendran’s counsel said that Rajendran
did not offer any evidence of “funeral expenses, and medical
expenses, those kinds of things” because “they were, quite
frankly, minimal.” But Rajendran’s counsel wanted an assess-
ment of damages for “physical and emotional pain and suffer-
ing” (on appeal, Rajendran similarly only requests allocation
to the estate for McConnell’s pain and suffering). The county
court said there was “definitely evidence presented that . . .
- 317 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
McConnell had — you know, he had a painful death, a painful,
long death,” but the court found it “very difficult” to figure out
“what evidence” helped to quantify that.
[11,12] We find that the record contains sufficient evi-
dence to support that McConnell suffered considerably for an
extended period of time preceding his death and that therefore,
the estate is entitled to a portion of the settlement proceeds
under the survival claim for McConnell’s pain and suffering.
Although damages for pain and suffering may be difficult to
compute, that cannot preclude entry of damages where they
are appropriate as discernible by sufficient evidence. See,
Holmes v. Crossroads Joint Venture, 262 Neb. 98, 629 N.W.2d
511 (2001) (damages for pain and suffering are intangible
and quite subjective elements which are not mere matter of
computation); Nelson v. Dolan, 230 Neb. 848, 434 N.W.2d 25
(1989) (jury could have awarded damages to decedent’s estate
for decedent’s prefatal-injury mental anguish on finding that
decedent apprehended and feared his impending death during 5
seconds that his motorcycle traveled 268 feet and locked with
defendant’s automobile before decedent was crushed and killed
after motorcycle struck light pole and went under defendant’s
automobile). The amount of damages is a matter solely for the
fact finder. See Brandon v. County of Richardson, 261 Neb.
636, 624 N.W.2d 604 (2001).
We conclude that the county court’s failure to allocate a
portion of the net settlement proceeds to the estate under the
survival claim did not conform to the law and the evidence in
the record. Therefore, we reverse the judgment of the county
court and remand the cause with directions to allocate to the
estate an appropriate amount of the settlement proceeds for the
survival claim. As already acknowledged by the county court,
there was “definitely evidence presented” that McConnell had
“a painful, long death.” Such evidence of McConnell’s pain
and suffering, and the numerous treatments and surgeries
to which he was subjected, should be significant consid-
erations when determining a correlating percentage of the
- 318 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
settlement proceeds to account for McConnell’s predeath suf-
fering when weighed against any pecuniary losses to Wengert
and Rajendran, which we discuss next.
3. Wrongful Death Claim
After concluding that the pecuniary loss as a result of
McConnell’s death was significantly greater to Wengert than
the pecuniary loss to Rajendran, the county court allocated
90 percent of the wrongful death proceeds to Wengert and
the remaining 10 percent to Rajendran. Rajendran challenges
those allocations.
[13] As stated previously, a wrongful death action is brought
on behalf of the widow or widower and next of kin for dam-
ages they have sustained as a result of the decedent’s death.
In re Estate of Panec, 291 Neb. 46, 864 N.W.2d 219 (2015).
Damages in a wrongful death action are to be “paid to and
distributed among the widow or widower and next of kin in
the proportion that the pecuniary loss suffered by each bears
to the total pecuniary loss suffered by all such persons.”
§ 30-810. Such damages include the pecuniary value of the
loss of the decedent’s support, society, comfort, and compan-
ionship. In re Estate of Panec, supra. The next of kin may
recover in a wrongful death action only those losses sustained
after the injured party’s death by reason of being deprived
of what the next of kin would have received from the injured
party from the date of his or her death, had he or she lived out
a full life expectancy. Corona de Camargo v. Schon, 278 Neb.
1045, 776 N.W.2d 1 (2009).
(a) Allocation to Wengert as
Widow of McConnell
In concluding that Wengert suffered a significantly greater
pecuniary loss than Rajendran, the county court made find-
ings about Wengert’s employment history and how she
benefited “greatly” from McConnell’s work, noting a 2012
joint tax return that shows a “combined income in excess
of $1 million.” The county court found that the “lifestyle,
- 319 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
marital home, vacations, gifts, and expenses” were funded
by McConnell’s “substantial” income. It noted Wengert’s
testimony that she was McConnell’s primary caregiver when
he fell ill and that she went with him to his medical appoint-
ments. The county court also found Wengert was “caught off
guard” when McConnell filed for divorce, lived in the marital
home for “another few months” after that, and did not want
a divorce.
The county court focused primarily on the loss of the finan-
cial lifestyle Wengert had enjoyed with McConnell during
the marriage, and the court recognized that Wengert did not
want the divorce to finalize. However, Wengert’s pecuniary
loss could only be evaluated based upon what she would have
received from McConnell from the time of his death forward
(had McConnell lived), and the evidence in this case indicates
that McConnell and Wengert had no meaningful relationship at
the time of McConnell’s death. As we discuss further below,
a divorce was pending, and a premarital agreement set forth
McConnell’s financial support obligations to Wengert in the
event of divorce.
In March 2014, McConnell filed for divorce. Wengert’s
testimony and a temporary court order in the divorce action
reflect that Wengert was ordered to and did vacate the marital
home on May 1. She said that from that time until McConnell’s
death, she and McConnell continued to reside separately. Aside
from in connection with the divorce action, she only saw him
one time at his office to return a television remote control.
In May, they had one telephone call during which Wengert
said they were angry at one another, and at the end of July,
Wengert had a telephone call with McConnell that prompted
him to retitle a car to her. Although she did not prefer to get
divorced and recalled more positive times during the marriage,
Wengert admitted that it “seemed” that the divorce case had
been headed in the direction of ending in a divorce. She even
agreed that if McConnell had lived, it was more likely than not
that the divorce would have been completed. Notably, Wengert
- 320 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
admitted in pleadings in the divorce action that the marriage
was irretrievably broken.
Wengert can only recover in a wrongful death action
for losses sustained after McConnell’s death due to being
deprived of what she would have received from McConnell
from the date of his death, had McConnell lived out a full life
expectancy. See Corona de Camargo v. Schon, supra. See,
also, Nelson v. Dolan, 230 Neb. 848, 434 N.W.2d 25 (1989)
(recovery for loss of services and companionship by surviving
spouse can only be sustained where evidence shows reasonable
probability that such services and companionship afforded sur-
vivor were of such character it would be of advantage to such
survivor and that disallowance thereof would cause pecuniary
loss to him or her); Kenaston v. Teeters, 190 Neb. 216, 207
N.W.2d 388 (1973) (general evidence of marital unfaithfulness
of decedent that concerned state of marriage prior to date of
decedent’s death, was inadmissible in wrongful death action
because previous misconduct was not relevant; wife and dece-
dent husband were living together at time of his death and
decedent was supporting his family).
The evidence upon which the county court relied to deter-
mine what portion of the wrongful death proceeds should be
allocated to Wengert was focused more on Wengert’s lifestyle
during the marriage as opposed to the evidence related to
the pending divorce and lack of a relationship at the time of
McConnell’s death. The record shows that Wengert had no
meaningful relationship of any kind with McConnell at the
time of his death. Any allocation to Wengert to compensate her
for loss of McConnell’s society, love, affection, care, attention,
companionship, comfort, or protection was unreasonable and
not in conformance with the law because Wengert no longer
had a meaningful relationship with McConnell at the time of
his death. See Corona de Camargo v. Schon, 278 Neb. 1045,
776 N.W.2d 1 (2009). Therefore, we agree with Rajendran that
the “only loss” to Wengert was the loss of McConnell’s finan-
cial support. Reply brief for appellant at 9.
- 321 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
Regarding Wengert’s loss of financial support from
McConnell, Rajendran claims such support was “contractu-
ally bargained” for in the premarital agreement. Id. Rajendran
contends that Wengert’s recovery is limited to what she would
have received under the premarital agreement if the divorce
had been finalized. But Wengert asserts that the premarital
agreement, though valid, “has nothing to do with wrongful
death proceeds.” Brief for appellee at 8. During the hearing
on Rajendran’s motion to alter or amend, the county court
said it did not consider the premarital agreement as part of
its decision.
In Nebraska, no case law specifically addresses whether, or
to what extent, a premarital agreement affects the entitlement
of a decedent’s widow or widower to wrongful death proceeds
arising from the decedent’s death. We therefore initially con-
sider legal principles relevant to premarital agreements, and
we then consider how courts of other states have addressed
this issue.
[14] Premarital agreements are contracts made in contem-
plation of marriage. See Mamot v. Mamot, 283 Neb. 659, 813
N.W.2d 440 (2012). Parties to a premarital agreement may
contract with respect to several matters, including any mat-
ter “not in violation of public policy or a statute imposing a
criminal penalty.” Neb. Rev. Stat. § 42-1004 (Reissue 2016).
The parties do not dispute the validity of the premarital agree-
ment here. See Neb. Rev. Stat. § 42-1006 (Reissue 2016)
(enforceability of premarital agreements). Because premarital
agreements are contracts, basic contract principles are appli-
cable to our understanding of the premarital agreement in the
present case. See Edwards v. Edwards, 16 Neb. Ct. App. 297, 744
N.W.2d 243 (2008) (rejecting party’s interpretation of pre-
marital agreement; case law provides that contract provisions
may be severable and plain language of premarital agreement
refuted party’s interpretation).
[15-18] In interpreting contracts, the court as a matter of
law must first determine whether the contract is ambiguous.
- 322 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
Wintroub v. Nationstar Mortgage, 303 Neb. 15, 927 N.W.2d
19 (2019). An instrument is ambiguous if a word, phrase, or
provision in the instrument has, or is susceptible of, at least
two reasonable but conflicting interpretations or meanings. Id.
If a contract is unambiguous, the intent of the parties must be
determined from the contents of the contract. Id. The interpre-
tation of a contract and whether the contract is ambiguous are
questions of law subject to independent review. Id.
When considering cases from other states, we came across
an instance where the plain language of relevant statutes was
controlling. In Steele v. Steele, 623 So. 2d 1140, 1142 (Ala.
1993), the Alabama Supreme Court held that an “antenuptial
property agreement” had no effect on any proceeds that could
be awarded in a separate wrongful death action. The Alabama
court found that the plain language of its “Wrongful Death
Act and the applicable statute of distribution” mandated that
the surviving spouse in that case receive one-half of the pro-
ceeds of a wrongful death action if any were awarded. Steele v.
Steele, 623 So. 2d at 1142. There was no room for judicial stat-
utory construction of those statutes because the wording within
the statutes was distinct and unequivocal. Also, the Alabama
court noted that in signing the antenuptial property agreement,
each party (widow and decedent husband) agreed to dispose of
his or her own property but that it was “clear from the agree-
ment that neither party contemplated a wrongful death action
when they signed the agreement, as wrongful death proceeds
are neither part of the decedent’s estate nor a property right.”
Id. The opinion did not quote any language from the antenup-
tial property agreement.
Other courts have found that a premarital agreement had no
bearing on a spouse’s right to wrongful death proceeds when
the language of the particular agreement was too narrow to
encompass a waiver of that right. In re Estate of Burns, 31
So. 3d 1227 (Miss. App. 2009), involved a trial court’s find-
ing that a spouse had not waived his claim to wrongful death
settlement proceeds relative to his wife’s death despite their
- 323 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
undisputedly valid antenuptial agreement. The antenuptial
agreement had the following provision:
“Each of the parties hereto agree that on the death of the
other, the surviving party will not have and will not in
any way assert any claim, interest, estate or title of any
kind or nature whatsoever in or to any property, real, per-
sonal, or mixed, of which the other party may die seized
and possessed . . . .”
Id. at 1230. The Mississippi Court of Appeals noted that its
wrongful death statute must be strictly construed and that a
wrongful death action is not part of the estate of the deceased
so that a wrongful death action itself does not enter the estate.
The Mississippi court concluded that the antenuptial agree-
ment had no bearing on the wrongful death claim or on the
distribution of proceeds received from settling that claim.
In so holding, the appellate court necessarily found that the
plain language of the antenuptial agreement quoted above
had no bearing on the distribution of wrongful death proceeds
because those proceeds were not “‘seized and possessed’”
by the decedent wife during her life and, thus, did not pass
through her estate upon her death. In re Estate of Burns, 31
So. 3d at 1230.
A similar result was reached in In re Estate of Sorenson-
Peters, No. 11-1547, 2012 WL 5355712 (Iowa App. Oct.
31, 2012) (unpublished opinion listed in table of “Decisions
Without Published Opinions” at 824 N.W.2d 561 (2012)),
in which a decedent and her husband widower had signed a
prenuptial agreement, “disclaiming any interest or right in
the decedent’s family’s business.” Id. at *3. In apportioning
wrongful death proceeds, the trial court found that the objec-
tive facts clearly established that the decedent did not choose
to limit any economic rights of the husband widower except
the rights to the family business as outlined in the prenuptial
agreement. A sum of the wrongful death proceeds was awarded
to the husband widower. The Iowa court affirmed the appor-
tionment, which it found to be equitable. See, also, Kubian v.
- 324 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
Alexian Bros. Medical Center, 272 Ill. App. 3d 246, 253, 651
N.E.2d 231, 236, 209 Ill. Dec. 303, 308 (1995) (antenuptial
agreement statement that widow would not make claim as
to “‘any part of her spouse’s estate’” did not waive widow’s
right to pursue common-law loss of consortium claim; loss of
consortium was not listed among rights waived in the antenup-
tial agreement, and such claim belonged to surviving spouse,
not decedent).
Broad language in a postnuptial agreement produced a dif-
ferent result in Rickman v. Rickman, No. M2013-00251-COA-
R3-CV, 2013 WL 5656214 (Tenn. App. Oct. 15, 2013). In
that case, a widow appealed a trial court’s ruling that she
could not benefit from a wrongful death settlement related to
her deceased husband’s death given a postnuptial agreement
executed during their marriage. The Tennessee court concluded
that it was bound by the plain language of the postnuptial
agreement, which waived the widow’s right to share in the
wrongful death proceeds. To reach that conclusion, the appel-
late court first noted that antenuptial and postnuptial agree-
ments are both interpreted and enforced as any other contract.
There was no dispute that the postnuptial agreement at issue
was valid, and therefore, it could be interpreted according to
general contract principles and the notion that such agreements
are to be construed liberally to give effect to the intention of
the parties. The court recognized that in Tennessee, the pro-
ceeds from a wrongful death action are not property of the
decedent’s estate but instead pass outside the estate through the
operation of the state’s intestacy statutes.
On appeal, the widow in Rickman v. Rickman, supra, relied
on Steele v. Steele, 623 So. 2d 1140 (Ala. 1993), and In re
Estate of Burns, 31 So. 3d 1227 (Miss. App. 2009), the cases
discussed above, as supportive of her position. However, the
Tennessee court found those cases to be distinguishable. As rel-
evant here, the court noted that it was unable to unequivocally
conclude that wrongful death proceeds were not contemplated
when the widow and decedent entered into the postnuptial
- 325 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
agreement, unlike in Steele v. Steele, supra. That court under-
stood the antenuptial property agreement in Steele v. Steele,
supra, to have contemplated only the decedent’s estate or
property rights. Plus, the court noted that the agreement in In
re Estate of Burns, 31 So. 3d at 1230, applied only to property
“‘of which the other party may die seized and possessed.’” But
the contract in Rickman v. Rickman, supra, was far broader. In
addition to mutual waivers of rights to the property of the other
spouse, there was a mutual waiver of “‘all other rights which
they may have acquired by reason of their marriage.’” Id. at
*1. The court found there could be no dispute that the widow’s
right to receive the wrongful death proceeds, if any, was a right
acquired by reason of her marriage to the decedent. Therefore,
the agreement was broad enough to encompass proceeds flow-
ing from a wrongful death action.
[19] Nebraska’s wrongful death statutes provide a widow
or widower and next of kin a right of action for damages
sustained as a result of a decedent’s death. See In re Estate of
Panec, 291 Neb. 46, 864 N.W.2d 219 (2015). Such damages
are for only those losses sustained after the injured party’s
death by reason of being deprived of what the widow or wid-
ower and next of kin would have received from the injured
party from the date of his or her death, had he or she lived
out a full life expectancy. See Corona de Camargo v. Schon,
278 Neb. 1045, 776 N.W.2d 1 (2009). Accordingly, we agree
with the reasoning of other states that proceeds from a wrong-
ful death action are not the property of a decedent’s estate and
are therefore not contemplated as a property right waived in
a premarital agreement unless the language of the premarital
agreement specifically waives such right. We now turn to the
language of the premarital agreement at issue here.
The contractual terms in the present case are not as broadly
stated as those contained in Rickman v. Rickman, No. M2013-
00251-COA-R3-CV, 2013 WL 5656214 (Tenn. App. Oct. 15,
2013). McConnell and Wengert’s premarital agreement stated,
in relevant part:
- 326 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
1. For all purposes of this Agreement, the property
made subject to this Agreement shall consist of all right,
title or interest, present or future, legal or equitable, vested
or contingent, in real or personal property that either party
has or might hereafter inherit or receive through estates
or trusts created by relatives or as gifts from relatives,
together with the property described in Exhibits “A” and
“B” which are attached hereto and incorporated herein
by reference, including any income, earnings, proceeds,
benefits, distributions or other value flowing from or
received due to the ownership of such property interests,
such as may be received in, but not limited to, the follow-
ing forms: wages, compensation, salary, rents, dividends,
distributions, interest, liquidation distributions, sale pro-
ceeds, exchanges of property or money, any other pay-
ments, changes in form or appreciation in value of such
property interests. As used hereinafter in this Agreement,
all such property made subject to this Agreement shall be
referred to as “Separate Property.” . . .
....
5. It is agreed that [Wengert] shall not acquire or
become vested with any interest or right whatsoever in
and to the Separate Property of [McConnell], during his
lifetime or upon his death, in the same manner as if said
contemplated marriage had not occurred. . . .
....
9. [Wengert] agrees that upon the death of [McConnell],
if she shall survive him, she shall receive nothing from
the Separate Property of [McConnell]. [Wengert] does
hereby waive, relinquish and disavow all rights, claims
and interest in law or in equity and all statutory rights and
allowances which she might have or could have in the
Separate Property of [McConnell] which is included in
the estate of [McConnell] or any part thereof, now owned
or after acquired . . . .
10. In the event of a separation, divorce, marital
dissolution or annulment, [McConnell] shall make no
- 327 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
provisions for [Wengert] with respect to the Separate
Property of [McConnell], and [Wengert] does waive any
rights as spouse that she may have in the Separate
Property of [McConnell] as herein defined. However,
[Wengert] does not waive any rights as spouse that she
may have in property other than the Separate Property of
[McConnell] . . . .
(Emphasis supplied.) As set forth above in the premarital
agreement at paragraph 1, the definition of “Separate Property”
does not purport to include wrongful death proceeds. And in
paragraph 10, it states that Wengert “does not waive any rights
as spouse that she may have in property other than the Separate
Property of [McConnell].”
The language of the premarital agreement is unambiguous.
Although Wengert waived rights that she may have had by
virtue of her status as McConnell’s spouse “as if said contem-
plated marriage had not occurred,” the waiver was only and
specifically in regard to those assets defined as McConnell’s
“Separate Property.” The waivers to which Wengert agreed are
unlike the broad waiver in Rickman v. Rickman, No. M2013-
00251-COA-R3-CV, 2013 WL 5656214 at *1 (Tenn. App.
Oct. 15, 2013), of “all other rights which [the parties to the
agreement] may have acquired by reason of their marriage.”
(Emphasis supplied.) Rather, the language of the waivers
here are akin to the narrow language of premarital agree-
ments in the other appellate cases that did not specifically
preclude recovery of wrongful death proceeds by a spouse of
a decedent. See In re Estate of Sorenson-Peters, No. 11-1547,
2012 WL 5355712 at *3 (Iowa App. Oct. 31, 2012) (unpub-
lished opinion listed in table of “Decisions Without Published
Opinions” at 824 N.W.2d 561 (2012)) (no economic rights
of widower limited under prenuptial agreement except “any
interest or right in the decedent’s family’s business”), and In
re Estate of Burns, 31 So. 3d 1227, 1230 (Miss. App. 2009)
(antenuptial agreement applied to property “of which the other
party may die seized and possessed”).
- 328 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
We conclude the premarital agreement does not itself bar
Wengert from recovery of some portion of the wrongful death
settlement proceeds. However, given the circumstances of this
case, the premarital agreement nevertheless has relevance to
determining Wengert’s pecuniary loss. As previously stated,
wrongful death damages include the pecuniary value of the
loss of the decedent’s support, society, comfort, and compan-
ionship. See In re Estate of Panec, 291 Neb. 46, 864 N.W.2d
219 (2015). And as previously determined, any allocation to
Wengert to compensate her for the loss of McConnell’s soci-
ety, love, affection, care, attention, companionship, comfort, or
protection was unreasonable and not in conformance with the
law, because she no longer had a meaningful relationship with
McConnell at the time of his death.
Therefore, Wengert’s pecuniary damages are limited to the
loss of McConnell’s financial support based on what she would
have received from McConnell from the date of his death, had
he lived out a full life expectancy. See Corona de Camargo
v. Schon, 278 Neb. 1045, 776 N.W.2d 1 (2009). The record
does not show that McConnell and Wengert had plans at the
time of his death to return to the shared financial lifestyle they
had in place prior to when Wengert moved out of the marital
home. Wengert pled in the divorce action that her marriage
to McConnell was irretrievably broken, and she admitted in
the present matter that the divorce action would most likely
have ended in a divorce. The premarital agreement reflects
what amount of financial support Wengert could have reason-
ably expected to receive from McConnell from the date of his
death, had he lived out a full life expectancy.
The premarital agreement shows that in the event of the
death of McConnell, or upon the filing of a complaint for sep-
aration or divorce (at McConnell’s option), Wengert would be
entitled to $300,000 of proceeds from a life insurance policy;
Wengert admitted receiving the proceeds from the $300,000
policy, plus a smaller policy. The premarital agreement pro-
vides that in the event of a divorce, McConnell was to pay
Wengert “alimony and support” in the amount of $33,333 per
- 329 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
year, payable in equal monthly installments, for a period of
3 years subject to immediate termination in the event of the
death or remarriage of Wengert. A temporary order from the
divorce action stated that McConnell would receive a credit
for alimony owed under the premarital agreement for any
amount of temporary alimony that he paid. The docket from
that action (received in evidence here) shows that McConnell
paid Wengert $20,000 in temporary alimony by the time
of his death, thus leaving $79,999 in alimony still owed
($99,999 - $20,000) had he lived out a full life expectancy.
The record does not show that McConnell was financially
supporting Wengert at the time of his death beyond fulfilling
his temporary alimony obligation.
We therefore conclude that the county court erred by not
considering the premarital agreement at all and by focusing
instead on the financial lifestyle Wengert had enjoyed during
the marriage rather than on what Wengert could have reason-
ably expected to receive from McConnell had he lived out his
full life expectancy. Given their pending divorce, their sepa-
ration, and the lack of any meaningful relationship between
McConnell and Wengert by the time of McConnell’s death,
consideration must be given to what Wengert could have rea-
sonably expected to receive under those circumstances. On
remand, the county court should reapportion any wrongful
death settlement proceeds, taking these factors into consider-
ation, and should consider only what Wengert could have rea-
sonably expected to receive in terms of financial support from
the time of McConnell’s death going forward, had he lived.
The premarital agreement, while not controlling, is neverthe-
less relevant to this determination.
(b) Allocation to Rajendran as
Daughter of McConnell
The county court recognized that Rajendran lived in Colorado
with her husband and child and that there was no testimony
that she relied on McConnell for “any sort of financial sup-
port.” However, Rajendran received 10 percent of the proceeds
- 330 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
because she did “suffer the loss of gifts and other tokens of
affection common between parent and child.”
Like Wengert, Rajendran can only recover in a wrong-
ful death action for losses sustained after McConnell’s death
due to being deprived of what she would have received from
McConnell from the date of his death, had he lived out a full
life expectancy. See Corona de Camargo v. Schon, 278 Neb.
1045, 776 N.W.2d 1 (2009). On appeal, Rajendran concedes
that she did not rely on McConnell for financial support but
argues she relied on him for “companionship, counseling,
and advice, particularly in her business.” Brief for appellant
at 18. Rajendran argues that “[t]his pecuniary loss is in addi-
tion to [her] ‘loss of gifts and other tokens of affection com-
mon between parent and child.’” Id. at 19 (quoting county
court’s order).
[20-22] There is no exact fiscal formula for determination of
damages recoverable for loss of society, comfort, and compan-
ionship, a loss which is not subject to some strict accounting
method based on monetary contributions, past or prospective.
Brandon v. County of Richardson, 261 Neb. 636, 624 N.W.2d
604 (2001). Because it is impossible to generalize the extent to
which persons enjoy each other’s companionship and society,
the value of such highly personal relationships must be decided
on a case-by-case basis. Id. A parent-child relationship has
intrinsic value, even if that relationship is less than perfect.
See id. (wrongful death action concerning child decedent; once
existence of parent-child relationship is proved, then evidence
about quality and extent of that relationship may be utilized to
determine amount of surviving parent’s damages). See, also, In
re Estate of Brown-Elliott, 27 Neb. Ct. App. 196, 203, 930 N.W.2d
51, 57 (2019) (in dividing wrongful death settlement proceeds,
“time is not the sole measure of a parent-child relationship”
but evidence of whether relationship of parent and minor child
decedent included “‘any semblance of normal parental love
and affection’” was also considered to determine damages sus-
tained by parent).
- 331 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE ESTATE OF McCONNELL
Cite as 28 Neb. Ct. App. 303
The record contained ample evidence regarding Rajendran’s
relationship with McConnell. Rajendran testified about her
“very close” relationship with McConnell up until the time
of his death. Rajendran had owned a company and had
often talked to McConnell about her business. She talked
to him weekly as she was growing her company to deter-
mine how to solve “different challenges.” There was testi-
mony from Wengert, as well as Rajendran and her husband,
which indicated that during McConnell and Wengert’s mar-
riage, McConnell traveled to visit Rajendran (and vice versa)
a fair number of times given their residence in different states.
Rajendran agreed that her involvement with McConnell and
his health increased after he asked her to come to the hospital
in October 2013. She grew “much, much closer” to McConnell
during that time. From that time until his death, Rajendran and
her husband would go with McConnell to his medical appoint-
ments. Eventually, there was agreement that Rajendran would
spend half the week in Omaha with McConnell and half the
week at home in Colorado. They executed that arrangement
“for several months.”
There is no indication that the county court fully considered
the value of the pecuniary loss to Rajendran from the loss
of McConnell’s companionship, counseling, and advice. On
remand, Rajendran is entitled to an amount of the settlement
proceeds under the wrongful death claim in view of evidence
in the record of her loss of McConnell’s companionship, coun-
seling, and advice in addition to her “loss of gifts and other
tokens of affection common between parent and child.”
VI. CONCLUSION
For the foregoing reasons, we reverse the judgment of the
county court and remand the cause on the record already made
with directions to the county court to allocate the settlement
proceeds between the survival claim and the wrongful death
claim as set forth above.
Reversed and remanded with directions.