Hauptman, O'Brien v. Auto-Owners Ins. Co. , 29 Neb. Ct. App. 662 ( 2021 )

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29 Nebraska Appellate Reports
HAUPTMAN, O’BRIEN v. AUTO-OWNERS INS. CO.
Cite as 29 Neb. App. 662Hauptman, O’Brien, Wolf & Lathrop, P.C.,
appellee and cross-appellant, v. Auto-Owners
Insurance Company, appellant
and cross-appellee.
___ N.W.2d ___
Filed March 23, 2021. No. A-20-516.
1. Courts: Appeal and Error. The district court and higher appellate
courts generally review appeals from the county court for error appear-
ing on the record.
2. Judgments: Appeal and Error. 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.
3. ____: ____. In instances when an appellate court is required to review
cases for error appearing on the record, questions of law are nonetheless
reviewed de novo on the record.
4. Statutes: Appeal and Error. Statutory interpretation is a question of
law, which an appellate court resolves independently of the trial court.
5. Attorney Fees: Appeal and Error. The determination of whether the
common fund doctrine applies is a question of law, with respect to
which an appellate court must reach a conclusion independent of the
trial court’s ruling.
6. Courts: Time: Appeal and Error. The district court has discretion to
extend the time for filing a statement of errors.
7. ____: ____: ____. On appeal from the county court, a district court’s
ruling on a motion to extend the time for filing a statement of errors will
be reviewed for an abuse of discretion.
8. Summary Judgment: Appeal and Error. An appellate court will affirm
a lower court’s grant of summary judgment if the pleadings and admit-
ted evidence show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from those facts and
that the moving party is entitled to judgment as a matter of law.
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Cite as 29 Neb. App. 6629. ____: ____. In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against whom the
judgment was granted and gives that party the benefit of all reasonable
inferences deducible from the evidence.
10. Rules of the Supreme Court: Courts: Appeal and Error. The purpose
of Neb. Ct. R. § 6-1452(A)(7) (rev. 2011) is to specifically direct the
attention of the reviewing court to precisely what error was allegedly
committed by the lower court and to advise the nonappealing party of
what is specifically at issue in the appeal.
11. Courts: Appeal and Error. In cases where no statement of errors was
filed and the district court reviewed for plain error, the higher appellate
court likewise reviews for plain error only.
12. ____: ____. In cases where no statement of errors was filed, but the
record showed that the district court considered an issue that was also
assigned to a higher appellate court, the Supreme Court or the Court of
Appeals may consider that issue.
13. Attorney Fees: Contracts. Ordinarily, the right of an attorney to com-
pensation for his or her services depends upon a contract of employment,
express or implied. The common fund doctrine is a well-­recognized
exception to this general rule.
14. Attorney Fees: Equity. The common fund doctrine provides that an
attorney who renders services in recovering or preserving a fund, in
which a number of persons are interested, may in equity be allowed
compensation out of the whole fund only where the attorney’s services
are rendered on behalf of, and are a benefit to, the common fund.
15. Attorney Fees: Subrogation: Records. In a case involving the common
fund doctrine, the record must support a finding that the holder of the
subrogation interest received substantial benefit from the services of the
injured party’s counsel.
16. Subrogation: Words and Phrases. Generally, subrogation is the right
of one, who has paid the obligation which another should have paid, to
be indemnified by the other.
17. Equity: Insurance: Subrogation: Tort-feasors. In the context of insur-
ance, the right to equitable subrogation is generally based on two prem-
ises: (1) A wrongdoer should reimburse an insurer for payments that the
insurer has made to its insured, and (2) an insured should not be allowed
to recover twice from the insured’s insurer and the tort-feasor.
18. ____: ____: ____: ____. Under principles of equity, an insurer is
entitled to subrogation only when the insured has received, or would
receive, a double payment by virtue of an insured’s recovering payment
of all or part of those same damages from the tort-feasor.
19. Equity: Insurance: Subrogation. Where an insurer seeks subrogation
and the insured has not been made whole through his or her recovery,
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HAUPTMAN, O’BRIEN v. AUTO-OWNERS INS. CO.
Cite as 29 Neb. App. 662equitable principles necessitate disallowing the insurer to assert its sub-
rogation right.
20. Constitutional Law: Statutes. Neb. Rev. Stat. § 44-3,128.01 (Reissue
2010) meets the standard of legislative reasonableness and is therefore
constitutional and enforceable.
21. Statutes: Legislature: Intent. There are three types of preemption: (1)
express preemption, (2) field preemption, and (3) conflict preemption.
In all three cases, the touchstone of preemption analysis is legisla-
tive intent.
22. Political Subdivisions: Statutes: Legislature: Intent. Express preemp-
tion occurs when the Legislature has expressly declared in explicit stat­
utory language its intent to preempt local laws.
23. ____: ____: ____: ____. Field preemption and conflict preemption arise
in situations where the Legislature did not explicitly express its intent to
preempt local laws, but such can be inferred from other circumstances.
24. ____: ____: ____: ____. In field preemption, legislative intent to pre-
empt local laws is inferred from a comprehensive scheme of legislation.
25. Political Subdivisions: Statutes. When there is not comprehensive
legislation on a subject, local laws may cover an authorized field of
local laws not occupied by general laws, or may complement a field not
exclusively occupied by the general laws.
26. Statutes: Legislature. The mere fact that the Legislature has enacted a
law addressing a subject does not mean that the subject matter is com-
pletely preempted.
Appeal from the District Court for Douglas County, Peter
C. Bataillon, Judge, on appeal thereto from the County Court
for Douglas County, Craig Q. McDermott, Judge. Judgment
of District Court affirmed.
Michael T. Gibbons and Raymond E. Walden, of Woodke &
Gibbons, P.C., L.L.O., for appellant.
Joshua J. Yambor and Stevie Chesterman, of Hauptman,
O’Brien, Wolf & Lathrop, P.C., for appellee.
Pirtle, Chief Judge, and Moore and Arterburn, Judges.
Moore, Judge.
INTRODUCTION
Auto-Owners Insurance Company (the insurer) appeals
from the order of the district court for Douglas County,
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HAUPTMAN, O’BRIEN v. AUTO-OWNERS INS. CO.
Cite as 29 Neb. App. 662which affirmed the Douglas County Court’s order granting
summary judgment to Hauptman, O’Brien, Wolfe & Lathrop,
P.C. (the law firm). On appeal, the insurer asserts that Neb.
Rev. Stat. § 44-3,128.01 (Reissue 2010) renders the com-
mon fund doctrine inapplicable to the law firm’s recovery in
this case. The law firm has cross-appealed, asserting that the
district court abused its discretion in granting the insurer an
extension of time to file its statement of errors. Finding no
error, we affirm.
BACKGROUND
On April 13, 2017, Charlyn Imes was injured in a motor
vehicle accident caused by the negligence of a third party (the
tort-feasor). Imes was insured by the insurer, and under the
medical payments provision of that policy, the insurer paid
Imes $1,000 as a result of the accident (which was the policy
limit for medical expenses arising from personal injury suf-
fered by Imes during a covered accident). Imes retained the
law firm to pursue her claim against the tort-feasor. After 9
months of work by the law firm, the tort-feasor’s insurance
company settled with Imes for $48,200, an amount less than
the policy limit of the underlying tort-feasor, and Imes released
the tort-feasor.
During the settlement process, the insurer sent a letter to
the tort-feasor’s insurance company, asserting a subrogation
interest in any settlement or judgment involving Imes and the
tort-feasor, to the extent of the $1,000 in benefits paid to Imes
by the insurer, and advising, “We will not honor any requests
for attorney fees unless we expressly request their assistance in
pursuit of our subrogation.” The tort-feasor’s insurer acknowl-
edged receipt of the subrogation interest letter, but a check for
the $1,000 was sent to the law firm rather than to the insurer.
The law firm asked the insurer to reduce its subrogation lien
pursuant to the common fund doctrine and accept only two-
thirds of its $1,000 interest. The insurer advised, however,
that it would not accept less than the full $1,000 as reimburse-
ment of its medical payments coverage on behalf of Imes and
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Cite as 29 Neb. App. 662that the law firm was not to represent the insurer’s subroga-
tion interest.
On July 25, 2018, the law firm filed a complaint in the
county court against the insurer. The law firm alleged that its
work in obtaining a recovery on behalf of Imes, including the
insurer’s subrogation interest in the claim, created a common
fund; that the insurer benefited from the law firm’s work; and
that a fair and customary attorney fee pursuant to Nebraska
common law was one-third of the amount recovered per the
law firm’s fee agreement with Imes. The law firm alleged that
it had made demand upon the insurer for the fair and custom-
ary attorney fee, which the insurer had failed, refused, and
neglected to pay. Accordingly, the law firm sought recovery
against the insurer for $333.33 plus costs.
The insurer answered and filed a counterclaim, seeking
a declaration that it was entitled to the full $1,000 under
§ 44-3,128.01 and the terms of the policy.
The parties filed opposing motions for summary judgment,
which were heard by the county court on January 9, 2020.
The court received various documentary exhibits offered by
the parties, including copies of the insurance policy, certain
correspondence, pleadings, discovery responses, and an affi-
davit from one of the attorneys in the law firm documenting
work done in obtaining the recovery for Imes. In addition to
the information already set forth above, we note the follow-
ing provision in the insurance policy issued by the insurer
to Imes, under the section entitled “Preserve Our Right to
Recover Payments”:
a. If we make a payment under this policy and the
person to or for whom payment is made has a right to
recover damages from another, we will be entitled to that
right. That person shall do everything necessary to trans-
fer that right to us and shall do nothing to prejudice it.
b. The person to or for whom payment is made under
Uninsured Motorist Coverage and/or Underinsured
Motorist Coverage must hold in trust for us his rights
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Cite as 29 Neb. App. 662of recovery against any legally liable person. He must do
all that is proper to secure such rights and must do noth-
ing to prejudice them. He must take any required action in
his name to recover damages and reimburse us out of any
proceeds to the extent of our payment.
(Emphasis in original.)
On March 9, 2020, the county court entered an order find-
ing no genuine issue of material fact. It granted the law firm’s
motion for summary judgment, entered judgment in the law
firm’s favor for $333.33, and denied the insurer’s summary
judgment motion.
On March 17, 2020, the insurer filed a notice of appeal
in the county court, indicating its intent to appeal the county
court’s summary judgment ruling to the district court. The bill
of exceptions from the county court proceeding was filed in the
district court on April 14. On May 7, the insurer filed a state-
ment of errors in the district court, asserting that the county
court erred in granting summary judgment to the law firm and
denying summary judgment to the insurer. Specifically, the
insurer asserted that the county court erred by adopting the law
firm’s position with respect to the common fund doctrine and
failing to recognize the preemptive effect of § 44-3,128.01.
On May 15, 2020, the law firm filed a motion to strike the
insurer’s statement of errors as untimely, because it had not
been filed within 10 days of the filing of the bill of exceptions
in the district court as required by Neb. Ct. R. § 6-1452(A)(7)
(rev. 2011). The insurer subsequently filed a motion for exten-
sion of time to file its statement of errors, seeking to extend the
time for filing to the date on which its statement of errors was
actually filed.
On June 15, 2020, the district court heard the insurer’s
appeal from the county court proceedings and the parties’
motions with respect to the insurer’s statement of errors.
During argument with respect to the parties’ motions, the
insurer’s attorney admitted that during the course of filing his
appeal, he “did not find” the rule with respect to when the
statement of errors should be filed. The district court granted
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HAUPTMAN, O’BRIEN v. AUTO-OWNERS INS. CO.
Cite as 29 Neb. App. 662the insurer’s motion for the extension of time, implicitly deny-
ing the law firm’s motion to strike. Although the bill of excep-
tions was not marked as an exhibit, the court received it from
the county court proceedings, which had been filed in the dis-
trict court, and heard argument with regard to the appeal.
On June 26, 2020, the district court entered an order affirm-
ing the county court’s summary judgment order. The district
court first noted that the only effort by the insurer to obtain
its subrogation claim of $1,000 was to send the tort-feasor’s
insurance carrier a letter demanding that it be paid the $1,000,
while the law firm spent 9 months in efforts that resulted in a
settlement for Imes and which benefited the insurer. The court
determined that § 44-3,128.01 did not prevent the application
of the common fund doctrine to allow the law firm to recover
one-third of the insurer’s $1,000 subrogation interest. The court
observed that § 44-3,128.01 preserved the subrogation rights of
insurers for medical payments and stated that preservation of
the insurer’s subrogation rights was not at issue in this case.
The court stated that § 44-3,128.01 did not in any way limit
the common fund doctrine, which “simply allows equity and
fairness to compensate the attorney for providing a benefit to
the subrogation insurance carrier.”
The insurer subsequently perfected its appeal to this court,
and the law firm cross-appealed.
ASSIGNMENTS OF ERROR
The insurer asserts that the district court (1) erred in affirm-
ing the county court’s order granting summary judgment to the
law firm and denying summary judgment to the insurer and (2)
erred as a matter of law by applying the common fund doc-
trine to the law firm’s retention of a portion of the amount of
medical payments reimbursement and failing to recognize the
preemptive effect of § 44-3,128.01.
On cross-appeal, the law firm asserts that the district court
abused its discretion when it granted the insurer’s motion for
an extension of time to file its statement of errors.
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Cite as 29 Neb. App. 662STANDARD OF REVIEW
[1,2] The district court and higher appellate courts generally
review appeals from the county court for error appearing on
the record. Schaefer Shapiro v. Ball, 305 Neb. 669, 941 N.W.2d
755 (2020). 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. Id.[3-5] However, in instances when an appellate court is
required to review cases for error appearing on the record,
questions of law are nonetheless reviewed de novo on the
record. Panhandle Collections. v. Singh, 28 Neb. App. 924,
949 N.W.2d 554 (2020). Statutory interpretation is a question
of law, which an appellate court resolves independently of the
trial court. Egan v. County of Lancaster, 308 Neb. 48, 952
N.W.2d 664 (2020). The determination of whether the com-
mon fund doctrine applies is a question of law, with respect to
which an appellate court must reach a conclusion independent
of the trial court’s ruling. Simon v. City of Omaha, 267 Neb.
718, 677 N.W.2d 129 (2004).
[6,7] The district court has discretion to extend the time
for filing a statement of errors. Houser v. American Paving
Asphalt, 299 Neb. 1, 907 N.W.2d 16 (2018). On appeal from
the county court, a district court’s ruling on a motion to extend
the time for filing a statement of errors will be reviewed for an
abuse of discretion. Id.[8,9] An appellate court will affirm a lower court’s grant
of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter
of law. Fuelberth v. Heartland Heating & Air Conditioning,
307 Neb. 1002, 951 N.W.2d 758 (2020). In reviewing a sum-
mary judgment, an appellate court views the evidence in the
light most favorable to the party against whom the judgment
was granted and gives that party the benefit of all reasonable
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Cite as 29 Neb. App. 662inferences deducible from the evidence. First State Bank Neb.
v. MP Nexlevel, 307 Neb. 198, 948 N.W.2d 708 (2020).
ANALYSIS
Statement of Errors.
We first address the law firm’s cross-appeal, as resolution
of that issue potentially affects this court’s standard of review.
The law firm asserts that the district court abused its discre-
tion when it granted the insurer’s motion for an extension of
time to file its statement of errors. The law firm acknowledges
that granting such a motion is within the court’s discretion but
argues that the court abused its discretion in this case because
the failure to file a statement of errors within 10 days of filing
the bill of exceptions as required by § 6-1452(A)(7) was due to
the insurer’s negligence. In so arguing, the law firm relies on
Houser v. American Paving Asphalt, supra.[10-12] The purpose of § 6-1452(A)(7) is to specifically
direct the attention of the reviewing court to precisely what
error was allegedly committed by the lower court and to advise
the nonappealing party of what is specifically at issue in the
appeal. State v. Zimmerman, 19 Neb. App. 451, 810 N.W.2d
167 (2012). Ordinarily, in cases where no statement of errors
was filed and the district court reviewed for plain error, the
higher appellate court likewise reviews for plain error only.
TransCanada Keystone Pipeline v. Tanderup, 305 Neb. 493,
941 N.W.2d 145 (2020). In cases where no statement of errors
was filed, but the record showed that the district court consid-
ered an issue that was also assigned to a higher appellate court,
the Supreme Court or the Court of Appeals may consider that
issue. Houser v. American Paving Asphalt, supra. See, also,
State v. Scherbarth, 24 Neb. App. 897, 900 N.W.2d 213 (2017)
(despite failure to file particular statement of errors in district
court, higher appellate court may still consider errors actually
considered by district court).
In Houser v. American Paving Asphalt, 299 Neb. 1, 907
N.W.2d 16 (2018), the Nebraska Supreme Court considered
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Cite as 29 Neb. App. 662a situation where the appellant filed a statement of errors in
the district court, but it did so only after the district court
granted its motion to extend the 10-day period. Before the
district court, the appellant relied on Neb. Ct. R. § 6-1519,
which allows courts to suspend applicable local rules upon
good cause in order to prevent manifest injustice. On further
appeal, the Nebraska Supreme Court determined that it was not
necessary to rely on the suspension rule, because the power to
extend the filing time was within the district court’s discretion.
The Supreme Court observed:
Numerous situations are possible. For example, an appel-
lant may recognize the omission before an opponent or the
court has responded. An opponent may have responded,
but only in a summary fashion. An opponent may have
submitted a full brief relying on the omission. Or the
omission may not have been noted until after the appeal
was submitted to the district court. The specific circum-
stances should drive the court’s exercise of discretion.
And it is important whether the circumstances are rooted
in the moving party’s own neglect.
Houser v. American Paving Asphalt, 299 Neb. at 19, 907
N.W.2d at 29.
The Supreme Court in Houser determined that the district
court abused its discretion in granting the motion for exten-
sion of filing time under the circumstances present in that case,
because the appellant had not provided an explanation for its
failure to file a timely statement of errors that was not rooted
in its neglect. The bill of exceptions there was filed on January
7, 2016. On February 1, the district court notified the parties
of the hearing date and briefing deadlines. The appellant did
not inquire until March 2 whether the bill of exceptions had
been filed, and it filed a brief on March 21. However, it did
not file its statement of errors or seek a time extension until
after the opposing party had filed its brief. The Supreme Court
found that the district court abused its discretion in granting
the motion for an extension and that review by the district
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Cite as 29 Neb. App. 662court should have been limited to plain error, and it accord-
ingly limited its own review to plain error.
Although the insurer in this case admitted that it simply
did not find the rule requiring filing of the statement of errors
within 10 days of the filing of the bill of exceptions, the cir-
cumstances are different from those presented in Houser. The
single issue before the county court in the summary judgment
proceedings was whether § 44-3,128.01 prevented the law
firm from recovering one-third of the insurer’s subrogation
interest pursuant to the common fund doctrine. The county
court granted summary judgment in the law firm’s favor, and
the insurer appealed to the district court. The bill of excep-
tions was filed in the district court on April 14, 2020, and the
statement of errors was filed on May 7 by the insurer. The
insurer filed its motion for extension of time on May 19, after
the law firm filed its motion to strike the statement of errors
on May 15. However, there is nothing in the record on appeal
to indicate that the law firm filed anything prior to when
the statement of errors was filed, relying on an understand-
ing of the issues on appeal as anything other than what was
expressed in the insurer’s statement of errors. We note that in
its motion for extension of time, the insurer references certain
limitations with respect to “In-Person Access to the Douglas
County Courthouse because of the COVID-19 pandemic” and
states that because the bill of exceptions was not available
“through the Nebraska Justice system,” the statement of errors
was filed “without reference to the bill of exceptions so that
the appeal could move along with hearing of the matter com-
ing up.” Of course, this does not explain the insurer’s failure
to locate the relevant court rule with respect to the timing of
the filing of the statement of errors. Regardless, given the lim-
ited nature of the issue on appeal and no evidence that the law
firm relied on some other understanding of the issues than that
presented in the statement of errors that was filed, we cannot
say that the district court abused its discretion in granting
the time extension under the circumstances in this case. And,
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Cite as 29 Neb. App. 662clearly, the district court did consider the issue presented by
the statement of errors. Therefore, we have considered the
errors assigned on appeal to this court and have reviewed
them according to the standards set forth in the standard of
review section above.
Summary Judgment.
The question presented by the insurer’s appeal is whether
the medical payment reimbursement statute, § 44-3,128.01,
abrogates, preempts, or abolishes the common fund doctrine.
The insurer argues that an insurer who makes medical pay-
ments under an automobile liability policy is entitled to full
reimbursement upon settlement of the type involved in this
case, without reduction for the attorney fees of the insured’s
lawyers. In other words, it argues that § 44-3,128.01 pre-
empts the equitable common fund doctrine inside of the field
staked out by the statute and thus prevents the law firm from
recovering an attorney fee from the insurer’s $1,000 subroga-
tion interest.
[13-15] Ordinarily, the right of an attorney to compensation
for his or her services depends upon a contract of employment,
express or implied. In re Guardianship & Conservatorship of
Tucker, 9 Neb. App. 17, 606 N.W.2d 868 (2000). The common
fund doctrine is a well-recognized exception to this general
rule. In re Estate of Stull, 8 Neb. App. 301, 593 N.W.2d 18(1999). The common fund doctrine provides that an attorney
who renders services in recovering or preserving a fund, in
which a number of persons are interested, may in equity be
allowed compensation out of the whole fund only where the
attorney’s services are rendered on behalf of, and are a ben-
efit to, the common fund. See Walentine, O’Toole v. Midwest
Neurosurgery, 285 Neb. 80, 825 N.W.2d 425 (2013). See,
also, Summerville v. North Platte Valley Weather Control Dist.,
171 Neb. 695, 107 N.W.2d 425 (1961) (where one has gone
into court of equity and, taking risk of litigation on oneself,
has created or preserved or protected fund in which others are
entitled to share, such others will be required to contribute
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Cite as 29 Neb. App. 662their share to reasonable costs and expenses of litigation,
including reasonable fees to litigant’s counsel). In a case
involving the common fund doctrine, the record must support
a finding that the holder of the subrogation interest received
substantial benefit from the services of the injured party’s
counsel. Hauptman, O’Brien v. Milwaukee Guardian, 7 Neb.
App. 60, 578 N.W.2d 83 (1998). The present case involves a
subrogation interest, and both the Nebraska Supreme Court
and this court have determined that the common fund doc-
trine generally applies in situations presenting a subrogation
interest. See, e.g., In re Guardianship & Conservatorship
of Bloomquist, 246 Neb. 711, 523 N.W.2d 352 (1994); In re
Estate of Stull, supra.[16-18] Generally, subrogation is the right of one, who has
paid the obligation which another should have paid, to be
indemnified by the other. SFI Ltd. Partnership 8 v. Carroll,
288 Neb. 698, 851 N.W.2d 82 (2014). In the context of insur-
ance, the right to equitable subrogation is generally based on
two premises: (1) A wrongdoer should reimburse an insurer
for payments that the insurer has made to its insured, and
(2) an insured should not be allowed to recover twice from
the insured’s insurer and the tort-feasor. Id. Under principles
of equity, an insurer is entitled to subrogation only when the
insured has received, or would receive, a double payment by
virtue of an insured’s recovering payment of all or part of those
same damages from the tort-feasor. Blue Cross and Blue Shield
v. Dailey, 268 Neb. 733, 687 N.W.2d 689 (2004).
[19,20] Where an insurer seeks subrogation and the insured
has not been made whole through his or her recovery, equitable
principles necessitate disallowing the insurer to assert its sub-
rogation right. Id. However, § 44-3,128.01 permits automobile
liability policies to provide for pro rata subrogation in the sit­
uation where the insured did not fully recover his or her loss.
Section 44-3,128.01 states:
A provision in an automobile liability policy or
endorsement which is effective in this state and which
grants the insurer the right of subrogation for payment
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Cite as 29 Neb. App. 662of benefits under the medical payments coverage por-
tion of the policy shall be valid and enforceable, except
that if the claimant receives less than actual economic
loss from all parties liable for the bodily injuries, subro-
gation of medical payments shall be allowed in the same
proportion that the medical expenses bear to the total
economic loss. For purposes of this section, it shall be
conclusively presumed that any settlement or judgment
which is less than the policy limits of any applicable
liability insurance coverage constitutes complete recovery
of actual economic loss.
The Nebraska Supreme Court has previously found that
§ 44-3,128.01 meets the standard of legislative reasonableness
and is therefore constitutional and enforceable. Ploen v. Union
Ins. Co., 253 Neb. 867, 573 N.W.2d 436 (1998).
In this case, the insurer argues that the district court lim-
ited explanation of its decision in favor of the law firm to
the positive attributes of the common fund doctrine. The
insurer argues that while the district court acknowledged the
insurer’s assertion that the common fund doctrine is incon-
sistent with § 44-3,128.01, it failed to address the insurer’s
argument that the statute preempts the common fund doctrine.
The insurer argues that the district court essentially declared
without supporting reasoning that the doctrine survives the
statute and moved to the conclusion of affirming the county
court’s ruling.
[21-23] There are three types of preemption: (1) express
preemption, (2) field preemption, and (3) conflict preemp-
tion. In all three cases, the touchstone of preemption analysis
is legislative intent. Malone v. City of Omaha, 294 Neb. 516,
883 N.W.2d 320 (2016). Express preemption occurs when the
Legislature has expressly declared in explicit statutory lan-
guage its intent to preempt local laws. Id. Field preemption and
conflict preemption arise in situations where the Legislature
did not explicitly express its intent to preempt local laws,
but such can be inferred from other circumstances. Id. The
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HAUPTMAN, O’BRIEN v. AUTO-OWNERS INS. CO.
Cite as 29 Neb. App. 662insurer argues that field preemption is the type of preemption
at issue here.
[24-26] In field preemption, legislative intent to preempt
local laws is inferred from a comprehensive scheme of leg-
islation. Id. When there is not comprehensive legislation on
a subject, local laws may cover an authorized field of local
laws not occupied by general laws, or may complement a
field not exclusively occupied by the general laws. Id. The
mere fact that the Legislature has enacted a law addressing
a subject does not mean that the subject matter is completely
preempted. Id.The insurer argues that § 44-3,128.01 has “fully occupied
the narrow field of enforcement of automobile medical pay-
ments subrogation clauses in spite of otherwise applicable
equitable principles” and that “the statute’s requirement of
enforcement of subrogation clauses providing for full reim-
bursement conflicts with the equity-based common fund rule,
as well as the equitable rule disallowing any reimbursement
until the insured has been made whole.” Brief for appellant
at 15. The insurer argues further that the common fund doc-
trine cannot be applied in this case “without also disregarding
the statutory directive to enforce [the insurer’s] endorsement
clause requiring full reimbursement of its subrogated medical
expenses payments under the admitted circumstances of this
case.” Id. We disagree.
The issue here is not the insurer’s right to recover its sub-
rogated medical payments under the circumstances of this
case. That right is clearly guaranteed by not only the insurance
policy in question, but also by § 44-3,128.01. What is at issue
is the law firm’s entitlement to recover a reasonable attorney
fee for its efforts in securing that subrogated medical payment.
This is not a “field” addressed by the statute, which states that
an insurer is entitled to full recovery of its medical payments
when policy limits have not been received (as opposed to a
pro rata share when they have and not all economic losses
have been recovered). The law firm asserts that neither the text
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HAUPTMAN, O’BRIEN v. AUTO-OWNERS INS. CO.
Cite as 29 Neb. App. 662of the statute nor its legislative history mentions the common
fund doctrine and that it accordingly cannot stand as a basis
for expanding the subrogation rights of insurers. We agree that
the statute is silent with respect to attorney fees, and there is
nothing in Nebraska case law to indicate that the statute has
preempted the common fund doctrine. There is no ambiguity
in the statute. It simply does not address the issue of attorney
fees. See In re Estate of Adelung, 306 Neb. 646, 947 N.W.2d
269 (2020) (absent ambiguity, court does not consult legisla-
tive history; appellate court will not resort to interpretation
to ascertain meaning of statutory words that are plain, direct,
and unambiguous). The insurer does not argue that it did not
receive a substantial benefit from the services of the law firm
in securing its subrogation interest. Finding no error, we affirm
the order of the district court, which affirmed the county
court’s grant of summary judgment in the law firm’s favor.
CONCLUSION
We affirm the district court’s order affirming the county
court’s grant of summary judgment in the law firm’s favor.
Affirmed.