In re Estate of Panec

Decisions of the Nebraska Court of Appeals
IN RE ESTATE OF PANEC 497
Cite as 22 Neb. Ct. App. 497
In re Estate of Ellen M. Panec, deceased.
R ebecca Griffin, appellant, v. William J. Panec,
P ersonal R epresentative of the Estate of
Ellen M. Panec, deceased, appellee.
___ N.W.2d ___
Filed November 4, 2014. No. A-13-777.
1. Decedents’ Estates: Appeal and Error. 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.
2. Judgments: Appeal and Error. When reviewing a judgment for errors appearing
on the record, an appellate court’s inquiry is whether the decision conforms to
the law, is supported by competent evidence, and is neither arbitrary, capricious,
nor unreasonable.
3. ____: ____. When reviewing questions of law, an appellate court has an obli-
gation to review the questions independently of the conclusion reached by the
trial court.
4. Actions: Decedents’ Estates: Abatement, Survival, and Revival: Wrongful
Death. In Nebraska, there are two types of causes of action which vest in and can
be brought only by the personal representative of a decedent’s estate—a survival
action and a wrongful death action.
5. Actions: Decedents’ Estates: Abatement, Survival, and Revival: Words and
Phrases. Nebraska’s statutory provisions allow a cause of action, referred to as a
“survival action,” held by a person who is fatally injured to be prosecuted by the
personal representative of the decedent.
6. Actions: Decedents’ Estates: Abatement, Survival, and Revival. A survival
action is not a new cause of action but is a continuation in the deceased’s per-
sonal representative of the cause of action which accrued to the deceased under
the common law.
7. Wrongful Death: Damages. Wrongful death recovery is limited to the loss suf-
fered by a decedent’s next of kin, and it provides no basis upon which to recover
a decedent’s own damages.
Appeal from the County Court for Jefferson County: Steven
B. Timm, Judge. Affirmed.
Eric B. Brown, of Atwood, Holsten, Brown & Deaver Law
Firm, P.C., L.L.O., for appellant.
Vincent M. Powers and Elizabeth Govaerts, of Vincent M.
Powers & Associates, for appellee.
Moore, Chief Judge, and Irwin and Pirtle, Judges.
Decisions of the Nebraska Court of Appeals
498 22 NEBRASKA APPELLATE REPORTS
Pirtle, Judge.
INTRODUCTION
Rebecca Griffin (Rebecca) appeals from the August 7, 2013,
order of the county court for Jefferson County, distributing
settlement proceeds of $616,000 between herself and William
J. Panec, the surviving spouse, personal representative, and
appellee herein. For the reasons that follow, we affirm.
BACKGROUND
Ellen M. Panec and her husband, William, were involved
in a serious automobile collision in Lincoln, Nebraska, on
September 19, 2011. Both sustained injuries, and Ellen was
hospitalized for 54⁄ 7 weeks following the collision before she
passed away. William eventually recovered from his injuries.
The parties stipulated that the medical expenses incurred for
the care of Ellen after the collision were fair and reasonably
necessary. The total cost for her medical care was approxi-
mately $215,000. The parties further stipulated that Ellen’s
injuries ultimately caused her death on October 28 and that the
reasonable funeral and burial costs were $21,341.84.
Prior to Ellen’s death, on October 3, 2011, a lawsuit was
filed in the district court for Lancaster County on Ellen’s
behalf for claims arising from Ellen’s personal injuries result-
ing from the collision. A companion complaint was also filed
in the district court for Lancaster County on William’s behalf
for the injuries he suffered as a result of the same collision.
On August 22, 2012, an amended complaint was filed in the
district court for Lancaster County on behalf of Ellen’s estate.
This amended complaint alleged that Ellen’s injuries were
fatal, but that prior to her death, she had required hospitaliza-
tion, and that she had “suffered pain, suffering, inconvenience,
disability and incurred healthcare expenses.”
Prior to the collision, Ellen had been diagnosed with “stage
4” lung cancer, as well as brain cancer and esophageal cancer.
At the time of the collision, Ellen was 68 years old and she and
William had been married for almost 7 years. It was a second
marriage for both Ellen and William. Ellen had one daughter,
Rebecca, from her prior marriage. Ellen was not working at
Decisions of the Nebraska Court of Appeals
IN RE ESTATE OF PANEC 499
Cite as 22 Neb. Ct. App. 497
the time of the collision and had retired from employment
years earlier.
The parties further stipulated that between Ellen, William,
and Rebecca, it was likely that Ellen had the shortest life
expectancy at the time of the collision. The parties also stip-
ulated that Ellen was of sound mind when she executed
her last will and testament, as well as a postnuptial agree-
ment with William, both dated November 12, 2010. The par-
ties further stipulated that the documents accurately reflected
Ellen’s wishes.
The will generally gave William all of Ellen’s household
goods and furniture and any vehicles she might own. It gave
him a life estate in certain real estate. The will further pro-
vided, “All of the rest, residue and remainder of my property
of every nature and kind and wheresoever situated I give and
devise to my daughter, [Rebecca].”
Ellen’s estate was opened on November 10, 2011. The par-
ties stipulated that several documents would be received into
evidence without objection. These documents included Ellen’s
will, the postnuptial agreement, probate documents, pleadings
from the district court actions related to the collision, medi-
cal bills, and correspondence with legal counsel. The parties
stipulated to the value of Ellen’s medical bills and liens, as
well as the value of the settlements with the tort-feasor and
the Panecs’ insurance company. The parties stipulated that
the settlement with the tort-feasor responsible for the cause
of the automobile accident was valued at $100,000. The par-
ties also stipulated that a settlement was reached with the
Panecs’ insurance company for $516,000 for underinsured
motorist coverage.
The county court considered the parties’ stipulations and
the testimony of William, as Ellen’s husband and personal
representative, and Rebecca. The court found that William suf-
fered the greatest loss, as compared to Ellen’s adult daughter,
Rebecca. The court ordered the settlement funds to be distrib-
uted as follows:
1. Reasonable attorney fees to [William’s attorney] in
the sum of $154,000.00.
Decisions of the Nebraska Court of Appeals
500 22 NEBRASKA APPELLATE REPORTS
2. A Medicare lien in the sum of $6,415.20.
3. A Madonna Rehabilitation lien in the sum of
$11,101.51.
4. Promed Services lien in the sum of $5,738.75.
5. $63,873.45 to Rebecca . . . (10% + $20,000.00; as
suggested in [William’s] reply brief).
6. Balance of proceeds to William . . . .
ASSIGNMENTS OF ERROR
Rebecca asserts the county court erred in (1) holding it did
not have jurisdiction to allocate the damages other than as
provided by Neb. Rev. Stat. § 30-810 (Reissue 2008), (2) fail-
ing to allocate any of the approximately $616,000 settlement
to Ellen’s estate for its personal injury survivor claim, and (3)
determining the medical bills were not relevant to any personal
injury claim.
STANDARD OF REVIEW
[1-3] 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 Conservatorship
of Hanson, 268 Neb. 200, 682 N.W.2d 207 (2004). When
reviewing a judgment for errors appearing on the record, an
appellate court’s inquiry is whether the decision conforms to
the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable. Id. When reviewing
questions of law, an appellate court has an obligation to review
the questions independently of the conclusion reached by the
trial court. Id.
ANALYSIS
Distribution of Settlement Under
Nebraska Revised Statutes.
In the “Amended Petition for Distribution of Settlement,”
William, as personal representative, requested that the court
enter an order approving a distribution allotting $20,000 to
Ellen’s estate. Rebecca would be entitled to those funds as
Ellen devised “all of the rest, residue and remainder” of her
property of every nature to Rebecca, with the exception of
Decisions of the Nebraska Court of Appeals
IN RE ESTATE OF PANEC 501
Cite as 22 Neb. Ct. App. 497
the personal property awarded to William and his life estate
in the residence he shared with Ellen. The “Amended Petition
for Approval of Settlement” stated that the Panecs’ insurance
company “has offered the sum of $515,000.00 to settle said
Claim. $495,000.00 for wrongful death and $20,000.00 for the
pain and suffering from September 19, 2011 to [Ellen’s] death
on October 28, 2011.”
In its order, issued August 7, 2013, the county court for
Jefferson County determined how the settlement proceeds
would be divided. The court found it did not have jurisdiction
to allocate the damages between William and Rebecca, other
than as provided by § 30-810.
Applying § 30-810, the court found that after payment of
reasonable attorney fees and a negotiated reduction in medi-
cal bills, the funds should be split by allocating $63,873.45 to
Rebecca and the remainder to William. The court determined
that Rebecca was entitled to 10 percent of the settlement plus
the $20,000 allocated by the Panecs’ insurance company for
Ellen’s predeath pain and suffering. The court then awarded
the balance of the proceeds to William. The court reasoned
that as Ellen’s husband, William suffered a greater pecuniary
loss of counsel and companionship than Ellen’s adult daugh-
ter, Rebecca. Rebecca asserted at the hearing that she should
receive a greater portion of the wrongful death settlement,
because her loss was greater. Though the court’s reasoning is
supported by the evidence, Rebecca did not raise this issue
on appeal.
Instead, Rebecca asserts the county court erred in “failing
to allocate and distribute any of the $615,000 [sic] settlement
recovery to the Estate for its Neb. Rev. Stat. § 25-1401 per-
sonal injury survivor claim.” Brief for appellant at 12. Thus,
she asserts the court erred in determining that it could not
distribute the settlement funds according to Neb. Rev. Stat.
§ 25-1401 (Reissue 2008). Section 25-1401 recognizes that a
decedent’s predeath pain and suffering survive death as a sepa-
rate cause of action which is a claim that inures to the benefit
of the estate. See Corona de Camargo v. Schon, 278 Neb.
1045, 776 N.W.2d 1 (2009). Rebecca cites Reiser v. Coburn,
255 Neb. 655, 587 N.W.2d 336 (1998), in support of her
Decisions of the Nebraska Court of Appeals
502 22 NEBRASKA APPELLATE REPORTS
argument that damages should have been recovered on behalf
of Ellen’s estate for Ellen’s predeath damages.
[4-6] In Nebraska, there are two types of causes of action
which vest in and can be brought only by the personal repre-
sentative of a decedent’s estate—a survival action and a wrong-
ful death action. In re Diers, 320 B.R. 166 (D. Neb. 2004).
See, also, §§ 25-1401 and 30-810; Neb. Rev. Stat. §§ 25-322
and 30-809 (Reissue 2008). The statutory provisions allow a
cause of action, referred to as a “‘survival action,’” held by a
person who is fatally injured to be prosecuted by the personal
representative of the decedent. In re Diers, 320 B.R. at 168. A
survival action is not a new cause of action but is a continu-
ation in the deceased’s personal representative of the cause of
action which accrued to the deceased under the common law.
Id. The purpose of the survival action is to recover the loss to
the decedent’s estate resulting from the tort. Id.
[7] In contrast, §§ 30-809 and 30-810 provide a “wrongful
death” cause of action, not to the decedent and the decedent’s
estate but to the personal representative of the decedent for the
exclusive benefit of the widow or widower and next of kin.
Wrongful death recovery is limited to the loss suffered by a
decedent’s next of kin, and it provides no basis upon which
to recover a decedent’s own damages. Corona de Camargo
v. Schon, supra. The losses arising from the decedent’s death
include loss of future income and maintenance, and for pres-
ent and future loss of society and companionship. § 30-809;
Miers v. Central Mine Equipment Co., 604 F. Supp. 502 (D.
Neb. 1985).
In this case, William, the personal representative of Ellen’s
estate, negotiated a settlement with the sole purpose of maxi-
mizing the net recovery for those benefiting from the settle-
ment, without regard for each potential individual element of
damages that might or might not be before a jury if the case
were tried.
The county court found that once the funds were received,
it was obligated to apply § 30-810, because a jury’s potential
estimation of damages was merely hypothetical. The court
noted that the complaint did not set forth separate causes
Decisions of the Nebraska Court of Appeals
IN RE ESTATE OF PANEC 503
Cite as 22 Neb. Ct. App. 497
of action for predeath and postdeath damages, but simply
requested a judgment “‘in an amount which will fairly and
justly compensate [Ellen] for [her] injuries under the laws of
the State of Nebraska.’”
Rebecca requested that the funds be distributed other than
as provided by § 30-810, but did not provide any authority to
support such a disposition. The request was based upon the
case’s hypothetically being tried before a jury as a common-
law tort action, rather than as a probate matter. In this scenario,
the jury would have to find that damages were owed and
would have to separately determine the amount which would
be allocated to Ellen’s estate and the amount which would be
due to Ellen’s widower and next of kin. However, this case
was not before a jury, and the amount of the settlement was
determined prior to the issue’s being presented to the county
court. Thus, the county court was simply tasked with distrib-
uting the settlement proceeds. The court acknowledged that
it seemed likely that the estate would have prevailed had the
matter gone to trial, but stated that it was less certain that the
jury’s estimate of damages would have equaled the amount of
the generous settlement.
Reiser v. Coburn, 255 Neb. 655, 587 N.W.2d 336 (1998),
and its progeny recognize that two causes of action may be
joined: one for wrongful death and one for predeath pain and
suffering and medical and funeral expenses. Though the court
applied § 30-810, it is clear from our review of the record
that the causes of action were joined. The order provided
for wrongful death and medical expenses, and an additional
$20,000 distribution to Rebecca, beyond the 10 percent the
court allotted for the wrongful death claim. Though the words
“pain and suffering” are not explicitly used, $20,000 was the
amount suggested by William and the amount the Panecs’
insurance company allotted for the pain and suffering portion
of the $616,000 settlement.
After reviewing the county court’s decision, we find the
court’s distribution of the proceeds from the settlement con-
forms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
Decisions of the Nebraska Court of Appeals
504 22 NEBRASKA APPELLATE REPORTS
Medical Bills.
Rebecca asserts the county court erred in “analyzing that the
$215,000 in medical bills were implicitly not relevant to any
personal injury claim because they were paid by insurance or
written off and that both parties would be responsible for the
medical bills.” She argues that the Nebraska statutes provide
that the measure of damages for medical expenses in personal
injury claims shall be the private party rate, not the discounted
amount, citing Neb. Rev. Stat. § 52-401 (Reissue 2010).
In its order, the county court noted that the estate would
be liable for medical expenses pursuant to Neb. Rev. Stat.
§ 30-2486 (Reissue 2008) and that William would also be
obligated because spouses are jointly responsible for medi-
cal expenses. See Choat v. Choat, 218 Neb. 875, 359 N.W.2d
810 (1984). The court’s order did not deduct the outstanding
medical expenses from either party’s share of the settlement,
nor add to either party’s share of the settlement for the cost
of medical expenses already paid from the settlement pro-
ceeds. Essentially, the court found that both parties would be
responsible for the outstanding balances, but that there was
no need to split the expenses or assign them as damages,
because they were already accounted for. Therefore, the court
did not include a provision entitling either party to medi-
cal expenses.
Rebecca asserts on appeal she is entitled to the retail value
of Ellen’s medical bills. She cites the “‘collateral source
rule,’” which allows a party who has been wholly or partially
indemnified for a loss by insurance to recover for the full
amount of damages. Brief for appellant at 16, citing Mahoney
v. Nebraska Methodist Hosp., 251 Neb. 841, 560 N.W.2d 451
(1997). While this rule would have certainly factored into the
presentation of the claim on its merits to a jury, the argument
has no bearing on this particular distribution. This action was
not aimed at proving the cost of medical expenses as dam-
ages; rather, it was for the distribution of settlement funds.
The parties had already recovered the maximum value of the
insurance proceeds, and the parties stipulated to the cost of
medical services already paid and to the remaining amounts
owed. The parties also stipulated that the majority of the bills
Decisions of the Nebraska Court of Appeals
STATE v. WATTS 505
Cite as 22 Neb. Ct. App. 505
had already been paid to the appropriate providers and that
the remaining balances were to be paid directly to the medi-
cal providers and to Medicare as subrogor. We find Rebecca’s
assignment of error with regard to her entitlement for medical
expenses is without merit.
CONCLUSION
We find the county court did not err in finding it had juris-
diction to distribute the settlement proceeds only according to
§ 30-810 and in allocating the settlement proceeds accordingly.
We also find the county court did not err in finding the par-
ties were not entitled to recover the value of medical expenses
incurred for Ellen’s care and paid directly to the medical pro-
viders out of the settlement proceeds.
Affirmed.
State of Nebraska, appellee, v.
Elijah D. Watts, appellant.
___ N.W.2d ___
Filed November 4, 2014. Nos. A-13-1105, A-13-1136.
1. Statutes: Appeal and Error. Statutory interpretation is a matter of law in con-
nection with which an appellate court has an obligation to reach an independent,
correct conclusion irrespective of the determination made by the trial court.
2. Rules of the Supreme Court: Appeal and Error. Interpretation of a court rule is
a matter of law in connection with which an appellate court has an obligation to
reach an independent, correct conclusion irrespective of the determination made
by the trial court.
3. Prior Convictions: Sentences. To constitute a basis for enhancement of punish-
ment on a charge of a second or subsequent offense, the prior conviction relied
upon for enhancement must be a final conviction.
4. Prior Convictions: Sentences: Appeal and Error. A prior conviction that is
pending on appeal will not support enhanced penalties because it has not yet
become final and may be reversed by the appellate court.
5. Sentences: Prior Convictions: Drunk Driving: Time. The finality of a prior
driving under the influence conviction offered for purposes of enhancement is
determined as of the date the subsequent offense was committed.
Appeal in No. A-13-1105 from the District Court for
Lancaster County, Paul D. Merritt, Jr., Judge, on appeal