In re Estate of Evertson

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04/07/2016 12:10 PM CDT
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Decisions of the Nebraska Court of A ppeals
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IN RE ESTATE OF EVERTSON
Cite as 23 Neb. Ct. App. 734
In re Estate of Bruce F. Evertson, deceased.
Travelers Indemnity Company, appellant, v.
Julie A. Wamsley, personal representative
of the Estate of Bruce F. Evertson,
deceased, appellee.
___ N.W.2d ___
Filed March 8, 2016. No. A-15-104.
1. Workers’ Compensation: Judgments: Appeal and Error. Distribution
of the proceeds of a judgment or settlement under Neb. Rev. Stat.
§ 48-118.04 (Reissue 2010) is left to the trial court’s discretion and is
reviewed by an appellate court for an abuse of that discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion requires
that the reasons or rulings of a trial judge be clearly untenable, unfairly
depriving a litigant of a substantial right and a just result.
3. Statutes. To the extent there is conflict between two statutes on the
same subject, the specific statute controls over the general statute.
4. Courts: Appeal and Error. The authority to dismiss an appeal con-
ferred by Neb. Rev. Stat. § 30-1601(3) (Cum. Supp. 2014) is permissive
or discretionary in nature.
Appeal from the County Court for Morrill County: Paul G.
Wess, Judge. Affirmed.
Gregory W. Plank, of Ray Lego & Associates, for appellant.
R. Kevin O’Donnell, of Law Office of R. Kevin O’Donnell,
P.C., L.L.O., for appellee.
Moore, Chief Judge, and Irwin and Inbody, Judges.
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IN RE ESTATE OF EVERTSON
Cite as 23 Neb. Ct. App. 734
Inbody, Judge.
INTRODUCTION
Travelers Indemnity Company (Travelers) appeals the order
of the Morrill County Court finding that Travelers was to
receive no proceeds in a fair and equitable distribution of third-
party settlement proceeds.
STATEMENT OF FACTS
On February 4, 2014, Bruce F. Evertson, chief executive
officer of Evertson Well Service, Inc., was killed after being
involved in a motor vehicle accident with a tractor-trailer unit
driven by Dennis Dobrinski. Evertson was killed while acting
in the course and scope of his employment. Travelers provided
insurance for Evertson Well Service pursuant to the Nebraska
Workers’ Compensation Act. Travelers is paying benefits to
Darla Evertson (Darla), Evertson’s surviving spouse, of $728
per week, which benefits will be paid until she dies or remar-
ries. If Darla remarries, Travelers will pay her a 2-year lump
sum settlement. According to the life expect­ancy table found
in the “Nebraska Workers[’] Compensation Rules of Procedure
Addendum 2,” Darla has a life expectancy of 27.6 years.
The Estate of Bruce F. Evertson (Estate) resolved the wrong-
ful death claims with Dobrinski’s insurance carrier, Employers
Mutual Casualty (EMC). Travelers consented to the settlement.
EMC paid $500,000 from the policy to the Estate, of which
$125,000 was allocated to Evertson’s adult son, $125,000 was
allocated to Evertson’s adult daughter, and $250,000 was allo-
cated to Darla.
On August 4, 2014, Travelers filed a statement of claim
asserting a workers’ compensation lien and future credits. A
hearing was held on November 17 to determine a fair and equi-
table division of the $250,000 of settlement proceeds between
Travelers and Darla and the amount, if any, of Travelers’ future
credit. See Neb. Rev. Stat § 48-118.04 (Reissue 2010).
At the hearing, Travelers claimed a subrogation interest
in the entire $250,000 allocated to Darla pursuant to Neb.
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IN RE ESTATE OF EVERTSON
Cite as 23 Neb. Ct. App. 734
Rev. Stat. § 48-118 (Reissue 2010) of the Nebraska Workers’
Compensation Act. Six exhibits were received into evidence
at the hearing: exhibit 1, the settlement agreement reached,
inter alia, between EMC, Dobrinski, Darla, Evertson’s son,
and Evertson’s daughter; exhibit 2, Darla’s affidavit with
Evertson’s obituary attached; exhibit 3, an affidavit by the
chief financial officer of Evertson Operating Company, Inc.,
the insured administrative company, setting forth premiums
paid by Evertson Operating Company for workers’ compen-
sation insurance between May 1, 2009, and May 1, 2015;
exhibit 4, an affidavit setting forth that the attorney fees,
expenses, and court costs billed by Darla’s attorneys in this
case were $42,583.31; exhibit 5, a negotiation letter; and
exhibit 6, the affidavit of the workers’ compensation adjuster
with attachments. The evidence showed that EMC had paid
$26,208 in indemnity payments to Darla and $10,000 in
funeral expenses. In addition to the EMC settlement, the
parties stipulated that the agreement referenced an underin-
sured motorist (UIM) policy for Evertson Well Service with
a policy limit of $1 million. Travelers requested that a second
supplemental transcript be filed with this court which showed
that on March 18, 2015, the county court entered orders
approving the settlement of the UIM claim and approving
the distribution of $500,000 of UIM settlement proceeds.
However, these were obviously not considered by the county
court at the hearing on November 17, 2014, and we likewise
do not consider them on appeal. An appellate court reviews
a case upon the evidence actually received and considered
in the trial court. See In re Estate of Baer, 273 Neb. 969,
735 N.W.2d 394 (2007) (reason for rule presuming that, in
absence of record of evidence considered by trial court, trial
court’s order was supported by evidence and was correct is to
ensure that appellate court reviews case upon evidence actu-
ally received and considered in trial court). See, also, Lincoln
Lumber Co. v. Fowler, 248 Neb. 221, 533 N.W.2d 898 (1995)
(before appellate court can consider issue of fact, evidence
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IN RE ESTATE OF EVERTSON
Cite as 23 Neb. Ct. App. 734
must have been offered at trial and embodied in bill of excep-
tions filed with appellate court). Accord Kellner v. Kellner, 8
Neb. Ct. App. 316, 593 N.W.2d 1 (1999).
On December 29, 2014, the county court filed an order find-
ing that a “fair and equitable” distribution of the settlement
proceeds was for Darla to receive $207,416.69; for the Estate
attorneys to receive $42,583.31 for their fees; and for Travelers
to receive nothing. The county court set forth in its order that
it considered factors contained in Evertson’s obituary, includ-
ing his 25-year marriage to Darla; their enjoyment of travel,
family time, and fishing trips to Canada and Alaska; and their
purchase of a “‘dream home’” in California in 2013. The court
also considered factors such as there was no evidence that
Travelers helped finance the settlement between EMC and the
Estate; there was evidence Travelers had charged and received
the necessary premiums to provide workers’ compensation
coverage for Evertson Operating Company; and under all the
circumstances, Travelers’ financial risk was minimal and insur-
ance companies are in the business of assuming risk.
On January 23, 2015, Travelers timely appealed that deci-
sion to this court. On February 2, the county court held that
no supersedeas bond was required by Travelers in pursuing
its appeal. Despite the court’s ruling that no supersedeas
bond was required, the following day Travelers paid a $75
cost bond.
ASSIGNMENTS OF ERROR
Travelers’ assignments of error, consolidated and restated,
are that the county court erred (1) in failing to consider the
potential settlement proceeds from the UIM policy in determin-
ing its award and (2) in denying Travelers any portion of the
third-party settlement for amounts paid or future credits.
STANDARD OF REVIEW
[1,2] Distribution of the proceeds of a judgment or settle-
ment under § 48-118.04 is left to the trial court’s discretion
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IN RE ESTATE OF EVERTSON
Cite as 23 Neb. Ct. App. 734
and is reviewed by an appellate court for an abuse of that dis-
cretion. Sterner v. American Fam. Ins. Co., 19 Neb. Ct. App. 339,
805 N.W.2d 696 (2011). See Burns v. Nielsen, 273 Neb. 724,
732 N.W.2d 640 (2007). A judicial abuse of discretion requires
that the reasons or rulings of a trial judge be clearly untenable,
unfairly depriving a litigant of a substantial right and a just
result. Sterner, supra. See Burns, supra.
ANALYSIS
Jurisdiction.
Before addressing the merits of the assignments of error
raised by Travelers, we address the Estate’s claim that this
court lacks jurisdiction over this appeal. The Estate argues that
Travelers failed to timely file a cost bond, which the Estate
contends was required by Neb. Rev. Stat. § 25-1914 (Reissue
2008). The Estate raised this same claim in a motion for sum-
mary dismissal which was denied.
[3] Contrary to the Estate’s argument that a cost bond under
§ 25-1914 is applicable in the instant case, the probate code
provides its own requirement for a supersedeas bond under
Neb. Rev. Stat. § 30-1601(3) (Cum. Supp. 2014) in probate and
trust appeals which supplants in such appeals the provisions
of Neb. Rev. Stat. § 25-1916 (Reissue 2008) (general statute
regarding supersedeas bonds). See In re Interest of Kayla F.
et al., 13 Neb. Ct. App. 679, 698 N.W.2d 468 (2005). Section
30-1601 applies to appeals “[i]n all matters arising under the
Nebraska Probate Code . . . .” To the extent there is conflict
between two statutes on the same subject, the specific statute
controls over the general statute. Jeffrey B. v. Amy L., 283 Neb.
940, 814 N.W.2d 737 (2012).
[4] A supersedeas bond is mandatory in a probate appeal
unless the appellant is a party specifically exempted from
the requirement pursuant to § 30-1601(3). Section 30-1601(3)
provides:
When the appeal is by someone other than a personal
representative, conservator, trustee, guardian, or guardian
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IN RE ESTATE OF EVERTSON
Cite as 23 Neb. Ct. App. 734
ad litem, the appealing party shall, within thirty days after
the entry of the judgment or final order complained of,
deposit with the clerk of the county court a supersedeas
bond or undertaking in such sum as the court shall direct,
with at least one good and sufficient surety approved by
the court, conditioned that the appellant will satisfy any
judgment and costs that may be adjudged against him or
her, including costs under subsection (6) of this section,
unless the court directs that no bond or undertaking need
be deposited. If an appellant fails to comply with this
subsection, the Court of Appeals on motion and notice
may take such action, including dismissal of the appeal,
as is just.
The authority to dismiss an appeal conferred by § 30-1601(3)
is permissive or discretionary in nature. See In re Trust Created
by Isvik, 274 Neb. 525, 741 N.W.2d 638 (2007).
In the instant case, on January 23, 2015, Travelers filed
its notice of appeal and docket fee, which was the same date
it filed a motion to require the personal representative of the
Estate to hold a portion of EMC funds in the attorney trust
account. On February 2, the county court denied Travelers’
motion and determined that no supersedeas bond was required
by Travelers in pursuing its appeal. The authority to dismiss
an appeal is permissive, and it would not be just to dismiss
Travelers’ appeal because the determination that Travelers was
not required to post a supersedeas bond was made more than
30 days after the entry of the final order. Thus, the Estate’s
claim that we lack jurisdiction over this appeal is with-
out merit.
Failure to Consider Potential
UIM Policy Proceeds.
Travelers contends that the county court erred in failing
to consider the potential settlement proceeds from the UIM
policy in determining its award. At the hearing, the parties
stipulated that the settlement agreement referenced a UIM
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE ESTATE OF EVERTSON
Cite as 23 Neb. Ct. App. 734
policy for Evertson Well Service and that the UIM had a
policy limit of $1 million. However, in Turco v. Schuning,
271 Neb. 770, 716 N.W.2d 415 (2006), the Nebraska Supreme
Court rejected a claim that the district court erred in failing
to consider UIM insurance available because the record did
not establish that those benefits had been received or would
be received. Likewise, in the instant case, although the parties
indicated the presence of a UIM policy, the record at the time
of the hearing did not establish that those benefits had been
received or would be received. Therefore, this assignment is
without merit.
Failure to Award Travelers Anything
on Subrogation Claim.
Travelers also contends that the county court erred in deny-
ing Travelers any portion of the third-party settlement for
amounts paid or future credits.
Section 48-118 provides that when a third party is liable to
an employee or employee’s dependents for the injury or death
of the employee, “the employer shall be subrogated to the
right of the employee or to the dependents against such third
person.” Accord Burns v. Nielsen, 273 Neb. 724, 732 N.W.2d
640 (2007). Section 48-118.04 provides that a settlement is
void unless agreed to in writing by the employee and employer
or the court determines that the settlement is “fair and reason-
able.” Specifically, § 48-118.04 provides:
If the employee or his or her personal representative or
the employer or his or her workers’ compensation insurer
do not agree in writing upon distribution of the proceeds
of any judgment or settlement, the court, upon applica-
tion, shall order a fair and equitable distribution of the
proceeds of any judgment or settlement.
Although Travelers claims that the county court erred in
applying a “made whole” analysis instead of a “rule of pro-
portionality” analysis, § 48-118.04 does not prescribe an exact
formula for the trial court to apply when making a fair and
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IN RE ESTATE OF EVERTSON
Cite as 23 Neb. Ct. App. 734
equitable distribution. Turco, supra. The Nebraska Supreme
Court has refused to read such a formula into the statute and
has specifically rejected the adoption of the “made whole”
doctrine or the “rule of proportionality” to determine what con-
stitutes a fair and equitable distribution. Turco, supra; Sterner
v. American Fam. Ins. Co., 19 Neb. Ct. App. 339, 805 N.W.2d 696
(2011) (abuse of discretion for court to apply “made whole”
analysis in dividing settlement). Under the plain language of
§ 48-118.04, the trial court shall make a fair and equitable dis-
tribution; the distribution is left to the court’s discretion and is
to be determined by the trial court under the facts of each case.
See, Turco, supra; Sterner, supra.
In the instant case, the county court conducted a fair and
equitable analysis, taking into consideration various factors
including Evertson’s long-term marriage to Darla, their enjoy-
ment of travel and family trips both in and out of this country,
and their purchase of a “‘dream home’” in California in 2013.
The county court also considered factors such as that Travelers
had charged and received the necessary premiums to pro-
vide workers’ compensation coverage for Evertson Operating
Company and that under all the circumstances, Travelers’
financial risk was minimal and insurance companies are in
the business of assuming risk. We disagree with Travelers’
assessment that the county court was considering an equitable
assessment in considering there was no evidence that Travelers
helped finance the settlement between EMC and the Estate;
rather, the county court’s language indicates that the court was
considering that Travelers did not expend any funds in securing
the settlement.
Further, regarding Travelers’ claim that the district court
erred in failing to grant Travelers a future credit, Travelers
claims that an employer or workers’ compensation carrier
is entitled under § 48-118 to treat amounts recovered by
an employee from a settlement with a third-party tort-feasor
exceeding the compensation benefits the employer or com-
pensation carrier has paid as “advances against possible future
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IN RE ESTATE OF EVERTSON
Cite as 23 Neb. Ct. App. 734
compensation.” Brief for appellant at 17. In support of its
claim, Travelers relies upon language contained in § 48-118
which provides:
Any recovery by the employer against such third per-
son, in excess of the compensation paid by the employer
after deducting the expenses of making such recov-
ery, shall be paid forthwith to the employee or to the
dependents and shall be treated as an advance payment
by the employer on account of any future installments
of compensation.
The plain language of this portion of the statute refers to
“[a]ny recovery by the employer against such third person
. . . .” In this case, the recovery against the tort-feasor was
not made by the employer or workers’ compensation carrier;
rather, it was made by the employee’s personal representative
on behalf of the Estate, which recovery would then be distrib-
uted to Darla, Evertson’s son, and Evertson’s daughter. Thus,
the language relied upon by Travelers is not applicable to the
instant case.
CONCLUSION
After reviewing the record, we cannot say that the county
court abused its discretion. Therefore, the decision of the
county court determining a fair and equitable distribution of
settlement proceeds is affirmed.
A ffirmed.