876 N.W.2d 678
Neb. Ct. App.2016Background
- Bruce F. Evertson died in a work-related vehicle accident; Travelers (employer’s WC insurer) pays survivor Darla weekly WC death benefits.
- The Estate settled wrongful-death claims with the third-party tortfeasor’s insurer (EMC): $500,000 total, $250,000 allocated to Darla (the portion at issue).
- Travelers asserted a workers’ compensation lien/subrogation and filed for a fair and equitable distribution under Neb. Rev. Stat. § 48-118.04; hearing evidence included premiums paid, attorney fees ($42,583.31), and amounts EMC paid to date.
- The county court awarded Darla $207,416.69, paid Estate attorneys $42,583.31, and awarded Travelers nothing, finding Travelers had minimal financial risk and had not contributed to the settlement.
- Travelers appealed, arguing the court failed to consider potential UIM proceeds and erred by denying Travelers any recovery or future credit; the Estate argued the appeal should be dismissed for failure to post a cost/supersedeas bond.
Issues
| Issue | Plaintiff's Argument (Travelers) | Defendant's Argument (Estate) | Held |
|---|---|---|---|
| Jurisdiction / bond requirement | Appeal should proceed despite late/no supersedeas bond because court previously ruled no bond required | Appeal should be dismissed for failure to timely file required cost bond under § 25-1914 | Court had jurisdiction; probate-specific § 30-1601 governs supersedeas bonds and dismissal is discretionary, so appeal not dismissed |
| Failure to consider potential UIM proceeds | County court should have considered $1M UIM policy potential when dividing settlement | UIM proceeds were speculative; no evidence they had been or would be received at hearing | No error: court need not consider unreceived/speculative UIM benefits (Turco controlling) |
| Denial of any subrogation recovery / future credit under § 48-118 and § 48-118.04 | Travelers entitled to portion of third-party settlement or future credit for amounts paid / future installments | Recovery was obtained by the personal representative (Estate), not by employer/carrier; § 48-118 future-credit language applies to recoveries by employer/carrier; distribution is committed to trial court’s discretion | Affirmed: trial court’s “fair and equitable” distribution was within discretion; statute does not mandate a set formula (court may consider many factors) |
Key Cases Cited
- Turco v. Schuning, 271 Neb. 770, 716 N.W.2d 415 (Neb. 2006) (court need not consider UIM benefits that are not shown to have been or will be received)
- Sterner v. American Family Ins. Co., 19 Neb. App. 339, 805 N.W.2d 696 (Neb. Ct. App. 2011) (distribution under § 48-118.04 is committed to trial court discretion; rejecting fixed formula)
- Burns v. Nielsen, 273 Neb. 724, 732 N.W.2d 640 (Neb. 2007) (standards on appellate review of § 48-118.04 distributions)
- In re Trust Created by Isvik, 274 Neb. 525, 741 N.W.2d 638 (Neb. 2007) (dismissal for failure to post bond under probate statute is discretionary)
- Jeffrey B. v. Amy L., 283 Neb. 940, 814 N.W.2d 737 (Neb. 2012) (specific statute controls over general when statutes conflict)