In re Estate of Panec
291 Neb. 46
| Neb. | 2015Background
- Ellen Panec (68) was fatally injured in a 2011 car crash after a ~6-week hospitalization; her husband William was the personal representative and residuary beneficiary was daughter Rebecca Griffin.
- Two claims were pursued: a wrongful-death claim (benefitting statutory survivors) and a survival/personal-injury claim (for Ellen’s predeath pain, suffering, medical expenses, funeral expenses — belonging to her estate).
- Settlements totaling $616,000 were approved: $100,000 from the driver’s insurer and $516,000 from an underinsurance carrier; parties stipulated the settlements were fair and attorney fees and medical liens would be paid.
- County court treated the entire recovery as wrongful-death proceeds and distributed under Neb. Rev. Stat. § 30-810, giving William the large remainder and Griffin $63,873.45 (noting "10% + $20,000").
- The Court of Appeals affirmed, concluding $20,000 was allocated to the survival claim; Griffin appealed to the Nebraska Supreme Court.
Issues
| Issue | Plaintiff's Argument (Griffin) | Defendant's Argument (William / PR) | Held |
|---|---|---|---|
| Whether county court must allocate settlement between wrongful-death and survival claims | Settlement included survival damages (pain, medical) and must be allocated; survival portion belongs to estate (Griffin) | Court treated whole recovery as wrongful-death under § 30-810 | Court: Must allocate. Survival proceeds are estate assets and are not distributed under § 30-810; remand for allocation |
| Whether $20,000 awarded to Griffin was properly characterized as survival allocation | $20,000 was not supported by evidence as an allocation to survival | William asserted insurer allotted $20,000 to pain and suffering | Court: Court of Appeals improperly treated William’s allegation as evidence; no proof of allocation in record; cannot infer $20,000 was survival allocation |
| Whether county court was required to consider retail value of medical expenses (collateral source rule) | Griffin: estate entitled to full value of medical expenses as part of survival recovery | William/County: recovery amount is fixed by settlement; retail value irrelevant | Court: Declines to decide on remand; rejects automatic entitlement to full retail value — medical bills are one factor among others for valuing the survival claim |
| Whether county court’s distribution conformed to law and was supported by evidence | Distribution failed to conform to law because it treated survival proceeds as wrongful-death proceeds | County court relied on § 30-810 and found William’s pecuniary loss greater | Court: County court’s distribution did not conform to law or evidence; reversed and remanded with directions to allocate and then distribute accordingly |
Key Cases Cited
- Corona de Camargo v. Schon, 278 Neb. 1045 (recognizes wrongful-death and survival claims are distinct)
- Reiser v. Coburn, 255 Neb. 655 (discusses damages recoverable in wrongful-death actions)
- Rhein v. Caterpillar Tractor Co., 210 Neb. 321 (survival action continues decedent’s cause of action for predeath damages)
- Nelson v. Dolan, 230 Neb. 848 (survival claim elements: predeath pain, medical, funeral, lost earnings)
- In re Conservatorship of Hanson, 268 Neb. 200 (standard of appellate review in probate matters)
- Strasburg v. Union Pacific RR. Co., 286 Neb. 743 (collateral source rule discussion)
- Richards v. McClure, 290 Neb. 124 (bill of exceptions / appellate consideration of record evidence)