Millard Gutter Co. v. American Family Ins. Co.
915 N.W.2d 58
Neb.2018Background
- Millard Gutter (assignee of homeowners) sued American Family after a 2013 hailstorm asserting breach of contract, bad faith, and statutory unfair-practice claims; the insurer answered and asserted a setoff.
- The district court granted summary judgment for American Family on three statutory/bad-faith claims, leaving breach of contract for trial; the court did not direct entry of final judgment on the summary rulings.
- On the morning trial was to begin, Millard filed a voluntary dismissal without prejudice under Neb. Rev. Stat. §§ 25-601 and 25-602, planning to refile for additional damages.
- The court held a hearing and then entered an order: it preserved the prior summary-judgment rulings, dismissed the remaining breach claims without prejudice, and taxed costs to Millard, including $1,650 for courtroom technology and $2,000 for juror fees/mileage.
- Millard moved to alter or amend, arguing the dismissal stripped the court of authority and that technology and juror expenses were not taxable costs; the court denied the motion and Millard appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether filing a voluntary dismissal divested the court of authority to act | Millard: dismissal automatically terminated court jurisdiction and precluded further rulings | American Family: dismissal did not divest court; prior proceedings and pleadings left matters for the court to decide | Court: dismissal did not strip authority because Millard had no statutory right to dismiss at that time (final submission and setoff existed) |
| Whether a motion for summary judgment can constitute a "final submission" under § 25-601 | Millard: dismissal was before submission because breach claim had not been presented to jury | American Family: prior summary-judgment motion(s) had been finally submitted and decided, limiting the right to dismiss | Court: a summary-judgment motion can be a final submission preventing dismissal when argument is complete and ruling entered; here summary rulings produced final submission on those claims |
| Whether § 25-602 precluded dismissal because of a defendant setoff | Millard: could dismiss remaining claims under § 25-602 | American Family: § 25-602 barred dismissal because it had pleaded a setoff and was ready to try it | Court: American Family’s setoff in its answer precluded a statutory right to dismiss under § 25-602 for the remaining claims |
| Whether courtroom technology costs and juror fees/mileage are taxable costs | Millard: such expenses are not authorized by statute or uniform procedure and thus not taxable | American Family: such expenses are proper to tax; prior authority (e.g., Frazer) supports taxing jury-related fees | Court: court abused discretion taxing those items—no Nebraska statute or uniform practice authorizes taxing electronic presentation or juror compensation as civil-case costs |
Key Cases Cited
- Kansas Bankers Surety Co. v. Halford, 263 Neb. 971 (clarifies timing of final submission re: summary judgment)
- City of Falls City v. Nebraska Mun. Power Pool, 281 Neb. 230 (electronic presentation of evidence not taxable as costs absent statutory authorization)
- McGill v. Lion Place Condominium Assn., 291 Neb. 70 (litigation expenses recoverable only when authorized by statute or uniform procedure)
- Frazer v. Myers, 95 Neb. 194 (historical case taxing a small jury/trial fee to party who demanded trial; discussed but found not controlling)
- Holste v. Burlington Northern R.R. Co., 256 Neb. 713 (recognizes limitations on voluntary dismissal and court’s discretion to protect defendant rights)