In re Estate of Evertson (PFR)

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In re Estate of Evertson (PFR)

Case Number
S-15-0104
Call Date
November 2, 2016
Court Number
Morrill
Case Summary

A-15-0104 In re Estate of Bruce F. Evertson

County Court for Morrill County, Judge Paul G. Wess

Attorneys: R. Kevin O'Donnell (for Appellee Estate of Bruce F. Evertson) --- Gregory W. Plank (Lego & Associates) and Thomas J. Freeman, Thomas D. Wulff (Wulff & Freeman LLC) (for Appellant Travelers Indemnity Co.) --- Dallas D. Jones, David A. Dudley, Michael Sands (Baylor Evnen Curtiss Grimit & Witt LLP) (for Amici Curiae Nebraskans for Workers' Compensation Equity and Fairness, The Crete Carrier Corporation, First Dakota Indemnity Co., Dakota Truck Underwriters, The Nebraska Intergovernmental Risk Management Association, Property Casualty Insurers Association of America, Risk Administration Services, Inc., Liberty Mutual Insurance, UNICO Group, Lockton Companies, LLC, Nationwide Mutual Insurance Co., Allied Insurance, Midwest Builders' Casualty, Nebraska Restaurant Association, and Nebraska Retail Federation) ---Steven L Theesfeld (Yost & Baill LLP) and Vlad Kushnir (VB Kushnir LLC) (for Amicus Curiae National Association of Subrogation Professionals) --- Bradley D. Shidler and Gary L. Wickert, Alyssa A. Johnson (for Amicus Curiae Werner Enterprises, Inc.)

Civil: Settlement in action for wrongful death; distribution of settlement proceeds; subrogation

Proceedings below: The trial court found that Travelers, the insurance carrier for the decedent's employer, was not entitled to a subrogation interest in wrongful death settlement funds paid to the decedent's estate. The Court of Appeals affirmed. See In re Estate of Evertson, 23 Neb. 734 (2016). Appellant Travelers filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review: I It Is Unclear Whether the County Court Had Subject Matter Jurisdiction to Hear and Decide this Matter under State Law. II. The Court of Appeals Abused its Discretion by Attempting to 'Make Whole' Ms. Evertson in Disregard of Travelers' Subrogation Interest in the Settlement Proceeds. III. The Court of Appeals Abused its Discretion by Refusing to Award Travelers Credit for the Benefits Already Paid to Ms. Evertson or a Future Credit for the Ongoing Benefits it must Continue to Pay to Ms. Evertson. IV. The Court of Appeals Abused its Discretion by affirming the Trial Court's Decision, Which Failed to Consider the Possibility of Additional Settlement Funds to Ms. Evertson from the Uninsured Motorist Policy. V. Guidance Is Needed as to What Standards a Trial Court Should Use to Determine a Fair and Equitable Distribution of Third-party Proceeds.