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In re Estate of Panec

Supreme Court of Nebraska

June 12, 2015


Page 220

Petition for further review from the Court of Appeals, MOORE, Chief Judge, and IRWIN and PIRTLE, Judges, on appeal thereto from the County Court for Jefferson County, STEVEN B. TIMM, Judge. Judgment of Court of Appeals reversed, and cause remanded with directions.

Eric B. Brown, of Atwood, Holsten, Brown & Deaver Law Firm, P.C., L.L.O., for appellant.

Vincent M. Powers and Elizabeth A. Govaerts, of Vincent M. Powers & Associates, for appellee.



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[291 Neb. 47] Cassel, J.


The county court ordered distribution of settlement proceeds in the estate of Ellen M. Panec. Although the proceeds flowed from both a survival claim and a wrongful death claim, the court applied a wrongful death statute[1] to govern all distributions. The Nebraska Court of Appeals affirmed. We granted further review to clarify the separate legal concepts governing the respective distributions. The county court should have allocated part of the proceeds to the survival claim and ordered distribution of those proceeds as part of Ellen's probate estate. Although the Court of Appeals determined that $20,000 was allocated to the survival claim, the evidence did not support this conclusion. We therefore reverse, and remand with directions.

[291 Neb. 48] BACKGROUND

In September 2011, Ellen and her second husband, William J. Panec, were injured in a motor vehicle accident. Both Ellen and William sustained injuries. William ultimately recovered, but Ellen

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passed away from her injuries after being hospitalized for nearly 6 weeks. At the time of the accident, Ellen was 68 years old. She had retired from her employment some years earlier. She had also been diagnosed with three types of cancer, including " stage 4" lung cancer, brain cancer, and esophageal cancer.

An informal probate of Ellen's will was initiated in the county court. Pursuant to Ellen's will, William was appointed the personal representative of her estate. However, the majority of Ellen's estate passed to her daughter from her first marriage, Rebecca Griffin, as the remainder beneficiary. William received only the household goods and furniture, any vehicles Ellen had owned, and a life estate in certain real estate. Further, William had previously waived any statutory rights in Ellen's estate via a postnuptial agreement.

Prior to Ellen's death, a lawsuit was filed in the district court for Lancaster County against the driver of the other vehicle. Upon Ellen's death, William filed an amended complaint alleging that Ellen had succumbed to her injuries. The complaint asserted that Ellen had sustained fatal injuries, incurred medical expenses, and experienced pain, suffering, inconvenience, and disability. As relief, it sought " judgment against the [driver] in an amount which will fairly and justly compensate [Ellen] for her injuries under the laws of the State of Nebraska."

In order to settle the claim, the driver's liability insurer offered to pay the limits of the policy in the amount of $100,000. William filed a petition for approval of the settlement in the county court. He requested that the court approve the settlement, because the driver was without sufficient assets to pursue. Although the court ultimately approved the settlement, William later requested that the approval [291 Neb. 49] be vacated due to the failure to provide proper notice to all parties.

William also made a claim against his and Ellen's underinsurance carrier. And he filed a subsequent petition for approval of a settlement offer. In the petition, he alleged that the carrier had offered $515,000 to settle two claims: " $495,000.00 for wrongful death and $20,000.00 for the pain and suffering" that Ellen had experienced prior to her death.

The county court conducted a hearing on the two settlement offers--$100,000 from the driver's liability insurer and $516,000 from the underinsurance carrier (although William had previously alleged that the underinsurance carrier had offered $515,000, both the court and the parties treated the offer as $516,000). William and Griffin entered into a stipulation that both of the settlements were fair and reasonable. And they further stipulated to the payment of attorney fees and several medical liens that had been placed on the settlement proceeds. They also agreed that Ellen had incurred medical expenses of $214,754.77 from the accident.

William testified as to his and Ellen's marriage. William described his " married life" as " [v]ery good" and confirmed that he and Ellen had a loving relationship. He testified that he and Ellen had traveled together and that Ellen had assisted with office work in his law practice.

As to Ellen's injuries, William testified that she suffered a " ruptured . . . aorta in her stomach" and eventually developed an infection from surgery. She was ultimately admitted to a rehabilitation hospital. William described that Ellen " wasn't quite so bad" upon her admission, but " the longer she was there . . . she would tire and was on medication to alleviate her pain." However, William indicated that she was " [p]retty much" cognizant of where she was. Ellen survived for 5 weeks and 4

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days until she ultimately passed away at the rehabilitation hospital.

Griffin described that Ellen had been " crushed head to foot" from the accident. According to Griffin, Ellen sustained 17 [291 Neb. 50] broken ribs, a lacerated spleen, a broken lumbar vertebra, a broken " coccygeal tailbone," and a compromised " hiatal hernia stomach wrap." Ellen also required a 12- to 14-inch incision, which eventually became infected. Griffin testified that Ellen experienced high levels of pain. She described that Ellen was in " sheer agony" and ...

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