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Case Summaries
Malpractice, Duty, Breech, Evidence

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This is a professional negligence action in which the district court granted a motion for summary judgment by the attorney. The opinion focused upon the question of neglect of a reasonable duty and found that there was no genuine issue of material fact with respect to the client’s allegation that the attorney was negligent in representing him in a prior action which was concluded by a settlement.

Wolski v. Wandel, 275 Neb. 266 (2008)

Supreme Court Headnotes

Summary Judgment.

1.  Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue regarding any material fact or the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

2.  Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

Attorney and Client:

1.  The general rule regarding an attorney’s duty to his or her client is that the attorney, by accepting employment to give legal advice or to render other legal services, impliedly agrees to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake. ••• A lawyer should exert his or her best efforts to ensure that the decisions of a client are made only after the client has been informed of relevant considerations.

2.  Malpractice: Negligence: Proof. A client who has agreed to the settlement of an action is not barred from recovering against his or her attorney for malpractice if the client can establish that the settlement agreement was the product of the attorney’s negligence.

3.  Expert Witnesses. Expert testimony is generally required to establish an attorney’s standard of conduct in a particular circumstance and that the attorney’s conduct was not in conformity therewith.

4.  Compromise and Settlement. The decision to settle a controversy is the client’s. In order to meaningfully make that decision, a client must have the information necessary to assess the risks and benefits of either settling or proceeding to trial.

Malpractice:

1.  Attorney and Client: Although the general standard of conduct required of an attorney is established by law, the question of what an attorney’s specific conduct should be in a particular case and whether an attorney’s conduct fell below that specific standard is a question of fact.

     a.  Negligence: Proof: Proximate Cause: Damages. In a civil action for legal malpractice, a plaintiff alleging professional negligence on the part of an attorney must prove three elements: (1) the attorney’s employment; (2) the attorney’s neglect of a reasonable duty; and (3) that such negligence resulted in and was the proximate cause of loss (damages) to the client.

Summary Judgment:

1.  Proof. A movant for summary judgment makes a prima facie case by producing enough evidence to demonstrate that the movant would be entitled to judgment if the evidence were uncontroverted at trial. ••• Once the party moving for summary judgment makes a prima facie case, the burden to produce evidence showing the existence of a material issue of fact that prevents judgment as a matter of law shifts to the party opposing the motion.

Date Filed and Case No.: March 21, 2008. No. S-06-1039.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/march/mar21/s06-1039.pdf

Court Appealed From: District Court for Douglas County: John D. Hartigan, Jr., Judge.

Attorneys for the Appeal: E. Dean Hascall for Stanley W. Wolski, Jr., appellant. John R. Douglas for Josephine Walsh Wandel, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Stephan, J.

Summary: In June 2000, Stanley Wolski, Jr. retained Josephine Walsh Wandel to represent him in a dispute with his sister, Rosemary Parriott, regarding ownership of real property located in Cass County, Nebraska. Wandel filed a petition for declaratory judgment for Wolski in Cass County District Court, naming Parriott as the sole defendant seeking to set aside any trust agreement and the warranty deed from Wolski to Parriott. It also requested that Parriott be ordered to give an accounting with respect to funds generated by the property. Following extensive discovery and the appointment of a GAL for Wolski, at a November 2, 2001, hearing, the parties advised the court that they had settled the case. Subsequently, the court approved the settlement agreement.

     Through his current attorney, Wolski unsuccessfully sought to vacate the order approving the settlement. Wolski then commenced this action against Wandel, alleging that she breached her duty to Wolski by “failing to use the degree of skill and care ordinarily used by Nebraska licensed attorneys” in several particulars, all relating in some way to the settlement of the litigation against Parriott. Wandel moved for summary judgment, and Wolski moved for partial summary judgment on the issue of liability. The district court initially denied Wandel’s motion, noting that she had not made a prima facie showing that she had met the standard of care, but did not rule on Wolski’s motion at that time. Wandel then filed a renewed motion for summary judgment, and the court conducted a hearing on that motion and Wolski’s motion for partial summary judgment. At this hearing, Wandel offered the affidavit of attorney Michael D. Jones, which was received without objection. Wolski offered additional evidence, which was also received.

     The court entered an order denying Wolski’s motion, granting Wandel’s motion, and dismissing the action. Wolski appealed and the Nebraska Supreme Court moved the case to their docket.

Did the court district court err in granting summary judgment? Wolski claims that Wandel was negligent in recommending settlement of the litigation against Parriott instead of proceeding to trial. In this case, the Court focused on the malpractice element of neglect of a reasonable duty. Although this general standard is established by law, the question of what an attorney’s specific conduct should be in a particular case and whether an attorney’s conduct fell below that specific standard is a question of fact.

     As the party moving for summary judgment, Wandel was required to make a prima facie case by producing enough evidence to demonstrate that she would be entitled to judgment if the evidence were uncontroverted at trial. Wandel met this burden by offering the affidavit of Jones, an attorney practicing in Omaha with experience in the area of business, trusts, probate, and estate planning and who averred that based upon this review and his professional knowledge and experience, that the outcome of the underlying litigation was uncertain, that the settlement was a reasonable resolution of the dispute, and that Wandel’s recommendation of the settlement “was within the standard of care for attorneys in Omaha, Douglas County, Nebraska at the time of the settlement.” He further stated: “[I]t is my opinion with a reasonable degree of certainty that.. . Wandel’s conduct and legal advice to her client . . . Wolski . . . met or exceeded the standard of care required of an attorney in Omaha, Douglas County, Nebraska at the time of her representation of . . . Wolski in all material respects.”

     In order to defeat Wandel’s motion for summary judgment, Wolski was required to present an expert’s opinion contradicting Jones’ opinion that Wandel’s performance had met the standard of care. Woski presented evidence from three attorneys concerning Wandel’s representation of Wolski; Ronald E. Reagan, a practicing attorney and retired district judge (who did not specifically express an opinion that Wandel breached the applicable standard of care) and Harmon, the GAL, (who did not express an opinion that Wandel breached the applicable standard of care.); and Wandel’s deposition, in which she responded to questions concerning her representation of Wolski. (The deposition did not include any admissions of professional negligence.) The Court concluded that Wolski did not meet his burden of demonstrating the existence of a genuine issue of material fact.

Conclusion: The Court added that the decision to settle a controversy is the client’s. Here, under the Code of Professional Responsibility (which governed lawyers’ conduct at the time of Wandel’s representation,) Wandel was required to look to Harmon, as GAL, to make decisions concerning settlement on behalf of Wolski. The record here included an expert’s opinion that Wandel complied with the standard of care in advising Harmon with regard to the settlement, and Wolski has presented no expert opinion to the contrary. There is no genuine issue of material fact as to the allegations of professional negligence. AFFIRMED.


Probate, Nonprobate Transfer

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A land contract between parents and one son, a ½ remainder of any balance remaining due to the other son upon the parents death, and a mother’s will which does not provide anything for him, all end up in the county court and on an appeal to the Nebraska Supreme Court. The question? Is that ½ remainder a non-probate transfer?

Clark v. Clark, 275 Neb. 276 (2008)

Supreme Court Headnotes

Statutes:

1.  Appeal and Error. Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court.

Appeal and Error.

1.  An appellate court will not consider an issue on appeal that was not passed upon by the trial court.

Date Filed and Case No.: March 21, 2008. No. S-06-1254.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/march/mar21/s06-1254.pdf

Court Appealed From: District Court for Stanton County, Robert B. Ensz, Judge, on appeal thereto from the County Court for Stanton County, Philip R. Riley, Judge.

Attorneys for the Appeal: Charles L. Caskey for Larry L. Clark et al., appellants. Jeffrey L. Hrouda for Dale D. Clark, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: McCormack, J.

Summary: In 1993, Rolland L. Clark and Libbie I. Clark, husband and wife, entered into a land sale contract with their son, Larry L. Clark; Larry’s wife, Reta M. Clark; and Larry’s son, James D. Clark (collectively the appellants) for $56,000. Under the terms of the agreement, the appellants agreed to pay yearly installments of $5,600 until the principal balance was paid in full. The agreement provided that upon the death of Rolland and Libbie, one-half of the balance remaining on the agreement would be payable to Dale D. Clark, another son of Rolland and Libbie, and one-half would be payable to the appellants as joint tenants with the right of survivorship. Rolland died in 1999, and Libbie died in 2000. Libbie, who died testate, was survived by Dale, Larry, and another child, Audrey Wiegel. Under the terms of her will, Libbie devised her estate to Larry. The will also provided in relevant part:

I have previously made very generous gifts to Dale Clark and I have also helped Audrey Wiegel. For this reason, I have made no provision for them in this will.

At the time of Libbie’s death, the balance remaining under the agreement was $16,900 and appellants made no further payments on the agreement. Nevertheless, they filed a warranty deed with the register of deeds. Thereafter, Dale brought an action to recover one-half of the balance remaining under the terms of the agreement ($8,450), plus interest. The county court entered judgment against the appellants in the amount of $11,349.19 which was the district court affirmed. Appellants appealed.

The appellants assert, restated, that the district court erred in affirming the county court’s decision. More specifically, the appellants assert that the district court erred in affirming the county court’s (1) finding that Dale is entitled to one-half of the balance of the agreement as a nonprobate transfer, (2) failure to allow the doctrine of merger, and (3) failure to find that Dale should have filed a claim in the probate of Libbie’s estate.

STANDARD OF REVIEW

[1] Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court.1

Did the district court err in affirming the county court’s determination that Dale is entitled to one-half of the balance remaining under the agreement as a nonprobate transfer? Article 27 of the Nebraska Probate Code governs nonprobate transfers. Section 30-2715(a)(1) provides that money or other benefits due to a decedent before death, must be paid after the decedent’s death to a person whom the decedent designates either in the instrument or in a separate writing. Here, under the terms of the agreement, Rolland, Libbie, and the appellants contracted for the sale of land, the balance of which was to be paid in annual installment payments. The Court noted that the agreement provided that “the entire debt hereby secured” would become immediately due and payable and the agreement liable to foreclosure. As § 30-2715 applies to provisions in mortgages, security, or other written instruments of a similar nature, the Court concluded that the transfer to Dale of one-half of the balance remaining under the agreement was a nonprobate transfer within the meaning of § 30-2715.

Did the district court err in affirming the county court’s failure to allow the doctrine of merger? Here, the record reveals that the doctrine of merger was not addressed by either the county court or the district court. As an appellate court will not consider an issue on appeal that was not passed upon by the trial court they did not address this assignment of error.

Did the district court err in failing to find error by the county court for failing to find that Dale should have filed a claim in the probate of Libbie’s estate? Here, the transfer to Dale of one-half of the balance remaining under the agreement in this case was a nonprobate transfer, as discussed above. As such, it was not necessary for Dale to file a claim against Libbie’s estate.

Conclusion: For the reasons discussed above. AFFIRMED.


Professional Malpractice, Summary Judgment

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This is a professional negligence action in which the district court granted a motion for summary judgment by the attorney. The opinion focused upon the question of neglect of a reasonable duty and found that there was no genuine issue of material fact with respect to the client’s allegation that the attorney was negligent in representing him in a prior action which was concluded by a settlement.

Wolski v. Wandel, 275 Neb. 266 (2008)

Supreme Court Headnotes

Summary Judgment.

1.  Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue regarding any material fact or the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

2.  Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

Attorney and Client:

1.  The general rule regarding an attorney’s duty to his or her client is that the attorney, by accepting employment to give legal advice or to render other legal services, impliedly agrees to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake. ••• A lawyer should exert his or her best efforts to ensure that the decisions of a client are made only after the client has been informed of relevant considerations.

2.  Malpractice: Negligence: Proof. A client who has agreed to the settlement of an action is not barred from recovering against his or her attorney for malpractice if the client can establish that the settlement agreement was the product of the attorney’s negligence.

3.  Expert Witnesses. Expert testimony is generally required to establish an attorney’s standard of conduct in a particular circumstance and that the attorney’s conduct was not in conformity therewith.

4.  Compromise and Settlement. The decision to settle a controversy is the client’s. In order to meaningfully make that decision, a client must have the information necessary to assess the risks and benefits of either settling or proceeding to trial.

Malpractice:

1.  Attorney and Client: Although the general standard of conduct required of an attorney is established by law, the question of what an attorney’s specific conduct should be in a particular case and whether an attorney’s conduct fell below that specific standard is a question of fact.

     a.  Negligence: Proof: Proximate Cause: Damages. In a civil action for legal malpractice, a plaintiff alleging professional negligence on the part of an attorney must prove three elements: (1) the attorney’s employment; (2) the attorney’s neglect of a reasonable duty; and (3) that such negligence resulted in and was the proximate cause of loss (damages) to the client.

Summary Judgment:

1.  Proof. A movant for summary judgment makes a prima facie case by producing enough evidence to demonstrate that the movant would be entitled to judgment if the evidence were uncontroverted at trial. ••• Once the party moving for summary judgment makes a prima facie case, the burden to produce evidence showing the existence of a material issue of fact that prevents judgment as a matter of law shifts to the party opposing the motion.

Date Filed and Case No.: March 21, 2008. No. S-06-1039.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/march/mar21/s06-1039.pdf

Court Appealed From: District Court for Douglas County: John D. Hartigan, Jr., Judge.

Attorneys for the Appeal: E. Dean Hascall for Stanley W. Wolski, Jr., appellant. John R. Douglas for Josephine Walsh Wandel, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Stephan, J.

Summary: In June 2000, Stanley Wolski, Jr. retained Josephine Walsh Wandel to represent him in a dispute with his sister, Rosemary Parriott, regarding ownership of real property located in Cass County, Nebraska. Wandel filed a petition for declaratory judgment for Wolski in Cass County District Court, naming Parriott as the sole defendant seeking to set aside any trust agreement and the warranty deed from Wolski to Parriott. It also requested that Parriott be ordered to give an accounting with respect to funds generated by the property. Following extensive discovery and the appointment of a GAL for Wolski, at a November 2, 2001, hearing, the parties advised the court that they had settled the case. Subsequently, the court approved the settlement agreement.

     Through his current attorney, Wolski unsuccessfully sought to vacate the order approving the settlement. Wolski then commenced this action against Wandel, alleging that she breached her duty to Wolski by “failing to use the degree of skill and care ordinarily used by Nebraska licensed attorneys” in several particulars, all relating in some way to the settlement of the litigation against Parriott. Wandel moved for summary judgment, and Wolski moved for partial summary judgment on the issue of liability. The district court initially denied Wandel’s motion, noting that she had not made a prima facie showing that she had met the standard of care, but did not rule on Wolski’s motion at that time. Wandel then filed a renewed motion for summary judgment, and the court conducted a hearing on that motion and Wolski’s motion for partial summary judgment. At this hearing, Wandel offered the affidavit of attorney Michael D. Jones, which was received without objection. Wolski offered additional evidence, which was also received.

     The court entered an order denying Wolski’s motion, granting Wandel’s motion, and dismissing the action. Wolski appealed and the Nebraska Supreme Court moved the case to their docket.

Did the court district court err in granting summary judgment? Wolski claims that Wandel was negligent in recommending settlement of the litigation against Parriott instead of proceeding to trial. In this case, the Court focused on the malpractice element of neglect of a reasonable duty. Although this general standard is established by law, the question of what an attorney’s specific conduct should be in a particular case and whether an attorney’s conduct fell below that specific standard is a question of fact.

     As the party moving for summary judgment, Wandel was required to make a prima facie case by producing enough evidence to demonstrate that she would be entitled to judgment if the evidence were uncontroverted at trial. Wandel met this burden by offering the affidavit of Jones, an attorney practicing in Omaha with experience in the area of business, trusts, probate, and estate planning and who averred that based upon this review and his professional knowledge and experience, that the outcome of the underlying litigation was uncertain, that the settlement was a reasonable resolution of the dispute, and that Wandel’s recommendation of the settlement “was within the standard of care for attorneys in Omaha, Douglas County, Nebraska at the time of the settlement.” He further stated: “[I]t is my opinion with a reasonable degree of certainty that.. . Wandel’s conduct and legal advice to her client . . . Wolski . . . met or exceeded the standard of care required of an attorney in Omaha, Douglas County, Nebraska at the time of her representation of . . . Wolski in all material respects.”

     In order to defeat Wandel’s motion for summary judgment, Wolski was required to present an expert’s opinion contradicting Jones’ opinion that Wandel’s performance had met the standard of care. Woski presented evidence from three attorneys concerning Wandel’s representation of Wolski; Ronald E. Reagan, a practicing attorney and retired district judge (who did not specifically express an opinion that Wandel breached the applicable standard of care) and Harmon, the GAL, (who did not express an opinion that Wandel breached the applicable standard of care.); and Wandel’s deposition, in which she responded to questions concerning her representation of Wolski. (The deposition did not include any admissions of professional negligence.) The Court concluded that Wolski did not meet his burden of demonstrating the existence of a genuine issue of material fact.

Conclusion: The Court added that the decision to settle a controversy is the client’s. Here, under the Code of Professional Responsibility (which governed lawyers’ conduct at the time of Wandel’s representation,) Wandel was required to look to Harmon, as GAL, to make decisions concerning settlement on behalf of Wolski. The record here included an expert’s opinion that Wandel complied with the standard of care in advising Harmon with regard to the settlement, and Wolski has presented no expert opinion to the contrary. There is no genuine issue of material fact as to the allegations of professional negligence. AFFIRMED.


Search, Consent

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A district court’s failure to sustain a defendant’s motion to suppress, leads the Nebraska Supreme Court to reverse and remand the case to examine factors so that a determination of whether controlled substances found here were “fruit-of-the-poisonous-tree.”

State v. Gorup, 275 Neb. 280 (2008)

Supreme Court Headnotes

Motions to Suppress:

1.  Investigative Stops: Warrantless Searches: Probable Cause. A trial court’s ruling on a motion to suppress, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, will be upheld unless its findings of fact are clearly erroneous.

Constitutional Law:

1.  Warrantless Searches: Search and Seizure. Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions, which must be strictly confined by their justifications.

Warrantless Searches.

1.  The warrantless search exceptions recognized by the Nebraska Supreme Court include: (1) searches undertaken with consent or with probable cause, (2) searches under exigent circumstances, (3) inventory searches, (4) searches of evidence in plain view, and (5) searches incident to a valid arrest.

2.  Search and Seizure: Proof. In the case of a search and seizure conducted without a warrant, the State has the burden of showing the applicability of one or more of the exceptions to the warrant requirement.

Search and Seizure:

1.  Proof. Where a search following an illegal entry is justified based on alleged consent, a court must determine whether that consent was voluntary, and in addition, the court must determine whether the illegal entry tainted that consent.

2.  Police Officers and Sheriffs: Evidence. Evidence must be excluded as fruit of the poisonous tree if it is discovered by the exploitation of illegal police conduct.

Date Filed and Case No.: March 21, 2008. No. S-07-450.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/march/mar21/s07-450.pdf

Court Appealed From: District Court for Sarpy County: David K. Arterburn, Judge.

Attorneys for the Appeal: Ann C. Addison-Wageman for Terrence K. Gorup, appellant. Jon Bruning and George R. Love for State of Nebraska, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Wright, J.

Summary: In July 2006, police conducted an investigation of Terrence K. Gorup, who was suspected of dealing narcotics from his apartment. When it was discovered that Gorup had a warrant outstanding for failure to appear on a previous drug violation, two detectives formulated a plan to go to Gorup’s apartment and conduct a “knock-and-talk investigation” with Gorup concerning suspected drug trafficking. Their objective was to obtain Gorup’s consent to search his apartment.

     The detectives arrived at Gorup’s apartment in an unmarked police vehicle. After a conversation with a person leaving Gorup’s apartment (they told the person they wanted to talk with Gorup) as Gorup approached the threshold of the doorway, a detective informed Gorup that he was under arrest. At that point, Gorup, who was standing directly outside his apartment door was placed in handcuffs but not transported from the scene (no marked police car was available.) While standing at the door, a detective noticed a person sitting on a couch inside the apartment and some blade-edged weapons. Gorup informed the detectives that a couple of people were in the apartment. While waiting, the detectives performed a “protective sweep” of the apartment and a “search incident to arrest.” In doing so, a detective searched an unzipped “small black zippered-type case” located on a table just inside the doorway, 4 or 5 feet away from Gorup where the officer observed plastic bags which his training and experience led him to believe contained methamphetamine. After this search, one of the detectives directed the uniformed officer to escort Gorup to the marked police car where the detective requested Gorup’s consent to search the apartment. Gorup was informed several times that he did not have to provide his consent and the detective testified that Gorup gave his consent to a search of the apartment. This subsequent search revealed several items of contraband in addition to the bags of methamphetamine in the black zippered case.

     Gorup was charged with possession of a controlled substance and before trial he moved to suppress all items of physical evidence seized from his apartment. The district court overruled the motion. The court found that the initial warrantless search of Gorup’s apartment was not lawful as a protective sweep and might have been unlawful as a search incident to arrest. However the Court found that the subsequent consent to the search of the apartment was voluntary and therefore served as an adequate basis for the seizure of the “hygiene case” and the contents thereof. It found that although Gorup knew that the detectives had entered his apartment, he did not know whether incriminating evidence had been found when he gave his consent to search the apartment. After a stipulated bench trial, the district court convicted Gorup of possession. Gorup appealed.

Did the district court err in not finding that Gorup’s consent was involuntary and an exploitation of the prior illegal search? Gorup claimed he reasonably believed that there was nothing to be gained by denying consent to search his apartment because he had already witnessed the detectives search the apartment prior to asking for his consent. Here, the district court found that the protective sweep of Gorup’s apartment was unlawful and that the search incident to a valid arrest might have been unlawful. It concluded, however, that the warrantless search of the black zippered case was lawful under the inevitable discovery doctrine because Gorup’s consent was voluntary. The Court said that while the district court reached the issue of the validity of Gorup’s consent, it did not definitively determine whether the search incident to a valid arrest exception applied. Had it concluded that the first search was valid, the validity of Gorup’s consent to the subsequent search would not have been required. For their analysis of the validity of the consent, the Court infered that the district court found that the search incident to a valid arrest exception did not apply. Here, the district court found Gorup’s consent was voluntary because the detective had advised Gorup that he could refuse consent and Gorup had not been confronted with any evidence from the prior search. However, the Court ruled that the district court erred in failing to consider the appropriate factors to determine whether the search was an exploitation of the prior illegality. Evidence must be excluded as fruit of the poisonous tree if it is discovered by the exploitation of illegal police conduct. The question is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. The U.S. Supreme Court identified the factors to consider in deciding whether the earlier illegal arrest contaminated the defendant’s confession: (1) the temporal proximity between the illegal arrest and the confession, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct. The Court said that the relevant factors will vary depending upon the facts of a particular case and pointed out that the purpose of the analysis in their written decision, was to determine whether under all the circumstances presented, the consent was obtained by exploitation of the prior illegal search. Here, the district court should have considered these factors in determining whether Gorup’s consent was obtained by the exploitation of the detectives’ prior search. Thus, the Court remanded the cause for consideration of such factors. “We pause here to acknowledge that we have not decided whether the first search was a valid search incident to an arrest and was therefore an exception to the warrant requirement. The district court did not decide that question, and therefore, we also remand the cause for a hearing on the issue whether the search incident to valid arrest exception applied to the first search” said the Court.

Conclusion: The Court said that whether the search incident to the arrest was a valid exception to the warrantless search is an issue which the district court should have addressed when ruling on the motion to suppress filed by Gorup. Additionally, they added that the district court should have considered the appropriate factors described in the opinion. JUDGMENT VACATED, AND CAUSE REMANDED WITH DIRECTIONS.


Search, Fruit of the Poisonous Tree

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A district court’s failure to sustain a defendant’s motion to suppress, leads the Nebraska Supreme Court to reverse and remand the case to examine factors so that a determination of whether controlled substances found here were “fruit-of-the-poisonous-tree.”

State v. Gorup, 275 Neb. 280 (2008)

Supreme Court Headnotes

Motions to Suppress:

1.  Investigative Stops: Warrantless Searches: Probable Cause. A trial court’s ruling on a motion to suppress, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, will be upheld unless its findings of fact are clearly erroneous.

Constitutional Law:

1.  Warrantless Searches: Search and Seizure. Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions, which must be strictly confined by their justifications.

Warrantless Searches.

1.  The warrantless search exceptions recognized by the Nebraska Supreme Court include: (1) searches undertaken with consent or with probable cause, (2) searches under exigent circumstances, (3) inventory searches, (4) searches of evidence in plain view, and (5) searches incident to a valid arrest.

2.  Search and Seizure: Proof. In the case of a search and seizure conducted without a warrant, the State has the burden of showing the applicability of one or more of the exceptions to the warrant requirement.

Search and Seizure:

1.  Proof. Where a search following an illegal entry is justified based on alleged consent, a court must determine whether that consent was voluntary, and in addition, the court must determine whether the illegal entry tainted that consent.

2.  Police Officers and Sheriffs: Evidence. Evidence must be excluded as fruit of the poisonous tree if it is discovered by the exploitation of illegal police conduct.

Date Filed and Case No.: March 21, 2008. No. S-07-450.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/march/mar21/s07-450.pdf

Court Appealed From: District Court for Sarpy County: David K. Arterburn, Judge.

Attorneys for the Appeal: Ann C. Addison-Wageman for Terrence K. Gorup, appellant. Jon Bruning and George R. Love for State of Nebraska, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Wright, J.

Summary: In July 2006, police conducted an investigation of Terrence K. Gorup, who was suspected of dealing narcotics from his apartment. When it was discovered that Gorup had a warrant outstanding for failure to appear on a previous drug violation, two detectives formulated a plan to go to Gorup’s apartment and conduct a “knock-and-talk investigation” with Gorup concerning suspected drug trafficking. Their objective was to obtain Gorup’s consent to search his apartment.

     The detectives arrived at Gorup’s apartment in an unmarked police vehicle. After a conversation with a person leaving Gorup’s apartment (they told the person they wanted to talk with Gorup) as Gorup approached the threshold of the doorway, a detective informed Gorup that he was under arrest. At that point, Gorup, who was standing directly outside his apartment door was placed in handcuffs but not transported from the scene (no marked police car was available.) While standing at the door, a detective noticed a person sitting on a couch inside the apartment and some blade-edged weapons. Gorup informed the detectives that a couple of people were in the apartment. While waiting, the detectives performed a “protective sweep” of the apartment and a “search incident to arrest.” In doing so, a detective searched an unzipped “small black zippered-type case” located on a table just inside the doorway, 4 or 5 feet away from Gorup where the officer observed plastic bags which his training and experience led him to believe contained methamphetamine. After this search, one of the detectives directed the uniformed officer to escort Gorup to the marked police car where the detective requested Gorup’s consent to search the apartment. Gorup was informed several times that he did not have to provide his consent and the detective testified that Gorup gave his consent to a search of the apartment. This subsequent search revealed several items of contraband in addition to the bags of methamphetamine in the black zippered case.

     Gorup was charged with possession of a controlled substance and before trial he moved to suppress all items of physical evidence seized from his apartment. The district court overruled the motion. The court found that the initial warrantless search of Gorup’s apartment was not lawful as a protective sweep and might have been unlawful as a search incident to arrest. However the Court found that the subsequent consent to the search of the apartment was voluntary and therefore served as an adequate basis for the seizure of the “hygiene case” and the contents thereof. It found that although Gorup knew that the detectives had entered his apartment, he did not know whether incriminating evidence had been found when he gave his consent to search the apartment. After a stipulated bench trial, the district court convicted Gorup of possession. Gorup appealed.

Did the district court err in not finding that Gorup’s consent was involuntary and an exploitation of the prior illegal search? Gorup claimed he reasonably believed that there was nothing to be gained by denying consent to search his apartment because he had already witnessed the detectives search the apartment prior to asking for his consent. Here, the district court found that the protective sweep of Gorup’s apartment was unlawful and that the search incident to a valid arrest might have been unlawful. It concluded, however, that the warrantless search of the black zippered case was lawful under the inevitable discovery doctrine because Gorup’s consent was voluntary. The Court said that while the district court reached the issue of the validity of Gorup’s consent, it did not definitively determine whether the search incident to a valid arrest exception applied. Had it concluded that the first search was valid, the validity of Gorup’s consent to the subsequent search would not have been required. For their analysis of the validity of the consent, the Court infered that the district court found that the search incident to a valid arrest exception did not apply. Here, the district court found Gorup’s consent was voluntary because the detective had advised Gorup that he could refuse consent and Gorup had not been confronted with any evidence from the prior search. However, the Court ruled that the district court erred in failing to consider the appropriate factors to determine whether the search was an exploitation of the prior illegality. Evidence must be excluded as fruit of the poisonous tree if it is discovered by the exploitation of illegal police conduct. The question is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. The U.S. Supreme Court identified the factors to consider in deciding whether the earlier illegal arrest contaminated the defendant’s confession: (1) the temporal proximity between the illegal arrest and the confession, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct. The Court said that the relevant factors will vary depending upon the facts of a particular case and pointed out that the purpose of the analysis in their written decision, was to determine whether under all the circumstances presented, the consent was obtained by exploitation of the prior illegal search. Here, the district court should have considered these factors in determining whether Gorup’s consent was obtained by the exploitation of the detectives’ prior search. Thus, the Court remanded the cause for consideration of such factors. “We pause here to acknowledge that we have not decided whether the first search was a valid search incident to an arrest and was therefore an exception to the warrant requirement. The district court did not decide that question, and therefore, we also remand the cause for a hearing on the issue whether the search incident to valid arrest exception applied to the first search” said the Court.

Conclusion: The Court said that whether the search incident to the arrest was a valid exception to the warrantless search is an issue which the district court should have addressed when ruling on the motion to suppress filed by Gorup. Additionally, they added that the district court should have considered the appropriate factors described in the opinion. JUDGMENT VACATED, AND CAUSE REMANDED WITH DIRECTIONS.


Trusts, Federal Income Tax

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The primary issue presented by this case is the interpretation of the revocable trust. In particular, the Nebraska Supreme Court was faced with the question of whether the trust specifically waived the apportionment of the Federal estate tax against the beneficiaries of property received from the estate of the trustor’s wife. The couple had set up a qualified terminable interest property (QTIP) trust, that qualified for the marital deduction, to avoid federal estate tax liability upon the death of the first of the couple.

In re Ervin W. Blauhorn Revocable Trust, 275 Neb. 256 (2008)

Supreme Court Headnotes

Trusts.

1.  The interpretation of the terms of a trust is a question of law.

Appeal and Error.

1.  Regarding matters of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court.

Decedents' Estates:

1.  Taxation: Appeal and Error. An appellate court reviews estate tax apportionment proceedings de novo on the record.

Statutes:

1.  Appeal and Error. Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court.

Taxation:

1.  Intent. Congress’ general intent with respect to the federal estate tax is that it be governed by state law and that absent contrary congressional enactments, state law govern the allocation of tax burden.

Statutes:

1.  Appeal and Error. Statutory language is to be given its plain and ordinary meaning. An appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

Affidavits.

1.  Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.

Date Filed and Case No.: March 21, 2008. No. S-06-531.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/march/mar21/s06-531.pdf

Court Appealed From: County Court for Merrick County: Linda S. Caster Senff, Judge.

Attorneys for the Appeal: Joseph H. Murray for Nancy L. Cockle et al., appellants. Steven E. Guenzel for In re Ervin W. Blauhorn Revocable Trust.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Heavican , C. J.

Summary: This appeal centered on the revocable trusts of Ervin and Bonnie, a married couple to whom no children were born. The couple had many nieces and nephews (the Scharvins, the appellants and the Blauhorns, the appellees.) Ervin and Bonnie’s estate plan used a qualified terminable interest property (QTIP) trust, that qualified for the marital deduction and the purpose behind this plan was to avoid federal estate tax liability upon the death of the first of the couple. Bonnie died first and her credit shelter and QTIP trust provided generally for Ervin and that at his death, the property would go to the Scharvins. No federal estate tax was due upon Bonnie’s death. After Bonnie’s death, Ervin executed a will, as well as the Ervin W. Blauhorn Revocable Trust Agreement. Pursuant to this will and trust, the Blauhorns were to inherit Ervin’s property. After Ervin died and during the administration of Ervin’s estate, the Scharvins were asked to pay a portion of the tax due from the estate which they refused, based on an article of Ervin’s trust agreement. Ervin’s trustee filed a petition to register and interpret the trust, requesting the county court to order the Scharvins to reimburse the trust. The county court granted the trustee’s request with respect to the federal estate tax and entered judgment in favor of the trust. The Scharvins appealed, and the trust cross-appealed.

Did the county court err in ordering the Scharvins to reimburse the trust for a portion of the federal estate tax paid by the trust? The Scharvins argued that a particular article of Ervin’s trust agreement waived any right of recovery against them and that instead, the full estate tax should be paid by the Blauhorns as beneficiaries under Ervin’s trust. The Court reviewed the federal legislation which lead to QTIP trusts and reminded that Bonnie, as the first to die, left a life interest in her property to Ervin with the remainder interest to the Scharvins. No tax was paid on Bonnie’s estate. When Ervin died, his property was left to the Blauhorns, while the life interest he held in Bonnie’s property was extinguished and the Scharvins received full ownership of the property. Tax was owed (and eventually paid) by Ervin’s estate.

     It is reimbursement for a portion of this tax which is at issue in this case. Looking to § 2207A of the Internal Revenue Code the Court concluded that section directly applies to the question presented and preempts any applicable state law to the extent that state law might purport to deal with the payment of federal estate tax attributable to QTIP. (Emphasis by Court.) Under § 2207A, Ervin’s estate is entitled to recover from the Scharvins the tax paid by the estate that would not have been owed had Bonnie’s property not been included in Ervin’s estate. But § 2207A does provide an exception for Ervin if he, by will or trust, otherwise directed an intent to waive any right of recovery under § 2207A. Section 2207A provides that “an intent to waive any right of recovery under this subchapter, must be specifically made. (Emphasis supplied.) Here, the language of Ervin’s trust agreement indicated that there was to be no right of reimbursement against recipients or beneficiaries. The Court concluded that the trust’s language was insufficient to waive the trust’s right of reimbursement under that section. Here, there was no reference to § 2207A, or even to the QTIP trust or property in the trust “specifically indicat[ing] an intent to waive any right of recovery under this subchapter” as required by § 2207A. As a result, the county court did not err in ordering the Scharvins to reimburse the trust for a portion of the federal estate tax paid by the estate.

Did the county court err in considering an affidavit? Here, Clifford Messner. an attorney for Ervin’s estate averred that he was the attorney who prepared the federal estate tax return for the estate. (Copies of which were attached to the affidavit.) The Scharvins contended that this affidavit and an unverified allegation in the petition to register and interpret the trust are the only evidence of the amount “supposedly due and owing . . . for the federal estate tax.” The Scharvins argued that the affidavit was not competent under Neb. Rev. Stat. § 25-1334 (Reissue 1995). The Court found the Scharvins’ argument to be without merit. Messner, as the attorney who actually completed the federal estate tax return for the estate, was competent to testify to the amount he calculated as being due on that return. In addition, Messner was competent to testify about the alternative calculation he performed wherein he omitted Bonnie’s property from the estate. In opposing the trust’s motion for summary judgment, the Scharvins had the opportunity to enter into the record evidence showing that Messner’s calculations were incorrect however, no such evidence was introduced. As such, the county court did not err in considering Messner’s affidavit.

Cross appeal? While Ervin’s trustee has filed a purported cross-appeal in this case the trust’s brief on cross-appeal did not comply with the Nebraska Supreme Court’s rules, and they did not address the cross-appeal.

Conclusion: The Court concluded that the county court did not err in granting the trust’s motion for summary judgment and denying the Scharvins’ motion. AFFIRMED.


Trusts, Interpretation

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The primary issue presented by this case is the interpretation of the revocable trust. In particular, the Nebraska Supreme Court was faced with the question of whether the trust specifically waived the apportionment of the Federal estate tax against the beneficiaries of property received from the estate of the trustor’s wife. The couple had set up a qualified terminable interest property (QTIP) trust, that qualified for the marital deduction, to avoid federal estate tax liability upon the death of the first of the couple.

In re Ervin W. Blauhorn Revocable Trust, 275 Neb. 256 (2008)

Supreme Court Headnotes

Trusts.

1.  The interpretation of the terms of a trust is a question of law.

Appeal and Error.

1.  Regarding matters of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court.

Decedents' Estates:

1.  Taxation: Appeal and Error. An appellate court reviews estate tax apportionment proceedings de novo on the record.

Statutes:

1.  Appeal and Error. Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court.

Taxation:

1.  Intent. Congress’ general intent with respect to the federal estate tax is that it be governed by state law and that absent contrary congressional enactments, state law govern the allocation of tax burden.

Statutes:

1.  Appeal and Error. Statutory language is to be given its plain and ordinary meaning. An appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

Affidavits.

1.  Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.

Date Filed and Case No.: March 21, 2008. No. S-06-531.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/march/mar21/s06-531.pdf

Court Appealed From: County Court for Merrick County: Linda S. Caster Senff, Judge.

Attorneys for the Appeal: Joseph H. Murray for Nancy L. Cockle et al., appellants. Steven E. Guenzel for In re Ervin W. Blauhorn Revocable Trust.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Heavican , C. J.

Summary: This appeal centered on the revocable trusts of Ervin and Bonnie, a married couple to whom no children were born. The couple had many nieces and nephews (the Scharvins, the appellants and the Blauhorns, the appellees.) Ervin and Bonnie’s estate plan used a qualified terminable interest property (QTIP) trust, that qualified for the marital deduction and the purpose behind this plan was to avoid federal estate tax liability upon the death of the first of the couple. Bonnie died first and her credit shelter and QTIP trust provided generally for Ervin and that at his death, the property would go to the Scharvins. No federal estate tax was due upon Bonnie’s death. After Bonnie’s death, Ervin executed a will, as well as the Ervin W. Blauhorn Revocable Trust Agreement. Pursuant to this will and trust, the Blauhorns were to inherit Ervin’s property. After Ervin died and during the administration of Ervin’s estate, the Scharvins were asked to pay a portion of the tax due from the estate which they refused, based on an article of Ervin’s trust agreement. Ervin’s trustee filed a petition to register and interpret the trust, requesting the county court to order the Scharvins to reimburse the trust. The county court granted the trustee’s request with respect to the federal estate tax and entered judgment in favor of the trust. The Scharvins appealed, and the trust cross-appealed.

Did the county court err in ordering the Scharvins to reimburse the trust for a portion of the federal estate tax paid by the trust? The Scharvins argued that a particular article of Ervin’s trust agreement waived any right of recovery against them and that instead, the full estate tax should be paid by the Blauhorns as beneficiaries under Ervin’s trust. The Court reviewed the federal legislation which lead to QTIP trusts and reminded that Bonnie, as the first to die, left a life interest in her property to Ervin with the remainder interest to the Scharvins. No tax was paid on Bonnie’s estate. When Ervin died, his property was left to the Blauhorns, while the life interest he held in Bonnie’s property was extinguished and the Scharvins received full ownership of the property. Tax was owed (and eventually paid) by Ervin’s estate.

     It is reimbursement for a portion of this tax which is at issue in this case. Looking to § 2207A of the Internal Revenue Code the Court concluded that section directly applies to the question presented and preempts any applicable state law to the extent that state law might purport to deal with the payment of federal estate tax attributable to QTIP. (Emphasis by Court.) Under § 2207A, Ervin’s estate is entitled to recover from the Scharvins the tax paid by the estate that would not have been owed had Bonnie’s property not been included in Ervin’s estate. But § 2207A does provide an exception for Ervin if he, by will or trust, otherwise directed an intent to waive any right of recovery under § 2207A. Section 2207A provides that “an intent to waive any right of recovery under this subchapter, must be specifically made. (Emphasis supplied.) Here, the language of Ervin’s trust agreement indicated that there was to be no right of reimbursement against recipients or beneficiaries. The Court concluded that the trust’s language was insufficient to waive the trust’s right of reimbursement under that section. Here, there was no reference to § 2207A, or even to the QTIP trust or property in the trust “specifically indicat[ing] an intent to waive any right of recovery under this subchapter” as required by § 2207A. As a result, the county court did not err in ordering the Scharvins to reimburse the trust for a portion of the federal estate tax paid by the estate.

Did the county court err in considering an affidavit? Here, Clifford Messner. an attorney for Ervin’s estate averred that he was the attorney who prepared the federal estate tax return for the estate. (Copies of which were attached to the affidavit.) The Scharvins contended that this affidavit and an unverified allegation in the petition to register and interpret the trust are the only evidence of the amount “supposedly due and owing . . . for the federal estate tax.” The Scharvins argued that the affidavit was not competent under Neb. Rev. Stat. § 25-1334 (Reissue 1995). The Court found the Scharvins’ argument to be without merit. Messner, as the attorney who actually completed the federal estate tax return for the estate, was competent to testify to the amount he calculated as being due on that return. In addition, Messner was competent to testify about the alternative calculation he performed wherein he omitted Bonnie’s property from the estate. In opposing the trust’s motion for summary judgment, the Scharvins had the opportunity to enter into the record evidence showing that Messner’s calculations were incorrect however, no such evidence was introduced. As such, the county court did not err in considering Messner’s affidavit.

Cross appeal? While Ervin’s trustee has filed a purported cross-appeal in this case the trust’s brief on cross-appeal did not comply with the Nebraska Supreme Court’s rules, and they did not address the cross-appeal.

Conclusion: The Court concluded that the county court did not err in granting the trust’s motion for summary judgment and denying the Scharvins’ motion. AFFIRMED.


Workers' Compensation, Average Weekly Income, Factors to Consider

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The issue in this case is the proper method of determining a worker’s “average weekly income,” as defined by Neb. Rev. Stat. § 48-126 (Reissue 2004).

Powell v. Estate Gardeners, 275 Neb. 287 (2008)

Supreme Court Headnotes

Workers' Compensation:

1.  The Nebraska Workers’ Compensation Act is designed to compensate an injured worker for the loss of earning capacity caused by the injury. ••• The Nebraska Workers’ Compensation Act is construed liberally to carry out its spirit and beneficent purposes.

2.  Statutes: Appeal and Error. The meaning of a statute is a question of law, and an appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law.

3.  Time. Where the worker has insufficient work history to be able to calculate his or her average weekly income based on as much of the preceding 6 months as he or she worked for the same employer, then what would ordinarily constitute that employee’s week’s work and, thus, that employee’s average weekly income should, if possible, be estimated by considering other employees working similar jobs for similar employers. Where available, such similar employee’s work records should be considered for the 6-month period prior to the accident.

Date Filed and Case No.: March 21, 2008. No. S-07-855.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/march/mar21/s07-855.pdf

Court Appealed From: Workers’ Compensation Court.

Attorneys for the Appeal: Jon S. Reid and Molly M. Lukenbill for Estate Gardeners, Inc., and Auto Owners Insurance, its Workers Compensation Insurer, appellants. Ryan C. Holsten and Brynne E. Holsten, Senior Certified Law Student for Brandon Powell, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: McCormack, J.

Summary: On August 22, 2005, Brandon Powell was hired by Estate Gardeners, Inc.,as a crewmember paid at the rate of $12 per hour. When he was hired, Powell understood that his hours would vary from day to day, but that he would average 50 to 60 hours per week during busy periods. Powell was injured on his first day of work after working 11.25 hours. The single judge of the Workers’ Compensation Court referred to testimony regarding Powell’s understanding of the hours Powell would work, as well as the evidence as to the average hours worked by other Estate Gardeners’ employees. The judge explained that he had reviewed statements that hours varied from 30 to 50 hours per week. Without delineating the precise basis of his calculation, the judge then concluded that Powell had shown, by a preponderance of the evidence, that Powell’s average weekly wage would encompass a normal and customary work period of 45 hours per week. ($12 per hour = $540 per week and temporary total disability benefits of $360 per week.)

     Powell appealed to the Workers’ Compensation Court review panel. Estate Gardeners and its insurer cross-appealed. The review panel considered the question of Powell’s weekly wage to be a matter of law. The panel stated that Powell’s contract for hire was for “continuous” employment “in excess of 40 hours per week.” It determined that under § 48-126, because the only evidence was that Powell worked 11.25 hours for 1 day before his injury and the evidence was that he would normally work 5 days per week, the panel was obligated to determine Powell’s average weekly wage by multiplying 11.25 by $12 per hour by 5 days, for a total weekly wage calculation of $675. Estate Gardeners and its workers’ compensation insurer appealed.

What was Powell’s “average weekly income?” Compensation for total disability is calculated at 66% percent “of the wages received at the time of injury.” “Wages,” in turn, are defined by § 48-126. Here, the parties seem to agree that Powell’s job as a landscaping crewmember was nonseasonal and that it was continuous and neither challenged the review panel’s conclusion to this effect. The question presented is how to calculate an "average weekly income” for an hourly employee when that employee’s contract for hire contemplated a varying number of hours and when the employee was injured on the first day of work. The Nebraska Supreme Court said that this is a question of statutory interpretation, which, as a question of law, it determines independently of the courts below. Here, the review panel did not to determine the average weekly income based upon “as much of the preceding six months as he or she worked.” The court instead assumed that Powell would have worked exactly 11.25 hours every day of a 5-day workweek without analyzing whether this was in fact likely. The review panel then projected this assumption into the past to create an average weekly income through a mathematical calculation it apparently believed was mandated by the plain language of § 48-126. The Court concluded that by conducting such a limited projection, the review panel did not follow the strict language of § 48-126. It also ignored other language of the statute pertinent to the admittedly unique circumstances here.

     Most workers’ compensation statutes in other jurisdictions make explicit provision for scenarios where the employee has not worked for a sufficient period of time for an average income to be calculated based upon that employee’s past earnings. Section 48-126 does not provide direction as explicit as other states’ statutory schemes. It does, however, emphasize that the average weekly wage for an hourly employee is to be based on “his or her average weekly income for the period of time ordinarily constituting his or her week’s work.” (Emphasis supplied.) It further states that the calculation of an average weekly wage “shall also be made with reference to the average earnings of a working day of ordinary length.” (Emphasis supplied.) If there can be no “ordinary” working hours for a particular employee based upon his or her actual, individual work history, then it may be necessary, if possible, to extrapolate an “ordinary length” and a period “ordinarily constituting his or her week’s work” from coworkers in the same position for the same employer. Like other workers’ compensation acts, the Nebraska Workers’ Compensation Act is designed to compensate an injured worker for the loss of earning capacity caused by the injury. The Court said it must apply a liberal construction to the act to carry out its spirit and beneficent purposes. “Certainly, had Powell been injured on his first day of work on a shortened day during the winter, or had he been injured after only part of his day’s work,” they wrote “he would not be urging that § 48-126 must be interpreted to mandate a mathematical extrapolation of that day’s work multiplied by 5 days a week. Such a calculation would not be an accurate reflection of Powell’s temporary loss of earning capacity and thus would not carry out the beneficent purposes of the act.”

     The Court concluded that where the worker has insufficient work history to be able to calculate his or her average weekly income based on “as much of the preceding six months as he or she worked for the same employer,” then what would “ordinarily” constitute that employee’s week’s work and, thus, that employee’s “average weekly income” should, if possible, be estimated by considering other employees working similar jobs for similar employers. Where available, such similar employees’ work records should be considered for the 6-month period prior to the accident.

Conclusion: From the record here, the Court could not determine the average week’s work of Powell’s other crewmembers for the 6 months preceding Powell’s accident. They therefore reversed the order of the review panel and remand the cause for further proceedings in accordance with this opinion. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.