Automobile Insurance SubrogationAutomobile Total Loss ThresholdsDeductible ReimbursementDiminution of ValueFirst Come, First Served: Subrogating Multiple Claims in Excess of Policy LimitsFuneral Procession Traffic LawsImputing Contributory Negligence of Driver to Vehicle OwnerLaws Regarding using Cell Phones/Headphones/Texting While DrivingLoss Of UseMed Pay/PIP SubrogationOwner Liability For Stolen VehiclesPayment of Sales Tax After Vehicle Total LossPedestrian and Crosswalk LawsRental Car Company Physical Damage and Loss of Use ClaimsRental Car Company’s Liability Insurance Primary or ExcessSlower Traffic Keep RightSudden Medical Emergencies While DrivingSuspension of Drivers’ LicensesUse of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Federal , State, and Local Governmental EntitiesMunicipal/County/Local Governmental Immunity and Tort LiabilityState Sovereign Immunity And Tort Liability
General Tort Laws/StatutesAnti-Indemnity StatutesContribution ActionsContributory Negligence/Comparative FaultDog Bite LawsEconomic Loss DoctrineParental ResponsibilitySpoliationStatute of LimitationsStatute of Limitations Exceptions
Health Insurance SubrogationHealth and Disability Insurance
InvestigationAdmissibility of Expert TestimonyPre-Suit Disclosure of Liability Policy Limits in Third-Party ClaimsRecording Conversations
Product Liability SubrogationProduct Liability Law
Property Subrogation“Matching Regulations” And Laws Affecting Homeowners Property ClaimsCondominium/Co-Op Waiver of Subrogation LawsDamage to Property Without Market ValueGeneral Contractor Overhead And Profit Payments In First-Party ACV Property Damage ClaimsLandlord/Tenant Subrogation
Subrogation GenerallyAnti-Subrogation RuleCriminal RestitutionMade Whole DoctrineMedical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Workers’ CompensationEmployee Leasing LawsHospital Lien LawsOCIP/CCIP Subrogation In Workers’ Compensation Construction CasesRecovery Of Increased Workers’ Compensation Premiums By EmployerWhich Workers’ Compensation “Benefits” Can Be Subrogated?Workers’ Compensation Subrogation Waiver EndorsementsWorkers’ CompensationWorkers’ Compensation Claims by Undocumented Employees
Automobile Insurance Subrogation
Automobile Total Loss Thresholds
Total Loss Threshold (75%).
Late model vehicle damage exceeds 75% of the retail value at the time it was wrecked, damaged, or destroyed. “Late model vehicle” means a vehicle which has (a) a manufacturer’s model year designation of, or later than, the year in which the vehicle was wrecked, damaged, or destroyed, or any of the six preceding years. Neb. Rev. Stat. § 60-171(6)(a).
Automobile: Pro-Rata. 210 Neb. Admin. Code, Ch. 60, § 009.03 provides: “Insurers shall include first-party claimant’s deductible, if any, in subrogation demands, unless requested not to by first-party claimant. Subrogation recoveries shall be shared on proportionate basis no less than yearly with first-party claimant, unless first-party claimant has otherwise recovered deductible amount. No deduction for expenses can be made from deductible recovery unless outside attorney is retained to pursue such collection and then only expenses shared, on pro-rata basis, shall be legal expenses.”
Deductible must be included in any collision subrogation demand upon claimant’s request.
Diminution of Value
First Party: Where damage to vehicle can, at a reasonable cost, be repaired and the property restored to substantially its condition immediately before damage occurred, and cost of repair does not exceed difference in market value of the property before and after injury, then measure of damages is reasonable cost of repair plus reasonable value of loss of use of the property for the reasonable amount of time required to complete repair. Loss of market value is only recoverable when vehicle is not repaired. Chlopek v. Schmall, 396 N.W.2d 103 (Neb. 1986).
Third Party: No court decisions regarding recovery allowed for diminution in value of a damaged vehicle in a third-party claim.
First Come, First Served: Subrogating Multiple Claims in Excess of Policy Limits
The best judgment of counsel for a liability insurer that a verdict against the insureds might exceed or be less than limit of insureds’ automobile liability policy could not be the basis for a finding of bad faith on the part of the liability insurer in failing to compromise or settle all claims against its insured for an amount within policy limit. Hadenfeldt v. State Farm Mut. Auto. Ins. Co., 239 N.W.2d 499 (Neb. 1976).
Where multiple claimants and multiple claims against the insured are involved, Nebraska recognizes and encourages use of a Bill of Interpleader. Burke Lumber & Coal Co. v. Anderson, 76 N.W.2d 630 (Neb. 1956). This is an equitable remedy in harmony with certain statutory provisions, whereby a liability carrier facing multiple claims against a limited policy limit, may require each of the multiple claimants to litigate among themselves the issue of entitlement to the limited funds.
Funeral Procession Traffic Laws
There are no state laws governing funeral processions, however, an Omaha city ordinance prohibits vehicles from driving through a funeral procession while they are in motion and when the vehicles are conspicuously designated by headlamps or flags. Vehicles in a funeral procession have the right-of-way in intersections, including at red lights. The driver in a procession still has the duty to exercise ordinary care, and if they are detached from the procession, the right-of-way is lost. Herman v. Lee, 316 N.W.2d 56 (Neb. 1982).
Imputing Contributory Negligence of Driver to Vehicle Owner
Imputed Contributory Negligence Law: Contributory negligence of family-purpose driver is not imputed to family-purpose owner suing third party for property damage to vehicle. Russell v. Luevano, 452 N.W.2d 43 (Neb. 1990).
The contributory negligence of an owner-husband will not be imputed to owner-wife who was passenger in suit for damages to vehicle by wife. Bartet v. Glasers Provisions Co., 71 N.W.2d 466 (Neb. 1955).
Vicarious Liability/Family Purpose Doctrine: No Vicarious Liability Statute.
Family Purpose Doctrine applies where head of family furnishes vehicle for use and pleasure of family, driver is family member, and driver was at time of accident using automobile with authority and consent of head of family. Marcus v. Everett, 239 N.W.2d 487 (Neb. 1976).
Sponsor Liability for Minor’s Driving: No sponsorship liability statute. However, under Neb. Rev. Stat. § 43-801, liability imposed on parents when child willfully or intentionally causes injury to person or damage to property.
Laws Regarding using Cell Phones/Headphones/Texting While Driving
Cell Phone/Texting: Driver with a provisional operator’s permit shall not use any type of interactive wireless telecommunication device while operating a motor vehicle. Neb. Rev. Stat. § 60-4, 120.01.
Holder of a learner’s permit (LPD) may not use interactive wireless telecommunication device while operating a motor vehicle.* Neb. Rev. Stat. § 60-4, 123.
Holder of school learner’s permit (LPE) may not use an interactive wireless telecommunication device while operating motor vehicle.* Neb. Rev. Stat. § 60-4, 124.
No driver may operate a motor vehicle while using a hand-held wireless communication device to read, write, or send a text message. This does not include hands-free or built-in wireless technology. Neb. Rev. Stat. § 60-6, 179.01.
Other Prohibitions: No Applicable Laws.
Comments: *A LPD is a permit issued to allow a person to legally practice driving for a Provisional Operator’s Permit (POP), Operator’s (Class O) or Motorcycle (Class M) License. Minimum age 15. A LPD is only valid for one year.
*A LPE is a School Learner’s Permit which is issued for the purpose of allowing a student to legally practice driving for a school permit. Individuals must be at least 14, but younger than 16 years to apply for a LPE. A LPE is only valid for three months, but can be renewed.
Loss Of Use
Loss of Use: Yes. Loss of use is measured by the fair rental value of a similar vehicle or the amount actually paid for the rental, whichever is less. When a damaged vehicle can be repaired, the measure of damages is reasonable cost of repair plus reasonable value of loss of use for the amount of time required to complete repair. When a damaged vehicle cannot be repaired, the measure of damages is lost market value plus reasonable value of loss of use of the property for the reasonable amount of time required to obtain a replacement. Chlopek v. Schmall, 396 N.W.2d 103 (Neb. 1986).
Lost Profits: Yes. In some situations. When property used for commercial or business purposes cannot be rented, loss of profits may establish reasonable value of loss of use for the purpose of assessment of damages. Chlopek v. Schmall, supra.
Comments: No case law requiring the actual rental of a replacement vehicle to recover loss of use. When vehicle can be repaired, measure loss of use damage using the fair rental value of a replacement vehicle. See Husebo v. Ambrosia, Ltd., 283 N.W.2d 45, 48 (Neb. 1979); Watson Bros. Transp. Co. v. Chicago, St. P., M. & O. Ry. Co., 25 N.W.2d 396 (Neb. 1947).
Med Pay/PIP Subrogation
Med Pay: Subrogation clause in auto insurance policy is valid and binding. Milbank Ins. Co. v. Henry, 441 N.W.2d 143 (Neb. 1989). If insured/claimant receives less than actual economic loss from all third parties, subrogation of Med Pay allowed only in same proportion that Med Pay benefits bear to total economic loss. Any recovery by settlement or judgment less than third-party policy limits is conclusively presumed a complete recovery of actual economic loss. Neb. Rev. Stat. § 44-3,128.01.
PIP: Coverage not applicable.
Made Whole: Plan language can override. Ploen v. Union Ins. Co., 573 N.W.2d 436 (Neb. 1998).
Statute of Limitations: The four (4) year personal injury statute of limitations runs from the date of the insured’s accident. Neb. Rev. Stat. § 25-207.
Owner Liability For Stolen Vehicles
Key In The Ignition Statutes: Neb. Rev. Stat. § 60-6,168.
Common Law Rule: No liability attaches to owner of vehicle when taken by thief, or other unauthorized person, who, while driving the vehicle, has an accident resulting in injury and damage to third persons. Gerken v. Hawkins Constr. Co., 498 N.W.2d 97 (Neb. 1993).
Payment of Sales Tax After Vehicle Total Loss
First-Party Claims: Insurer must pay sales tax in order to put the injured party back into the position they were in before the injury. NE Bulletin CB-49.
Third-Party Claims: Third-party total loss claims are evaluated in the same way as first-party total loss claims. NE Bulletin CB-49.
Pedestrian and Crosswalk Laws
Neb. Rev. Stat. § 60-6,153: Vehicle must yield to pedestrians close to or in vehicle’s half of crosswalk. Pedestrians must not leave crosswalk in front of vehicle if vehicle does not have time to stop. Vehicles must yield to pedestrians who enter crosswalk on a highway with bike or pedestrian path.
Neb. Rev. Stat. § 60-6,154: Pedestrians must yield to vehicles when crossing outside crosswalk. Pedestrians must use crosswalk at intersections with traffic control devices.
Summary: Motorist owes duty of reasonable care to pedestrian who is crossing outside crosswalk. Miller v. Moeller, 183 Neb. 508, 162 N.W.2d 224 (Neb. 1968). Pedestrian who sees or should’ve seen approaching vehicle and then suddenly walks into its path is guilty of contributory negligence. Halliday v. Raymond, 147 Neb. 179, 22 N.W.2d 614 (Neb. 1946).
Rental Car Company Physical Damage and Loss of Use Claims
Recovery From Renter: Recovery of physical damage and loss of use are not prohibited or otherwise regulated. Terms of rental agreement control. Collision Damage Waivers not regulated.
Recovery From Third-Party: Award of damages for loss of use of totally destroyed commercial vehicle in the amount of loss of profit until vehicle could be replaced was improper, as proper measure was fair rental value. Chlopek v. Schmall, 224 Neb. 78 (Neb. 1986).
Rental Car Company’s Liability Insurance Primary or Excess
Summary: No case or statutory law dealing specifically with car rental companies. Terms of rental agreement and renter’s liability policy should be compared to determine which is primary. Where both policies are “excess”, the car rental company’s policy will be considered “primary.” Bituminous Cas. Corp. v. Andersen, 171 N.W.2d 175 (Neb. 1969).
Slower Traffic Keep Right
Statute: Neb. Rev. Stat. § 60-6,131 and Neb. Rev. Stat. § 60-6, 133.
Summary: Drivers must drive in the right lane and use the left lane for passing only. Drivers must drive in the right lane except when passing another vehicle; when an obstruction exists in the right lane; upon a roadway divided into three traffic lanes; or upon a roadway restricted to one-way traffic. Slower traffic must keep right. Drivers proceeding slower than the normal speed of traffic must drive in the right lane. The driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle.
Sudden Medical Emergencies While Driving
Loss of Consciousness Defense. When a driver is suddenly deprived of his senses by “blacking out,” he could not comprehend the nature and quality of his acts. Storjohn v. Fay, 519 N.W.2d 521, 526 (Neb. 1994).
A sudden loss of consciousness is an affirmative defense. A defendant’s burden is twofold. First, the defendant must present sufficient evidence to establish that he suffered a sudden loss of consciousness prior to the accident, and second, that the loss of consciousness was not foreseeable. Storjohn v. Fay, 519 N.W.2d 521 (Neb. 1994).
Suspension of Drivers’ Licenses
Administrative Suspension: Within ninety (90) days after the receipt of an accident report (DR-41) of an accident involving injury, death, or property damage in excess of $1,000, the Department must suspend the license of each operator of a motor vehicle, unless he is able to produce proof of financial responsibility. Neb. Rev. Stat. § 60-507(1). Suspended license will be reinstatement upon proof of financial responsibility or after three (3) years if it can be shown that no actions have been taken against individual with license suspended. Neb. Rev. Stat. § 60-511.
Judgment: Upon receipt of the unsatisfied judgment, the Department will suspend the license and registration of the judgment debtor. Neb. Rev. Stat. § 60-517. The license and registration will remain suspended until the judgment is stayed, satisfied, or discharged, and until the uninsured motorist provides proof of financial responsibility. Neb. Rev. Stat. § 60-519.
Contact Information: Nebraska State Office Building, Driver Licensing Services, 301 Centennial Mall South, P.O. Box 94726, Lincoln, NE 68509-4726, (402) 471-3861, https://dmv.nebraska.gov/dl/driver-licensing-services.
Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Authority: 210 Neb. Admin. Ch. 45 § 001 to § 009.
Summary: All non-OEM parts must be permanently marked in such a way that identifies the manufacturer and the mark should be left visible after installation if at all practical. An insurer may not require the use of a non-OEM part unless the non-OEM part is of the same quality as its OEM equivalent. The insured must be informed of what parts are non-OEM in the written estimate and that the parts are of equal quality to their OEM equivalent.
Federal , State, and Local Governmental Entities
Municipal/County/Local Governmental Immunity and Tort Liability
Political Subdivisions Tort Claims Act (PSTCA): Neb. Rev. Stat. §§ 13-901 to 928 (1969). Applies to counties, cities, municipalities, school districts, etc. Limited waiver of governmental immunity. PSTCA read in harmony with the State Tort Claims Act. Kimminau v. City of Hastings, 864 N.W.2d 399 (Neb. 2015).
Notice Deadlines: Notice of claim must be filed within one (1) year of accrual. Suit must be filed within two (2) years. Neb. Rev. Stat. § 13-919. Must be filed with the clerk, secretary, or other official whose duty it is to maintain the official records of the political subdivision, or the governing body of a political subdivision may provide that such claims may be filed with the duly constituted law department of such subdivision. Neb. Rev. Stat. § 13-905. Woodard v. City of Lincoln, 588 N.W.2d 831, 838 (Neb. 1999).
Time to file suit extended six (6) months from date of mailing of claim determination or withdrawal of claim if Statute of Limitations would expire. If no disposition of claim within six (6) months, claim can be withdrawn, and suit filed. Neb. Rev. Stat. § 13-919.
City can be estopped from claiming it received inadequate notice from subrogated carrier. Great N. Ins. Co. v. Transit Auth. of City of Omaha, 2021 WL 1431862 (Neb. 2021).
Claims/Actions Allowed: Political subdivisions liable in same manner as private individual (ministerial act – duty imposed by law). Neb. Rev. Stat. § 13-908. Liable for operation of motor vehicle. Neb. Rev. Stat. § 13-910. Liable for sewer backup if city fails to take reasonable action to prevent backup. Desel v. City of Wood River, 614 N.W.2d 313 (Neb. 2000); Henderson v. City of Columbus, 811 N.W.2d 699, 712 (Neb. App. 2012).
Comments/Exceptions: Exceptions to liability: (1) discretionary function (official required to use judgment or discretion); (2) failure to inspect or negligent inspection of property unless reasonable notice; (3) claim by employee covered by workers’ compensation; (4) malfunction or destruction of traffic sign unless not corrected within reasonable time after notice; (5) snow or ice conditions caused by nature on highway; (6) highway repair unless notice; and (7) recreational activities unless gross negligence. Neb. Rev. Stat. § 13-910.
Substantial compliance when notice supplies the requisite and sufficient notice. Chicago Lumber Co. v. School Dist. No. 71, 417 N.W.2d 757 (Neb. 1988). In order to substantially comply with the requirements of § 13–919(1), notice must still be filed with an individual or office designated in the statute. Willis v. City of Lincoln, 441 N.W.2d 846 (Neb. 1989).
Damage Caps: $1 Million Per Person. $5 Million Per Occurrence. Neb. Rev. Stat. § 13-926.
State Sovereign Immunity And Tort Liability
Tort Claims Act: Nebraska Tort Claims Act. Neb. Rev. Stat. §§ 81-8,209 – 81-8,239.11 (1969).
Notice Deadlines: Claims shall be forever barred unless the claim is made in writing to the Risk Manager within two years after such claim accrued. Neb. Rev. Stat. § 81-8,227.
Claims/Actions Allowed: The State shall be liable in the same manner and to the same extent as a private individual under like circumstances. Neb. Rev. Stat. § 81-8,215. Injury to any innocent third party proximately caused by the action of a law enforcement officer employed by the State during vehicular pursuit, damages shall be paid to such third party by the State employing the officer. Neb. Rev. Stat. § 81-8,215.01.
Comments/Exceptions: The State does not waive its immunity for claims involving:
(1) a discretionary function or due care in the execution of a statute; or
(2) assault, battery, false imprisonment, or misrepresentation.
See Neb. Rev. Stat. § 81-8,219 for other exceptions.
Damage Caps: None.
General Tort Laws/Statutes
Prohibits Additional Insureds. Applies to Construction Contracts or Agreements. Neb. Rev. Stat. § 25-21; 187.
Not applicable to construction bonds or insurance agreements.
Modified Joint and Several Liability. Joint and several liability for economic damages (or defendants acting in concert), several liability for noneconomic damages. Neb. Rev. Stat. §§ 25-21, 185.10.
Joint tortfeasors have a right to contribution. The contribution plaintiff must extinguish the liability of the joint tortfeasor from whom contribution is sought. The right to contribution becomes enforceable when one tortfeasor discharges more than his proportionate share of the judgment. Neb. Rev. Stat. §§ 25-21, 185.10; Royal Indem. Co. v. Aetna Cas. & Surety Co., 229 N.W.2d 183 (Neb. 1975). Before contribution plaintiff can recover against contribution defendant, contribution plaintiff must prove by the greater weight of the evidence each and all of the following:
- Both that plaintiff and defendant had a common liability to the third party, and the amount of that common liability;
- Both that plaintiff paid more than its pro-rata share of the common liability, and the amount of money that it paid over and above its pro-rata share;
- The part of the common liability that is owed by defendant, and
- That plaintiff has extinguished defendant’s liability to third party.
If the liability of contribution defendant was extinguished by settlement, then instead of No. 3 above, you must show that the amount paid in settlement by the contribution plaintiff was reasonable.
The four (4) year statute of limitations runs from the date of settlement or payment of judgment. Neb. Rev. Stat. § 25-206 (1995); Cepel v. Smallcomb, 628 N.W.2d 654 (Neb. 2001).
Contributory Negligence/Comparative Fault
Modified Comparative Fault: 50% Bar. Damaged party cannot recover if it is 50% or more at fault. If 49% or less at fault, it can recover, although its recovery is reduced by its degree of fault. Plaintiff’s negligence will proportionately diminish their recovery, and recovery will be barred if 50% or more liable. Neb. Rev. Stat. §§ 25-21 and 185.11.
Dog Bite Laws
Dog owner will be held strictly liable for damages caused by their dog, unless the dog is playful and mischievous – in these cases, the “One-Bite” Rule applies. Neb. Rev. Stat. § 54-601.
Economic Loss Doctrine
Majority Rule. The ELD is “a judicially created doctrine that sets forth the circumstances under which a tort action is prohibited if the only damages suffered are economic losses.” Lesiak v. Central Valley Ag Co-op., Inc., 808 N.W.2d 67 (Neb. 2012); BNSF Railway Co. v. Seats, Inc., 2019 WL 266421 (D. Neb. 2019). No recovery in tort/product liability is allowed for economic damages to the product alone unless there is an accompanying personal injury or property damage to other property. National Crane Corp. v. Ohio Steel Tube, 332 N.W.2d 39 (Neb. 1983). There is an exception for intentional interference with a business relationship. Koster v. P & P Enter., Inc., 539 N.W.2d 274 (Neb. 1995). The ELD precludes tort remedies only where the damages caused were limited to economic losses and where either (1) a defective product caused the damage or (2) the duty which was allegedly breached arose solely from the contractual relationship between the parties. “Economic losses” are defined as “commercial losses, unaccompanied by personal injury or other property damage.” Lesiak, supra. Where a defective product causes harm only to itself, unaccompanied by either personal injury or damage to other property, contract law (i.e., warranty) provides the exclusive remedy to the plaintiff. Dobrovolny v. Ford Motor Co., 793 N.W.2d 445 (Neb. 2011).
Willful Misconduct. Liability imposed on parents when child willfully or intentionally causes injury to person or damage to property. Neb. Stat. § 43-801.
The limit of liability is $1,000.00. Child must be under 19-years-old.
Adverse Inference: When intentional destruction of evidence is established, the fact finder may draw the inference that the evidence destroyed was unfavorable to the party responsible for its destruction. State v. Davlin, 263 Neb. 283, 639 N.W.2d 631 (Neb. 2002); Trieweiler v. Sears, 268 Neb. 952, 992, 689 N.W.2d 807, 843 (Neb. 2004).
Statute of Limitations
Personal Property4 YearsNeb. Rev. Stat. § 25-207
Personal Injury/Death4 YearsNeb. Rev. Stat. § 25-207
Personal Injury/Wrongful Death2 YearsNeb. Rev. Stat. § 30-809, 30-810
Personal Injury/Medical Malpractice2 YearsNeb. Rev. Stat. § 25-222
Breach of Contract/Written5 YearsNeb. Rev. Stat. § 205
Breach of Contract/Oral4 YearsNeb. Rev. Stat. § 25-206
Breach of Contract/Sale of Goods4 YearsNeb. Rev. Stat. § 2-725
Statute of Repose/Products10 YearsNeb. Rev. Stat. § 25-224(2)*
Statute of Repose/Real Property10 YearsNeb. Rev. Stat. § 25-223**
Breach of Warranty/U.C.C.4 YearsNeb. Rev. Stat. § 2-725
Workers’ Comp Third Party Case4 YearsNeb. Rev. Stat. §§ 48-118; 48-118.01; and 48-118.04
Statute of Limitations Exceptions
10 Years from manufacture date. If not, foreign state’s repose applies, but not less than 10 Years. Neb. Rev. Stat. § 25-224(2).
**10 Years for actions for breach of warranty for improvement to real property. Neb. Rev. Stat. § 25-223.
Health Insurance Subrogation
Health and Disability Insurance
Statute of Limitations: 4 Years. Neb. Rev. Stat. § 25-207. Wrongful Death – 2 Years. Neb. Rev. Stat. §§ 30-809 and 30-810. Medical Malpractice – 2 years from injury date or 1 year from date of discovery. Neb. Rev. Stat. § 25-222.
Subrogation of Medical and Disability Benefits are allowed. Jensen v. Board of Regions of Univ. of Neb., 684 N.W.2d 537 (Neb. 2004). Made-Whole and Common Fund apply. Blue Cross & Blue Shield of Neb., Inc. v. Dailey, 687 N.W.2d 689 (Neb. 2004); Kindred v. City of Omaha Employees’ Retirement Sys., 564 N.W.2d 592 (Neb. 1997).
Admissibility of Expert Testimony
Admissibility Standards: Daubert
Case/Statutory Law: Schafersman v. Agland Coop., 631 N.W.2d 862 (Neb. 2001).
Pre-Suit Disclosure of Liability Policy Limits in Third-Party Claims
Duty To Disclose: No.
Failure To Disclose A Basis For Bad Faith: While an insurer is obligated to use due care and reasonable diligence to ascertain the facts surrounding a claim and obtain competent legal advice concerning the claim, the only ground for recovery in excess of policy limits is bad faith. Olson v. Union Fire Ins. Co., 118 N.W.2d 318 (Neb. 1976).
One-Party Consent: It is not unlawful for an individual who is a party to or has consent from a party of an in-person or electronic communication to record and or disclose the content of said communication unless the person is doing so for the purpose of committing a tortious or criminal act. It is also lawful for an individual to record electronic communications that are accessible to the general public. Neb. Rev. Stat. § 86-290(2)(c); Neb. Rev. Stat. § 86-276.
Product Liability Subrogation
Product Liability Law
Statute of Limitations/Repose: 4 years for personal injury. Neb. Rev. Stat. § 25-224 (Reissue 1995). Wrongful death is 2 years. Neb. Rev. Stat. §§ 30-809, 30-810. Statute of Repose is 10 years. Neb. Rev. Stat. § 25-224(2).
Liability Standards: Negligence, Strict Liability, Warranty
Fault Allocations: Modified Comparative. Neb. Rev. Stat. §§ 25-21 and 185.11.
Non-Economic Caps/Limits On Actual Damages: No.
Punitive Y/N and Limits: No.
Heeding Presumption?: Yes (competing authorities).
Innocent Seller Statute: Yes. Neb. Rev. Stat. § 25-21,181.
Joint and Several Liability: Yes. Neb. Rev. Stat. §§ 25-21, 185.10.
Available Defenses: Assumption of Risk; State of the Art; Misuse; Learned Intermediary; Inherently Unsafe Products; Presumption; Sophisticated User; Alteration.
Restatement 2nd or 3rd?: Restatement 2nd
“Matching Regulations” And Laws Affecting Homeowners Property Claims
Statute/Regulation: When replacement items do not reasonably match in quality, color or size, carrier must replace all items in the area so as to conform to a reasonably uniform appearance. This applies to both interior and exterior losses. Neb. Admin. R. & Regs. tit. 210, Ch. 60, § 010.
Caselaw: Policy provision for “replacement cost of that part of the building damaged for like construction and use on the same premises” did not require replacement of entire roof damaged by hailstorm, where only portions of roof had been damaged and needed repair. Eledge v. Farmers Mut. Home Ins. Co. of Hooper, Nebraska, 571 N.W.2d 105 (Neb. App. 1997).
Comments: In an unpublished opinion, the Nebraska Court of Appeals held that when hail damaged one side of the insured’s house and the replacement siding could not be matched to the siding on the other sides, only the damaged side should be replaced, and that the policy was clear on that language. Weiler v. Union Ins. Co., 2006 WL 2403935 (Neb. App. 2006).
Condominium/Co-Op Waiver of Subrogation Laws
Associations shall maintain property insurance and general liability insurance on the common elements. The insurer must waive subrogation rights against unit owners and members of their households. Neb. Rev. Stat. § 76-871(d)(2).
Damage to Property Without Market Value
Service Value: If property cannot be repaired and or when reasonable cost of repair exceeds difference in market value of property immediately before and immediately after injury, measure of damages is lost market value plus reasonable value of loss of use of property for reasonable amount of time required to obtain suitable replacement. Howells Elevator, Inc. v. Stanco Farm Supply Co., 455 N.W.2d 777 (Neb. 1990).
Intrinsic Value: “When articles of baggage have no market value, as clothing that has been in the use of the owner and articles of that nature, the value to the owner may be proved…” Gibbons v. Chicago, B. & Q. Ry. Co., 154 N.W. 226 (Neb. 1915).
Sentimental Value: Where property can be repaired to substantially its condition immediately before damage occurred, and cost of repair does not exceed difference in market value of the property before and after injury, then measure of damages is reasonable cost of repair plus reasonable value of loss of use of the property for the reasonable amount of time required to complete repair. Chlopek v. Schmall, 396 N.W.2d 103 (Neb. 1986).
General Contractor Overhead And Profit Payments In First-Party ACV Property Damage Claims
Payment And Depreciation Of GCOP/Sales Tax: No applicable case law, statutes, administrative rules, or other guidance with regard to the calculation and/or depreciation of GCOP.
Absent an express agreement to the contrary in a lease, a tenant and his/her landlord are implied co-insureds under the landlord’s fire insurance policy, and the landlord’s liability insurer is precluded from bringing a subrogation action against the negligent tenant. Tri-Par Investments, L.L.C. v. Sousa, 680 N.W.2d 190 (Neb. 2004); Legal Aid of Nebraska, Inc. v. Chaina Wholesale, Inc., 2022 WL 2788950 (D. Neb. 2022). This is true even when subrogating for portions of the building/complex which the tenant did not lease or live in. Buckeye State Mut. Ins. Co. v. Humlicek, 284 Neb. 463 (2012). To subrogate against a tenant in Nebraska, it is necessary to show that the provisions of the lease and the expectations of the parties overcome the presumption that the tenant is an implied co-insured.
In Beveridge v. Savage, 830 N.W.2d 482 (Neb. 2013), the lease provided: “Renter’s insurance is a ‘contents’ policy which covers tenant’s possessions, such as furniture, appliances, personal belongings, and household goods’.” However, renter’s insurance does not typically cover the structure of the leased premises. The lease also required Savage to obtain a “liability and renter[’]s insurance [policy] ($100,000) at Tenant’s expense.” However, the lease did not state what “liability” was to be covered. Therefore, it was not clear as to the tenant’s obligations and what liability the tenant was to insure. Finally, there is no lease provision stating that Beveridge or his insurer had a right of subrogation against the Savages for damages caused by fire as a result of negligence. There was no provision which gave the tenant notice that he must obtain insurance coverage for the realty in the event his negligence caused damage to the house by fire. The court said that the tenants reasonably expected that the owner of the building would provide fire insurance protection for the premises on behalf of both the tenant and landlord, and the provisions of the lease were insufficient to overcome the presumption that the Savages were co-insureds under Beveridge’s fire insurance policy. Because the Savages were co-insureds, no subrogation was allowed.
In SFI, Ltd. P’ship 8 v. Carroll, 851 N.W.2d 82 (Neb. 2014), the Nebraska Supreme Court held that the implied co-insured rule does not apply to uninsured losses. SFI owned an apartment complex and Michelle Carroll was a tenant under a residential lease agreement requiring Carroll to pay for repairs caused by her use of the unit and to maintain renter’s insurance including “a personal liability coverage to a minimum of $100,000.00.” A fire occurred and both the apartment and the surrounding building were damaged. SFI had $10 million of coverage with a deductible of $250,000. Still, SFI had over $100,000 in uninsured losses. But, neither the total amount of damages nor the amount of any insurance recovery by SFI was included in the evidence. Carroll had renter’s insurance and submitted a claim to her insurer, which paid $1,500 for her damages under “Loss of Use Coverage.” The court declined to extend the anti-subrogation rule to a landlord’s uninsured losses caused by a tenant’s negligence.
Generally, no right of subrogation can arise in favor of an insurer against its own insured. Stetina v. State Farm Mut. Auto. Ins. Co., 243 N.W.2d 341 (Neb. 1976). However, an insurer can subrogate against a policyholder whose intentional conduct resulted in a loss. Allstate Ins. Co. v. LaRandeau, 622 N.W.2d 646 (Neb. 2001) (where a husband intentionally burned down the home he and his wife shared, the insurer could pay the wife for her damages and subsequently subrogate against the husband by treating him as a third party to the relationship between insurer and the wife). If an insured tells a guest that he will leave his policy on the home intact for when the guest is staying in the home, the insurance can be said to be for the benefit of the guest as much as the insured, therefore, the ASR is triggered, and the guest is protected. Reeder v. Reeder, 348 N.W.2d 832 (Neb. 1984) (where homeowner let brother stay in his home after the homeowner moved and brother was waiting for his home’s construction to be completed, the brother was a co-insured under the policy after the homeowner told the brother he would leave the policy active). If it is the intent of a building owner to take out insurance for the mutual benefit of the building owner and a contractor, and if the owner fails to have the contractor listed as a named insured, the owner becomes the contractor’s insurer, and because an insurer’s rights can be no greater than the rights of their insured, the owner’s insurer has no right to subrogation against the contractor due to the ASR. Midwest Lumber Co. v. Dwight E. Nelson Constr. Co., 196 N.W.2d 377 (Neb. 1972). An insurer cannot seek to subrogate against its own insured, even if the insured was negligent in causing the loss; further, an insurer cannot recover from an implied co-insured for the very risk it contracted to assume. Hans v. Lucas, 703 N.W.2d 880 (Neb. 2005) (where a vendor of property contractually assumes the purchaser’s risk of loss, the purchaser is an implied co-insured for the limited purpose of defeating the vendor’s subrogation claim against the purchaser). An agreement where the CGL insurer of a contractor agreed to pay an employee of a subcontractor for their injuries in exchange for a portion of any settlement that the employee received from the subcontractor did not trigger the ASR despite the subcontractor being listed as an insured on the CGL policy. In Control Specialists v. State Farm Mut. Auto. Ins. Co., 423 N.W.2d 775 (Neb. 1988), the court held that the ASR did not preclude an insurance company from subrogating its payment on behalf of one of its named insureds against another named insured under a different policy. Despite the fact that the insured, whom the insurer sought to subrogate against, was one to whom the insurer owed a duty, it was a duty under a different contract from the one under which it asserted its subrogation rights. In Jacobs Engineering Group, Inc. v. ConAgra Foods, Inc., 917 N.W.2d 435 (Neb. 2018), the court held that under the anti-subrogation rule, no right of subrogation can arise in favor of an insurer against its own insured or coinsured for a risk covered by the policy, even if the insured is a negligent wrongdoer. Nebraska applies the ASR to cases which involve separate insureds under two separate policies. Control Specialists Co., Inc. v. State Farm Mutual Automobile Insurance Co., 423 N.W.2d 775 (Neb. 1988); Stetina v. State Farm Mutual Automobile Insurance Co., 243 N.W.2d 341 (Neb. 1976). In Control Specialists Co., Inc. v. State Farm Mutual Automobile Insurance Co., the Nebraska Supreme Court held that
“where two motor vehicles covered by the same insurance carrier collide, the nonnegligent driver may recover for damage to his vehicle under the negligent driver’s liability insurance and again under the property damage clause of his own insurance policy unless the nonnegligent driver’s policy limits such recovery.”
While it is unclear what provisions the non-negligent driver’s policy contained, the court in Control Specialists based its ruling on the principles set forth in Stetina v. State Farm Mutual Automobile Insurance Co., 243 N.W.2d 341 (Neb. 1976) (Where same insurance company provided automobile liability policies to both parties involved in automobile accident, the ASR prohibits subrogation).
Under the applicable Nebraska statute, “victims” are allowed restitution payments from a liable criminal defendant, when they have suffered a loss or property damage as a result of the criminal conduct. Neb. Rev. Stat. § 29‐2280. Nebraska case law has also stated that an insurer who has reimbursed the victim due to the defendant’s criminal conduct will, therefore, qualify as a “victim.” State v. Holecek, 621 N.W.2d 100 (Neb. 2000).
Made Whole Doctrine
Nebraska adheres to the Made Whole Doctrine and believes that where an insurer seeks subrogation and the insurer has not been made whole, equitable principles necessitate disallowing the insurer to assert subrogation rights. BlueCross & BlueShield of Neb., Inc. v. Dailey, 687 N.W.2d 689 (Neb. 2004). In general, any contractual subrogation provisions which attempt to negate the Made Whole Doctrine are deemed unenforceable as being in direct opposition to the equitable principles of subrogation. Id. When a health insurer subrogates, whether or not its subrogation rights can be enforced against the Plan beneficiary requires resolution of factual issues, such as the amount of medical costs incurred by the Plan beneficiary and the extent of other damages sustained by her. Bartunek v. George A. Hormel Co., 513 N.W.2d 545 (Neb. App. 1994); Skauge v. Mountain States Tel. & Tel. Co., 565 P.2d 628 (Neb. 1977). Nebraska adheres to the Made Whole Doctrine and an insurer will only be able to subrogate when its insured has obtained an amount which exceeds the insured’s total damages or loss. Bartunek, supra; Shelter Ins. Co. v. Frohlich, 498 N.W.2d 74 (Neb. 1993).
In Frohlich, the Nebraska Supreme Court addressed the issue of whether a grant of a summary judgment motion to an insurer was proper where the insured had not been fully compensated for her loss. Frohlich, supra. In resolving this issue, the court recognized that general subrogation clauses, while typically valid and enforceable, rarely define the precise nature and extent of an insurer’s subrogation interest or right. Consequently, the common law rule that subrogation is unavailable until the subrogor has been paid in full is applicable unless the contract provides for subrogation on payment of less than full recovery. It is not enough that the contractual rights merely provide for or recognize the insurer’s right of subrogation.
Full compensation, in the absence of a contract or statutory provision to the contrary, is a prerequisite to subrogation. Id. The rationale for this rule is that the insurance policy contains a basic promise to pay which should be subordinated to the insured’s right to complete compensation. Thus, if anyone is to go unpaid it should be the insurer. Because the subrogation provision at issue in Frohlich was insufficient to modify the common law Made Whole Doctrine, the court reversed the grant of summary judgment in favor of the insurer and remanded the case back to the trial court for purposes of determining what amount would constitute full compensation of the insured.
In Dailey, the Supreme Court of Nebraska recommitted itself to the common law Made Whole Doctrine by overruling Frohlich to the extent that it could be construed to permit conventional subrogation when the insured has not been fully compensated. Dailey, supra. In other words, the court in Dailey made it clear that the parties may not contract out of the Made Whole Doctrine.
There is no precise formula for determining whether an insured has been made whole in Nebraska. The issue is generally treated as a question of fact. However, medical expenses and other damages suffered by the insured are to be considered. Frohlich, supra. Factors affecting the enforceability of a subrogation right such as the tortfeasor’s ability to pay beyond the amount of the subrogor’s settlement and whether the settling parties have stipulated that the settlement satisfies all damages sustained by the insured are also relevant. Jury verdicts, however, are presumptively conclusive of the amount that would completely compensate the insured. Bartunek, supra; Pleon v. Union Ins. Co., 573 N.W.2d 436 (Neb. 1998) (holding statute providing that settlement or judgment less than the policy limit of any applicable auto liability insurance policy constitutes complete recovery of actual economic loss to be constitutional).
While there is some authority in Nebraska for the proposition the Made Whole Doctrine may be overridden by specific contract terms in a Plan or policy, the case law which suggests this dealt with § 44-3,128.01, the Nebraska statute which allows an auto liability policy to contain a provision permitting pro-rata subrogation in the situation where the insured did not fully recover his or her loss, and probably isn’t germane to regular subrogation matters. Pleon, supra. However, case law also says that “if a contractual right of subrogation is merely the usual equitable right which would have existed in any event in the absence of a contract, equitable principles control subrogation.” Daily, supra. This leaves open the argument that if the terms of the policy or insurance contract provide for something different from common law equitable subrogation (such as reimbursement provisions, etc.), an argument might be successfully made that the contract can overrule the equitable Made Whole Doctrine.
Medical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Collateral Source Rule: The common law CSR provides that collateral sources will not diminish damages otherwise recoverable from the wrongdoer. Mahoney v. Nebraska Methodist Hosp., 560 N.W.2d 451 (Neb. 1997). Evidence of collateral sources is inappropriate. Harper v. Young, 298 N.W. 342 (Neb. 1941).
Recovery Of Medical Expenses Rule:
Private Insurance: Private insurance treated the same as social welfare benefits. Mahoney v. Nebraska Methodist Hosp., 560 N.W.2d 451 (Neb. 1997); Fickle v. State, 759 N.W.2d 113 (Neb. 2007).
Medicare/Medicaid: The billed amount, not the Medicare or Medicaid reduced rate, is the proper rate to use in calculating the reasonable value of medical expenses, past and future. Social legislation benefits, including payments by Medicare and Medicaid, are excluded by the CSR. Fickle, supra.
Related Law/Comments: The rationale for Medicaid is that once plaintiff receives a verdict, he might no longer be eligible for Medicaid because eligibility standards take into account the resources available to a Medicaid applicant or recipient. Fickle, supra.
Medical Malpractice: Non-refundable medical reimbursement insurance benefits, less all premiums paid by or for claimant, are credited against any judgment rendered under the Nebraska Hospital-Medical Liability Act. Neb. Rev. Stat. § 44-2819.
Employee Leasing Laws
An employee leasing company and its client company are both considered employers for purposes of the Exclusive Remedy Rule, and are immune from third-party actions. Schwartz v. Riekes & Sons, 240 N.W.2d 581 (Neb. 1976).
Hospital Lien Laws
Statute: Neb. Rev. Stat. § 52-401 – 402. Liens.
To perfect a lien in Nebraska under § 52-401, a provider must do the following:
(1) Serve written notice upon the person or corporation from whom damages are claimed.
(2) State amount due and nature of such services.
Comments: Workers’ compensation benefits are excluded. § 52-401. If there is an action already filed, it shall be sufficient to file the lien notice in the pending action. § 52-401.
- Liability carrier directly liable to provider when it settles with injured party after perfection and impairs lien. Nebraska Gen. Hosp. v. Farmers Ins. Exch., 475 N.W.2d 901 (Neb. 1991).
- Liability carrier can impair provider’s lien when it does not include provider on settlement check, even after receiving assurance from counsel that all liens would be satisfied. Alegent Health v. Am. Family Ins., 656 N.W.2d 906 (Neb. 2003).
Attorney lien trumps provider lien. § 52-401.
OCIP/CCIP Subrogation In Workers’ Compensation Construction Cases
OCIP Law: If participation in the OCIP is mandatory, the owner of the OCIP cannot be considered the plaintiff’s statutory employer, nor could be sued. Even though the owner’s insurance company pays workers’ compensation benefits to a subcontractor’s employee, the exclusive remedy defense did not apply to protect the owner. Culp v. Archer-Daniels-Midlands Co., 2009 WL 1035246 (D. Neb. 2009).
Statutory Employer Law: An owner who requires its contractor or contractors to take out workers’ compensation insurance is not considered an employer for purposes of the Exclusive Remedy Rule. If there was no such obligation of the subcontractor to obtain workers’ compensation coverage, then the owner would be a statutory employer and the exclusive remedy protection would apply. Culp v. Archer-Daniels-Midlands Co., 2009 WL 1035246 (D. Neb. 2009).
Comments: An owner is the “employer” or “statutory employer” of an independent contractor’s employee under Neb. Stat. § 48–116 when the owner does not require the independent contractor to procure workers’ compensation insurance. Rogers v. Hansen, 317 N.W.2d 905, 908 (Neb. 1982). Nebraska law does not recognize as a statutory employer one who ultimately bears the insurance costs. Petznick v. United States, 575 F.Supp. 698 (D. Neb.1983). The key inquiry is whether the subcontractor is required to obtain workers’ compensation coverage or not.
Recovery Of Increased Workers’ Compensation Premiums By Employer
Recovery For Increased Premiums? Undecided.
Statute/Case Law: No.
Rule Summary: There is no authority or precedent regarding the attempted recovery of damages for increased workers’ compensation insurance premiums by an employer from a third-party tortfeasor.
Which Workers’ Compensation “Benefits” Can Be Subrogated?
There is no precedent or discussion in case law regarding whether nurse case management fees or other allocated costs which may benefit the employer and/or employee can be recovered in subrogation. Section 48-118 describes a workers’ compensation carrier’s subrogation interest as follows: … the amount payable as compensation to such employee or dependents. Neb. Rev. Stat. § 48-118.
Workers’ Compensation Subrogation Waiver Endorsements
Subrogation Statute: Neb. Rev. Stat. §§48-118 48-118.01 and 48-118.04
Waiver Allowed? Nothing in the Indiana Workers’ Compensation Act or applicable case law prohibits the use or efficacy of a waiver of subrogation.
Effect Of Waiver Endorsement on Carrier’s Right To Assert A Lien On Claimant’s Recovery: Unclear; however, a carrier’s right to a future credit will not be waived unless the employer intentionally and voluntarily waives such right. Turner v. Metro Area Transit, 368 N.W.2d 09 (Neb. 1985).
Other Applicable Law: Any carrier wishing to include such an endorsement in its policies must seek approval from the Nebraska Department of Insurance.
Statute of Limitations: 4 Years. Neb. Rev. Stat. §§ 48-118; 48-118.01; and 48-118.04.
Can Carrier Sue Third Party Directly: Yes.
Right to Intervene: Yes, equal voice.
Recovery from UM/UIM Benefits: Yes, possibly Employer’s Policy Only.
Subrogation Against Medical Malpractice: Yes.
Subrogation Against Legal Malpractice: Undecided.
Recovery Allocation/Equitable Limitations: (1) Fees, Expenses; (2) Carrier Fully Reimbursed; and (3) Balance to Plaintiff. (Division must be agreed to or court approved as fair and equitable.)
Employer Contribution/Negligence: No, only if contractual indemnity.
Attorney’s Fees/Costs: Fees/costs recoverable and allocated if the carrier is active. If not, pro-rata deduction.
Future Credit: Yes.
Auto No-Fault: No.
Workers’ Compensation Claims by Undocumented Employees
Statute: The statute expressly includes “aliens” and includes them under “every person” in the statute. Neb. Rev. Stat. § 48-115(2).
Case Law: Ortiz v. Cement Prod., Inc., 708 N.W.2d 610 (Neb. 2005).
Comments/Explanation/Other: *Ortiz ruled that vocational rehabilitation benefits to illegal aliens are denied because the illegal alien is unable to return to some form of employment in the U.S., contrary to the purpose of such services.