State v. Soto

• Decision Date: 01 April 2003
• Docket Number: No. A-02-288.,A-02-288.
• Citation: 11 Neb. App. 667,659 N.W.2d 1
• Court: Nebraska Court of Appeals
• Parties: STATE of Nebraska, Appellant and Cross-Appellee, v. Michelle SOTO et al., Appellees and Cross-Appellants, and Toni Pounder et al., Appellees.

659 N.W.2d 1

11 Neb. App. 667

STATE of Nebraska, Appellant and Cross-Appellee, v. Michelle SOTO et al., Appellees and Cross-Appellants, and Toni Pounder et al., Appellees.

No. A-02-288.

Court of Appeals of Nebraska.

April 1, 2003.

Don Stenberg, Attorney General, and Tom Stine for appellant.

Martin J. Troshynski, of Baskins, Pederson & Troshynski, North Platte, for appellee Michelle Soto.

James E. Schneider, guardian ad litem, North Platte, for the natural children.

Jay C. Elliott, guardian ad litem, North Platte, for the stepchildren.

HANNON, INBODY, and MOORE, Judges.

MOORE, Judge.

INTRODUCTION

The State of Nebraska appeals from the order of the Nebraska Workers' Compensation Court review panel affirming an award of workers' compensation death benefits to dependents of James Soto. For the following reasons, we affirm.

BACKGROUND

James was killed in an automobile accident on July 13, 1999, while employed by the State as a highway maintenance worker. The accident arose out of and occurred in the course of James' employment with the State. At the time of the accident, James' average weekly wage was $396.72. The following individuals claim entitlement to workers' compensation death benefits in this matter: Michelle Soto as the spouse of James; Toni Pounder, Becky Pounder, and Steve Perez as stepchildren of James (collectively the stepchildren); and Jeremy Soto and Nickole Soto as natural children of James (collectively the natural children). The State paid benefits to Michelle, Becky, and Steve from July 14, 1999, through October 10, 2000; to Toni from July 14, 1999, through April 22, 2000; and to each of the natural children from July 14, 1999, through October 24, 2000. A wrongful death action against the third party wrongdoer was settled by James' estate on May 23, 2000, and additional litigation ensued in county court concerning the distribution of those settlement proceeds.

On September 28, 2000, the State filed a petition in the Nebraska Workers' Compensation Court, seeking a determination of the dependency of those claiming an interest in the workers' compensation benefits arising from James' death. The State served requests for admission directly on Michelle and on the stepchildren on January 5, 2001, which, if admitted, would have essentially indicated that they were not James' dependents. Michelle's counsel had not yet entered a formal appearance in the workers' compensation case at that time, although the State was allegedly aware both of Michelle's representation by counsel in the wrongful death action and that Michelle would be represented by the same attorney in the workers' compensation matter. Michelle's counsel moved to a different law firm on January 1 and notified Michelle of counsel's change in law firms as of that date. Michelle mailed the requests for admission, which had been directed to her, to her counsel's former office, where the requests were received in early February. Her counsel received the requests for admission at the new law firm on February 12. The requests directed to Michelle were then answered and served on the State on February 13, along with a letter explaining the delay. Michelle's answer denies each of the requests for admission directed to her. The stepchildren did not serve answers to the requests for admission prior to or during trial, which was held on May 15.

At trial, the State offered the requests for admission served on Michelle and the stepchildren, which requests were received into evidence over objections by Michelle and the stepchildren. Michelle's counsel orally moved for leave to file Michelle's answers to requests for admission "out of time," which motion was granted by the trial court over the State's objection. The court then received Michelle's February 13, 2001, responses to the requests for admission into evidence, which responses denied the requests. The guardian ad litem, who was appointed by the court on March 8 to represent the stepchildren, indicated that prior to trial, he had not been aware of the outstanding discovery requests addressed to the stepchildren. The guardian ad litem also orally moved for leave to file responses to the requests for admission directed to the stepchildren, which motion was granted over the State's objection. The record before us contains exhibits 11 through 13, the responses of Toni, Becky, and Steve to the State's requests for admission, in which each of the stepchildren denies the request directed to him or her. These responses were served on the State on May 16. The record also contains a stipulation and an order amending the bill of exceptions to include these exhibits.

Michelle testified that she married James in December 1998 and was married to him at the time of his death in July 1999. Michelle further testified that at the time of James' death, she was living with him in the same household, and that she was dependent on James for her livelihood during their marriage. Michelle testified that her three children (the stepchildren) lived with her and James between May 1998 and July 13, 1999, in a mobile home owned by James; that the stepchildren were financially supported by James during that period, with more than half of their financial support coming from James; and that as of July 13, James was primarily responsible for shelter, food, and clothing for the stepchildren. Michelle also indicated, however, that Toni and Becky worked part time at Sitel prior to James' death and that the girls used the money earned through this employment to purchase their own clothes, for personal expenses, and for "fun money."

Toni was born on April 23, 1982, and was age 17 at the time of James' death. Toni confirmed that in May 1998, she started living with her mother and James in the trailer owned by James, and that she was living there with them at the time of James' death. Prior to May 1998, Toni was living in a foster home. Toni testified that during the time she lived with James and Michelle, Toni was financially dependent on James for shelter, food, and "just basically living." She also indicated that James "paid the bills and stuff." Toni indicated that she worked part time at Sitel as a telemarketer between May and July 1999, making $7 an hour and earning $105 per week. Toni testified that her sister, Becky, worked at Sitel during this same period and that they "didn't even go back—after [James] died [they] didn't even go back." Toni indicated that Becky also earned approximately $105 per week while working at Sitel. Toni testified that she used the money she earned at Sitel for "fun money" and "clothes and stuff like that."

Becky was not present at trial because she was incarcerated in Lincoln. The record indicates that Becky was born May 9, 1983, making her 16 years old at the time of James' death.

Steve was born October 9, 1984. He was 14 years old at the time of James' death. Steve testified that he began living with James and Michelle in May 1998 and that he had previously been living in a foster home with his sisters, Toni and Becky. Steve's testimony indicates that between May 1998 and July 1999, he was in school, was not employed anywhere, and was supported by James.

As to James' natural children, the record indicates that Jeremy was born on January 2, 1984, and was age 15 at the time of James' death. Nickole was born on August 3, 1986, and was almost 13 years old at the time of James' death. The State did not challenge Jeremy and Nickole's entitlement to benefits at trial.

The trial court entered an award on June 8, 2001. The trial court found that at the time of James' death, he lived with his wife, Michelle, and Michelle's three children, the stepchildren. The trial court found that as of July 13, 1999, the stepchildren were dependents of James, that they lived in a home owned by James, and that except for the stepchildren's earnings from part-time work, which earnings were spent on "fun things," James was their source of support and maintenance. The court found that James was the natural father of Jeremy and Nickole and that they were entitled to benefits. The trial court found that Michelle, as James' wife, was to receive the sum of 55 percent of James' average weekly wage of $396.72, or $218.20, per week during her widowhood and that the natural children and the stepchildren were to receive the total sum of $79.34 per week, to be split equally among them. The benefits to the natural children and the stepchildren were to terminate for each child as he or she turned 18, unless the child was enrolled as a full-time student in any accredited educational institution, in which case the benefits for that child would continue until the child ceased to be so enrolled or reached the age of 25. The court also specified how the children's benefits were to be recalculated as individual children ceased to be eligible for the benefits and what was to occur in the event of remarriage by Michelle. The court gave the State credit for benefits already paid.

With regard to the State's requests for admission directed to Michelle and the stepchildren that were not timely answered, the trial court found that the compensation court is not bound by the usual common-law or statutory rules of evidence or by any technical rules of procedure. The court further found that while the failure to answer a request for admission within 30 days requires other courts to find the facts admitted, the compensation court is not required to do so. The court also noted that it had granted Michelle's and the stepchildren's motions to file answers out of time.

Finally, the court addressed the beneficiaries' claims to penalties and attorney fees. The compensation court declined to order a penalty and attorney fees because it found the existence of a reasonable controversy in an unsettled question of law related to the distribution of the wrongful death proceeds, which question is not relevant to our resolution of the appeal in...