917 N.W.2d 435 (Neb. 2018), S-16-896, Jacobs Engineering Group Inc. v. ConAgra Foods, Inc.

Docket Nº:S-16-896
Citation:917 N.W.2d 435, 301 Neb. 38
Opinion Judge:Funke, J.
Party Name:JACOBS ENGINEERING GROUP INC., appellee, v. CONAGRA FOODS, INC., appellant.
Attorney:Christopher Landau, P.C., of Kirkland & Ellis, L.L.P., William F. Hargens and Lauren R. Goodman, of McGrath, North, Mullin & Kratz, P.C., L.L.O., Omaha, and on brief, Jeremy M. Feigenbaum, for appellant. Stephen B. Kinnaird and Sarah G. Besnoff, of Paul Hastings, L.L.P., Gilbert S. Keteltas, Robe...
Judge Panel:Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ. Kelch, J., not participating in the decision. Wright, J., not participating.
Case Date:September 14, 2018
Court:Supreme Court of Nebraska

Page 435

917 N.W.2d 435 (Neb. 2018)

301 Neb. 38



CONAGRA FOODS, INC., appellant.

No. S-16-896

Supreme Court of Nebraska

September 14, 2018

Page 436

[Copyrighted Material Omitted]

Page 437

[Copyrighted Material Omitted]

Page 438

[Copyrighted Material Omitted]

Page 439

[Copyrighted Material Omitted]

Page 440


1. Actions: Parties: Standing. Whether a party who commences an action has standing and is therefore the real party in interest presents a jurisdictional issue.

2. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question does not involve a factual dispute, determination of a jurisdictional issue is a matter of law which requires an appellate court to reach a conclusion independent from the trial court’s; however, when a determination rests on factual findings, a trial court’s decision on the issue will be upheld unless the factual findings concerning jurisdiction are clearly incorrect.

3. Directed Verdict: Appeal and Error. In reviewing a trial court’s ruling on a motion for directed verdict, an appellate court must treat the motion as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed; such being the case, the party against whom the motion is directed is entitled to have every controverted fact resolved in its favor and to have the benefit of every inference which can reasonably be deduced from the evidence.

4. Directed Verdict: Evidence. A directed verdict is proper at the close of all the evidence only when reasonable minds cannot differ and can draw but one conclusion from the evidence, that is, when an issue should be decided as a matter of law.

5. Judgments: Appeal and Error. An appellate court reviews a denial of a motion to alter or amend the judgment for an abuse of discretion.

6. Motions for New Trial: Appeal and Error. An appellate court reviews a trial court’s ruling on a motion for a new trial for an abuse of discretion.

7. Contracts. Contract interpretation presents a question of law.

[301 Neb. 39] 8. Jury Instructions. Whether the jury instructions given by a trial court are correct is a question of law.

9. Judgments: Appeal and Error. An appellate court independently reviews questions of law decided by a lower court.

10. Verdicts: Appeal and Error. When reviewing a jury verdict, the appellate court considers the evidence and resolves evidentiary conflicts in favor of the successful party.

11. Verdicts: Juries: Appeal and Error. A jury verdict may not be set aside unless clearly wrong, and it is sufficient if there is competent evidence presented to the jury upon which it could find for the successful party.

12. Actions: Parties: Standing. The focus of the real party in interest inquiry is whether the party has standing to sue due to some real interest in the cause of action, or a legal or equitable right, title, or interest in the subject matter of controversy.

13. Standing: Jurisdiction: Parties. Standing refers to whether a party had, at the commencement of the litigation, a personal stake in the outcome of the litigation that would warrant a court’s or tribunal’s exercising its jurisdiction and remedial powers on the party’s behalf.

14. Actions: Parties: Jurisdiction: Standing. The question of whether a party who commences an action has standing and is therefore the real party in interest is jurisdictional. Because the requirement of standing is fundamental to a court’s exercise of jurisdiction, either a litigant or a court can raise the question of standing at any time.

15. Standing. The stage of the litigation in which a party claims that its opponent lacks standing affects how a court should dispose of the claim.

16. Standing: Pleadings: Pretrial Procedure. In resolving a facial challenge, a court will review the pleadings to determine whether there are sufficient allegations to establish the plaintiff’s standing.

17. Motions to Dismiss: Jurisdiction: Pleadings: Appeal and Error. An appellate court reviews a trial court’s decision on a motion to dismiss for lack of subject matter jurisdiction based on a facial attack on the pleadings de novo.

18. Motions to Dismiss: Jurisdiction: Pleadings: Appeal and Error. Where the trial court’s decision on a motion to dismiss for lack of subject matter jurisdiction is based on a factual challenge, the court’s factual findings are reviewed under the clearly erroneous standard.

19. Insurance: Contracts: Words and Phrases. An indemnity contract is a chose in action because it confers a right to bring a legal action to recover a sum of money from or out of the contract.

20. Liability: Damages. Indemnification is available when one party is compelled to pay money which in justice another ought to pay or has agreed to pay.

[301 Neb. 40] 21. Pleadings: Evidence: Words and Phrases. A judicial admission is a formal act done in the course of judicial proceedings which is a substitute for evidence, thereby waiving or dispensing with the production of evidence by conceding for the purpose of litigation that the proposition of fact alleged by the opponent is true.

22. Jurisdiction. While parties cannot confer subject matter jurisdiction upon a judicial tribunal by either acquiescence or consent, nor may subject matter jurisdiction created by waiver, estoppel, consent, or conduct of the parties, such does not prevent a party from conclusively admitting the truth of an underlying fact required to establish subject matter jurisdiction by judicial admission.

23. Pretrial Procedure: Pleadings. A general denial is not effective where an answer contains specific admissions of facts alleged.

24. Actions: Parties: Intent. The primary purpose of the real party in interest requirement is to protect the defendant from the risk of multiple litigation.

25. Insurance: Damages. Under the collateral source rule, the fact that the party seeking recovery has been wholly or partially indemnified for a loss by insurance or otherwise cannot be set up by the wrongdoer in mitigation of damages.

26. Circumstantial Evidence: Proof. Circumstantial evidence is not inherently less probative than direct evidence, and a fact proved by circumstantial evidence is nonetheless a proven fact.

27. Evidence: Proof. A finder of fact may draw reasonable inferences from the facts and circumstances proved.

28. Contracts: Words and Phrases. An indemnity agreement is a contract to be construed according to the principles generally applied in construction or interpretation of other contracts.

29. Contracts. A contract must receive a reasonable construction and must be construed as a whole, and if possible, effect must be given to every part of the contract.

30. Workers’ Compensation: Liability: Contracts. When an employer, liable to an employee under the Nebraska Workers’ Compensation Act, agrees to indemnify a third party for a loss sustained as the result of the third party’s payment to the indemnitor’s employee, the employer’s exclusion from liability accorded by the act does not preclude the third party’s action to enforce the indemnity agreement with the indemnitor-employer.

31. Jury Instructions: Pleadings: Evidence. A litigant is entitled to have the jury instructed upon only those theories of the case which are presented by the pleadings and which are supported by competent evidence.

32. Jury Instructions: Appeal and Error. If the instructions given, which are taken as a whole, correctly state the law, are not misleading, and [301 Neb. 41] adequately cover the issues submissible to a jury, there is no prejudicial error concerning the instructions and necessitating a reversal.

33. Verdicts: Appeal and Error. Where a party has sustained the burden and expense of trial and has succeeded in securing a verdict on the facts in issue, that party has the right to keep the benefit of the verdict unless there is prejudicial error in the proceedings by which it was secured.

34. Negligence. A party is only answerable for the natural, probable, reasonable, and proximate consequences of his acts; and where some new efficient cause intervenes, not set in motion by him, and not connected with but independent of his acts and not flowing therefrom, and not reasonably in the nature of things to be contemplated or foreseen by him, and produced the injury, it is the dominant cause.

35. Negligence. Because the extent of foreseeable risk depends on the specific facts of the case, courts should leave such determinations to the trier of fact unless no reasonable person could differ on the matter.


To continue reading