Bailey v. Lund-Ross Constructors Co.
| Citation | 657 N.W.2d 916,265 Neb. 539 |
| Decision Date | 21 March 2003 |
| Docket Number | No. S-02-174.,S-02-174. |
| Parties | Lance D. BAILEY, Appellee, v. LUND-ROSS CONSTRUCTORS CO., a Nebraska corporation, Appellant, and Merrimac Stone Co., a New Hampshire corporation, Appellee. |
| Court | Nebraska Supreme Court |
Thomas A. Grennan, Omaha, and Francie C. Riedmann, of Gross & Welch, P.C., for appellant.
Michael F. Scahill and James D. Garriott, Omaha, of Cassem, Tierney, Adams, Gotch & Douglas, for appellee Merrimac Stone Co.
William E. Gast, P.C., L.L.O., and James E. Bachman, Omaha, for appellee Lance D. Bailey.
Lund-Ross Constructors Co. (Lund-Ross) appeals the district court's order overruling its motion for leave to file a cross-claim against Merrimac Stone Co. (Merrimac). Lund-Ross sought to assert a cross-claim against Merrimac to proportionately diminish its liability to Lance D. Bailey, if any, by the percentage of contributory negligence attributable to Merrimac pursuant to Neb.Rev.Stat. § 25-21,185.10 (Reissue 1995). Lund-Ross appealed after the district court entered a "final judgment" pursuant to Neb.Rev. Stat. § 25-1315(1) (Cum.Supp.2002). We moved the case to our docket pursuant to our authority to regulate the caseloads of this court and the Nebraska Court of Appeals. See Neb.Rev.Stat. § 24-1106(3) (Reissue 1995).
Bailey filed a petition naming both Lund-Ross and Merrimac as defendants. In his petition, Bailey alleged that Lund-Ross, as the general contractor of a building under construction in Omaha, Nebraska, entered into a contract with Merrimac to "perform, as sub-contractor, certain stone masonry services in connection with the construction of the aforementioned building." Bailey further alleged that in August 2000, he was employed by Merrimac and, during the course of his employment, assisted in placing stone masonry on the side of the building under construction while on scaffolding approximately 40 feet above ground level. Bailey asserted that as a direct and proximate result of Lund-Ross' negligent failure to safely construct and monitor the scaffolding, the scaffolding collapsed, causing him to fall and sustain injuries. Bailey named Merrimac as a defendant "solely for the purpose of determining [Merrimac's] subrogation rights under the Nebraska Workers' Compensation Law." Bailey prayed for both a determination of Merrimac's "rights and liabilities under the Workers' Compensation Act" and for a judgment against Lund-Ross for general and special damages.
Merrimac filed an answer in which it admitted all the allegations contained in Bailey's petition. Merrimac additionally alleged that it had paid workers' compensation benefits in the amount of $2,675 to Bailey for the injury Bailey suffered during the course of his employment with Merrimac. Merrimac asserted that pursuant to Neb.Rev.Stat. § 48-118 (Cum.Supp. 2002), it was entitled to recover from Lund-Ross "its workers' compensation subrogation interest" in the amount of $2,675.
Lund-Ross filed an answer admitting that it had entered into a contract with Merrimac to perform stone masonry services and that Bailey "fell from scaffolding" and "sustained some injuries" while working for Merrimac on the building under construction. Lund-Ross denied that its negligence either caused the scaffolding to collapse or caused Bailey to suffer injuries. Additionally, Lund-Ross alleged as an affirmative defense, inter alia, that Bailey was contributorily negligent in a percentage sufficient to bar his recovery. Lund-Ross prayed that Bailey's petition be dismissed.
After filing its answer, Lund-Ross filed an amended motion for leave to file a cross-claim against Merrimac on the following grounds: Lund-Ross attached a proposed cross-claim to its amended motion alleging that its liability to Bailey, if any, should be reduced by the extent of contributory negligence apportioned to Merrimac pursuant to § 25-21,-185.10.
In an order dated January 9, 2002, the district court overruled Lund-Ross' amended motion for leave to file its proposed cross-claim. In response, Lund-Ross filed a "Motion for Determination of Final Judgment," in which it requested the court to determine that (1) the January 9 order overruling Lund-Ross' motion for leave to file a cross-claim was a final judgment and (2) there was no just reason for delay of the entry of judgment so that Lund-Ross could immediately pursue an appeal.
Lund-Ross appeals the district court's denial of its motion for leave to file its proposed cross-claim.
Lund-Ross assigns that the district court erred in (1) overruling its amended motion for leave to file a cross-claim; (2) "ruling that a cross-claim against [Bailey's] employer, in order to permit the trier of fact to apportion negligence pursuant to Neb.Rev.Stat. § 25-21,185.07 et seq., would violate the `exclusivity provision' of Neb. Rev.Stat. § 48-148"; and (3) "finding that the negligent employer's subrogation claim could not be reduced by its percentage of negligence."
A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. Slaymaker v. Breyer, 258 Neb. 942, 607 N.W.2d 506 (2000); In re Application of SID No. 384, 256 Neb. 299, 589 N.W.2d 542 (1999).
Before reaching the assignments of error asserted by Lund-Ross, this court must first determine whether it has jurisdiction. It is the power and duty of an appellate court to determine whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised by the parties. Vopalka v. Abraham, 260 Neb. 737, 619 N.W.2d 594 (2000). For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken; conversely, an appellate court is without jurisdiction to entertain appeals from nonfinal orders. In re Interest of Anthony R. et al., 264 Neb. 699, 651 N.W.2d 231 (2002); Larsen v. D B Feedyards, 264 Neb. 483, 648 N.W.2d 306 (2002).
The appeal of the district court's order denying Lund-Ross' motion for leave to amend was brought pursuant to § 25-1315(1), after the district court determined that "there is no just reason for delay of such final judgment." Explaining such determination, the court stated:
By ruling that the Order [dated] January 9, 2002, is a final judgment, the Court states that the issues presented by the proposed Cross-Claim are issues that affect a substantial right of Defendant Lund-Ross Constructors Co. Specifically, Defendant Lund-Ross Constructors Co. seeks to have the alleged negligence of Merrimac Stone Company considered by the jury for purposes of apportionment and, among other things, defeating the subrogation claim of Merrimac for workers' compensation benefits. This Court notes that, if the Nebraska Court of Appeals or the Nebraska Supreme Court were to ultimately reverse this Court's ruling denying the filing of the Cross-Claim after a trial on the merits, the case could ultimately be tried twice. This Court believes that it is in the best interest of judicial economy to declare the Order overruling the Motion for Leave to File Cross-Claim as a final order to allow an appeal to be taken forthwith by Defendant Lund-Ross Constructors Co.
The jurisdictional issue presented is whether § 25-1315(1) permits an immediate appeal of an order denying a motion for leave to assert a cross-claim.
Section 25-1315(1) provides:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
In Keef v. State, 262 Neb. 622, 627, 634 N.W.2d 751, 757 (2001), this court determined that "a `claim for relief' within the meaning of § 25-1315(1) is equivalent to a separate cause of action, as opposed to a separate theory of recovery." Thus, "§ 25-1315(1) is implicated only where multiple causes of action are presented or multiple parties are involved" and the trial court expressly directs the entry of a final judgment as to one cause of action or party and expressly determines that there is no just reason for delay of an immediate appeal. 262 Neb. at 629, 634 N.W.2d at 758. See, also, Scottsdale Ins. Co. v. City of Lincoln, 260 Neb. 372, 617 N.W.2d 806 (2000); Chief Indus. v. Great Northern...
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