Bauers v. City of Lincoln

• Decision Date: 15 April 1994
• Docket Number: S-92-558,Nos. S-92-552 and S-92-554,s. S-92-552 and S-92-554
• Citation: 245 Neb. 632,514 N.W.2d 625
• Parties: Dennis R. BAUERS et al., Appellants, v. CITY OF LINCOLN, a Municipal Corporation, Appellee. to
• Court: Nebraska Supreme Court

Page 625

514 N.W.2d 625

245 Neb. 632

Dennis R. BAUERS et al., Appellants, v. CITY OF LINCOLN, a Municipal Corporation, Appellee.

Nos. S-92-552 and S-92-554 to S-92-558.

Supreme Court of Nebraska.

April 15, 1994.

Syllabus by the Court

1. Summary Judgment: Appeal and Error. Summary judgment is proper when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. In appellate review of a summary judgment, the court reviews the evidence in a 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.

2. Municipal Corporations: Actions: Claims. To maintain an action against a city, a claimant must file a claim with the city pursuant to Neb.Rev.Stat. § 15-840 (Reissue 1991).

3. Limitations of Actions: Time: Damages. An action accrues and the statutory time within which the action must be filed begins to run when the injured party has the right to institute and maintain a lawsuit, although the party may not know the nature and extent of the damages.

4. Limitations of Actions: Claims. When the only unperformed act, such as filing a claim with a city, required to maintain a lawsuit is an act that the claimant must perform, the claimant may not withhold performance of such act to defeat the purpose of the statutory limitation.

5. Claims: Actions. A claim accrues for purposes of Neb.Rev.Stat. § 15-840 (Reissue 1991) when all factors have arisen which would allow the claimant to commence and maintain an action in court with the exception of the filing of the claim pursuant to § 15-840.

6. Limitations of Actions: Pensions: Contracts: Damages. Pension benefits are similar to installment contracts, and the action which may arise from a particular installment is limited to that installment. The recovery of damages, therefore, is limited to the installments which fell within the period of the applicable statute of limitations.

7. Constitutional Law: Municipal Corporations: Claims: Actions: Statutes. Statutes which require that claims against a city be filed with the city as a condition precedent to maintaining an action in court are an impermissible limitation on an injured party's right to maintain an action for violation of their federal constitutional rights under 42 U.S.C. § 1983 (1988).

8. Civil Rights: Limitations of Actions: States. Each state must apply only one statute of limitations to all 42 U.S.C. § 1983 (1988) actions. For purposes of selecting one statute of limitations, § 1983 actions shall be characterized as personal injury actions because recovery is based upon a finding that a party has suffered injury to his personal rights.

9. Civil Rights: Limitations of Actions: Time. Actions filed under 42 U.S.C § 1983 (1988) are subject to the statute of limitations provided in Neb.Rev.Stat. § 25-207 (Reissue 1988), which requires that actions for an injury to the plaintiff's rights be filed within 4 years from the date on which the action accrued.

K. Kristen Newcomb and Robert F. Bartle, of Healey & Wieland Law Firm, Lincoln, for appellants.

William F. Austin, Lincoln City Atty., and James D. Faimon, Lincoln, for appellee.

HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, and LANPHIER, JJ., and GRANT, J., Retired.

WHITE, Justice.

Appellants, former firefighters for the City of Lincoln (City), filed claims with the City requesting a return of their pension contributions. The City denied their claims, and they appealed to the Lancaster County District Court. The district court dismissed their combined action because it found that the claims were filed after the statutory time for filing such claims had expired. The firefighters filed appeals with the Nebraska Court of Appeals, and, on our own motion, we removed the cases to this court. We also granted the firefighters' motion to consolidate the cases for purposes of appeal. We affirm in part and reverse in part the decision of the district court and remand the cause.

This case involves six former firefighters who were employed by the City. (This action originally included a seventh firefighter, John Simpson; however, Simpson has dismissed his appeal, and thus, his action is not before us for consideration.) All six contributed to a pension plan (plan) while employed by the City. Participation in the plan was mandatory pursuant to Neb.Rev.Stat. § 15-1001 et seq. (Reissue 1983 & Cum.Supp.1986). The statutory sections which constituted the material provisions of the plan were repealed in September 1987. The City then adopted substantially similar provisions in Lincoln Mun.Code ch. 2.64. The firefighters concede, and we agree, that any differences between the provisions of the plan pursuant to § 15-1001 et seq. and the provisions found in chapter 2.64 are immaterial to the issues raised in the present action.

The firefighters seek to have their entire respective contributions to the plan returned to them in one lump-sum payment. Four of the six firefighters also seek to have returned to them the amounts that the City deducted from their monthly pension payments to offset the workers' compensation benefits they each received. The following is a summary of the facts related to each of the firefighters' cases.

Dennis R. Bauers was employed as a firefighter for the City from September 1966 through September 1987. During his employment, Bauers contributed a total of $38,782.13 to the plan. On September 23, 1987, Bauers was forced to terminate his employment because of employment-related injuries he suffered. Pursuant to an executive order, Bauers was awarded a duty-related disability pension. On October 17, 1990, Bauers filed a claim with the City and contended that he was entitled to receive the total amount of his contributions to the plan. The City denied the claim on December 6.

Thomas L. Scharbach was employed as a firefighter for the City from July 1969 through November 1988. During his employment, Scharbach contributed a total of $45,014.93 to the plan. On November 17, 1988, Scharbach was forced to terminate his employment because of physical disabilities he suffered. Pursuant to an executive order, Scharbach was awarded a non-duty-related disability pension. On October 17, 1990, Scharbach filed a claim with the City and contended that he was entitled to receive the total amount of his contributions to the plan. The City denied the claim on December 6.

James E. Johnson was employed as a firefighter for the City from May 1975 through July 1989. During his employment, Johnson contributed a total of $31,366.86 to the plan. On July 18, 1989, Johnson terminated his employment as a firefighter because of employment-related injuries he suffered. Pursuant to an executive order, Johnson was awarded a duty-related disability pension. On October 17, 1990, Johnson filed a claim with the City and contended that he was entitled to receive the total amount of his contributions to the plan. The City denied the claim on December 6.

In his petition to the district court, Johnson included an additional claim which he did not raise in his claim filed with the City: He alleged that he had received workers' compensation benefits which the City deducted from his pension benefits. Johnson contended that from October 1989 through December 1990, the City deducted a total of $15,157 from his pension. Because Johnson did not properly raise the validity of the deductions for workers' compensation benefits in his claim to the City, that issue was not before the district court and is not now before this court for review. See, Neb.Rev.Stat. § 15-1201 (Reissue 1991); Cather & Sons Constr., Inc. v. City of Lincoln, 200 Neb. 510, 264 N.W.2d 413 (1978) (parties appealing to the district court from a decision of the City pursuant to § 15-1201 may not raise issues which were not the subject of the City's decision).

Jerry Peterson was employed as a firefighter for the City from October 1977 through January 1987. During his employment, Peterson contributed a total of $10,855.17 to the plan. On February 26, 1987, Peterson was forced to terminate his employment because of employment-related injuries he suffered. Pursuant to an executive order, Peterson was awarded a duty-related disability pension. Peterson also received $6,000 in workers' compensation benefits. From January 26 through June 22, 1987, the City deducted a total of $4,680 from Peterson's pension to offset the workers' compensation benefits he received. (We note that in the petition Peterson filed in district court, he alleged that the City deducted only $3,779.37 from his pension. This discrepancy, however, is irrelevant to our decision.) On October 17, 1990, Peterson filed a claim with the City and contended that he was entitled to receive the total amount of his contributions to the plan and the amount deducted from his pension for the workers' compensation benefits. The City denied the claim on December 6.

David C. Bowlin was employed as a firefighter for the City from January 1982 through February 1986. During his employment, Bowlin contributed a total of $5,678.49 to the plan. On February 20, 1986, Bowlin was forced to terminate his employment as a firefighter because of employment-related injuries he suffered. Pursuant to an executive order, Bowlin was awarded a duty-related disability pension. Bowlin also received $8,114.40 in workers' compensation benefits. From August 1986 through at least the time that he filed his petition in district court, the City deducted a total of $9,917.60 from his pension for the workers' compensation benefits he received. On October 17, 1990, Bowlin filed a claim with the City and contended that he was entitled to receive the total amount of his contributions to the plan and the amounts that the City has deducted and continues to...