Central Ice Mach. Co. v. Cole
| Decision Date | 07 December 1993 |
| Docket Number | No. A-92-097,A-92-097 |
| Citation | 2 Neb.App. 282,509 N.W.2d 229 |
| Parties | CENTRAL ICE MACHINE COMPANY, Appellant, v. Ronald A. COLE, Appellee. |
| Court | Nebraska Court of Appeals |
Thomas H. Dahlk and Sandra L. Dougherty, Lieben, Dahlk, Whitted, Houghton, Slowiaczek & Jahn, P.C., for appellant.
Jeff A. Anderson and Margaret A. Falck, Kutak Rock, for appellee.
Central Ice Machine Company (Central) brought an action against Ronald A. Cole for malicious prosecution, alleging that Cole caused previous litigation to be brought against Central. The district court granted summary judgment for Cole on the ground that Cole's status as an expert witness in the prior legal proceeding afforded him immunity from liability as a matter of law. Central appeals.
In appellate review of a summary judgment, the court views 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. Summary judgment is to be granted only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Gables CVF v. Bahr, Vermeer & Haecker Architect, 244 Neb. 346, 506 N.W.2d 706 (1993).
Prior to any legal proceedings involving Central, Cole had been retained by Millard Warehouse as a consultant. Central alleged that Cole advised Millard Warehouse that cover plates on the headers of Recold evaporators purchased from Central were defective and inadequate. Central alleged that Cole had been retained by Central in 1983 as a consultant and knew that the Recold evaporators were patterned after the design of Imeco evaporators, but that he failed to tell Central that he thought the thickness of the cover plates on the Imeco headers was inadequate. Central contended that a dispute occurred concerning the value of Cole's services as a consultant to Central and that Cole accepted a lesser amount than the bill submitted for his consulting services.
In February 1987, Millard Warehouse filed a counterclaim against Central. (The record does not disclose the subject of the action filed by Central.) On June 29, 1987, Millard Warehouse filed a separate lawsuit against Central. Central's petition in this case refers to the above cases collectively as the "Legal Proceedings."
Central alleges that at all times relevant Cole was the moving cause of the initiation and continuation of the legal proceedings brought by Millard Warehouse against Central and, as the moving force, advised Millard Warehouse that the evaporators were defective and inadequate. Central contends that Cole, with the intent of injuring Central and without probable cause, caused the legal proceedings to continue and to be amended by telling Millard Warehouse that the evaporators sold to Millard Warehouse lacked sufficient cooling capacity. Central contends that Cole harbored feelings of hatred, animosity, and ill will toward an officer, director, and principal shareholder of Central and, for reasons other than the legitimate participation in a civil proceeding, took an active role in the initiation and continuation of the legal proceedings brought by Millard Warehouse. Central further contends that judgment was rendered in favor of Central against Millard Warehouse and that by reason of Cole's wrongful conduct, Central suffered injury to its business and incurred legal expenses and other damages.
Cole's demurrer to the original petition was sustained, and the court concluded that the pleadings brought Cole within the purview and protection of absolute immunity afforded to witnesses. Central then amended its petition by deleting the allegation that Cole "provided Millard Warehouse with purported theories and alleged expert opinions which caused the Legal Proceedings to be brought and tried before a jury" and by substituting the following: "[Cole] caused Millard Warehouse to initiate the Legal Proceedings." Cole's demurrer to the amended petition was overruled, and he filed an answer.
Cole's motion for summary judgment with a supporting affidavit claimed he was absolutely immune from civil liability because he had served as an expert witness in the prior legal proceedings. The district court granted summary judgment on the basis that Cole's status as an expert witness in the prior legal proceedings afforded him immunity from liability as a matter of law.
Central claims that the court erred in granting summary judgment on the basis that a consultant who later becomes an expert witness is immune from any liability for malicious prosecution as a matter of law, that there was no evidence supporting the district court's finding that Cole's actions as a consultant were inextricably tied to his actions as an expert witness, and that the district court erred in allowing Cole to insulate himself
from liability by testifying in the previous litigation.
It is undisputed that Cole provided expert testimony in the legal proceedings between Millard Warehouse and Central. The expert opinions rendered by Cole in his deposition and trial testimony were based upon the investigation and analysis of the coolers that he performed in 1986 and 1987.
Cole's affidavit was the only evidence presented at the summary judgment hearing. The affidavit set forth Cole's professional background and qualifications, stating that he was a self-employed engineer who was the president of R.A. Cole and Associates, Inc., and a registered professional engineer in Illinois, Wisconsin, Georgia, Colorado, and Maryland. He was a member of the industry staff for the Industrial Refrigeration Workshop sponsored semiannually by the International Institute of Ammonia & Refrigeration (IIAR), the director of the semiannual Industrial Refrigeration School for Operators, and a past president of the IIAR. He was a member of the IIAR board of directors; the American Society of Heating, Refrigerating and Air Conditioning Engineers; the American Society of Mechanical Engineers; the National Society of Professional Engineers; and the British Institute of Refrigeration, and he was an associate member of the International Institute of Refrigeration.
The affidavit stated that Cole and Roger Kirschenman of Millard Warehouse visited a Millard Warehouse facility in Grand Island in July 1986. During that visit, Cole noticed that one or more of the coolers exhibited a "spotty" frost pattern, which often indicated that...
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McKinney v. Okoye
...Case Overruled. Absolute privilege does not bar an action for malicious prosecution. To the extent that Central Ice Machine Co. v. Cole, 2 Neb.App. 282, 509 N.W.2d 229 (1993), holds otherwise, it is overruled.George H. Moyer, of Moyer & Moyer, Madison, for appellant.James A. Snowden and Kri......