Edwards v. Clark

• Decision Date: 23 December 2022
• Docket Number: s. S-21-790,S-21-791.
• Citation: 313 Neb. 94,982 N.W.2d 788
• Parties: Tonya EDWARDS, as assignee of Douglas County, Nebraska, a political subdivision, appellant, v. ESTATE OF Kenneth CLARK and Mark Malousek, as Personal Representative of the Estate of Kenneth Clark, appellee. Jennifer Edwards, as assignee of Douglas County, Nebraska, a political subdivision, appellant, v. Estate of Kenneth Clark and Mark Malousek, as Personal Representative of the Estate of Kenneth Clark, appellee.
• Court: Nebraska Supreme Court

313 Neb. 94

982 N.W.2d 788

Tonya EDWARDS, as assignee of Douglas County, Nebraska, a political subdivision, appellant,

v.ESTATE OF Kenneth CLARK and Mark Malousek, as Personal Representative of the Estate of Kenneth Clark, appellee.

Jennifer Edwards, as assignee of Douglas County, Nebraska, a political subdivision, appellant,

v.Estate of Kenneth Clark and Mark Malousek, as Personal Representative of the Estate of Kenneth Clark, appellee.

Nos. S-21-790

S-21-791.

Supreme Court of Nebraska.

Filed December 23, 2022

Theodore R. Boecker, Jr., of Boecker Law, P.C., L.L.O., for appellants.

Jon J. Puk, of Woodke & Gibbons, P.C., L.L.O., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Funke, J.

INTRODUCTION

Tonya Edwards and Jennifer Edwards (collectively the Edwardses) appeal the order of the district court for Douglas County, Nebraska, dismissing their complaints against the estate of Kenneth Clark (Clark's estate). The Edwardses, as assignees of Douglas County, sought to recover expenses that the county incurred in defending and settling the lawsuits that the Edwardses brought against it for its alleged negligence in responding to acts of assault and battery committed by Clark. The district court found that the Edwardses failed to state a claim for contribution or indemnity, because the county is immune from claims arising out of battery under the Political Subdivisions Tort Claims Act (PSTCA) and thus does not have a common liability with Clark's estate. The district court also denied the Edwardses’ claim for subrogation. We affirm.

BACKGROUND

Our earlier decision in Edwards v. Douglas County¹ sets forth the egregious events underlying the present appeal. We will not fully recite these events here. Instead, we note only that Tonya's husband, Jason Edwards, and Jennifer's husband, John Edwards, were fatally shot by Clark as they helped their sister, Julie Edwards, move out of the residence she shared with Clark. Clark then held Julie hostage and sexually assaulted her before killing himself. The Douglas County 911 call center received several calls from John during these events.

Subsequently, after complying with the presuit notice requirements under the PSTCA, the Edwardses filed companion lawsuits against the county, alleging that it was negligent in its handling of John's calls and the crime scene. In addition, Jennifer alleged that the county caused John emotional distress by treating him as if he were lying or joking when he called the Douglas County 911 call center. Tonya similarly alleged that the county caused her emotional distress by not informing her of Jason's death for over 10 hours and leaving her family to learn of his death from news reports.

Douglas County responded by bringing third-party complaints against Clark's estate, alleging that the Edwardses’ damages were "solely caused by [Clark's] intentional acts" and that to the extent the county is found liable to the Edwardses, the estate is liable to the county for contribution or indemnification.

Clark's estate answered, denying these allegations and asserting, as an affirmative defense, that the county failed to state a claim upon which relief can be granted.

Subsequently, Douglas County settled with the Edwardses, paying $300,000 to Jennifer and $50,000 to Tonya. It also assigned "any claim of contribution, subrogation, and/or indemnity" that it may have against Clark's estate to them. The settlements are not part of the record on appeal.

The Edwardses then sued Clark's estate, seeking "judgment as assignee[s] on all claims upon which Douglas County could have recovered." They asserted a right to contribution, indemnity, or subrogation, because Clark's actions forced the county to "suffer loss and incur expenses in defense of the suit[s]" they brought.

Clark's estate moved to dismiss the Edwardses’ complaints for failure to state a claim. At a hearing on this motion, the estate asserted that the Edwardses’ claims were no different than Julie's claims against the county, which the Nebraska Supreme Court found arose out of assault and thus were barred by sovereign immunity. The estate argued that the Edwardses took the assignment subject to the county's defense of immunity. It also argued that the Edwardses must prove that the county is liable before they could recover damages and that they cannot do this, because the county is immune under the PSTCA.

The Edwardses disagreed. They argued that their claims were different because the county caused emotional distress to John and Tonya and that as a result, the court decision regarding Julie's claims is "not necessarily dispositive." They also argued that they made a sufficient showing to survive a motion to dismiss. Specifically, they argued that they do not need to prove that the county is liable in order to recover in equity; instead, they need only prove that the settlement was reasonable. They also argued that Clark's estate's decision to answer the third-party complaint, rather than move to dismiss it for failure to state a claim, proves that "it's a plausible, cognizable claim."

The district court ruled in favor of Clark's estate. It found that the claim for contribution failed, because contribution requires a common liability and the county is immune from liability under the PSTCA for claims arising out of battery. In so doing, the court expressly rejected the argument that the county's handling of the incident was "independent negligence causing emotional distress." The court also determined that Clark's actions were not negligent, but in fact intentional. The court also rejected the claim for indemnification, because it, too, requires a common liability between the county and the estate. Likewise, the court rejected the claim for subrogation, because the county was not compelled to pay for Clark's actions and there was no allegation that the county extinguished the estate's liability when it settled with the Edwardses.

The Edwardses appealed to the Nebraska Court of Appeals, and we moved the matter to our docket.

ASSIGNMENTS OF ERROR

The Edwardses assign, restated, that the district court erred in (1) granting the motion to dismiss; (2) finding that their claims for contribution, indemnification, and subrogation could not be maintained, because the county is immune from liability for claims arising out of assault and battery; and (3) failing to recognize the county had liability from which it is not immune.

STANDARD OF REVIEW

A district court's grant of a motion to dismiss is reviewed de novo.² When reviewing an order dismissing a complaint, the appellate court accepts as true all facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the plaintiff's conclusion.³

ANALYSIS

DISMISSAL FOR FAILURE TO STATE CLAIM

The Edwardses argue that the district court erred in disposing of their complaints upon a motion to dismiss. They maintain that as assignees of Douglas County, they stated a facially plausible claim to contribution, indemnification, or subrogation by showing that the county "incurred legal fees and expenses as a consequence of the original lawsuit[s] brought against it" and that "Clark's estate should equitably bear responsibility for such costs because Clark's conduct placed [the county] in a position that made it necessary for [the county] to incur expenses to protect its interests and defend itself."⁴ We disagree.

Civil actions in Nebraska are controlled by a liberal pleading regime; a party is only required to set forth a short and plain statement of the claim showing the pleader's entitlement to relief and is not required to plead legal theories or cite appropriate statutes so long as the pleading gives fair notice of the claims asserted.⁵ The rationale for this pleading standard is that when parties have a valid claim, they should recover on it regardless of failing to perceive the true basis of the claim at the pleading stage.⁶

Accordingly, to prevail against a motion to dismiss for failure to state a claim, a plaintiff must allege sufficient facts, accepted as true, to state a claim to relief that is plausible on its face.⁷ In cases where a plaintiff does not or cannot allege specific facts showing a necessary element, the factual allegations, taken as true, are nonetheless plausible if they suggest the existence of the element and raise a reasonable expectation that discovery will reveal evidence of the element or claim.⁸

We agree with the district court that the Edwardses failed to allege facts showing a necessary element as to their claims for contribution, indemnification, and subrogation. However, unlike the district court, we base this finding solely on the fact that nothing in the pleadings or the record on appeal indicates that the county's settlement with the Edwardses extinguished Clark's estate's liability or that the county paid the debt owed by the estate. The district court relied upon this fact when finding that the Edwardses failed to state a claim for subrogation, but it based its findings as to contribution and indemnity upon its conclusion that the county and the estate do not have a common liability to the Edwardses. An appellate court may affirm a lower court's ruling that reaches the correct result, albeit based on different reasoning.⁹

We have recognized contribution, indemnification, and subrogation as equitable remedies when one party pays damages or debts that in justice another party ought to pay.¹⁰ Although related, each remedy is distinct. Contribution is defined as a sharing of the cost of an injury as opposed to a complete shifting of the cost from one to another, which is indemnification.¹¹ Subrogation, in turn, is the substitution of one person in the place of another with reference to a lawful claim, demand, or right, so that the one who is substituted succeeds to the rights of the other in relation to the debt or claim, and its rights,...