Great N. Ins. Co. v. Transit Auth. of Omaha
| Decision Date | 16 April 2021 |
| Docket Number | No. S-19-913.,S-19-913. |
| Parties | GREAT NORTHERN INSURANCE COMPANY, an Indiana corporation, appellee and cross-appellant, v. TRANSIT AUTHORITY OF the CITY OF OMAHA, a governmental subdivision of the State of Nebraska, individually and doing business as Metro Area Transit, appellant and cross-appellee, and Jessica Johnson, an individual, appellee. |
| Court | Nebraska Supreme Court |
Samuel R. O'Neill, Robert M. Schartz, Omaha, and Julie M. Ryan, of Abrahams, Kaslow & Cassman, L.L.P., for appellant.
Matthew D. Hammes, Omaha, of Locher, Pavelka, Dostal, Braddy & Hammes, and Cheri MacArthur, of Cozen O'Connor, for appellee Great Northern Insurance Company.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
In a subrogation action, an insurer brought suit against a political subdivision for reimbursement of the funds paid on an insurance claim on behalf of its insured. The political subdivision appeals from a denial of summary judgment, arguing that there was no genuine issue that the insurer failed to comply with the notice requirements of the Political Subdivisions Tort Claims Act (PSTCA)1 and that the political subdivision was not equitably estopped from asserting this defense. We affirm the order and remand the cause for further proceedings.
Great Northern Insurance Company (Great Northern) filed an action in subrogation seeking compensation from Transit Authority of the City of Omaha, doing business as Metro Area Transit (Metro), under the PSTCA. Great Northern insured Omaha Performing Arts Society, doing business as Omaha Performing Arts Center, and its property, the Holland Performing Arts Center. Metro is a political subdivision created by the city of Omaha and, therefore, is subject to the PSTCA.
This action arose out of damage to the Holland Peforming Arts Center that resulted from a motor vehicle accident on October 21, 2016, involving a Metro bus. After Great Northern paid for the damage pursuant to its insurance policy with Omaha Performing Arts Society, Great Northern's attorney mailed a certified letter dated December 7, 2016, addressed to "Claims Department[,] Omaha Metro Transit" and titled "Statutory Notice."
This letter informed Metro of the subrogation claim, the date of the incident, and the estimated damages of $340,000, and it specifically stated, "Please consider this letter as notice of a potential claim against Metro ...."
To determine whom to direct the letter to, Great Northern's attorney had checked Metro's website for the contact information of the person responsible for claims. The website, however, did not provide the identity of any specific person within Metro for the issuance of statutory notices. No further effort was made by Great Northern to discover who the proper person at Metro was to send the statutory notice to.
Great Northern's letter was signed for at Metro by "F. Winniski" on December 12, 2016, and was provided to Metro's director of legal/human resources. The director is responsible for providing Metro legal advice, coordinating the work of Metro's outside legal counsel, and administering Metro's human resources functions.
The director forwarded Great Northern's letter to Metro's outside counsel. On December 13, 2016, Metro's outside counsel sent a letter via email to Great Northern's attorney, advising that the firm represented Metro and that the firm was in receipt of the December 7 letter. Outside counsel requested in the letter that all future correspondence regarding the claim be directed to him.
Great Northern filed suit against Metro in May 2018. Metro, as an affirmative defense, challenged Great Northern's compliance with the PSTCA, specifically claiming that Great Northern did not properly comply with the notice requirement of § 13-905. Great Northern pled equitable estoppel as an affirmative defense to any noncompliance.
Metro thereafter moved for summary judgment. In support of its motion, Metro asserted, among other things, that Great Northern failed to strictly comply with the notice requirements of the PSTCA, because it did not address its letter to the proper person whose duty it was to maintain the official records of Metro, and that even if the court were to find the letter was properly sent to the proper official, the substance of the letter indicates it was a notice of a potential future claim rather than the current filing of a tort claim and did not make a specific demand for relief.
Great Northern argued that the claim letter dated December 7, 2016, substantially complied with the PSTCA and satisfied the purpose of the statute, which is to give the political subdivision timely notice so it can investigate and appropriately respond. In the alternative, Great Northern argued that if the court were to find that the letter did not comply with the PSTCA, then Metro should be equitably estopped from asserting a failure to provide adequate notice, because Great Northern relied upon Metro's counsel's response to the letter and subsequent communications along with Metro's documentary production to believe that the PSTCA notice requirements had been properly fulfilled.
At the hearing on the motion for summary judgment, it was undisputed that the executive director is the only official at Metro whose duty it is to maintain the political subdivision's official records. The executive director of Metro, both at the time of the accident on October 21, 2016, and when Great Northern sent the first letter on December 7, did not sign for or receive the letter from Great Northern.
The district court denied Metro's motion for summary judgment. The district court determined that Great Northern's letter was a "claim," but that it should have been sent to Metro's executive director and therefore did not satisfy the notice requirement of § 13-905. However, the district court found that Metro had failed to demonstrate there was no genuine issue concerning Great Northern's affirmative defense of equitable estoppel.
Metro filed a motion to reconsider the order denying Metro's motion for summary judgment. Among other things, Metro argued that the court should reconsider its finding, because there was no genuine issue that the first, fourth, and sixth elements of equitable estoppel were not met. The court overruled the motion to reconsider.
Metro timely appealed the order denying the motion for summary judgment, which was based on the assertion of sovereign immunity.2 Great Northern cross-appealed.
Neither Metro's nor Great Northern's brief has an assignments of error section.
Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.3
There are no assignments of error in the briefs of either Metro, the appellant, or Great Northern, the cross-appellant. Both Metro and Great Northern instead include in certain headings throughout their argument sections some statements that allege the trial court erred in various ways. This is insufficient.
Neb. Ct. R. App. P. § 2-109(D)(1) (rev. 2014) governs the mandatory content of a brief of appellant and provides:
Parties who wish to secure appellate review of their claims must abide by the rules of the Nebraska Supreme Court.4 Any party who fails to properly identify and present its claim does so at its own peril.5 Depending on the particulars of each case, failure to comply with the mandates of § 2-109(D) may result in an appellate court waiving the error, proceeding on a plain error review only, or declining to conduct any review at all.6
A cross-appeal must be properly designated, pursuant to § 2-109(D)(4), if affirmative relief is to be obtained.7 When a brief of an appellee fails to present a "proper" cross-appeal pursuant to § 2-109(D)(4), we decline to consider its merits.8 This is consistent with Neb. Ct. R. App. P. § 2-101(E) (rev. 2015), which provides:
A cross-appeal is properly designated by noting it on the cover of the appellee brief and setting it forth in a separate division of the brief9 ; however, the decisive particulars governing how we treat failures to fully abide with the rules for the brief of an appellant, set forth in § 2-109(D)(1), do not depend on whether the brief is of the appellant or of the cross-appellant.10 Rather, they depend upon the nature of the noncompliance.11
And we have repeatedly refused to waive the requirement of § 2-109(D)(1) that a party set forth a separate and concise statement of each error the party contends was made by the trial court, through separately numbered and paragraphed assignments of error contained in a separate section of the brief, designated with an appropriate heading, and located after the statement of the case and preceding the propositions of law.12 The assignments of error section is one of the most critical sections of an appellant's or cross-appellant's brief. It gives the opposing party notice of what alleged errors to respond to and advises the appellate court of what allegations of error by the trial court it has been called upon to address. Particularly,...
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