Hayden v. Neville, No. A-05-004 (Neb. App. 4/24/2007), A-05-004.

Decision Date24 April 2007
Docket NumberNo. A-05-004.,A-05-004.
PartiesMARY HAYDEN, APPELLANT, v. MAVIS NEVILLE AND NATIONWIDE MUTUAL INSURANCE COMPANY, A CORPORATION, APPELLEES.
CourtCourt of Appeals of Nebraska

Appeal from the District Court for York County: ALAN G. GLESS, Judge. Affirmed in part, and in part reversed.

Charles W. Campbell, of Angle, Murphy, Valentino & Campbell, P.C., for appellant.

James B. Luers, of Wolfe, Snowden, Hurd, Luers & Ahl, L.L.P., for appellees.

SIEVERS, MOORE, and CASSEL, Judges.

CASSEL, Judge.

I. INTRODUCTION

Mary Hayden appeals from the order denying her posttrial motions seeking awards of attorney fees and expenses, one pursuant to Neb. Ct. R. of Discovery 37(c) (rev. 2000) and another under Neb. Rev. Stat. § 44-359 (Reissue 2004). We conclude that the district court abused its discretion in overruling Hayden's motion for expenses under rule 37(c) as to some of the requests for admission, because Mavis Neville and Nationwide Mutual Insurance Company (Nationwide) failed to prove by a preponderance of the evidence that any of the exceptions enumerated in the discovery rule applied. Because the district court did not render judgment against Nationwide, we affirm the court's denial of attorney fees under § 44-359.

II. BACKGROUND
1. AUTOMOBILE ACCIDENT

On May 31, 2001, Hayden and Neville were driving separate vehicles northbound on Lincoln Avenue in York, Nebraska, when Neville moved her vehicle from the left lane into Hayden's path of travel in the right lane. In order to avoid a collision with Neville's vehicle, Hayden steered her vehicle to the right, struck a light pole, and sustained damages. Nationwide provided automobile insurance coverage for both Hayden and Neville. At the time of the accident, Neville had automobile liability coverage limits of $25,000 and Hayden had underinsured motorist coverage of $25,000.

2. PLEADINGS

On May 7, 2002, Hayden filed an amended petition against Neville and Nationwide (hereinafter collectively Appellees). The first cause of action alleged that Neville's negligence proximately caused the collision and numerous injuries and items of damage. Hayden prayed for special damages of $13,073.18 against Neville, general damages, interest, and costs. As a second cause of action, Hayden alleged that Nationwide issued an automobile liability policy to Hayden which provided her with underinsured motorist coverage, that the automobile operated by Neville was underinsured because Hayden's damages exceeded the amount of liability insurance coverage available on Neville's policy, and that Nationwide was contractually obligated to compensate Hayden up to the limits of underinsured coverage provided by the policy. Hayden sought to recover damages of $25,000 against Nationwide and attorney fees under § 44-359.

Neville's responsive pleading alleged that Hayden was negligent in several particular ways. Nationwide filed a demurrer which the district court overruled following a hearing. Nationwide subsequently filed an answer which alleged that Hayden had not met the statutory definition of an underinsured motorist and that Hayden's action against it was not a direct action suit upon which attorney fees could be taxed.

3. PRETRIAL DISCOVERY

Neville sent interrogatories and requests for production to Hayden, and Hayden's responses to such requests included copies of medical records regarding all the examinations and treatment she received for the injuries she sustained in the accident. In response to Neville's inquiry regarding lost wages, Hayden claimed lost wages of $1,976.85, and she provided a statement from her employer which set forth the amounts of lost wages that Hayden incurred as a result of her missing work due to the injuries she suffered in the accident and the basis for the calculation of the lost wages.

Hayden sent a set of requests for admission to Appellees, and Appellees each objected to a number of those requests. Hayden filed motions pursuant to Neb. Ct. R. of Discovery 36 (rev. 2000) requesting the court to enter an order to determine certain matters to be admitted to which Appellees had objected or, alternatively, to compel Appellees to provide proper responses to particular requests for admission. Following a hearing, the court overruled Appellees' objections and gave those parties 21 days to file complete answers. Appellees each filed supplemental answers. Hayden subsequently moved the court to determine that certain responses of Appellees be admitted. Appellees collectively filed a motion for a protective order preventing Hayden from "further annoyance, harassment, and oppression pursuant to repeated discovery requests." Following a hearing, the court denied Appellees' motion for a protective order and Hayden's motions to deem the requests for admission admitted.

4. BIFURCATION

On March 14, 2003, Appellees collectively filed a motion to bifurcate in order to first have a trial on Hayden's claim against Neville to determine if Hayden's damages exceeded the amount of liability insurance coverage available on Neville's policy before obligating Nationwide to compensate Hayden for any underinsurance coverage. On April 21, the district court held a hearing on the motion and received into evidence a copy of the underinsured motorist coverage endorsement. On September 15, the court sustained the motion to bifurcate the claims for separate trials.

5. TRIAL AND JURY VERDICT

On May 6, 2004, the parties filed a written stipulation with the court, stipulating that Hayden incurred certain special damages in the amount of $10,571.23 and a property damage loss of $500. During trial, Dr. Greg Woods testified regarding the long-term symptoms and problems that a patient suffering a wrist or forearm fracture and operation like Hayden would typically experience. On May 7, the jury found damages in favor of Hayden and against Neville in the amount of $40,000.

On June 1, 2004, the court entered an order for credit pursuant to the written stipulation and agreement of the parties giving Nationwide a credit of $1,000 for medical payments previously made on behalf of Hayden under her automobile insurance policy's medical payment coverage. The order stated that $39,000 remained to be paid on the verdict. A June 3 docket entry states, "The Clerk shall distribute $39,000.00 from trust to [Hayden's attorney and] Hayden."

6. JULY 6, 2004, HEARING

On June 1, 2004, Hayden moved for reasonable attorney fees and expenses under § 44-359. On June 3, she moved for an award of reasonable expenses and attorney fees incurred in proving the truth of matters as requested under rule 36. On July 6, the court held a hearing on Hayden's motions for attorney fees and expenses under rule 37(c) and § 44-359, on Nationwide's motion to dismiss, and on Appellees' collective objections to Hayden's motions for attorney fees and expenses.

The court received the affidavit of Hayden's counsel which stated that he attempted, but was unable, to reach a stipulation with Appellees as to Hayden's injuries and medical bills and that he served requests for admission regarding injuries, medical bills, and medical testimony to avoid the expenses for medical testimony, court reporter fees, and videographer charges. Hayden's counsel stated that the facts and opinions regarding Hayden's injuries sought to be admitted by the requests for admission were described and explained in the medical records and reports which were supplied to Appellees as part of Hayden's discovery responses and were also obtained by Appellees through medical records subpoenas.

Evidence offered during the hearing showed that on December 31, 2002, Hayden sent a set of requests for admission to both Appellees and attached eight exhibits to the requests. The first six exhibits were bills from various service providers following the accident, and the last exhibit was Dr. Dennis R. Bozarth's "report of operation" dated June 1, 2001, on which date he performed an "open reduction internal fixation of right distal radius fracture" on Hayden. On January 23, 2003, Appellees submitted their responses to the requests for admission. Appellees each answered requests for admission Nos. 2, 4, 6, 8, 10, and 12 as follows:

REQUEST NO. : Admit that Mary Hayden received treatment by [designated medical provider] for injuries that [she] received in the automobile collision of May 31, 2001, reflected in Exhibit "__" attached hereto, which treatment was necessary for such injuries.

RESPONSE: Admits that Mary Hayden received treatment by [designated medical provider]; however, this [Appellee] hereby objects to the balance of Request for Admission No. __ for the reason that the Request asks for this [Appellee] to render an expert medical opinion for which it does not have the education, training or background to do. The Request imposes a duty greater than is required by law. The Request is not one of fact, but rather a request to render an expert opinion for which this [Appellee] is not qualified.

One of Hayden's requests for admission asked Appellees to each admit that Hayden lost wages in the sum of $1,976.85 as a result of her inability to work due to the injury to her right forearm. Appellees each denied the request and further claimed to be without sufficient information to either admit or deny that Hayden lost wages as a result of the accident or the amount of such lost wages. Other of Hayden's requests pertained to subjects such as Bozarth's "report of operation," Hayden's carpal tunnel symptoms, and Hayden's future medical expenses and procedures. Appellees each responded to these requests by objecting for the reasons that one or more of the requests (1) asked for the rendering of an expert medical opinion for which Neville or Nationwide did not have the education, training, or background; (2) imposed a duty greater than required by law; and (3) were not ones of fact, but requested the rendering of an expert opinion for which Neville or Nationwide was not...

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