Hiway 20 Terminal, Inc. v. Tri-County Agri-Supply, Inc., TRI-COUNTY

• Decision Date: 04 May 1990
• Docket Number: INC,TRI-COUNTY,88-855,Nos. 88-333,AGRI-SUPPL,s. 88-333
• Citation: 235 Neb. 207,454 N.W.2d 671
• Parties: HIWAY 20 TERMINAL, INC., a Nebraska Corporation, Appellee, v., a Nebraska Corporation, Appellee, Cornhusker Casualty Company, Garnishee-Appellant. HIWAY 20 TERMINAL, INC., a Nebraska Corporation, Appellee, v. ABILD, INC., doing business as Atlantic Steel Erectors, an Iowa Corporation, Appellee, Maryland Casualty Company, Garnishee-Appellant.
• Court: Nebraska Supreme Court

Page 671

454 N.W.2d 671

235 Neb. 207

HIWAY 20 TERMINAL, INC., a Nebraska Corporation, Appellee, v. TRI-COUNTY AGRI-SUPPLY, INC., a Nebraska Corporation, Appellee, Cornhusker Casualty Company, Garnishee-Appellant.

HIWAY 20 TERMINAL, INC., a Nebraska Corporation, Appellee, v. ABILD, INC., doing business as Atlantic Steel Erectors, an Iowa Corporation, Appellee, Maryland Casualty Company, Garnishee-Appellant.

Nos. 88-333, 88-855.

Supreme Court of Nebraska.

May 4, 1990.

Syllabus by the Court

1. Appeal and Error. Assignments of error not discussed are not considered by the Supreme Court.

2. Garnishment: Appeal and Error. Garnishment is a legal proceeding, and the factual findings of a garnishment hearing judge have the effect of findings by a jury and, on appeal, will not be set aside unless clearly wrong.

3. Trial: Presumptions: Waiver. Generally, a motion which is never called to the attention of the court is presumed to have been waived or abandoned by the moving party, and, where no ruling appears to have been made on a motion, the presumption is, unless it otherwise appears, that the motion was waived or abandoned.

4. Trial: Jury Instructions: Verdicts. At an instruction conference parties should object to any errors of commission or omission in the verdict forms to be submitted to the jury.

Donald R. Witt, of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for garnishee-appellant Cornhusker Casualty.

Stephen L. Ahl, of Wolfe, Anderson, Hurd, Luers & Ahl, Lincoln, for garnishee-appellant Maryland Cas.

Peter T. Hoffman and Kim M. Robak, of Rembolt Ludtke Parker & Berger, Lincoln, for appellee Hiway 20.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

GRANT, Justice.

This appeal stems from judgments entered in an earlier case in the Brown County District Court in favor of Hiway 20 Terminal, Inc. (Hiway 20), plaintiff-appellee herein, on general jury verdicts against the defendants, Abild, Inc., doing business as Atlantic Steel Erectors (Abild), and Tri- County Agri-Supply, Inc. (Tri-County), in the amount of $325,653.10. Identical judgments were entered in separate cases which had been consolidated for trial. The judgments were affirmed on appeal in Hiway 20 Terminal, Inc. v. Tri-County Agri-Supply, Inc., 232 Neb. 763, 443 N.W.2d 872 (1989).

While the appeals were pending in the Supreme Court, Hiway 20 initiated garnishment proceedings to collect the judgments. In their answers to interrogatories in those proceedings, Maryland Casualty Company (Maryland) acknowledged that it had an insurance policy insuring Abild and Cornhusker Casualty Company (Cornhusker) similarly acknowledged that it had a policy insuring Tri-County, but the insurers denied that the policies included coverage for all damages awarded at trial. Maryland and Cornhusker admit liability for some of the damages awarded, but contend that the judgments also include damages not covered by the policies of insurance issued to Abild and Tri-County.

In the garnishment proceedings, following a hearing on an application for determination of Maryland's and Cornhusker's liability, the court found Maryland and Cornhusker each indebted to Hiway 20 for the full amount of the judgments. Maryland and Cornhusker timely appealed. The cases, although briefed separately, were consolidated for argument and will be considered in one opinion.

Generally, Cornhusker and Maryland assign error to the district court's determination that they, as garnishees, are liable for the entire amount of damages awarded Hiway 20. More specifically, they contend that the court erred in (1) failing to grant Tri-County's motion for a special verdict at trial and (2) denying a motion to go behind the general verdicts in order to determine the scope of insurance coverage.

Cornhusker additionally assigns error to, but does not address, the court's action in overruling a motion to dismiss Hiway 20's amended application for determination of liability and the court's calculation of interest on the judgment. Assignments of error not discussed are not considered by the Supreme Court. State v. Martin, 232 Neb. 385, 440 N.W.2d 676 (1989); In re Interest of P.M.C., 231 Neb. 701, 437 N.W.2d 786 (1989).

Essentially, appellants contend in their two assignments of error that a motion for a special verdict was made at the trial of the underlying case. Appellants contend that they followed the suggestion in Herrera v. American Standard Ins. Co., 203 Neb. 477, 279 N.W.2d 140 (1979), and requested special verdict forms and that because their motions were improperly overruled, the cases should be remanded for an apportionment hearing to determine the portion of the damages award which they, as garnishees, should be required to pay under the insurance policies. In Herrera, supra, Herrera's insurer was a party for a time to the underlying Herrera-Jefferson case, but withdrew its appearance and ultimately furnished a defense to defendant Jefferson, an uninsured motorist, in the suit brought by Herrera. Herrera obtained a judgment against Jefferson and then brought a declaratory judgment action against his insurer to collect on the judgment based on Herrera's uninsured motorist coverage. Although a judgment had been entered, the insurer nevertheless asked the court to apportion the damages for the reason that the judgment included items of damage not covered by the uninsured motorist clause. On appeal, we stated in Herrera, supra at 483, 279 N.W.2d at 144:

Although evidence of property damage was presented to the jury, the verdict did not delineate what amount, if any, was for the plaintiff's property damage and what amount was for his personal injuries. The jury may or may not have included an amount in its verdict for the plaintiff's property damage. Many types of damages were claimed by plaintiff, and we have no way of knowing what elements were considered, or the basis on which the jury determined the amount of damages finally awarded. Their reasons inhere in their verdict, and may not be inquired into. Defendant is asking this court to grant it the opportunity to relitigate and recompute the amount of its insured's bodily injuries by showing that property damage may have been included in the jury's verdict in the original suit against the uninsured motorist. That result could have been reached by means of a request for a special or itemized verdict; and if deemed material as a defense should have been done in the original trial, and not by extended litigation.

While it is uncontroverted that Tri-County filed a "Motion For Special Verdict Forms" with the clerk of the court, Hiway 20 contends it was not adequate because it was not brought before the court for hearing and determination. Maryland and Cornhusker allege that the motion was filed and later overruled, either by general order or by implication, in the instruction conference at the underlying trial. Abild did not file a motion for a special verdict.

The motion for special verdict forms was filed by Tri-County on March 2, 1987, at 2 p.m. A conference was held, with the jury not present, by the court with counsel for all parties present beginning at 1:16 p.m. on March 2. The record indicates that, at that time, a jury had already been selected, impaneled, and sworn. The conference apparently concerned the appropriateness of evidence and instructions on the damages issue as to whether contractual damages included certain consequential damages to which Hiway 20 claimed it was entitled, in any event, under negligence theories. At this conference, counsel representing Tri-County stated:

Well, again, that could be dealt with in the instructions and with the verdict forms. We have filed proposed verdict forms that separate out the damages, at least for our side, and I imagine that Abild might want to do the same thing. There would be a special verdict form wherein the jury would decide what the specific amounts...