Jackson v. Branick Industries, Inc., No. S-97-113

CourtSupreme Court of Nebraska
Writing for the CourtWHITE; GERRARD
Citation254 Neb. 950,581 N.W.2d 53
Decision Date02 July 1998
Docket NumberNo. S-97-113
PartiesRoger JACKSON, Appellee, and J.W. Brewer Tire Co., Appellant, v. BRANICK INDUSTRIES, INC., a North Dakota corporation, Appellee.

Page 53

581 N.W.2d 53
254 Neb. 950
Roger JACKSON, Appellee,
and
J.W. Brewer Tire Co., Appellant,
v.
BRANICK INDUSTRIES, INC., a North Dakota corporation, Appellee.
No. S-97-113.
Supreme Court of Nebraska.
July 2, 1998.
Syllabus by the Court

1. Judgments: Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.

2. Statutes: Time. Statutes covering substantive matters in effect at the time of the occurrence govern, not later enacted statutes.

3. Actions: Time. Whether a proceeding be criminal or civil, the procedures and procedural rules to be applied are those which are in effect at the date of the hearing or proceeding and not those in effect when

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the act or violation is charged to have taken place.

4. Statutes: Time. Where there has been an amendment to a statute which was a procedural change and not a substantive change, upon the effective date of the amendment, it is binding upon a tribunal.

5. Words and Phrases. A substantive right is one which creates a right or remedy that did not previously exist and which, but for the creation of the substantive right, would not entitle one to recover. A procedural right, on the other hand, is considered to simply be the method by which an already existing right is exercised.

6. Workers' Compensation: Subrogation. Under Neb.Rev.Stat. § 48-118 (Reissue 1993), reimbursement for the full amount of compensation paid to or on behalf of an employee is the measure of the employer's statutory subrogation interest.

John F. Simmons, of Simmons, Olsen, Ediger, Selzer, Ferguson & Carney, P.C., Scottsbluff, for appellant.

[254 Neb. 951] Patrick M. Connealy, of Crites, Shaffer, Connealy, Watson & Harford, Chadron, for appellee Jackson.

WHITE, C.J., CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

GERRARD, Justice.

INTRODUCTION

Roger Jackson suffered an on-the-job injury while employed by J.W. Brewer Tire Co. (Brewer Tire). Travelers Insurance Company (Travelers), the workers' compensation insurer for Brewer Tire, paid benefits to Jackson in the amount of $133,152.91. Jackson brought a product liability action in the district court for Scotts Bluff County against Branick Industries, Inc. (Branick), which manufactured the piece of equipment Jackson was using at the time of his injury, and Brewer Tire was joined as a plaintiff in the action to protect its subrogation interest. Branick eventually agreed to settle the product liability action for $175,000, and all parties stipulated that Jackson's attorney fees and litigation expenses would be paid out of the settlement. Jackson moved the district court for an equitable division of the remaining settlement proceeds, and Brewer Tire and Travelers objected, claiming that they were entitled to the entire remaining settlement by virtue of their subrogation interest. At the time of Jackson's injury, Neb.Rev.Stat. § 48-118 (Reissue 1993) gave the employer and its insurer a subrogation interest against third-party tort-feasors in the amount of any compensation paid to or on behalf of the employee. However, at the time of the settlement, § 48-118 had been amended to allow the court to make an equitable distribution of the settlement between the employee and the employer or its insurer. The district court found that the change in the statute was procedural in nature and entered an order equitably dividing the settlement proceeds. Because we determine that the statutory amendment was substantive, rather than procedural, we reverse, and remand with directions to the district court.

FACTS

On February 19, 1993, Jackson was injured while working for Brewer Tire in Scottsbluff, Nebraska. Jackson was operating [254 Neb. 952] a tire dolly allegedly manufactured and sold by Branick at the time of the accident. Jackson was using the tire dolly to unload a tire from a tire balancer when the tire slipped off the dolly, and the cylinder of the dolly shot up and struck Jackson in the throat and lower jaw area. The force of the impact threw Jackson backward into a stack of truck tires, where he struck his head. Jackson suffered a closed head injury, a neck injury that required a cervical fusion, and injuries to his throat and vocal cords. As a result of the accident and the injuries he sustained, Jackson also suffered from chronic depression. At the time of the accident, Travelers was the workers' compensation insurance carrier for Brewer Tire.

Effective July 16, 1994, 1994 Neb. Laws, L.B. 594, made significant changes in § 48-118, which is the statute governing subrogation of workers' compensation benefits paid by the employer or the employer's insurer

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when a third party is liable for the injury to the employee. Prior to July 16, 1994, § 48-118, in pertinent part, stated:

A settlement of any lawsuit commenced under this section shall be void unless (1) such settlement and the distribution of the proceeds of the settlement thereof are agreed upon in writing by the employee or his or her personal representative and the insurer of the employer if there be one, and if there be no insurer, then by the employer, or (2) in the absence of such agreement, such settlement is approved by the court before which the action is pending.

L.B. 594 changed the pertinent portion of § 48-118 to read:

A settlement of any lawsuit commenced under this section shall be void unless (1) such settlement is agreed upon in writing by the employee or his or her personal representative and the insurer of the employer if there is one, and if there is no insurer, then by the employer, or (2) in the absence of such agreement, the court before which the action is pending determines that the settlement offer is fair and reasonable considering liability, damages, and the ability of the third person and his or her liability insurance carrier to satisfy any judgment.

If the employee or his or her personal representative and the insurer of the employer if there is one, and if there [254 Neb. 953] is no insurer, then the employer, do not agree in writing upon distribution of the proceeds of any judgment or settlement, the court upon application shall order a fair and equitable distribution of the proceeds of any judgment or settlement.

Neb.Rev.Stat. § 48-118 (Cum.Supp.1996). As of July 16, 1994, Travelers had paid workers' compensation benefits in the amount of $78,375.52 to Jackson.

On June 9, 1995, Jackson filed a product liability lawsuit against Branick in the district court for negligence and strict liability in tort based on the design and manufacture of the dolly and Branick's failure to adequately warn foreseeable users of dangers inherent in the design and use of the dolly. In an amended petition filed July 17, 1995, Brewer Tire was joined as an additional plaintiff to protect its subrogation interest. On July 22, 1996, more than a year after Jackson filed suit, Travelers filed a notice of subrogation interest in the case pursuant to "Section 48-118 R.R.S.1943." At that time, Travelers had paid workers' compensation benefits to and on behalf of Jackson in the amount of $130,444.78. Just over a month later, on August 28, Branick filed an offer of settlement and motion for approval with the district court. The offer stated:

Defendant Branick Industries, Inc. moves the Court for an Order pursuant to Neb.Rev.Stat. § 48-118 (1994 Cum.Supp.), and hereby offers to settle the claim of Plaintiffs Roger Jackson and J.W. Brewer Tire Co. and any lien under the Nebraska Workers' Compensation Act for the total sum of $175,000.00.

Two stipulations were filed on August 30, 1996, in response to the offer of settlement. The first was a stipulation by Jackson, Brewer Tire, and Travelers agreeing that the product liability case against Branick would be settled for $175,000 and that Jackson's attorney would be paid attorney fees and expenses in the amount of $74,480.90. The second stipulation was entered into by Jackson, Brewer Tire, Travelers, and Branick and stated that the parties agreed to the settlement and that $175,000 would be paid by Branick to the clerk of the district court.

On the same day, August 30, 1996, the district court entered an order granting the offer of settlement and motion for [254 Neb. 954] approval. The district court determined that the settlement was fair and reasonable considering the liability and damage issues of the case. Additionally, the district court ordered that the $175,000 paid to the clerk of the district court would be held for distribution to the plaintiffs and their attorney by order of the court after an appropriate hearing. On September 10, Jackson filed a motion for a hearing to "equitably divide the remaining settlement proceeds between the Plaintiffs" pursuant to " R.S.Supp., 1994, §...

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16 practice notes
  • Jameson v. Liquid Controls Corp., No. S-99-048.
    • United States
    • Supreme Court of Nebraska
    • October 6, 2000
    ...This amendment was effective July 16, 1994, 1 year before the accident in the instant case. We held in Jackson v. Branick Indus., 254 Neb. 950, 581 N.W.2d 53 (1998), that this amendment was substantive in nature and applied prospectively only. As the instant case arose after the July 16, 19......
  • Bacon v. DBI/Sala, No. S–11–194.
    • United States
    • Supreme Court of Nebraska
    • November 2, 2012
    ...v. Page, 217 Wis.2d 451, 577 N.W.2d 335 (1998); Dahlbeck v. New London Concrete, 400 N.W.2d 736 (Minn.1987). 54.Jackson v. Branick Indus., 254 Neb. 950, 960, 581 N.W.2d 53, 59 (1998). 55.Id. 56. See, Burns v. Nielsen, supra note 12; Turco v. Schuning, 271 Neb. 770, 716 N.W.2d 415 (2006). 57......
  • Bacon v. DBI, No. S-11-194.
    • United States
    • Supreme Court of Nebraska
    • November 2, 2012
    ...Page, 217 Wis. 2d 451, 577 N.W.2d 335 (1998); Dahlbeck v. New London Concrete, 400 N.W.2d 736 (Minn. 1987). 54. Jackson v. Branick Indus., 254 Neb. 950, 960, 581 N.W.2d 53, 59 (1998). 55. Id. 56. See, Burns v. Nielsen, supra note 12; Turco v. Schuning, 271 Neb. 770, 716 N.W.2d 415 (2006). 5......
  • State v. Blackman, No. S-97-105
    • United States
    • Supreme Court of Nebraska
    • July 2, 1998
    ...of the evidence rather than to its admissibility. See State v. Kubik, 235 Neb. 612, 456 N.W.2d 487 (1990). Thus, viewing the evidence [254 Neb. 950] and all reasonable inferences therefrom in the light most favorable to the State, we determine that the evidence was sufficient to establish t......
  • Request a trial to view additional results
16 cases
  • Jameson v. Liquid Controls Corp., No. S-99-048.
    • United States
    • Supreme Court of Nebraska
    • October 6, 2000
    ...This amendment was effective July 16, 1994, 1 year before the accident in the instant case. We held in Jackson v. Branick Indus., 254 Neb. 950, 581 N.W.2d 53 (1998), that this amendment was substantive in nature and applied prospectively only. As the instant case arose after the July 16, 19......
  • Bacon v. DBI/Sala, No. S–11–194.
    • United States
    • Supreme Court of Nebraska
    • November 2, 2012
    ...v. Page, 217 Wis.2d 451, 577 N.W.2d 335 (1998); Dahlbeck v. New London Concrete, 400 N.W.2d 736 (Minn.1987). 54.Jackson v. Branick Indus., 254 Neb. 950, 960, 581 N.W.2d 53, 59 (1998). 55.Id. 56. See, Burns v. Nielsen, supra note 12; Turco v. Schuning, 271 Neb. 770, 716 N.W.2d 415 (2006). 57......
  • Bacon v. DBI, No. S-11-194.
    • United States
    • Supreme Court of Nebraska
    • November 2, 2012
    ...Page, 217 Wis. 2d 451, 577 N.W.2d 335 (1998); Dahlbeck v. New London Concrete, 400 N.W.2d 736 (Minn. 1987). 54. Jackson v. Branick Indus., 254 Neb. 950, 960, 581 N.W.2d 53, 59 (1998). 55. Id. 56. See, Burns v. Nielsen, supra note 12; Turco v. Schuning, 271 Neb. 770, 716 N.W.2d 415 (2006). 5......
  • State v. Blackman, No. S-97-105
    • United States
    • Supreme Court of Nebraska
    • July 2, 1998
    ...of the evidence rather than to its admissibility. See State v. Kubik, 235 Neb. 612, 456 N.W.2d 487 (1990). Thus, viewing the evidence [254 Neb. 950] and all reasonable inferences therefrom in the light most favorable to the State, we determine that the evidence was sufficient to establish t......
  • Request a trial to view additional results

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