Knudsen v. Mutual of Omaha Ins. Co.
| Decision Date | 22 October 1999 |
| Docket Number | No. S-98-204.,S-98-204. |
| Citation | 601 N.W.2d 725,257 Neb. 912 |
| Parties | Roger KNUDSEN, appellee, v. MUTUAL OF OMAHA INSURANCE CO., appellant. |
| Court | Nebraska Supreme Court |
Patrick G. Vipond and Michael S. Degan, of Lamson, Dugan & Murray, Omaha, for appellant.
Robert V. Broom, of Broom, Johnson & Clarkson, Omaha, for appellee.
When Mutual of Omaha Insurance Company (Mutual) terminated disability benefits it had been paying to Roger Knudsen, he sued to obtain reinstatement of the benefits. Both parties moved for summary judgment, and the district court granted summary judgment in favor of Knudsen on the issue of liability. The court then awarded damages for past benefits to Knudsen in the amount of $52,000. On February 19, 1998, the court modified its order by awarding benefits to Knudsen so long as he continued to be disabled. Subsequently, on March 6, the court awarded Knudsen attorney fees in the amount of $18,350, and Mutual appeals.
Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. NECO, Inc. v. Larry Price & Assocs., 257 Neb. 323, 597 N.W.2d 602 (1999).
In reviewing an order of summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment was granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Schweitzer v. American Nat. Red Cross, 256 Neb. 350, 591 N.W.2d 524 (1999).
In reviewing an order granting a motion for summary judgment, the question is not how a factual issue is to be decided, but, instead, whether any real issue of material fact exists. NECO, Inc. v. Larry Price & Assocs., supra.
Knudsen worked for Metropolitan Utilities District (MUD), and on the date of his disability, he held the position of automotive analyst. On August 5, 1983, Knudsen was placed on disability as the result of a job-related injury he suffered to his right eye. The injury caused triple vision and severe headaches that prevented Knudsen from performing his job.
At the time Knudsen was placed on disability leave, he was insured under a group policy issued by Mutual. The policy defined the term "total disability" as follows:
TOTAL DISABILITY — a physical or mental inability to work because of an illness or accidental injury. You are totally disabled during your first 12 months of disability only if you are unable to perform the duties of your occupation; and if you do not receive pay for performing any other job. After 12 months you are totally disabled if you are unable to perform for pay any job for which you are reasonably fitted by education, training or experience.
After the initial 12-month period, Mutual determined that Knudsen was still totally disabled within the meaning of the policy because the severity of his condition rendered him unable to perform for pay any job for which he was reasonably fitted by education, training, or experience. This determination was based upon the opinion of Dr. Jack Lewis, Knudsen's personal physician, who opined that the triple vision and constant headaches suffered by Knudsen would prevent him from almost any future employment. Mutual continued to pay Knudsen total disability benefits from 1984 through 1993. During this period, Knudsen was required to submit periodic reports from his personal physician regarding the state of his current condition and prognosis. Throughout this period, Lewis continually rated Knudsen as totally disabled with no prospect of improvement.
In 1993, Mutual referred Knudsen to Dr. Kathryn Hodges, an ophthalmologist. Hodges conducted an examination of Knudsen on September 29 and concluded that he no longer suffered from triple vision, as he had lost all vision in his right eye. Additionally, she concluded that Knudsen was not totally disabled by his vision deficit and that his condition should not prevent him from reentering the work force.
On October 15, 1993, Mutual determined that Knudsen's condition no longer met the definition of a total disability within the meaning of the policy. In furtherance of this belief, Mutual ordered an occupational assessment (OASYS) study in order to obtain a sample of occupations available to an automotive mechanic with vision limited to one eye. The OASYS study compares job qualifications with known physical impairment to find occupational matches. The OASYS study concluded that Knudsen was qualified for several occupations in the automotive field. Mutual then terminated Knudsen's benefits.
Knudsen subsequently initiated this action for reinstatement of benefits. Both parties filed motions for summary judgment, and the district court granted partial summary judgment in favor of Knudsen on the issue of liability and denied Mutual's motion for summary judgment. On February 6, 1998, the court granted Knudsen's motion for summary judgment on the issue of damages and awarded damages in the amount of $52,000 plus taxable costs and attorney fees. On February 19, the court entered an order modifying its order of February 6 to state that "`so long as the plaintiff continues to be disabled, as previously determined by the Court, he is entitled to all applicable future benefits under the disability policy issued by the defendant.' " On March 6, the court entered an order granting Knudsen attorney fees totaling $18,350. Mutual timely appeals.
Mutual asserts that the district court erred in (1) granting summary judgment in favor of Knudsen in light of Mutual's evidence disputing his contention that he has a total disability within the meaning of the policy; (2) not granting summary judgment in favor of Mutual, because Knudsen failed to produce sufficient evidence to meet his burden of establishing that he was totally disabled within the meaning of the policy; (3) precluding Mutual from obtaining discovery of Knudsen's Social Security records; (4) awarding prospective damages in an action at law for breach of contract; and (5) awarding excessive attorney fees to Knudsen.
We first address whether Knudsen was entitled to judgment as a matter of law. In reviewing an order of summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment was granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Schweitzer v. American Nat. Red Cross, 256 Neb. 350, 591 N.W.2d 524 (1999). The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law. Nicholson v. General Cas. Co. of Wis., 255 Neb. 937, 587 N.W.2d 867 (1999).
Generally, the denial of a motion for summary judgment is not a final, appealable order. However, when adverse parties have each moved for summary judgment and the trial court has sustained one of the motions, the reviewing court obtains jurisdiction over both motions and may determine the controversy which is the subject of those motions or make an order specifying the facts which appear without substantial controversy and direct further proceedings as it deems just. Doe v. Zedek, 255 Neb. 963, 587 N.W.2d 885 (1999). Since both parties moved for summary judgment, we review the evidence to see if we may determine the controversy or direct further proceedings.
In support of his motion for summary judgment, Knudsen offered his deposition and affidavit; the deposition of Gary Suing, an employee of MUD; and the affidavit of Lewis.
In his deposition, Knudsen stated that he no longer suffered from...
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