Koehler v. Farmers Alliance Mut. Ins. Co.

• Decision Date: 27 June 1997
• Docket Number: No. S-94-1160,S-94-1160
• Citation: 566 N.W.2d 750,252 Neb. 712
• Parties: Daniel KOEHLER, Personal Representative of the Estate of Tracy L. Koehler, Deceased, Appellee, v. FARMERS ALLIANCE MUTUAL INSURANCE COMPANY, Appellant.
• Court: Nebraska Supreme Court

Page 750

566 N.W.2d 750

252 Neb. 712

Daniel KOEHLER, Personal Representative of the Estate of Tracy L. Koehler, Deceased, Appellee, v. FARMERS ALLIANCE MUTUAL INSURANCE COMPANY, Appellant.

No. S-94-1160.

Supreme Court of Nebraska.

June 27, 1997.

Syllabus by the Court

1. Rules of Evidence. In all proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility.

2. Motions for New Trial: Appeal and Error. A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld on appeal in the absence of an abuse of that discretion.

3. Attorney Fees. The amount of attorney fees awarded pursuant to Neb. Rev. Stat. § 44-359 (Reissue 1993) is a matter within the discretion of the trial court.

4. Attorney Fees: Appeal and Error. On appeal, a trial court's decision awarding or denying attorney fees will be upheld absent an abuse of discretion.

5. Courts: Expert Witnesses: Hearsay. It is incumbent upon a trial court to exercise its discretion in determining whether to admit evidence offered to demonstrate the basis for an expert's testimony to ensure that such offer is not being used as a vehicle for introducing otherwise inadmissible hearsay into evidence.

6. Trial: Evidence: Appeal and Error. To constitute reversible error in a civil case, the admission or exclusion of evidence must unfairly prejudice a substantial right of a litigant complaining about evidence admitted or excluded.

7. Testimony: Evidence: Appeal and Error. Testimony objected to which is substantially 8. Attorney Fees: Presumptions. To determine the proper amount of attorney fees under Neb. Rev. Stat. § 44-359 (Reossie 1993), it is necessary to consider the nature of the litigation, the time and labor required, the novelty and difficulty of the questions raised, the skill required to properly conduct the case, the responsibility assumed, the care and diligence exhibited, the result of the suit, the character and standing of the attorney, and the customary charges of the bar for similar services. There is no presumption of reasonableness placed on the amount offered by the party requesting fees.

similar to evidence admitted without objection results in no prejudicial error.

Michael A. England and Stephen L. Ahl of Wolfe, Anderson, Hurd, Luers & Ahl, Lincoln, for appellant.

Eugene L. Hillman and Patricia McCormack of McCormack, Cooney, Hillman & Elder, Omaha, for Appellee.

CAPORALE, WRIGHT, CONNOLLY, and GERRARD, JJ., and ROWLANDS, District Judge.

WRIGHT, Justice.

Daniel Koehler (Koehler), as the personal representative of the estate of his daughter, Tracy L. Koehler (Tracy), sought benefits under the uninsured motorist provision in his automobile insurance policy with Farmers Alliance Mutual Insurance Company (Farmers). Following trial, the jury awarded Koehler $25,000, and the district court awarded him attorney fees. The district court overruled Farmers' motion for new trial, and Farmers appealed.

SCOPE OF REVIEW

In all proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility. See, Sedlak Aerial Spray v. Miller, 251 Neb. 45, 555 N.W.2d 32 (1996); Reavis v. Slominski, 250 Neb. 711, 551 N.W.2d 528 (1996).

A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld on appeal in the absence of an abuse of that discretion. Menkens v. Finley, 251 Neb. 84, 555 N.W.2d 47 (1996).

The amount of attorney fees awarded pursuant to Neb.Rev.Stat. § 44-359 (Reissue 1993) is a matter within the discretion of the trial court. Adams Bank & Trust v. Empire Fire & Marine Ins. Co., 244 Neb. 262, 506 N.W.2d 52 (1993).

On appeal, a trial court's decision awarding or denying attorney fees will be upheld absent an abuse of discretion. DeVaux v. DeVaux, 245 Neb. 611, 514 N.W.2d 640 (1994); In re Estate of Watkins, 243 Neb. 583, 501 N.W.2d 292 (1993).

FACTS

On May 10, 1990, Tracy left her parents' home near Lewiston, Nebraska, sometime before 9 p.m. and drove west on a gravel road. At that time, Jacqueline Murphy was driving east on the same road. As Murphy crested the top of a hill, she saw Tracy's vehicle and applied her brakes, which subsequently locked. The front driver's side of Tracy's vehicle collided with the front driver's side of Murphy's vehicle. The force of the impact spun Tracy's vehicle into a ditch on the north side of the road and Murphy's vehicle into a ditch on the south side of the road. Tracy died as a result of this accident.

Koehler, as the personal representative of Tracy's estate, brought suit against Murphy in the district court for Pawnee County in May 1992, alleging that Murphy was negligent in the operation of her vehicle. The vehicle driven by Tracy was owned by Koehler, and Koehler's insurer, Farmers, filed a motion for leave to intervene as an interested party because Koehler's insurance policy included uninsured motorist coverage. Farmers was permitted to intervene, and it moved to bifurcate the trial. Murphy was subsequently dismissed from the action. A jury trial was held in September 1994.

At trial, Koehler called George Lynch, an accident reconstruction expert. Lynch testified that in forming his opinion he relied upon materials that were of the type normally relied upon by accident reconstructionists to formulate opinions as to the cause of an accident. He stated that he had relied on The jury returned a verdict for Koehler in the amount of $25,000. Following the verdict, Koehler filed a motion and application for attorney fees under § 44-359, which allows the court to award attorney fees in cases brought upon an insurance policy where a judgment is rendered against the insurance company. The trial court found that Farmers did not meet its burden of showing that the requested amount was unreasonable and approved the payment of $29,511.41 in attorney fees. Farmers filed a motion for new trial, which was overruled. Farmers timely appealed.

copies of accident reports from the Pawnee County Sheriff's Department and the Nebraska State Patrol. Using those reports, Lynch prepared exhibit 4, which reflects the position of the two vehicles after the collision and the measurements contained in the police reports. Exhibit 4 was admitted over Farmers' objections that it lacked foundation and was hearsay. Neither party requested a limiting instruction with respect to exhibit 4.

ASSIGNMENTS OF ERROR

On appeal, Farmers alleges that the trial court (1) erred in overruling Farmers' objection to the introduction of the investigating law enforcement officers' measurements through the admission of an exhibit prepared by Koehler's expert witness, (2) erred in overruling Farmers' motion for new trial, and (3) abused its discretion in awarding excessive attorney fees.

ANALYSIS

ADMISSION OF EXHIBIT 4

Lynch testified that he had been provided copies of the Pawnee County sheriff's report and the supplemental reports made by Nebraska State Patrol Trooper Stanley Funkey and a Trooper King, which contained diagrams, measurements, and photographs of the accident scene. Lynch stated that based on these reports, he prepared a drawing of the scene of the accident (exhibit 4) which incorporated numerous measurements taken from the reports and depicted the position of the two vehicles after the collision. Lynch explained that these reports were of the type normally relied upon by experts in his field in reaching their opinions and that reference to exhibit 4 would be helpful to him in explaining his testimony to the jury.

Koehler offered exhibit 4, and Farmers objected based on foundation and hearsay. The trial court overruled the objection and admitted exhibit 4. Lynch then testified that Murphy's vehicle was 2 feet over the centerline when the skid marks appeared on the roadway and that Tracy's vehicle was 3 to 4 inches to the right of the center of the roadway at the point of impact.

Farmers alleges that the trial court erred in overruling its objection to the introduction of exhibit 4. Farmers contends that exhibit 4 should not have been admitted because it included measurements taken from the investigating law enforcement officers' reports and, therefore, contained hearsay.

Koehler argues that exhibit 4 was introduced to provide the basis for Lynch's testimony and was not offered to prove the truth of the matter asserted. Thus, Koehler argues, exhibit 4 was admissible as nonhearsay, even though it may have contained hearsay that was otherwise inadmissible.

In all proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility. See, Sedlak Aerial Spray v. Miller, 251 Neb. 45, 555 N.W.2d 32 (1996); Reavis v. Slominski, 250 Neb. 711, 551 N.W.2d 528 (1996).

We have emphasized that a testifying expert may not merely act as a conduit for hearsay, and if the trial court in its discretion determines that the introduction of the basis for the expert's testimony will advance such a purpose, the trial court has discretion to refuse to admit such evidence. See Stang-Starr v. Byington, 248 Neb. 103, 532 N.W.2d 26 (1995).

In Stang-Starr, the plaintiff's expert testified regarding the standard of care with respect to a particular gynecological procedure. The expert testified that his opinion was grounded upon the basis of his knowledge obtained from medical textbooks, medical literature On appeal, we affirmed the trial court's sustaining of the objection to the offer of the medical texts and literature on the basis that they were hearsay. W...