Lane v. State Farm Mut. Auto. Ins. Co.

• Citation: 209 Neb. 396,308 N.W.2d 503
• Decision Date: 10 July 1981
• Docket Number: No. 43270,43270
• Parties: Florence F. LANE, Appellee and Cross-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation,Appellant and Cross-Appellee.
• Court: Supreme Court of Nebraska

Page 503

308 N.W.2d 503

209 Neb. 396

Florence F. LANE, Appellee and Cross-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation,Appellant and Cross-Appellee.

No. 43270.

Supreme Court of Nebraska.

July 10, 1981.

Syllabus by the Court

1. Insurance: Motor Vehicles: Statutes. Neb.Rev.Stat. § 60-509.01 (Reissue 1978), providing for uninsured motorist coverage, was enacted for the benefit of the innocent victim of a financially irresponsible motorist, and is to be liberally construed to fully accomplish that purpose.

2. Insurance: Motor Vehicles: Judgments. It is not a prerequisite to recovery under an uninsured motorist policy provision that judgment first be obtained against the uninsured motorist as a condition precedent to bringing suit against the automobile liability insurer.

3. Expert Witnesses: Words and Phrases. Although it is frequently stated that medical testimony must be given with "reasonable medical certainty," it is sufficient when such testimony is stated in terms of "probability." In this connection, "reasonable certainty" and "reasonable probability" are one and the same thing.

4. Expert Witnesses. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. Neb.Rev.Stat. § 27-702 (Reissue 1979).

5. Jury Instructions: Appeal and Error. When a litigant has approved instructions in the trial court, either by word or act, he cannot thereafter effectively complain of instructions given.

6. Jury Instructions: Appeal and Error. Instructions must be taken as a whole and construed together, and where the instructions covered the issues and fairly submitted the case to the jury, the jury's verdict will not be disturbed unless it is clearly erroneous.

7. Attorney Fees. In determining the award of attorney fees, the court may consider the actual agreement existing between a litigant and his attorney, including an obligation to pay a contingent fee, particularly if such contract is customary in the locality. However, such agreement is neither the sole factor nor a factor to be given any greater weight than any other factor. The test is whether the fee is reasonably compensatory for the services rendered.

8. Attorney Fees: Appeal and Error. The trial court ordinarily has a better opportunity for practically appraising the award of attorney fees, and an appellate court will only interfere to correct a patent injustice where the allowance is clearly excessive or insufficient.

Wayne J. Mark of Fraser, Stryker, Veach, Vaughn, Meusey, Olson & Boyer, P. C., Omaha, for appellant and cross-appellee.

Warren C. Schrempp and Steven Lefler, Omaha, for appellee and cross-appellant.

Heard before KRIVOSHA, C. J., McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ., and RONIN, Retired District Judge.

PER CURIAM.

Florence F. Lane (Florence), plaintiff-appellee herein, brought this action in the District Court of Douglas County, Nebraska, against State Farm Mutual Automobile Insurance Company (State Farm), defendant-appellant, to recover for personal injuries received arising from a motor vehicle collision, and has sued her insurer under the uninsured motorist provision of three insurance policies owned by the plaintiff. After a jury trial, a verdict was returned in favor of the plaintiff in the sum of $28,450, and the court subsequently taxed costs and attorney fees in the sum of $5,000 for the services of plaintiff's counsel against the defendant. We affirm.

The facts surrounding this appeal are as follows. On September 19, 1977, at approximately 5 p.m., the plaintiff was driving a car which collided with one driven by Debra Bronson (now Debra Logan), but hereinafter referred to as Debra. Florence was driving her vehicle northbound on 90th Street, a thoroughfare consisting of two northbound traffic lanes and two southbound traffic lanes. A concrete median separates the opposing traffic lanes; however, two left turn lanes are cut into the median to provide access to local shopping centers and businesses. Prior to the accident, Debra was traveling southbound on 90th Street and entered the left turn median lane intending to cross the northbound traffic lanes and go into a nearby parking lot. As she pulled across the northbound lanes, she struck the automobile being driven by the plaintiff. Florence sustained injuries to her neck, back, and knees and was transported by ambulance to a nearby hospital where she was treated and released. Debra was subsequently cited for negligent driving.

In her original petition filed in the District Court of Douglas County on March 1, 1978, the plaintiff named as parties defendant to the action State Farm, Debra Bronson, and Martha J. Bronson. On April 17, 1978, State Farm filed a demurrer to the petition, alleging that it failed to state a claim upon which relief could be granted for the reason that it failed to allege a judgment against Debra, who was alleged in the petition to be an uninsured motorist under the laws of the State of Nebraska. A hearing was held on the demurrer on May 1, 1978, and the court subsequently entered an order sustaining the demurrer on the basis of misjoinder of causes of action, and gave the plaintiff 14 days to amend her petition. See Eich v. State Farm Mut. Automobile Ins. Co., 208 Neb. 714, 305 N.W.2d 621 (1981).

On May 9, 1978, plaintiff filed her amended petition naming State Farm as the only defendant, and praying for a judgment against State Farm for "all sums for which the insured, the plaintiff herein, shall be legally entitled to recover as damages from the owner or operator of the uninsured motor vehicle in question ...." State Farm subsequently filed a demurrer to the amended petition, alleging that it also failed to state a cause of action. After the hearing on the defendant's second demurrer was held, the trial court entered an order on May 25, 1978, overruling the demurrer. The defendant was given 14 days to answer plaintiff's amended petition. In its answer, State Farm admitted to issuing one policy of automobile insurance to the plaintiff and that said policy contained uninsured motorist coverage in the amount of $15,000. State Farm denied in its answer that Debra was an uninsured motorist, and alleged that the accident occurred as the proximate result of contributory negligence on the part of the plaintiff.

Notwithstanding the denial contained in the answer to the amended petition filed by State Farm that Debra was an uninsured motorist, at the commencement of the trial of the matter on November 6, 1979, the following stipulation was entered into between the parties, as reflected by the record, as follows:

"MR. MARK: The next matter to take up is with respect to the answer of defendant's (sic) with the possibility that this amendment could be expanded to include the admission of the existence of other State Farm Insurance policies, upon confirmation of same defendant would at this time ask leave to amend its answer with respect to apparently there was some duplication, Paragraph 6 and 7, so as to delete Paragraph 6 and 7 and to add a new paragraph which would state that defendant admits at all times material here to (sic) Debra I. Bronson was an uninsured motorist, that the vehicle operated by Debra I. Bronson was an uninsured motor vehicle under the laws of the State of Nebraska and under the terms of the policy of insurance in force and effect between Florence F. Lane and State Farm Mutual Automobile Insurance Company.

"THE COURT: But in the event that you also amended to admit the two other policies, would you want to

"MR. MARK: I would. To the extent that we can confirm this morning the existence of the two other policies, I would admit the vehicle was an uninsured vehicle under those policies as well.

"THE COURT: Under the terms of any policies of insurance that were in force and effect.

"MR. MARK: Fair enough, Your Honor, I don't have any problem.

"THE COURT: You would have no objection to that amendment?

"MR. SCHREMPP: No.

"THE COURT: Leave is granted and the petition may be amended accordingly. The answer may be amended accordingly."

By virtue of the foregoing stipulation of the parties, and approval by the trial court, the issue of whether Debra was an uninsured motorist under defendant's policy and whether the vehicle was an uninsured vehicle thereunder appears to have been completely removed from the case. The record also reveals a further stipulation between the parties was subsequently entered into as follows:

"(At 11:35 a.m. on November 7, 1979, with counsel for the parties and the parties present, and the jury in the box, the following proceedings were had:)

....

"MR. SCHREMPP: Your Honor, may we stipulate, Mr. Mark, that at the time of the collision involved in this case there were three policies of insurance totaling $45,000 of uninsured motorist coverage in force and effect at that time, and subject to distribution in this case.

"MR. MARK: It is so stipulated, Your Honor.

"THE COURT: Very well, the stipulation is accepted and received as evidence ...."

We also note that immediately prior to the commencement of trial, the defendant made an offer to confess judgment in favor of the plaintiff in the amount of $12,500, which offer, however, was rejected, and the case then proceeded to trial as an ordinary automobile negligence action.

At the close of the evidence adduced at trial, plaintiff moved for a directed verdict in her favor on the issue of liability, leaving to the jury only the issues of proximate cause of plaintiff's injuries and damages. This motion was sustained by the trial court. State Farm also orally moved for a directed verdict on the issues of liability and proximate causation, which motion was overruled by the...