Millard v. Hyplains Dressed Beef, Inc.

• Decision Date: 19 April 1991
• Docket Number: 89-096,Nos. 89-095,s. 89-095
• Citation: 237 Neb. 907,468 N.W.2d 124
• Parties: Phyllis MILLARD, Personal Representative of the Estate of Edmund M. Millard, Deceased, Appellee and Cross-Appellant, v. HYPLAINS DRESSED BEEF, INC., a Kansas Corporation, et al., Appellants and Cross-Appellees. Richard H. WATERS III, Personal Representative of the Estate of Richard H. Waters, Jr., Deceased, Appellee and Cross-Appellant, v. HYPLAINS DRESSED BEEF, INC., a Kansas Corporation, et al., Appellants and Cross-Appellees.
• Court: Nebraska Supreme Court

Page 124

468 N.W.2d 124

237 Neb. 907

Phyllis MILLARD, Personal Representative of the Estate of Edmund M. Millard, Deceased, Appellee and Cross-Appellant, v. HYPLAINS DRESSED BEEF, INC., a Kansas Corporation, et al., Appellants and Cross-Appellees.

Richard H. WATERS III, Personal Representative of the Estate of Richard H. Waters, Jr., Deceased, Appellee and Cross-Appellant, v. HYPLAINS DRESSED BEEF, INC., a Kansas Corporation, et al., Appellants and Cross-Appellees.

Nos. 89-095, 89-096.

Supreme Court of Nebraska.

April 19, 1991.

Syllabus by the Court

1. Summary Judgment: Appeal and Error. In an appeal of a summary judgment, the Supreme Court views the evidence in a light most favorable to the party against whom the judgment is granted and gives that party the benefit of all reasonable inferences deducible from the evidence.

2. Summary Judgment. Summary judgment is to be granted 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.

3. Workers' Compensation. The Nebraska Workers' Compensation Act, Neb.Rev.Stat. §§ 48-101 et seq. (Reissue 1988), is the employee's exclusive remedy against an employer for an injury arising out of and in the course of employment.

4. Workers' Compensation. Whether an accident arises out of and in the course of the employment must be determined by the facts of each case; there is no fixed formula.

5. Workers' Compensation. Transportation furnished to an employee by an employer either incident to the employment contract or because of the custom of the job brings the employee within the scope of his employment for workers' compensation purposes during the time of the transportation.

6. Workers' Compensation. Where an employer provides transportation in a vehicle that is under the employer's control, an injury during that journey arises out of and in the course of employment, and the exclusive remedy for the employee is the Workers' Compensation Act.

7. Attorney Fees. A court may award attorney fees and court costs against any attorney or party who has brought or defended a civil action that alleges a claim or defense which is frivolous or made in bad faith.

8. Trial: Appeal and Error. On appeal, the standard of review for a trial court's determination of sanctions is abuse of discretion.

9. Actions: Words and Phrases. A lawsuit may be deemed frivolous where there is evidence that it was filed with an improper motive or based on a legal position so wholly without merit as to be ridiculous.

10. Actions: Words and Phrases. A legal position without merit is one that is without rational argument based on law and evidence to support a litigant's position in the lawsuit.

William G. Line, of Kerrigan, Line & Martin, Fremont, for appellants and cross-appellees.

David A. Domina, of Domina, Gerrard, Copple & Stratton, P.C., Norfolk, for appellees and cross-appellants.

HASTINGS, C.J., WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ., and COLWELL, District Judge, Retired.

WHITE, Justice.

In this appeal we are presented with the question of sanctions against an attorney and in the cross-appeal with the grants of summary judgments. The defense counsel in wrongful death actions has appealed the denial of attorney fees and costs, asserting that the wrongful death claims were frivolous and that plaintiffs' counsel should be ordered to pay appellants' attorney fees and court costs as provided in Neb.Rev.Stat. § 25-824(2) (Reissue 1989).

The defendants-appellants assign as error the trial court's denial of their motions for attorney fees and the trial court's rulings on evidentiary questions. The plaintiffs-appellees have cross-appealed the grants of summary judgments for the defendants. We affirm.

FACTS

The underlying wrongful death actions were brought by the personal representatives of two employees who were killed in a 1986 plane crash. They sued the estate of the pilot, Sam V. Davis, and two of the companies he owned and controlled--Hyplains Dressed Beef, Inc., a meatpacking plant in Dodge City, Kansas, and its parent company, the S & R Land & Cattle Co., Inc. Davis also owned Cornland Dressed Beef, Inc., a meatpacking plant in Lexington, Nebraska, where the decedent Edmund M. Millard was plant superintendent and the decedent Richard H. Waters, Jr., was general manager.

On April 14, 1986, Davis and two passengers flew from Dodge City to Lexington, where they picked up Millard and Waters, and continued to Norfolk, Nebraska. In Norfolk, the group toured a livestock slaughter and meatpacking facility. The parties disagree as to the purpose of the trip. The plaintiffs contend that Davis had a personal interest in the operation of the Norfolk plant and may have been considering its purchase, while the defendants argue that Davis planned to expand the Lexington operation and wanted his Cornland and Hyplains employees to see the kill floor that had been installed in Norfolk.

After the tour of the Norfolk facility, the group planned to go to Omaha to inspect another plant and to attend an American Meat Institute meeting. The plane crashed in a snowstorm soon after takeoff from Norfolk.

After the defendants' second motions for summary judgments were granted and the plaintiffs' petitions were dismissed, the defendants filed motions for attorney fees under § 25-824, claiming that the actions were frivolous because wrongful death claims are barred by the exclusive remedy of the Nebraska Workers' Compensation Act. The motions were denied, and the motions for new trial on sanctions were overruled. This appeal follows.

CROSS-APPEAL

The plaintiffs-appellees have cross-appealed the grants of summary judgments for the defendants. In granting judgments for defendants, the trial court found that Davis was piloting the aircraft which crashed, resulting in the deaths of Millard and Waters. The court found evidence which disclosed that the decedents were employed by Cornland at the time of their deaths, that Davis was the president of Cornland, and that the decedents were killed while on a trip related to the business of Cornland (to inspect a meatpacking plant for the purpose of expanding the Cornland plant). The court held that Davis was an employee of the defendant corporations, as well as of Cornland. Because of the acceptance of workers' compensation benefits for the decedents from Cornland, the plaintiffs were precluded from recovering in tort against Cornland or Davis.

In our review of a summary judgment, this court views the evidence in a light most favorable to the party against whom the judgment is granted and gives that party the benefit of all reasonable inferences deducible from the evidence. Moreover, summary judgment is to be granted 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. Landon v. Pettijohn, 231 Neb. 837, 438 N.W.2d 757 (1989).

Under state law the Nebraska Workers' Compensation Act, Neb.Rev.Stat. §§ 48-101 et seq. (Reissue 1988), is the employee's exclusive remedy against an employer for an injury arising out of and in the course of employment. "If the accident does not arise out of and in the course of the employment, there is no coverage, and the parties then are not subject to the act." Marlow v. Maple Manor Apartments, 193 Neb. 654, 659, 228 N.W.2d 303, 306 (1975). See, also, Haumont v. City of Lincoln, 229 Neb. 52, 424 N.W.2d 892 (1988). "Whether an accident arises out of and in the course of the employment must be determined by the facts of each case. There is no fixed formula by which the question may be resolved." Thomsen v. Sears Roebuck & Co., 192 Neb. 236, 242, 219 N.W.2d 746, 750 (1974).

The plaintiffs assert that the decedents were employed by Cornland, an independent corporation controlled by Davis, but that the decedents had no relationship to Hyplains or S & R, the named defendants. They allege that the plane was registered to Hyplains, and it may have been owned by, registered to, or used by S & R. The plaintiffs' petitions state that the decedents were traveling in the plane at the special request of the defendants to assist and evaluate the Norfolk plant and its equipment and that they boarded the plane at the request of Davis and the corporate defendants.

While this court has not previously been faced with similar cases, we have dealt with the question of transportation provided by an employer in two instances. In Kopfman v. Freedom Drilling Co., 220 Neb. 323, 327, 370 N.W.2d 89, 92 (1985), we held:

[T]ransportation furnished to an employee by an employer either incident to the employment contract or because of the custom of the job the employee had with the employer operates to bring the employee within the scope of his employment for workmen's compensation purposes during the time of the transportation.

In Schademann v. Casey, 194 Neb. 149, 156-57, 231 N.W.2d 116, 122 (1975), we held:

[W]here incident to the employment contract, whether express, implied, or by custom, it is understood by the employer and employee that the employer will transport the employee to or from the place where the work is to be done, and the employer does so provide that transportation in a vehicle under the employer's control, an injury during that journey arises out of and in the course of employment.

Applying these rules to the present case, we find that the transportation was provided by the defendants, that it was under the control of the defendants, and that the injury and deaths of the decedents arose out of and in the course of their employment with Davis and his...