RW v. Schrein

• Citation: 264 Neb. 818,652 N.W.2d 574
• Decision Date: 01 November 2002
• Docket Number: No. S-00-808 to S-00-812.
• Parties: R.W. et al., Appellants, v. Daniel B. SCHREIN, M.D., Appellee, and The Medical Protective Company of Fort Wayne, Indiana, Garnishee-Appellee.
• Court: Supreme Court of Nebraska

652 N.W.2d 574

264 Neb. 818

R.W. et al., Appellants, v. Daniel B. SCHREIN, M.D., Appellee, and The Medical Protective Company of Fort Wayne, Indiana, Garnishee-Appellee.

Nos. S-00-808 to S-00-812.

Supreme Court of Nebraska.

November 1, 2002.

James E. Harris and Britany S. Shotkoski, of Harris, Feldman Law Offices, Omaha, for appellants.

Mark A. Christensen, Lincoln, and Pamela K. Epp, of Cline, Williams, Wright, Johnson & Oldfather, P.C., for garnishee-appellee.

HENDRY, C.J., CONNOLLY, GERRARD, STEPHAN and MILLER-LERMAN, JJ.

PER CURIAM.

NATURE OF CASE

Appellants in this case were, as children, patients of Daniel B. Schrein, M.D., an Omaha pediatrician. As adults, appellants brought actions against Schrein to recover damages for sexual abuse alleged to have been perpetrated by Schrein during the course of medical treatment. Appellants obtained default judgments against Schrein and commenced garnishment proceedings against Schrein's professional liability insurer, The Medical Protective Company of Fort Wayne, Indiana (Medical Protective). The district court concluded that appellants' claims were not covered by Schrein's insurance policy and entered summary judgment for Medical Protective. In R.W. v. Schrein, 263 Neb. 708, 642 N.W.2d 505 (2002) (R.W. I), we affirmed the district court's judgment. Appellants filed a motion for rehearing, which we granted. We again affirm the judgment of the district court.

ISSUES ON REHEARING

In our first opinion, we affirmed the judgment of the district court, relying in part on the affidavit of Harlan C. Schriner, Jr., M.D., a pediatrician who opined that Schrein's actions did not constitute or arise out of professional services and that Schrein's actions thus did not breach any applicable standard of care. Appellants filed timely motions for rehearing, arguing in part that this court erred in relying on Schriner's affidavit because the affidavit, although present in the record on appeal, had not been received into evidence by the district court. We granted appellants' motions for rehearing. We ordered that the issues on rehearing include all the issues originally briefed and offered the parties leave to file supplemental briefs addressing the following additional issues:

(1) Did the district court rule on appellants' objections to the affidavits of Schriner offered in each of these cases at the time the objections were made?

(2) If there were no rulings at the time of the objections, did appellants insist upon rulings prior to submission of the motions for summary judgment? If not, were the objections waived?

(3) Were the objections and/or the grounds upon which they were based addressed and resolved by the district court in its order of July 28, 2000, and if so, how were the issues resolved?

(4) Did the district court rule on appellants' alternative requests for a continuance pursuant to Neb.Rev.Stat. § 25-1335 (Reissue 1995) at the time the requests were made?

(5) If not, did appellants insist upon such rulings prior to submission of the motions for summary judgment? If not, were the requests for continuance waived?

STANDARD OF REVIEW

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. Pinkard v. Confederation Life Ins. Co., 264 Neb. 312, 647 N.W.2d 85 (2002). In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Id.

The meaning of an insurance policy is a question of law, in connection with which an appellate court has an obligation to reach its own conclusions independently of the determination made by the lower court. See American Fam. Mut. Ins. Co. v. Hadley, 264 Neb. 435, 648 N.W.2d 769 (2002).

ANALYSIS

SCHRINER AFFIDAVIT

We turn first to the issues presented by the motion for rehearing. As set forth above, we granted rehearing on the issue whether Schriner's affidavit, on which our opinion relied, was properly received into evidence by the district court. We conclude that we are unable to resolve this issue on the record presented. The record does not show that the district court either explicitly ruled on appellants' objections to the affidavit or received the affidavit into evidence. This ambiguity in the record precludes us from relying on the affidavit or resolving any issues to which the affidavit might be relevant on appeal.

We note that the presentation of an adequate record for appellate review is primarily the responsibility of the parties. It is well established that a party who fails to insist upon a ruling to a proffered objection waives that objection. See, e.g., State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002); Jameson v. Liquid Controls Corp., 260 Neb. 489, 618 N.W.2d 637 (2000). We have also stated:

"`If when inadmissible evidence is offered the party against whom such evidence is offered consents to its introduction, or fails to object, or to insist upon a ruling on an objection to the introduction of the evidence, and otherwise fails to raise the question as to its admissibility, he is considered to have waived whatever objection he may have had thereto, and the evidence is in the record for consideration the same as other evidence.'"

(Emphasis in original.) State v. Nowicki, 239 Neb. 130, 134, 474 N.W.2d 478, 483 (1991) (quoting In re Estate of Kaiser, 150 Neb. 295, 34 N.W.2d 366 (1948)). See, also, State v. Fellman, 236 Neb. 850, 464 N.W.2d 181 (1991). That we have chosen, in this case, not to consider the disputed affidavit should not be taken to mean that we will not, in other cases, consider disputed evidence where an objection thereto has not been properly preserved by insistence upon a ruling on that objection. It is the responsibility of trial courts to rule on the objections presented to them. However, parties and counsel are cautioned that they must insist on such rulings in order to preserve those objections; they fail to do so at their own peril.

The fact that Schriner's affidavit is not available for our review, however, does not change our ultimate conclusion from R.W. I. There is no factual controversy regarding Schrein's underlying conduct, which for purposes of this proceeding is assumed to have been as alleged in appellants' petitions. Similarly, the interpretation of a contract is a question of law. See Hadley, supra. Thus, we are presented with an integrated question of law—whether the allegations in the petitions set forth a claim for damages based on "professional services" within the meaning of the insurance policy. See, Cluett v. Medical Protective Co., 829 S.W.2d 822 (Tex.App.1992); Hirst v. St. Paul Fire & Marine Ins. Co., 106 Idaho 792, 683 P.2d 440 (Idaho App.1984).

A medical professional such as Schriner can opine regarding a breach of the applicable standard of medical care, but cannot advise this court on a question of law, i.e., the meaning of a term in a contract. Our previous opinion erred in relying on Schriner's affidavit because the evidence was not relevant to the question presented to this court. After further consideration, we conclude that the dispositive question in this appeal is a question of law, on which expert testimony has no bearing. Therefore, we withdraw the section of R.W. I under the subheading "2. RENDERING OF `PROFESIONAL SERVICES,'" id. at 716, 642 N.W.2d at 512, and ends prior to the subheading "3. Public Policy," id. at 721, 642 N.W.2d at 515. In its place, we substitute the following discussion of the issue:

RENDERING OF PROFESSIONAL SERVICES

The applicable language of the insurance policy issued to Schrein provides that Medical Protective will pay damages "based on professional services rendered or which should have been rendered ... by the insured or any other person for whose acts or omissions the insured is legally responsible, in the practice of the insured's profession." An insurance contract is to be construed as any other contract to give effect to the parties' intentions at the time the contract was made. American Fam, Mut. Ins. Co. v. Hadley, 264 Neb. 435, 648 N.W.2d 769 (2002). When the terms of a contract are clear, a court may not resort to rules of construction, and the terms are to be accorded their plain and ordinary meaning as the ordinary or reasonable person would understand them. Id. While an ambiguous insurance policy will be construed in favor of the insured, ambiguity will not be read into policy language which is plain and unambiguous in order to construe against the preparer of the contract. Id. We conclude that the language of the insuring agreement is unambiguous. The determinative question, then, is whether Schrein's actionable conduct constituted "professional services" within the meaning of the policy.

This court has previously defined the term "professional services" in the context of a liability policy for professional negligence. In Marx v. Hartford Acc. & Indem. Co., 183 Neb. 12, 157 N.W.2d 870 (1968), a physician's employee mistakenly poured benzine instead of water into a sterilization container, resulting in an explosion and a fire. The physician was insured by a policy covering damages arising out of "`malpractice, error or mistake of the insured, or of a person for whose acts or omissions the insured is legally responsible ... in rendering or failing to render professional services.'" (Emphasis omitted.) Id. at 13, 157 N.W.2d at 871. Noting that the precise question presented was whether the damages arose out of the rendering or failure to render professional services, we stated:

The insurer's liability is thus limited to the performing or rendering of "professional" acts

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