Salazar v. SCOTTS BLUFF COUNTY, S-02-656.
| Citation | 665 N.W.2d 659,266 Neb. 444 |
| Decision Date | 25 July 2003 |
| Docket Number | No. S-02-656.,S-02-656. |
| Parties | Manuel SALAZAR, Appellant, v. SCOTTS BLUFF COUNTY, a political subdivision of the State of Nebraska, Appellee. |
| Court | Nebraska Supreme Court |
Maren Lynn Chaloupka and Robert Paul Chaloupka, of Chaloupka, Holyoke, Hofmeister, Snyder & Chaloupka, Scottsbluff, for appellant.
Michael J. Javoronok, of Michael J. Javoronok Law Firm, Scottsbluff, for appellee.
Appellant, Manuel Salazar, brought an action against appellee, Scotts Bluff County (the County), under the Political Subdivisions Tort Claims Act (the Act), Neb. Rev.Stat. § 13-901 et seq. (Reissue 1997 & Cum.Supp.2000). Salazar seeks damages for spinal cord injuries he sustained in an automobile accident. The medical bills to date were $1,009,109.60; his future medical bills reduced to present value were $850,000; his loss of earnings reduced to present value was $200,000; and his total economic damages were $2,075,528.60. At trial, the district court found, inter alia, that the Act restricted the amount recoverable against a governing body to $1 million and thus entered an award in favor of Salazar in the sum of $1 million. Salazar appealed. We moved the case to our docket pursuant to our authority to regulate the caseloads of this court and the Nebraska Court of Appeals. See Neb.Rev.Stat. § 24-1106(3) (Reissue 1995).
The primary issue to be decided by this court is whether a political subdivision waives protection of the statutory limit on recovery pursuant to § 13-922 when the political subdivision procures liability insurance pursuant to § 13-916 in excess of the statutory limit.
On April 1, 2000, while Salazar's vehicle was stopped in the eastbound lane of U.S. Highway 26, waiting to turn left, a pickup truck struck the rear of his vehicle, pushing him into the oncoming lane of traffic. Salazar's vehicle was then struck by a patrol car driven by a Scotts Bluff County deputy. At the time of the collision, the patrol car was traveling at speeds in excess of 75 m.p.h. in a 50-m.p.h. zone. As a result of the accident, Salazar was paralyzed.
The district court entered a partial summary judgment in favor of Salazar. The court found that the deputy had been negligent as a matter of law; that at the time of the accident, the deputy was acting in the course and scope of his employment; that the deputy's negligence was a proximate cause of the collision; and that the collision was a proximate cause of some damage to Salazar. The parties stipulated that Salazar had duly complied with all notice and claim requirements of the Act.
The matter proceeded to trial on the issues of comparative negligence and damages. The district court found each party's proportion of negligence for the accident to be as follows: Salazar 2 percent, deputy 49 percent, pickup driver 49 percent. The court also determined that Salazar suffered total economic damages of $2,075,528.60 and noneconomic damages of $5 million, for a total of $7,075,528.60. The court further determined that based upon Nebraska's contributory negligence statutes, the County's total liability was $4,484,018. The court determined that § 13-926 of the Act restricted the amount recoverable against a governing body to $1 million for any person for any number of claims arising out of a single occurrence. The court entered an award in favor of Salazar in the sum of $1 million.
After trial, pursuant to Neb. Ct. R. of Discovery 37(c) (rev.2000), Salazar filed a motion to assess expenses incurred in proving the fairness and reasonableness of his medical expenses. The fairness and reasonableness had been denied by the County in its response to Salazar's request for admissions. The district court overruled Salazar's motion to assess expenses.
Salazar assigns that the district court (1) erred by failing to find that the County waived the protection of §§ 13-922 and 13-926 by purchasing insurance coverage in the amount exceeding the statutory cap; (2) erred by failing to find that the County waived the protection of §§ 13-922 and 13-926 by confessing judgment in an amount exceeding the statutory cap; and (3) abused its discretion by failing to assess against the County the costs of proving facts denied in its responses to request for admissions.
Statutory interpretation presents a question of law, in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the decision made by the court below. Ways v. Shively, 264 Neb. 250, 646 N.W.2d 621 (2002).
The determination of an appropriate sanction under rule 37 rests within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Kaminski v. Bass, 252 Neb. 760, 567 N.W.2d 118 (1997). A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains from acting, and the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result. In re Interest of J.K., 265 Neb. 253, 656 N.W.2d 253 (2003).
In Salazar's first assignment of error, we are asked to determine if a political subdivision waives protection of sovereign immunity under the Act if it procures insurance in excess of the statutory limit. Statutes that purport to waive protection of the State's sovereign immunity are strictly construed in favor of the sovereign and against the waiver. Keller v. Tavarone, 262 Neb. 2, 628 N.W.2d 222 (2001). A waiver of sovereign immunity is found only where stated by the most express language of a statute or by such overwhelming implication from the text as will allow no other reasonable construction. Hoiengs v. County of Adams, 245 Neb. 877, 516 N.W.2d 223 (1994). Our analysis of the Act is guided by its plain language and the presumption against a waiver. No provision within the Act expressly waives the protection of sovereign immunity to the extent liability insurance is procured in excess of the statutory limits. Thus, in order for Salazar to prevail on appeal, waiver must be found by such overwhelming implication of the statutes as will allow no other reasonable construction.
Section 13-916 provides:
The governing body of any political subdivision, including any school district, educational service unit, or community college, may purchase a policy of liability insurance insuring against all or any part of the liability which might be incurred under the Political Subdivisions Tort Claims Act and also may purchase insurance covering those claims specifically excepted from the coverage of the act by section 13-910. Any independent or autonomous board or commission in the political subdivision having authority to disburse funds for a particular purpose of the subdivision without approval of the governing body also may procure liability insurance within the field of its operation. The procurement of insurance shall constitute a waiver of the defense of governmental immunity as to those exceptions listed in section 13-910 to the extent and only to the extent stated in such policy. The existence or lack of insurance shall not be material in the trial of any suit except to the extent necessary to establish any such waiver. Whenever a claim or suit against a political subdivision is covered by liability insurance or by group self-insurance provided by a risk management pool, the provisions of the insurance policy on defense and settlement or the provisions of the agreement forming the risk management pool and related documents providing for defense and settlement of claims covered under such group selfinsurance shall be applicable notwithstanding any inconsistent provisions of the act.
Although procurement of insurance constitutes a waiver of the defense of governmental immunity as to these exceptions listed in § 13-910, the act in Salazar's case is not a § 13-910 event.
Section 13-902 states in part:
The Legislature hereby declares that no political subdivision of the State of Nebraska shall be liable for the torts of its officers, agents, or employees, and that no suit shall be maintained against such political subdivision or its officers, agents, or employees on any tort claim except to the extent, and only to the extent, provided by the Political Subdivisions Tort Claims Act.
Section 13-903(4) defines a tort claim as follows:
Tort claim shall mean any claim against a political subdivision for money only on account of damage to or loss of property or on account of personal injury or death, caused by the negligent or wrongful act or omission of any employee of the political subdivision, while acting within the scope of his or her office or employment, under circumstances in which the political subdivision, if a private person, would be liable to the claimant for such damage, loss, injury, or death....
As previously stated, § 13-910 sets out exemptions from the Act, and Salazar's case is not one of those exemptions.
The original Political Subdivisions Tort Claims Act was passed by the Legislature in 1969. See Neb.Rev.Stat. § 23-2401 et seq. (Cum.Supp.1969). In 1987, the Legislature amended the Act to provide a cap on damages which could be recovered under the Act. See § 23-2416.03 (Supp. 1987). The cap is now set forth in §§ 13-922 and 13-926. In both of these "cap" statutes, the recovery is limited to $1 million for any person for any number of claims arising out of a single occurrence, and $5 million for all claims arising out of a single occurrence. Originally, the Act had no cap and covered all activities except those listed in § 13-910. For activities exempted by § 13-910, a political subdivision could choose to have no insurance, in which case the subdivision was totally protected by reason of...
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