Webber v. Webber

Citation942 N.W.2d 438,28 Neb.App. 287
Decision Date05 May 2020
Docket NumberNo. A-18-993.,A-18-993.
Parties Gregory J. WEBBER, appellant, v. Gregory J. WEBBER, employer, and Vanliner Insurance Company, its workers’ compensation insurer, appellees.
CourtCourt of Appeals of Nebraska

Travis Allan Spier, of Atwood, Holsten, Brown, Deaver & Spier Law Firm, P.C., L.L.O., Lincoln, for appellant.

Jennifer S. Caswell, Lincoln and Jenna M. Christensen, of Baylor Evnen, L.L.P., for appellees.

Moore , Chief Judge, and Pirtle and Bisho p, Judges.

Bishop , Judge.

INTRODUCTION

While inside a warehouse to perform duties related to relocation services, Gregory J. Webber sustained injuries when he lit a firework that exploded in his hands. He sued his employer (his sole proprietorship) and its workers’ compensation insurer, Vanliner Insurance Company (collectively Employer), for workers’ compensation benefits. Webber appeals from the decision of the Nebraska Workers’ Compensation Court which dismissed Webber’s case, finding that his injuries did not arise out of his employment and that his actions constituted willful negligence. We affirm.

BACKGROUND

In July 2016, Webber filed a petition in the Workers’ Compensation Court against his Employer. He stated that he was a "self-employed sole proprietor" working on a full-time basis as an "over-the-road truck driver." He alleged that on or about June 27, in Omaha, Nebraska, while in the course and scope of his employment, he sustained injuries to his "bilateral hands and body as a whole, and hearing loss" after "a firework exploded in [his] hands." Webber sought indemnification and payment of medical and mileage expenses.

The matter came on for hearing before the Workers’ Compensation Court on July 6, 2018. The parties stipulated that at all times relevant, Webber was a "self-employed sole proprietor working on a full-time basis as a relocation specialist/over-the-road truck driver." The parties also stipulated that Webber’s "employer was organized as an unincorporated sole proprietorship based out of Lincoln, Lancaster County, Nebraska." Webber testified that his job generally entailed doing "everything there is in the capacity of moving somebody from one location to another location, no matter what it may be," including taking "everything apart," packing all of a customer’s "stuff up," loading furniture (into a semi-truck), and then putting "everything back together." Because some loads must be stored, Webber occasionally unloaded a customer’s items at a Select Van & Storage Co. (Select Van & Storage) warehouse.

Based on an "Independent Contractor Operating Agreement," Webber was a contractor of Select Van & Storage, which company was defined as an "authorized motor carrier that transports and stores household goods and general commodities" under either its own operating authority or the authority of United Van Lines, LLC, and/or Mayflower Transit, LLC. According to Webber, he drove exclusively for Mayflower Transit, and he received work through Select Van & Storage. Webber indicated that Select Van & Storage had offices in Lincoln and other states; we refer to its warehouse located at "80th and J" in Omaha, where the incident at issue took place, as the "warehouse" in this opinion.

On June 27, 2016, Webber drove his semi-truck from his residence in Lincoln to the warehouse to check on a trailerload that he was to deliver. He had left his trailer backed into the warehouse. Webber remembered the "first thing" he wanted to do was make sure he "got everything off the [warehouse] floor," referring to customer items for the shipment, and then he was "going to hook up to [his] trailer and continue on with [his] route." However, when he arrived at the warehouse he saw David Tilley, who worked as a warehouse manager there, near the front of the warehouse. Webber agreed Tilley was a fellow fireworks enthusiast based on conversations they had in the past about fireworks. In his semi-truck, Webber had an artillery shell that was "about the size of a golf ball." Webber parked, placed that firework in his pocket, exited his semi-truck, and entered the warehouse.

Once inside the warehouse, Tilley walked with Webber toward Webber’s trailer; Tilley testified that he (Tilley) was headed to go prepare semi-trucks for his own "home deliveries." During the hearing, Webber drew a continuous, straight line on an exhibit of an overhead map of the warehouse to indicate the complete path he would have taken to reach his trailer. Webber said that he showed Tilley the firework as they were headed "that way." At some point while walking in that direction, Webber said he asked Tilley to light off the firework but Tilley declined the offer, telling Webber that he did not want to light it because the "wick was too small"; some-thing Tilley confirmed. Tilley testified that he did not want the firework "going off in [his] hands," out of concern for the wick’s short length. Tilley estimated the wick was about a "quarter of an inch" long, while Webber said it was "about an inch" long. Tilley recalled that he told Webber "if you want to light it, go right ahead." Webber indicated that he stopped in essentially the midpoint of his intended path to reach his trailer and moved about 6 feet away from that path to near an open exit door but remained inside the warehouse. Webber then lit the firework. Webber estimated that about 10 seconds of time passed from the moment he moved to the door to when the firework went off. Tilley was standing behind Webber at that time and recalled that "as soon as it lit, it went off." Webber sustained "[b]last / powder burn injur[ies]" to his stomach and lower legs and to both of his hands, resulting in partial amputations of several fingers.

A fundraiser webpage "by Greg Webber," said, in part, "while inspecting fireworks and timing of certain fireworks, one exploded way before I ever thought it would." Webber testified that this was not an accurate statement and that his sister wrote it, not him. The webpage also stated, "I feel like a dumb ass to even ask for help, when what I did was all my own fault and just a bad decision, but unfortunately I still need help." When asked why he had a firework in his pocket while in the warehouse on June 27, 2016, Webber answered that he "like[d] lighting fireworks just as much as the next guy" and that he had learned that Tilley and Tilley’s son (who also worked for the warehouse at some point) liked fireworks. Webber said he and Tilley "both liked to light [fireworks] off and blow stuff up and have fun with them on [Independence Day]." Webber was aware that Tilley had previously lit off a loud firework at the warehouse. Webber brought out the firework on June 27 "just to say, you guys thought you had some loud ones; well, I have an even louder one." He stated that on June 27, he only had "the one" (firework) in his semi-truck because he was "hoping to run into them eventually" (Tilley or Tilley’s son). He considered it important to develop rapport with employees of the warehouse and said that lighting the firework played a role in that, stating, "you want people to like you and get along with you, and you find a common ground with another individual and boys being boys [sic]."

Webber said a lot of job assignments he received through Select Van & Storage were based on ratings on metrics such as customer feedback: "[T]he higher rating you have, the better job you get." He talked about how he had lit off fireworks for customers he had relocated in the past, usually for a "pretty good-sized job and around the 4th of July." Feedback from those shows affected his "bottom line." He thought that, as his own employer, it was appropriate to be using fireworks for what was referred to as client promotion. He also had invited employees who he had employed throughout the year to his home (he hired laborers employed by the warehouse some-times to move items off or onto his semi-truck) and put on a "little firework show" for them. Webber had "lit off hundreds and thousands of fireworks" in his life and did not think he was going to get hurt on June 27, 2016. He had "lit off many fireworks for customers," so it was "just another day."

Upon a joint stipulation of the parties, at a hearing in August 2018, the court accepted into evidence written closing arguments of each of the parties. In September, the compensation court entered an "Order of Dismissal." The court concluded that Webber’s actions did not arise out of Webber’s employment and that they constituted willful negligence. It dismissed Webber’s petition. We will discuss the court’s specific findings from its order as relevant below.

Webber appeals.

ASSIGNMENTS OF ERROR

Webber claims, consolidated and restated, that the Workers’ Compensation Court erred by (1) concluding his injuries did not arise out of and in the course of his employment; (2) failing to follow "binding precedent" from Varela v. Fisher Roofing Co. , 253 Neb. 667, 572 N.W.2d 780 (1998), and failing to apply its horseplay analysis to this case to find his injuries arose out of and in the course of his employment; (3) reaching the willful negligence issue because it was inappropriate and unnecessary dicta, and even if appropriate to address it, finding there was sufficient, competent evidence in the record to support its findings concerning willful negligence; and (4) failing to construe provisions of the Nebraska Workers’ Compensation Act liberally to carry out the act’s purpose.

We note that there is no separate heading and argument in Webber’s brief specifically related to the last assigned error, and we therefore do not address it. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court. State v. Sundquist , 301 Neb. 1006, 921 N.W.2d 131 (2019).

STANDARD OF REVIEW

Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2018), an appellate court may modify, reverse, or set aside a...

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