Wolfe, Snowden Ushers in The Bulletin
Welcome to The Wolfe, Snowden Bulletin ("The Bulletin")! The Bulletin is yet another way Wolfe, Snowden, Hurd, Luers & Ahl, LLP, is increasing its level of service for clients. The Bulletin will be published quarterly and will include articles on a wide variety of topics and issues that are important to our clients.
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We hope you enjoy your first edition of The Bulletin!
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Wolfe, Snowden Wins Victory for Insurance Industry
Wolfe, Snowden recently won an important decision for insurance carriers doing business in the State of Nebraska. In City of Columbus v. Swanson, 270 Neb. 713, the Nebraska Supreme Court affirmed a summary judgment granted in favor of Allied Property and Casualty Insurance Company ("Allied"). The suit arose after a vehicle operated by Gregory Swanson ("Greg") collided with a City of Columbus police vehicle. The City brought suit against Greg seeking more than $15,000 in property damage. Greg, in turn, sought indemnification from Allied. However, Allied refused to defend the suit or indemnify Greg on the grounds that it had effectively canceled his insurance policy before the accident occurred. Swanson joined Allied as a third party defendant to the litigation.
Upon being joined in the action, Allied filed for summary judgment on the cancellation issue. While Greg admitted he, in fact, received the statutory notice required under Neb. Rev. Stat. § 44-51, he argued the cancellation was ineffective because Allied had not notified his mother or father of its intent to cancel the policy. Swanson's mother ("Mrs. Swanson") was listed on the vehicle's certificate of title as a joint owner with rights of survivorship. She was not listed on the insurance policy. On the other hand, Swanson's father ("Mr. Swanson"), who had loaned Greg $2,500 to buy the car, was listed on the policy under different titles, depending on the portion of the policy. He was listed in one place as a "loss payee" and in another place as a "designee." According to Greg, in order for Allied to effectively cancel the policy, all three parties had to be notified in accordance with Neb. Rev. Stat. § 44-516.
The trial court disagreed and found that Allied's cancellation of the policy, as to Greg, was effective. Allied had complied with both Nebraska law and the terms of the policy in canceling the liability policy. The trial court further found that Greg "was afforded both the time and opportunity to either pay the policy premium or to obtain other insurance." Since he failed to take any steps to protect himself, he had no coverage under the policy.
After removing the case to its own docket, the Nebraska Supreme Court agreed that as to Greg, Allied's cancellation was effective. Since the case involved cancellation by an insurer, the notice provisions of § 44-516 were implicated. Under § 44- 516, insurers are required to send notice of the cancellation to the "named insured." In this case, only Greg was listed as a "named insured." Although Mrs. Swanson was listed on the title, there was no evidence that Allied had been notified of her ownership interest. Furthermore, although Mr. Swanson was an "additional insured," he also was not listed as a "named insured."
Greg argued that all insureds should receive the statutory notice (such as "loss pa y e e s , " " d e s i g n e e s " a n d "additional insureds"). However, the Nebraska Supreme Court disagreed. The Nebraska Legislature could have imposed such a requirement - as other state legislatures have done. But it had not chosen to do so. It limited an insurer's duty to notifying the named insured.
The Swanson case goes a long way in clarifying Nebraska law. Whereas other Nebraska Supreme Court decisions - namely Kent v. Dairyland Mut. Ins. Co., 177 Neb. 709, 131 N.W.2d 146 (1964), and Hansen v. U.S.A.A. Cas. Ins. Co., 206 Neb. 147, 291 N.W.2d 715 (1980) - seemingly required carriers to notify all persons with an ownership interest in the vehicle prior to canceling a liability policy, Swanson makes it clear that when the insurer is seeking to cancel a policy due to nonpayment of premiums, the insurer need only comply with Section 44-516 and notify the named insured.
Congratulations to Allied Property and Casualty Insurance Company, and to Steve Ahl and Cathy Trent who represented Allied at the trial court and appellate levels!
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State of Nebraska Gives Amnesty to Violators of Unclaimed Property Act
To raise awareness about Nebraska's Unclaimed Property Act, the Nebraska Treasurer's Office has been conducting seminars throughout the State. Yet its message may not be reaching its target audience. Subsequently, a letter was sent to Nebraska Bar members asking for help in getting the word out about the Act, and the State's temporary amnesty program for violators of the Act.
Under the Unclaimed Property Act, Neb. Rev. Stat. § 69-1301 to 69-1329, every person (individual or business) holding tangible or other intangible property presumed to be abandoned under the Act, "shall" report that property to the State Treasurer. Intangible property includes, among other things, monies held in bank accounts, stock or shareholding ownership interests, funds held by a court, funds held by a fiduciary, and mineral rights.
The length of time that the property must go unclaimed before being deemed "abandoned" varies depending upon the type of property. For example, demand (checking) accounts, savings accounts, and matured time deposit accounts are "abandoned" if the owner has not taken certain statutorily-defined action within five years. Deposits held by utility companies, on the other hand, become "abandoned" after only three years. By no means are big businesses the only businesses affected by the Unclaimed Property Act.
Many small business owners may unwittingly violate the law. For example, gift certificates that have not been redeemed within three years from the date of their issuance are "abandoned" for purposes of the Act. Therefore, if small business owners fail to track their gift certificates, or to effect a system that insures dated gift certificates are reported to the State, they run the risk of violating Nebraska law. Violations could result in an audit, which in turn could lead to penalties and interest.
Another area that small business owners may run afoul of the Act involves unpaid wages and retirement funds. If an employee quits, is terminated, or dies, the employer must report the employee's unpaid wages to the Treasurer if those wages were not claimed within one year after they became payable. Under Section 69-1310, persons must file their report of abandoned property with the State Treasurer "before November 1 of each year as of June 20 next preceding." However, the reporting requirement is different for life insurance companies.
Before reporting property under the Act, holders must first undertake certain efforts to return the property to its rightful owner. First, the holder must exercise "due diligence" in ascertaining the whereabouts of the owner. If the holder knows the owner's whereabouts, and if the owner's claim is not barred by the statute of limitations, the holder "shall, before filing the annual report, communicate with the owner and take necessary steps to prevent abandonment from being presumed."
In an effort to further increase awareness, and encourage compliance with the laws, the State of Nebraska is offering amnesty from penalties and interest to businesses that deliver (to its office) by June 30, 2006, any property that should have been delivered in prior years. It does not matter When the property should have been delivered. So long as the June 30 deadline is met, you will not be assessed any penalties or interest for your prior non-compliance.
Property reported to the State Treasurer is handled by the Unclaimed Property Department, which then assumes responsibility for finding the property's rightful owner. The State will hold the property until the owner, or his or her nearest living relative, is located.
If you are a business owner and are unsure of whether you have property subject to the Act, you should contact your attorney for an evaluation. If it is determined that your property qualifies, you will need to institute a system which insures the unclaimed property is identified and reported on a timely basis. For example, you may want to incorporate the identification and reporting process into an annual audit, inventory audit, or as part of your tax preparation. Again, your attorney or business advisor can likely assist you in developing such a system.
For additional information about the amnesty program, contact the State Treasurer at 402- 471-8497. If you have property to remit, you may obtain a form from the Treasurer's website. You may search to see whether you are entitled to any unclaimed property being held by the State.
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E-Juries Provide Affordable Alternative to Traditional Mock Juries
We've all seen them before - cases where one important factual issue can dramatically affect a case's value. Consider, for example, liability issues. How will the jury assess the plaintiff's contributory negligence?
Will it be enough to get over the 50% mark? If the jury allocates more liability to the plaintiff, the settlement value of the case drops exponentially. On the other hand, if the jury allocates more liability to your client, the jury verdict could be staggering. Do you settle the case now and pay more than you otherwise would pay if the jury allocated a higher portion of liability to the plaintiff? Or do you gamble on a favorable liability finding by the jurors?
In an era where verdicts in excess of $1 million are almost commonplace, gambling on a favorable jury verdict is risky at best. In the past, parties have had the option of conducting a mock jury trial. In essence, the party would locate six to twelve individuals from the community and present his or her case to them. The jurors would then deliberate on the case and decide issues of liability and damages. In the process, lawyers gained insight about how prospective jurors might perceive a particular theory of liability or damages argument.
The process, however, was both time-consuming and expensive. To locate a sample jury, parties sometimes hired a jury consultant to conduct the search. The jurors would generally be compensated for their time. And then, of course, there were the attorney's fees associated with the jury search, mock trial, and post-trial analysis. Parties could easily spend tens of thousands of dollars in an effort to better gauge juror's opinions. Technological advances on the Internet, however, now afford parties a faster, far less expensive alternative. Companies, such as eJury.com and ZapJury.com, have developed national databases of mock jurors that can be made available on short notice. Moreover, because the jurors participate online, this further cuts down on costs, as parties no longer have to lease or rent space to conduct the mock trial or postverdict interviews of jurors.
Parties interested in employing an online mock jury service simply register at one of the sites and submit their case information, including written arguments for both the plaintiff's and defendant's sides. Self-selected jurors (up to 50) then view the arguments online and submit their comments about the evidence they found to be most persuasive and what evidence was most lacking.
The format of the online mock jury service varies. For example, with some services, the attorney is a mere observer. That is, he or she is able to see the jury "deliberating," but cannot interact with the jurors. Other services, however, allow the attorney to participate in the deliberations as a mock juror. The attorney, cloaked as a juror, can then present a variety of arguments and see how each one is perceived by the other jurors.
Once a party gets its emock jury results, the party can then use that information to evaluate its claim in mediation proceedings. Of course, there are downsides to online mock juries. First, by using an electronic medium, you are limiting your potential jurors to those who are computer savvy. Doing so could weed out elderly or lower-income individuals, both of whom could end up on a jury pool and bring with them certain preconceived thoughts, values, and biases that will not be evident during the electronic jury process.
Geography is another limiting factor. Since electronic juries are a relatively new phenomenon, and because many jurors actually seek out online jury services, sample jury pools may be limited to major metropolitan areas. For example, in reviewing the choice of venues listed on the eJury website, there are no counties listed at all for the entire State of Nebraska. Although using jurors from another county or state may provide a party with some insight, it cannot compare with a sample jury comprised of people who actually live in the area where the case will be tried.
Finally, jurors deliberating online is not the same as jurors deliberating in person. Online jurors presumably do not experience the same level of synergy as jurors who share the same physical space. Likewise, online jurors may not be able to influence other jurors to the same degree as traditional mock jurors.
Even with these shortcomings, online mock juries are still a valuable tool for attorneys, parties, and claims adjusters. They force the attorney to assess the case from the other party's point of view. More importantly, they force the client to consider the case from another's point of view. Finally, they provide opinions and insight from objective individuals who have no vested interest in the case.
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Wolfe Snowden Gets Defense Trial Verdict!
Wolfe Snowden recently received a defense verdict in a slip and fall case. The plaintiff brought suit after she slipped and fell in the parking lot of a large Lincoln apartment complex. She alleged to have suffered from lateral epicondylitis and ulnar nerve neuropathy from cubital tunnel syndrome as a result of the accident.
The plaintiff had $18,000 in medical bills. Alleging she could no longer work as a medical transcriptionist, the plaintiff also sought $650,000 in loss of earning capacity in addition to general damages for pain and suffering. The trial lasted four days. Attorneys William Tannehill and Renee Eveland defended the action on the grounds that the danger was open and obvious, particularly in light of a recent snowfall. The jury deliberated slightly more than one hour before returning a defense verdict.
Congratulations to William L. Tannehill and Renée Eveland on their defense verdict and a job well done!
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About the Contributing Author
Cathy S. Trent
Cathy Trent joined Wolfe Snowden as an associate in 2002. She received her Bachelor of Arts degree, cum laude, in Political Science from Loyola Marymount University in 1994. She received a Master of Arts degree, summa cum laude, from California State University, Long Beach, in 1999. In 2002, Ms. Trent received her Juris Doctor, cum laude, from UNL College of Law. While at UNL, she served as a member and Executive Editor of the Nebraska Law Review and was elected to the Order of the Coif.
Ms. Trent is a member of the Lincoln, Nebraska, and American Bar Associations. She also is a member of the Nebraska Association of Trial Attorneys and the Defense Research Institute. She is admitted to practice in the State of Nebraska, the United States District Court for the District of Nebraska, and the Eight Circuit Court of Appeals. She practices in the areas of commercial litigation and insurance defense litigation.
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Firm Profile
Experienced, quality legal service.
Wolfe, Snowden, Hurd, Luers & Ahl, LLP is a limited liability partnership engaged in the practice of law. Since its establishment in 1977, the firm has maintained a general practice with a focus on railroad litigation, insurance defense, corporate and business planning, workers compensation, estate planning, probate, wills and real estate, commercial litigation, and employment law. The firm represents clients throughout the State of Nebraska and is listed in the Bar Register of Preeminent Lawyers.
This newsletter is not intended as, and does not constitute, either legal advice or a solicitation of any particular prospective client. An attorney/client relationship with Wolfe, Snowden cannot be formed by reading or responding to this newsletter; as such a relationship may be formed only by specific and explicit agreement with an individual attorney of Wolfe, Snowden.
These articles are for informational purposes only, and do not constitute legal advice.
