S-21-0176 Michael R. Zook and Teresa L. Chramosta, Co-Personal Representatives of the Estate of Robert L. Zook, Deceased; Michael R. Zook; Teresa L. Chramosta; and Robin L. Kuhlman (Appellees) v. Jerry L. Zook (Appellee/Cross-Appellant) and John B. Marshall (Appellant)
District Court for Dawson County, Hon. James E. Doyle
Attorneys: Jonathan M. Brown (Walentine O’Toole, LLP) for Appellees --- Claude E. Berreckman, Jr. & Claire K. Bazata (Berreckman & Bazata, P.C., L.L.O.) for Appellee/Cross-Appellant --- John D. Icenogle (Bruner Frank Schumacher Husak, L.L.C.) for Appellant
Civil: Statute of Limitations for Professional Negligence; Insurance Agent
Proceedings Below: The district court found that an insurance agent does not qualify as a profession for purposes of the statute of limitations for professional negligence claims under § 25-222 (Reissue 2016). The court found Appellees’ negligence claim timely. Following a bench trial, on partially stipulated facts, the court found in favor of Appellees and entered a $200,000 judgment against Appellee/Cross-Appellant and Appellant, jointly and severally. The court found that Jerry Zook had been unjustly enriched by retaining $200,000 in insurance proceeds, and that insurance agent John Marshall had been negligent in handling Robert Zook’s insurance. The court imposed a constructive trust, ordered the insurance proceeds to be paid to Appellees, and ordered Jerry Zook to submit an accounting.
Issues: Whether the court erred in (i) applying the general tort statute of limitations under rather than the professional statute of limitations, and (ii) finding the claim was not barred by the statute of limitations.
Issues on Cross-Appeal: Whether the court erred in (i) finding clear and convincing evidence that Jerry Zook and Robert Zook agreed to certain terms regarding the beneficiary designations on the insurance policies in question, (ii) finding Jerry Zook had been unjustly enriched, iii) finding that Jerry was fully aware that the insurance proceeds were intended to be paid to someone else and further erred in finding that Jerry unreasonably failed to rectify the unjust enrichment, iv) failing to apply the doctrine of laches, (v) establishing a constructive trust, and (vi) finding John Marshall’s negligence and proximate cause of Appellee’s injury did not absolve Jerry Zook of liability.