A-20-0516, Hauptman, O’Brien, Wolf, Lathrop, P.C. (Cross-Appellant) v. Auto-Owners Ins. Co. (Appellant)
District Court for Douglas County, District Judge Peter C. Bataillon
Attorney for Appellant: Michael T. Gibbons & Raymond E. Walden (Woodke & Gibbons)
Attorney for Appellee/Cross-Appellant: Joshua J. Yambor (Hauptman O’Brien Law Firm)
Civil Action: Common fund doctrine; Neb. Rev. Stat. § 44-3,128.01
Action taken by the Trial Court: Auto-Owners Insurance Company (the insurer) insured an individual who was injured in an automobile accident caused by the negligence of a third party (the tort-feasor). The insurer made payment to the injured party under the medical payments provision of the policy. Hauptman, O’Brien, Wolf & Lathrop (the law firm) represented the injured individual in a claim against the tort-feasor, who settled with the injured party for an amount less than the limit of the tort-feasor’s insurance policy. The recovered amount included the insurer’s subrogation interest, and a check for that amount was sent to the law firm. The insurer declined to reduce its subrogation lien pursuant to the common fund doctrine in exchange for the law firm’s efforts and accept an amount less than what it had paid the injured party. The law firm filed suit in the county court, alleging that its work created a common fund, that the insurer benefited from its work, and that it was entitled to a fair and customary attorney fee. The county court granted summary judgment in favor of the law firm. On appeal to the district court, the insurer filed an untimely statement of errors, but the district court granted its motion for an extension of time. The district court affirmed the grant of summary judgment in favor of the law firm.
Assignments of Error on Appeal: Did the district court err in affirming the county court’s order granting summary judgment to the law firm? Did the district court err as a matter of law by applying the common fund doctrine to the law firm’s retention of a portion of the amount of medical payments reimbursement and failing to recognize the preemptive effect of § 44-3,128.01?
Assignment of Error on Cross-Appeal: Did the district court abuse its discretion when it granted the insurer’s motion for an extension of time to file its statement of errors?