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Dewark v. Hoffman9/14/2004
(not designated for permanent publication)
INTRODUCTION
Matthew Van Dewark appeals from a judgment entered by the district court for Douglas County which found in favor of Cynthia Hoffman and against Van Dewark on Van Dewark's claim for damages arising out of an automobile accident. Based on the jury's verdict, no damages were awarded and Van Dewark's petition was dismissed. We affirm.
BACKGROUND
On June 23, 2000, a vehicle operated by Hoffman collided with the rear of an automobile operated by Van Dewark near the intersection of 31st Street and Ed Creighton Boulevard in Omaha, Nebraska. As a result of the collision, Van Dewark's automobile collided with the vehicle directly in front of him that was operated by Ron Rannells. Van Dewark sued Hoffman for negligence and alleged that he sustained severe and disabling injuries as a result of the accident, including physical pain and suffering, disability and loss of enjoyment of life, medical expenses in the approximate amount of $6,120, and lost wages in the amount of $640.
Prior to trial, on October 8, 2002, Van Dewark filed a motion for a pretrial ruling on the admissibility of certain evidence in connection with damages sustained to Rannells' vehicle as well as the injuries Rannells suffered as a result of the accident. Because Rannells was deceased (unrelated to the accident) at the time of trial, the evidence Van Dewark sought to be admitted was testimony of the claims representative of Hoffman's insurance company, testimony of Hoffman, or a copy of the insurance company's settlement agreements with Rannells regarding his property damage and personal injury damage. Van Dewark also filed a notice of intent to offer a statement given by Rannells to the claims representative under Neb. Rev. Stat. ยง 27-804(2)(e) (Reissue 1995). Van Dewark's motion was overruled. Thereafter, Hoffman filed a motion in limine requesting the court to prohibit Van Dewark from adducing evidence in relation to Rannells, including his personal injuries or any amounts paid to Rannells in connection with his claim for personal injuries, arguing that such evidence is not relevant and would be unduly prejudicial. Hoffman's motion was sustained in part, and the jury was not allowed to hear evidence of Rannells' statement regarding the severity of the impact or regarding Rannells' injuries.
A jury trial was held on February 18 and 19, 2003. At the time of trial, the parties stipulated that the accident was caused by Hoffman's negligence. Therefore, the primary issues to be determined were whether Hoffman's negligence was the proximate cause of Van Dewark's injuries, if any, and the nature and extent of any such injuries. The evidence considered by the jury consisted of Van Dewark's testimony, Hoffman's testimony, Van Dewark's property damage estimate, photographs of all three vehicles involved in the incident, and the property damage estimate of Rannells' vehicle. The jury returned a verdict in favor of Hoffman and against Van Dewark. Van Dewark's petition was dismissed pursuant to the court's order entered February 20, 2003. Van Dewark timely appealed.
ASSIGNMENTS OF ERROR
Van Dewark alleges, restated, that the district court erred in excluding (1) Rannells' statement regarding the severity of the impact of the collision and (2) evidence of the injuries Rannells suffered in the accident.
STANDARD OF REVIEW
In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility. Kvamme v. State
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