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Steele v. Sedlacek11/21/2003
laim, property loss, or potential claim against any insured or other person, firm, trust, or corporation thereunder shall be construed as an admission of liability by the insured or other person, firm, trust, or corporation, or the payer's recognition of such liability, with respect to such injured or deceased person or with respect to any other claim arising from the same accident or event. Any such payments shall constitute a credit and be deductible from any final settlement made or judgment rendered with respect to such injured or deceased person. In the event of a trial involving such a claim, the fact that such payments have been made shall not be admissible in evidence or brought to the attention of the jury, and the matter of any credit to be deducted from a judgment shall be determined by the court in a separate hearing or upon the stipulation of the parties.
Charles' estate argues that the intention of § 25-1222.01 is to prohibit the use of payments by an insurance company to demonstrate an admission of liability. However, Charles' estate also suggests that Lisa's estate did not meet the procedural requirements then in effect. See Neb. Rev. Stat. §§ 25-811 and 25-812 (Reissue 1995). (Now found at Neb. Ct. R. of Pldg. in Civ. Actions 8 and 13 (rev. 2003).) Section 25-811 stated that any counterclaim or setoff shall be contained in the answer, and § 25-812 stated that the defendant may set forth in the answer as many grounds of counterclaim and setoff as he may have.
Section 25-1222.01 provides that payments by an insurance company "shall constitute a credit and be deductible from any" final judgment. The $3,000 amount was paid by Lisa's automobile insurance company to the funeral home for expenses related to Charles' funeral. Charles' estate sought damages for funeral expenses via its second cause of action, and the trial court was correct in granting a credit against that amount for the payment by the insurance company.
We find no merit to any of Charles' estate's assignments of error.
Cross-Appeal
On cross-appeal, Lisa's estate asserts that the trial court abused its discretion in sustaining Charles' estate's objections to evidence of his incarceration and alleged alcoholism, which are probative and relevant to the issues in the case. Lisa's estate argues that evidence of incarceration and alleged alcoholism is relevant to a consideration of the amount of support the children could have reasonably expected had Charles lived and to Charles' ability to earn wages.
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. Gourley v. Nebraska Methodist Health Sys., 265 Neb. 918, 663 N.W.2d 43 (2003).
Lisa's estate offered several documents in its attempt to suggest that Charles had little earning capacity. The trial court received the exhibits for purposes of the offer of proof and objection only. First, it offered an affidavit from Jayne Steele that was filed in the York County District Court in December 1993 as part of the dissolution proceedings between Jayne and Charles. In the affidavit, Jayne Steele alleged that Charles had a drinking problem, had threatened bodily harm to her, and had been in jail for 6 of the previous 9 years.
During the trial, portions of a deposition from Jayne Steele were read. In it, Jayne Steele admitted that her statements in the affidavit were not true. Charles had not mentally abused or threatened her bodily harm, had not abandoned her and their son, and had not refused to purchase diapers
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