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R.W. v. Schrein11/1/2002
ANALYSIS
Schriner Affidavit
We turn first to the issues presented by the motion for rehearing. As set forth above, we granted rehearing on the issue whether Schriner's affidavit, on which our opinion relied, was properly received into evidence by the district court. We conclude that we are unable to resolve this issue on the record presented. The record does not show that the district court either explicitly ruled on appellants' objections to the affidavit or received the affidavit into evidence. This ambiguity in the record precludes us from relying on the affidavit or resolving any issues to which the affidavit might be relevant on appeal.
[4,5] We note that the presentation of an adequate record for appellate review is primarily the responsibility of the parties. It is well established that a party who fails to insist upon a ruling to a proffered objection waives that objection. See, e.g., State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002); Jameson v. Liquid Controls Corp., 260 Neb. 489, 618 N.W.2d 637 (2000). We have also stated:
"'If when inadmissible evidence is offered the party against whom such evidence is offered consents to its introduction, or fails to object, or to insist upon a ruling on an objection to the introduction of the evidence, and otherwise fails to raise the question as to its admissibility, he is considered to have waived whatever objection he may have had thereto, and the evidence is in the record for consideration the same as other evidence.'" (Emphasis in original.) State v. Nowicki, 239 Neb. 130, 134, 474 N.W.2d 478, 483 (1991) (quoting In re Estate of Kaiser, 150 Neb. 295, 34 N.W.2d 366 (1948)). See, also, State v. Fellman, 236 Neb. 850, 464 N.W.2d 181 (1991).
That we have chosen, in this case, not to consider the disputed affidavit should not be taken to mean that we will not, in other cases, consider disputed evidence where an objection thereto has not been properly preserved by insistence upon a ruling on that objection. It is the responsibility of trial courts to rule on the objections presented to them. However, parties and counsel are cautioned that they must insist on such rulings in order to preserve those objections; they fail to do so at their own peril.
The fact that Schriner's affidavit is not available for our review, however, does not change our ultimate conclusion from R.W. I. There is no factual controversy regarding Schrein's underlying conduct, which for purposes of this proceeding is assumed to have been as alleged in appellants' petitions. Similarly, the interpretation of a contract is a question of law. See Hadley, supra. Thus, we are presented with an integrated question of law—whether the allegations in the petitions set forth a claim for damages based on "professional services" within the meaning of the insurance policy. See, Cluett v. Medical Protective Co., 829 S.W.2d 822 (Tex. App. 1992); Hirst v. St. Paul Fire & Marine Ins. Co., 106 Idaho 792, 683 P.2d 440 (Idaho App. 1984).
A medical professional such as Schriner can opine regarding a breach of the applicable standard of medical care, but cannot advise this court on a question of law, i.e., the meaning of a term in a contract. Our previous opinion erred in relying on Schriner's affidavit because the evidence was not relevant to the question presented to this court. After further consideration, we conclude that the dispositive question in this appeal is a question of law, on which expert testimony has no bearing. Therefore, we withdraw the section of R.W. I under the subheading "2. Rendering of 'Professional Services,'" id. at 716, 642 N.W.2d at 512, and ends prior to the subheading "3. Public Policy," id. at 7
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