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IN RE ESTATE OF McCONNELL

Cite as 28 Neb. App. 303

In re Estate of Timothy J. 

McConnell, deceased. 

Susan Wengert, appellee, v. Theresa A. Rajendran, 

Personal Representative of the Estate 

of Timothy J. McConnell, 

deceased, appellant.

___ N.W.2d ___

Filed May 5, 2020. No. A-19-330.

1. Decedents’ Estates: Judgments: Appeal and Error. In the absence of 

an equity question, an appellate court, reviewing probate matters, examines for error appearing on the record made in the county court. When 

reviewing a judgment for errors appearing on the record, the inquiry is 

whether the decision conforms to the law, is supported by competent 

evidence, and is neither arbitrary, capricious, nor unreasonable.

2. Decedents’ Estates: Appeal and Error. The probate court’s factual 

findings have the effect of a verdict and will not be set aside unless 

clearly erroneous.

3. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court has an obligation to resolve the questions independently 

of the conclusion reached by the trial court.

4. Abatement, Survival, and Revival: Wrongful Death. A wrongful death action and a survival action are two distinct causes of 

action which may be brought by a decedent’s personal representative. 

Although they are frequently joined in a single action, they are conceptually separate.

5. Wrongful Death: Damages. A wrongful death action is brought on 

behalf of the widow or widower and next of kin for damages they have 

sustained as a result of the decedent’s death. Such damages include the 

pecuniary value of the loss of the decedent’s support, society, comfort, 

and companionship.

6. ____: ____. A wrongful death plaintiff may only recover for a pecuniary 

loss, meaning a loss which has a money value.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/05/2020 08:08 AM CDT
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IN RE ESTATE OF McCONNELL

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7. Wrongful Death: Damages: Juries: Words and Phrases. The word 

“pecuniary” is not to be construed in a strict sense; its exact measure 

and the task of determining such must be left to the good judgment and 

ordinary common sense of the jurors, based upon the circumstances of 

each case.

8. Wrongful Death: Damages: Evidence: Juries. There is no requirement in a wrongful death case that there be evidence of the dollar value 

of companionship, counseling, or advice, as that is a matter left to the 

sound discretion of the jury.

9. Abatement, Survival, and Revival: Decedents’ Estates. An action 

under the survival statute, Neb. Rev. Stat. § 25-1401 (Reissue 2016), is 

the continuance of the decedent’s own right of action which he or she 

possessed prior to his or her death. The survival action is brought on 

behalf of the decedent’s estate and encompasses the decedent’s claim 

for predeath pain and suffering, medical expenses, funeral and burial 

expenses, and any loss of earnings sustained by the decedent, from the 

time of the injury up until his or her death.

10. ____: ____. A survival action is personal to the decedent for damages 

suffered by the decedent between the wrongful act and his or her death 

and recovery for such damage belongs to the decedent’s estate and is 

administered as an estate asset.

11. Wrongful Death: Damages. Damages for pain and suffering are 

intangible and quite subjective elements which are not a mere matter 

of computation.

12. Damages. The amount of damages is a matter solely for the fact finder.

13. Wrongful Death. The next of kin may recover in a wrongful death 

action only those losses sustained after the injured party’s death by reason of being deprived of what the next of kin would have received from 

the injured party from the date of his or her death, had he or she lived 

out a full life expectancy.

14. Antenuptial Agreements. Premarital agreements are contracts made in 

contemplation of marriage.

15. Contracts. In interpreting contracts, the court as a matter of law must 

first determine whether the contract is ambiguous.

16. Contracts: Words and Phrases. An instrument is ambiguous if a word, 

phrase, or provision in the instrument has, or is susceptible of, at least 

two reasonable but conflicting interpretations or meanings.

17. Contracts: Intent. If a contract is unambiguous, the intent of the parties 

must be determined from the contents of the contract.

18. Contracts. The interpretation of a contract and whether the contract is 

ambiguous are questions of law subject to independent review.
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Cite as 28 Neb. App. 303

19. Wrongful Death: Decedents’ Estates: Antenuptial Agreements: 

Waiver. Proceeds from a wrongful death action are not the property of a 

decedent’s estate and are therefore not contemplated as a property right 

waived in a premarital agreement unless the language of the premarital 

agreement specifically waives such right.

20. Wrongful Death: Damages. There is no exact fiscal formula for determination of damages recoverable for loss of society, comfort, and companionship, a loss which is not subject to some strict accounting method 

based on monetary contributions, past or prospective.

21. ____: ____. Damages for loss of companionship and society must be 

determined upon a consideration of the facts of each case.

22. Parent and Child. The relationship between parent and child has intrinsic value.

Appeal from the County Court for Douglas County: 

Stephanie R. Hansen, Judge. Reversed and remanded with 

directions.

Edward D. Hotz and Emily Dickson, Senior Certified Law 

Student, of Pansing, Hogan, Ernst & Bachman, L.L.P., and 

John S. Slowiaczek and Virginia A. Albers, of Slowiaczek 

Albers, P.C., L.L.O., for appellant.

David A. Domina, of Domina Law Group, P.C., L.L.O., for 

appellee.

Moore, Chief Judge, and Bishop and Arterburn, Judges.

Bishop, Judge.

I. INTRODUCTION

Theresa A. Rajendran, in her capacity as personal representative of the estate of Timothy J. McConnell (the estate), 

appeals from an order of the county court for Douglas County 

determining the allocation of settlement proceeds associated 

with McConnell’s death in 2014 from mesothelioma at age 73. 

The proceeds derived from a court-approved stipulated settlement in a separate action in Missouri relating to McConnell’s 

death. The county court determined there was a lack of competent evidence to support any apportionment under a survival 

claim and distributed the entirety of the proceeds pursuant to 
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Cite as 28 Neb. App. 303

a wrongful death claim. The county court allocated 90 percent of the proceeds to McConnell’s estranged wife, Susan 

Wengert, and the remaining 10 percent to Rajendran (in her 

capacity as McConnell’s daughter). We conclude that a portion of the proceeds should have been distributed to the estate 

pursuant to a survival claim for McConnell’s pain and suffering before his death. Further, we find error in the allocation of 

the proceeds under the wrongful death claim. Therefore, we 

reverse the judgment of the county court and remand the cause 

with directions.

II. BACKGROUND

1. Events During McConnell’s Life

Wengert met and started dating McConnell in 1995. 

Both McConnell and Wengert had been previously married; 

McConnell had two children, Rajendran and another daughter 

who died in 2004, and Wengert had a son. On February 24, 

1999, McConnell and Wengert executed a premarital agreement; they wed on February 27. At that time, McConnell 

was 58 years old and Wengert was 37 years old. They lived 

in Nebraska and had no children together. At the time of the 

evidentiary hearing, Rajendran, age 50, was married and had 

two children; she had lived in Colorado since 1995. Wengert 

worked in sales before and during the marriage; however, she 

resigned from her job in 2011, due to McConnell’s illness, 

as described below. McConnell had been the chief executive 

officer and principal owner of a plastic manufacturing company. Wengert said she sometimes joined McConnell at business events and tried to help him solve work-related issues. 

McConnell continued to work for the company after his interest in it was sold.

McConnell was diagnosed with mesothelioma (in one or 

both lungs) in late 2010. According to Wengert, in January 

2011, McConnell had surgery to “glue[] the lining of [his] lung 

to the lung” to prevent fluid buildup. McConnell was diagnosed with prostate cancer at the same time and treated for that 
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in 2011 and 2012. Rajendran’s husband, an anesthesiologist of 

20 years at the time of the evidentiary hearing, recalled that 

McConnell was “fairly asymptomatic” for the next 2 to 3 years 

after his mesothelioma diagnosis. Wengert said that McConnell 

relied on her to manage his medical appointments; in preparation for the evidentiary hearing, she made a list of the numerous medical appointments and procedures McConnell had from 

December 2010 to January 2014, and also noted commentary 

about McConnell’s condition in another list she made about 

family events.

Both Wengert and Rajendran’s husband indicated that 

McConnell’s condition worsened in 2013. He experienced 

more pain and discomfort and developed abdominal pain. 

McConnell underwent surgery in October 2013; his gallbladder 

and appendix were removed. Wengert noted that McConnell 

went to the emergency room the day after surgery was completed due to anxiety and shortness of breath. Shortly after 

that, “complications from the surgery” led to the admission 

of McConnell to a hospital for 7 days. Rajendran’s husband 

said that he and Rajendran went to visit McConnell during 

that time. He recalled that McConnell received a “nasogastric tube” to alleviate some discomfort, enable him to get up 

and walk, and allow his bowels to start functioning again. 

Rajendran’s husband said that a pathology report showed that 

McConnell’s appendix had signs of mesothelioma and that a 

surgeon deduced that either the mesothelioma in his abdomen 

was a new occurrence or the mesothelioma in his lungs had 

spread to his abdomen.

There were followup appointments. Chemotherapy was recommended. Rajendran’s husband recalled “[t]hey” decided 

to try chemotherapy “but he was progressing pretty quickly,” 

meaning he was becoming “more short of breath” and having “significantly more chest and abdominal pain” and was 

“fatigued.” After his hospitalization in October 2013, he was 

on “some narcotics for pain management,” an antianxiety 

medication, and a “blood thinner.” McConnell ended up 
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having a “pulmonary embolism,” which “added to the level of 

discomfort and difficulty breathing that he was experiencing, 

in addition to the physical chest pain that he was having”; he 

was placed on “additional blood thinners.” He felt “slightly 

better” after that but “very soon” required supplemental oxygen. Wengert noted the last medical appointment she attended 

with McConnell was on January 22, 2014, “although there 

were more scheduled.” Wengert said that in 2014, McConnell 

was “a little more tired” and “on more medication” than the 

year before; he was on “Hydrocodone” for pain relief, an antianxiety medication, and a blood thinner.

On March 17, 2014, McConnell filed for divorce in the 

Douglas County District Court. Among other things, he 

alleged that his marriage to Wengert was “irretrievably broken” with no remaining reasonable likelihood that it could be 

preserved; Wengert admitted the same in her answer, and in 

her “cross-complaint,” she asserted that “efforts of the parties at reconciliation have wholly failed: further attempts at 

reconciliation would be fruitless and the marriage should be 

dissolved.” On May 14, the district court entered a temporary 

order. At his request, McConnell was awarded exclusive possession of the marital home. Wengert was ordered to vacate 

the marital home by May 1; during the evidentiary hearing 

in the present action, Wengert said she moved out on that 

day. Upon Wengert’s request, McConnell had to pay $5,000 

per month in temporary alimony; those payments would be 

credited against the alimony owed under the premarital agreement, if the court found that agreement enforceable (Wengert 

disputed the enforceability of the agreement in the divorce 

action; in the present action, she concedes the agreement 

is valid).

Rajendran’s husband said that in 2014, McConnell was 

“struggling to just walk around the house.” He had “attempted 

some chemotherapy” about 3 or 4 weeks after his pulmonary embolism was being treated. He became “anemic” and 

had “several blood transfusions which added to the fact that 
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he was getting more fatigued and more short of breath.” 

McConnell saw a therapist at some point to deal with the 

“mental aspects” of his condition. Rajendran said that from 

October 2013 through September 2014, she saw a deterioration 

in McConnell’s mental and physical health. Rajendran’s husband stated that within the last 3 to 4 weeks of McConnell’s 

life, “it got pretty severe” and he was “no longer able to go 

up the stairs.” Rajendran’s husband said, “[H]e got so weak 

that he really needed assistance just getting out of [his] chair.” 

McConnell had “home nurses and hospice nurses” caring 

for him at his home near the end of his life. In his last 10 

days of life, McConnell was still on pain medications and 

was in a “very difficult pain management situation” due to 

having mesothelioma in his chest and abdomen. The “opioids” may have assisted chest pain but made abdominal pain 

worse, Rajendran’s husband explained, “so he kind of endured 

through a lot of the suffering that you see with mesothelioma 

with a minimal amount of narcotics.”

McConnell died from pulmonary mesothelioma on 

September 14, 2014. On September 24, the divorce action 

was dismissed.

2. Events Following McConnell’s Death

Rajendran was appointed personal representative of the 

estate on September 22, 2014, as set forth in the “Registrar’s 

Statement of Informal Probate” filed in the county court for 

Douglas County. In August 2016, she filed a lawsuit in that 

capacity against multiple defendants in a Missouri circuit 

court, alleging that McConnell’s death was the result of contact with asbestos-containing products. Rajendran brought the 

action under the “Missouri Wrongful Death Statute, Mo[.] 

Rev. Stat. § 537.080 et seq.” and alleged that McConnell’s 

mesothelioma was wrongfully caused and that, as a direct and 

proximate result of any or all of the defendants’ wrongful acts 

and omissions, McConnell suffered and sustained the following injuries and damages:
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(a) [McConnell] developed [m]esothelioma and suffered physical pain and mental distress;

(b) [McConnell] sought medical care and treatment for 

said injuries, and [Rajendran and/or McConnell] incurred 

expenses related to medical care and treatment . . . and 

funeral expenses;

(c) [McConnell] lost earnings and wages and 

[Rajendran] sustained the loss of [McConnell’s] financial 

contribution and support;

(d) [McConnell] lost enjoyment of life;

(e) [Rajendran] incurred damages by reason of the 

death of [McConnell];

(f) [Rajendran] lost the services, consortium, companionship, comfort, instruction, guidance, counsel, training 

and support of [McConnell].

Damages and/or punitive damages were sought from each 

defendant.

On September 28, 2017, the Missouri circuit court entered a 

stipulated order approving a settlement and attorney fees and 

expenses owed to Rajendran’s counsel. Counsel for Rajendran 

and counsel for Wengert, as an interested party, signed the 

order. The Missouri court made no finding on the distribution 

of funds between Rajendran and Wengert (both of whom the 

court concluded could receive funds under a wrongful death 

claim). The Missouri court ordered that all remaining settlement proceeds, about $2.3 million net after attorney fees and 

expenses, were to be paid to Rajendran as personal representative of the estate in the county court for Douglas County 

to be held “pending allocation of those proceeds pursuant to 

Nebraska law in the pending probate proceedings . . . involving 

the [e]state.”

In February 2018, Wengert filed a “Motion to Require 

Accounting for Recovery in Wrongful Death Proceedings and 

for Determination of Distribution to Next of Kin” in the county 

court estate case. She requested the county court to approve 

the settlement from the Missouri action, hold an evidentiary 
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Cite as 28 Neb. App. 303

hearing, and distribute the “wrongful death recovery” net settlement proceeds, plus interest, “substantially” all to her and to 

Rajendran if appropriate. In March, as personal representative 

of the estate, Rajendran filed a motion for, among other things, 

(1) allocation of the settlement proceeds from the Missouri 

action first under the survival action to compensate McConnell 

for his “conscious pain and suffering” from having mesothelioma and (2) allocation of the remaining proceeds under the 

wrongful death claim to Rajendran and Wengert, asserting, in 

part, the amount of Wengert’s pecuniary loss depended on the 

validity of the premarital agreement.

An evidentiary hearing took place on July 13, 2018; all 

exhibits offered were received. Wengert and five of her family 

members testified, and Rajendran and her husband testified.

3. County Court’s Order

The county court issued its order on February 5, 2019. 

To apportion the settlement proceeds, the court questioned 

whether the proceeds flowed from both a survival and wrongful death claim or solely the latter. The county court found 

it was unclear whether a survival claim was contemplated 

in the Missouri action but concluded it could not apportion 

funds under a survival claim due to lack of “competent” 

evidence. The county court awarded Wengert “90 [percent] 

of the wrongful death proceeds” and Rajendran “10 [percent] of the wrongful death proceeds.” No proceeds were 

allocated to a survival claim. On February 12, Rajendran, as 

personal representative, filed a motion to alter and amend 

the February 5 order, to reexamine the evidence, or to have 

a new “trial” because the order did not allocate any proceeds 

to the survival claim despite “sufficient and overwhelming 

evidence” to allow for allocation under such a claim. She further challenged the allocation of 90 percent of the wrongful 

death proceeds to Wengert when it was not supported by the 

evidence “given the pending divorce proceeding and the . . . 

[p]remarital [a]greement, and [Wengert’s] testimony that she 
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felt that if . . . McConnell had lived the divorce would have 

become final.” On March 27, following a hearing, that motion 

was denied.

In her capacity as personal representative of the estate, 

Rajendran filed a notice of appeal on April 3, 2019, from 

the county court’s March 27 order, and an amended notice 

of appeal on April 5, from the county court’s February 5 and 

March 27 orders.

III. ASSIGNMENTS OF ERROR

Rajendran claims the county court erred in (1) failing to 

allocate any of the settlement proceeds to the estate under 

the survivor claim to compensate for McConnell’s predeath 

pain and suffering, (2) allocating 90 percent of the settlement 

proceeds to Wengert when the prenuptial agreement between 

her and McConnell governed the extent of her pecuniary 

loss as a result of McConnell’s death, and (3) determining 

Rajendran was only entitled to 10 percent of the settlement 

proceeds for the loss of McConnell’s companionship, counseling, and advice.

IV. STANDARD OF REVIEW

[1] In the absence of an equity question, an appellate court, 

reviewing probate matters, examines for error appearing on the 

record made in the county court. In re Estate of Radford, 304 

Neb. 205, 933 N.W.2d 595 (2019). When reviewing a judgment for errors appearing on the record, the inquiry is whether 

the decision conforms to the law, is supported by competent 

evidence, and is neither arbitrary, capricious, nor unreasonable. Id.

[2,3] The probate court’s factual findings have the effect of 

a verdict and will not be set aside unless clearly erroneous. Id. 

When reviewing questions of law, an appellate court has an 

obligation to resolve the questions independently of the conclusion reached by the trial court. In re Estate of Panec, 291 Neb. 

46, 864 N.W.2d 219 (2015).
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V. ANALYSIS

1. General Legal Principles

[4] A wrongful death action and a survival action are two 

distinct causes of action which may be brought by a decedent’s 

personal representative. Id. Although they are frequently joined 

in a single action, they are conceptually separate. Id.

[5-8] A wrongful death action is brought on behalf of the 

widow or widower and next of kin for damages they have sustained as a result of the decedent’s death. Id. See, also, Neb. 

Rev. Stat. §§ 30-809 and 30-810 (Reissue 2016) (wrongful 

death statutes). Such damages include the pecuniary value of 

the loss of the decedent’s support, society, comfort, and companionship. In re Estate of Panec, supra. A wrongful death 

plaintiff may only recover for a pecuniary loss, meaning a loss 

which has a money value. Maloney v. Kaminski, 220 Neb. 55, 

368 N.W.2d 447 (1985). However, the word “pecuniary” is not 

to be construed in a strict sense; it is difficult to determine its 

exact measure and the task of determining such must be left to 

the good judgment and ordinary common sense of the jurors. 

See id. It must be determined upon a consideration of the circumstances of each case. Id. There is no requirement that there 

be evidence of the dollar value of companionship, counseling, 

or advice, as that is a matter left to the sound discretion of the 

jury. See id.

[9,10] In contrast, an action under our survival statute is the 

continuance of the decedent’s own right of action which he or 

she possessed prior to his or her death. In re Estate of Panec, 

supra. See, also, Neb. Rev. Stat. § 25-1401 (Reissue 2016) 

(survival statute). The survival action is brought on behalf of 

the decedent’s estate and encompasses the decedent’s claim 

for predeath pain and suffering, medical expenses, funeral 

and burial expenses, and any loss of earnings sustained by the 

decedent, from the time of the injury up until his or her death. 

In re Estate of Panec, supra. A survival action is personal to 

the decedent for damages suffered by the decedent between 

the wrongful act and his or her death and recovery for such 
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damage belongs to the decedent’s estate and is administered as 

an estate asset. See id.

The same individuals may stand to recover in both a wrongful death and survival action, as the decedent’s next of kin may 

also be beneficiaries of a survival claim under the decedent’s 

will or the laws of intestate succession. Id.

2. Survival Claim

Rajendran argues that McConnell’s suffering far outweighs 

any pecuniary loss suffered by either Rajendran or Wengert 

and that McConnell’s suffering deserves to be compensated 

under the survival claim. Rajendran contends the settlement 

proceeds should be divided according to the damage suffered, 

with “most” going to the survival claim. Brief for appellant at 

19. Rajendran claims the county court erred when it did not 

allocate any settlement proceeds to the estate based on the survival claim. We agree.

(a) Survival Claim Sufficiently Raised

We first address the dispute between Rajendran and 

Wengert as to whether a survival claim was asserted in the 

Missouri action and provided for under the stipulated order. 

Notably, the county court pointed out that it was “unclear” 

whether a survival action was contemplated in the petition filed in Missouri, because the “petition was filed by 

Rajendran as a daughter, not as the [personal representative] of the estate. There is no mention in the petition of the 

estate or Rajendran’s position as the [personal representative] that allows her to step in and recover for the estate of 

McConnell.” Having made that observation, the county court 

then stated, “However, the settlement order does make reference to Rajendran in both her beneficiary capacity and her 

fiduciary capacity as [personal representative], though it only 

refers to the proceeds of the settlement as wrongful death.” 

The county court further noted that the settlement drew no 

distinction between wrongful death and pain and suffering. 

The county court then concluded: “No evidence was presented 
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to the court regarding McConnell’s medical expenses, funeral 

and burial expenses, or loss of earnings. Based on the lack 

of competent evidence provided regarding the survival claim, 

the court cannot make a sound and reasonable apportionment of the funds recovered.” Based on that conclusion, it is 

evident the county court proceeded to consider the survival 

claim as sufficiently raised, but determined the evidence to 

support apportionment on such a claim was lacking. We note 

that Wengert does not cross-appeal the county court’s implicit 

conclusion that a survival claim was raised, but nevertheless 

argues that the Missouri action was only for wrongful death 

and failed to allege that it presented a survival action for 

McConnell’s pain and suffering or any other claim accruing 

during his life.

We find no error in the county court’s determination that 

a survival claim was sufficiently raised, as there was competent evidence to support it. As pointed out by Rajendran, 

her complaint in the Missouri action “alleged facts sufficient 

to give rise to a claim for [McConnell’s] pain and suffering.” Reply brief for appellant at 4. Although the complaint 

stated the action was being brought under Missouri’s wrongful death statute, Missouri law became irrelevant when the 

stipulated order provided for allocation of the net settlement 

proceeds “pursuant to Nebraska law.” Further, it is clear 

that the complaint in the Missouri action set forth wrongful 

death and survival claims. The complaint alleged, among other 

things, that “[a]s a direct and proximate result of the wrongful acts and omissions of Defendants, jointly and severally,” 

McConnell suffered and sustained injuries and damages when 

he “developed [m]esothelioma and suffered physical pain and 

mental distress,” sought treatment and care for said injuries, 

incurred medical and funeral expenses, and lost earnings, and 

that he further “lost enjoyment of life.” Separate claims for 

damages for Rajendran personally included her loss of “services, consortium, companionship, comfort, instruction, guidance, counsel, training and support of [McConnell].” Multiple 
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defendants contributed to the total settlement award, and the 

checks for each defendant’s share were written to Rajendran 

as the personal representative of McConnell’s estate, not to 

Rajendran personally.

Thus, the record supports that a survival claim was raised 

in the Missouri action. See In re Estate of Panec, 291 Neb. 

46, 864 N.W.2d 219 (2015), (complaint regarding decedent’s 

fatal injuries which alleged decedent experienced pain and 

suffering and incurred medical expenses prior to decedent’s 

death and which requested compensation under Nebraska 

law is sufficient evidence to show survival claim had been 

raised). Notably, pain and suffering and medical expenses 

are relevant only to a survival claim and are not recoverable 

in a wrongful death action. See id. The county court did not 

err in determining that a survival claim was raised within the 

Missouri action.

(b) Survival Claim Portion of 

Settlement Proceeds

The remaining question is whether the county court erred 

by not allocating any of the settlement proceeds to the survival claim. As set forth above, the county court determined 

that there was no evidence regarding McConnell’s medical 

expenses, funeral and burial expenses, or loss of earnings and 

that therefore, “[b]ased on the lack of competent evidence 

provided regarding the survival claim,” it could not make a 

“sound and reasonable apportionment of the funds recovered.” 

During the hearing on Rajendran’s motion for new trial or 

to alter or amend, Rajendran’s counsel said that Rajendran 

did not offer any evidence of “funeral expenses, and medical 

expenses, those kinds of things” because “they were, quite 

frankly, minimal.” But Rajendran’s counsel wanted an assessment of damages for “physical and emotional pain and suffering” (on appeal, Rajendran similarly only requests allocation 

to the estate for McConnell’s pain and suffering). The county 

court said there was “definitely evidence presented that . . . 
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McConnell had — you know, he had a painful death, a painful, 

long death,” but the court found it “very difficult” to figure out 

“what evidence” helped to quantify that.

[11,12] We find that the record contains sufficient evidence to support that McConnell suffered considerably for an 

extended period of time preceding his death and that therefore, 

the estate is entitled to a portion of the settlement proceeds 

under the survival claim for McConnell’s pain and suffering. 

Although damages for pain and suffering may be difficult to 

compute, that cannot preclude entry of damages where they 

are appropriate as discernible by sufficient evidence. See, 

Holmes v. Crossroads Joint Venture, 262 Neb. 98, 629 N.W.2d 

511 (2001) (damages for pain and suffering are intangible 

and quite subjective elements which are not mere matter of 

computation); Nelson v. Dolan, 230 Neb. 848, 434 N.W.2d 25 

(1989) (jury could have awarded damages to decedent’s estate 

for decedent’s prefatal-injury mental anguish on finding that 

decedent apprehended and feared his impending death during 5 

seconds that his motorcycle traveled 268 feet and locked with 

defendant’s automobile before decedent was crushed and killed 

after motorcycle struck light pole and went under defendant’s 

automobile). The amount of damages is a matter solely for the 

fact finder. See Brandon v. County of Richardson, 261 Neb. 

636, 624 N.W.2d 604 (2001).

We conclude that the county court’s failure to allocate a 

portion of the net settlement proceeds to the estate under the 

survival claim did not conform to the law and the evidence in 

the record. Therefore, we reverse the judgment of the county 

court and remand the cause with directions to allocate to the 

estate an appropriate amount of the settlement proceeds for the 

survival claim. As already acknowledged by the county court, 

there was “definitely evidence presented” that McConnell had 

“a painful, long death.” Such evidence of McConnell’s pain 

and suffering, and the numerous treatments and surgeries 

to which he was subjected, should be significant considerations when determining a correlating percentage of the 
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settlement proceeds to account for McConnell’s predeath suffering when weighed against any pecuniary losses to Wengert 

and Rajendran, which we discuss next.

3. Wrongful Death Claim

After concluding that the pecuniary loss as a result of 

McConnell’s death was significantly greater to Wengert than 

the pecuniary loss to Rajendran, the county court allocated 

90 percent of the wrongful death proceeds to Wengert and 

the remaining 10 percent to Rajendran. Rajendran challenges 

those allocations.

[13] As stated previously, a wrongful death action is brought 

on behalf of the widow or widower and next of kin for damages they have sustained as a result of the decedent’s death. 

In re Estate of Panec, 291 Neb. 46, 864 N.W.2d 219 (2015). 

Damages in a wrongful death action are to be “paid to and 

distributed among the widow or widower and next of kin in 

the proportion that the pecuniary loss suffered by each bears 

to the total pecuniary loss suffered by all such persons.” 

§ 30-810. Such damages include the pecuniary value of the 

loss of the decedent’s support, society, comfort, and companionship. In re Estate of Panec, supra. The next of kin may 

recover in a wrongful death action only those losses sustained

after the injured party’s death by reason of being deprived 

of what the next of kin would have received from the injured 

party from the date of his or her death, had he or she lived out 

a full life expectancy. Corona de Camargo v. Schon, 278 Neb. 

1045, 776 N.W.2d 1 (2009).

(a) Allocation to Wengert as 

Widow of McConnell

In concluding that Wengert suffered a significantly greater 

pecuniary loss than Rajendran, the county court made findings about Wengert’s employment history and how she 

benefited “greatly” from McConnell’s work, noting a 2012 

joint tax return that shows a “combined income in excess 

of $1 million.” The county court found that the “lifestyle, 
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marital home, vacations, gifts, and expenses” were funded 

by McConnell’s “substantial” income. It noted Wengert’s 

testimony that she was McConnell’s primary caregiver when 

he fell ill and that she went with him to his medical appointments. The county court also found Wengert was “caught off 

guard” when McConnell filed for divorce, lived in the marital 

home for “another few months” after that, and did not want 

a divorce.

The county court focused primarily on the loss of the financial lifestyle Wengert had enjoyed with McConnell during 

the marriage, and the court recognized that Wengert did not 

want the divorce to finalize. However, Wengert’s pecuniary 

loss could only be evaluated based upon what she would have 

received from McConnell from the time of his death forward 

(had McConnell lived), and the evidence in this case indicates 

that McConnell and Wengert had no meaningful relationship at 

the time of McConnell’s death. As we discuss further below, 

a divorce was pending, and a premarital agreement set forth 

McConnell’s financial support obligations to Wengert in the 

event of divorce.

In March 2014, McConnell filed for divorce. Wengert’s 

testimony and a temporary court order in the divorce action 

reflect that Wengert was ordered to and did vacate the marital 

home on May 1. She said that from that time until McConnell’s 

death, she and McConnell continued to reside separately. Aside 

from in connection with the divorce action, she only saw him 

one time at his office to return a television remote control. 

In May, they had one telephone call during which Wengert 

said they were angry at one another, and at the end of July, 

Wengert had a telephone call with McConnell that prompted 

him to retitle a car to her. Although she did not prefer to get 

divorced and recalled more positive times during the marriage, 

Wengert admitted that it “seemed” that the divorce case had 

been headed in the direction of ending in a divorce. She even 

agreed that if McConnell had lived, it was more likely than not 

that the divorce would have been completed. Notably, Wengert 
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admitted in pleadings in the divorce action that the marriage 

was irretrievably broken.

Wengert can only recover in a wrongful death action 

for losses sustained after McConnell’s death due to being 

deprived of what she would have received from McConnell 

from the date of his death, had McConnell lived out a full life 

expectancy. See Corona de Camargo v. Schon, supra. See, 

also, Nelson v. Dolan, 230 Neb. 848, 434 N.W.2d 25 (1989) 

(recovery for loss of services and companionship by surviving 

spouse can only be sustained where evidence shows reasonable 

probability that such services and companionship afforded survivor were of such character it would be of advantage to such 

survivor and that disallowance thereof would cause pecuniary 

loss to him or her); Kenaston v. Teeters, 190 Neb. 216, 207 

N.W.2d 388 (1973) (general evidence of marital unfaithfulness 

of decedent that concerned state of marriage prior to date of 

decedent’s death, was inadmissible in wrongful death action 

because previous misconduct was not relevant; wife and decedent husband were living together at time of his death and 

decedent was supporting his family).

The evidence upon which the county court relied to determine what portion of the wrongful death proceeds should be 

allocated to Wengert was focused more on Wengert’s lifestyle 

during the marriage as opposed to the evidence related to 

the pending divorce and lack of a relationship at the time of 

McConnell’s death. The record shows that Wengert had no 

meaningful relationship of any kind with McConnell at the 

time of his death. Any allocation to Wengert to compensate her 

for loss of McConnell’s society, love, affection, care, attention, 

companionship, comfort, or protection was unreasonable and 

not in conformance with the law because Wengert no longer 

had a meaningful relationship with McConnell at the time of 

his death. See Corona de Camargo v. Schon, 278 Neb. 1045, 

776 N.W.2d 1 (2009). Therefore, we agree with Rajendran that 

the “only loss” to Wengert was the loss of McConnell’s financial support. Reply brief for appellant at 9.
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Regarding Wengert’s loss of financial support from 

McConnell, Rajendran claims such support was “contractually bargained” for in the premarital agreement. Id. Rajendran 

contends that Wengert’s recovery is limited to what she would 

have received under the premarital agreement if the divorce 

had been finalized. But Wengert asserts that the premarital 

agreement, though valid, “has nothing to do with wrongful 

death proceeds.” Brief for appellee at 8. During the hearing 

on Rajendran’s motion to alter or amend, the county court 

said it did not consider the premarital agreement as part of 

its decision.

In Nebraska, no case law specifically addresses whether, or 

to what extent, a premarital agreement affects the entitlement 

of a decedent’s widow or widower to wrongful death proceeds 

arising from the decedent’s death. We therefore initially consider legal principles relevant to premarital agreements, and 

we then consider how courts of other states have addressed 

this issue.

[14] Premarital agreements are contracts made in contemplation of marriage. See Mamot v. Mamot, 283 Neb. 659, 813 

N.W.2d 440 (2012). Parties to a premarital agreement may 

contract with respect to several matters, including any matter “not in violation of public policy or a statute imposing a 

criminal penalty.” Neb. Rev. Stat. § 42-1004 (Reissue 2016). 

The parties do not dispute the validity of the premarital agreement here. See Neb. Rev. Stat. § 42-1006 (Reissue 2016) 

(enforceability of premarital agreements). Because premarital 

agreements are contracts, basic contract principles are applicable to our understanding of the premarital agreement in the 

present case. See Edwards v. Edwards, 16 Neb. App. 297, 744 

N.W.2d 243 (2008) (rejecting party’s interpretation of premarital agreement; case law provides that contract provisions 

may be severable and plain language of premarital agreement 

refuted party’s interpretation).

[15-18] In interpreting contracts, the court as a matter of 

law must first determine whether the contract is ambiguous. 
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Wintroub v. Nationstar Mortgage, 303 Neb. 15, 927 N.W.2d 

19 (2019). An instrument is ambiguous if a word, phrase, or 

provision in the instrument has, or is susceptible of, at least 

two reasonable but conflicting interpretations or meanings. Id.

If a contract is unambiguous, the intent of the parties must be 

determined from the contents of the contract. Id. The interpretation of a contract and whether the contract is ambiguous are 

questions of law subject to independent review. Id.

When considering cases from other states, we came across 

an instance where the plain language of relevant statutes was 

controlling. In Steele v. Steele, 623 So. 2d 1140, 1142 (Ala. 

1993), the Alabama Supreme Court held that an “antenuptial 

property agreement” had no effect on any proceeds that could 

be awarded in a separate wrongful death action. The Alabama 

court found that the plain language of its “Wrongful Death 

Act and the applicable statute of distribution” mandated that 

the surviving spouse in that case receive one-half of the proceeds of a wrongful death action if any were awarded. Steele v. 

Steele, 623 So. 2d at 1142. There was no room for judicial statutory construction of those statutes because the wording within 

the statutes was distinct and unequivocal. Also, the Alabama 

court noted that in signing the antenuptial property agreement, 

each party (widow and decedent husband) agreed to dispose of 

his or her own property but that it was “clear from the agreement that neither party contemplated a wrongful death action 

when they signed the agreement, as wrongful death proceeds 

are neither part of the decedent’s estate nor a property right.” 

Id. The opinion did not quote any language from the antenuptial property agreement.

Other courts have found that a premarital agreement had no 

bearing on a spouse’s right to wrongful death proceeds when 

the language of the particular agreement was too narrow to 

encompass a waiver of that right. In re Estate of Burns, 31 

So. 3d 1227 (Miss. App. 2009), involved a trial court’s finding that a spouse had not waived his claim to wrongful death 

settlement proceeds relative to his wife’s death despite their 
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undisputedly valid antenuptial agreement. The antenuptial 

agreement had the following provision:

“Each of the parties hereto agree that on the death of the 

other, the surviving party will not have and will not in 

any way assert any claim, interest, estate or title of any 

kind or nature whatsoever in or to any property, real, personal, or mixed, of which the other party may die seized 

and possessed . . . .”

Id. at 1230. The Mississippi Court of Appeals noted that its 

wrongful death statute must be strictly construed and that a 

wrongful death action is not part of the estate of the deceased 

so that a wrongful death action itself does not enter the estate. 

The Mississippi court concluded that the antenuptial agreement had no bearing on the wrongful death claim or on the 

distribution of proceeds received from settling that claim. 

In so holding, the appellate court necessarily found that the 

plain language of the antenuptial agreement quoted above 

had no bearing on the distribution of wrongful death proceeds 

because those proceeds were not “‘seized and possessed’” 

by the decedent wife during her life and, thus, did not pass 

through her estate upon her death. In re Estate of Burns, 31 

So. 3d at 1230.

A similar result was reached in In re Estate of SorensonPeters, No. 11-1547, 2012 WL 5355712 (Iowa App. Oct. 

31, 2012) (unpublished opinion listed in table of “Decisions 

Without Published Opinions” at 824 N.W.2d 561 (2012)), 

in which a decedent and her husband widower had signed a 

prenuptial agreement, “disclaiming any interest or right in 

the decedent’s family’s business.” Id. at *3. In apportioning 

wrongful death proceeds, the trial court found that the objective facts clearly established that the decedent did not choose 

to limit any economic rights of the husband widower except 

the rights to the family business as outlined in the prenuptial 

agreement. A sum of the wrongful death proceeds was awarded 

to the husband widower. The Iowa court affirmed the apportionment, which it found to be equitable. See, also, Kubian v. 
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Alexian Bros. Medical Center, 272 Ill. App. 3d 246, 253, 651 

N.E.2d 231, 236, 209 Ill. Dec. 303, 308 (1995) (antenuptial 

agreement statement that widow would not make claim as 

to “‘any part of her spouse’s estate’” did not waive widow’s 

right to pursue common-law loss of consortium claim; loss of 

consortium was not listed among rights waived in the antenuptial agreement, and such claim belonged to surviving spouse, 

not decedent).

Broad language in a postnuptial agreement produced a different result in Rickman v. Rickman, No. M2013-00251-COAR3-CV, 2013 WL 5656214 (Tenn. App. Oct. 15, 2013). In 

that case, a widow appealed a trial court’s ruling that she 

could not benefit from a wrongful death settlement related to 

her deceased husband’s death given a postnuptial agreement 

executed during their marriage. The Tennessee court concluded 

that it was bound by the plain language of the postnuptial 

agreement, which waived the widow’s right to share in the 

wrongful death proceeds. To reach that conclusion, the appellate court first noted that antenuptial and postnuptial agreements are both interpreted and enforced as any other contract. 

There was no dispute that the postnuptial agreement at issue 

was valid, and therefore, it could be interpreted according to 

general contract principles and the notion that such agreements 

are to be construed liberally to give effect to the intention of 

the parties. The court recognized that in Tennessee, the proceeds from a wrongful death action are not property of the 

decedent’s estate but instead pass outside the estate through the 

operation of the state’s intestacy statutes.

On appeal, the widow in Rickman v. Rickman, supra, relied 

on Steele v. Steele, 623 So. 2d 1140 (Ala. 1993), and In re 

Estate of Burns, 31 So. 3d 1227 (Miss. App. 2009), the cases 

discussed above, as supportive of her position. However, the 

Tennessee court found those cases to be distinguishable. As relevant here, the court noted that it was unable to unequivocally 

conclude that wrongful death proceeds were not contemplated 

when the widow and decedent entered into the postnuptial 
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agreement, unlike in Steele v. Steele, supra. That court understood the antenuptial property agreement in Steele v. Steele, 

supra, to have contemplated only the decedent’s estate or 

property rights. Plus, the court noted that the agreement in In 

re Estate of Burns, 31 So. 3d at 1230, applied only to property 

“‘of which the other party may die seized and possessed.’” But 

the contract in Rickman v. Rickman, supra, was far broader. In 

addition to mutual waivers of rights to the property of the other 

spouse, there was a mutual waiver of “‘all other rights which 

they may have acquired by reason of their marriage.’” Id. at 

*1. The court found there could be no dispute that the widow’s 

right to receive the wrongful death proceeds, if any, was a right 

acquired by reason of her marriage to the decedent. Therefore, 

the agreement was broad enough to encompass proceeds flowing from a wrongful death action.

[19] Nebraska’s wrongful death statutes provide a widow 

or widower and next of kin a right of action for damages 

sustained as a result of a decedent’s death. See In re Estate of 

Panec, 291 Neb. 46, 864 N.W.2d 219 (2015). Such damages 

are for only those losses sustained after the injured party’s 

death by reason of being deprived of what the widow or widower and next of kin would have received from the injured 

party from the date of his or her death, had he or she lived 

out a full life expectancy. See Corona de Camargo v. Schon, 

278 Neb. 1045, 776 N.W.2d 1 (2009). Accordingly, we agree 

with the reasoning of other states that proceeds from a wrongful death action are not the property of a decedent’s estate and 

are therefore not contemplated as a property right waived in 

a premarital agreement unless the language of the premarital 

agreement specifically waives such right. We now turn to the 

language of the premarital agreement at issue here.

The contractual terms in the present case are not as broadly 

stated as those contained in Rickman v. Rickman, No. M2013-

00251-COA-R3-CV, 2013 WL 5656214 (Tenn. App. Oct. 15, 

2013). McConnell and Wengert’s premarital agreement stated, 

in relevant part:
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1. For all purposes of this Agreement, the property 

made subject to this Agreement shall consist of all right, 

title or interest, present or future, legal or equitable, vested 

or contingent, in real or personal property that either party 

has or might hereafter inherit or receive through estates 

or trusts created by relatives or as gifts from relatives, 

together with the property described in Exhibits “A” and 

“B” which are attached hereto and incorporated herein 

by reference, including any income, earnings, proceeds, 

benefits, distributions or other value flowing from or 

received due to the ownership of such property interests, 

such as may be received in, but not limited to, the following forms: wages, compensation, salary, rents, dividends, 

distributions, interest, liquidation distributions, sale proceeds, exchanges of property or money, any other payments, changes in form or appreciation in value of such 

property interests. As used hereinafter in this Agreement, 

all such property made subject to this Agreement shall be 

referred to as “Separate Property.” . . .

. . . .

5. It is agreed that [Wengert] shall not acquire or 

become vested with any interest or right whatsoever in 

and to the Separate Property of [McConnell], during his 

lifetime or upon his death, in the same manner as if said 

contemplated marriage had not occurred. . . .

. . . .

9. [Wengert] agrees that upon the death of [McConnell], 

if she shall survive him, she shall receive nothing from 

the Separate Property of [McConnell]. [Wengert] does 

hereby waive, relinquish and disavow all rights, claims 

and interest in law or in equity and all statutory rights and 

allowances which she might have or could have in the 

Separate Property of [McConnell] which is included in 

the estate of [McConnell] or any part thereof, now owned 

or after acquired . . . .

10. In the event of a separation, divorce, marital 

dissolution or annulment, [McConnell] shall make no 
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provisions for [Wengert] with respect to the Separate 

Property of [McConnell], and [Wengert] does waive any 

rights as spouse that she may have in the Separate 

Property of [McConnell] as herein defined. However, 

[Wengert] does not waive any rights as spouse that she 

may have in property other than the Separate Property of

[McConnell] . . . .

(Emphasis supplied.) As set forth above in the premarital 

agreement at paragraph 1, the definition of “Separate Property” 

does not purport to include wrongful death proceeds. And in 

paragraph 10, it states that Wengert “does not waive any rights 

as spouse that she may have in property other than the Separate 

Property of [McConnell].”

The language of the premarital agreement is unambiguous. 

Although Wengert waived rights that she may have had by 

virtue of her status as McConnell’s spouse “as if said contemplated marriage had not occurred,” the waiver was only and 

specifically in regard to those assets defined as McConnell’s 

“Separate Property.” The waivers to which Wengert agreed are 

unlike the broad waiver in Rickman v. Rickman, No. M2013-

00251-COA-R3-CV, 2013 WL 5656214 at *1 (Tenn. App. 

Oct. 15, 2013), of “all other rights which [the parties to the 

agreement] may have acquired by reason of their marriage.” 

(Emphasis supplied.) Rather, the language of the waivers 

here are akin to the narrow language of premarital agreements in the other appellate cases that did not specifically 

preclude recovery of wrongful death proceeds by a spouse of 

a decedent. See In re Estate of Sorenson-Peters, No. 11-1547, 

2012 WL 5355712 at *3 (Iowa App. Oct. 31, 2012) (unpublished opinion listed in table of “Decisions Without Published 

Opinions” at 824 N.W.2d 561 (2012)) (no economic rights 

of widower limited under prenuptial agreement except “any 

interest or right in the decedent’s family’s business”), and In 

re Estate of Burns, 31 So. 3d 1227, 1230 (Miss. App. 2009) 

(antenuptial agreement applied to property “of which the other 

party may die seized and possessed”).
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We conclude the premarital agreement does not itself bar 

Wengert from recovery of some portion of the wrongful death 

settlement proceeds. However, given the circumstances of this 

case, the premarital agreement nevertheless has relevance to 

determining Wengert’s pecuniary loss. As previously stated, 

wrongful death damages include the pecuniary value of the 

loss of the decedent’s support, society, comfort, and companionship. See In re Estate of Panec, 291 Neb. 46, 864 N.W.2d 

219 (2015). And as previously determined, any allocation to 

Wengert to compensate her for the loss of McConnell’s society, love, affection, care, attention, companionship, comfort, or 

protection was unreasonable and not in conformance with the 

law, because she no longer had a meaningful relationship with 

McConnell at the time of his death.

Therefore, Wengert’s pecuniary damages are limited to the 

loss of McConnell’s financial support based on what she would 

have received from McConnell from the date of his death, had 

he lived out a full life expectancy. See Corona de Camargo 

v. Schon, 278 Neb. 1045, 776 N.W.2d 1 (2009). The record 

does not show that McConnell and Wengert had plans at the 

time of his death to return to the shared financial lifestyle they 

had in place prior to when Wengert moved out of the marital 

home. Wengert pled in the divorce action that her marriage 

to McConnell was irretrievably broken, and she admitted in 

the present matter that the divorce action would most likely 

have ended in a divorce. The premarital agreement reflects 

what amount of financial support Wengert could have reasonably expected to receive from McConnell from the date of his 

death, had he lived out a full life expectancy.

The premarital agreement shows that in the event of the 

death of McConnell, or upon the filing of a complaint for separation or divorce (at McConnell’s option), Wengert would be 

entitled to $300,000 of proceeds from a life insurance policy; 

Wengert admitted receiving the proceeds from the $300,000 

policy, plus a smaller policy. The premarital agreement provides that in the event of a divorce, McConnell was to pay 

Wengert “alimony and support” in the amount of $33,333 per 
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year, payable in equal monthly installments, for a period of 

3 years subject to immediate termination in the event of the 

death or remarriage of Wengert. A temporary order from the 

divorce action stated that McConnell would receive a credit 

for alimony owed under the premarital agreement for any 

amount of temporary alimony that he paid. The docket from 

that action (received in evidence here) shows that McConnell 

paid Wengert $20,000 in temporary alimony by the time 

of his death, thus leaving $79,999 in alimony still owed 

($99,999 - $20,000) had he lived out a full life expectancy. 

The record does not show that McConnell was financially 

supporting Wengert at the time of his death beyond fulfilling 

his temporary alimony obligation.

We therefore conclude that the county court erred by not 

considering the premarital agreement at all and by focusing 

instead on the financial lifestyle Wengert had enjoyed during 

the marriage rather than on what Wengert could have reasonably expected to receive from McConnell had he lived out his 

full life expectancy. Given their pending divorce, their separation, and the lack of any meaningful relationship between 

McConnell and Wengert by the time of McConnell’s death, 

consideration must be given to what Wengert could have reasonably expected to receive under those circumstances. On 

remand, the county court should reapportion any wrongful 

death settlement proceeds, taking these factors into consideration, and should consider only what Wengert could have reasonably expected to receive in terms of financial support from 

the time of McConnell’s death going forward, had he lived. 

The premarital agreement, while not controlling, is nevertheless relevant to this determination.

(b) Allocation to Rajendran as 

Daughter of McConnell

The county court recognized that Rajendran lived in Colorado 

with her husband and child and that there was no testimony 

that she relied on McConnell for “any sort of financial support.” However, Rajendran received 10 percent of the proceeds 
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because she did “suffer the loss of gifts and other tokens of 

affection common between parent and child.”

Like Wengert, Rajendran can only recover in a wrongful death action for losses sustained after McConnell’s death 

due to being deprived of what she would have received from 

McConnell from the date of his death, had he lived out a full 

life expectancy. See Corona de Camargo v. Schon, 278 Neb. 

1045, 776 N.W.2d 1 (2009). On appeal, Rajendran concedes 

that she did not rely on McConnell for financial support but 

argues she relied on him for “companionship, counseling, 

and advice, particularly in her business.” Brief for appellant 

at 18. Rajendran argues that “[t]his pecuniary loss is in addition to [her] ‘loss of gifts and other tokens of affection common between parent and child.’” Id. at 19 (quoting county 

court’s order).

[20-22] There is no exact fiscal formula for determination of 

damages recoverable for loss of society, comfort, and companionship, a loss which is not subject to some strict accounting 

method based on monetary contributions, past or prospective. 

Brandon v. County of Richardson, 261 Neb. 636, 624 N.W.2d 

604 (2001). Because it is impossible to generalize the extent to 

which persons enjoy each other’s companionship and society, 

the value of such highly personal relationships must be decided 

on a case-by-case basis. Id. A parent-child relationship has 

intrinsic value, even if that relationship is less than perfect. 

See id. (wrongful death action concerning child decedent; once 

existence of parent-child relationship is proved, then evidence 

about quality and extent of that relationship may be utilized to 

determine amount of surviving parent’s damages). See, also, In 

re Estate of Brown-Elliott, 27 Neb. App. 196, 203, 930 N.W.2d 

51, 57 (2019) (in dividing wrongful death settlement proceeds, 

“time is not the sole measure of a parent-child relationship” 

but evidence of whether relationship of parent and minor child 

decedent included “‘any semblance of normal parental love 

and affection’” was also considered to determine damages sustained by parent).
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The record contained ample evidence regarding Rajendran’s 

relationship with McConnell. Rajendran testified about her 

“very close” relationship with McConnell up until the time 

of his death. Rajendran had owned a company and had 

often talked to McConnell about her business. She talked 

to him weekly as she was growing her company to determine how to solve “different challenges.” There was testimony from Wengert, as well as Rajendran and her husband, 

which indicated that during McConnell and Wengert’s marriage, McConnell traveled to visit Rajendran (and vice versa) 

a fair number of times given their residence in different states. 

Rajendran agreed that her involvement with McConnell and 

his health increased after he asked her to come to the hospital 

in October 2013. She grew “much, much closer” to McConnell 

during that time. From that time until his death, Rajendran and 

her husband would go with McConnell to his medical appointments. Eventually, there was agreement that Rajendran would 

spend half the week in Omaha with McConnell and half the 

week at home in Colorado. They executed that arrangement 

“for several months.”

There is no indication that the county court fully considered 

the value of the pecuniary loss to Rajendran from the loss 

of McConnell’s companionship, counseling, and advice. On 

remand, Rajendran is entitled to an amount of the settlement 

proceeds under the wrongful death claim in view of evidence 

in the record of her loss of McConnell’s companionship, counseling, and advice in addition to her “loss of gifts and other 

tokens of affection common between parent and child.”

VI. CONCLUSION

For the foregoing reasons, we reverse the judgment of the 

county court and remand the cause on the record already made 

with directions to the county court to allocate the settlement 

proceeds between the survival claim and the wrongful death 

claim as set forth above.

Reversed and remanded with directions.