Decisions of the Nebraska Court of Appeals

IN RE ESTATE OF PANEC 497

Cite as 22 Neb. App. 497

In re Estate of Ellen M. Panec, deceased.

Rebecca Griffin, appellant, v. William J. Panec, 

Personal Representative of the Estate of

Ellen M. Panec, deceased, appellee.

___ N.W.2d ___

Filed November 4, 2014. No. A-13-777.

1. Decedents’ Estates: 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.

2. Judgments: Appeal and Error. When reviewing a judgment for errors appearing 

on the record, an appellate court’s inquiry is whether the decision conforms to 

the law, is supported by competent evidence, and is neither arbitrary, capricious, 

nor unreasonable.

3. ____: ____. When reviewing questions of law, an appellate court has an obligation to review the questions independently of the conclusion reached by the 

trial court.

4. Actions: Decedents’ Estates: Abatement, Survival, and Revival: Wrongful 

Death. In Nebraska, there are two types of causes of action which vest in and can 

be brought only by the personal representative of a decedent’s estate—a survival 

action and a wrongful death action.

5. Actions: Decedents’ Estates: Abatement, Survival, and Revival: Words and 

Phrases. Nebraska’s statutory provisions allow a cause of action, referred to as a 

“survival action,” held by a person who is fatally injured to be prosecuted by the 

personal representative of the decedent.

6. Actions: Decedents’ Estates: Abatement, Survival, and Revival. A survival 

action is not a new cause of action but is a continuation in the deceased’s personal representative of the cause of action which accrued to the deceased under 

the common law.

7. Wrongful Death: Damages. Wrongful death recovery is limited to the loss suffered by a decedent’s next of kin, and it provides no basis upon which to recover 

a decedent’s own damages.

Appeal from the County Court for Jefferson County: Steven

B. Timm, Judge. Affirmed.

Eric B. Brown, of Atwood, Holsten, Brown & Deaver Law 

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

Vincent M. Powers and Elizabeth Govaerts, of Vincent M. 

Powers & Associates, for appellee.

Moore, Chief Judge, and Irwin and Pirtle, Judges.
Decisions of the Nebraska Court of Appeals

498 22 NEBRASKA APPELLATE REPORTS

Pirtle, Judge.

INTRODUCTION

Rebecca Griffin (Rebecca) appeals from the August 7, 2013, 

order of the county court for Jefferson County, distributing 

settlement proceeds of $616,000 between herself and William 

J. Panec, the surviving spouse, personal representative, and 

appellee herein. For the reasons that follow, we affirm.

BACKGROUND

Ellen M. Panec and her husband, William, were involved 

in a serious automobile collision in Lincoln, Nebraska, on 

September 19, 2011. Both sustained injuries, and Ellen was 

hospitalized for 54⁄7 weeks following the collision before she 

passed away. William eventually recovered from his injuries. 

The parties stipulated that the medical expenses incurred for 

the care of Ellen after the collision were fair and reasonably 

necessary. The total cost for her medical care was approximately $215,000. The parties further stipulated that Ellen’s 

injuries ultimately caused her death on October 28 and that the 

reasonable funeral and burial costs were $21,341.84.

Prior to Ellen’s death, on October 3, 2011, a lawsuit was 

filed in the district court for Lancaster County on Ellen’s 

behalf for claims arising from Ellen’s personal injuries resulting from the collision. A companion complaint was also filed 

in the district court for Lancaster County on William’s behalf 

for the injuries he suffered as a result of the same collision.

On August 22, 2012, an amended complaint was filed in the 

district court for Lancaster County on behalf of Ellen’s estate. 

This amended complaint alleged that Ellen’s injuries were 

fatal, but that prior to her death, she had required hospitalization, and that she had “suffered pain, suffering, inconvenience, 

disability and incurred healthcare expenses.”

Prior to the collision, Ellen had been diagnosed with “stage 

4” lung cancer, as well as brain cancer and esophageal cancer. 

At the time of the collision, Ellen was 68 years old and she and 

William had been married for almost 7 years. It was a second 

marriage for both Ellen and William. Ellen had one daughter, 

Rebecca, from her prior marriage. Ellen was not working at 
Decisions of the Nebraska Court of Appeals

IN RE ESTATE OF PANEC 499

Cite as 22 Neb. App. 497

the time of the collision and had retired from employment 

years earlier.

The parties further stipulated that between Ellen, William, 

and Rebecca, it was likely that Ellen had the shortest life 

expectancy at the time of the collision. The parties also stipulated that Ellen was of sound mind when she executed 

her last will and testament, as well as a postnuptial agreement with William, both dated November 12, 2010. The parties further stipulated that the documents accurately reflected 

Ellen’s wishes.

The will generally gave William all of Ellen’s household 

goods and furniture and any vehicles she might own. It gave 

him a life estate in certain real estate. The will further provided, “All of the rest, residue and remainder of my property 

of every nature and kind and wheresoever situated I give and 

devise to my daughter, [Rebecca].”

Ellen’s estate was opened on November 10, 2011. The parties stipulated that several documents would be received into 

evidence without objection. These documents included Ellen’s 

will, the postnuptial agreement, probate documents, pleadings 

from the district court actions related to the collision, medical bills, and correspondence with legal counsel. The parties 

stipulated to the value of Ellen’s medical bills and liens, as 

well as the value of the settlements with the tort-feasor and 

the Panecs’ insurance company. The parties stipulated that 

the settlement with the tort-feasor responsible for the cause 

of the automobile accident was valued at $100,000. The parties also stipulated that a settlement was reached with the 

Panecs’ insurance company for $516,000 for underinsured 

motorist coverage.

The county court considered the parties’ stipulations and 

the testimony of William, as Ellen’s husband and personal 

representative, and Rebecca. The court found that William suffered the greatest loss, as compared to Ellen’s adult daughter, 

Rebecca. The court ordered the settlement funds to be distributed as follows:

1. Reasonable attorney fees to [William’s attorney] in 

the sum of $154,000.00.
Decisions of the Nebraska Court of Appeals

500 22 NEBRASKA APPELLATE REPORTS

2. A Medicare lien in the sum of $6,415.20.

3. A Madonna Rehabilitation lien in the sum of 

$11,101.51.

4. Promed Services lien in the sum of $5,738.75.

5. $63,873.45 to Rebecca . . . (10% + $20,000.00; as 

suggested in [William’s] reply brief).

6. Balance of proceeds to William . . . .

ASSIGNMENTS OF ERROR

Rebecca asserts the county court erred in (1) holding it did 

not have jurisdiction to allocate the damages other than as 

provided by Neb. Rev. Stat. § 30-810 (Reissue 2008), (2) failing to allocate any of the approximately $616,000 settlement 

to Ellen’s estate for its personal injury survivor claim, and (3) 

determining the medical bills were not relevant to any personal 

injury claim.

STANDARD OF REVIEW

[1-3] 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 Conservatorship 

of Hanson, 268 Neb. 200, 682 N.W.2d 207 (2004). When 

reviewing a judgment for errors appearing on the record, an 

appellate court’s inquiry is whether the decision conforms to 

the law, is supported by competent evidence, and is neither 

arbitrary, capricious, nor unreasonable. Id. When reviewing 

questions of law, an appellate court has an obligation to review 

the questions independently of the conclusion reached by the 

trial court. Id.

ANALYSIS

Distribution of Settlement Under 

Nebraska Revised Statutes.

In the “Amended Petition for Distribution of Settlement,” 

William, as personal representative, requested that the court 

enter an order approving a distribution allotting $20,000 to 

Ellen’s estate. Rebecca would be entitled to those funds as 

Ellen devised “all of the rest, residue and remainder” of her 

property of every nature to Rebecca, with the exception of 
Decisions of the Nebraska Court of Appeals

IN RE ESTATE OF PANEC 501

Cite as 22 Neb. App. 497

the personal property awarded to William and his life estate 

in the residence he shared with Ellen. The “Amended Petition 

for Approval of Settlement” stated that the Panecs’ insurance 

company “has offered the sum of $515,000.00 to settle said 

Claim. $495,000.00 for wrongful death and $20,000.00 for the 

pain and suffering from September 19, 2011 to [Ellen’s] death 

on October 28, 2011.”

In its order, issued August 7, 2013, the county court for 

Jefferson County determined how the settlement proceeds 

would be divided. The court found it did not have jurisdiction 

to allocate the damages between William and Rebecca, other 

than as provided by § 30-810.

Applying § 30-810, the court found that after payment of 

reasonable attorney fees and a negotiated reduction in medical bills, the funds should be split by allocating $63,873.45 to 

Rebecca and the remainder to William. The court determined 

that Rebecca was entitled to 10 percent of the settlement plus 

the $20,000 allocated by the Panecs’ insurance company for 

Ellen’s predeath pain and suffering. The court then awarded 

the balance of the proceeds to William. The court reasoned 

that as Ellen’s husband, William suffered a greater pecuniary 

loss of counsel and companionship than Ellen’s adult daughter, Rebecca. Rebecca asserted at the hearing that she should 

receive a greater portion of the wrongful death settlement, 

because her loss was greater. Though the court’s reasoning is 

supported by the evidence, Rebecca did not raise this issue 

on appeal.

Instead, Rebecca asserts the county court erred in “failing 

to allocate and distribute any of the $615,000 [sic] settlement 

recovery to the Estate for its Neb. Rev. Stat. § 25-1401 personal injury survivor claim.” Brief for appellant at 12. Thus, 

she asserts the court erred in determining that it could not 

distribute the settlement funds according to Neb. Rev. Stat. 

§ 25-1401 (Reissue 2008). Section 25-1401 recognizes that a 

decedent’s predeath pain and suffering survive death as a separate cause of action which is a claim that inures to the benefit 

of the estate. See Corona de Camargo v. Schon, 278 Neb. 

1045, 776 N.W.2d 1 (2009). Rebecca cites Reiser v. Coburn, 

255 Neb. 655, 587 N.W.2d 336 (1998), in support of her 
Decisions of the Nebraska Court of Appeals

502 22 NEBRASKA APPELLATE REPORTS

argument that damages should have been recovered on behalf 

of Ellen’s estate for Ellen’s predeath damages.

[4-6] In Nebraska, there are two types of causes of action 

which vest in and can be brought only by the personal representative of a decedent’s estate—a survival action and a wrongful death action. In re Diers, 320 B.R. 166 (D. Neb. 2004). 

See, also, §§ 25-1401 and 30-810; Neb. Rev. Stat. §§ 25-322 

and 30-809 (Reissue 2008). The statutory provisions allow a 

cause of action, referred to as a “‘survival action,’” held by a 

person who is fatally injured to be prosecuted by the personal 

representative of the decedent. In re Diers, 320 B.R. at 168. A 

survival action is not a new cause of action but is a continuation in the deceased’s personal representative of the cause of 

action which accrued to the deceased under the common law. 

Id. The purpose of the survival action is to recover the loss to 

the decedent’s estate resulting from the tort. Id.

[7] In contrast, §§ 30-809 and 30-810 provide a “wrongful 

death” cause of action, not to the decedent and the decedent’s 

estate but to the personal representative of the decedent for the 

exclusive benefit of the widow or widower and next of kin. 

Wrongful death recovery is limited to the loss suffered by a 

decedent’s next of kin, and it provides no basis upon which 

to recover a decedent’s own damages. Corona de Camargo 

v. Schon, supra. The losses arising from the decedent’s death 

include loss of future income and maintenance, and for present and future loss of society and companionship. § 30-809; 

Miers v. Central Mine Equipment Co., 604 F. Supp. 502 (D. 

Neb. 1985).

In this case, William, the personal representative of Ellen’s 

estate, negotiated a settlement with the sole purpose of maximizing the net recovery for those benefiting from the settlement, without regard for each potential individual element of 

damages that might or might not be before a jury if the case 

were tried.

The county court found that once the funds were received, 

it was obligated to apply § 30-810, because a jury’s potential 

estimation of damages was merely hypothetical. The court 

noted that the complaint did not set forth separate causes 
Decisions of the Nebraska Court of Appeals

IN RE ESTATE OF PANEC 503

Cite as 22 Neb. App. 497

of action for predeath and postdeath damages, but simply 

requested a judgment “‘in an amount which will fairly and 

justly compensate [Ellen] for [her] injuries under the laws of 

the State of Nebraska.’”

Rebecca requested that the funds be distributed other than 

as provided by § 30-810, but did not provide any authority to 

support such a disposition. The request was based upon the 

case’s hypothetically being tried before a jury as a commonlaw tort action, rather than as a probate matter. In this scenario, 

the jury would have to find that damages were owed and 

would have to separately determine the amount which would 

be allocated to Ellen’s estate and the amount which would be 

due to Ellen’s widower and next of kin. However, this case 

was not before a jury, and the amount of the settlement was 

determined prior to the issue’s being presented to the county 

court. Thus, the county court was simply tasked with distributing the settlement proceeds. The court acknowledged that 

it seemed likely that the estate would have prevailed had the 

matter gone to trial, but stated that it was less certain that the 

jury’s estimate of damages would have equaled the amount of 

the generous settlement.

Reiser v. Coburn, 255 Neb. 655, 587 N.W.2d 336 (1998), 

and its progeny recognize that two causes of action may be 

joined: one for wrongful death and one for predeath pain and 

suffering and medical and funeral expenses. Though the court 

applied § 30-810, it is clear from our review of the record 

that the causes of action were joined. The order provided 

for wrongful death and medical expenses, and an additional 

$20,000 distribution to Rebecca, beyond the 10 percent the 

court allotted for the wrongful death claim. Though the words 

“pain and suffering” are not explicitly used, $20,000 was the 

amount suggested by William and the amount the Panecs’ 

insurance company allotted for the pain and suffering portion 

of the $616,000 settlement.

After reviewing the county court’s decision, we find the 

court’s distribution of the proceeds from the settlement conforms to the law, is supported by competent evidence, and is 

neither arbitrary, capricious, nor unreasonable.
Decisions of the Nebraska Court of Appeals

504 22 NEBRASKA APPELLATE REPORTS

Medical Bills.

Rebecca asserts the county court erred in “analyzing that the 

$215,000 in medical bills were implicitly not relevant to any 

personal injury claim because they were paid by insurance or 

written off and that both parties would be responsible for the 

medical bills.” She argues that the Nebraska statutes provide 

that the measure of damages for medical expenses in personal 

injury claims shall be the private party rate, not the discounted 

amount, citing Neb. Rev. Stat. § 52-401 (Reissue 2010).

In its order, the county court noted that the estate would 

be liable for medical expenses pursuant to Neb. Rev. Stat. 

§ 30-2486 (Reissue 2008) and that William would also be 

obligated because spouses are jointly responsible for medical expenses. See Choat v. Choat, 218 Neb. 875, 359 N.W.2d 

810 (1984). The court’s order did not deduct the outstanding 

medical expenses from either party’s share of the settlement, 

nor add to either party’s share of the settlement for the cost 

of medical expenses already paid from the settlement proceeds. Essentially, the court found that both parties would be 

responsible for the outstanding balances, but that there was 

no need to split the expenses or assign them as damages, 

because they were already accounted for. Therefore, the court 

did not include a provision entitling either party to medical expenses.

Rebecca asserts on appeal she is entitled to the retail value 

of Ellen’s medical bills. She cites the “‘collateral source 

rule,’” which allows a party who has been wholly or partially 

indemnified for a loss by insurance to recover for the full 

amount of damages. Brief for appellant at 16, citing Mahoney 

v. Nebraska Methodist Hosp., 251 Neb. 841, 560 N.W.2d 451 

(1997). While this rule would have certainly factored into the 

presentation of the claim on its merits to a jury, the argument 

has no bearing on this particular distribution. This action was 

not aimed at proving the cost of medical expenses as damages; rather, it was for the distribution of settlement funds. 

The parties had already recovered the maximum value of the 

insurance proceeds, and the parties stipulated to the cost of 

medical services already paid and to the remaining amounts 

owed. The parties also stipulated that the majority of the bills 
Decisions of the Nebraska Court of Appeals

STATE v. WATTS 505

Cite as 22 Neb. App. 505

had already been paid to the appropriate providers and that 

the remaining balances were to be paid directly to the medical providers and to Medicare as subrogor. We find Rebecca’s 

assignment of error with regard to her entitlement for medical 

expenses is without merit.

CONCLUSION

We find the county court did not err in finding it had jurisdiction to distribute the settlement proceeds only according to 

§ 30-810 and in allocating the settlement proceeds accordingly. 

We also find the county court did not err in finding the parties were not entitled to recover the value of medical expenses 

incurred for Ellen’s care and paid directly to the medical providers out of the settlement proceeds.

Affirmed.

State of Nebraska, appellee, v. 

Elijah D. Watts, appellant.

___ N.W.2d ___

Filed November 4, 2014. Nos. A-13-1105, A-13-1136.

1. Statutes: Appeal and Error. Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent, 

correct conclusion irrespective of the determination made by the trial court.

2. Rules of the Supreme Court: Appeal and Error. Interpretation of a court rule is 

a matter of law in connection with which an appellate court has an obligation to 

reach an independent, correct conclusion irrespective of the determination made 

by the trial court.

3. Prior Convictions: Sentences. To constitute a basis for enhancement of punishment on a charge of a second or subsequent offense, the prior conviction relied 

upon for enhancement must be a final conviction.

4. Prior Convictions: Sentences: Appeal and Error. A prior conviction that is 

pending on appeal will not support enhanced penalties because it has not yet 

become final and may be reversed by the appellate court.

5. Sentences: Prior Convictions: Drunk Driving: Time. The finality of a prior 

driving under the influence conviction offered for purposes of enhancement is 

determined as of the date the subsequent offense was committed.

Appeal in No. A-13-1105 from the District Court for 

Lancaster County, Paul D. Merritt, Jr., Judge, on appeal