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Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

IN RE ESTATE OF EVERTSON

Cite as 23 Neb. App. 734

In re Estate of Bruce F. Evertson, de

Travelers Indemnity Company, appellant,

Julie A. Wamsley, personal representativ

of the Estate of Bruce F. Everts

deceased, appelle

___ N.W.2d ___

Filed March 8, 2016. No. A-15-104.

1. Workers’ Compensation: Judgments: Appeal and Error. Distribution 

of the proceeds of a judgment or settlement under Neb. Rev. Stat. 

§ 48-118.04 (Reissue 2010) is left to the trial court’s discretion and is 

reviewed by an appellate court for an abuse of that discretion.

2. Judges: Words and Phrases. A judicial abuse of discretion requires 

that the reasons or rulings of a trial judge be clearly untenable, unfairly 

depriving a litigant of a substantial right and a just result.

3. Statutes. To the extent there is conflict between two statutes on the 

same subject, the specific statute controls over the general statute.

4. Courts: Appeal and Error. The authority to dismiss an appeal conferred by Neb. Rev. Stat. § 30-1601(3) (Cum. Supp. 2014) is permissive 

or discretionary in nature.

Appeal from the County Court for Morrill County: Paul G.

Wess, Judge. Affirmed.

Gregory W. Plank, of Ray Lego & Associates, for appellant.

R. Kevin O’Donnell, of Law Office of R. Kevin O’Donnell, 

P.C., L.L.O., for appellee.

Moore, Chief Judge, and Irwin and Inbody, Ju

Nebraska Supreme Court Online Library

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

04/07/2016 12:10 PM CDT
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Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

IN RE ESTATE OF EVERTSON

Cite as 23 Neb. App. 734

Inbody, Judg

INTRODUCTION

Travelers Indemnity Company (Travelers) appeals the order 

of the Morrill County Court finding that Travelers was to 

receive no proceeds in a fair and equitable distribution of thirdparty settlement proceeds.

STATEMENT OF FACTS

On February 4, 2014, Bruce F. Evertson, chief executive 

officer of Evertson Well Service, Inc., was killed after being 

involved in a motor vehicle accident with a tractor-trailer unit 

driven by Dennis Dobrinski. Evertson was killed while acting 

in the course and scope of his employment. Travelers provided 

insurance for Evertson Well Service pursuant to the Nebraska 

Workers’ Compensation Act. Travelers is paying benefits to 

Darla Evertson (Darla), Evertson’s surviving spouse, of $728 

per week, which benefits will be paid until she dies or remarries. If Darla remarries, Travelers will pay her a 2-year lump 

sum settlement. According to the life expectancy table found 

in the “Nebraska Workers[’] Compensation Rules of Procedure 

Addendum 2,” Darla has a life expectancy of 27.6 years.

The Estate of Bruce F. Evertson (Estate) resolved the wrongful death claims with Dobrinski’s insurance carrier, Employers 

Mutual Casualty (EMC). Travelers consented to the settlement. 

EMC paid $500,000 from the policy to the Estate, of which 

$125,000 was allocated to Evertson’s adult son, $125,000 was 

allocated to Evertson’s adult daughter, and $250,000 was allocated to Darla.

On August 4, 2014, Travelers filed a statement of claim 

asserting a workers’ compensation lien and future credits. A 

hearing was held on November 17 to determine a fair and equitable division of the $250,000 of settlement proceeds between 

Travelers and Darla and the amount, if any, of Travelers’ future 

credit. See Neb. Rev. Stat § 48-118.04 (Reissue 2010).

At the hearing, Travelers claimed a subrogation interest 

in the entire $250,000 allocated to Darla pursuant to Neb. 
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Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

IN RE ESTATE OF EVERTSON

Cite as 23 Neb. App. 734

Rev. Stat. § 48-118 (Reissue 2010) of the Nebraska Workers’ 

Compensation Act. Six exhibits were received into evidence 

at the hearing: exhibit 1, the settlement agreement reached, 

inter alia, between EMC, Dobrinski, Darla, Evertson’s son, 

and Evertson’s daughter; exhibit 2, Darla’s affidavit with 

Evertson’s obituary attached; exhibit 3, an affidavit by the 

chief financial officer of Evertson Operating Company, Inc., 

the insured administrative company, setting forth premiums 

paid by Evertson Operating Company for workers’ compensation insurance between May 1, 2009, and May 1, 2015; 

exhibit 4, an affidavit setting forth that the attorney fees, 

expenses, and court costs billed by Darla’s attorneys in this 

case were $42,583.31; exhibit 5, a negotiation letter; and 

exhibit 6, the affidavit of the workers’ compensation adjuster 

with attachments. The evidence showed that EMC had paid 

$26,208 in indemnity payments to Darla and $10,000 in 

funeral expenses. In addition to the EMC settlement, the 

parties stipulated that the agreement referenced an underinsured motorist (UIM) policy for Evertson Well Service with 

a policy limit of $1 million. Travelers requested that a second 

supplemental transcript be filed with this court which showed 

that on March 18, 2015, the county court entered orders 

approving the settlement of the UIM claim and approving 

the distribution of $500,000 of UIM settlement proceeds. 

However, these were obviously not considered by the county 

court at the hearing on November 17, 2014, and we likewise 

do not consider them on appeal. An appellate court reviews 

a case upon the evidence actually received and considered 

in the trial court. See In re Estate of Baer, 273 Neb. 969, 

735 N.W.2d 394 (2007) (reason for rule presuming that, in 

absence of record of evidence considered by trial court, trial 

court’s order was supported by evidence and was correct is to 

ensure that appellate court reviews case upon evidence actually received and considered in trial court). See, also, Lincoln 

Lumber Co. v. Fowler, 248 Neb. 221, 533 N.W.2d 898 (1995) 

(before appellate court can consider issue of fact, evidence 
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Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

IN RE ESTATE OF EVERTSON

Cite as 23 Neb. App. 734

must have been offered at trial and embodied in bill of exceptions filed with appellate court). Accord Kellner v. Kellner, 8 

Neb. App. 316, 593 N.W.2d 1 (1999).

On December 29, 2014, the county court filed an order finding that a “fair and equitable” distribution of the settlement 

proceeds was for Darla to receive $207,416.69; for the Estate 

attorneys to receive $42,583.31 for their fees; and for Travelers 

to receive nothing. The county court set forth in its order that 

it considered factors contained in Evertson’s obituary, including his 25-year marriage to Darla; their enjoyment of travel, 

family time, and fishing trips to Canada and Alaska; and their 

purchase of a “‘dream home’” in California in 2013. The court 

also considered factors such as there was no evidence that 

Travelers helped finance the settlement between EMC and the 

Estate; there was evidence Travelers had charged and received 

the necessary premiums to provide workers’ compensation 

coverage for Evertson Operating Company; and under all the 

circumstances, Travelers’ financial risk was minimal and insurance companies are in the business of assuming risk.

On January 23, 2015, Travelers timely appealed that decision to this court. On February 2, the county court held that 

no supersedeas bond was required by Travelers in pursuing 

its appeal. Despite the court’s ruling that no supersedeas 

bond was required, the following day Travelers paid a $75 

cost bond.

ASSIGNMENTS OF ERROR

Travelers’ assignments of error, consolidated and restated, 

are that the county court erred (1) in failing to consider the 

potential settlement proceeds from the UIM policy in determining its award and (2) in denying Travelers any portion of the 

third-party settlement for amounts paid or future credits.

STANDARD OF REVIEW

[1,2] Distribution of the proceeds of a judgment or settlement under § 48-118.04 is left to the trial court’s discretion 
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Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

IN RE ESTATE OF EVERTSON

Cite as 23 Neb. App. 734

and is reviewed by an appellate court for an abuse of that discretion. Sterner v. American Fam. Ins. Co., 19 Neb. App. 339, 

805 N.W.2d 696 (2011). See Burns v. Nielsen, 273 Neb. 724, 

732 N.W.2d 640 (2007). A judicial abuse of discretion requires 

that the reasons or rulings of a trial judge be clearly untenable, 

unfairly depriving a litigant of a substantial right and a just 

result. Sterner, supra. See Burns, supra.

ANALYSIS

Jurisdiction.

Before addressing the merits of the assignments of error 

raised by Travelers, we address the Estate’s claim that this 

court lacks jurisdiction over this appeal. The Estate argues that 

Travelers failed to timely file a cost bond, which the Estate 

contends was required by Neb. Rev. Stat. § 25-1914 (Reissue 

2008). The Estate raised this same claim in a motion for summary dismissal which was denied.

[3] Contrary to the Estate’s argument that a cost bond under 

§ 25-1914 is applicable in the instant case, the probate code 

provides its own requirement for a supersedeas bond under 

Neb. Rev. Stat. § 30-1601(3) (Cum. Supp. 2014) in probate and 

trust appeals which supplants in such appeals the provisions 

of Neb. Rev. Stat. § 25-1916 (Reissue 2008) (general statute 

regarding supersedeas bonds). See In re Interest of Kayla F. 

et al., 13 Neb. App. 679, 698 N.W.2d 468 (2005). Section 

30-1601 applies to appeals “[i]n all matters arising under the 

Nebraska Probate Code . . . .” To the extent there is conflict 

between two statutes on the same subject, the specific statute 

controls over the general statute. Jeffrey B. v. Amy L., 283 Neb. 

940, 814 N.W.2d 737 (2012).

[4] A supersedeas bond is mandatory in a probate appeal 

unless the appellant is a party specifically exempted from 

the requirement pursuant to § 30-1601(3). Section 30-1601(3) 

provides:

When the appeal is by someone other than a personal 

representative, conservator, trustee, guardian, or guardian 
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Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

IN RE ESTATE OF EVERTSON

Cite as 23 Neb. App. 734

ad litem, the appealing party shall, within thirty days after 

the entry of the judgment or final order complained of, 

deposit with the clerk of the county court a supersedeas 

bond or undertaking in such sum as the court shall direct, 

with at least one good and sufficient surety approved by 

the court, conditioned that the appellant will satisfy any 

judgment and costs that may be adjudged against him or 

her, including costs under subsection (6) of this section, 

unless the court directs that no bond or undertaking need 

be deposited. If an appellant fails to comply with this 

subsection, the Court of Appeals on motion and notice 

may take such action, including dismissal of the appeal, 

as is just.

The authority to dismiss an appeal conferred by § 30-1601(3) 

is permissive or discretionary in nature. See In re Trust Created 

by Isvik, 274 Neb. 525, 741 N.W.2d 638 (2007).

In the instant case, on January 23, 2015, Travelers filed 

its notice of appeal and docket fee, which was the same date 

it filed a motion to require the personal representative of the 

Estate to hold a portion of EMC funds in the attorney trust 

account. On February 2, the county court denied Travelers’ 

motion and determined that no supersedeas bond was required 

by Travelers in pursuing its appeal. The authority to dismiss 

an appeal is permissive, and it would not be just to dismiss 

Travelers’ appeal because the determination that Travelers was 

not required to post a supersedeas bond was made more than 

30 days after the entry of the final order. Thus, the Estate’s 

claim that we lack jurisdiction over this appeal is without merit.

Failure to Consider Potential 

UIM Policy Proceeds.

Travelers contends that the county court erred in failing 

to consider the potential settlement proceeds from the UIM 

policy in determining its award. At the hearing, the parties 

stipulated that the settlement agreement referenced a UIM 
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Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

IN RE ESTATE OF EVERTSON

Cite as 23 Neb. App. 734

policy for Evertson Well Service and that the UIM had a 

policy limit of $1 million. However, in Turco v. Schuning, 

271 Neb. 770, 716 N.W.2d 415 (2006), the Nebraska Supreme 

Court rejected a claim that the district court erred in failing 

to consider UIM insurance available because the record did 

not establish that those benefits had been received or would 

be received. Likewise, in the instant case, although the parties 

indicated the presence of a UIM policy, the record at the time 

of the hearing did not establish that those benefits had been 

received or would be received. Therefore, this assignment is 

without merit.

Failure to Award Travelers Anything 

on Subrogation Claim.

Travelers also contends that the county court erred in denying Travelers any portion of the third-party settlement for 

amounts paid or future credits.

Section 48-118 provides that when a third party is liable to 

an employee or employee’s dependents for the injury or death 

of the employee, “the employer shall be subrogated to the 

right of the employee or to the dependents against such third 

person.” Accord Burns v. Nielsen, 273 Neb. 724, 732 N.W.2d 

640 (2007). Section 48-118.04 provides that a settlement is 

void unless agreed to in writing by the employee and employer 

or the court determines that the settlement is “fair and reasonable.” Specifically, § 48-118.04 provides:

If the employee or his or her personal representative or 

the employer or his or her workers’ compensation insurer 

do not agree in writing upon distribution of the proceeds 

of any judgment or settlement, the court, upon application, shall order a fair and equitable distribution of the 

proceeds of any judgment or settlement.

Although Travelers claims that the county court erred in 

applying a “made whole” analysis instead of a “rule of proportionality” analysis, § 48-118.04 does not prescribe an exact 

formula for the trial court to apply when making a fair and 
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Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

IN RE ESTATE OF EVERTSON

Cite as 23 Neb. App. 734

equitable distribution. Turco, supra. The Nebraska Supreme 

Court has refused to read such a formula into the statute and 

has specifically rejected the adoption of the “made whole” 

doctrine or the “rule of proportionality” to determine what constitutes a fair and equitable distribution. Turco, supra; Sterner 

v. American Fam. Ins. Co., 19 Neb. App. 339, 805 N.W.2d 696 

(2011) (abuse of discretion for court to apply “made whole” 

analysis in dividing settlement). Under the plain language of 

§ 48-118.04, the trial court shall make a fair and equitable distribution; the distribution is left to the court’s discretion and is 

to be determined by the trial court under the facts of each case. 

See, Turco, supra; Sterner, supra.

In the instant case, the county court conducted a fair and 

equitable analysis, taking into consideration various factors 

including Evertson’s long-term marriage to Darla, their enjoyment of travel and family trips both in and out of this country, 

and their purchase of a “‘dream home’” in California in 2013. 

The county court also considered factors such as that Travelers 

had charged and received the necessary premiums to provide workers’ compensation coverage for Evertson Operating 

Company and that under all the circumstances, Travelers’ 

financial risk was minimal and insurance companies are in 

the business of assuming risk. We disagree with Travelers’ 

assessment that the county court was considering an equitable 

assessment in considering there was no evidence that Travelers 

helped finance the settlement between EMC and the Estate; 

rather, the county court’s language indicates that the court was 

considering that Travelers did not expend any funds in securing 

the settlement.

Further, regarding Travelers’ claim that the district court 

erred in failing to grant Travelers a future credit, Travelers 

claims that an employer or workers’ compensation carrier 

is entitled under § 48-118 to treat amounts recovered by 

an employee from a settlement with a third-party tort-feasor 

exceeding the compensation benefits the employer or compensation carrier has paid as “advances against possible future 
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Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

IN RE ESTATE OF EVERTSON

Cite as 23 Neb. App. 734

compensation.” Brief for appellant at 17. In support of its 

claim, Travelers relies upon language contained in § 48-118 

which provides:

Any recovery by the employer against such third person, in excess of the compensation paid by the employer 

after deducting the expenses of making such recovery, shall be paid forthwith to the employee or to the 

dependents and shall be treated as an advance payment 

by the employer on account of any future installments 

of compensation.

The plain language of this portion of the statute refers to 

“[a]ny recovery by the employer against such third person 

. . . .” In this case, the recovery against the tort-feasor was 

not made by the employer or workers’ compensation carrier; 

rather, it was made by the employee’s personal representative 

on behalf of the Estate, which recovery would then be distributed to Darla, Evertson’s son, and Evertson’s daughter. Thus, 

the language relied upon by Travelers is not applicable to the 

instant case.

CONCLUSION

After reviewing the record, we cannot say that the county 

court abused its discretion. Therefore, the decision of the 

county court determining a fair and equitable distribution of 

settlement proceeds is affirmed.

Affirme