NE Code § 30-810 (2021)
2021 Nebraska Revised Statutes|Chapter 30 - Decedents' Estates; Protection of Persons and Property|30-810 - Action for wrongful death; limitation; in whose name brought; judgment; disposition of avails; compromise of claim; procedure.

30-810.  Action for wrongful death; limitation; in whose name brought; judgment; disposition of avails; compromise of claim; procedure.Every such action, as described in section 30-809, shall be commenced within two years after the death of such person. It shall be brought by and in the name of the person's personal representative for the exclusive benefit of the widow or widower and next of kin. The verdict or judgment should be for the amount of damages which the persons in whose behalf the action is brought have sustained. The avails thereof shall 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. A personal representative shall not compromise or settle a claim for damages hereunder until the court by which he or she was appointed shall first have consented to and approved the terms thereof. The amount so received in settlement or recovered by judgment shall be reported to and, if so ordered, paid into such court for distribution, subject to the order of such court, to the persons entitled thereto after a hearing thereon and after notice of such hearing and of the time and place thereof has been given to all persons interested by publication three successive weeks in a legal newspaper published within the county or, if no legal newspaper is published within the county, then in a legal newspaper published in an adjoining county, except that the court for good cause shown may provide for a different method or time of giving notice and a person, including a guardian ad litem, conservator, or other fiduciary, may waive notice or any other requirement for the mailing or receipt of instruments by a writing signed by him or her and filed in the proceeding. Such amount shall not be subject to any claims against the estate of such decedent. When the amount of such settlement or judgment is ordered to be paid into the court and is five thousand dollars or more, the county court shall forthwith upon such settlement or payment of such judgment place such amount in interest-bearing certificates of deposit or a savings account in a banking institution pending the entry of an order of distribution by the court, and such interest that may accumulate pending the entry of such order shall be distributed in the same proportions as the settlement or judgment. The hearing to approve the terms of the compromise or settlement and the hearing for distribution of the amount so received in settlement or recovered by judgment may be combined into one hearing.Source   G.S.1873, c. 15, § 2, p. 273;   Laws 1907, c. 47, § 1, p. 190;   R.S.1913, § 1429;   Laws 1919, c. 92, § 1, p. 235;   C.S.1922, § 1383;   C.S.1929, § 30-810;   Laws 1937, c. 75, § 1, p. 264;   C.S.Supp.,1941, § 30-810;   R.S.1943, § 30-810;   Laws 1945, c. 66, § 1, p. 263;   Laws 1971, LB 441, § 1;   Laws 1990, LB 579, § 1.  Cross References  Mailing copy of published notice to parties required, see section 25-520.01 et seq.Annotations  1. Petition 2. Damages 3. Action by personal representative 4. Procedure 5. Disposition of avails 6. Miscellaneous 1. Petition Petition must allege facts showing pecuniary loss to next of kin. Union Pac. R. Co. v. Roeser, 69 Neb. 62, 95 N.W. 68 (1903); Tucker v. Draper, 62 Neb. 66, 86 N.W. 917 (1901); Chicago, B. & Q. R. Co. v. Bond, 58 Neb. 385, 78 N.W. 710 (1899); Chicago, B. & Q. R. Co. v. Van Buskirk, 58 Neb. 252, 78 N.W. 514 (1899). Petition may be amended regarding special particulars of pecuniary loss, notwithstanding statutory period for commencing action has expired. Chicago, R. I. & P. Ry. Co. v. Young, 67 Neb. 568, 93 N.W. 922 (1903). Petition is sufficient if it names children dependent upon deceased, even if it omits widow. Chicago, B. & Q. R. Co. v. Oyster, 58 Neb. 1, 78 N.W. 359 (1899). Petition alleging that deceased left widow and minor children is sufficient to raise a presumption of pecuniary loss. Omaha & R. V. Ry. Co. v. Crow, 54 Neb. 747, 74 N.W. 1066 (1898). Petition averring that defendant's acts caused death of deceased, that he left a widow and children and that plaintiff is his administrator, is sufficient. City of Friend v. Burleigh, 53 Neb. 674, 74 N.W. 50 (1898). 2. Damages The loss contemplated by the wrongful death statute is a pecuniary loss, and damages on account of mental suffering or bereavement or as a solace to the next of kin on account of the death are not recoverable, as neither are damages for mental anguish suffered by the decedent prior to his death. Nelson v. Dolan, 230 Neb. 848, 434 N.W.2d 25 (1989). There is no requirement in a wrongful death case that there be evidence of the dollar value of companionship, counseling, or advice. Maloney v. Kaminski, 220 Neb. 55, 368 N.W.2d 447 (1985). Measure of damages for wrongful death of minor child includes loss of society, comfort, and companionship. Overrules prior decisions in conflict. Selders v. Armentrout, 190 Neb. 275, 207 N.W.2d 686 (1973). Where evidence is clear that only person in class for which action may be brought hereunder is guilty of negligence more than slight as a matter of law, verdict should be directed for defendant. Weber v. Southwest Nebraska Dairy Suppliers, Inc., 187 Neb. 606, 193 N.W.2d 274 (1971). Medical and funeral expenses resulting from wrongful death may be recovered when beneficiaries have paid or have become legally obligated to pay same. State Farm Mut. Auto. Ins. Co. v. Selders, 187 Neb. 342, 190 N.W.2d 789 (1971). In an action for wrongful death, the measure of damage is the pecuniary loss to the statutory beneficiaries. Darnell v. Panhandle Coop. Assn., 175 Neb. 40, 120 N.W.2d 278 (1963). Supreme Court will not interfere with amount of verdict and judgment unless clearly wrong. Langford v. Ritz Taxicab Co., 172 Neb. 153, 109 N.W.2d 120 (1961). Where surviving spouse is sole beneficiary, his contributory negligence may bar recovery. Wieck v. Blessin, 165 Neb. 282, 85 N.W.2d 628 (1957). Situations may exist where recovery may be had for probable contributions after child has attained majority. Bailey v. Spindler, 161 Neb. 563, 74 N.W.2d 344 (1956). While damages are limited to pecuniary loss of certain designated persons, distribution is made in the same proportions as personal property. Tate v. Barry, 144 Neb. 517, 13 N.W.2d 879 (1944). Action for damages commenced by administrator after death of his intestate, for pain and suffering inflicted upon the deceased is maintainable. Wilfong v. Omaha & C. B. St. Ry. Co., 129 Neb. 600, 262 N.W. 537 (1935). Parent can recover funeral expenses incurred for an unmarried minor child whose death was caused by defendant's negligence. Killion v. Dinklage, 121 Neb. 322, 236 N.W. 757 (1931). Damages are measured by pecuniary loss sustained by survivors by being deprived of what they would have received from the earnings of injured party had he lived out his expectancy. Hindmarsh v. Sulpho Saline Bath Co., 108 Neb. 168, 187 N.W. 806 (1922). On death of a child, a parent may recover for the loss of expected services not only during minority, but afterwards, on evidence justifying a reasonable expectation of pecuniary benefit. Draper v. Tucker, 69 Neb. 434, 95 N.W. 1026 (1903). The fact that wife remarried and obtained a new source of income does not affect amount of recovery of pecuniary loss suffered by death of first husband. Chicago, St. P., M. & O. Ry. Co. v. Lagerkrans, 65 Neb. 566, 91 N.W. 358 (1902), affirmed on rehearing, 65 Neb. 580, 95 N.W. 2 (1903). Evidence that next of kin were poor and deceased was earning good wages was sufficient to show pecuniary loss, even though proof of contributions to next of kin was not shown. Post v. Olmsted, 47 Neb. 893, 66 N.W. 828 (1896). 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. In re Estate of McConnell, 28 Neb. App. 303, 943 N.W.2d 722 (2020). The pecuniary value of the loss of the decedent's support, society, comfort, and companionship does not require evidence of the dollar value; that is a matter left to the sound discretion of the fact finder. In re Estate of McConnell, 28 Neb. App. 303, 943 N.W.2d 722 (2020). Where a husband and a wife had no meaningful relationship at the time of the husband's death and a divorce was pending, the wife was not entitled to recover in a wrongful death action based on the loss of her deceased husband's society, love, affection, care, attention, companionship, comfort, or protection. In re Estate of McConnell, 28 Neb. App. 303, 943 N.W.2d 722 (2020). Relatives absent from a decedent's life may suffer little, or no, pecuniary loss from the death and not be entitled to share in the damages recovered for a wrongful death. In re Estate of Brown-Elliott, 27 Neb. App. 196, 930 N.W.2d 51 (2019). 3. Action by personal representative The use of the word "shall" in this section precludes anyone but the personal representative from bringing an action for wrongful death. A wrongful death cause of action cannot be assigned. Spradlin v. Dairyland Ins. Co., 263 Neb. 688, 641 N.W.2d 634 (2002). Wrongful death statutes create a cause of action unknown at common law, but that cause of action is for the exclusive benefit of the decedent's next of kin. Rhein v. Caterpillar Tractor Co., 210 Neb. 321, 314 N.W.2d 19 (1982). An employer can bring an action directly against a third party tort-feasor for injuries suffered by an employee, but only a personal representative of a deceased employee can bring an action for wrongful death, which action must be filed within two years after death. United Materials, Inc. v. Landreth, 196 Neb. 525, 244 N.W.2d 164 (1976). Mother of child born out of wedlock is next of kin and may bring action for wrongful death of child. Piechota v. Rapp, 148 Neb. 442, 27 N.W.2d 682 (1947). Right of action under the federal act and state statute is vested in the personal representative of deceased, but differing in each case as to the beneficiaries. Moore v. Omaha Warehouse Co., 106 Neb. 116, 182 N.W. 597 (1921). Action must be brought by personal representative of deceased. Swift v. Sarpy County, 102 Neb. 378, 167 N.W. 458 (1918); Butera v. Mardis Co., 99 Neb. 815, 157 N.W. 1024 (1916); Murphy v. Willow Springs Brewing Co., 81 Neb. 219, 115 N.W. 763 (1908). The legal representatives have a right of action in all cases wherein decedent might have maintained action had he lived. Chicago, R. I. & P. Ry. Co. v. Young, 58 Neb. 678, 79 N.W. 556 (1899). Cause of action for death of decedent constituted an estate sufficient for granting administration. Missouri P. Ry. Co. v. Bradley, 51 Neb. 596, 71 N.W. 283 (1897). Action against county for death caused by defective highway must be brought in name of administrator. Sarpy County v. Galvin, 251 F. 888 (8th Cir. 1918). 4. Procedure Relation back of amendments to pleadings in actions for wrongful death are permitted to the same extent that relation back operates with respect to amendments made to pleadings in other causes of action. Genthon v. Kratville, 270 Neb. 74, 701 N.W.2d 334 (2005). Decedent's daughter who was born out of wedlock was entitled to recover in case brought under wrongful death act. Millman v. County of Butler, 244 Neb. 125, 504 N.W.2d 820 (1993). In an action for wrongful death of a child, "money value" of parental loss is not limited to, always equated with, or necessarily dependent on deprivation of the child's monetary contribution toward parental well-being. Williams v. Monarch Transp., 238 Neb. 354, 470 N.W.2d 751 (1991). Fraudulent concealment, if proven by a plaintiff, estops the defendant from asserting the statute of limitations as a defense to a plaintiff's wrongful death action under this section. Muller v. Thaut, 230 Neb. 244, 430 N.W.2d 884 (1988). The 2-year limitation in this section is a statute of limitations. Muller v. Thaut, 230 Neb. 244, 430 N.W.2d 884 (1988). Where as administrator of wife's estate, widower brought action for wrongful death and was unsuccessful, he was not barred under doctrines of res judicata or issue preclusion from prosecuting action for his own personal injuries and damages suffered in same collision. Hickman v. Southwest Dairy Suppliers, Inc., 194 Neb. 17, 230 N.W.2d 99 (1975). Instruction submitted respecting requirement of bringing action for exclusive benefit of widow and next of kin was subject to criticism but was not prejudicially erroneous. Bush v. James, 152 Neb. 189, 40 N.W.2d 667 (1950). In action for wrongful death, settlement made by administrator was binding on husband of deceased wife. Boell v. Overbaugh, 141 Neb. 264, 3 N.W.2d 439 (1942). Allowance of amendment to petition introducing new cause of action, barred by limitations, was error. Emel v. Standard Oil Co., 117 Neb. 418, 220 N.W. 685 (1928). Civil liability of third person for negligently causing death of another was not changed by Workmen's Compensation Act. Luckey v. Union Pac. R. Co., 117 Neb. 85, 219 N.W. 802 (1928). Limitation imposed is independent of general statute of limitations. Gengo v. Mardis, 103 Neb. 164, 170 N.W. 841 (1919). Conservator domiciled in Colorado who undertook no duties or obligations with respect to beneficiary domiciled in Nebraska, except to file suit for beneficiary's injury in accident in Nebraska, could not sue in federal court on basis of diversity of citizenship. Rogers v. Bates, 431 F.2d 16 (8th Cir. 1970). Action under Lord Campbell's Act must be brought within two years after death of deceased. McDonnell v. Wasenmiller, 74 F.2d 320 (8th Cir. 1934). Where action was brought by railroad employee for wrongful death, special section applying to actions by railroad employees was applicable and not this section. Jackson v. Chicago, R. I. & P. Ry. Co., 178 F. 432 (8th Cir. 1910). 5. Disposition of avails When proceeds of wrongful death settlement are placed in trust by court order for later benefit of surviving children otherwise eligible for AFDC payments, Department of Public Welfare may not deny assistance pending proceedings to make such funds available for present needs of children. Godden v. Department of Public Welfare, 193 Neb. 269, 226 N.W.2d 627 (1975). Next of kin means the class of persons nearest in degree of blood surviving the deceased. Mabe v. Gross, 167 Neb. 593, 94 N.W.2d 12 (1959). It is a function of the district court to ascertain the amount to be distributed. Peetz v. Masek Auto Supply Co., 161 Neb. 588, 74 N.W.2d 474 (1956). Damages recovered for wrongful death must be distributed among such relatives as suffer pecuniary loss from death. In re Lucht's Estate, 139 Neb. 139, 296 N.W. 749 (1941). Provisions of Workmen's Compensation Act, where conflicting with this section, control distribution of proceeds of recovery for wrongful death. Goeres v. Goeres, 124 Neb. 720, 248 N.W. 75 (1933); Bronder v. Otis Elevator Co., 121 Neb. 581, 237 N.W. 671 (1931). 6. Miscellaneous Because of the binding effect of a federal court judgment, Nebraska's wrongful death statute did not apply and the county court properly ordered distribution pursuant to the federal court judgment that applied North Carolina law. In re Estate of Helms, 302 Neb. 357, 923 N.W.2d 423 (2019). This section confers exclusive jurisdiction to the county court to approve wrongful death settlements and discretionary jurisdiction to distribute the proceeds of wrongful death claims. The beneficiaries of a wrongful death action are not entitled to be parties to the wrongful death proceeds distribution proceedings. In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016). This section is silent on subrogation. Accordingly, under section 48-118.04, proceedings for the fair and equitable distribution of wrongful death action proceeds subject to subrogation in workers' compensation cases must be brought in the district court. In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016). This section is silent on wrongful death actions. Accordingly, under section 48-118.01, wrongful death actions must be brought in the district court. In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016). This section does not govern the distribution of proceeds from a survival claim brought on behalf of the decedent's estate, which continued a decedent's cause of action for the decedent's injuries that occurred before death. In re Estate of Panec, 291 Neb. 46, 864 N.W.2d 219 (2015). Under this section, the only possible purpose of an attorney-client agreement to pursue claims for wrongful death is to benefit those persons specifically designated as statutory beneficiaries. Perez v. Stern, 279 Neb. 187, 777 N.W.2d 545 (2010). While this section includes a general statute of limitations applicable to wrongful death actions, section 44-2828 is a subsequently enacted special statute of limitations applicable to all personal injury and wrongful death actions against health care providers who have taken the necessary steps to qualify under the Nebraska Hospital-Medical Liability Act. Alegent Health Bergan Mercy Med. Ctr. v. Haworth, 260 Neb. 63, 615 N.W.2d 460 (2000). 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. In re Estate of McConnell, 28 Neb. App. 303, 943 N.W.2d 722 (2020). 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. In re Estate of McConnell, 28 Neb. App. 303, 943 N.W.2d 722 (2020). The 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 a right. In re Estate of McConnell, 28 Neb. App. 303, 943 N.W.2d 722 (2020). A wrongful death action brought in the name of a 6-year-old child's mother, as representative of the child's estate, was brought for the exclusive benefit of the child's next of kin, and thus, the child's father, as next of kin and beneficiary of the child's estate, was properly included in the court's instruction to the jury regarding the allocation of percentages of contributory negligence, even though the father was not brought into the action either as a claimant within the meaning of the statute that governed the defense of contributory negligence or as a third-party defendant. Curtis v. States Family Practice, 20 Neb. App. 234, 823 N.W.2d 224 (2012).