Jul 22 rulings from NE SCT

Vets Disciplined for positive drug tests in race hourses Brunk, etal v. Nebraska State Racing Comm.et al,270 Neb. 186 Filed July 22, 2005. Nos. S-03-698, S-03-699. State horse racing commission disciplined 2 Grand Island veterinarians for having patient-horses test positive for substances banned within a short time before the horses race. The Supreme Court agrees with the District Court that the Commission could discipline the vets for periods extending beyond their licensure period; the commission's evidence failed to prove that the doctors actually administered the drugs within the prohibited period, since the scientific evidence was disputed, and by rule only the trainers guarantee the health status of their horses. The Commission was right to discipline the vets for poor record keeping and for Dr Brunk's failure to cooperate with the Commission investigation.In a related matter, Van Horn and Brunk have sued racing commissioners Janell Beveridge, Bob Volk and Dennis P. Lee and the commission's executive secretary, Dennis Oelschlager. State Patrol has authority to discipline intrastate motor carrier if there is evidence of intrastate safety regulations Caspers Constr. Co. v. Nebraska State Patrol,270 Neb. 205 July 22, 2005. No. S-03-1277. Nebraska State Patrol penalites assessed against carrier for various safety regulations upheld as Patrol presented sufficient evidence that the carrier was an intrastate carrier See Neb. Rev. Stat. § 75-363 (Cum. Supp. 2002).and its intrastate business was in the State of NEbraska. Neb. Rev. Stat. § 75-302(11) (Reissue 2003) defines “intrastate commerce” as “commerce between any place in this state and any other place in this state and not in part through any other state.” The Court upheld the penalties based upon federal insectors conclusions that the carrier was intrastate, as well as admissions from the trucking company's principal that the violations occurred in intrastate commerce, by implication Nebraskas. Unemployment benefits remanded to determine whether claimant's "inkind" reimbursement or renumeration counted as earnings Lecuona v. McCord, S-03-1464, 270 Neb. 213 Claimant for unemployment benefits did not count reimbursement and inkind benefits from corporation she created as earnings against her weekl unemployment . Supreme Court orders remand to determine who much these benefits should count as earnings against unemployment, within the meaning of § 48-602(29) and, if so, the amount of those benefits. The reasonable cash value of noncash remuneration is to be determined under rules and regulations prescribed by the Commissioner of Labor. § 48-602(29). No reduction of sex offender risk level for subsequently expunged convictions McCray v. Nebraska State Patrol,270 Neb. 225July 22, 2005. No. S-04-395. Individual subject to registration under Nebraska Sex Offender Act received a Level III status. Sex Offender Registration Act (SORA), Neb. Rev. Stat. § 29-4001 et seq. (Cum. Supp. 2004). Subsequently some other misdemeanor convictions on his record the court expunged under § 29-2264. The court holds that since 29-2264 operates to remove prospectively disabilities from a criminal conviction, the registrant could not ask to have his risk level re-scored. Damage caps in Nebraska Political Subdivision Tort Claims Act prevent Plaintiff from claiming excess liability from Police Department's insurer. Molina v. American Alternative Ins. Corp., 270 Neb. 218 July 22, 2005. No. S-04-389. Plaintiff received serious injuries in accident with police vehicle and though his damages exceeded $4 million, the Political subdivision tort claim act limits damages to $1 million. Supremes upheld this cap, notwithstanding local government's acquiring excess insurance in the statutory limits set forth in § 13-926(1); the NESCT held that the maximum liability of a political subdivision was set by the act, “and not by the limit of any liability policy purchased by the political subdivision.” Salazar v. Scotts Bluff Cty., 266 Neb. 444, 450, 665 N.W.2d 659, 665 (2003). NESCT now upholds rule 12b dismissal of third party contract beneficiary action against same insurer. "(third-party beneficiaries) may not recover on any contract (unless), it (appears) by express stipulation or by reasonable intendment that the rights and interests of such unnamed parties were contemplated and that provision was being made for them. Properties Inv. Group v. Applied Communications, 242 Neb. 464, 495 N.W.2d 483 (1993); The fact that AAIC provided liability insurance coverage for that portion of the county’s potential liability for a single occurrence which exceeded its legal liability to a single claimant cannot be viewed as creating any rights on the part of injured persons such as Salazar to recover more from the insurer than its insured was legally obligated to pay." Supremes order partition action to proceed under referee supervision in estate dispute even though one heir holds "first opportunity to purchase clauseChanner v. Cumming, 270 Neb. 231 Filed July 22, 2005. Nos. S-04-478, S-04-489. Co tenants inherited farmground in Boone and Platte counties with one heir entitled in the will the right of first opportunity to purchase the property. The cotenants disputed whether to allow a tenant to lease some of the property and 2 cotenants sued the others forpartition. The District courts dismissed the partition actions holding the first opportunity clause pre-empted a partition action.NESCT reverses and order partition action to proceed under supervision of appointed referees, subject to right of heir with designated "first opportunity" clause to purchase property: "Under Nebraska’s partition statutes, the partition of the subject property may take one of two forms: (1) partition in kind, where the property is physically divided, or (2) partition in sale, where the property is sold and the sale proceeds are divided. See, also, 59A Am. Jur. 2d Partition § 2 (2003). § 25-2170 et seq."If the referee or referees so appointed determine that the subject property cannot be divided and should be sold, then, as provided under Nebraska’s partition statutes, a partition sale can be ordered by the district courts; .. Such sale would trigger Lonnie’s first right to buy the subject property, and therefore, upon the happening of a partition by sale, Lonnie must be given the first right to buy the subject property." Ameritrade CEO buys Mayor Fahey's house and sues builders; Supreme Court refuses to recognize "implied warranty of habitability" action in suit by subsequent home purchasers against home builders and subcontractors Moglia v. McNeil Co., 270 Neb. 241 July 22, 2005. No. S-04-554. The contractor who built a $1.6 million house for Omaha Mayor Mike Fahey and his former wife can be sued by the home's current owners for shoddy workmanship, the Nebraska Supreme Court ruled Friday, while the court declined to allow actions for negligence and "implied warranty of habitability"."the implied warranty of workmanlike performance should (apply) to subsequent home purchasers as against general contractors only to latent defects which manifest themselves after the subsequent purchase and are not discoverable by the subsequent purchaser’s reasonably prudent inspection at the time of the subsequent purchase.The subsequent purchaser Joseph Moglia is chief executive officer of Ameritrade, an Omaha online brokerage. The limitation period of Neb. Rev. Stat. § 25-223 (Reissue 1995) applies to these warranty claims. The subsequent owner has the burden, inter alia, of proving a latent defect which is attributable to the actions or inactions of the builder, and the builder retains the traditional defenses, affirmative and otherwise. Supremes decline to adopt action for "implied warranty of habitability" as defects plaintiffs alleged did not affect habitability. Finally the Supremes deny the subsequent purchasers their negligence claim because there were no allegations which would impose a legal duty on the contractors and subcontractors, and the "accepted work doctrine" immunizes the defendants for all but latent hazards." Injured worker's dr bills to diagnose stomach complaints not compensable medical expenses; Court must rule on all submitted bills; silence on bills is not a denial of payment.Vega v. Iowa Beef Processors,270 Neb. 255 July 22, 2005. No. S-04-118; Claimants back injury was compensable despite same dr's conflicting opinions to plaintiff and defense counsel. Medical bills used to diagnose whether gastro intestinal complaints were related to work injury were not compensable as symptoms had nothing to do with injuries. Several medical bills the WC judge did not make any ruling, and these were remanded to the trial court for resolution.