Tuesday, March 28, 2006

Nebraska court of appeals (Judge Sievers) rules that Worker Compensation Court Review Panel committed plain error in allowing dismissed insurer to intervene to appeal adverse judgment Miller v. Commercial Contractors Equip., 14 Neb. App. 606 Filed March 28, 2006. No. A-05-873. Plaintiff alleging different dates of injury sued his employer and both insurers who might have to cover his injuries. By stipulation the parties dismissed Travelers who insured the later dates of injuries. Travelers interpreted the stipulation to mean the Plaintiff was not alleging a new injury's occurring during its coverage period. The trial court did find a new injury triggering Traveler's coverage and Travelers tried to intervene for the appeal. Court of appeals dismisses appeal. Allowing an insurer to be dismissed from an action, sit by while the trial proceeds, and then file a petition in intervention after the case has been tried, a judgment has been issued, and the other parties have applied for review does not square with the analogous principle that a party cannot complain of error which that party invited the court to commit. See State v. Zima, 237 Neb. 952, 468 N.W.2d 377 (1991). Nor can a party silently tolerate error, gamble on a favorable result, and then complain of the tolerated error when the result is unfavorable. See id. In this case, Travelers got itself out of the case, the case was tried without Travelers, the result exposed Travelers' coverage, and then, at the review panel level, Travelers sought reentry into the case. Obviously, Travelers used the stipulation to secure its exit from the case--which exit would not affect the underlying liability of Commercial Contractors which Travelers is contractually obligated to cover. Thus, Travelers gambled that an award could not or would not occur which would fall within its coverage of Commercial Contractors' workers' compensation liability.

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