Arrest warrant for escaped inmate from Nebraska Department of corrections does not permit police to search home where escaped convict was hiding out: Eighth Circuit Court of Appeals reverses convictionDecision of the Day Blog United States v. Tylan Lucas 052165P.pdf 06/16/06 District of Nebraska Under a Nebraska statute, the Director of Corrections has authority to issue arrest warrants for escaped inmates, Neb. Rev. Stat. § 83-173(11). In this case, officers used one such warrant to arrest defendant Tylan Lucas in his home. During the course of the arrest, officers found evidence that led to Lucas’s further convictions for drug and gun charges. Lucas moved to suppress the evidence on the grounds that the arrest warrant was invalid, but the district court denied his motion. EIGHTH CIRCUIT REVERSES. An arrest warrant issued by the Nebraska Director of Correctional Services is not a warrant issued by a neutral and detached magistrate capable of determining whether probable cause exists for the requested arrest, and defendant's arrest pursuant to the warrant was invalid; Leon good faith exceptions does not apply when the indiviDual who issued the warrant is not neutral and detached.

Nebraska Supreme Court rules that insurers could avoid paying for pollution costs when dumping occurred over a long period of time because prolonged dumping was not "sudden and accidental;" Court however also holds that cause of action for failure to defend a customer does not accrue until the customer receives the adverse judgmentDutton-Lainson Co. v. Continental Ins. Co., S-04-1223, 271 Neb. 810 The "sudden and accidental" exception to the pollution exclusion clause expressed conjunctive conditions for insurance coverage.The discharges leading to the pollution in issue in this case were not "sudden."Therefore, the District Court properly gave summary judgment as to the insurers whose policies contained pollution clauses with the suddeness/accidental exceptions. As to those insurers who did notput in pollution exceptions to theirpolicies, but still contended the statute of limitations on a breach for failing to defend their customer, the supreme court found the issue of when the statute of limitations begins to run for breach of contract on a duty to defend is an issue of first impression for this court. The supreme court adopts the clear majority view that a cause of action on an insurer's duty to defend does not run until the underlying action is resolved against the insured. Accordingly, we reverse the district court's determination that Dutton's claims were barred by the statute of limitations. SUMMARY JUDGMENT ON POLLUTION EXCEPTIONS AFFIRMED; SUMMARY JUDGMENT ON STATUTE OFLIMITATIONS REVERSED.

Nebraska Supreme Court sends disputed estate tax refund back to county court n re Estate of Eriksen, S-04-966, 271 Neb. 806 Heir of deceased farmer exercised option in the will to purchase the farm and the estate sought special valuation elections 2032A and deductions allowed to estates when the relatives continue to farm the property 2057. The Plaintiff sought those elections and also the entire refund according to 77-2108 apportionment statute. The county court ruled against him. The Nebraska Supreme Court reverses holding that the will did not direct apportionment of taxes and refunds if any. Also the Court must consider the application of 77-2108 after the estate pays its taxes; the IRS denied the 2057 claim as well. "Eriksen next contends that under § 77-2108, he should be allocated the tax savings caused by his elections. But the county court did not decide issues regarding apportionment under § 77-2108. Further, at oral arguments, the parties agreed that the residuary of the estate had not been distributed and informed the court that the § 2057 election has now been denied by the Internal Revenue Service. Until the estate taxes have been finally determined, § 77-2108 cannot be applied. In addition, a determination about apportionment involves a number of issues that could require additional factual findings. The county court did not address apportionment under § 77-2108 and did not make specific factual findings, because it determined that the will controlled instead of the statute. An appellate court will not consider an issue on appeal that was not passed upon by the trial court. In re Guardianship & Conservatorship of Larson, 270 Neb. 837, 708 N.W.2d 262 (2006). Accordingly, we do not address the apportionment under § 77-2108 and remand the matter for that determination by the county court when the final amount of federal estate taxes has been determined. Likewise, the county court did not address Eriksen's unjust enrichment arguments, and an application of § 77-2108 could potentially affect those claims. Accordingly, we also do not address unjust enrichment and remand the matter for determination by the county court.

Injured workers subject to the Nebraska Worker Compensation Act who win damage suits against third party tortfeasors may not require that the the settlement or judgment "make them whole" before the subrogated worker compensation carrier recovers any of its compensation paymentsTurco v. Schuning, S-05-068, 271 Neb. 770June 16, 2006. Plaintiff severely injured in automobile accident while doing his sales job settled an automobile liability claim for $250K; worker comp had paid $145K for disability and medical care. The Plaintiff also had a claim for $100K against his wife's underinsured motorist insurance, which must not have been part of this case. The District Court in a 48-118.04 (2005 revision) hearing determined the Plaintiff's damages to exceed $600K. Assuming that the equitable "made whole" rule applied, the District Court did not allow the worker comp insurer any subrogation. Nebraska Supreme Court reverses holding that the statute's command for a fair and equitable distribution meant just that without incorporating any "made whole rule." Section 48-118(.04) does not prescribe an exact formula for the trial court to apply when making a fair and equitable distribution, and we will not read such formula into the statute. It is not within the province of this court to read a meaning into a statute that is not there. See Trieweiler v. Sears, 268 Neb. 952, 689 N.W.2d 807 (2004). Instead, 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. We determine that the court erred when it concluded that it was required to apply the "made whole" doctrine.

Defendant convicted of stealing an ATM loses appeal challenging constitutionality of restitution order; loses ineffective counsel claim in Nebraska Supreme Court in another wasteful pointless appeal the Defendant claims he told his lawyer to file.State v. Moyer, S-05-079, 271 Neb. 776 HTML Defendant and two others broke into a Bennett convenience store and stole the ATM. They opened the machine with a blowtorch and stole $10000. Defendant plead guilty and was sentence to prison and ordered to pay full restitution. Defendant's counsel did not appeal the sentence and later the District Court ordered a new direct appeal, assuming the Defendant had asked for an appeal. Defendant's new counsel claimed Neb. Rev. Stat. §§ 29-2280 to 29-2289 (Reissue 1995) were unconstitutional because violate Neb. Const. art. VII, § 5(1). the Nebraska criminal restitution statutes challenged by Moyer do not violate Neb. Const. art. VII, § 5. Section 29-2280 states, in part: "A sentencing court may order the defendant to make restitution for the actual physical injury or property damage or loss sustained by the victim as a direct result of the offense for which the defendant has been convicted." "Although an order to make restitution is punitive as to the wrongdoer, it is limited to the actual loss sustained by the victim and is thus compensatory or remedial in nature. Accordingly, we hold that restitution, ordered in an amount not exceeding the actual damage sustained by the victim, pursuant to §29-2280 , is not a penalty within the meaning of Neb. Const. art. VII, § 5, and is constitutional." Post conviction relief denied.The volume of these post conviction motions seeking direct appeals from guilty pleas quite annoys me. This District Judge seems to have not read Roe v Flores-Ortega, the Scotus decision that restricts the free appeal hindsight favoring judges were giving defendants. The better practice is for counsel routinely to consult with the defendant about an appeal. Counsel has a constitutionally imposed duty to consult, however, only when there is reason to think either (1) that a rational defendant would want to appeal, or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known. One highly relevant factor will be whether the conviction follows a trial or a guilty plea, because a plea both reduces the scope of potentially appealable issues and may indicate that the defendant seeks an end to judicial proceedings. Even then, a court must consider such factors as whether the defendant received the sentence bargained for and whether the plea expressly reserved or waived some or all appeal rights.

Lincoln cardiologist's ex wife loses appeal of defense verdict that was in favor of her former divorce attorney; Nebraska Court of Appeals (unpublished opinion) agrees that Lancaster County District Court properly overruled her (Plaintiff's) motion for a directed verdictCaudill v. Roberts, A-04-1314; Ex wife of prominent Lincoln cardiologist Christopher Caudill sued her divorce counsel for negligently allowing her physician husband to keep several limited partnerships while agreeing that their value would be a negative $400K. After the negative partnership value, the parties split a $10 million marital estate roughly in half. After the divorce doctor's exwife contended the attorney negligently investigated the value of the property and the tax consequences. The district court did rule on partial summary judgment that in the divorce the parties should have considered the tax consequences of splitting the partnerships only if the divorce would have forced their sale, citing Schuman v. Schuman, 265 Neb. 459, 658 N.W.2d 30 (2003), but did not rule on the defendant's liability. The court overruled the plaintiff's motion for directed verdict and the jury found for the defendant attorneys. Court of appeals affirms Various witnesses gave conflicting opinions as to the potential value or negative value of the partnerships, and what actions the wife as succeeding owner would have to take to preserve them. "Roberts testified that he has had previous cases dealing with limited partnerships and that they have too many downside risks to take them in a divorce. Roberts testified that he knew the limited partnerships were involved in real estate and that he discussed with Nancy doing an appraisal but that it would be expensive and that nothing may come out of it. He suggested to Nancy that she and Christopher should split the limited partnerships "50/50." He testified that he told her they were risky and that there could come a time when she may have to put money into them. (We digress to recall that at oral argument, Nancy's counsel argued that a limited partner never is obligated for further capital contributions--but there was no evidence at trial to support such claim, nor was there any evidence to dispute Roberts' testimony as to the risk of further contributions to these particular limited partnerships.) Roberts testified that Nancy told him that she did not want any risk. He testified that if they had gone to trial over the issue, she would not be happy if she got the limited partnerships; thus, he told her that settlement was the best option. Roberts testified that in attempting to agree to a property settlement, the parties had to do some "give and take." It is noteworthy that Christopher's counsel testified that if the negative tax consequences of the partnerships were not included in the property division, he would have advised his client to try this issue; and we note that although there was a settlement, a number of unsettled issues were tried. Our brief recounting of the foregoing key testimony clearly reveals evidence upon which the jury could have concluded that Roberts did not violate the standard of care--remembering that on a motion for a directed verdict every controverted fact must be resolved in favor of Roberts. Galter's testimony was that Roberts met the standard of care, and by itself, it would prevent the trial court's entering a direction that Roberts had breached the standard of care with respect to his handling of the limited partnerships and advice to his client. Consequently, the district court did not commit error in denying the motion for a directed verdict. AFFIRMED

Nebraska Supreme Court reverses mandamus order from the Adams County District Court directing the rezoning of farmland for residential development State ex rel. Musil v. Woodman, 271 Neb. 692 Filed June 9, 2006. No. S-04-1420. Owners of recently purchased farmground in rural Adams County sought rezoning for residential development. On a motion at one meeting of the Adams County Board the Board approved revising the County zoning plan on a split vote. However later the Board refused to adopt these actions by resolution. The District Court for Adams County considered the approving motions sufficient to require the Board to proceed with rezoning. The Supreme Court reverses finding no clear obligation for the Board to follow its motions when its rules required a resolution.Under § 23-114(1)(d) and art. 10, § 1003.02, the rezoning action Musil sought in the instant case was required to be taken up as a "resolution." Based on the foregoing, we agree with Barrows and the Board that the motions of June 24, 2003, were of a different character than the resolutions of August 19 and that the former were merely an expression of possible future action favorable to Musil, whereas the latter were in fact a rejection of Musil's petition for rezoning. Contrary to Musil's assertion and the conclusion of the district court, the mere motions of June 24, 2003, were not sufficient to require that Musil's rezoning request be implemented, and, on the contrary, the resolutions rejected on August 19 denied Musil's request for rezoning. Musil did not show clearly and conclusively that she was entitled to the relief of rezoning that she sought, and the Board was not legally obligated to rezone. See, State ex rel. Jacob v. Bohn, ante p. 424, 711 N.W.2d 884 (2006); Ways v. Shively, 264 Neb. 250, 646 N.W.2d 621 (2002). The district court erred in issuing the writ of mandamus directing the rezoning, and we reverse the order issuing the writ.

Nebraska Supreme Court modifies April opinion that held administrative revocation of drivers' licenses for refusing alcohol tests were constitutionalKenley v Neth (Neth II) 271 Neb. 683 Filed June 9, 2006. Nos. S-04-1186, S-05-230. Supplemental Opinion; Kenley v Neth (Neth I) 271 Neb. 402 Filed April 14, 2006. Nos. S-04-1186, S-05-230. reversed the Clay County District Court, which had ruled the administrative revocation of the licenses of drivers who refused to take tests for blood alcohol (§ 60-498.01 )violated the due process and equal protection clauses of the Nebraska and US Constitutions. The District Court reasoned that because if drivers lost drivers licenses for failing tests but could win back their drivers licenses if they later won acquittal of accompanying criminal charges§ 60-498.02(4) , the refusing drivers should also have that right. The Supreme Court in Kenley I directed the District Court to uphold Kenley's suspension. Kenley II corrects this error and requires the District Court to review the case on its merits. With respect to Kenley, in her appeal to the district court, she assigned that there was no competent evidence to support the revocation of her driver's license. Due to its other holdings, the district court did not reach this issue. We remand the cause to the district court for further proceedings consistent with this opinion with directions to determine whether there was competent evidence to support the revocation of Kenley's driver's license. In accordance with the above, we also withdraw the directive language with respect to case No. S-04-1186, id. at 416, 712 N.W.2d at 264, and substitute the following: Cause in No. S-04-1186 remanded for further proceedings.

More result oriented and haphazard Daubert jurisprudence from the Nebraska Supreme Court; Court reverses Lancaster County district Court judge Witthof's decision to exclude "expert" opinion stating auto accident caused fibromyalgia symptomsEpp v. Lauby, 271 Neb. 640 Filed June 2, 2006. No. S-04-990. This time the Supremes hand one to the very worthy trial lawyers and their hypochondriac clients by reversing Judge Witthof's decision to exclude testimony from professional plaintiffs experts that Plaintiff Epp suffered total disability from an automobile accident that caused her fibromyalgia symptoms. Earlier researchers have described fibromyalgia as a psychosomatic disorder. Although the Supreme Court recognized that many medical researchers find the trauma-fibromyalgia connection to be junk science, it was an "abuse of discretion" for the trial court to agree with those researchers, because the medical expert testifying in favor of the fibro sufferer did a good job of eliminating other causes for the fibro symptoms. Daubert on the web notes other circuit cases from the 5th and 2nd Circuits denying plaintiff friendly fibromyalgia opinions:

Vargas v. Lee, 317 F.3d 498 (5th Cir. 2003). In suit against truck driver and trucking company, plaintiff offers Dr. Edward M. Gaber, who opines that plaintiff's fibromyalgia was caused by trauma sustained in accident. District court admits testimony and jury awards damages to plaintiff. Admissibility reversed.

Washburn v. Merck & Co., No. 99-9121 (2d Cir. May 1, 2000) (unpublished). Woman develops arthropathy, chronic pain syndrome, and fibromyalgia after receiving rubella vaccination. In suit against vaccine manufacturer, woman offers three physicians who opine that vaccination caused symptoms. District court excludes testimony from all three and awards summary judgment. Exclusion affirmed.

Lincoln area specialty hosptials Nebraska Heart Institute and Lincoln Surgical Hospital opened before Federal Government imposed moratorium on medicare/medicaid reimbursements for physician referrals to "whole hospitals" they owned; moratorium has expired, but Fed CMS Agency has not allowed new specialty hospitalsPhysician-Owned Specialty Hospitals Dodge a Bullet; Duane Morris Law Firm. The Medicare Prescription Drug, Improvement and Modernization Act of 2003 ("MMA") imposed an 18 month moratorium from December 2003 to June 2005, on physicians' referring their patients to a cardiac, orthopedic or surgical specialty hospital in which they had an ownership or investment interest. The moratorium did not apply to hospitals that were in operation or "under development" as of November 18, 2003. Congress allowed the moratorium to expire. Legislation that Senators Grassley and Baucus introduced as the "Hospital Fair Competition Act of 2005" would have permanently prohibited specialty hospitals passed the Senate but went nowhere in the House. The Deficit Reduction Act of 2005 requires HHS (through CMS) to develop a "strategic and implementing plan" regarding physician investment in specialty hospitals. For now area specialty hospitals with their high profit margins are safe.