Thursday, December 10, 2009
Nebraska Court of Appeals allows injured worker who was illegal alien to collect temporary total disability from worker compensation case. But because there was "no evidence the plaintiff intended to remain in the country as an unauthorized alien" the trial court's ruling that the plaintiff would be ineligible for vocational rehabilitation services was premature. Visoso v. Cargill Meat Solutions, A-09-339, 18 Neb. App. 202. The injured worker's work status is not involved in the definition of “alien.”
Sunday, December 06, 2009
Order of the Kneepads Update: Nebraska Supreme Court in reciprocal discipline case from California imposes 90 day suspension on attorney the California Bar who was engaged in improper data mining. State ex rel. Counsel for Dis. v. Loftus, S-08-1330, 278 Neb. 1015. Loftus will not be eligible for reinstatement until 90 days after he has paid all delinquent dues and assessments owed to the Nebraska State Bar Association and has shown that he has successfully completed California’s State Bar Ethics School, taken and passed the Multistate Professional Responsibility Examination, and shown that he has complied and is complying with his term of probation and other conditions imposed by California
Nebraska Supreme Court denies murder defendant's claim for post-conviction relief alleging ineffective trial and appellate counsel where defendant claimed that counsel's failure to object to reports of Crimestoppers calls about the defendant was because of trial and appellate counsels' errors. State v. Duncan, S-08-1308, 278 Neb. 1006. any failure of Duncan’s trial counsel to object to Henthorn’s testimony was not prejudicial. The evidence supports Duncan’s convictions and renders the court’s erroneous admission of Henthorn’s testimony harmless.Duncan has not assigned that the postconviction court erred in failing to find that his appellate counsel provided ineffective assistance. When claims of a trial counsel’s performance are procedurally barred, we examine claims regarding trial counsel’s performance only if the defendant assigns as error that appellate counsel was ineffective for failing to raise trial counsel’s performance.
Nebraska Supreme Court affirms dismissal against purchaser of commercial property who claimed seller negligently misrepresented condition of building's roof when Supreme Court found plaintiff must show it used ordinary prudence when it relied on the neglient misrepresentations. Lucky 7 v. THT Realty, S-08-1290, 278 Neb. 997in both negligent and fraudulent misrepresentation cases, whether the plaintiff exercised ordinary prudence is relevant to whether the plaintiff justifiably relied on the misrepresentation when the means of discovering the truth was in the plaintiff’s hands..justifiable reliance must be decided on a case-by-case basis..Ordinary prudence is a factor in determining whether a plaintiff is justified in relying upon a defendant’s representations. The district court did not err as a matter of law in applying an ordinary prudence standard to Lucky 7’s negligent misrepresentation claim. We also conclude the court’s factual findings were not clearly wrong.
Nebraska Supreme Court reverses District Court ruling in favor of Bankruptcy Chapter 7 trustee that had garnished a contractors bank account. Although judgment debtor had an account balance when the judgment creditor filed its garnishment, the judgment debtor already was in default to the Bank who had a perfected lien on its accounts. Myers v. Christensen, S-08-1212, 278 Neb. 989 The trustee is the judgment creditor, or garnishor; Gencon is the judgment debtor; and Charter West is the garnishee. The case turns on the question of whether, on the date the garnishment summons was served, Gencon had a right to the deposit account which was superior to that of Charter West. Only if that were so could Charter West have been “indebted to” or holding “property or credits of” Gencon within the meaning of the garnishment statutes and therefore liable as a garnishee § 25-1030.02. Due to the existence of Charter West’s perfected security interest, Gencon had no enforceable right to the proceeds of the deposit account on the date that the garnishment summons was served and therefore, the trustee could have no such right. In other words, the trustee could not acquire a claim by garnishment which was superior to the claim of Charter West arising from its perfected security interest. Because of Bank's perfected security interest in the deposit account, which was far exceeded by the amount of Gencon’s indebtedness then in default, Charter West was not “indebted to” or holding “property or credits of” Gencon at the time of service of the garnishment summons.
Nebraska Supreme Court holds that employer's appeal of worker compensation court judge's assessment of interest and waiting time penalties did not divest the trial court of jurisdiction over the benefits award itself. The Supreme Court upholds worker compensation court review panel's decision that delinquent interest accrues from the date each weekly benefit became due. Russell v. Kerry Inc., S-08-146, 278 Neb. 981 "the Court of Appeals incorrectly determined that the workers’ compensation trial judge did not have jurisdiction to entertain Russell’s second enforcement motion while Kerry’s appeal from the judge’s first enforcement order was pending before the review panel. We reverse that part of the Court of Appeals’ decision. But we affirm the Court of Appeals’ determination that under § 48-125(3), the review panel correctly assessed interest on Russell’s final award from the date that each installment of benefits became due to the date of Kerry’s payment."