Nebraska Court of Appeals refuses to find 18 day delay for a juvenile detention hearing unreasonable, Through the eyes of a child initiative. In re Interest of April E. et al. Filed on May 27, 2008 Memorandum opinion, not designated for permanent publication A-08-036 through A-08-038SUMMARY: An 18-day delay between the ex parte order and the detention hearing is “on the outer edge of reasonableness” but is not unreasonable. The evidentiary basis of an ex parte temporary detention order is not appealable because the ex parte order is not a final order.

Nebraska Court of Appeals reverses teacher's dismissal when it found the Millard School Board violated the Nebraska Open Meetings Law when it made its decision in a closed session. Rominger Legal.Com. The case involves the 2006 firing of Tanya Bligh, who was a teacher at Russell Middle School. Following four days of hearings, the board determined that Bligh was an incompetent teacher and failed to meet Millard's performance standards, according to co rt records. But in terminating Bligh's contract, the board voted in closed session, the appeals court found. Bligh v. Douglas Cty. Sch. Dist. No. 0017, A-07-283, A-07-284the Board held its vote on Bligh’s contract in closed session. The Board announced the decision in open session, but failed to actually hold the vote in open session. Neb. Rev. Stat. § 79-829 (Reissue 2003) specifically provides that a teacher’s contract shall be deemed continuing and remain in full force unless the school board “by a vote of the majority of its members” determines that the contract should be terminated. We can think of no more “formal action” with respect to the termination of a teacher’s contract than the actual vote of the school board. In this case, the Board failed to comply with § 79-832 because the Board failed to take its “formal action” in open session. As such, we conclude that the district court’s orders in both appeals should be reversed, and we need not address the remaining errors alleged by Bligh.

Text of Attorney General Jon Bruning's opinion concerning petition circulators and blockers who appear on private commercial property. Nebraska Attorney General's Office. The constitutional guarantee of free speech in Nebraska is found in art. I, § 5 of the Nebraska Constitution. However, the Nebraska Supreme Court has repeatedly and consistently held that the guarantee of freedom of speech under the Nebraska Constitution is the same as the guarantee of freedom of speech under the First Amendment to the United States Constitution. Pony Lake School District 30 v. State Committee for the Reorganization of School Districts, 271 Neb. 173, 710 N.W.2d 609 (2006); Dossett v. First State Bank, 261 Neb. 959, 627 N.W.2d 131 (2001); State v. Moore, 258 Neb. 738, 605 N.W.2d 440 (2000); Pick v. Nelson, 247 Neb. 487, 528 N.W.2d 309 (1995). .. While there are no Nebraska cases directly on point, we do not believe that art. I § 5 of the Nebraska Constitution creates a state constitutional right for petition circulators or “blockers” to remain on private property and continue their activities after the owner has asked them to stop.

Nebraska Supreme Court orders new arguments in State Trooper's case. Omaha.com The Nebraska Supreme Court has ordered a second round of oral arguments in the case of a Nebraska State Patrol trooper who was fired for joining a group affiliated with the Ku Klux Klan. In its order, the court told attorneys in the case of Robert E. Henderson to submit additional legal briefs by Aug. 1 and to be ready for a new hearing in September. The court said the attorneys should address four questions in their arguments: collective bargaining agreements, constitutional rights, binding arbitration and legal precedent. Henderson's attorney, Vincent Valentino, said the court's order is not routine but is not unprecedented. He said the four questions give little indication of the court's leanings. A spokeswoman for the Attorney General's Office said only that state lawyers would provide the information the court requested. The case began when the State Patrol fired Henderson, of Omaha, for joining the Knights Party, which describes itself as the oldest, largest and most-active Klan organization in the United States. An internal investigation confirmed that Henderson had joined the party and posted messages to an online discussion group for party members. He said he joined as a way to vent his frustrations over his wife leaving him for a Hispanic man. Henderson appealed his firing to an independent arbitrator in 2006, as allowed by the collective bargaining agreement covering state troopers. The arbitrator ruled in his favor, saying that Henderson's firing violated his First Amendment and due process rights. Attorney General Jon Bruning appealed the arbitrator's ruling, arguing that Nebraska's public policy against racism should bar Henderson from being reinstated. Lancaster County District Judge Jeffre Cheuvront upheld Henderson's firing.

Nebraska Unicameral in its wide-ranging judiciary bill LB1014 helps out "public service" lawyers by initiating a loan forgiveness program for attorneys who join public advocacy organizations. Nebraska Unicameral. This will help cure the crying need we have in this state for more lawyers to sue the State every time the Legislature tries to trim a little fat from social services programs or when an illegal alien stubs his toe during an ICE raid. The initial maximum replacement loan amount shall be $6000 per year for "fulfill(ing) the purposes of recruiting and retaining public legal service attorneys in occupations and areas with unmet needs, including attorneys to work in rural areas and attorneys with skills in languages other than English." Where was this program when State Senator Nantkes was finishing law school?

Nebraska Supreme Court holds that hog confinement lot operator who appealed Madison County's refusal to grant him a variance used the denovo appeal procedure to the District Court. In re Application of Olmer, S-07-247, 275 Neb. 852 When a decision regarding a conditional use or special exception permit is appealed under § 23-114.01(5) RRS Neb (Cum. Supp. 2006) and a trial is held de novo under § 25-1937 (Reissue 1995) RRS Neb, the findings of the district court shall have the effect of a jury verdict and the court’s judgment will not be set aside by an appellate court unless the court’s factual findings are clearly erroneous or the court erred in its application of the law. The district court found that the Board, in denying O lmer’s conditional use permit, acted as a tribunal exercising judicial functions and that therefore, Olmer’s appeal should be treated as a petition in error. Because Olmer’s appeal was treated as a petition in error, the court explained that Olmer was not entitled to a trial de novo, nor could the court receive additional evidence that was not offered at the hearing before the B oard. A ccordingly, the court stated that, in making its decision, it did not consider any exhibits that were not offered and received by the Board. the B oard in the present case, in denying O lmer’s application, was exercising judicial functions which decisions are generally reviewed through the filing of a petition in error.15 B ut § 23-114.01(5)clearly provides for a right of appeal to the district court from the B oard’s decision, without setting forth any procedure for prosecuting the appeal. Therefore, the appeal procedure in § 25-1937 is also implicated.16 A nd there is nothing in§ 23-114.01(5), nor in § 25-1937, that purports to remove the right to proceed in error under § 25-1901. T us, we conclude that under the circumstances presented here, O lmer had the option of filing either a petition in error under § 25-1901 or an appeal under § 25-1937

Nebraska Supreme Court reverses Douglas County District Court directed verdict that was in favor of the State of Florida Department of Insurance, receiver for an insolvent truck insurance company in its suit against insurance agency that used truckers' premiums to acquire other insurance when the insolvent insurer was unable to provide adequate coverage for the agency's customers. State of Florida v. Countrywide Truck Ins. Agency, S-06-1220, 275 Neb. 842 "The district court erred in granting a directed verdict in favor of Florida. Giving all reasonable inferences to Agency and Fulkerson, there is a question of fact whether a fraudulent transfer occurred between T ruck and Agency. T here is evidence that the transfer of $2,235,401 represented the amount held in the customer deposit account on behalf of T ruck’s insureds and that Agency used this money to purchase insurance for T ruck’s insureds. T here is no evidence of any other transfer."

Kearney liquor store loses its license after selling alcohol to a minor who later died as a passenger in automobile accident. Nebraska Supreme Court affirms liquor license revocation because the defendant liquor store failed to prove that the minor's Canadian identification card that he had presented in the past to purchase alcohol was a valid identification card. Although the Commission permitted a community activist to speak to urge the Commission to revoke the store's license the District Court judge cured any error because she did not consider the citizen's comments when reviewing the Commission's revocation ruling. JCB Enters. v. Nebraska Liq. Cont. Comm., S-06-1373, 275 Neb. 797 When the district court conducts its review of a final decision of the Commission, it is required to make independent factual determinations. In its proceedings for review of a final decision of the Commission, the district court shall conduct the review de novo on the record of the agency. Id. In this case, the district court stated in its order that when it conducted its de novo review, it “specifically ha[d] not considered any evidence which was not received at the actual hearing in this matter which took place before the Commission.” T hus, any irregularities before the Commission were cured when the district court ignored R iibe’s comments in its de novo review of the record in the instant case.

Summary judgment for defendant in insured's breach of contract action against insurance broker for failing to purchase insurance reversed. Nebraska Supreme Court holds that summary judgment for insurance agent was inappropriate because the defendant did not prove whether the agent was a captive agent for the insurance company or whether he was an insurance broker, acting on behalf of the insured to acquire insurance. Broad v. Randy Bauer Ins. Agency, S-06-844, 275 Neb. 788 We conclude that an action for breach of contract to procure insurance is inappropriate when brought against an insurer’s agent who, within the scope of his or her authority, contracted on behalf of the disclosed principal and did not bind himself or herself personally. Specifically, an insurance agent’s mere promise to procure requested coverage through his sole principal is insufficient to create the agent’s personal liability because that promise is clearly within the scope of the agent’s authority. However, we will recognize a cause of action against a broker for breach of contract to procure insurance because the broker is the insured’s agent.

Justice Department to Monitor Elections in Colfax County Nebraska US Justice Department. The Justice Department today announced that on Tuesday, May 13, 2008, it will monitor elections in Colfax County, Neb., and Bergen County, N.J., to ensure compliance with the Voting Rights Act.Colfax and Bergen Counties are obligated to provide all election information, ballots and voting assistance information in Spanish as well as in English according to the Voting Rights Act. Colfax County Election Commissioner Rita Mundil never heard of any complaints and noted Colfax county is the only county in the State that offers bi-lingual ballots. Justice Department personnel will monitor polling place activities during voting hours at polling locations in these jurisdictions. Civil Rights Division attorneys will coordinate the federal activities and maintain contact with local election officials.Each year, the Justice Department deploys hundreds of federal observers from the Office of Personnel Management, as well as departmental staff, to monitor elections across the country. In calendar year 2006, for example, 966 federal observers and 575 Department personnel were sent to monitor 119 elections in 81 jurisdictions in 24 states. To file complaints about discriminatory voting practices, including acts of harassment or intimidation, voters may call the Voting Section of the Justice Department’s Civil Rights Division at 1-800-253-3931.More information about the Voting Rights Act and other federal voting laws is available on the Department of Justice Web site at

http://www.usdoj.gov/crt/voting/index.htm.

Nebraska Supreme Court allows expert in a medical malpractice case related to delayed treatment of a spinal cord injury to testify in his affidavit that had the defendant doctors not delayed diagnosing and treating the plaintiff's injury the plaintiff more likely than not would have experienced a better outcome from treatment. The Supreme Court distinguishes this proper opinion that a better outcome would result from giving improper opinions that the plaintiff lost a chance to recover. Rankin v. Stetson, S-07-073, 275 Neb. 775 an opinion framed in terms of loss of chance would not sustain Rankin’s burden of establishing that the defendants proximately caused her injury. We also note that Nebraska has not recognized the loss-of-chance doctrine. See Steineke v. Share Health Plan of Neb., 246 Neb. 374, 518 N.W.2d 904 (1994). Gross’ statements that Rankin would have had a “better prognosis” and a “chance of avoiding permanent neurological injury” do not equate with an opinion that it was more likely than not that Rankin would have had a better outcome if she had undergone surgery immediately following her injury. Opinions dealing with proximate causation are required to be given in terms that express a probability greater than 50 percent. Thus, Gross’ statements do not establish the required certainty to prove causation. While a 49-percent chance of a better recovery may be medically significant, it does not meet the legal requirements for proof of causation. The terms “chance” and “prognosis” by definition do not establish the certainty of proof that is required. On the other hand, an opinion expressed in terms that it is more likely than not that a plaintiff “would have had a better outcome” is sufficiently certain to establish causation. A better outcome is not the same as a chance of a better outcome. Rather, it is a definite result. In this case, there were statements within Gross’ affidavit that were sufficient to establish causation. When reviewing a summary judgment, we view Gross’ affidavit in a light most favorable to Rankin and give her the benefit of all reasonable inferences from such evidence. Contrary to the defendants’ assertion, Gross’ affidavit espoused more than a mere “loss of chance.” Gross opined that early surgical decompression of the spinal cord would more likely than not have led to an improved outcome for Rankin. This evidence established causation for the purpose of opposing the defendants’ motion for summary judgment on such issue. Thus, Gross’ affidavit satisfied the requirement that Rankin produce some expert testimony to establish that the actions or inactions of the defendants were a proximate cause of Rankin’s injury. Nebraska Advance Sheets Ran kin v. Stetson 787 Cite as 275 Neb. 775

Nebraska Supreme Court reverses accounting malpractice verdict that was against accountant in 1031 exchange dispute. Frank v. Lockwood, S-06-731, 275 Neb. 735 A Western Nebraska businessman sued his accountant after he sold some real estate but decided not to escrow the entire sale amount for a section 1031 exchange for other property. The accountant earlier advised him that he would be able to offset some of his gain from the real estate sales with his corporation's losses. The businessman was not able to offset the real estate sale income. The IRS gave the plaintiff an extension to file his tax return until October at the accountant's request but the accountant failed to advise the businessman to pay estimated taxes by the regular April 15 due date. The businessman incurred substantial penalties and interest because he did not file and pay his return until December, almost 2 months later than the extended due date. The Scotts Bluff County District Court jury awarded the businessman a verdict of $37000, all of his IRS penalties and interest. Nebraska Supreme Court reverses, holding the plaintiff businessman failed to prove that the IRS interest payment damaged him. The plaintiff should have proven that he could not have borrowed the unpaid tax amount at a rate lower than the IRS rate. While the Nebraska Supreme Court upholds the verdict for the IRS penalties, the court sends it back to the District Court to determine and award only for penalties related to failing to pay the taxes. Justice Connolly dissents. Frank v. Lockwood, S-06-731, 275 Neb. 735 The plaintiff's failure to file the return on time is not the accountant's fault. The penalties incurred by the Franks in this case appear to have been of two types—those incurred because the Franks failed to pay taxes when due on April 15, 2002, and those incurred because the Franks failed to file their returns when due as extended to October 15. Under federal law, I.R.C. § 6651 (2000) provides in subsection (a)(1) that a taxpayer may be assessed a penalty for failure to timely file a return and provides in subsection (a)(2) that a taxpayer may be assessed a separate penalty for failure to timely pay taxes due. In addition, I.R.C. § 6654 (2000) provides that penalties may be assessed for underpayment of estimated taxes. Nebraska law provides for similar penalties for failure to timely file returns, Neb. Rev. Stat. § 77-2789 (Reissue 2003), and for underpayment of estimated taxes, 316 Neb. Admin. Code, ch. 20, § 007 (1998). there was sufficient evidence from which the jury could find that L ockwood was negligent in failing to advise the Franks to pay an estimate of their 2001 tax liability on April 15, 2002. the district court did not err in denying L ockwood’s motion for judgment notwithstanding the verdict with respect to any portion of the damages award that was attributable to penalties for the Franks’ failure to timely pay taxes.to the extent such penalties are penalties for failure to timely file returns, under the facts of this case, they are not recoverable as damages. However, to the extent such penalties are penalties for failure to timely pay the taxes, under the facts of this case, they are recoverable as damages. Because the evidence in the record does not allow us to determine what portion of the penalties are for late payment of the taxes which are recoverable, we find it necessary to remand this cause to the district court for a new trial limited to a determination of the portion of damages attributable to penalties imposed for failure to timely pay taxes and, upon a proper showing, awarding the Franks an amount of damages equal to penalties for failure to timely pay taxes.

Follow up: Referee hearing discipline case against Kearney attorney William Orr recommends public reprimand over failed coffee shop franchising venture. Kearney Hub. Kearney attorney Jeff Orr should be publicly reprimanded for violations he committed while representing Barista's Daily Grind, an Omaha attorney has recommended to the Nebraska Supreme Court. Waldine Olson, who is acting as referee in Orr's disciplinary proceedings, has ruled that Orr violated four of 13 ethical standards and provisions listed in the State Bar Association's Code of Professional Responsibility and Rules of Professional Conduct. (Click here to view Referee Waldine Olson’s 36-page referee’s report in the Jeff Orr discipline case. The Supreme Court case - filed against Orr in August 2007 by the Bar Association - involves Orr's work in drafting a franchise agreement and disclosure statement for Kearney coffee company Barista's and its owners, Steve Sickler and Cathy Mettenbrink. Sickler and Mettenbrink blame Orr's legal work for the failure of their franchised business last year. Olson recommended a public reprimand for Orr instead of probation or suspension in a referee's report filed May 7. Olson said Orr did not "knowingly" or "intentionally" engage in conduct that involved "dishonesty, fraud, deceit or misrepresentation." The referee said Barista's suffered "severe" consequences as a result of Orr's actions. "Although the exact nature and extent of the harm suffered by the clients was not addressed in detail, the evidence is clear and convincing that the consequences to the client were serious," Olson said. However, Olson said the Barista's case was an "isolated occurrence as opposed to a recurring pattern of misconduct" by Orr. The referee said Orr practiced law more than 40 years with no previous complaints. "The numerous letters from clients, business and community leaders, and members of the bar speak to his good standing and his reputation as a competent and ethical practitioner," Olson said. Orr's community service, including membership on the Supreme Court Task Force on Gender Fairness, also played a role in the disciplinary recommendation, the referee said. Following a March hearing, Olson filed a 36-page report May 7 that cleared Orr of nine misconduct allegations and found him in violation of four others. Olson said Orr took on the Barista's case knowing he was not competent to handle the work. "Not only had he never undertaken such a task previously, but also he was warned by an intellectual properties lawyer, whom he respected, that franchise law is 'pretty specialized,'" Olson said of Orr. In 2002, Sickler and Mettenbrink hired Orr to assist them in franchising their coffee shop concept. Orr told Sickler and Mettenbrink that he had experience in franchising businesses, Supreme Court records show. In March, Orr testified that he had experience in reading and reviewing franchise agreements and disclosure statements for companies such as Wendy's, Quizno's, Dairy Queen, McDonald's, Baskin-Robbins and Ford. However, Orr said during the hearing that he had never drafted a franchise agreement. In drafting Barista's franchise agreement, Orr said he relied heavily on a Quizno's agreement he had worked on previously. Orr said he did not research Nebraska law when he drafted Barista's agreement. "... Although he knew that certain aspects of franchising were governed by the Federal Trade Commission, he did not adequately prepare himself for the task," Olson said of Orr. Supreme Court documents show Kearney attorney Bradley Holbrook helped Orr get a second opinion on the Barista's documents from Omaha attorneys Robert Kirby and Gary Batenhorst. The Omaha attorneys told Orr and Holbrook the disclosure statement did not comply with FTC rules. Batenhorst characterized deficiencies in the disclosure statements as "major," court documents said. In his recommendation to the Supreme Court, Olson said Orr attempted to correct deficiencies in the disclosure statement and there was no evidence that Orr attempted to conceal his errors. "Orr disclosed to the client that the documents he had drafted would require considerable changes and they could not be used to sell additional franchises until the changes had been made," Olson said. "The evidence suggests a good faith, although misguided, attempt to resolve the problem." Orr has practiced law in Kearney since 1967 and is a partner and shareholder of Jacobsen, Orr, Nelson & Lindstrom P.C. Barista's closed its two Kearney locations at 4402 Second Ave. and 2400 Central Ave. last summer after Sickler and Mettenbrink defaulted on loan payments and lost ownership of their properties to Kearney State Bank & Trust Co. in a foreclosure. Before learning that their disclosure statement did not comply with FTC rules, Barista's sold 21 franchises between 2003 and 2006. Barista's Daily Grind currently operates in west Kearney under new ownership. The Supreme Court will decide whether to accept Olson's recommendation. Public reprimands can take various forms, including a press release to the media.

Case summary: Omaha attorney gets to take her Third offense driving while intoxicated case to the Nebraska Supreme Court. Nebraska Judicial Branch Case Summaries. S-07-0464, State (Appellant) v. Willow T. Head Douglas County, Judge Peter C. Bataillon Attorneys: James M. Masteller (County Attorney’s Office) (Appellant) --- James E. Schaefer, Jill A. Daley (Gallup & Schaefer) Criminal: DUI, 3rd offense Proceedings below: The trial court found two valid prior convictions and enhanced Head’s DUI to 3rd offense. The State filed an application for error proceedings which was granted. The Nebraska Court of Appeals in 2006 sent the case back to the District Court because Head's motion to quash evidence of the prior convictions was not ripe for review. State v. Head, 712 N.W.2d 822, 14 Neb.App. 684 (Neb.App. 04/18/2006) The Court of Appeals reversed the decision of the district court and remanded with directions. See State v. Head, memorandum opinion, A-07-0464, January 3, 2008. Head filed a petition for further review which was granted by the Nebraska Supreme Court. Issues on Review: The court of appeals (1) had no statutory authority to remand for further proceedings under Neb. Rev. Stat. § 29-2316 because jeopardy attached; (2) erred in relying on State v. Keen, 272 Neb. 123 (2006) to reach the finding that the district court improperly rejected Head’s 2002 DUI conviction based on its interpretation of State v. Loyd, 265 Neb. 232 (2003) as State v. Keen did not overrule State v. Loyd.

Case summary: Omaha dentist appeals license revocation. The Nebraska Supreme Court in 2001 had disciplined the dentist who was also a member of the Bar for narcotics abuse. Nebraska Judicial Branch. S-07-0588, Shaun O. Parker, D.D.S., Appellant v. State of Nebraska, Appellee Lancaster County, Judge Jeffre CheuvrontAttorneys: Jerry Katskee (Appellant); Jon Bruning and Lisa Anderson (Attorney General’s Office). Civil: Revocation of professional license Proceedings Below: Parker filed a petition for review with the district court seeking to review the decision by the Chief Medical Officer/Director (CMO) for the Department of Health and Human Services Regulation and Licensure (DHHS), which decision revoked his license to practice dentistry. The district court affirmed the agency's findings of fact, conclusions of law, and order, which order revoked Parker's license to practice dentistry in Nebraska. Issues: On appeal, Parker argues: (1) Whether Parker was denied procedural due process by DHHS in the crucial stages of the proceedings against him, to wit: (a) the investigation of the complaint derived from a confidential informant; (b) the presence of the attorney general at the closed session investigation; (c) the subsequent recommendations by the CMO; (2) whether the punishment meted out to Parker, viz., the revocation of license to practice his profession, fit the nature of the alleged infraction; (3) whether the district court erred in not considering the impact of the failure of the hearing officer to consider the arguments of Parker on constitutional issues by remanding the case to the CMO for further proceedings as permitted by Neb. Rev. Stat. § 84-917(5)(b)(i); (4) whether the district court erred in its order by holding that its de novo review presented clear and convincing evidence that Parker engaged in unprofessional conduct and that the discipline imposed was appropriate under the circumstances; (5) whether the entire administrative procedure is flawed and grants arbitrary and dictatorial powers to the CMO; (6) whether the findings of fact and conclusions of law of the CMO were arbitrary, capricious, and unreasonable; and (7) whether the district court erred in its order by not finding the administrative findings of fact and conclusions of law were arbitrary, capricious, and unreasonable.

County employee Douglas County fired for dropping ice wins reinstatement. Pierce v. Douglas Cty. Civil Serv. Comm., S-07-252, 275 Neb. 722 Douglas County facilities engineer and International Union of Operating Engineers, Local 571 member Nathan Pierce could not go unescorted near a co-worker at the Douglas County Hospital because he had angry confrontation with her before. Later as he went through her area he dropped a cup of ice near her nurse's station. Douglas County terminated him. Nebraska Supreme Court reverses the termination ruling and orders him reinstated because the District Court had jurisdiction to rule on Pierce's claim that the county board breached the collective bargaining agreement with the union. Also the violation if any was not serious enough to merit termination. "the district court had jurisdiction over Pierce’s claims that the Department breached the collectiver bargaining agreement (CBA) as far as those allegations were relevant to Pierce’s termination. However, we need not reach the merits of Pierce’s claims under the CBA. We conclude that the evidence shows the Department did not consider Pierce’s alleged conduct to be a serious violation of the Commission’s personnel manual, warranting termination. We therefore reverse the district court’s order affirming Pierce’s termination "

Nebraska Supreme Court upholds subrogation waiver clause between owner and contractor when a television tower under construction collapsed, also the contractor was liable for damage the construction work and other property to the subrogated insurance company, even when the subrogated insurance company complained that gross negligence caused the accident. Lexington Ins. Co. v. Entrex Comm. Servs., S-06-1452, 275 Neb. 702 "the danger with exculpatory clauses is that a party injured by another’s gross negligence will be unable to recover its losses. But such danger is not present in cases involving waivers of subrogation because the waiver only applies to losses covered by insurance, so “there is no risk that an injured party will be left uncompensated.”..Waivers of subrogation serve in avoiding disruption of construction projects and reducing litigation among parties to complicated construction contracts. Concluding that waivers of subrogation cannot be enforced against gross negligence claims would undermine this underlying policy by encouraging costly litigation to contest whether a party’s conduct was grossly negligent. Therefore, we conclude that “public policy favors enforcement of waivers of subrogation even in the face of gross negligence [claims]..the majority approach furthers the policy underlying the use of waiver of subrogation clauses in construction contracts. That court explained that a waiver of subrogation is useful in construction contracts because it avoids disrupting the project and eliminates the need for lawsuits.37 The majority approach furthers this purpose. Applying the waiver to all losses covered by the owner’s property insurance policy eliminates litigation over liability issues and whether the claimed loss was damage to the Work or non-Work property."

The Hall County District Court judge hearing a divorce case sent the attorneys his ruling and directed the wife's lawyer to prepare the decree. Husband filed a motion for new trial and then appealed the case within 30 days of the decree date but more than 30 days after the trial judge hearing a divorce case made his ruling in a letter and directed the wife's attorney to prepare the decree. The court clerk file-stamped the judge's letter-ruling. Nebraska Supreme Court, J Gerrard, rules the decree date is the correct date to start the 30 day appeal period running and admonishes the court clerk to not file this paperwork in the court file. Wagner v. Wagner, S-06-427, 275 Neb. 693. This case illustrates why trial courts should take care to ensure that regardless of how a final judgment is prepared, only the signed final order is filed with the clerk of the court. The clerk should not file stamp any document prepared by the trial court that is not a court order intended to have legal effect. But a filing that does not finally dispose of a case does not become a final, appealable order just because it is file stamped, and the trial court’s order in this case was clearly not meant to be a final determination of the rights and liabilities of the parties. Therefore, we conclude that the letter in this case was not a final, appealable order, and reverse the decision of the Court of Appeals.

Nebraska Supreme Court holds that the trial court should decide whether a dispute should go to arbitration, and in this case between an importer and a distributor of coffee, the defendant had waived arbitration when it filed pleadings in the court case. Good Samaritan Coffee Co. v. LaRue Distributing, S-07-300, 275 Neb. 674 "a waiver defense raised in the context of prior litigation-related activity is presumed to be decided by a court, rather than an arbitrator. A nd shifting of this issue to an arbitrator is only proper where there is “‘clea[r] and unmistakabl[e] evidence’” of such an intent in the parties’ arbitration agreement. T he arbitration agreement at issue in this case fails to meet this standard. party seeking arbitration may be found to have waived its right to arbitration if it “‘(1) knew of an existing right to arbitration; (2) acted inconsistently with that right; and (3) prejudiced the other party by these inconsistent acts.’” E ach of these factors strongly weighs in favor of a finding that LaRue has waived its right to arbitration in this case."

In another guaranty dispute, the Nebraska Supreme Court reverses the Nemaha County District Court in party when the Supreme Court finds a guarantor's obligation to guarantee the payment of two promissory notes his son and daughter-in-law signed extended only to his unconditional promise to guarantee payment on the first promissory note, but not to the Bank's extension of credit to the son and daughter-in-law from a second promissory note when the primary borrowers showed they were creditworthy according to the financial disclosures they made to the bank. The Nemaha County Court found the guarantor liable for the entire indebtedness, including the second extension of credit. The District Court dismissed the guarantor entirely. The Supreme Court holds the guarantor liable for the initial indebtedness, but not for the extension. First Nat. Bank of Unadilla v. Betts, S-07-023, 275 Neb. 665