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Bacon v. Kiewit Construction Co.

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Date: 
Wednesday, May 30, 2012

 

S-11-0194 Ronald “Tim” Bacon (Appellant) v. Kiewit Construction Co., DBI/SALA, a/k/a DB Industries, Inc. and Ridgetop Holdings, Inc., Davis Erection Co., Inc., employer; and Liberty Mutual Insurance Group, its workers compensation carrier

Douglas County, Judge James T. Gleason

Attorneys: James E. Harris, Britany S. Shotkoski (Harris Kuhn LLP) (for Appellant) --- Julie A. Martin (Nolan Olson & Stryker PCLLO) (for Appellees Davis Erection Co., Inc., and Liberty Mutual Group)

Civil: Credit against settlement proceeds

Proceedings below: The trial court denied Davis and Liberty Mutual Group’s motion for credit with respect to the settlement proceeds Bacon received from Kiewit but granted the motion for future credit with respect to the settlement proceeds Bacon received from Ridgetop.

Issues: The trial court erred in (1) granting Davis and Liberty Mutual Group’s motion for credit against the settlement proceeds Bacon received from Ridgetop; (2) determining that subrogation principles do not apply to the case and any claim which Appellees have against the settlement proceeds received by Bacon by necessity must arise from application of Neb. Rev. Stat. § 48-118; (3) failing to find that the parent subsidiary relationship between Ridgetop and Davis creates a duty as a matter of law and failing to find Liberty Mutual was estopped and precluded from asserting subrogation against Ridgetop; (4) failing to find that the Liberty Mutual insurance policy for Davis contained an anti-subrogation endorsement which effectively waived any right of recovery against Ridgetop; (5) failing to find that Liberty Mutual expressly waived any right of recovery against the proceeds from the Ridgetop settlement; (6) failing to find that treating the third-party recovery as an “advance payment of the employer on account of any future installments of compensation” only applies when the recover against the third party was made by the employer; (7) In the alternative if Davis and Liberty Mutual are entitled to a future credit against the Ridgetop Settlement proceeds, the trial court erred in failing to reduce the amount to be treated as an “advance payment by the employer on account of any future installment of compensation” by the attorney’s fees and costs expanded by Bacon in recovering against Ridgetop; (8) In the alternative, if Davis and Liberty Mutual are entitled to a future credit against the Ridgetop Settlement Proceeds, the trial court erred in failing to reduce the amount to be treated by an “advance payment by the employer on account of any future installment of compensation” by the $437,500 that the trial court previously awarded to Kiewit out of the Ridgetop settlement.

Cross-Appeal: The trial court erred in failing to find that Davis and Liberty Mutual were entitled to a credit against Bacon’s settlement with Kiewit. The trial court erred in finding that there was no evidence in the record to show that Kiewit was not a statutory employee of Bacon for purposes of the motion for credit. Liberty Mutual should not be prevented from seeking the motion for credit against Bacon’s settlement with Kiewit based on the fact that Liberty Mutual insured both Kiewit and Davis under separate and distinct policies.

This page was last modified on Friday, November 9, 2012