Opinion
7:04CV5004.
March 17, 2005
MEMORANDUM AND ORDER
This memorandum and order is entered sua sponte pursuant to Nebraska General Rule 1.1(c) and the court's inherent power to regulate cases in the interest of securing a just and expeditious resolution.
On November 24, 2004, the plaintiff advised the court that this case was settled on November 13, 2004. Filing 34. Based on the pleadings, it appears the plaintiff suffered an injury in the course of his employment for B.D.R. Transport Inc. ("BDR") and received workers' compensation benefits from his employer's workers' compensation carrier, AIG Insurance Company ("AIG"). BDR and AIG claim a subrogated interest in any amount the plaintiff receives from the defendants herein, who were allegedly at fault for the underlying accident.
Unfortunately, the plaintiff did not comply with Nebraska law when filing this lawsuit in that the employer was not named as a party to this action. Neb. Rev. Stat. § 48-118 provides:
Nothing in the Nebraska Workers' Compensation Act shall be construed to deny the right of an injured employee or of his or her personal representative to bring suit against such third person in his or her own name or in the name of the personal representative based upon such liability, but in such event an employer having paid or paying compensation to such employee or his or her dependents shall be made a party to the suit for the purpose of reimbursement, under the above provided right of subrogation, of any compensation paid.
Neb. Rev. Stat. § 48-118. Neither BDR nor AIG were parties at the time of the November 13, 2004 mediation; neither attended the mediation; and the resulting settlement disposed of only those "issues in dispute between the parties." Filing 34.
Plaintiff's counsel advised the court that a motion for equitable distribution of the settlement proceeds would be filed by December 15, 2004. Filing 34. That motion was not filed until January 4, 2005, and although the plaintiff served the motion on AIG's counsel, as of January 4, 2005 BDR and AIG were still not parties to the suit. The plaintiff never sought leave to make them parties to this action. Filing 35. The plaintiff's motion for equitable distribution therefore created an obvious due process problem: The court cannot rule on BDR and AIG's equitable entitlement to settlement proceeds unless these entities are named as parties who can thereby be afforded an opportunity to respond.
That problem was remedied by the efforts of AIG and BDR in moving to intervene. Filing 39. The plaintiff responded by advising the court that he had "no objection to the intervention of these company's [sic], and would not have objected had they sought to intervene earlier." Filing 40.
AIG and BDR were given until February 25, 2005 to respond to the plaintiff's motion for equitable distribution. Filing 41. BDR and AIG timely filed a response to the plaintiff's motion and also filed a motion for distribution of settlement proceeds under Vermont law. Filing 43. The plaintiff was given until March 15, 2005 to reply to the brief of AIG and BDR in opposition to the plaintiff's motion and to file plaintiff's opposition to AIG and BDR' motion for application of Vermont law. With that March 15, 2005 response, the plaintiff filed another motion: a motion to strike significant portions of the affidavit of Robert Allen offered by AIG and BDR in support of its motion. Filing 50.
This motion practice could theoretically continue for some time. However, from the plaintiff's perspective, the actual value of his final settlement still remains unknown and he may still be awaiting any payment of settlement proceeds.
Under this court's local rules:
AIG and BDR are afforded five days, or until March 25, 2005, to reply to plaintiff's opposition to their motion to apply Vermont law, (NECivR 6.1 (b) (c) and 7.1 (c));
AIG and BDR are afforded ten days, or until April 1, 2005 to respond to the plaintiff's motion to strike their evidence, (NECivR 6.1 (b) (c) and 7.1 (b)(1)(B)); and
The plaintiff is afforded five days thereafter, potentially to April 11, 2005, to reply to AIG and BDR's response to plaintiff's filing 50 motion to strike, (NECivR 6.1 (b) (c) and 7.1 (c)).
However, "a judge of this court may deviate from these rules or from any other rules or procedures adopted by this court when the interests of justice will be served by such deviation." NEGenR 1.1(c). I conclude that for the benefit of the plaintiff and defendant who settled over four months ago and still await closure, the response opportunities and deadlines should be altered.
IT THEREFORE HEREBY IS ORDERED:
1. AIG and BDR shall have until March 25, 2005 to file any reply to plaintiff's filing 48 opposition to the filing 43 motion of AIG and BDR to apply Vermont law;
2. AIG and BDR shall have until March 25, 2005 to file any response to the plaintiff's filing 50 motion to strike;
3. The plaintiff shall not file any response to any filings made by AIG and BDR under paragraphs (1) and (2) of this order absent leave of the court upon good cause shown; and
4. The plaintiff's motion for Equitable Distribution under Neb. Rev. Stat 48-118, filing 35, and the motion filed by AIG and BDR for Distribution under Vermont Statute 21 Sec. 624, filing 43, shall be deemed submitted as of March 25, 2005.