Opinion
NO. 8:21-CV-49
2023-10-26
Jessica VANICEK, Personal Representative of the Estate of Ryan T. Vanicek, Plaintiff, Lyman-Richey Corporation, d/b/a Central Sand and Gravel Company, Plaintiff-Intervenor, v. Kenneth E. KRATT and Sandair Corporation, Defendants.
Larry R. Demerath, Demerath Law Firm, Omaha, NE, for Plaintiff. Bryan S. Hatch, Jarrod D. Reece, Likes, Meyerson Law Firm, Omaha, NE, for Plaintiff-Intervenor. Matthew D. Quandt, Thomas J. Culhane, Erickson, Sederstrom Law Firm, Omaha, NE, for Defendants.
Larry R. Demerath, Demerath Law Firm, Omaha, NE, for Plaintiff.
Bryan S. Hatch, Jarrod D. Reece, Likes, Meyerson Law Firm, Omaha, NE, for Plaintiff-Intervenor.
Matthew D. Quandt, Thomas J. Culhane, Erickson, Sederstrom Law Firm, Omaha, NE, for Defendants.
MEMORANDUM AND ORDER ON PLAINTIFF-INTERVENOR'S MOTION TO DETERMINE FAIRNESS AND REASONABLENESS OF SETTLEMENT
Brian C. Buescher, United States District Judge.
This case arises out of the untimely death of Ryan Vanicek on September 20, 2019, in a traffic accident. Filing 30. Lyman-Richey Corporation (LRC), Vanicek's former employer, has made and continues to make workers' compensation payments to Vanicek's Estate and is therefore subrogated to Vanicek's Estate's claim against Defendants under Nebraska Revised Statute § 48-118. Filing 9. Defendants admitted liability in this case, Filing 35 at 4 (¶ 18), but the parties dispute the damages that are owed and may be recoverable. See generally Filing 114; Filing 124. This matter is before the Court because plaintiff-intervenor
LRC moves the Court to compel plaintiff Vanicek's Estate to accept a settlement offered by defendants Sandair Corporation and Kenneth E. Kratt under Nebraska Revised Statute § 48-118.04(1)(b). Filing 138. LRC and Defendants contend that the Court should compel Vanicek's Estate to accept a $5 million settlement to resolve all claims against Defendants. Filing 139; Filing 149. For the reasons stated below, the Court grants the Motion to Determine Fairness and Reasonableness of Settlement and orders that Vanicek's Estate's claim against Defendants be settled for $5 million.
I. INTRODUCTION
A. Factual Background
Ryan Vanicek died on September 20, 2019, while driving a Chevrolet Silverado on Interstate 80 in Buffalo County, Nebraska, when a Peterbilt tractor with a trailer collided with Vanicek's vehicle. Filing 76 at 2 (¶ 1). The Peterbilt tractor was driven by defendant Kratt but was owned by defendant Sandair. Filing 76 at 2 (¶ 1). Defendants admit that at the time of the collision Kratt was acting within the course and scope of his employment with Sandair. Filing 30 at 4 (¶ 15); Filing 35 at 3 (¶ 15). Defendants further "admit that they are liable for the death of Ryan Vanicek." Filing 35 at 4 (¶ 18); Filing 35 at 5 (¶ 27). There is conflicting evidence as to whether Vanicek suffered "pre-impact fear and apprehension and postimpact conscious pain and suffering," for which Vanicek's Estate can recover. Filing 142. The Court previously refused to grant summary judgment to resolve these issues in favor of Defendants. Filing 142.
The parties also disagree on the recoverable sum of economic loss damages. Vanicek's Estate's expert measured "total pecuniary losses" at $4,113,271, and Defendants' expert estimated total economic loss to be somewhere between $1,455,905 and $1,526,075. Filing 140-8 at 5; Filing 140-9 at 6. Defendants have settled other claims arising from the collision that killed Vanicek for $5,540,979.54, leaving Defendants with $5,459,020.46 remaining on their liability insurance policy. Filing 140-14 at 2-3 (¶¶ 18-19). There is another outstanding personal injury claim arising from the collision that killed Vanicek, which would also go against Defendants' insurance policy limits. Filing 140-14 at 3 (¶ 20).
At the time of this Motion, Vanicek's former employer LRC has paid over $260,000 in workers' compensation benefits to Vanicek's Estate. Filing 140-11; Filing 140-12; Filing 140-13. Neither party specifically calculated the estimated recoverable sum for pre-impact fear and apprehension or post-impact conscious pain and suffering. However, Defendants offered an affidavit from Steve Gealy, a Nebraska attorney with over 40 years of litigation experience, that opined "with reasonable probability, that the fair and reasonable settlement value of this case is in the range of $3,500,000 to $4,750,000." Filing 140-2 at 3 (¶ 12). Vanicek's Estate offered an affidavit from Justin Demerath, who LRC alleges is the law partner and son of Vanicek's Estate's counsel, Larry Demerath. Filing 153-3; Filing 163 at 8. Justin Demerath, an attorney admitted to practice in Texas, Nebraska, and Colorado, opined that "considering the evidence related to the elements of damages allowed by Nebraska law, a Jury could return a verdict in this case in excess of $10,000,000" and that a "fair and reasonable settlement value of this case far exceeds $4,750,000." Filing 153-3 at 5 (¶¶ 14-15).
On December 21, 2022, Magistrate Judge Nelson ordered the parties to participate in mediation scheduled for May 3, 2023. Filing 96. He further ordered that "counsel shall ... [c]onfer with opposing
counsel to ... [d]isclose and resolve any problematic circumstances that might give rise to a contention of lack of full settlement authority or a lack of objective good faith ... [and] [e]xchange proposals for settlement[.]" Filing 96 at 2. After the mediation, on June 12, 2023, Defendants offered $4.5 million to settle all claims in this case, Filing 140-3, which Vanicek's Estate rejected. Filing 140-4. LRC suggested that the parties settle for $5 million by July 14, 2023, Filing 140-4, to which Defendants' counsel replied, "If it resolves all claims, defendants would be willing to settle for the $5,000,000 proposed." Filing 140-5. Counsel for Vanicek's Estate never responded to this increased settlement offer. Filing 140-1 at 2 (¶ 9).
B. Procedural Background
The original Complaint was filed on February 12, 2021. Filing 1. The Second Amended Complaint was filed on May 30, 2021. Filing 30. This Second Amended Complaint alleges a wrongful death claim brought by Jessica Vanicek, the Personal Representative for the Estate of Ryan Vanicek, among other claims. Filing 30 at 6. The Court granted partial summary judgment in favor of Defendants on negligent infliction of emotional distress (NIED) claims brought in the Second Amended Complaint by other family members of Ryan Vanicek. Filing 86. The Court later denied a Motion for Partial Summary Judgment filed by Defendants seeking "judgement as a matter of law on Vanicek's Estate's claims for decedent's pre-impact fear and apprehension and postimpact conscious pain and suffering." Filing 114. Regarding pre-impact fear and apprehension, the Court noted that the case "presents a genuine issue of material fact that must be resolved by the factfinder at trial." Filing 142 at 9. However, the Court also noted that "there is no direct evidence that Vanicek saw Defendants' semi-truck fast approaching," but only a "circumstantial 'basis upon which the jury certainly need not, but could if it wished, find that [Vanicek] apprehended and feared his impending death during the' seconds leading up to the collision." Filing 142 at 9 (citation omitted). Moreover, regarding post-impact conscious pain and suffering, the Court noted that "the weight of the evidence does not suggest Vanicek experienced 'conscious' pain and suffering following impact," but "[o]n summary judgment, the district court is not to weigh evidence or draw inferences." Filing 142 at 13 (citation omitted).
Thus, Defendants are liable to Vanicek's Estate for economic loss damages attributable to the wrongful death of Ryan Vanicek in the range of about $1.5 million to about $4.1 million. In addition, it is possible although unlikely that the jury could rely on circumstantial evidence to award Vanicek's Estate additional damages based on pre-impact fear and apprehension and post-impact pain and suffering. On August 17, 2023, plaintiff-intervenor LRC moved the Court to "find[ ] that it would be fair and reasonable to settle the claims at issue in exchange for a payment from the Defendants in the amount of $5,000,000.00" and "order[ ] that the claim be settled on that basis." Filing 138.
II. ANALYSIS
A. Applicable Standards
"Because this case is before [the Court] on diversity jurisdiction, [the Court] must apply the substantive law of the forum state." Principal Nat'l Life Ins. Co. v. Rothenberg, 70 F.4th 1046, 1052 (8th Cir. 2023) (internal quotations and citation omitted). As the Court determined in a previous order, Nebraska law applies in this case. Filing 47 at 5 ("[T]he Magistrate Judge concluded that Nebraska had the most significant interest .... The Court finds that the Magistrate Judge's ruling is not contrary to law or clearly erroneous."). B. The Settlement Is Fair and Reasonable
1. LRC's Settlement with Defendants Is Enforceable Against Vanicek's Estate Because It Is Fair and Reasonable
The parties agree that the Court has the authority under Nebraska law to compel settlement in this case. Filing 139 at 8-9; Filing 153 at 10 (Vanicek's Estate acknowledging that "[i]t is well settled in Nebraska law that the court in which an action is pending against a tortfeasor that involves workers' compensation subrogation can, in the absence of agreement between the parties, determine a fair and reasonable settlement"). LRC and Defendants contend that the $5 million settlement offered by Defendants is fair and reasonable because Defendants have nearly exhausted their insurance policy and because Vanicek's Estate could realistically recover far less than $5 million at trial. Filing 139 at 9-12. Vanicek's Estate contends that $5 million is not a fair and reasonable settlement amount because Vanicek's Estate could end up recovering considerably more than $5 million and because Defendants have assets other than the insurance policy from which Vanicek's Estate alleges it could recover. Filing 153 at 6-7, 13-14. The Court agrees with LRC and Defendants.
Under Nebraska law, employers who pay workers' compensation are subrogated to their injured employees' claims against third-party tortfeasors. The statute provides:
When a third person is liable to the employee or to the dependents for the injury or death of the employee, the employer shall be subrogated to the right of the employee or to the dependents against such third person.
...
[I]n 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 right of subrogation, of any compensation paid. Neb. Rev. Stat. § 48-118; see also Kroemer v. Omaha Track Equip., L.L.C., 296 Neb. 972, 898 N.W.2d 661, 665 (2017) ("[Section] 48-118 grants an employer who has paid workers' compensation benefits to an employee injured as a result of the actions of a third party a subrogation interest against payments made by the third party."). Under this statute, LRC is subrogated to Vanicek's Estate's claim against Defendants because LRC has "paid [and continues] paying compensation to" Vanicek's Estate. Filing 153 at 12 ("[T]here is no objection from the Plaintiff that Plaintiff-Intervenor has paid a certain amount of benefits.").
Moreover, in disputes between the subrogated employer and the employee about whether to accept a settlement offer, the statute allows the Court to force acceptance of a settlement if the offer is "fair and reasonable." The statute provides:
(1) A settlement of a third-party claim under the Nebraska Workers' Compensation Act is void unless:
(a) Such settlement is agreed upon in writing by the employee or his or her personal representative and the workers' compensation insurer of the employer, if there is one, and if there is no insurer, then by the employer; or
(b) In the absence of such agreement, the court before which the action is pending determines that the settlement offer is fair and reasonable considering liability, damages, and the ability of the third person and his or her liability insurance carrier to satisfy any judgment.
Neb. Rev. Stat. § 48-118.04; see also Kroemer, 898 N.W.2d at 665 ("[A] settlement of a third-party claim is void under § 48-118.04(1) unless the settlement is either agreed upon in writing by the employee
and employer (or its insurer) or determined by the court to be fair and reasonable."). In effect, the statute allows Nebraska courts to compel settlement where either the injured employee-plaintiff (or his estate) or the subrogated employer-plaintiff agree to settlement terms with the third-party defendant, but the other plaintiff objects, so long as the trial court determines that the settlement is fair and reasonable. The decision to compel settlement is reviewed for abuse of discretion. See id. at 666.
The Supreme Court of Nebraska has upheld a trial court's decision to compel the subrogated employer-plaintiff to accept a settlement between the employee-plaintiff and the third-party defendant:
After consideration of the relevant factors, we cannot say that the district court abused its discretion in finding the settlement to be fair and reasonable. Although there was potential for a large verdict in Kroemer's favor, he accepted a greatly reduced settlement due to concerns that he would receive nothing if a jury determined that his comparative negligence was 50 percent or more. We cannot fault him for declining to take this gamble.
Kroemer, 898 N.W.2d at 666.
There are two distinctions between Kroemer and the present case. First, in Kroemer, it was the subrogated employer-plaintiff who challenged the settlement between the employee-plaintiff and the third-party defendant, while in this case it is the decedent employee's estate that is challenging the settlement between the employer-plaintiff and the third-party defendant. However, the Nebraska statute makes clear that "[e]ach party," meaning "the employee or his or her personal representative [and] the employer or his or her workers' compensation insurer," "shall have an equal voice in the claim and the prosecution of such suit [against a third-party defendant]." Neb. Rev. Stat. § 48-118.01. The Court concludes that "an equal voice in the claim and the prosecution of such suit [against a third party]" necessarily entails the ability to settle the claims. In other words, either the subrogated employer-plaintiff or the employee-plaintiff can bind the other to a settlement with a third-party defendant, so long as a court finds the settlement "fair and reasonable." In addition, as discussed above, Vanicek's estate expressly acknowledged the Court's authority under the statute to enforce a settlement. Filing 153 at 10 ("It is well settled in Nebraska law that the court in which an action is pending against a tortfeasor that involves workers' compensation subrogation can, in the absence of agreement between the parties, determine a fair and reasonable settlement.").
Second, in Kroemer, determining liability was the main issue, whereas the sum of damages recoverable was largely fixed. 898 N.W.2d at 665 ("Kroemer's expert valued Kroemer's claim between $850,000 to $1,250,000. [The subrogated employer plaintiff's] expert agreed with an assessment of damages set forth in a demand letter valuing the case at $858,989.86."). Here, Sandair has already admitted liability, and the main issue is determining the sum of recoverable damages. However, in both Kroemer and the present case, recoveries below and above the settlement amount were possible: in Kroemer, the damages could have been as low as $0 or as high as $1.25 million, and in this case, as discussed above, the damages could be as low as $1.4 million or in excess of $10 million. Therefore, Kroemer is not distinguishable from the present case simply because different aspects of the cases— liability rather than sum of damages— make the outcomes uncertain.
Vanicek's Estate argues that "especially given the fact that Defendant Sandair apparently
has substantial additional assets, a Plaintiff should not be obliged to just accept a settlement of damages within policy limits if a Defendant has additional assets upon which to satisfy any judgment." Filing 153 at 8; see also Filing 153-2 at 4 (indicating that Sandair's payroll expenses in 2019 exceeded $22 million and that Sandair owns 234 tractors and 270 trailers). Vanicek's Estate further argues that "the real issue or intent of that series of statutes is to assure that the employer and/or the comp [sic] insurance carrier gets reasonably reimbursed for their expended benefits payments where there are not adequate 'deep pockets' in the at fault third party." Filing 153 at 12. Vanicek's Estate is correct that the statute requires the Court to "consider[ ] ... the ability of the third person and his or her liability insurance carrier to satisfy any judgment." Neb. Rev. Stat. § 48-118.04(1)(b). However, Vanicek's Estate does not show that defendant Sandair has any source of money apart from the insurance policy from which it could pay money damages, nor does it show the value of defendant Sandair's tractors or trailers or that this property could be attached to satisfy a money judgment. In other words, Vanicek's Estate failed to show that "the ability of [Defendants] and [the] liability insurance carrier to pay was not an impediment to a greater settlement." Kroemer, 898 N.W.2d at 665. Therefore, the Court finds that Kroemer and Nebraska Revised Statute section 48-118.04(1)(b) are informative in this case.
Like in Kroemer, the Court "cannot fault" LRC in the present case for "declining to take th[e] gamble" that, after this litigation ends, Defendants will still have insurance coverage to pay Vanicek's Estate and compensate LRC's subrogation interest. 898 N.W.2d at 666. As discussed above, Defendants only have $5.4 million remaining on their insurance policy, and there is another outstanding personal injury claim against Defendants stemming from the same event which could deplete the policy. Defendants likely also have other expenses such as the cost of attorneys' fees. In addition, even if Defendants' insurance policy is not depleted by the time there is a judgment in this case, the jury might award a verdict in excess of the remaining $5.4 million in coverage. Thus, the Court finds that LRC's desire for a settlement within Defendants' remaining insurance policy limits is reasonable.
Under Neb. Rev. Stat. § 48-118.04(1)(b), the plain language of the statute allows this Court to compel settlement under these circumstances if the settlement is fair and reasonable. After considerable review, the Court concludes that a $5 million settlement in this case is fair and reasonable. As discussed above, the economic loss estimates proffered by the parties range from about $1.5 million to about $4.1 million. Even though the Court found genuine issues of material fact as to whether Vanicek suffered pre-impact fear and apprehension and whether he endured post-impact conscious suffering, the Court also noted that "there is no direct evidence that Vanicek saw Defendants' semi-truck fast approaching," and "the weight of the evidence does not suggest Vanicek experienced 'conscious' pain and suffering following impact." Filing 142 at 9, 13 (citations omitted). In other words, the Court finds it possible but unlikely that the jury would find that Vanicek's Estate is entitled to damages for Vanicek's pre-impact fear and apprehension and post-impact conscious suffering. Vanicek's Estate has impliedly persisted in its refusal to settle in the hope that a jury would award millions for Vanicek's pre-impact fear and apprehension and postimpact conscious suffering—a proposition the Court finds highly unlikely.
Given the Court's extensive knowledge of the facts of this case, the Court notes that it is possible any total verdict award
exceeding the offered settlement in the amount of $5 million would give the Court pause when considering posttrial motions from the Defendants as to the reasonableness of any such verdict. The Court further notes it seems likely that a jury award of $10 million that Vanicek's Estate seeks would be "unreasonable on the facts" and warrant "a new trial or condition a denial of a motion for a new trial on the plaintiff's acceptance of a remittitur." Miller v. Huron Reg'l Med. Ctr., 936 F.3d 841, 846 (8th Cir. 2019) (citing Fed. R. Civ. P. 59) ("A remittitur is reserved for cases where the verdict is so grossly excessive as to shock the judicial conscience.") (internal quotations and citation omitted). The potential that a verdict in excess of the settlement could be so grossly excessive as to shock the judicial conscience is a further consideration that favors this settlement amount.
Under the terms of the settlement, even if the Court were convinced that Vanicek's Estate is entitled to the full $4.1 million for economic loss damages it seeks—which the Court would find very aggressive—Vanicek's Estate would still recover an additional $900,000 in exchange for what the Court considers the small probability that Vanicek's Estate would recover anything for Vanicek's pre-impact apprehension and post-impact conscious suffering. This is especially true because a jury could decide to award considerably less than the full $4.1 million in economic loss damages Vanicek's Estate seeks—as low as Defendants' estimate of $1.5 million. Further, the Court finds no suggestion or evidence of collusion between LRC and Defendants regarding this settlement, particularly given the offered settlement is over three times Defendants' expert's opinion as to economic loss in this matter. Thus, the Court concludes that this settlement is "fair and reasonable, considering liability, damages, and the ability of the third person and his or her liability insurance carrier to satisfy any judgment." Neb. Rev. Stat. § 48-118.04(1)(b). Therefore, because the $5 million settlement offer is "fair and reasonable," the settlement between LRC and Defendants is not "void" and is enforceable against Vanicek's Estate.
The Court further notes that previously this Court had to issue a show cause order because Plaintiff's counsel repeatedly violated this Court's local rules. Filing 142 at 17. In fact, this Court felt the need to force Plaintiff's counsel to certify that counsel sent the Court's order to his client because repeated failure of counsel to follow simple court rules could "negatively impact Plaintiff's interests in this case." Filing 142 at 17. Here, the Court is asked to enforce a $5 million dollar settlement that Plaintiff has refused to accept for reasons that this Court finds insufficient. Even under the horrible circumstances giving rise to this case, a $5 million verdict for a case like this would be extremely high for this jurisdiction. Further, the only evidence Plaintiff's counsel has brought forth to support Plaintiff's high valuation of this case is the very questionable opinion offered by Justin Demerath, whose affidavit states that he is a member of the same firm as Plaintiff's counsel, Filing 153-3 at 2, and who LRC alleges is "both law partners with and the son of Plaintiff's counsel." Filing 163 at 8. Moreover, according to his affidavit, Justin Demerath primarily practices in Texas. Filing 153-3 at 2. All of this has done nothing to allay the previously-stated concerns of this Court regarding the adequacy of Plaintiff's representation in this case.
2. Vanicek's Estate Waived Any Seventh Amendment Objections to the Nebraska Statute
The Court turns to Vanicek's Estate's brief argument that compelling settlement in this case would violate the Seventh Amendment. Vanicek's Estate argues:
If the Court were to dismiss those additional potential damages in its calculation of damages, it would deprive Plaintiff from what a jury might consider awarding in such circumstances. Further, it would appear to violate Amendment VII of the U.S. Constitution, which states "In suits at common law, where the value in controversy exceeds twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall otherwise be reexamined in any court of the United States, than according to the rules of common law."
Filing 153 at 6. LRC argues that Vanicek's Estate waived this argument because it "[f]ail[ed] to cite supporting authority." Filing 163 at 5. Moreover, LRC argues that even if the argument was not waived, the Seventh Amendment does not apply because "a judicial determination of the fairness and reasonableness of the settlement... sound[s] in equity" as opposed to "suits at common law." Filing 163 at 6 (citation omitted).
The Court need not decide whether the Nebraska law at issue here implicates the Seventh Amendment because Vanicek's Estate failed to "meaningfully argue[ ]" this point and therefore waived this argument. Ahlberg v. Chrysler Corp., 481 F.3d 630, 638 (8th Cir. 2007); see also United States v. Pacheco-Poo, 952 F.3d 950, 953-54 (8th Cir. 2020) (arguments based on constitutional amendments were waived when the proponent did not "cite any case nor detail any facts for th[e] argument" that the amendments applied).
However, even if Vanicek's Estate did not waive this argument, the Court does not think that this case has Seventh Amendment implications. The Eighth Circuit Court of Appeals has explained that there is "a two-prong test for determining whether a party enforcing a statutory right is entitled to a jury trial under the Seventh Amendment." InCompass IT, Inc. v. XO Commc'ns Servs., Inc., 719 F.3d 891, 896 (8th Cir. 2013) (citations omitted). The first prong requires the Court to "compare the statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity." Vanicek's Estate is not entitled to a jury trial under the first prong, because wrongful death is a statutory cause of action that did not exist at common law. Neb. Rev. Stat. § 30-809; see also Mader v. United States, 654 F.3d 794, 803 (8th Cir. 2011) (citing Moragne v. States Marine Lines, Inc., 398 U.S. 375, 390, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970)) ("Wrongful death claims, which did not exist at common law, are established, substantively and procedurally, by legislative act.").
The second prong—which is "the more important of the two"—requires the Court to determine whether "the remedy sought ... is legal or equitable in nature." Incompass, 719 F.3d at 896. Vanicek's Estate is not entitled to a jury trial under the second prong either because the relief is likely "equitable in nature." Id. The Eighth Circuit explained, "If the claim is for relief traditionally found at law, such as contract damages, then the availability of a trial by jury would seem to be at its zenith. On the other hand, if the claim is to provide relief unavailable at law, then the claim clearly sounds in equity, and the right to jury trial is at its nadir." Id. Here, although Vanicek's Estate seeks money damages, the specific relief sought is a determination by the Court of whether a settlement amount is fair and reasonable, such that the settlement is not void. Neb. Rev. Stat. § 48-118.04(1)(b). This is plainly "relief unavailable at law," so "the claim clearly sounds in equity, and the right to jury trial is at its nadir." Incompass, 719 F.3d at 896. Thus, the statute is not subject to the Seventh Amendment under either prong of the "test for determining whether a party enforcing a statutory right is entitled to a jury trial." Id. Therefore, Vanicek's Estate is not entitled to a jury trial to determine
whether the proposed settlement is fair and reasonable.
3. Vanicek's Estate and LRC May Agree in Writing to Distribute the $5 Million Settlement, Otherwise the Court Must Order a Fair and Equitable Distribution
The Nebraska statute provides, "If the employee or his or her personal representative or the employer or his or her workers' compensation insurer do not agree in writing upon distribution of the proceeds of any judgment or settlement, the court, upon application, shall order a fair and equitable distribution of the proceeds of any judgment or settlement." Neb. Rev. Stat. § 48-118.04(2). The Court will give Vanicek's Estate and LRC an opportunity to reach an agreement regarding distribution of the $5 million settlement. The Court notes that it would appear fair to both parties if LRC is reimbursed for the workers' compensation payments already made and released from future obligations, and Vanicek's Estate retains the balance of the settlement. See Kroemer, 898 N.W.2d at 667 ("[Nebraska Revised Statute § 48-118.04(2)] clearly mandates that proceeds in excess of the employer's subrogation interest must be paid forthwith to the employee.")
III. CONCLUSION
For these reasons, the Court finds the settlement offer of $5 million to be fair and reasonable and compels settlement pursuant to Nebraska Revised Statute § 48-118.04(1)(b). The parties shall agree in writing to the distribution of the proceeds of the settlement. If the parties fail to do so, the Court shall order a fair and equitable distribution pursuant to Nebraska Revised Statute § 48-118.04. Accordingly,
IT IS ORDERED:
1. Plaintiff-Intervenor's Motion to Determine Fairness and Reasonableness of Settlement, Filing 138, is granted;
2. Defendants shall pay $5 million to be split between Plaintiff and Plaintiff-Intervenor;
3. All claims against Defendants by Plaintiff and Plaintiff-Intervenor are dismissed; and
4. Plaintiff-Intervenor and Plaintiff shall agree in writing to the distribution of the proceeds of the settlement or notify the Court that an order of fair and equitable distribution is necessary.