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Great Northern Insurance Co. v. Transit Authority of the City of Omaha. Nebraska Tort Claims Act
After paying an insurance claim on behalf of its insured, the plaintiff insurance company pursued its subrogation claim against the Omaha Transit Authority. The Nebraska Tort Claims Act, Nebraska Revised Statute 13-905, requires that notice of claim be given with the official "whose duty it is to maintain the official records" of the body. The executive director was the only official with those duties. Counsel for the insurance company sent a certified letter addressed to "Claims Department, Omaha Netro Transit." This was signed for by an employee and eventually given to the director of legal/human resources, who forwarded it to outside counsel. The defendant's attorney then replied and requested that all contact be with the attorney.
When the lawsuit was filed, the defendant moved to dismiss, on the grounds that the notice had not been to the proper person. The district court denied the motion, on the grounds of equitable estoppel. The defendant then brought an appeal to the Nebraska Supreme Court.
Unfortunately for the defendant, the brief did not contain an "assignment of error" section. Instead, the defendant argued that the headings of the argument section should be construed to be the assignments of error. The court refused to do so. Accordingly, the defendant was held to a "plain error" standard of review.
Under this standard, the Supreme Court agreed that the defendant had not shown plain error. Therefore, the lower court's ruling was affirmed, and the defendant was equitably estopped from asserting lack of notice.
308 Neb. 916 (Apr. 16, 2021).
Please see the original opinion for the court's exact language.
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Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).
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