IN THE COURT OF APPEALS FOR THE STATE OF NEBRASKA. IN RE ESTATE OF HANS A. ANDERSEN, Deceased. vs.

Transcription

1 .. VJQ;TimJAL CQD!ES r~f ::R!CF :N :.,~LL:f IN THE COURT OF APPEALS FOR THE STATE OF NEBRASKA IN RE ESTATE OF HANS A. ANDERSEN, Deceased LYMAN-RICHEY CORPORATION, vs. Petitioner/Appellee, DONALD G. ANDERSEN, Personal Representative of the ESTATE OF HANS A. ANDERSEN, Respondent/Appellant. BRIEF OF APPELLEE, LYMAN-RICHEY CORPORATION ON MOTION FOR REHEARING Prepared and Submitted by: Jeffrey D. Toberer, #14219 KENNEDY, HOLLAND, DeLACY &.SVOBODA Regency Parkway.:Drive Omaha, NE (402) , ".. '',. '

2 INDEX Paae No. ASSIGNMENT OF ERRORS... 1 PROPOSITION OF LAW I. ERISA DOES NOT CONTAIN A STATUTE OF LIMITATIONS AND FEDERAL COURTS MUST REFER TO STATE LAW AND APPLY THE ANALOGOUS STATE STATUTE OF LIMITATIONS ARGUMENT... 1 CONCLUSION... 3 i

3 TABLE OF AUTHORITIES CASES CITED Paae No. Farrell v. Automobile Club of Michigan, 870 F.2d 1129 (6th Cir. 1989).... 1, 2 Fooerty v. Metronolitan Life Insurance Co., 850 F.2d 430 (8th Cir. 1988).... 1, 2 STATUTES CITED Paae No. 29 U.S. C (ERISA 502).... 1, 2 Neb. Rev. Stat ii

4 ASSIGNMENT OF ERRORS 1. A direction to dismiss Appellee's claim by the County Court in its entirety and without specificity may jeopardize Appellee's ability to pursue its remedy in the federal courts. PROPOSITION OF LAW I. ERISA DOES NOT CONTAIN A STATUTE OF LIMITATIONS AND FEDERAL COURTS MUST REFER TO STATE LAW AND APPLY THE ANALOGOUS STATE STATUTE OF LIMITATIONS. 29 U.S.C (ERISA 502). Farrell v. Automobile Club of Michiaan, 870 F.2d 1129 (6th Cir. 1989). Fogertv v. Metrooolitan Life Insurance Co., 850 F.2d 430 (8th Cir. 1988). ARGUMENT The Appellee has requested that the Court rehear this appeal and reconsider and modify its Order wherein the Court states in its Conclusion the following: Accordingly, this cause is remanded to the County Court with directions to dismiss. This Order leaves Appellee in the position of having complied with the proper presentation of a claim under Neb. Rev. Stat , which is the equivalent of the commencement of a proceeding on the claim, but now having.it dismissed. According to the Court's interpretation of the ERISA statute on jurisdiction, Appellee can pursue its claim and remedy by filing a Complaint in the United States District Court for the District of Nebraska.

5 The Court's direction to dismiss the claim with no further specificity may have the unintended effect of permitting the Appellant to argue in federal court that the dismissal is the equivalent of never having filed the claim in the Appellant -estate, thereby raising the issue with respect to the statute of limitations. In an action involving an employee benefits plan regulated by ERISA, the Eighth Circuit in Fooerty v. Metrooolitan Life Insurance Co., 850 F.2d 430 (1988), held and stated at page 432: This is an employee action for recovery of benefits under an employee benefits plan regulated by ERISA brought pursuant to ERISA 502(a) (1) (B), 29 U.S.C (a) (1) (B). Because ERISA does not contain a statute of limitations applicable to 502 (a) (1) (B) actions, we must refer to state law and apply the most analogous state statute of limitations. Furthermore, in Farrell v. Automobile Club of Michioan, 870 F.2d 1129 (6th Cir. 1989), the Court held that the state statute of limitations for an ERISA claim should be equitable tolled by the initial filing of the claim in a state court, as long as the state court did not clearly lack subject matter jurisdiction at the outset. The issue of lack of subject matter jurisdiction was first raised in this Court and was the deciding issue for this Court to remand back to the County Courti this Court has not determined the merits of Appellee's claim. 2

6 Considering the above, Appellee believes a more appropriate order is to remand the Appellee's claim to the County Court, which has jurisdiction over the estate, with directions to hold this ERISA claim in abeyance pending adjudication by a federal court, which this Court has decided has exclusive jurisdiction. CONCLUSION By ordering an unqualified dismissal of Appellee's claim, the Court may be jeopardizing the Appellee's ability to pursue and adjudicate its remedy in federal court. We believe that this was not the Court's intention in its Orderi that an order which simply suspends the Appellee's claim against the estate until Appellee's claim is resolved and adjudicated by a federal court would be more appropriate. The County Court still has jurisdiction over the administration of the estate and can control the distribution of the estate, after the merits of Appellee's claim in federal court have been adjudicated against the estate. Respectfully submitted, LYMAN-RICHEY CORPORATION, Appellee ey(d. Toberer #14219 E EDY, HOLLAND, DeLACY & SVOBODA Regency Parkway Drive Omaha, NE (402)