2 ES Lawyers recognized as Best Lawyers: Ones to Watch in America™ 2024

Erickson | Sederstrom is proud to announce Matt Quandt and Matt Reilly were recognized by Best Lawyers® again. They were both selected by their peers and included in the Best Lawyers: Ones to Watch in America™ 2023 and 2024. These awards are recognitions given to attorneys who are earlier in their careers for outstanding professional excellence in private practice in America. Matt Quandt was selected for his work in Transportation Law and Personal Injury Litigation - Defendants. His practice concentrates on trucking accidents, including wrongful death and personal injury; he represents some of the biggest motor carriers and insurers in the nation. Matt Reilly was selected for his work in Construction Law and Personal Injury Litigation – Defendants. His practice focuses on representing contractors across Iowa and Nebraska in construction disputes and defending complex and severe personal injury claims.

8 ES Lawyers Recognized as Best Lawyers® Award Recipients

ES Law is pleased to announce that 8 lawyers have been included in the 2024 edition of The Best Lawyers in America®. Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence.

"For more than 40 years, the rigorous methodology of Best Lawyers has ensured the integrity and esteem of our legal recognitions," said Best Lawyers CEO Phillip Greer. "It is with great pleasure that we continue to provide potential clients with the pinnacle measurement of credibility through our Best Lawyers awards as they search for counsel."

Best Lawyers has earned the respect of the profession, the media, and the public as the most reliable, unbiased source of legal referrals. Its first international list was published in 2006 and since then has grown to provide lists in more than 75 countries.

Lawyers on The Best Lawyers in America list are divided by geographic region and practice areas. They are reviewed by their peers based on professional expertise and undergo an authentication process to ensure they are in current practice and good standing.

ES Law would like to congratulate the following lawyers named to the 2024 Best Lawyers in America list:

• Bonnie M. Boryca - Appellate Practice and Commercial Litigation

• Thomas J. Culhane - Bet-the-Company Litigation, Commercial Litigation, Construction Law, Insurance Law, Litigation - Construction, and Personal Injury Litigation - Defendants

• Daniel I. Dittman - Trusts and Estates

• William T. Foley - Corporate Law

• Virgil K. Johnson - Corporate Law

• Jerald L. Rauterkus - Personal Injury Litigation - Defendants

• Mark M. Schorr - Labor Law - Management

• Charles V. Sederstrom, Jr. - Health Care Law

Authorities Seize THC Products from Several Nebraska Dispensaries

We have written several previous articles focusing on the legality of the sale in Nebraska of products containing Delta-8 tetrahydrocannabinol (“Delta-8 THC”).   In the past, we have noted that there have been no enforcement actions by any governmental agency regarding these products.  However, on August 14, 2023, it was reported that several dispensaries in Sarpy County and Lancaster County had certain products and documents seized by law enforcement agencies.  A press release from the Lincoln Police Department stated that, based on independent testing of products purchased earlier this year, certain dispensaries were selling “statutorily prohibited substances.”  In addition, a Sarpy County Sheriff’s Office press release stated that certain products it tested earlier in the year contained products with THC levels in excess of 15%.  As of now, we understand no criminal charges have been filed.  

As a refresher, under the Nebraska Hemp Farming Act (the “Nebraska Hemp Act”), hemp is legal in Nebraska and removed from the Nebraska Controlled Substances Act (the “CSA”).  Hemp is defined as “the plant Cannabis sativa L. and any part of such plant, including the viable seeds of such plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol (“Delta-9 THC”) concentration of not more than 0.3 % on a dry weight basis” (emphasis added).

A legal argument can be made that if hemp derivative products (such as those containing Delta-8 THC) do not contain Delta-9 THC in excess of 0.3% they are classified as hemp, and not illegal substances under the CSA.  Based on the information we have now, it’s unclear whether the products seized contained Delta-9 THC or Delta-8 THC.  If the latter, under the Nebraska Hemp Act, the THC quantity should have no bearing on the legality of the products.  

We will continue to follow this story and provide updates as they become available.  In the meantime, hemp product retailers should take all measures to ensure their products are legal under the Nebraska Hemp Act.  If you have any questions about Delta-8 THC or other cannabis issues, attorneys at Erickson | Sederstrom can assist you. Attorneys Shay Garvin or Andrew Collins can be reached at (402) 397-2200.

Estate Planning and Bitcoin: What you need to know

If you follow financial news, have seen a commercial where everyone from Tom Brady to Kim Kardashian has been marketing cryptocurrency, or have heard tales from a friend or neighbor who hit it big with Bitcoin----you know cryptocurrency has become mainstream in 2023. With stories like the collapse of FTX and the volatility of Bitcoin prices garnering significant media coverage over the prior year, Bitcoin and cryptocurrency have also caught the attention of estate planners.

While planning for the transfer of a family farm or Berkshire Hathaway stock has been discussed for generations in estate planning meetings in Nebraska, Bitcoin’s relative newness and digital nature have created challenges for estate planning purposes. As a virtual asset, Bitcoin is often stored in an app on a smartphone ---heavily protected by passwords and keys---which makes it more likely that your heirs may overlook any Bitcoin or crypto account you own. 

Further complicating matters, Bitcoin Wallets do not allow the transfer of the wallet into the name of a Trust. In addition, many well-known crypto exchanges do not currently offer any beneficiary designations--- like POD (payable on death) or TOD (transferable on death). Thus, there are some important considerations when planning for the transfer of your cryptocurrency:

• Ensure that your estate plan specifically references your Bitcoin or cryptocurrency and provides for a secure transfer method to your heirs. The solution may be crafting a detailed letter of instruction to your successor trustee or personal representative with details on how to access and transfer your cryptocurrency.

• Name a beneficiary for your crypto assets in your estate plan. A beneficiary is the person or organization you want to inherit an asset. Make sure to list all your crypto assets in your estate plan, where the assets are stored, and which beneficiaries should receive them.

• You could also name a separate digital trustee in your estate plan---- and entrust this digital representative with protecting and transferring your cryptocurrency. A person with some experience, expertise, and knowledge in handling digital assets could make the administration of your estate much more efficient. 

As large-scale institutions and exchanges begin to enter cryptocurrency and new laws and regulations come into effect, it would be wise to revisit your estate plan to ensure that your nominated trustee can access and effectively transfer your cryptocurrency without unnecessary cost and delay.

If you have questions or are interested in reviewing your current estate plan, please get in touch with any of our experienced estate planning attorneys at Erickson & Sederstrom.

Legally Entitled to Recover? The case of Geerdes v. West Bend Mutual Insurance Company

The case Geerdes v. West Bend Mutual Insurance Company was decided by the United States Court of Appeals for the Eighth Circuit on June 20, 2023. The decision helps interpret the phrase "legally entitled to recover" under Iowa insurance law. In 2018, Iowa residents Gregg Geerdes and Mary Murphy (“Plaintiffs”) purchased home and automobile insurance from West Bend. The policy covered Plaintiffs as well as their son. The following year, Plaintiff’s son tragically died from injuries he sustained while a passenger on a charter bus that crashed in British Columbia, Canada. The charter bus’s insurance paid all the no-fault motorist insurance benefits that it was legally obligated to pay under the policy. Plaintiffs did not sue the bus company as personal jurisdiction for any such action would be in British Columbia. Plaintiffs did however sue West Bend seeking uninsured/underinsured benefits and additional umbrella coverage they believed they were entitled to under their policy. The West Bend Policy states policyholders are entitled to uninsured/underinsured coverage for payment of compensatory damages for bodily injury caused by an accident that an insured is “legally entitled to recover from the owner or operator.” However, Iowa case law states the benefits plaintiffs are entitled to recover from uninsured/underinsured umbrella policies are limited to the amount they would be able to recover in a tort action against the tortfeasor where the accident occurred or in the tortfeasors’ home state. Applying this law, the District Court dismissed the case via summary judgment because Plaintiffs are not “legally entitled to recover” under British Columbia law as it does not permit recovery of non-economic damages.

On appeal, Plaintiffs contended that Iowa law requires the court to interpret the phrase “legally entitled to recover” liberally, not literally. Plaintiffs introduced cases where Iowa courts have found plaintiffs were “legally entitled to recover” damages from the tortfeasor even when they may not have been able to in the tortfeasor’s home state or in the state the injury occurred. The Eighth Circuit explained that these circumstances occurred when plaintiffs were being precluded from recovery based on procedural law, not substantive law.

British Columbia’s substantive law does not permit recovery for non-economic damages. Thus, the Eighth Circuit Court affirmed the District Court's judgment, concluding that Plaintiffs were not “legally entitled to recover” and therefore the policy did not award coverage.

The Eighth Circuit’s opinion should catch the eye of Iowa insurers when it comes to how “legally entitled to recover” is interpreted and applied.

Erickson|Sederstrom Law Clerk Emily Todd assisted with drafting this article and her help is greatly appreciated.

Declaration of Dissolution for Nebraska Limited Liability Companies and Nonprofit Corporations

In odd-numbered years, Nebraska limited liability companies and nonprofit corporations are required to file Biennial Reports with the Nebraska Secretary of State. If you have not filed the Biennial Report for your limited liability company or nonprofit corporation and you did not organize or incorporate in 2023, you likely received a Declaration of Dissolution, which states that the Nebraska Secretary of State has dissolved your company and it is now inactive. If you did not file your Biennial Report and you did not receive a Declaration of Dissolution, you will want to be sure to review the Nebraska Secretary of State records to ensure your company’s information is up to date.

If your company has been dissolved, you can reinstate it by filing an Application and Declaration of Reinstatement along with the 2023-2024 Biennial Report with the Nebraska Secretary of State.

If you would like assistance in reinstating your entity so that it is active and in good standing with the Nebraska Secretary of State, the attorneys at Erickson Sederstrom can assist you with this process.

Rusch Retires from the Army Reserve

Erickson|Sederstrom partner Matt Rusch retired on June 30, 2023, from the U.S. Army Reserve after serving for 27 years.  During his career, Rusch attained the rank of Lieutenant Colonel. Rusch's service as a JAG officer included six years of active duty. Matt served in various roles in his career, such as Court-Martial prosecution, National Security Law, and Administrative Law. He was also a Special Assistant United States Attorney. His military duties took him to 33 states, Kuwait, and Iraq.

"Wearing the Army uniform has been one of the greatest honors of my life." said Rusch. "I am honored to have done my small part to support the Rule of Law in hundreds of missions and events over the years."

As Rusch closes this chapter, Erickson|Sederstrom celebrates his exceptional contributions and unwavering commitment to both the firm and his country. Rusch's leadership, expertise, and camaraderie as a long-time member of the Erickson|Sederstrom team have played an integral role in shaping the firm's success and reputation. Congratulations on your retirement, Matt!

Supreme Court Ruling Delivers Victory for Students with Disabilities

In a unanimous decision, the U.S. Supreme Court paved a new route for students with disabilities to hold schools responsible—and now, recover damages—when a school fails to provide adequate educational accommodations. In Perez v. Sturgis Public Schools, the Court held that students with disabilities are not required to exhaust their administrative remedies under the Individuals with Disabilities Education Act (IDEA) when the plaintiff is also seeking monetary relief under the Americans with Disabilities Act (ADA) for prior discrimination or mistreatment by the school.

Miguel Luna Perez attended public school in Sturgis, Michigan from ages 9-20.  Speaking with reporters, Perez said that during his time in the Sturgis Public Schools, he received “some sign language,” but he wanted more. There was one other deaf student at his school. However, lacking resources and support, the two deaf students could not communicate with each other, much less the rest of the school. According to Perez, “nobody interpreted for me at Sturgis.”

Settling Perez’s IDEA claim, Sturgis schools agreed to send Perez to the Michigan School for the Deaf, where annual tuition exceeds $40,000, and pay for his post-secondary education so that Perez and his parents could learn sign language. The IDEA settlement resolved Perez’s needs moving forward but did nothing to address his prior mistreatment. To obtain compensation for past harm, lost income and damages for emotional distress, Perez sued under the ADA.

Both the ADA and the IDEA protect children with disabilities. Under the IDEA, students with disabilities can petition their school to enact reasonable, additional educational accommodations. But the IDEA does not permit recovery of money damages or remedy prior discrimination or mistreatment of a student with disabilities. Aside from the ADA, no such law provides relief to the nearly 7.5 million students with disabilities in the U.S. This was until Perez decided to challenge his school.

“The question [before the Court] is whether a plaintiff must exhaust administrative processes under IDEA that cannot supply what he seeks,” Justice Gorsuch wrote. “We answer in the negative.” Perez, who graduated from the Michigan School for the Deaf in 2020, said that he “learned so many new words and signs [and] learned construction.” Still, he said, “I wish I could have gone to college. I don’t have a job, but I want to have one. I want to make my own choices.”

A Win for Homeowners: Nebraska Legislature Ends “Home Equity Theft”

Geraldine Tyler, a 94-year-old widow and homeowner in Minnesota, successfully challenged the Constitutionality of a Minnesota law that permitted her county government to seize the entire value of her property because of a much smaller outstanding property tax debt. The United States Supreme Court held that the state law practice violated the Takings Clause of the Fifth Amendment of the United States Constitution, which prohibits the government from taking private property for public use without paying just compensation to the owner.

Mrs. Tyler owed $2,300 in property tax and $13,000 in interest and penalties. Acting under Minnesota’s forfeiture procedures, the County seized her home, sold it, and kept the entire $40,000 from the sale. This sale amount more than doubled Mrs. Tyler’s debt on the property but the County returned nothing to the homeowner in consideration of the equity she had built up in the home. On May 25, 2023, the Supreme Court unanimously ruled that the State “may not extinguish a property interest that it recognizes everywhere else to avoid paying just compensation when it is the one doing the taking.” Tyler v. Hennepin Cnty., 215 L. Ed. 2d 564, 575, 2023 U.S. LEXIS 2201, *19, 143 S. Ct. 1369, 29 Fla. L. Weekly Fed. S 851.

The Tyler case has important implications beyond Minnesota. More than ten other states, including Nebraska until recently, have some form of property forfeiture law similar to Minnesota’s that has been characterized as “home equity theft.” Illinois, Minnesota, and New York have led the nation in the number of these property takings. Now on notice of the unconstitutionality of these forfeiture laws, states must change these laws to comply with the Supreme Court ruling.

During the 2023 legislative session, as part of a $6.4 billion tax relief package, the Nebraska Legislature passed LB 727, which abolished “home equity theft” in Nebraska. The bill requires property tax foreclosures to go through judicial proceedings that protect the owner’s equity.

As property values rise, so have incentives for government entities to seize properties due to tax debts. For those affected by this issue in Nebraska, the Tyler case and Nebraska’s new tax bill set forth strong protections for Nebraska homeowners. Individuals who have lost property under the former Nebraska approach that was invalidated by Tyler should consider speaking with an attorney regarding any potential recourse.

Erickson|Sederstrom Law Clerk Elise Siffring assisted with drafting this article and her help is greatly appreciated.

ES Recognized For 2022 Courtroom Victories by Harmonie Group

Our experienced trial attorneys have a history of success where it really counts - the courtroom. Read about some of our top cases of 2022, as recognized by The Harmonie Group.

37 MOTOR VEHICLE ACCIDENT INVOLVING SCHOOL VAN AND UNBELTED PASSENGERS 

Matt Reilly, Counsel

School Not Liable for Passenger’s Failure to Wear an Available Seatbelt Defense represented a school district in a claim by a high school student who was injured as a passenger in an automobile collision involving a school van during a summer activity. There was no dispute that the school van driver was not at fault for the accident, as another driver crossed the centerline on the highway and was impossible to avoid. The passenger—himself, a licensed driver aware of the rules of the road—sued the school, claiming that the van driver failed to ensure that the passenger secured his own seatbelt. Plaintiffs refused to consider any settlement offers below policy limits. After almost ten years of litigation—including a two-week trial, two directed verdicts in favor of the school district, and two different appeals— ruled in favor of the school district, holding that Nebraska statutes do not provide a passenger with a negligence claim against a driver when the sole basis of the claim is a failure to ensure the usage of a seatbelt.

■ RESULT: Defense Verdict Upheld on Appeal.

TRIP AND FALL IN A PUBLIC PARK 

Matt Reilly, Counsel

Political Subdivision Immune in Fall in Public Park Defense represented a sanitary improvement district against a claim by two parents that their son was injured when he stepped into a hole on the grounds of the playground within the district’s boundaries. Defense asserted immunity on behalf of the district against the significant damage claims in reliance upon statutes that provide that a political subdivision cannot be sued for claims arising out of “recreational activities.” The lower court ruled in favor of the district on the asserted grounds and dismissed the parents’ claims against the district. 

■ RESULT: Summary Judgment Granted.

LLC DISSOLUTION 

Bonnie Boryca, Counsel

Business Partner Accusing of Withdrawing From LLC A bifurcated jury trial was held on the issue of whether one of four business partners in a real estate development LLC had withdrawn as a member of the LLC. If it had, then any liability and value of its percentage ownership of the LLC was capped as of the date of withdrawal. All business partners testified, as well as non-party witnesses. The jury returned a unanimous verdict in favor of the business partner accused of withdrawing, finding that there was no withdrawal or dissociation. 

■ RESULT: Jury Verdict and Court Ruling That Partner Had Not Withdrawn From LLC.

GAS EXPLOSION, INSURANCE SUBROGATION ACTION 

Matt Reilly, Counsel

Gas Explosion in Historic Downtown Building Counsel represented a subrogation carrier with a $2.6MM claim arising out of a fire in Omaha’s downtown Old Market area. The fire occurred when an underground gas line was struck in the course of a contractor performing directional boring work. The one remaining defendant at trial was the gas utility operator, Metropolitan Utilities District (MUD). MUD denied all liability and claimed that it properly marked its buried gas line. After a 2-week trial, the court ruled in favor of the subrogated carrier and found that MUD was 50% at fault (the remaining 50% was assigned to a settled party.) 

■ RESULT: Subrogation Win $2.6MM.

Estate Planning is for Everyone

Who needs an estate plan? All people, including young adults, seniors, single people, and people with families, can benefit from an estate plan. While these groups may benefit differently from certain aspects of an estate plan, it is important that all people have a clear plan for their estate.

Estate plans typically include a testamentary instrument, such as a last will and testament, or a trust, and health and financial powers of attorney. What comprises a person’s estate plan can vary based on their specific needs and circumstances. Any estate plan should answer the following questions:

Who cares for you?

• Designating someone to serve as your financial and health power of attorney, and guardian and conservator, if necessary, ensures that someone of your own choosing makes decisions for you if you become incapacitated.  

Who cares for your children?

• Nominating a guardian, which is the protector of the person, and a conservator, which is the protector of financial resources, for your minor children or children with special needs assures that the courts know exactly who you choose to take care of your loved ones.

Who manages your estate once you have passed away?

• Nominating a personal representative or trustee to manage your affairs makes sure that someone you trust will manage your estate and follow your estate plan in accordance with your wishes.

Who receives your assets and how are those assets are received?

• Selecting the people or charities who will receive the gifts from your estate and determining whether those gifts are distributed right away or held for future distribution ensures specific life circumstances of each beneficiary of your estate are fully considered.

Most of these issues impact people regardless of age or wealth. Everyone must determine who will care for them and who will benefit from their assets once they have passed away. The goals of an estate plan are to reduce uncertainty, mitigate risks, and ensure the efficient transfer of assets to beneficiaries. Having a meaningful estate plan allows you to confidently answer the above questions and alleviate potential risks and uncertainties for your loved ones after your passing.

Mark Matulka assists people with estate planning and estate administration. Mark can be reached at (402) 397-2200 or matulka@eslaw.com.

E|S Young Professionals Discuss the Omaha YP Summit-Our Next Chapter

We are revisiting last Friday when a small group of our team of young professionals spent the day at the YP Summit in Omaha. The Omaha Young Professionals Summit is the largest gathering of its kind, and it was a busy day of networking and brainstorming with an emphasis on personal and professional development.

With a focus on “What’s Next” for Omaha and how we can all make impactful change, the day was packed with inspirational and provocative messaging. We listened to keynotes from New York Times best-selling author Ben Nemtin who kicked off the day lighting a fire in all of us by asking, “What Do You Want to Do Before You Die?” and ended the day with Symone Sanders-Townsend, Omaha native and host of “SYMONE” on MSNBC asking if we are Sowers, Reapers or Recipients of the hard work that takes place in Omaha to make sure it is a wonderful place to live and work.

Here are some key takeaways from our team:

Ryan-" The YP Summit was a fun and informative event. It served two purposes in my mind: (1) an opportunity to network with other young professionals in the area (including both attorneys and other business people throughout Omaha), and (2) an informative event that provided some helpful insight and information in how to properly operate as a young professional. I learned some time management tips and tricks, as well as ways to preemptively diagnose and prevent “burnout in the workplace.” I also learned how to properly empathize with others in the office in order to both properly understand their problems, and to discuss their next plan of action to resolve those problems. These tips and tricks will be especially applicable to working as a coercive unit in the office. Overall, the YP Summit provided very useful information in how to properly interact and succeed as a young professional in Omaha, while providing an opportunity to Network and connect with other professionals in the area. “

Alana-" When establishing a name for yourself and creating your own personal brand, it’s all about self-reflection and how you want others to see you. You are in charge of creating your own image. As you build your personal brand, you must learn your strengths, focus on your passions and interests, establish your values, and find inspiration. Your brand plan is your business plan. When each pillar aligns that is where success in business is found. Your brand is not concrete; it can evolve with you, as long as you name it and claim it and your behavior reflects your new brand.”

 Sarah-" Work-life balance v. Work-life harmony. Work-life balance refers to how people manage and compartmentalize the time they dedicate to work and the time they spend on other activities. Work-life harmony involves incorporating work into the rest of our lives in a way that promotes happiness both at home and in the office. We can establish work-life harmony by (1) being present, (2) setting priorities, and (3) enjoying what we do. By doing this, we will likely improve our mental and physical health, increase productivity, and experience less burnout. Let's embrace the idea of work-life harmony to promote happiness and success in all facets of our lives.”

Blake-" Overall, it was a very good experience. Having the opportunity to be surrounded by so many smart and talented local professionals makes me want to strive to be better, both in my job and in the community. While I learned a lot about leadership and how to lead, such as the benefits of leading with empathy, the biggest takeaway for me was that many of the struggles that I have as a young professional are shared by others and that there are skills and tools to help mitigate and even eradicate some of these difficulties. I also gained a deeper understanding that there is more I can do in the community to make effective change in the City of Omaha.”

DeAnna- “My favorite part of the YP Summit each year has to be the breakout sessions. This year I really enjoyed “Sitting in the Ick- Tough Problems in the Workplace” and “Compassionate Coaching and Communication.” Anytime I can brush up on my communication skills to work more efficiently and empathetically with my co-workers is time well spent. Positioning myself to apply these skills actively benefits my professional and personal relationships; everybody wins.”

Overall, it was an enjoyable yet educational experience, and we look forward to next year’s Summit.