Young v. Midwest Fam. Mut. Ins. Co.

coNcLuSIoN
as previously noted, the judgment in case No. S-06-800 is
affirmed. The judgment in case No. S-07-414 is reversed, and
the cause is remanded to the court of appeals with directions to
reverse the judgment of the district court.
J udgment in no . s-06-800 Affirmed .
J udgment in no . s-07-414 reversed , And
cAuse remAnded with directions .
Jennie l. young And thomAs J. young, wife
And husbAnd, Appellees, v. midwest fAmily
mutuAl insurAnce compAny, AppellAnt.
753 N.W.2d 778
Filed July 25, 2008. 	No. S-07-364.
1. Attorney Fees: Appeal and Error. a trial court’s decision awarding or denying
attorney fees will be upheld on appeal absent an abuse of discretion.
2. ____: ____. When an attorney fee is authorized, the amount of the fee is addressed
to the discretion of the trial court, whose ruling will not be disturbed on appeal in
the absence of an abuse of discretion.
3. Statutes. Statutory interpretation presents a question of law.
4. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently of the conclusion
reached by the trial court.
5. Attorney Fees. as a general rule, attorney fees and expenses may be recovered
in a civil action only where provided for by statute or when a recognized and
accepted uniform course of procedure has been to allow recovery of attor-
ney fees.
6. Actions: Insurance: Attorney Fees. a successful pro se litigant in an action on
an insurance policy is not entitled to recover an attorney fee under Neb. Rev. Stat.
§ 44-359 (Reissue 2004), even if the pro se litigant is a licensed attorney.
7. Attorney Fees. To determine proper and reasonable attorney fees under Neb. Rev.
Stat. § 44-359 (Reissue 2004), it is necessary for the court to consider the nature
of the litigation, the time and labor required, the novelty and difficulty of the
questions raised, the skill required to properly conduct the case, the responsibil-
ity assumed, the care and diligence exhibited, the result of the suit, the character
and standing of the attorney, and the customary charges of the bar for simi-
lar services.
8. Insurance: Attorney Fees. an attorney fee awarded under the provisions of Neb.
Rev. Stat. § 44-359 (Reissue 2004) must be solely and only for services actually
rendered in the preparation and trial of the litigation on the policy in question.
206 	276 NeBRaSka RePoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

appeal from the District court for Douglas county: gAry
b. rAndAll, Judge. Reversed and vacated in part, and in part
affirmed as modified.
William e. Gast and Gene m. eckel, of Gast & mcclellan,
for appellant.
Thomas J. Young for appellees.
heAvicAn, c.J., wright, connolly, gerrArd, stephAn, and
miller -lermAn, JJ.
stephAn, J.
This case, before us for the second time, arose from a dis-
puted insurance claim by homeowners Jennie L. Young and
Thomas J. Young. In Young v. Midwest Fam. Mut. Ins. Co.,1 we
held that settlement offers made by midwest Family mutual
Insurance company (midwest) were not equivalent to offers to
allow judgment and thus did not preclude an award of attorney
fees to the Youngs under Neb. Rev. Stat. § 44-359 (Reissue
2004). on remand, the district court awarded the Youngs attor-
ney fees and costs, and midwest has appealed the award. The
principal question before us in this appeal is whether an attorney
who successfully represents himself in an action on an insurance
policy is entitled to fees under § 44-359.
BackGRouND
We incorporate the following summary of pertinent facts and
procedural history from our prior opinion:
midwest issued a homeowner’s insurance policy to the
Youngs. In april 2001, the Youngs’ home sustained hail
damage. although the parties differed greatly as to the
damage, midwest estimated damages of $790 and issued a
check to the Youngs for $561.02 ($790 less a deductible).
The Youngs, however, claimed damages of $27,500.
after the Youngs sued midwest for breach of contract,
midwest sent the Youngs several letters offering to settle
1 Young v. Midwest Fam. Mut. Ins. Co., 272 Neb. 385, 722 N.W.2d 13
(2006).
YouNG v. mIDWeST Fam. muT. INS. co. 	207
cite as 276 Neb. 206

the dispute. The first offer was termed as “an offer of
$22,000 in full settlement of this claim”; the second was
a “settlement offer in the amount of $2,000.00, in con-
sideration for a complete and final release”; the third was
“an offer in the amount of $3,000, in lieu of going back to
trial”; and the fourth was a “final offer of settlement to [the
Youngs] in the amount of $9,000.” The Youngs refused all
of the settlement offers, and the case proceeded to trial. a
jury returned a $940 verdict for the Youngs.
The Youngs moved for attorney fees under § 44-359.
The district court denied their request stating that [Neb.
Rev. Stat.] § 25-901 [(Reissue 1995)] precluded an award
of attorney fees because the Youngs failed to obtain a judg-
ment for more than the offers made by midwest.2
The Youngs appealed, and we held that midwest’s settlement
offers were not equivalent to offers to allow judgment and thus
did not preclude an award of attorney fees to the Youngs. We
reversed, and remanded for further proceedings.
on remand, the Youngs submitted billing records for three
individuals: matthew L. mcBride, Thomas, and Jennie. mcBride
served as the Youngs’ attorney until may 12, 2004. His billing
records included fees in the amount of $20,484, represent-
ing 170.7 hours billed at $120 per hour. Thomas, an attorney
licensed to practice law in Nebraska, took over the Youngs’
case after mcBride withdrew, although Thomas apparently per-
formed some legal services on the case while still represented
by mcBride. Thomas’ billing records for the period of october
18, 2001, through November 15, 2004, totaled $19,845, repre-
senting 113.4 hours billed at $175 per hour. Jennie, a “freelance
paralegal,” submitted billing records in the amount of $1,504
representing 37.6 hours billed at $40 per hour. The Youngs also
submitted two exhibits itemizing “taxable” and “non taxable”
costs, which totaled $2,518.55 and $5,123.17, respectively.
The district court determined that the Youngs were entitled
to an award of taxable costs in the amount of $2,518.55, non-
taxable costs in the amount of $5,123.17, and “a reasonable
2 Id. at 386, 722 N.W.2d at 15.
208 	276 NeBRaSka RePoRTS

attorneys fee in the sum of $25,000.” The order did not specify
how this amount was determined.
midwest perfected a timely appeal, which we moved to our
docket on our own motion.
aSSIGNmeNTS oF eRRoR
midwest assigns, restated, that the district court erred in
awarding (1) any attorney fees or paralegal fees for pro se legal
services performed by the Youngs on their own behalf, (2) more
than a nominal amount of attorney fees for services performed by
mcBride prior to his withdrawal from the case, and (3) costs.
STaNDaRD oF RevIeW
[1,2] a trial court’s decision awarding or denying attorney fees
will be upheld on appeal absent an abuse of discretion.3 When
an attorney fee is authorized, the amount of the fee is addressed
to the discretion of the trial court, whose ruling will not be dis-
turbed on appeal in the absence of an abuse of discretion.4
[3,4] Statutory interpretation presents a question of law.5
When reviewing questions of law, an appellate court has an obli-
gation to resolve the questions independently of the conclusion
reached by the trial court.6
aNaLYSIS
youngs ’ A ttorney And pArAlegAl fees
The $25,000 attorney fee award in this case does not include
an itemization of the amounts attributable to the efforts of
mcBride and the Youngs. However, inasmuch as the award
exceeds the total amount reflected on billing statements which
mcBride submitted to the Youngs, we conclude that a portion
of the award must be attributable to the attorney and paralegal
fees submitted by the Youngs for time spent working on their
own case.
3 See In re Trust of Rosenberg, 273 Neb. 59, 727 N.W.2d 430 (2007).
4 Id.; Eicher v. Mid America Fin. Invest. Corp., 270 Neb. 370, 702 N.W.2d
792 (2005).
5 In re Trust Created by Isvik, 274 Neb. 525, 741 N.W.2d 638 (2007).
6 Id.
YouNG v. mIDWeST Fam. muT. INS. co. 	209
cite as 276 Neb. 206

[5] as a general rule, attorney fees and expenses may be
recovered in a civil action only where provided for by statute or
when a recognized and accepted uniform course of procedure
has been to allow recovery of attorney fees.7 Section 44-359 is a
fee-shifting statute which permits a successful litigant to recover
attorney fees as a part of the judgment in certain actions against
insurance companies. The statute provides in pertinent part:
In all cases when the beneficiary or other person entitled
thereto brings an action upon any type of insurance policy
. . . the court, upon rendering judgment against such com-
pany, person, or association, shall allow the plaintiff a rea-
sonable sum as an attorney’s fee in addition to the amount
of his or her recovery, to be taxed as part of the costs.8
In Dale Electronics, Inc. v. Federal Ins. Co.,9 we held that under
§ 44-359, “a successful litigant is entitled to receive a reason-
able attorney’s fee for in-house counsel actually engaged in the
preparation and trial of the litigation to the same extent as out-
side counsel.” However, we have not previously decided whether
§ 44-359 permits the recovery of an attorney fee by a pro se
plaintiff who is a licensed attorney.
The u.S. Supreme court addressed a similar issue in Kay v.
Ehrler,10 decided in 1991. Richard kay, an attorney, success-
fully represented himself in a civil rights action challenging
kentucky’s election statutes. He sought attorney fees under a
federal statute11 which permitted an award of an attorney fee
to the prevailing party in federal civil rights litigation. Noting
that pro se litigants who were not lawyers were not entitled to
recover fees, the Supreme court framed the issue as “whether a
lawyer who represents himself should be treated like other pro
se litigants or like a client who has had the benefit of the advice
7 Eicher v. Mid America Fin. Invest. Corp., supra note 4; Destiny 98 TD v.
Miodowski, 269 Neb. 427, 693 N.W.2d 278 (2005).
8 § 44-359.
9 Dale Electronics, Inc. v. Federal Ins. Co., 205 Neb. 115, 124, 286 N.W.2d
437, 443 (1979).
10 Kay v. Ehrler, 499 u.S. 432, 111 S. ct. 1435, 113 L. ed. 2d 486 (1991).
11 See 42 u.S.c. § 1988(b) (2000).
210 	276 NeBRaSka RePoRTS

and advocacy of an independent attorney.”12 The court resolved
the issue in the negative based upon three principles. First, as
a textual matter, the court concluded that the term “attorney”
assumed an agency relationship and that “it seems likely that
congress contemplated an attorney-client relationship as the
predicate for an award” of attorney fees.13 Second, the court
observed that the purpose of fee-shifting statutes was “to enable
potential plaintiffs to obtain the assistance of competent counsel
in vindicating their rights.”14 Third, the court noted that a rule
which awards fees only to those litigants who have retained
independent counsel ensures “the effective prosecution of meri-
torious claims.”15
after the Kay decision, federal courts have denied attorney
fees to pro se attorneys under a variety of fee-shifting stat-
utes, including the equal access to Justice act, the Freedom
of 	Information act, 	and 	the 	Individuals 	with 	Disabilities
education act.16 State courts have generally followed suit.17
While post-Kay decisions have continued to emphasize the
incentive of retaining independent counsel18 and the agency
12 Kay v. Ehrler, supra note 10, 499 u.S. at 435.
13 Id., 499 u.S. at 436.
14 Id.
15 Id., 499 u.S. at 437.
16 See, e.g., Woodside v. School Dist. of Philadelphia, 248 F.3d 129 (3d cir.
2001) (Individuals with Disabilities education act); Kooritzky v. Herman,
178 F.3d 1315 (D.c. cir. 1999) (equal access to Justice act); Hawkins v.
1115 Legal Service Care, 163 F.3d 684 (2d cir. 1998) (Title vII); Burka v.
U.S. Dept. of Health and Human Services, 142 F.3d 1286 (D.c. cir. 1998)
(Freedom of Information act); S.E.C. v. Waterhouse, 41 F.3d 805 (2d cir.
1994) (equal access to Justice act).
17 See, e.g., Omdahl v. West Iron County Bd. of Educ., 478 mich. 423, 733
N.W.2d 380 (2007); Kehoe v. Saltarelli, 337 Ill. app. 3d 669, 786 N.e.2d
605, 272 Ill. Dec. 66 (2003); Mix v. Tumanjan Development Corp., 102 cal.
app. 4th 1318, 126 cal. Rptr. 2d 267 (2002); Bowles v. Pro Indiviso, Inc.,
132 Idaho 371, 973 P.2d 142 (1999).
18 S.N. ex rel. J.N. v. Pittsford Cent. School, 448 F.3d 601 (2d cir. 2006);
Woodside v. School Dist. of Philadelphia, supra note 16; Hawkins v. 1115
Legal Service Care, supra note 16.
YouNG v. mIDWeST Fam. muT. INS. co. 	211
cite as 276 Neb. 206

relationship between an attorney and a client,19 some have also
noted that pro se attorneys do not actually incur fees for which
they might be compensated.20
[6] We join the courts which have adopted the reasoning of
Kay. allowing a pro se attorney litigant to recover fees while
barring nonlawyer litigants from collecting fees would “cre-
ate disparate treatment of pro se litigants on the basis of their
occupations,”21 and we decline to adopt such rule. We hold that
a successful pro se litigant in an action on an insurance policy
is not entitled to recover an attorney fee under § 44-359, even
if the pro se litigant is a licensed attorney. accordingly, the fee
award in this case was erroneous to the extent that it included
the attorney fees claimed by Thomas and the paralegal fees
claimed by Jennie.
mcbride fee
[7] mcBride’s fees are the proper subject of a fee award
under § 44-359, but the issue presented in this appeal goes to the
amount of the award. To determine proper and reasonable attor-
ney fees under § 44-359, it is necessary for the court to consider
the nature of the litigation, the time and labor required, the nov-
elty and difficulty of the questions raised, the skill required to
properly conduct the case, the responsibility assumed, the care
and diligence exhibited, the result of the suit, the character and
standing of the attorney, and the customary charges of the bar
19 Omdahl v. West Iron County Bd. of Educ., supra note 17; Mix v. Tumanjan
Development Corp., supra note 17.
20 Anderson v. Wheeler, 214 or. app. 318, 164 P.3d 1194 (2007); Omdahl v.
West Iron County Bd. of Educ., supra note 17; Mix v. Tumanjan Development
Corp., supra note 17; Hopkins v. Hopkins, 343 S.c. 301, 540 S.e.2d 454
(2000); Calhoun v. Calhoun, 339 S.c. 96, 529 S.e.2d 14 (2000); Lisa v.
Strom, 183 ariz. 415, 904 P.2d 1239 (ariz. app. 1995); Trope v. Katz, 11
cal. 4th 274, 902 P.2d 259, 45 cal. Rptr. 2d 241 (1995); Hamer v. Lentz,
132 Ill. 2d 49, 547 N.e.2d 191 (1989).
21 Mix v. Tumanjan Development Corp., supra note 17, 102 cal. app. 4th at
1323, 126 cal. Rptr. 2d at 271, citing Trope v. Katz, supra note 20.
212 	276 NeBRaSka RePoRTS

for similar services.22 There is no presumption of reasonableness
placed on the amount offered by the party requesting fees.23 We
examine these factors as they bear upon the reasonableness of
mcBride’s fee.
[8] This was an action on a homeowner’s insurance policy
to recover for alleged storm damage to a roof, flashing, gut-
ters, skylight, and air-conditioning units. The Youngs originally
claimed damages of “approximately $35,000.00.” midwest took
the position that its liability under the policy was no more than
$561.02. The record reflects that between January 7, 2002, and
april 5, 2004, mcBride devoted a total of 170.7 hours to the
case and billed his time at the rate of $120 per hour for a total
of $20,484. But the record does not show that all of this time
was devoted to the action on the policy. an attorney fee awarded
under the provisions of § 44-359 must be solely and only for
services actually rendered in the preparation and trial of the
litigation on the policy in question.24 During some of the time
reflected on mcBride’s billing records, the Youngs were pursu-
ing a second count alleging a claim for damages based upon the
tort of bad faith. This claim was not an “action upon any type of
insurance policy” within the meaning of § 44-359,25 and in any
event, it was resolved against the Youngs by an order of partial
summary judgment. Some of mcBride’s billing entries refer
specifically to the bad faith claim, but the record does not permit
any precise determination of what services were devoted solely
and specifically to the breach of contract claim.
22 See, Koehler v. Farmers Alliance Mut. Ins. Co., 252 Neb. 712, 566 N.W.2d
750 (1997); National Am. Ins. Co. v. Continental Western Ins. Co., 243 Neb.
766, 502 N.W.2d 817 (1993).
23 Koehler v. Farmers Alliance Mut. Ins. Co., supra note 22.
24 National Am. Ins. Co. v. Continental Western Ins. Co., supra note 22;
Hemenway v. MFA Life Ins. Co., 211 Neb. 193, 318 N.W.2d 70 (1982); Dale
Electronics, Inc. v. Federal Ins. Co., supra note 9.
25 See, Kirchoff v. American Cas. Co., 997 F.2d 401 (8th cir. 1993) (deny-
ing plaintiff’s request for attorney fees based on bad faith claim after she
prevailed on her breach of contract claim); Parker v. Southern Farm Bureau
Cas. Ins., 326 ark. 1073, 935 S.W.2d 556 (1996) (affirming trial court’s
reduction of awarded attorney fees to account for work performed on bad
faith claim).
YouNG v. mIDWeST Fam. muT. INS. co. 	213
cite as 276 Neb. 206

although the record does not include specific evidence
regarding the skill required to properly conduct the case, we
note from the record that this was a contested case involving
discovery and utilization of expert witnesses and that it was
tried to a jury. The first trial, in which mcBride represented the
Youngs, ended with a mistrial after the opening statement. The
second trial, in which Thomas represented himself and Jennie
after mcBride had withdrawn, resulted in a verdict in favor of
the Youngs in the amount of $940. This was approximately $379
more than midwest had admitted it was obligated to pay under
the policy. The record does not include evidence upon which we
can assess the remaining factors applicable to the reasonableness
of mcBride’s fees as reflected on his billing statement, including
responsibility assumed, care and diligence exhibited, character
and standing of the attorney, and the customary charges of the
bar for similar services.
Based upon our review of the record, we conclude that the
district court abused its discretion in awarding an attorney fee of
$25,000. We conclude that no more than $5,000 can be justified
for mcBride’s services, given the amount at issue, the margin-
ally favorable result obtained, and the uncertainty regarding the
amount of mcBride’s time which was reasonably necessary for
the prosecution of the action on the policy, as opposed to the bad
faith claim. accordingly, we modify the attorney fee award by
reducing it from $25,000 to $5,000.
costs
under Neb. Rev. Stat. § 25-1708 (Reissue 1995), “costs shall
be allowed of course to the plaintiff, upon a judgment in his
favor, in actions for the recovery of money only, or for the recov-
ery of specific real or personal property.” The total of $2,518.55
in “taxable costs” awarded to the Youngs included a filing fee,
subpoena and service fees, deposition fees, and witness fees. We
find no error in the taxation of these court costs.
However, we conclude that the court erred in awarding
$5,123.17 in “non taxable costs” to the Youngs. These appear to
be expert witness fees and other items of expense incurred by
214 	276 NeBRaSka RePoRTS

the Youngs which are not taxable as court costs and not recover-
able under § 44-359.26
coNcLuSIoN
For the reasons discussed herein, we reverse and vacate the
award of “non taxable costs” in the amount of $5,123.17. We
affirm the taxation of court costs in the amount of $2,518.55, but
reduce the attorney fee awarded under § 44-359 from $25,000 to
$5,000, and affirm as modified.
reversed And vAcAted in pArt , And
in pArt Affirmed As modified .
mccormAck, J., not participating.
26 See Dale Electronics, Inc. v. Federal Ins. Co., supra note 9.
ScoFIeLD v. STaTe 	215
cite as 276 Neb. 215
gAry c. scofield And J oyce e. scofield , AppellAnts , v .
stAte of nebrAskA, depArtment of nAturAl
resources , et Al ., Appellees .
753 N.W.2d 345
Filed July 25, 2008. 	No. S-07-511.
1. Pleadings: Appeal and Error. an appellate court reviews de novo a lower court’s
dismissal of a complaint for failure to state a claim.
2. ____: ____. When analyzing a lower court’s dismissal of a complaint for failure to
state a claim, an appellate court accepts the complaint’s factual allegations as true
and construes them in the light most favorable to the plaintiff.
3. Statutes: Appeal and Error. Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court.
4. Administrative Law: Statutes. The Legislature may delegate to an administra-
tive agency the power to make rules and regulations to implement the policy of
a statute.
5. ____: ____. an administrative agency is limited in its rulemaking authority to
powers granted to the agency by the statutes which it is to administer, and it
may not employ its rulemaking power to modify, alter, or enlarge portions of its
enabling statute.
6. Ordinances: Presumptions: Proof. In considering the validity of regulations,
courts generally presume that legislative or rulemaking bodies, in enacting ordi-
nances or rules, acted within their authority, and the burden rests on those who
challenge their validity.