Martensen v. Rejda Bros.

A dAm S. mArtenSen, Appellee And croSS-AppellAnt,
v. rejdA BrotherS, I ncorporAted, AppellAnt
And croSS-Appellee .
808 N.W.2d 855
Filed February 10, 2012. 	No. S-11-010.
1. Judgments: Verdicts. To sustain a motion for judgment notwithstanding the
verdict, the court resolves the controversy as a matter of law and may do so only
when the facts are such that reasonable minds can draw but one conclusion.
2. Motions for New Trial: Appeal and Error. A motion for new trial is addressed
to the discretion of the trial court, whose decision will be upheld in the absence
of an abuse of that discretion.
3. Costs: Appeal and Error. The decision of a trial court regarding taxing of costs
is reviewed for an abuse of discretion.
4. Judgments: Statutes: Appeal and Error. Statutory interpretation is a matter of
law in connection with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determination made by the
trial court.
5. Negligence: Proof. In order to recover in a negligence action, a plaintiff must
show a legal duty owed by the defendant to the plaintiff, a breach of such duty,
causation, and damages.
6. Negligence. The question whether a legal duty exists for actionable negligence is
a question of law dependent on the facts in a particular situation.
7. ____. The existence of a duty serves as a legal conclusion that an actor must
exercise that degree of care as would be exercised by a reasonable person under
the circumstances.
8. ____. Duty rules are meant to serve as broadly applicable guidelines for public
behavior, i.e., rules of law applicable to a category of cases.
9. Negligence: Employer and Employee. In negligence cases, an employer stands
in a special relationship with its employee who is in imminent danger or injured
and thereby helpless, and such employer owes the employee a duty of reasonable
care with regard to risks that arise within the scope of the relationship.
10. Trial: Evidence: Appeal and Error. To constitute reversible error in a civil case,
the admission or exclusion of evidence must unfairly prejudice a substantial right
of a litigant complaining about evidence admitted or excluded.
11. Costs. The costs of litigation and expenses incident to litigation may not ordinar-
ily be recovered unless provided for by statute or a uniform course of procedure.
12. Statutes: Legislature: Intent. An appellate court will place a sensible construc-
tion upon a statute to effectuate the object of the legislation, as opposed to a
literal meaning that would have the effect of defeating the legislative intent.
13. Statutes: Intent. In construing a statute, a court must look to the statutory objec-
tive to be accomplished, the evils and mischiefs sought to be remedied, and the
purpose to be served, and then must place on the statute a reasonable or liberal
construction that best achieves the statute’s purpose, rather than a construction
that defeats the statutory purpose.
mArTeNSeN v. rejDA broS. 	279
Cite as 283 Neb. 279
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:43 AM CST

14. Prejudgment Interest. Under Neb. rev. Stat. § 45-103.02(1) (reissue 2010),
where the claim is unliquidated and the plaintiff’s offer of settlement is exceeded
by the judgment, prejudgment interest accrues on the full amount of the judg-
ment starting on the date of the plaintiff’s first offer of settlement which offer is
exceeded by the judgment.
Appeal from the District Court for Custer County: KArIn
l. noAKeS, judge. Affirmed in part, and in part reversed and
remanded with directions.
justin r. Herrmann, jeffrey H. jacobsen, and David H.
Kalisek, of jacobsen, orr, Nelson, Lindstrom & Holbrook,
P.C., L.L.o., for appellant.
Steven H. Howard, of Dowd, Howard & Corrigan, L.L.C.,
for appellee.
heAvIcAn, c.j., connolly, G errArd, StephAn, mccormAcK,
and mIller-lermAn, jj.
mIller-lermAn, j.
NATUre oF CASe
The district court for Custer County entered judgment in
favor of the appellee and cross-appellant, Adam S. martensen,
in his negligence action against the appellant, rejda brothers,
Incorporated (rejda). martensen had alleged that he was
injured in an accident when he was working in a pasture
on a ranch owned and operated by rejda and that rejda, as
his employer, was negligent when it failed to make a timely
effort to search for, discover, and rescue him. on october 7,
2010, the court awarded damages based on the jury verdict of
$750,000, plus taxable court costs of $168.56 and prejudg-
ment interest of $4,724.16. A subsequent motion by rejda
for judgment notwithstanding the verdict or for a new trial
was overruled.
rejda appeals and claims, inter alia, that the court erred
when it concluded that rejda owed a legal duty to martensen
upon which recovery for negligence could be based and when
it determined that the jury’s verdict was supported by the evi-
dence and not contrary to law. martensen cross-appeals and
claims, inter alia, that the court erred when it failed to award
280 	283 NebrASKA rePorTS

the entire $3,417.29 of court costs that he claimed were tax-
able to rejda and when it awarded prejudgment interest on
$150,000 representing the portion of the $750,000 verdict
that exceeded an unaccepted pretrial offer of judgment of
$600,000 made by martensen. With respect to the appeal, we
affirm the award based on the jury verdict. With respect to the
cross-appeal, we affirm the award of taxable costs; however,
we conclude that the district court erred in its reading of Neb.
rev. Stat. § 45-103.02(1) (reissue 2010), and we reverse the
amount of prejudgment interest awarded, set aside the judg-
ment, and remand for a recalculation of prejudgment interest
consistent with this opinion.
STATemeNT oF FACTS
martensen worked as a farmhand on a ranch owned and
operated by rejda. on the afternoon of march 15, 2004,
martensen was repairing fences in a pasture on the ranch. He
drove an all-terrain vehicle (ATV) to perform the work, and
an accident occurred in which the ATV overturned and pinned
martensen’s right leg. martensen was not discovered until the
next day. As a result of his injuries, martensen underwent an
above-knee amputation of his right leg.
As an agricultural employee, martensen was not covered
by the Nebraska Workers’ Compensation Act. See Neb. rev.
Stat. § 48-106(2) (reissue 2010). martensen therefore filed
this negligence action against rejda. He alleged, inter alia, that
rejda was negligent when it failed to make a timely effort to
search for, discover, and rescue him. Prior to trial, martensen
made an offer of settlement in which he stated he would
accept $600,000. rejda rejected the offer. The case proceeded
to trial.
At trial, martensen testified that on the day of the accident,
he worked at repairing fences on adjacent pastures on the
ranch. one pasture consisted of 80 acres, and the other pas-
ture consisted of 400 acres. martensen had lunch with russell
rejda, the president of rejda, and told him that he had a little
work left to do on the 80-acre pasture and that he would then
start on the 400-acre pasture. martensen helped russell move
panels at the rejda feedlot for 1 to 11⁄2 hours after lunch.
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Cite as 283 Neb. 279

martensen then drove the ATV to the 80-acre pasture, intend-
ing to work on fences. As he was approaching the area where
he intended to work, the ATV overturned on him, pinning his
right leg. martensen tried to push the ATV off but did not have
the strength to do so. He felt sensation in his right leg until
shortly after dark, when the leg started going numb, and he
eventually did not feel it anymore. martensen did not have a
cellular telephone or other means to summon help, but he tried
yelling to get someone’s attention. martensen thought that
when he did not show up for supper, others would come look-
ing for him; however, no one came until the next day. When
he heard a loud vehicle, he yelled for attention and two people
found him. rescuers were summoned, and martensen was
taken by helicopter to a hospital.
russell testified that he had lunch with martensen on the
day of the accident. He recalled talking about the fencework
martensen was doing, but he thought martensen had com-
pleted or mostly completed work on the 80-acre pasture.
between 5 and 6 o’clock that afternoon, russell was working
in a calving barn and thought he heard an ATV driving by
the barn. russell thought that it was martensen driving the
ATV, but he did not see the ATV or its driver. That evening,
russell noted that martensen, who was living in the basement
of russell’s ranchhouse, had not returned. russell discussed
martensen’s absence with his father, Donald rejda, a share-
holder of rejda, and told him that he thought he had heard
martensen drive by the barn. russell checked with some bars
in nearby towns where he thought martensen might have
gone that evening, but martensen had not been seen in those
places. russell did not recall calling martensen’s friends
or family or any law enforcement or emergency agencies
that night.
Donald testified that at around 7 o’clock on the night of
the accident, he talked to russell and learned that martensen
had not come in yet. Donald considered whether they should
search for him but decided it was not necessary after russell
said he thought he had heard the ATV earlier. Donald testi-
fied that around 10 o’clock the next morning, he and russell
searched the ranch for 45 minutes to an hour; however, they
282 	283 NebrASKA rePorTS

concentrated on the fence line of the 400-acre pasture and
did not find martensen. While they were searching, Donald’s
wife notified martensen’s father that martensen was missing.
martensen’s father came to the ranch and organized a search
party. Donald testified that after the search party was orga-
nized, members of the search party found martensen within 10
minutes after beginning their search.
During direct examination at trial, martensen’s counsel asked
russell, “As President of rejda[,] does the corporation accept
any responsibility for not finding . . . martensen sooner?”
rejda objected on the basis of relevance and because the ques-
tion called for a conclusion. The court overruled the objection
and instructed russell to answer. russell responded, “I’m try-
ing to figure out the wording on that. I, you know, I guess so,
yes.” Later in the trial, the court sustained rejda’s objection
when martensen’s counsel asked Donald, “As a primary share-
holder and Vice President, do you believe the corporation is
responsible for [martensen’s] loss of his leg?”
In a videotaped deposition played to the jury, the doctor
who treated martensen testified that the conditions that led to
amputation of his right leg developed during the time his leg
was pinned by the ATV and that if the ATV had been taken off
immediately, such conditions would probably not have devel-
oped. The doctor estimated that amputation became inevitable
between 6 and 8 hours after the onset of the trauma. other
witnesses placed the time of irreversible damage at differ-
ent times.
Following the trial, the district court entered judgment based
on the jury’s verdict in favor of martensen in the amount
of $750,000. The court also awarded taxable court costs of
$168.56 and prejudgment interest of $4,724.16. Prejudgment
interest was awarded on the $150,000 amount by which the
jury verdict exceeded the $600,000 offer of settlement which
rejda had not accepted. The court overruled rejda’s motion
for judgment notwithstanding the verdict or for a new trial, in
which rejda argued, inter alia, that the court erred in finding
that rejda owed a duty to martensen upon which a recovery
for negligence could be based.
rejda appeals, and martensen cross-appeals.
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Cite as 283 Neb. 279

ASSIGNmeNTS oF error
rejda claims, summarized and restated, that the district
court erred when it (1) concluded that rejda had a duty to
come to the aid of martensen, (2) overruled rejda’s objec-
tion to martensen’s questioning of russell as to whether the
company accepted responsibility for failing to find martensen
sooner, and (3) overruled rejda’s motion for judgment notwith-
standing the verdict or for a new trial and entered judgment in
favor of martensen based on the jury’s verdict.
In his cross-appeal, martensen claims that the district court
erred when it (1) awarded only a portion of the $3,417.29
court costs that martensen asserted were taxable to rejda
and (2) misinterpreted § 45-103.02 and thereby awarded pre-
judgment interest limited to that portion of the judgment that
exceeded martensen’s pretrial offer of settlement of $600,000
rather than on the entire amount of the $750,000 verdict. In the
event the district court’s judgment based on the jury’s verdict
is reversed and the cause remanded for a new trial, martensen
additionally claims that the court erred when it excluded expert
testimony offered by martensen. because we affirm the jury
verdict and remand only for a calculation of prejudgment
interest, we do not reach the expert testimony issue raised by
martensen in his cross-appeal.
STANDArDS oF reVIeW
[1] To sustain a motion for judgment notwithstanding the
verdict, the court resolves the controversy as a matter of law
and may do so only when the facts are such that reasonable
minds can draw but one conclusion. Lacey v. State, 278 Neb.
87, 768 N.W.2d 132 (2009).
[2] A motion for new trial is addressed to the discretion of
the trial court, whose decision will be upheld in the absence of
an abuse of that discretion. Robinson v. Dustrol, Inc., 281 Neb.
45, 793 N.W.2d 338 (2011).
[3] The decision of a trial court regarding taxing of costs
is reviewed for an abuse of discretion. City of Falls City
v. Nebraska Mun. Power Pool, 281 Neb. 230, 795 N.W.2d
256 (2011).
[4] Statutory interpretation is a matter of law in connection
with which an appellate court has an obligation to reach an
284 	283 NebrASKA rePorTS

independent, correct conclusion irrespective of the determina-
tion made by the trial court. State ex rel. Wagner v. Gilbane
Bldg. Co., 280 Neb. 223, 786 N.W.2d 330 (2010).
ANALYSIS
Appeal: The District Court Did Not Err When It Concluded
Rejda Owed a Duty to Martensen and Did Not Err
in Its Evidentiary Ruling, and the Jury’s Verdict
Was Supported by Evidence.
This case involving an agricultural employee is not covered
under the Nebraska Workers’ Compensation Act, specifically
§ 48-106(2); thus, martensen brought his action in negligence.
rejda claims the district court erred in this negligence action
when it concluded that rejda owed a duty to martensen. rejda
maintains that a duty does not arise until the employer has
actual knowledge of the employee’s helplessness or illness
and that rejda had no such knowledge until after martensen’s
absence was noted on march 16, 2004. rejda contends that it
acted diligently in responding to martensen’s absence. In sum,
rejda contends that it initially had no duty and that upon the
triggering of the duty, if any, it acted reasonably.
on appeal, rejda asserts that it has no liability and that
thus, the district court erred when it denied its various
motions, including for judgment notwithstanding the verdict
or for a new trial. rejda also challenges various evidentiary
rulings and asserts that the evidence was insufficient to sup-
port the jury’s verdict in various respects, including a claim
of failure of proof of causation. As explained below, we
reject rejda’s description of the existence of the legal duty,
find no prejudicial evidentiary rulings, and determine that
the evidence supports the jury’s verdict. We find no merit to
the appeal.
[5,6] In order to recover in a negligence action, a plaintiff
must show a legal duty owed by the defendant to the plaintiff,
a breach of such duty, causation, and damages. Ginapp v. City
of Bellevue, 282 Neb. 1027, 809 N.W.2d 487 (2012). The ques-
tion whether a legal duty exists for actionable negligence is a
question of law dependent on the facts in a particular situation.
Id. In A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205,
784 N.W.2d 907 (2010), we abandoned the risk-utility test and
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Cite as 283 Neb. 279

adopted the duty analysis in the restatement (Third) of Torts:
Liability for Physical and emotional Harm (2010) (restatement
(Third)). A.W. was decided prior to the jury trial of this case.
more recently in Ginapp, supra, and Riggs v. Nickel, 281 Neb.
249, 796 N.W.2d 181 (2011), we again followed the duty
analysis in the restatement (Third).
The parties assert that no modern Nebraska case has con-
sidered the duty analysis in the circumstances of this case,
and we agree. The district court concluded that rejda owed
a duty to martensen but did not elaborate on the contours of
the duty. rejda relies on the restatement (Second) of Torts
§ 314b(2) (1965) and urges us to conclude that its duty did not
arise until it had actual knowledge that martensen was hurt.
martensen refers us to the “original” restatement of Agency
as the source of duty in this negligence action. brief for appel-
lee at 21. based on the analytical framework we adopted in
A.W., supra, we conclude that the legal duty applicable to the
circumstances of this case is controlled by the principles stated
in the restatement (Third), supra, § 40(a) and (b) (Proposed
Final Draft No. 1, 2005), entitled “Duty based on Special
relationship with Another.”
The restatement (Second), supra, § 314b(2) at 122, upon
which rejda relies as the source for duty arising upon knowl-
edge, provides:
Duty to Protect endangered or Hurt employee
. . . .
. . . If a servant is hurt and thereby becomes helpless
when acting within the scope of his employment and this
is known to the master or to a person having duties of man-
agement, the master is subject to liability for his negligent
failure or that of such person to give first aid to the servant
and to care for him until he can be cared for by others.
The restatement (Third), supra, § 40 at 752, provides:
Duty based on Special relationship with Another
(a) An actor in a special relationship with another owes
the other a duty of reasonable care with regard to risks
that arise within the scope of the relationship.
(b) Special relationships giving rise to the duty pro-
vided in Subsection (a) include:
286 	283 NebrASKA rePorTS

. . . .
(4) an employer with its employees who are:
(a) in imminent danger; or
(b) injured and thereby helpless[.]
The comment to subsection (b)(4), entitled “Duty of employ-
ers,” contains the following explanation:
This Subsection retains the requirements contained in
the restatement Second of Torts of imminent danger and
helplessness. However, this Subsection rejects the require-
ment of knowledge or foreseeability of the danger as an
aspect of the duty determination. This is consistent with
the treatment of foreseeability throughout this restatement
as a matter encompassed within the negligence determina-
tion, and not in the threshold question of duty.
restatement (Third), supra, § 40, comment k. (Tentative Draft
No. 5, 2007).
[7,8] As a general matter, the existence of a duty serves as
a legal conclusion that an actor must exercise that degree of
care as would be exercised by a reasonable person under the
circumstances. See A.W. v. Lancaster Cty. Sch. Dist. 0001, 280
Neb. 205, 784 N.W.2d 907 (2010). We have stated that “[d]uty
rules are meant to serve as broadly applicable guidelines for
public behavior, i.e., rules of law applicable to a category of
cases.” Id. at 212-13, 784 N.W.2d at 914-15. We have recog-
nized that “whether a duty exists is a policy decision.” Id. at
215, 784 N.W.2d at 916 (emphasis omitted). We have recog-
nized that special relationships can give rise to a duty. See,
A.W., supra; Brandon v. County of Richardson, 261 Neb. 636,
624 N.W.2d 604 (2001). The employer-employee relationship
can be a special relationship under the circumstances out-
lined in the restatement (Third) and can give rise to a duty in
negligence cases. See restatement (Third) of Torts: Liability
for Physical and emotional Harm § 40(a) and (b) (Proposed
Final Draft No. 1, 2005), entitled “Duty based on Special
relationship with Another.”
In A.W., supra, we noted that, as explained in the restatement
(Third), “foreseeability” determinations are determinations of
fact. Applying a similar analysis, we now note that determina-
tions of actual “knowledge” are also fact specific. Thus, the
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Cite as 283 Neb. 279

comment to the restatement (Third) quoted above notes and we
agree that the treatment of knowledge as it relates to the duty
arising out of a special relationship between an employer and
employee is a matter encompassed within the negligence fact
determination but not in the threshold question of duty.
[9] We find the restatement (Third) reasoning to be sound
and consistent with our jurisprudence, and we adopt § 40(a)
and (b)(4) of the restatement (Third), supra. Thus, in negli-
gence cases, an employer stands in a special relationship with
its employee who is in imminent danger or injured and thereby
helpless, and such employer owes the employee a duty of rea-
sonable care with regard to risks that arise within the scope
of the relationship. Such is the duty applicable to this negli-
gence case.
based on the foregoing analysis, we reject rejda’s con-
tention that it had no duty to martensen until it had actual
knowledge that martensen was hurt. on the contrary, rejda
had a duty to martensen under the circumstances. Although
our clarification of duty differs from that urged by the parties,
such difference has no impact on the outcome of our appel-
late review. This is because rejda successfully introduced all
the evidence regarding knowledge, causation, and damages it
relied on in its defense of the case under the theory of the case
as it understood it. Such evidence went to the fact determina-
tions within the province of the jury and is compatible with our
analytical framework.
At trial, rejda sought, through the introduction of exten-
sive evidence, to establish the fact that it lacked knowledge of
martensen’s predicament. The jury considered the evidence and
decided this fact against rejda. At trial, rejda sought, through
the introduction of extensive evidence, to establish the fact that
its alleged breach of duty did not proximately cause damage
to martensen. In this regard, certain evidence introduced by
rejda to the effect that martensen suffered irreversible dam-
ages shortly after the accident was meant to convince the jury
that its failure of diligence, if any, did not proximately cause
martensen’s injuries and damages. The jury considered this
evidence and decided these facts against rejda. Given the duty,
the record shows that martensen established causation and
288 	283 NebrASKA rePorTS

damages, and rejda’s evidence to the contrary did not persuade
the jury otherwise.
As one of its assignments of error, rejda claims that the
district court erred when it overruled its objection to a question
put to russell asking him, as president of rejda, whether the
corporation accepted responsibility for not finding martensen
sooner, to which russell responded, “I guess so, yes.” rejda
asserts that the question was irrelevant, called for an improper
legal conclusion, and invaded the province of the jury. We
reject this assignment of error.
[10] To constitute reversible error in a civil case, the admis-
sion or exclusion of evidence must unfairly prejudice a sub-
stantial right of a litigant complaining about evidence admitted
or excluded. Richardson v. Children’s Hosp., 280 Neb. 396,
787 N.W.2d 235 (2010). Whether or not it was error for the
court to allow the question, we conclude that such error would
not constitute reversible error.
At trial, martensen’s attorney asked, “As President of rejda[,]
does the corporation accept any responsibility for not finding
. . . martensen sooner?” The question was rather unclear, as
evidenced by the witness’ response, “I’m trying to figure out
the wording on that. I, you know, I guess so, yes.” Neither the
question nor the answer stated that rejda was legally liable for
martensen’s injuries. Instead, it could be understood as stat-
ing that the witness regretted not finding martensen sooner,
but not necessarily admitting legal liability for his injuries.
Furthermore, the court instructed the jury on the elements it
must find in order to find rejda liable for negligence, and
the jury would have needed to find those elements rather than
relying on the witness’ expression of regret for not finding
martensen sooner. Noting that the question and answer were
unclear and were not an acceptance of legal liability, we con-
clude that the court order overruling rejda’s objection to the
question did not prejudice a substantial right of rejda.
We have considered each of rejda’s assignments of error.
rejda moved for judgment notwithstanding the verdict or for
a new trial. To sustain a motion for judgment notwithstanding
the verdict, the court resolves the controversy as a matter of
law and may do so only when the facts are such that reasonable
mArTeNSeN v. rejDA broS. 	289
Cite as 283 Neb. 279

minds can draw but one conclusion. Lacey v. State, 278 Neb.
87, 768 N.W.2d 132 (2009). A motion for new trial is addressed
to the discretion of the trial court, whose decision will be
upheld in the absence of an abuse of that discretion. Robinson
v. Dustrol, Inc., 281 Neb. 45, 793 N.W.2d 338 (2011). each
of these motions was based on assertions of errors which we
have considered and we find to be without merit. The denials
of these motions did not constitute error. The law and evidence
supported the verdict. The district court’s rulings and its accept-
ance of the verdict were not error.
Cross-Appeal: The District Court Did Not Err
in Its Award of Costs, but Did Err in Its
Calculation of Prejudgment Interest.
on cross-appeal, martensen claims that the district court
erred when it awarded him costs of $168.56 rather than the
$3,417.29 which he sought and further erred in its calculation
of prejudgment interest. We find no merit to the assignment
of error regarding costs and affirm the costs ruling. However,
we do find merit to the claim that the district court erred in
the amount it awarded as prejudgment interest, and we reverse
the prejudgment interest award, set aside the judgment, and
remand for a recalculation of prejudgment interest consistent
with this opinion.
[11] The decision of a trial court regarding taxing of costs
is reviewed for an abuse of discretion. City of Falls City v.
Nebraska Mun. Power Pool, 281 Neb. 230, 795 N.W.2d 256
(2011). In Bartunek v. Gentrup, 246 Neb. 18, 516 N.W.2d 253
(1994), a negligence action, we stated that the costs of litiga-
tion and expenses incident to litigation may not ordinarily be
recovered unless provided for by statute or a uniform course
of procedure. We continue to adhere to this principle. See City
of Falls City, supra. The district court granted taxable costs in
the amount of $168.56 representing the cost of the filing fee
and subpoenas. There is no error in awarding these costs. See
id. The remainder of the costs sought by martensen involve
deposition reporting and copying charges. martensen does not
direct us to authority which would warrant the award of these
additional claimed costs, and we are not persuaded we should
depart from Bartunek. We reject this assignment of error on
290 	283 NebrASKA rePorTS

cross-appeal. The district court did not err in its costs award to
martensen, and we affirm the costs award.
on cross-appeal, martensen also claims that the district
court erred in the amount it awarded as prejudgment interest.
martensen specifically contends that the district court misin-
terpreted § 45-103.02 when it awarded prejudgment interest
applicable only to the $150,000 amount by which the $750,000
jury verdict exceeded martensen’s pretrial $600,000 offer of
settlement. We find merit to martensen’s argument on cross-
appeal regarding prejudgment interest.
Section 	45-103.02(1) 	regarding 	prejudgment 	interest 	on
unliquidated claims is at issue with respect to this assignment
of error on cross-appeal. Section 45-103.02(1) provides:
except as provided in section 45-103.04, interest as pro-
vided in section 45-103 shall accrue on the unpaid balance
of unliquidated claims from the date of the plaintiff’s first
offer of settlement which is exceeded by the judgment
until the entry of judgment if all of the following condi-
tions are met:
(a) The offer is made in writing upon the defendant by
certified mail, return receipt requested, to allow judgment
to be taken in accordance with the terms and conditions
stated in the offer;
(b) The offer is made not less than ten days prior to the
commencement of the trial;
(c) A copy of the offer and proof of delivery to the
defendant in the form of a receipt signed by the party or
his or her attorney is filed with the clerk of the court in
which the action is pending; and
(d) The offer is not accepted prior to trial or within thirty
days of the date of the offer, whichever occurs first.
[12,13] Statutory interpretation is a matter of law in con-
nection with which an appellate court has an obligation to
reach an independent, correct conclusion irrespective of the
determination made by the trial court. State ex rel. Wagner v.
Gilbane Bldg. Co., 280 Neb. 223, 786 N.W.2d 330 (2010). An
appellate court will place a sensible construction upon a statute
to effectuate the object of the legislation, as opposed to a literal
meaning that would have the effect of defeating the legislative
mArTeNSeN v. rejDA broS. 	291
Cite as 283 Neb. 279

intent. Walton v. Patil, 279 Neb. 974, 783 N.W.2d 438 (2010).
In construing a statute, a court must look to the statutory objec-
tive to be accomplished, the evils and mischiefs sought to be
remedied, and the purpose to be served, and then must place
on the statute a reasonable or liberal construction that best
achieves the statute’s purpose, rather than a construction that
defeats the statutory purpose. Id.
With regard to the prejudgment interest issue, each party
offers a conflicting interpretation of § 45-103.02(1), which
provides that prejudgment interest “shall accrue on the unpaid
balance of unliquidated claims from the date of the plaintiff’s
first offer of settlement which is exceeded by the judgment
until the entry of judgment” if certain conditions are met.
martensen asserts that the statute provides that when the
final judgment exceeds the offer of settlement, interest is to
be calculated on the entire amount of the judgment, whereas
rejda contends that prejudgment interest is available only on
the amount by which the judgment exceeds the offer of settle-
ment. The district court followed rejda’s approach. Although
rejda cites to § 6.b. of the introduction to chapter 4 of
NjI2d Civ. to support its and the district court’s interpretation,
there does not appear to be a published opinion that addresses
this question.
There is no dispute that martensen served his offer of
settlement for $600,000 on may 19, 2009, in compliance
with § 45-103.02, and that the offer was not accepted by
rejda. The district court awarded prejudgment interest on the
$150,000 amount by which the $750,000 verdict exceeded the
$600,000 offer.
offers to settle and offers of judgment are generally encour-
aged. We have stated that “it is the policy of the law to encour-
age rather than discourage the settlement of controversies by
the parties out of court.” Tadros v. City of Omaha, 273 Neb.
935, 942, 735 N.W.2d 377, 382 (2007). ordinarily, prejudg-
ment interest is unavailable on unliquidated damages, such as
in the instant case. See Countryside Co-op v. Harry A. Koch
Co., 280 Neb. 795, 790 N.W.2d 873 (2010). An unaccepted
offer to settle proposed by a plaintiff which is later exceeded
by a judgment exposes the party who is found liable and who
292 	283 NebrASKA rePorTS

declined to settle to prejudgment interest on an unliquidated
claim which otherwise might have been immune from prejudg-
ment interest. See R & D Properties v. Altech Constr. Co., 279
Neb. 74, 776 N.W.2d 493 (2009).
Section 45-103.02(1) controls the award of prejudgment
interest on an unliquidated claim where an offer has been
refused and the judgment exceeds the offer. We focus on
§ 45-103.02(1), which we again quote:
except as provided in section 45-103.04, interest as pro-
vided in section 45-103 shall accrue on the unpaid balance
of unliquidated claims from the date of the plaintiff’s first
offer of settlement which is exceeded by the judgment
until the entry of judgment if all of the following condi-
tions are met[.]
Although this statutory language is somewhat awkward, it
is obviously intended to describe both the offer to which it
applies and the time from which prejudgment interest begins to
accrue on that offer. The district court misread the statute and
concluded that the prejudgment interest that was due was lim-
ited to the “balance” of the judgment which exceeded the offer.
This was an error of law.
[14] Contrary to the district court’s reading of § 45-103.02(1),
the phrase “which is exceeded by the judgment” characterizes
and identifies the kind of “offer of settlement” to which pre-
judgment interest shall apply. Section 45-103.02(1) provides
for prejudgment interest on the full amount of the judgment,
and the phrase “the date of the plaintiff’s first offer of settle-
ment” sets the time from which prejudgment interest shall
start accruing. This is a sensible reading of the statute. See
Walton v. Patil, 279 Neb. 974, 783 N.W.2d 438 (2010). Thus,
under § 45-103.02(1), where the claim is unliquidated and the
plaintiff’s offer of settlement is exceeded by the judgment, pre-
judgment interest accrues on the full amount of the judgment
starting on the date of the plaintiff’s first offer of settlement
which offer is exceeded by the judgment. To the extent that
§ 6.b. of the introduction to chapter 4 of NjI2d Civ. is to the
contrary, it is disapproved.
The district court misread § 45-103.02(1) and mistakenly
concluded that prejudgment interest was available only on the
mArTeNSeN v. rejDA broS. 	293
Cite as 283 Neb. 279

$150,000 amount by which the judgment exceeded the offer.
This was error. Accordingly, we reverse the district court’s
ruling regarding the award of prejudgment interest and set
aside the judgment. We remand with instructions to recalculate
prejudgment interest on the entire $750,000 jury verdict, com-
mencing on the date of martensen’s offer of settlement which
was later exceeded by the judgment.
CoNCLUSIoN
For reasons explained above, we determine that the district
court did not err when it accepted the jury verdict and awarded
specified costs to martensen, and we affirm these rulings.
However, the district court erred in the manner by which it
calculated prejudgment interest. We reverse this ruling and set
aside the judgment, and we remand the cause with directions
to the district court to recalculate prejudgment interest on the
entire $750,000 award and direct that judgment thereafter be
entered on the $750,000 award, costs as already determined,
plus the recalculated amount of prejudgment interest.
A ffIrmed In pArt, And In pArt reverSed
And remAnded wIth dIrectIonS.
G errArd, j., not participating in the decision.
wrIGht, j., not participating.
I n re I ntereSt of S.c., AlleGed to Be
A dAnGerouS Sex offender .
S.c., AppellAnt, v. mentAl heAlth BoArd of
the fIfth judIcIAl dIStrIct, Appellee .
810 N.W.2d 699
Filed February 10, 2012. 	No. S-11-186.
1. Judgments: Appeal and Error. on a question of law, an appellate court reaches
a conclusion independent of the court below.
2. Mental Health: Judgments: Appeal and Error. The district court reviews the
determination of a mental health board de novo on the record. In reviewing a
district court’s judgment, an appellate court will affirm unless it finds, as a matter
of law, that clear and convincing evidence does not support the judgment.
294 	283 NebrASKA rePorTS