Tyson v. Anderson Drywall, Inc., 091407 NEWC, 1542

• Case Date: September 14, 2007
• Court: Nebraska

GALE TYSON, Plaintiff, v. ANDERSON DRYWALL, INC., Defendant. No. 1542 DOC 205 Nebraska Workers Compensation September 14, 2007           Staci Hartman, Phillip G. Wright Attorneys at Law           Jerald L. Rauterkus, Attorney at Law           ORDER OF REVERSAL AND REMAND ON REVIEW          This matter came on for a review hearing before the Nebraska Workers' Compensation Court at Omaha, Douglas County, Nebraska, on September 11, 2007, on the application for review of the defendant filed April 18, 2007, alleging error in the award entered on April 11, 2007, by Judge James R. Coe and upon the written brief of the defendant and the oral arguments of the parties.          The application for review of the defendant alleges error in Judge Coe’s finding that the plaintiff could proceed with this action "without opening a formal estate to determine the rights of the parties." The petition in this case was filed on August 24, 2005. Gale Tyson died on April 24, 2006, (E20) and trial of this matter was held on March 15, 2007. The trial was held over the objection of the defendant.          The death of an employee from a cause unrelated to the injury which is the subject of his workers’ compensation lawsuit suspends the action until someone is substituted for the decedent as a party. The action can no longer proceed in his name but must be revived in the name of his representative or successor. Linch v. Northport Irr. Dist., 14 Neb.App. 842, 717 N.W.2d 522 (Neb.App. 2006). Section 25-1402 of the Nebraska statutes provides that no action pending in any court (emphasis supplied) shall abate by the death of either or both of the parties thereto with certain exceptions. However, § 25-1405 provides that where one of the parties to an action dies, if the right of action survives in favor of or against his representatives or successor, the action may be revived and proceed in their names. Mr. Tyson’s cause of action did not abate, it survived and needed to be revived as provided by statute in order for Judge Coe...