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Nethken v. Peerless Insurance Co.

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Argued September 5, 2008

Before KRAMER, FISHER, and THOMPSON, Associate Judges.

Appellants/cross-appellees, nieces and nephews of Mary Nethken (“Mary”), prevailed in their suit against appellee/cross-appellant Peerless Insurance Company (“Peerless”) to recover on the surety bond Peerless issued to the administrator of her estate. They contend that assets of Mary’s estate that were due them were distributed to others. In its cross-appeal, Peerless challenges that judgment, arguing that the trial court erred in determining that the administrator of Mary’s Nethken’s estate had committed fraud, in refusing to dismiss the action as untimely, in holding Peerless liable and in making other evidentiary and procedural rulings. The prevailing appellants/cross-appellees argue that the trial court erred in failing to award them prejudgment interest and legal expenses. We reverse the judgment below on the ground that fraud was not established by clear and convincing evidence and that the claim is, therefore, time-barred.

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