25-221. Statute of limitations; trial procedure.

In any action in which it is claimed by one or more of the defendants that the action is barred by the statute of limitations any party may move that the issue raised by the statute of limitations be tried separately and determined before any other issues in the case. Issues of fact raised by the statute of limitations shall be tried before a jury unless trial by jury is waived by all parties. Issues of law raised by the statute of limitations shall be determined by the court without a jury. If the issue raised by the statute of limitations is determined by the jury or the court in favor of the plaintiff the remaining issues shall then be tried. If the issue raised by the statute of limitations is determined by the jury or the court in favor of the defendant the action or actions barred by the statute of limitations shall be dismissed.

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Annotations

The Legislature has the right to decide the terms under which it will waive its sovereign and governmental immunity for tort actions against the State or its political subdivisions. Because a jury trial is not one of the terms of the State’s waiver of governmental immunity under the Political Subdivisions Tort Claims Act, a party is not entitled to a jury trial on its claim that a defendant is not a political subdivision employee, even if that fact determines whether the statute of limitations on a plaintiff’s claim has expired. Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014).

The plain language of this section states that a jury trial on the statute of limitations issue is required only when issues of fact are raised; issues of law are to be determined by the court without a jury. If there are only conclusions of law asserted on the statute of limitations issue, a separate hearing to address the statute of limitations issue is not required under this section. Blankenau v. Landess, 261 Neb. 906, 626 N.W.2d 588 (2001).

This section provides for preliminary rulings by the court on statute of limitations questions. Gillam v. Firestone Tire & Rubber Co., 241 Neb. 414, 489 N.W.2d 289 (1992).

The special bifurcation of a trial pursuant to this section does not create a separate judgment when the trial court determines the action is not barred by the statute of limitations. Interlocutory orders may be modified at subsequent terms provided the court still has not rendered a final decision in matters still pending. City of Wood River v. Geer-Melkus Constr. Co., 233 Neb. 179, 444 N.W.2d 305 (1989).

An order denying a plea of the statute of limitations after a separate hearing on that issue is not appealable. Wulf v. Farm Bureau Ins. Co., 188 Neb. 258, 196 N.W.2d 164 (1972).

Where claim that action is barred by the statute of limitations is raised by motion to try that issue separately, the court shall determine it before trying other issues in the case. Mattice v. Messer, 493 F.2d 498 (8th Cir. 1974).