Decisions
656
of the Nebraska Court of Appeals
19 nebraska appellate reports
John F. Beckman and Farmers Mutual Insurance
Company of Nebraska, appellants, v.
Federated Mutual Insurance Company,
also known as and doing business as
Federated Insurance,
et al., appellees.
___ N.W.2d ___
Filed March 27, 2012.
No. A-11-307.
1. Judgments: Appeal and Error. The interpretation of a statute is a question of
law, and when reviewing a question of law, an appellate court reaches a conclusion independent of the lower court’s ruling.
2. Insurance: Declaratory Judgments: Attorney Fees. Attorney fees under Neb.
Rev. Stat. § 44-359 (Reissue 2010) are available for an insured who wins a
declaratory judgment action against an insurer.
3. Insurance: Contracts: Liability. An adjustment of liability priorities between
two insurers is not an action upon the insurance policy.
Appeal from the District Court for Washington County: John
E. Samson, Judge. Affirmed.
Thomas A. Grennan and Francie C. Riedmann, of Gross &
Welch, P.C., L.L.O., for appellants.
Michael G. Mullin and Amy L. Van Horne, of Kutak Rock,
L.L.P., for appellees Federated Mutual Insurance Company and
Sid Dillon Chevrolet-Oldsmobile-Pontiac, Inc.
Irwin, Sievers, and Moore, Judges.
Sievers, Judge.
This is the second appearance of this matter in this court.
We now address whether under the factual pattern and decision outlined in Beckman v. Federated Mut. Ins. Co., 18 Neb.
App. 513, 788 N.W.2d 806 (2010) (Beckman I), attorney
fees are allowable under Neb. Rev. Stat. § 44-359 (Reissue
2010). We agree with the trial court’s decision to deny the
requested fees.
FACTUAL BACKGROUND
It is most efficient to simply repeat the key facts of the case
as we related such in Beckman I. Thus, we quote from our
earlier opinion:
Decisions
of the Nebraska Court of Appeals
beckman v. federated mut. ins. co.
Cite as 19 Neb. App. 656
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On July 31, 2006, John F. Beckman took his stepdaughter’s vehicle to Sid Dillon Chevrolet-Oldsmobile-Pontiac,
Inc.[,] . . . to have repairs performed on the vehicle. Sid
Dillon provided Beckman with a substitute vehicle, a
2005 Chevrolet Malibu owned by Sid Dillon, and gave
him permission to operate the vehicle. On that same day,
Beckman was involved in an accident with a bicyclist,
Clinton R. Sedivy, while operating the Malibu.
At the time of the accident, Beckman was insured by
Farmers Mutual Insurance Company of Nebraska . . . .
At that time, Sid Dillon and the Malibu were insured by
Federated Mutual Insurance Company . . . .
Beckman I, 18 Neb. App. at 514-15, 788 N.W.2d at 808.
In Beckman I, we set forth various provisions of the Farmers
Mutual Insurance Company of Nebraska (Farmers Mutual)
and Federated Mutual Insurance Company (Federated) insurance policies, which we need not repeat in this opinion. In
Beckman I, we described that appeal as “an insurance coverage dispute arising out of an accident in which the driver was
operating a temporary substitute vehicle provided by a car
dealership.” 18 Neb. App. at 514, 788 N.W.2d at 808. We further said that “[t]he question before this court is whether the
Farmers Mutual insurance policy or the Federated insurance
policy provided primary coverage.” Id. at 517, 788 N.W.2d
at 810. Our conclusion in Beckman I was that the Farmers
Mutual policy and the Federated policy contained mutually
repugnant language and that Nebraska law requires that in
such circumstance, the insurer for the vehicle’s owner, in this
case Federated on behalf of Sid Dillon Chevrolet-OldsmobilePontiac, Inc. (Sid Dillon), had the primary coverage for the
claims of the bicyclist with whom Beckman collided while
driving Sid Dillon’s car. Therefore, we held that Federated
provided primary coverage and that the Farmers Mutual policy
which provided personal insurance for the driver, Beckman,
was excess coverage. Consequently, we reversed the district
court’s grant of summary judgment to Federated and remanded
the matter with directions to enter summary judgment in favor
of Beckman and Farmers Mutual consistent with our decision
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that the Farmers Mutual policy was only excess to the primary
coverage of Federated.
Thereafter, Beckman and Farmers Mutual filed a motion for
taxation of attorney fees in the district court for Washington
County, Nebraska, seeking an award for the attorney fees
incurred by Farmers Mutual in defending the underlying
case filed by the bicyclist against Beckman and Sid Dillon.
Additionally, Beckman and Farmers Mutual sought an award
of attorney fees for pursuing the case we have described as
Beckman I and summarized herein. The district court entered
its order on March 29, 2011, granting attorney fees to Farmers
Mutual for the defense of the underlying personal injury lawsuit, as Federated conceded its responsibility for such fees. The
district court, citing Dairyland Ins. Co. v. Kammerer, 213 Neb.
108, 327 N.W.2d 618 (1982), found that Beckman I “involved
an adjustment of liability priorities between two insurance
companies [and] the attorney’s fees incurred by [Beckman and
Farmers Mutual] in regard to the primary coverage issue, are
not authorized under [§] 44-359.”
Beckman and Farmers Mutual have appealed the denial of
their requests for fees incurred in the pursuit of the declaratory
judgment action, including fees and costs in their successful
appeal to this court in Beckman I.
ASSIGNMENT OF ERROR
The single assignment of error is simply that the trial court
erred in denying attorney fees for the costs incurred in pursuing
the declaratory judgment action, Beckman I.
STANDARD OF REVIEW
[1] The parties are in agreement on the correct standard of
review for this court. The standard is that the interpretation of
a statute is a question of law, and when reviewing a question
of law, an appellate court reaches a conclusion independent of
the lower court’s ruling. Hoiengs v. County of Adams, 254 Neb.
64, 574 N.W.2d 498 (1998).
ANALYSIS
Section 44-359 provides, in part:
In all cases when the beneficiary or other person entitled thereto brings an action upon any type of insurance
Decisions
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beckman v. federated mut. ins. co.
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policy except workers’ compensation insurance, or upon
any certificate issued by a fraternal benefit society, against
any company, person, or association doing business in this
state, the court, upon rendering judgment against such
company, person, or association, shall allow the plaintiff a reasonable sum as an attorney’s fee in addition to
the amount of his or her recovery, to be taxed as part of
the costs.
This statute also provides that in the event of an appeal, the
appellate court shall likewise allow reasonable attorney fees.
Beckman and Farmers Mutual argue:
This was not a situation in which two insurance companies disputed who was primary and who was excess;
rather, Federated took the position that Beckman was
not an insured under the policy. This declaratory action
was, therefore, “an action upon” the policy to prove that
Beckman met the definition of an insured.
Brief for appellants at 7.
Beckman and Farmers Mutual argue that the fact that
costs were incurred to establish Federated’s liability does not
allow Federated to avoid its obligation for the costs of such
determination under § 44-359. On the other hand, Federated
adopted the district court’s position. Citing Dairyland Ins.
Co. v. Kammerer, 213 Neb. 108, 327 N.W.2d 618 (1982),
Federated and Sid Dillon argue that attorney fees are not
recoverable when the action involves merely an adjustment of
liability priorities between insurers rather than an action upon
the policy.
We turn our attention to Dairyland Ins. Co. v. Kammerer,
supra, where the court held that attorney fees are not recoverable by one insurer from another insurer in an action to adjust
the priorities of liability between the insurers. In Beckman I, it
seems clear that the adjustment of priorities of liability between
Farmers Mutual and Federated was the core issue and, in fact,
we stated in our opinion that such was the nature of the case.
Our decision in Beckman I did not relieve either insurance
company of liability, but established priority by its holding
that the Federated policy for the vehicle’s owner provided
“primary” coverage while the driver’s personal policy through
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Farmers Mutual was merely “excess.” 18 Neb. App. at 514, 788
N.W.2d at 808.
In Dairyland Ins. Co. v. Kammerer, supra, the suit was instituted by Dairyland Insurance Company (Dairyland) seeking
a declaration that a policy issued by Auto-Owners Insurance
Company (Auto-Owners) provided primary coverage for an
automobile accident on March 27, 1980. The evidence was that
on March 5, Auto-Owners issued a binder to Judith C. Popish
covering a 1974 MGB convertible which she owned. On March
27, Richard A. Wrich, with Popish’s permission, was operating her insured MGB and was involved in an accident with
another automobile, allegedly injuring Diana K. Kammerer. On
April 10, Auto-Owners sent Popish a notice of cancellation,
advising her that the Auto-Owners policy would be canceled
effective April 22, which would have been nearly a month
after the accident. The reason stated for the cancellation was
that Popish had not disclosed that Wrich was a member of
her household at the time of the issuance of the Auto-Owners
policy. Auto-Owners returned only the portion of the premium
paid by Popish attributable to the timeframe after the date of
the cancellation. While the court’s opinion does not articulate
whom Dairyland insured, we believe it is a safe assumption
that Dairyland was Wrich’s personal auto insurer. The court
found that on the date of the accident, Wrich operated Popish’s
motor vehicle with her permission, that Wrich was an insured
under the Auto-Owners policy, and that the policy provided
coverage for both Popish and Wrich (unless on March 27 the
policy was not in effect at all). The court explained that upon
learning of the alleged fraud at the time of the issuance of its
policy, Auto-Owners had two choices: (1) it could cancel the
policy from its inception and return the entire premium on the
theory that the policy never came into existence or (2) it could
waive the alleged fraud, keep the premium earned to the date of
cancellation, and accept responsibility under the policy. Since
Auto-Owners canceled the policy effective a month after the
accident, the Auto-Owners policy was in effect at the time of
the accident and provided coverage for Wrich.
[2] The secondary question in Dairyland Ins. Co. v. Kammerer,
213 Neb. 108, 327 N.W.2d 618 (1982), dealt with the fact that
Decisions
of the Nebraska Court of Appeals
beckman v. federated mut. ins. co.
Cite as 19 Neb. App. 656
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the appellants had jointly requested an award of attorney fees
under the version of § 44-359 then in effect. After citing the
provisions of the statute, the court said that the appellants
included the beneficiaries of the policy, Popish and Wrich, and
that the provisions of § 44-359 should be applied. The court
held that “[a]ttorney fees under [this] statute are available for
an insured who wins a declaratory judgment action against
the insurer.” Id. at 112, 327 N.W.2d at 621, citing Herrera v.
American Standard Ins. Co., 203 Neb. 477, 279 N.W.2d 140
(1979). But, the Supreme Court said that Dairyland “stands on
different ground.” Id. The court continued:
Dairyland may be entitled to bring or join this declaratory
judgment action because of the effect a judgment may
have on its own liability to Wrich on a separate policy.
But as between Dairyland and Auto-Owners, this suit is
merely an adjustment of liability priorities and it cannot
be seen as “an action upon” the policy issued by AutoOwners to Popish. The appellants . . . Wrich and . . .
Popish are therefore given 10 days from the date of the
issuance of this opinion in which to make a showing to
this court of whether they have incurred any expenses by
way of attorney fees in connection with either the trial of
this case in the District Court or its appeal in this court. .
. . The appellees are given 5 days thereafter to make any
countershowing. Upon the filing of such showings, the
court will give further consideration to the request for
attorney fees.
Dairyland Ins. Co. v. Kammerer, 213 Neb. at 112-13, 327
N.W.2d at 621.
As in Dairyland Ins. Co. v. Kammerer, supra, in the instant
action, Beckman and Farmers Mutual brought the lawsuit tried
in Beckman I, the resulting appeal, and then this appeal from the
denial of a request for attorney fees. It is argued that Beckman
was a beneficiary of the Federated policy “as an insured and
Farmers Mutual was both a beneficiary and a person interested
in the policy whose rights and obligations were dependent
upon that policy.” Brief for appellants at 8-9. It is then asserted
that “the trial court was required to allow a reasonable sum as
an attorney’s fee to Beckman and Farmers Mutual.” Brief for
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appellants at 9. Federated asserts that the Dairyland Ins. Co.
case was not an action on the policy, but, rather, involved a
question of law regarding the effect of Auto-Owners’ actions
in attempting to void the policy. This is a misstatement in that
Auto-Owners did not attempt to void the policy, but actually
simply canceled it a month after the accident, and thus, the
policy had been in effect and provided coverage to Popish, the
owner of the involved vehicle, as well as to Wrich, the driver
of Popish’s vehicle.
Accordingly, following the lead of the Nebraska Supreme
Court in Dairyland Ins. Co. v. Kammerer, supra, we find that
as between Farmers Mutual and Federated, there can be no
award of fees because Farmers Mutual is neither the policyholder nor an insured under the Federated policy. Admittedly,
in Beckman I, we determined that Beckman was a beneficiary
of the Federated policy because of the doctrine of mutual
repugnancy, which meant that the insurance policy of the
vehicle’s owner, Sid Dillon, provided the primary coverage and
Beckman’s personal insurance was only excess. So, all that is
left is the question of whether Beckman, personally, is entitled
to an award of fees under the statute.
In the case before us, there is a stipulation regarding attorney fees to which an exhibit is attached and incorporated. The
attached exhibit is entitled “Coverage Action Attorney Fees
and Costs,” which the stipulation says “reflects attorney fees,
paralegal fees, and out-of-pocket expenses charged by Gross
& Welch to Farmers Mutual.” The stipulation further provides
that such fees and costs were paid by Farmers Mutual to pursue
and finalize the coverage action. Therefore, given the stipulation, the billing to Farmers Mutual, and the stipulation that
Farmers Mutual has paid such fees, we need not take the step
taken by the Nebraska Supreme Court in Dairyland Ins. Co.
v. Kammerer, 213 Neb. 108, 327 N.W.2d 618 (1982), to give
Beckman an opportunity to make a showing that he personally paid attorney fees in order to establish that he was a beneficiary under the Federated policy who is entitled to recover
costs and fees under § 44-359. But, under Dairyland Ins. Co. v.
Kammerer, supra, Farmers Mutual is not entitled to recover the
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of the
Appeals
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fees and costs it paid to adjust the liability coverage priorities
between Farmers Mutual and Federated.
CONCLUSION
[3] Accordingly, as the district court found, the declaratory
judgment action, Beckman I, was an adjustment of liability
priorities between two insurers, Farmers Mutual and Federated,
the former being found to have primary coverage and the latter only excess coverage. The express holding of Dairyland
Ins. Co. v. Kammerer, supra, was that the dispute between
Dairyland and Auto-Owners was “merely an adjustment of liability priorities and cannot be seen as ‘an action upon’ the policy issued by Auto-Owners to Popish.” Id. at 113, 327 N.W.2d
at 621. The same is true here as between Farmers Mutual and
Federated. For the foregoing reasons, we affirm the judgment
of the district court.
Affirmed.
State of Nebraska, appellee, v.
Mark A. Henshaw, appellant.
___ N.W.2d ___
Filed March 27, 2012.
No. A-11-567.
1. Judgments: Speedy Trial: Appeal and Error. As a general rule, a trial court’s
determination as to whether charges should be dismissed on speedy trial grounds
is a factual question which will be affirmed on appeal unless clearly erroneous.
2. Speedy Trial. To calculate the time for speedy trial purposes, a court must
exclude the day the information was filed, count forward 6 months, back up 1
day, and then add any time excluded under Neb. Rev. Stat. § 29-1207(4) (Cum.
Supp. 2010) to determine the last day the defendant can be tried.
3. ____. Under Neb. Rev. Stat. § 29-1208 (Cum. Supp. 2010), if a defendant is not
brought to trial before the running of the time for trial, as extended by excludable
periods, he or she shall be entitled to his or her absolute discharge.
4. Speedy Trial: Pretrial Procedure. The plain terms of Neb. Rev. Stat.
§ 29-1207(4)(a) (Cum. Supp. 2010) exclude all time between the filing of a
defendant’s pretrial motions and their disposition, regardless of the promptness
or reasonableness of the delay. The excludable period commences on the day
immediately after the filing of a defendant’s pretrial motion. Final disposition
under § 29-1207(4)(a) occurs on the date the motion is granted or denied.
