Callahan v. Brant

Decision Date12 May 2023
Docket NumberS-21-1006
PartiesMark and Michelle Callahan, husband and wife appellants, v. Jeb Brant, an individual, and Shelter Mutual Insurance Company, a Missouri insurance company, appellees.
CourtNebraska Supreme Court

1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law.

2. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court.

3. Insurance: Agents. When an insured asks an insurance agent to procure insurance, it is the duty of the insured to advise the insurance agent as to the desired insurance, including the limits of the policy to be issued.

4. __ __ . An insurance agent has no duty to anticipate what coverage an insured should have.

5. __ __. It would be an unreasonable burden to impose upon insurance agents the duty to anticipate what coverage an individual should have, absent the insured's requesting coverage in at least a general way.

6. Insurance: Valuation. Nebraska's valued policy statute, Neb. Rev. Stat. § 44-501.02 (Reissue 2021), conclusively fixes the true value of insured property at the valuation written in the policy, and when there is a total loss, that sum is the measure of recovery.

7. __ __. Nebraska's valued policy statute, Neb. Rev. Stat § 44-501.02 (Reissue 2021), is required to be part of every fire policy issued in Nebraska.

8. Insurance: Valuation: Damages. Nebraska's valued policy statute, Neb. Rev. Stat. § 44-501.02 (Reissue 2021), fixes conclusively the worth of the building which is the subject of insurance, and if the building is wholly destroyed, its actual value is not to be determined by evidence, agreement, or arbitration. The damages are liquidated, and the measure of recovery already obtained.

9. Insurance: Valuation: Public Policy. The public policy objectives of Nebraska's valued policy statute, Neb. Rev. Stat. § 44-501.02 (Reissue 2021), are twofold. Before a loss, the purpose is to prevent overinsurance by requiring the parties to investigate and agree upon a binding determination of value before a policy is issued. And after a total loss, the purpose is to foreclose disputes and litigation between insurers and insureds over the value of the destroyed property by conclusively fixing its true value as a matter of law and by precluding evidence of a different value except to show fraud or a motive for arson.

10. Statutes: Legislature: Intent. When construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.

11. Statutes: Courts. A court must reconcile different provisions of a statute so that they are consistent, harmonious, and sensible.

12. Statutes: Intent. In construing a statute, the court must look at the statutory objective to be accomplished, the problem to be remedied, or the purpose to be served, and then place on the statute a reasonable construction that best achieves the purpose of the statute, rather than a construction defeating the statutory purpose.

13. Insurance: Valuation. Neither party can evade Nebraska's valued policy statute, Neb. Rev. Stat. § 44-501.02 (Reissue 2021), by avoiding the duty to investigate the value of the property before agreeing to a binding determination of value.

14. __: __. In actions between the insurer and insured to determine the amounts owed by the insurer after a total loss to real property insured against loss by fire, tornado, windstorm, lightning, or explosion, both the insurer and the insured are bound by the conclusive determination of true value established by Neb. Rev. Stat. § 44-501.02 (Reissue 2021), and neither can contend the value of the total loss is something different than was written in the policy.

15.: . It is not the type of action, but, rather, the nature of the claim being asserted, that triggers application of Nebraska's valued policy statute. And the valued policy statute is implicated whenever a suit between the insurer and the insured seeks to determine the amount owed by the insurer for a total loss to real property insured against loss by fire, tornado, windstorm, lightning, or explosion.

Appeal from the District Court for Adams County: Terri S. Harder, Judge. Affirmed.

Mark R. Richardson, Timothy R. Engler, and Sami D. Segelke, of Rembolt Ludtke, L.L.P., for appellants.

Roger G. Steele and Liana Steele, of Steele Law Office, for appellee Jeb Brant.

Isaiah J. Frohling and Susan K. Sapp, of Cline, Williams, Wright, Johnson &Oldfather, L.L.P., for appellee Shelter Mutual Insurance Company.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Freudenberg, JJ., and Miller, District Judge.



Mark and Michelle Callahan filed this negligence action against their insurer and its agent,[1] seeking to recover damages after their home was destroyed in a fire. The district court granted summary judgment in favor of the insurer and its agent. Although our reasoning differs, we affirm the district court's judgment.


In 2011, the Callahans purchased a Shelter Mutual Insurance Company (Shelter) homeowners insurance policy through a licensed insurance producer, Jeb Brant.[2] Brant is a "captive" Shelter agent and exclusively sells Shelter insurance. Before the policy was issued, Brant used a reconstruction cost calculator tool to estimate the cost of rebuilding the Callahans' home, using information obtained from the Callahans and from the Clay County assessor's website. Brant prepared a report that estimated reconstruction costs at $250,481 and contained a disclaimer stating:

Listed above is a summary of the information we used to estimate the cost of replacing your real property for the purpose of helping you decide the amount of coverage to obtain. The estimate is not a guarantee of adequate coverage. We provide this to you only to help you decide if your property is adequately insured. Please review this information to verify its accuracy. If any of the information is incorrect, please notify us.

The Callahans dispute that they received a copy of the report, but it is undisputed that they subsequently purchased a replacement cost policy insuring their home for $250,481.

The Callahans thereafter renewed their Shelter policy annually from 2012 to 2018. Pursuant to a provision in the policy, the coverage amount was automatically increased for inflation during this time. In 2018, the applicable policy limit on the home had increased to $260,600, and the policy premiums increased accordingly.

In anticipation of the policy's 2019 renewal, Michelle met with Brant to discuss the details of the policy. The parties dispute what was said during this meeting. The Callahans claim that Michelle expressed concern about whether the policy limit was sufficient to replace their home in the event of a total loss and that Brant assured Michelle they were "more than adequately covered." Brant denies making any such assurance. After this meeting, the Callahans renewed the Shelter policy for 2019 with a policy limit of $267,400 on their home.

After the Callahans renewed the policy, Mark and Brant happened to see each other. At this unscheduled meeting, the Callahans claim that Mark expressed concern to Brant regarding the sufficiency of the policy limit on their home. According to the Callahans, Brant assured Mark that the existing policy limit would be sufficient to rebuild the home in the event of a total loss. Brant disputes making any such statement.

In May 2019, the parties agree the Callahans' home was totally destroyed by an electrical fire. The Callahans submitted a claim on the policy with Brant's assistance, and it is undisputed that Shelter subsequently paid the Callahans all amounts due and owing under the policy. The Callahans allege that when they subsequently obtained a quote for the cost of rebuilding their home, they learned "the cost to rebuild was substantially higher than the amount of insurance coverage." The quoted amount to rebuild the home is not reflected in our record, and the accuracy of the quote is disputed by the parties.

In April 2020, the Callahans filed a complaint against Shelter and Brant, styled as claims for breach of contract, negligence, and negligent misrepresentation. The Callahans later stipulated to the dismissal of their breach of contract claim. Their remaining claims generally allege that Brant negligently advised them on the estimated replacement value of their home and negligently misrepresented the adequacy of their policy limits in the event of a total loss. The Callahans contend they reasonably relied on Brant's statements and, as a result, sustained damages "in an amount to be proven at trial." And they alleged Shelter was liable for Brant's misrepresentations under a theory of respondeat superior. Brandt and Shelter denied the allegations of negligence and negligent misrepresentation, and alleged the Callahans' complaint failed to state a claim upon which relief could be granted.

Shelter and Brant each moved for summary judgment, arguing they were entitled to judgment as a matter of law on the Callahans' remaining claims. At the hearing on the motion, the court received multiple exhibits, including depositions of the parties and a copy of the applicable Shelter policy. As relevant to the issues on appeal, that policy contains a special...

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