Dalton Buick, Oldsmobile, Pontiac, Cadillac, Inc. v. Universal Underwriters Ins. Co.
| Decision Date | 04 March 1994 |
| Docket Number | No. S-92-463,S-92-463 |
| Citation | 512 N.W.2d 633,245 Neb. 282 |
| Parties | DALTON BUICK, OLDSMOBILE, PONTIAC, CADILLAC, INC., doing business as Dalton Buick-Olds-Pont-Cad, Inc., doing business as Dalton's Auto Center, Appellee, v. UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Summary Judgment. Summary judgment is to be granted only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Final Orders: Appeal and Error. Although the denial of a motion for summary judgment, standing alone, is not a final order and thus may not be appealed, when adverse parties have each moved for summary judgment and the trial court sustained one of the motions, the reviewing court obtains jurisdiction over both of the motions and may determine the controversy which is the subject of those motions or may make an order specifying the facts which appear without substantial controversy and direct such further proceedings as it deems just.
3. Insurance: Contracts: Appeal and Error. The construction of an insurance contract or policy is a question of law, in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the court below.
4. Insurance: Time. Where an insurer has requested or acquiesced in the sending of premiums by mail, the payment is deemed to have been made at the time it was deposited in the mail.
5. Contracts. Acceptance of an offer is operative and completes the contract as soon as put out of the offeree's possession unless the offer otherwise provides.
6. Insurance: Contracts: Intent. An insurance policy is to be construed as any other contract to give effect to the parties' intentions at the time the contract was made.
7. Insurance: Contracts. When the terms of an insurance contract are clear, they are to be accorded their plain and ordinary meaning.
8. Insurance: Contracts. While an ambiguous policy will be construed in favor of the insured, an ambiguity will not be read into policy language which is plain and unambiguous in order to construe it against the preparer of the contract.
9. Insurance: Contracts. The parties to an insurance contract may contract for any lawful coverage, and the insurer may limit its liability and impose restrictions and conditions upon its obligation under the contract not inconsistent with public policy or statute.
10. Insurance: Contracts. The natural and obvious meaning of the provisions in an insurance policy is to be adopted in preference to a fanciful, curious, or hidden meaning.
11. Words and Phrases. "Receive" means to take possession or delivery of, to knowingly accept, to come into possession of, to acquire.
12. Words and Phrases. "Possession" is the act or condition of having in or taking into one's control or holding at one's disposal, having actual physical control.
13. Summary Judgment: Proof. The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must furnish sufficient evidence to demonstrate that such movant is entitled to judgment as a matter of law if the evidence presented for summary judgment remains uncontroverted; after the movant has shown facts entitling it to judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact which, as a matter of law, prevents judgment for the movant.
14. Insurance: Estoppel. An insurer is not estopped by acceptance of late inventory reports.
15. Insurance: Liability: Estoppel. The liability of an insurer under a full reporting clause may not be expanded by estoppel.
Ronald S. Depue, of McDermott & Depue, Grand Island, for appellant.
Howard P. Olsen, Jr., and Robert G. Simmons, Jr., of Simmons, Olsen, Ediger & Selzer, P.C., Scottsbluff, for appellee.
In this contract action, the plaintiff-appellee, Dalton Buick, Oldsmobile, Pontiac, Cadillac, Inc., doing business as Dalton Buick-Olds-Pont-Cad, Inc., doing business as Dalton's Auto Center, claims the defendant-appellant, Universal Underwriters Insurance Company, failed to pay all it owed under the policy of hail insurance it had issued. The district court granted Dalton's motion for summary judgment and overruled Universal's competing motion for such judgment. Universal thereupon appealed to the Nebraska Court of Appeals, which affirmed the judgment of the district court, 511 N.W.2d 189. Universal then successfully sought further review by this court, claiming, in summary, that the intermediate court erroneously concluded that (1) the policy was vague and ambiguous in regard to its reporting requirements and (2) Universal had received the required inventory report from Dalton in such time as to entitle the latter to full coverage. Dalton contends that it is, in any event, entitled to full coverage because (1) Universal accepted a premium after the loss, (2) the policy ambiguously defines what Universal is to pay in the event of a late report, and (3) the auditing mechanisms provided in the policy negate the accurate reporting requirement. We reverse the judgment and remand the cause to the Court of Appeals with the direction that it be remanded to the district court for the vacation of the judgment in favor of Dalton and entry of summary judgment in favor of Universal.
The procedural aspects of this matter are controlled by two rules. First, summary judgment is to be granted only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Hawkins Constr. Co. v. Reiman Corp., 245 Neb. 131, 511 N.W.2d 113 (1994); VonSeggern v. Willman, 244 Neb. 565, 508 N.W.2d 261 (1993); Zwingman v. Kallhoff, 244 Neb. 514, 507 N.W.2d 894 (1993). Second, although the denial of a motion for summary judgment, standing alone, is not a final order and thus may not be appealed, when adverse parties have each moved for summary judgment and the trial court sustained one of the motions, the reviewing court obtains jurisdiction over both of the motions and may determine the controversy which is the subject of those motions or may make an order specifying the facts which appear without substantial controversy and direct such further proceedings as it deems just. See Baker's Supermarkets v. Feldman, 243 Neb. 684, 502 N.W.2d 428 (1993). Accord Nu-Dwarf Farms v. Stratbucker Farms, 238 Neb. 395, 470 N.W.2d 772 (1991).
The substantive issues are controlled by the rule that construction of an insurance contract or policy is a question of law, in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the court below. See, Decker v. Combined Ins. Co. of Am., 244 Neb. 281, 505 N.W.2d 719 (1993); Allied Mut. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 243 Neb. 779, 502 N.W.2d 484 (1993); Polenz v. Farm Bureau Ins. Co., 227 Neb. 703, 419 N.W.2d 677 (1988).
Dalton operates an automobile dealership in Scottsbluff, Nebraska. Universal's policy insured a portion of Dalton's used automobile inventory for the 1991 calendar year. The policy required Dalton to report by the 15th of each month the cost of its inventory of automobiles as of the last day of the previous month and to remit within the same time period its variable monthly premium payment as calculated in the report. The monthly report and premium were to be mailed to Universal at P.O. Box 3485, Omaha, Nebraska, 68103-0485.
The pertinent language reads:
YOU [Dalton] MUST REPORT--Within 15 days after the end of each calendar month, YOU must report the cost of all AUTOS owned by or consigned to YOU as of the last business day of that month.
THE MOST WE [Universal] WILL PAY--Regardless of the number of AUTOS insured, the most WE will pay for any one LOSS to COVERED AUTOS is the least of the following:
(a) the total cost of all COVERED AUTOS;
(b) with respect to COVERED AUTOS owned by or consigned to YOU, the percentage the last report of AUTO values (received by US [Universal] prior to the LOSS) bears to the cost of all such AUTOS that YOU should have reported.
The policy also states:
PREMIUM--YOU must pay all required premiums when due, on the basis specified in the declarations:
"Variable"--each month YOU must calculate the earned premiums by multiplying the rates (shown on the required reports of values) times the values YOU report as applicable to those rates. Together with the specific premiums shown on the report, YOU must pay US within 15 days after the end of the calendar month for which the report is to be submitted. There will be no final adjustment in the earned premium if the values reported are accurate and premiums are paid promptly when due.
The policy gives Universal the right to audit Dalton as follows:
INSPECTION AND AUDIT--WE have the right but not the duty, to inspect the insured property or operations at any time....
YOU must keep accurate records and send them to US promptly upon request. WE have the right to examine and audit YOUR books and records at any time, up to three years after this policy ends.
YOU must allow US to perform any inspection or audit.
On Tuesday, May 14, 1991, Dalton mailed its inventory report as of April 30, 1991, showing an insured inventory of used automobiles totaling $701,536, together with its check...
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