Durand v. Western Sur. Co., S-92-1028

• Citation: 245 Neb. 649,514 N.W.2d 840
• Decision Date: 15 April 1994
• Docket Number: No. S-92-1028,S-92-1028
• Parties: Gary DURAND, Appellant, v. WESTERN SURETY COMPANY, Appellee.
• Court: Supreme Court of Nebraska

Page 840

514 N.W.2d 840 245 Neb. 649 Gary DURAND, Appellant,
v.
WESTERN SURETY COMPANY, Appellee. No. S-92-1028. Supreme Court of Nebraska. April 15, 1994.

Page 841

Syllabus by the Court

1. Demurrer: Pleadings: Appeal and Error. When reviewing an order sustaining a demurrer, an appellate court accepts the truth of facts well pled and the factual and legal inferences which may be reasonably deduced from such facts, but does not accept conclusions of the pleader.

2. Statutes: Legislature: Intent. When asked to interpret 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.

3. Statutes: Intent. In construing a statute, a 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 which best achieves the purpose of the statute, rather than a construction defeating the statutory purpose.

4. Demurrer: Pleadings. When a demurrer to a petition is sustained, a court must grant the plaintiff leave to amend the petition unless it is clear that no reasonable possibility exists that repleading will correct the defective petition.

John P. Grant and Mary T. Boland Steier, of Cannon, Goodman, O'Brien & Grant, P.C., Omaha, for appellant.

Joseph C. Byam, of Byam & Byam, Omaha, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, FAHRNBRUCH, LANPHIER, and WRIGHT, JJ.

BOSLAUGH, Justice.

This is an action by the plaintiff, Gary Durand, against the defendant, Western Surety Company, to recover damages under a motor vehicle dealer's bond furnished by the defendant for Daisy Motors, Inc. The trial court sustained the defendant's demurrer to the plaintiff's amended petition on the ground that the petition did not state facts sufficient to constitute a cause of action. The trial court further found that the plaintiff's petition could not be remedied by further amendment and dismissed the plaintiff's cause of action.

[245 Neb. 650] The plaintiff has appealed and assigns as error the trial court's (1) sustaining the defendant's demurrer and (2) dismissing the plaintiff's petition without granting the plaintiff leave to amend.

The plaintiff was employed at Daisy Motors, a used-car dealership in Omaha, Nebraska. On February 14, 1989, the plaintiff suffered total and permanent loss of vision in his right eye as a result of an injury received in the course of his employment with Daisy Motors. Because his employer did not have workers' compensation insurance, the plaintiff filed a civil action against his employer and obtained a judgment in the amount of $65,000 on October 2, 1991.

At the time of the plaintiff's injury, Daisy Motors was licensed as a used-car dealer by the State of Nebraska and was required by Neb.Rev.Stat. § 60-1419 (Reissue 1988) to have a motor vehicle dealer's bond in the amount of $25,000. The defendant furnished the statutory bond for Daisy Motors at the time of the plaintiff's injury.

In addition to the above-stated facts, the plaintiff also alleged that his injury was a result of Daisy Motors' failure to provide proper tools at its established place of business. The plaintiff further alleged that his injuries and the damages awarded him in his judgment against Daisy Motors are covered by the dealer's bond issued by the defendant.

Page 842

In its order sustaining the defendant's demurrer, the trial court found that the plaintiff's personal injury claim arising out of his accident of February 14, 1989, while employed by Daisy Motors, is not covered by the motor vehicle dealer's bond provided for Daisy Motors by the defendant and that Daisy Motors' failure to carry workers' compensation insurance was not a violation of its license.

When reviewing an order sustaining a demurrer, an appellate court accepts the truth of facts well pled and the factual and legal inferences which may be reasonably deduced from such facts, but does not accept conclusions of the pleader. LaPan v. Myers, 241 Neb. 790, 491 N.W.2d 46 (1992).

The conditions of the motor vehicle dealer's bond provided by the defendant were set forth in § 60-1419. It stated in pertinent part:

[245 Neb. 651] The bond shall provide (1) that the applicant will faithfully perform all the terms and conditions of such license ... and (3) that the motor vehicle, motorcycle, motor vehicle auction, or trailer dealer or wholesaler shall well, truly, and faithfully comply with all the provisions of his or her license and the acts of the Legislature relating thereto.

The...