Howard v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 05 March 1993
• Docket Number: No. S-90-607,S-90-607
• Citation: 496 N.W.2d 862,242 Neb. 624
• Parties: Robert HOWARD, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
• Court: Nebraska Supreme Court

Page 862

496 N.W.2d 862

242 Neb. 624

Robert HOWARD, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.

No. S-90-607.

Supreme Court of Nebraska.

March 5, 1993.

Syllabus by the Court

1. Theft: Motor Vehicles: Title. A thief acquires no title in an automobile he or she steals and can transfer no title in and to such a vehicle.

2. Theft: Motor Vehicles: Insurance. A subsequent innocent purchaser of a stolen vehicle acquires an insurable interest in such vehicle.

3. Jurors. A party unsuccessfully challenging the seating of a venireperson as a juror who subsequently passes the venire panel for cause thereby merely indicates that subject to the previously made cause objection, he or she is ready to exercise his or her peremptory challenges.

4. Jurors. A party failing to challenge the seating of a venireperson as a juror, who subsequently passes the venire panel for cause, thereby waives any objection that might otherwise have existed to the seating of the unchallenged venireperson as a juror.

5. Jurors. A party who challenges a venireperson for cause but fails to exercise all of his or her peremptory challenges waives any objection to the seating of the challenged venireperson as a juror.

6. Jurors: Insurance. A venireperson who holds a policy of insurance issued by a mutual insurance company is not, by virtue of that fact alone, disqualified to sit as a juror if he or she can decide the case fairly solely upon the evidence presented at trial, irrespective of whether the owned policy is assessable or nonassessable.

7. Actions: Insurance. An insurer which gives one reason for its conduct and decision as to a matter of controversy cannot, after litigation has begun, defend upon another and different ground.

8. Pleadings: Appeal and Error. A request to amend pleadings is addressed to the discretion of the trial court; absent an abuse of discretion, the trial court's decision will be affirmed.

9. Appeal and Error. To be considered by an appellate court, error must be assigned and discussed in the brief of the one claiming that prejudicial error has occurred.

10. Summary Judgment: Appeal and Error. When reviewing a motion for summary judgment, an appellate court views the evidence in a light most favorable to the party opposing the motion and gives that party the benefit of all reasonable inferences deducible from that evidence.

11. 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 of 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.

12. Summary Judgment: Proof. The movant for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that if the evidence remains uncontroverted, the movant is entitled to judgment as a matter of law.

13. Property: Insurance. Whether a party has an insurable interest in property is ordinarily a question of fact to be resolved by the fact finder.

Lawrence E. Barrett and Clark J. Vanskiver of Sodoro, Daly & Sodoro, Omaha, for appellant.

Michael F. Coyle of Fraser, Stryker, Vaughn, Meusey, Olson, Boyer & Bloch, P.C., Omaha, for appellee.

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

CAPORALE, Justice.

I. STATEMENT OF CASE

Under a policy of insurance issued to him by the defendant- appellee, State Farm Mutual Automobile Insurance Company, the plaintiff-appellant, Robert Howard, seeks to recover the damages he claims to have sustained as the result of an automobile fire. Pursuant to verdict, the district court entered judgment in favor of State Farm. Howard asserts the district court erred in (1) failing to strike certain venirepersons for cause, (2) permitting him to be improperly impeached, (3) failing to grant his motion to strike State Farm's amended answer, (4) failing to grant his motion to strike a portion of the aforesaid answer, and (5) overruling his pretrial motions for summary judgment. We affirm.

II. FACTS

Howard, a licensed automobile dealer, owned and operated a used car and repossession business in Omaha, Nebraska. By the time of trial, he had purchased and sold some 150 automobiles.

In the fall of 1988, Howard saw in the parking lot of an Omaha restaurant a 1964 red Corvette with out-of-state license plates. After a close look at the automobile, Howard entered the restaurant and asked two persons whom he believed to be the owners whether the vehicle was for sale. The two replied that it was not, but Howard nonetheless handed them a business card and asked them to call him should they ever wish to part with the vehicle.

Approximately 3 to 4 weeks later, Howard received a telephone call from a man who identified himself as "the fellow who had the Corvette in the restaurant in Omaha...." The caller informed Howard that he had decided to sell the Corvette and asked Howard to pay for his expenses in bringing the vehicle to Nebraska. Howard told the man to save his receipts and Howard would reimburse him the costs for gas, food, and the like. Negotiations set the sale price at $9,500, which Howard intended to pay by check. The caller told Howard that he would be contacted upon the caller's arrival in Omaha. Howard did not know whether this was the same man with whom he had spoken at the restaurant.

At around 9:30 or 10 p.m. on October 1 or 2, 1988, Howard again received a call placed from a pay telephone near Howard's home. Howard told the male caller that Howard would drive up to the corner and make a U-turn so that the caller could follow Howard back to his (Howard's) home.

The caller, who identified himself as "Jay," was accompanied by a woman who drove a separate automobile. The two followed Howard to his home, where they put the Corvette in Howard's garage, and Howard paid the couple $50 to $60 for food and gasoline expenses.

The woman identified herself as the owner of the vehicle, and that evening Howard gave the couple $6,500 in cash "for tax purposes" and, since they would not accept a check, told them that they would have to call him the next morning so that he could take them to his bank to give them the remainder of the purchase price in cash. The woman gave Howard a bill of sale, upon which she signed her name as "Kathern Carter." Her signature was witnessed and notarized by Howard's wife, who did not require that the woman establish her identity. The bill of sale recited that "Kathern Carter" had "sold one 1964 Corvette ... to Bob Howard for the sum of $6500 on the 1st day of October, 1988."

The Corvette remained in Howard's garage for the evening. At approximately 10:30 the next morning, the couple contacted Howard and then drove to his home. Once there, the man rode with Howard to the latter's bank, where Howard said he cashed a check drawn by his wife for $3,000, which he gave to the man.

However, Howard at no time received the actual certificate of title to the automobile. Rather, he obtained only a duplicate photocopy of the title certificate, stamped "photocopy," which listed Kathern Carter as the owner of record. But on two Georgia registration receipts and a State Farm insurance identification card which were given to Howard when he purchased the vehicle, the name of the owner of record was spelled as "Kathrine Carter" on all three documents, but signed "Katherine Carter" on the back of one of the registration receipts. The insurance card, allegedly issued by State Farm, was later discovered by State Farm to be a forgery.

Howard acknowledged that the woman's first name was spelled on various documents in three different ways and that the signature on one of the Georgia registration receipts did not appear to be the same as that on the bill of sale he was given. Howard nonetheless claimed he did not "study a signature or didn't even think about studying the signature. [He] just looked at the [vehicle identification] numbers and the Corvette and basically that was about it." Howard stated that it "[l]ooked like a proof of ownership to" him.

Howard testified that he did not get the original title because the couple "said they had money borrowed against the title, there was a lien filed against the original title. They had to go back and pay off the lien with the money that I paid them for the automobile." However, the document that Howard received did not have a lien noted on it. Howard expected "Jay" to mail the title to him, but never heard from him again. Indeed, after the purchase of the automobile, Howard had no contact with either the seller or her male companion.

Howard testified at trial that although he did not attempt to write the alleged owners of the Corvette, he did try to call them once, but to no avail. However, during his pretrial deposition, Howard represented that he had never attempted to call the man or woman after the sale. He could not remember what he did with the couple's telephone number, nor could he recall the area code or state in which they resided.

Howard described the automobile as "all original," except that the wheels had belonged to a later model Corvette. He wanted to buy the vehicle "[b]ecause it was a fantastic buy," considering he estimated its retail value to be "[a]nywhere between eighteen and $24,000" or "around $25,000, probably between 20 and $25,000." As Howard put it, "I was greedy because it's not every day I run across a deal like that. If I had a chance to do it again, I know I would do it again even if I had to suffer through all this."

Howard testified that when purchasing an automobile, he "usually select[ed] the [vehicle identification] number, g[o]t all the paperwork for the car, and ... usually [paid] for it. Lots of times it takes them fifteen days to send [him] a title." When purchasing an...