Hubbell v. Farmers Ins. Group

• Court: Nebraska Supreme Court
• Writing for the Court: Heard before WHITE, C. J., and McCOWN, CLINTON, and BRODKEY, JJ., and HENDRIX; BRODKEY
• Citation: Hubbell v. Farmers Ins. Group, 263 N.W.2d 863, 200 Neb. 472 (Neb. 1978)
• Decision Date: 29 March 1978
• Docket Number: No. 41401,41401
• Parties: William J. HUBBELL, Appellant, v. The FARMERS INSURANCE GROUP, Appellee.

Page 863

263 N.W.2d 863

200 Neb. 472

William J. HUBBELL, Appellant, v. The FARMERS INSURANCE GROUP, Appellee.

No. 41401.

Supreme Court of Nebraska.

March 29, 1978.

Syllabus by the Court

1. The moving party is not entitled to summary judgment except where there exists no genuine issue as to any material fact in the case and where under the facts he is entitled to judgment as a matter of law. The trial court examines the evidence, not to decide any issue of fact, but to discover if any real issue of fact exists.

2. In the absence of a proper bill of exceptions, any assignment of error that requires an examination of evidence cannot prevail on appeal. In such a case, the only question presented on appeal is the sufficiency of the pleadings to sustain the judgment of the trial court.

3. Depositions, affidavits, answers to interrogatories, and requests for admissions offered in evidence on a motion for summary judgment must be included in a bill of exceptions to be reviewed in this court on appeal.

4. Automobile theft insurance protects only against losses arising from criminal takings of the insured vehicle. There can be no recovery under such a policy for a loss asserted to amount to a theft in the absence of proof of the existence of a criminal intent on the part of the taker.

James P. Miller, Omaha, for appellant.

John K. Green of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellee.

Heard before WHITE, C. J., and McCOWN, CLINTON, and BRODKEY, JJ., and HENDRIX, District Judge.

BRODKEY, Justice.

William J. Hubbell, plaintiff and appellant herein, brought this action against defendant, The Farmers Insurance Group, to recover $4,200 for the theft of his car, which he alleged was insured by the defendant under an insurance policy providing for theft coverage. Defendant denied liability under the policy, and moved for summary judgment. After a hearing, the trial court concluded that no genuine issue of fact existed, sustained defendant's motion, and dismissed the petition with prejudice. Plaintiff's motion for new trial was overruled, and plaintiff has appealed to this court, contending that the District Court erred in granting summary judgment in favor of the defendant. We affirm the judgment of the District Court.

The insurance policy in question covered loss of plaintiff's automobile caused by "theft," and had an effective date of May 7, 1975. In his petition plaintiff alleged that on or about May 7, 1975, he had suffered a theft loss of his automobile. He then alleged: "A subsequent investigation by Mr. William J. Hubbell revealed that said automobile had been repossessed by Gilbert Gibreal, an Omaha car dealer, and subsequent investigation revealed that Mr. Gilbert Gibreal had a superior title due to the fact that Mr. Hubbell had purchased the car from an individual who had been able to secure a valid Nebraska title based on foreign title i. e. from the District of Columbia."

At the hearing on the motion for summary judgment, the defendant offered in evidence several exhibits relevant to the issue of whether the automobile was taken by theft, or repossessed by a person with superior title to the plaintiff. Relying solely on statements in the briefs of the parties, it appears that Gilbert Gibreal had sold the car to one Donald Branch, retaining title to the vehicle. Branch then somehow obtained a District of Columbia title, and used it to secure a second, Nebraska, title which did not reflect Gibreal's interest in the vehicle. The plaintiff purchased the automobile from Branch, who gave plaintiff the second, Nebraska, title. Gibreal then repossessed the car, and plaintiff brought a replevin action against Gibreal to recover the car. As stated in plaintiff's brief, "the issue of possession was decided against Mr. Hubbell in a replevin action by the Omaha, Nebraska, Municipal Court." Plaintiff then filed this action against the defendant. The exhibits offered and received in evidence at the hearing on the motion for summary judgment, however, are not before this court because the plaintiff did not have a bill of exceptions prepared and filed in this court.

The law is that the moving party is not entitled to summary judgment except where there exists no genuine issue as to any material fact in the case and where under the facts he is entitled to judgment as a matter of law. The trial court examines the evidence, not to decide any issue of fact, but to discover if any real issue of fact exists. See, Barnes v. Milligan, 196 Neb. 50, 241 N.W.2d 508 (1976); Green v. Village of...