Jaramillo v. Mercury Ins. Co.
| Citation | 242 Neb. 223,494 N.W.2d 335 |
| Decision Date | 15 January 1993 |
| Docket Number | S-90-962 and S-90-963,Nos. S-90-275,s. S-90-275 |
| Parties | Bienvenida JARAMILLO, Personal Representative of the Estate of Carmen Lupe Jaramillo, Deceased, Appellee, v. MERCURY INSURANCE COMPANY, a Corporation, Appellant. Ruby JARAMILLO and Bienvenida Jaramillo, as Legal Guardian and Next Friend of Ruby Jaramillo, Appellees, v. Bienvenida JARAMILLO, Personal Representative of the Estate of Carryl A. Ortiz, Deceased, Appellee, and Mercury Insurance Company, a Corporation, Appellant. Cindy JARAMILLO and Bienvenida Jaramillo, as Legal Guardian and Next Friend of Cindy Jaramillo, Appellees, v. Bienvenida JARAMILLO, Personal Representative of the Estate of Carryl A. Ortiz, Deceased, Appellee, and Mercury Insurance Company, a Corporation, Appellant. |
| Court | Supreme Court of Nebraska |
Syllabus by the Court
1. Contracts. The validity of a contract is to be determined by the lex loci contractus, that is, by the law of the place where the contract was made, unless there is something in the contract which is prohibited by express statute or infringes on some positive rule of public policy.
2. Jurisdiction: Final Orders: Appeal and Error. An appellate court lacks jurisdiction to entertain appeals from other than final orders.
3. Jurisdiction: Final Orders: Appeal and Error. Ordinarily, an order in a civil action, that is to say, in a cause brought under the provisions of chapter 25 of our statutes, is final when no further act of the trial court is required to dispose of the cause.
4. Summary Judgment: Liability: Appeal and Error. Generally, an interlocutory summary adjudication of liability alone, which does not decide the question of damages, is not appealable.
5. Final Orders. An order which affects a substantial right in an action and which in effect determines the action and prevents a judgment is final.
6. Insurance: Final Orders: Appeal and Error. An order declaring an insurer has a duty to defend is final and appealable.
7. Summary Judgment. Summary judgment is properly granted only when the record discloses that there is no genuine issue concerning any material fact or the ultimate inferences deducible from such fact or facts and that the movant is entitled to judgment as a matter of law.
8. Proof. Generally, the law of Nebraska governs the placement of the burden of proof.
9. Insurance: Contracts: Proof. The burden to prove that an exclusionary clause applies rests upon the insurer.
Richard L. Walentine and James G. Bitzes, of Walentine, O'Toole, McQuillan & Gordon, Omaha, for appellant.
John B. Ashford, of Bradford, Coenen & Ashford, Omaha, for appellees.
Each of these three cases, which were consolidated for briefing and argument in this court, arises out of an automobile accident that occurred on July 15, 1986, in Dodge County, Nebraska, when the automobile owned by the decedent Carmen Lupe Jaramillo and occupied by her and her two minor children, appellees Ruby and Cindy Jaramillo, and which was driven by Carryl A. Ortiz, collided with a truck. As a result, both the driver and owner were killed and the two children were injured.
In her capacity as the personal representative of the owner's estate, appellee Bienvenida Jaramillo brought case No. S-90-275 against the owner's automobile liability insurer, the appellant, Mercury Insurance Company, for a declaration that the insurer was obligated to pay the judgment she had earlier obtained against the driver.
Appellee Ruby Jaramillo and appellee Bienvenida Jaramillo, in her capacity as legal guardian and next friend of Ruby Jaramillo, brought case No. S-90-962 against Bienvenida Jaramillo as personal representative of the driver's estate and against appellant Mercury. This suit seeks damages from both the driver's estate and Mercury as the driver's insurer.
Appellee Cindy Jaramillo and appellee Bienvenida Jaramillo, this time in her capacity as legal guardian and next friend of Cindy Jaramillo, brought case No. S-90-963 against Bienvenida Jaramillo, again in her capacity as personal representative of the driver's estate, and against appellant Mercury. This suit also seeks damages from both the driver's estate and Mercury as the driver's insurer.
In each case, the district court sustained the appellees' motions for summary judgment and declared that Mercury's policy provided coverage for the death in the one instance and the injuries in the other instances. Mercury has appealed, asserting, in summary, that the court erroneously interpreted its policy.
For the reasons elucidated hereinafter, we reverse the judgment of the district court in the owner's case (No. S-90-275) and direct that the cause be dismissed. In the children's cases (Nos. S-90-962 and S-90-963), we affirm the judgments of the district court.
The owner, who was the natural mother of the children described earlier, was unmarried at the time of the accident and was a resident of Los Angeles County, California. The driver was likewise a resident of that location. Bienvenida Jaramillo is the maternal grandmother of the two minor children.
The owner, driver, and two children had spent the 10 days prior to the accident visiting the owner's sister in Bristow, Nebraska. At the time of the fateful event, they were en route to visit the owner's brother in Chicago, Illinois, and the driver was operating the owner's automobile with the owner's permission.
At all relevant times, Mercury was a corporation organized and doing business by virtue of the laws of California and was authorized by that state to issue automobile liability policies. The policy in question was in full force and effect on the day of the accident, named the owner as the insured, and on the page declaring the applicable coverages listed the automobile involved as one of the vehicles insured.
Under the liability portion of the policy, Mercury undertakes to "pay on behalf of the insured all sums ... which the insured shall become legally obligated to pay as damages because of ... bodily injury sustained by any person other than an insured ... arising out of the ownership or use of the owned automobile...." (Emphasis in original.)
The policy also reads, in pertinent part:
Persons Insured: The following are insured ...
a) with respect to the owned automobile (1) the named insured and any relative,
(2) any other person using an owned automobile, with the permission of the named insured, and persons residing with such permissive user and related to such permissive user by blood, marriage or adoption, including wards and foster children....
(Emphasis in original.)
The policy next provides that "[n]amed [i]nsured means the individual identified as such in the declarations" and that "[i]nsured means a person ... described under 'Persons Insured.' " (Emphasis in original.) "Relative" is defined, so far as is relevant to our inquiry, as "a person who resides with the named insured and is related to the named insured by blood...." "Use of a motor vehicle" is defined as the "operating, maintaining, or loading and unloading thereof." "Owned Automobile" is defined as a "motor vehicle listed in the declarations."
The policy also reads:
Exclusions: This policy does not apply ...
....
... to liability for bodily injury to an insured or liability for bodily injury to an insured whenever the ultimate benefits of that indemnification accrue directly or indirectly to an insured, including, in both instances, those persons who would have otherwise been included within this policy's definition of an insured but who are excluded from coverage while operating or using a motor vehicle.
(Emphasis in original.)
The parties have treated these cases as if the adjudication in the owner's suit would necessarily determine the adjudication in the children's suits; however, as foreshadowed in part I above, such is not so. For that reason, we treat the two categories separately.
In substance, Mercury's position is that although as one driving a listed automobile with the owner's permission the driver was unquestionably an insured, Mercury is nonetheless not obligated to pay the judgment against the driver's estate because the beneficiary of that judgment, the owner's estate standing in the shoes of the owner, was itself an insured and thus within the aforequoted exclusion. The owner's estate, on the other hand, argues, in substance, that the use of the phrases "named insured," "an insured," and "the insured" renders the policy unclear and ambiguous, requiring that it be construed in favor of the owner's estate, as was done by the district court.
Obviously, since the policy was issued in California and we sit in Nebraska, the threshold question is under what state's law the policy is to be tested.
Our rule is that the validity of a contract is to be determined by the lex loci contractus, that is, by the law of the place where the contract was made, unless there is something in the contract which is prohibited by express statute or infringes on some positive rule of public policy. First Mid America Inc. v. MCI Communications Corp., 212 Neb. 57, 321 N.W.2d 424 (1982); Jorgensen v. Crandell, 134 Neb. 33, 277 N.W. 785 (1938). The term "contract" includes policies of insurance. See, Exstrum v. Union Casualty & Life Ins. Co., 167 Neb. 150, 91 N.W.2d 632 (1958); Lawrence v. Equitable Life Ins. Co., 128 Neb. 72, 257 N.W. 530 (1934).
Thus, we analyze this dispute over the interpretation of the policy under the law of California, leaving for consideration in section (c)(ii) of this part of the opinion whether there is any Nebraska statute or policy which prevents application of that law.
Under the law of California, the words used in an insurance policy are to be interpreted according to the plain meaning which...
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