Motor Club Ins. Ass'n v. Fillman
| Decision Date | 05 August 1997 |
| Docket Number | No. A-96-432,A-96-432 |
| Citation | 5 Neb.App. 931,568 N.W.2d 259 |
| Parties | MOTOR CLUB INSURANCE ASSOCIATION, Appellant, v. Warren FILLMAN, doing business as Fillman Insurance, Appellee. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Demurrer: Pleadings: Appeal and Error. When reviewing an order sustaining a demurrer, an appellate court accepts the truth of the facts which are well pled, together with the proper and reasonable inferences of law and fact which may be drawn therefrom, but does not accept as true the conclusions of the pleader.
2. Demurrer: Pleadings: Appeal and Error. When reviewing an order sustaining a demurrer, an appellate court cannot assume the existence of a fact not alleged, make factual findings to aid the pleadings, or consider evidence that might be adduced at trial.
3. Limitations of Actions: Appeal and Error. The point at which a statute of limitations begins to run must be determined from the facts of each case, and the decision of the district court on the issue of the statute of limitations will not be set aside by an appellate court unless clearly wrong.
4. Negligence: Words and Phrases. A profession is a calling requiring specialized knowledge and often long and intensive preparation including instruction in skills and methods as well as in the scientific, historical, or scholarly principles underlying such skills and methods, maintaining by force of organization or concerted opinion high standards of achievement and conduct, and committing its 5. Appeal and Error. An appellate court is not obligated to engage in an analysis which is not needed to adjudicate the case and controversy before it.
members to continued study and to a kind of work which has for its prime purpose the rendering of a public service.
6. Subrogation: Words and Phrases. Generally, subrogation is a substitution of one person or entity which is not a volunteer, a subrogee, for another, a subrogor, as the result of the subrogee's payment of a debt owed to the subrogor so that the subrogee succeeds to the subrogor's right to recover the amount paid by the subrogee.
7. Subrogation: Words and Phrases. Subrogation is the substitution of one person or entity in the place of another with reference to a lawful claim, demand, or right, so that the one who is substituted succeeds to the rights of the other in relation to the debt or claim and its rights, remedies, or securities.
8. Subrogation. A party cannot acquire by subrogation any rights not possessed by the party whose rights are subrogated.
9. Insurance: Subrogation: Limitations of Actions. An insurer's claim by subrogation is derivative from that of the insured, and it is subject to the same statute of limitations as though the action were sued upon by the insured.
10. Insurance: Subrogation. The insurer's right of subrogation against third persons causing the loss paid by the insurer to the insured is derived from the insured alone. Consequently, the insurer can take nothing by subrogation but the rights of the insured and is subrogated to only such rights as the insured possesses. The rights of the insurer against the wrongdoer cannot rise higher than the rights of the insured against such wrongdoer, since the insurer as subrogee, in contemplation of law, stands in the place of the insured and succeeds to whatever rights he may have in the matter.
11. Insurance: Subrogation: Limitations of Actions. Any defense which a wrongdoer has against the insured, such as the statute of limitations, is good against the insurer subrogated to the rights of the insured.
12. Insurance: Subrogation: Limitations of Actions. Whatever period of limitations is applicable to the insured passes by subrogation to the insurance carrier, who, by reason of such subrogation, is put in place of the party to whose right it is subrogated.
13. Limitations of Actions. Generally, a cause of action accrues, and the statute of limitations begins to run, when the aggrieved party has the right to institute and maintain suit, even though such plaintiff may be ignorant of the existence of the cause of action.
14. Actions: Breach of Contract: Time. A cause of action in contract accrues at the time of the breach or failure to do the thing agreed to.
15. Breach of Contract: Limitations of Actions. The cause of action for a breach of contract accrues, and the statute of limitations begins to run, when the breach occurs.
16. Breach of Contract: Limitations of Actions: Damages. A cause of action for breach of contract accrues as soon as breach occurs even though the plaintiff was then ignorant of the injury sustained or could not ascertain the amount of his damages.
17. Limitations of Actions: Damages. A statute of limitations can be triggered at some time before the full extent of damages is sustained.
18. Limitations of Actions. For the statute of limitations to begin running, the plaintiff need not have suffered actual damages; however, there must be injury, which is the invasion of a legally protected interest.
19. Limitations of Actions: Pleadings. If a petition facially shows that a cause of action is barred by the statute of limitations, the plaintiff must allege facts sufficient to avoid the bar of the statute of limitations.
20. Demurrer: Pleadings: Limitations of Actions. A petition is demurrable which on its face shows that the action is barred by a statute of limitations and no allegations tolling the statute are made.
21. Demurrer: Pleadings: Limitations of Actions. Failure to allege facts showing a basis for avoiding the effect of the statute of limitations means that the plaintiff, in effect, has failed to allege facts sufficient to constitute a cause of action, and the petition is therefore subject to demurrer.
22. Demurrer: Pleadings. When a demurrer to a petition is sustained, a court must grant leave to amend the petition unless it is clear that no reasonable possibility exists that amendment will correct the defect.
23. Demurrer: Appeal and Error. An order sustaining a demurrer should be affirmed if any one of the grounds on which it was asserted is well taken.
Michael A. England, of Wolfe, Anderson, Hurd, Luers & Ahl, Lincoln, for appellant.
Robert T. Grimit, of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellee.
Motor Club Insurance Association appeals from the decision of the district court for York County which sustained the demurrer of appellee, Warren Fillman, doing business as Fillman Insurance, on the ground that Motor Club's third amended petition failed to state a cause of action, and dismissed Motor Club's case with prejudice. For the reasons stated below, we affirm the decision of the district court.
The facts alleged in the third amended petition are as follows: At some time prior to July 3, 1990, Patrick Shaw and James Shaw, doing business as York Auto & Truck Center (the Shaws), entered into an oral contract with Warren Fillman, doing business as Fillman Insurance (Fillman), for the renewal of a liability insurance policy issued by Guaranty National Co. of Englewood, Colorado. The petition alleges that this policy would have provided primary liability coverage for any claims arising from the operation or use of any vehicle owned by the Shaws. The petition further alleges that this liability insurance policy was not renewed by Fillman and thus that he was in breach of his oral contract with the Shaws.
On August 27, 1990, Paul Huffman, while employed by the Shaws, was operating a pickup truck owned by the Shaws when he was involved in a collision with a station wagon owned and operated by Clifford D. Mustapha and his family. The Mustaphas' vehicle was damaged, and some of the Mustaphas suffered personal injuries. The liability insurance policy of the Shaws was not in effect at this time.
The Mustaphas brought an action against Huffman in the U.S. District Court for the District of Nebraska (federal action), seeking recovery for personal injuries and property damage. Huffman's defense was tendered to Motor Club under the automobile liability insurance policy issued by Motor Club in favor of Huffman's father.
On or about October 6, 1993, Motor Club entered into a settlement agreement in the federal action with the Mustaphas on behalf of Huffman for a total amount of $90,000.
On December 28, 1994, Motor Club filed the present action against Fillman in the district court for York County, claiming, through subrogation of Huffman's rights, to be a third-party beneficiary of the oral contract between the Shaws and Fillman and further alleging that the breach of that oral contract caused Motor Club to defend Huffman in the federal action. Motor Club sued Fillman for $99,558.93 to compensate it for the settlement with the Mustaphas and the costs of defending Huffman in the federal action.
Motor Club filed an amended petition on April 18, 1995. It again filed an amended petition on June 27. Fillman demurred to this second amended petition. On August 29, the court sustained the demurrer and granted Motor Club leave to amend the petition.
Motor Club filed a third amended petition on December 4, 1995. Fillman demurred to Motor Club's third amended petition for reasons
including the statute of limitations and the lack of privity of contract between Motor Club and Fillman. On April 10, 1996, the district court for York County sustained the demurrer and dismissed Motor Club's case with prejudice for failure to allege a cause of action, citing the bar of the statute of limitations as 4 years from the date of the collision and the lack of privity of contract between Motor Club and Fillman. Motor Club appealed to this court.
Motor Club alleges that the district court erred in finding that its claim was barred by the statute of limitations, in finding that it was required to allege privity of contract between itself...
To continue reading
Request your trial
-
Kuhn v. Wells Fargo Bank of Nebraska
...443 N.W.2d 872 (1989). See, also, Harsh International v. Monfort Indus., 266 Neb. 82, 662 N.W.2d 574 (2003); Motor Club Ins. Assn. v. Fillman, 5 Neb.App. 931, 568 N.W.2d 259 (1997). 65. See, Harsh International, supra note 64; Hiway 20 Terminal, Inc., supra note 66. See, e.g., Oddo, supra n......
-
Port Authority of New York and New Jersey v. Evergreen Intern. Aviation, Inc.
...distinguishes a profession from other occupations. (Pierce v. AALL Ins. Inc., supra, 531 So.2d, at 87-88.) In Motor Club Ins. Assn. v. Fillman, 5 Neb.App. 931, 568 N.W.2d 259, the Court of Appeals of Nebraska was also faced with the issue as to whether an insurance agent was a professional ......
-
State v. Collins
...evidence does show such acts occurring in Massachusetts. However, we need not decide the venue issue. See Motor Club Ins. Assn. v. Fillman, 5 Neb.App. 931, 568 N.W.2d 259 (1997) (appellate court is not obligated to engage in analysis which is not needed to adjudicate case and controversy be......
-
Meyer v. Broekemeier
...by reason of some legal obligation, to pay damages occasioned by the initial action or inaction of another. Motor Club Ins. Assn. v. Fillman, 5 Neb. App. 931, 568 N.W.2d 259 (1997). Indemnity applies to another who should bear the cost because it was the latter's wrongdoing for which the fo......