Olsen v. Farm Bureau Ins. Co. of Nebraska
| Decision Date | 27 April 2000 |
| Docket Number | No. S-99-151.,S-99-151. |
| Citation | 259 Neb. 329,609 N.W.2d 664 |
| Parties | Robert OLSEN, Personal Representative of the Estate of Matthew Robert Olsen, deceased, and Robert Olsen and Judy Olsen, appellees, v. FARM BUREAU INSURANCE COMPANY OF NEBRASKA, appellant. |
| Court | Nebraska Supreme Court |
Maren Lynn Chaloupka, of Van Steenberg, Chaloupka, Mullin, Holyoke, Pahlke, Smith, Snyder & Hofmeister, P.C., for appellant.
Steven W. Olsen, of Simmons, Olsen, Ediger, Selzer, Ferguson & Carney, P.C., for appellees.
Matthew Robert Olsen (Matthew) was injured as a result of a one-vehicle accident on the morning of April 17, 1995. The driver of the vehicle in which Matthew was riding lost control of the vehicle, which went off the road and struck a power pole before coming to rest in a ditch. After exiting the vehicle, Matthew was electrocuted by a powerline; he died several days later from the resulting injury. The primary question presented in this appeal is whether Matthew was "occupying" the vehicle at the time of his electrocution within the meaning of his parents' vehicle insurance policy.
Matthew was 16 years old at the time of the accident. The driver of the vehicle, Cody Young, was 15 years old at the time of the accident. The vehicle Cody was driving was owned by Robert Olsen and Judy Olsen, Matthew's parents. The defendant in the instant case, Farm Bureau Insurance Company of Nebraska (Farm Bureau), admits that at the time of the accident, the Olsens were insured by a vehicle insurance policy issued by Farm Bureau and that the vehicle involved in the accident was covered by that policy.
At the time of the accident, Cody was driving the Olsens' vehicle with Matthew's permission, although Cody did not have a driver's permit. The boys were driving into Bridgeport, Nebraska, from Cody's home outside of town. They were driving west on a county road that had a rough surface and was dry at the time.
Cody testified in a deposition that he was driving under the speed limit when he lost control of the vehicle due to the poor condition of the road. The Morrill County Sheriff determined that Cody lost control on gravel that had been used to patch the pavement. Cody stated, Matthew grabbed the steering wheel to try and help Cody regain control of the vehicle, but the vehicle went into the ditch.
When asked whether the vehicle struck the power pole, Cody testified, The Morrill County Sheriff determined that the vehicle struck and sheared the power pole before landing in the irrigation ditch. Photographs taken at the scene indicate that the power pole was bent to a nearly horizontal position, but was not broken off completely, nor was the top of the pole in contact with the ground.
The vehicle came to rest in an irrigation ditch on the south side of the east-west road, with the front of the vehicle pointed southwest. After the vehicle came to a stop, both Cody and Matthew exited the vehicle. Since the driver's-side door would not open, both exited out of the passenger's-side door. Both Cody and Matthew were able to get out of the vehicle without assistance. Cody testified that Matthew had some cuts on his face, but did not appear to have any broken bones, nor was he limping, staggering, or stumbling. Cody testified that both he and Matthew were "just a little hazy, I'd say, but I mean we weren't like falling everywhere, but we were not totally coherent, I guess." Cody testified that Matthew spoke and that his comments were to the effect that his parents were going to be upset with him.
Cody testified that after they exited the vehicle, Matthew began to walk away from the door and toward the rear of the vehicle. Cody exited the vehicle right behind Matthew, and Cody went toward the front of the vehicle. About 10 seconds after that, before Cody reached the front of the vehicle, Matthew came into contact with a live powerline.
The Morrill County Sheriff indicated that the powerline was approximately 40 feet from the vehicle. Cody disagreed with this estimation, and in Cody's deposition, he testified that "[i]f you measured from the front of the car all the way to the road, it still wouldn't be 40 feet." Cody further testified that although he had not made measurements, Cody testified that Matthew was very close to the vehicle when he was electrocuted, in that Matthew would have been able to reach out and touch the vehicle. Photographs taken at the scene are somewhat inconclusive, but appear to more closely correspond to Cody's estimation regarding the distance of the powerline from the vehicle.
Cody testified that less than a minute passed from the time that he and Matthew exited the vehicle until the moment that Matthew made contact with the powerline. Cody walked toward the front of the vehicle, and when he turned and looked back, he saw Matthew "in the air and there was like [a] big fire ball underneath him." Photographic evidence taken at the scene indicates that Matthew was found approximately 35 to 40 feet away from the vehicle. However, Cody testified that when Matthew was electrocuted, he first landed only a few feet from the rear of the vehicle. Cody testified that Matthew was thrown forward, away from the vehicle, by the electrocution.
Cody ran over to Matthew and turned him over, and then ran for help. When no one was home at the nearest house, Cody returned and attempted to perform CPR on Matthew. Cody then ran to another house, where the resident called for an ambulance. Farm Bureau admits that the Olsens incurred medical expenses in excess of $25,000 as a result of the accident, that the Olsens demanded payment pursuant to the medical payments provision of their insurance policy, and that Farm Bureau denied payment.
Robert Olsen, as personal representative of Matthew's estate, and the Olsens, individually, initiated the present action to obtain payment from Farm Bureau under the policy. Both parties filed motions for summary judgment.
Farm Bureau argued, in support of its motion for summary judgment, that Matthew was not "occupying" the vehicle within the meaning of the insurance policy at the time of his injury. Farm Bureau further argued that the action was untimely filed, asserting that the action was time barred by the 2-year statute of limitations found in the wrongful death statutes.
The district court determined that at the time of his injury, Matthew was "`getting out'" of the vehicle, within the definition of "occupying" contained in the insurance policy. The district court further determined that the action sounded in contract and that compliance with the wrongful death statute was not required. Consequently, the district court granted summary judgment for Matthew's estate and the Olsens and entered judgment against Farm Bureau in the amount of $25,000. Farm Bureau appeals.
Farm Bureau assigns, in summary, that the district court erred in finding that (1) Matthew was an "occupant" of the vehicle at the moment of his injury and thus was eligible for coverage under the Farm Bureau policy and (2) this action is not time barred by the Nebraska wrongful death statutes.
Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any 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. Pfeifer v. E.I. Du Pont de Nemours & Co., 258 Neb. 756, 606 N.W.2d 773 (2000); Fossett v. Board of Regents, 258 Neb. 703, 605 N.W.2d 465 (2000); Derr v. Columbus Convention Ctr., 258 Neb. 537, 604 N.W.2d 414 (2000).
In reviewing an order of summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment was granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Fossett v. Board of Regents, supra; Derr v. Columbus Convention Ctr., supra.
The interpretation of an insurance policy is a question of law, in connection with which an appellate court has an obligation to reach its own conclusions independent of the determination made by the lower court. Spulak v. Tower Ins. Co., 257 Neb. 928, 601 N.W.2d 720 (1999); Allied Mut. Ins. Co. v. Action Elec. Co., 256 Neb. 691, 593 N.W.2d 275 (1999).
Statutory interpretation is a matter of law, in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the court below. Phelps Cty. Bd. of Equal. v. Graf, 258 Neb. 810, 606 N.W.2d 736 (2000); Snyder v. Contemporary Obstetrics & Gyn., 258 Neb. 643, 605 N.W.2d 782 (2000). Which statute of limitations applies is a question of law that an appellate court must decide independently of the conclusion reached by the trial court. Reinke Mfg. Co. v. Hayes, 256 Neb. 442, 590 N.W.2d 380 (1999); Kratochvil v. Motor Club Ins. Assn., 255 Neb. 977, 588 N.W.2d 565 (1999).
The insurance policy in this case provides, in relevant part: "We will pay for medical expenses furnished within three years of the date of an automobile accident because of bodily injury sustained by ... You or any resident relative... while occupying the covered automobile. . . ." (Emphasis in original.)
The policy defines "occupying" as "in, upon, getting in, on, out or off." The key question in this appeal is whether Matthew was "occ...
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