Proctor v. Minnesota Mut. Fire & Cas.
| Decision Date | 30 June 1995 |
| Docket Number | No. S-93-986,S-93-986 |
| Citation | 534 N.W.2d 326,248 Neb. 289 |
| Parties | Angela PROCTOR, Appellant, v. MINNESOTA MUTUAL FIRE & CASUALTY, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Demurrer: Pleadings: Appeal and Error. In appellate review of a ruling on a general demurrer, the court is required to accept as true all the facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the conclusions of the pleader.
2. Demurrer: Pleadings: Appeal and Error. In reviewing a ruling on a general demurrer, an appellate court cannot assume the existence of a fact not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial.
3. Demurrer: Pleadings. In ruling on a demurrer, the petition is to be liberally construed; if as so construed the petition states a cause of action, the demurrer is to be overruled.
4. Constitutional Law: Statutes: Appeal and Error. The constitutionality of a statute or ordinance is a question of law; accordingly, the Supreme Court is obligated to reach a conclusion independent of the decision reached by the trial court.
5. Constitutional Law: Statutes: Service of Process. In any proceeding, if a statute, ordinance, or franchise is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the proceeding and be entitled to be heard.
6. Constitutional Law: Statutes: Service of Process: Appeal and Error. On appeal to the Supreme Court, a party presenting a case involving the federal or state constitutionality of a statute must serve a copy of the brief assigning unconstitutionality on the Attorney General and file proof of service with the Clerk of the Supreme Court. If the party fails to observe these requirements, the Supreme Court will not consider the constitutionality of the statute under attack.
7. Statutes: Time. Statutes covering substantive matters in effect at the time of the transaction govern, not later enacted statutes.
8. Statutes: Legislature: Intent. A legislative act operates only prospectively and not retrospectively unless the legislative intent and purpose that it should operate retrospectively is clearly disclosed.
9. Statutes: Appeal and Error. The general rules governing statutory construction and interpretation provide that in the absence of anything indicating to the contrary, statutory language is to be given its plain and ordinary meaning; the Supreme Court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.
10. Insurance: Contracts: Intent. An insurance policy is to be construed as any other contract to give effect to the parties' intentions at the time the contract was made. Where the terms of such a contract are clear, they are to be accorded their plain and ordinary meaning.
Avis R. Andrews, Fremont, for appellant.
Thomas A. Grennan and Francie C. Riedmann, of Gross & Welch, P.C., Omaha, for appellee.
The plaintiff, Angela Proctor, was injured in a motor vehicle accident. After the driver's insurance company paid Proctor $40,000, she brought suit to collect $25,000 from Minnesota Mutual Fire & Casualty (Minnesota Mutual), which insured Proctor's father. She also sought to have the Underinsured Motorist Insurance Coverage Act, Neb.Rev.Stat. §§ 60-571 to 60-582 (Reissue 1988), declared unconstitutional. Minnesota Mutual demurred to Proctor's second amended complaint, and the district court granted the demurrer, dismissing the case. Proctor appeals, challenging the constitutionality of the act and the court's granting of a demurrer and dismissal. We removed the appeal to this court under our authority to regulate the caseloads of the appellate courts in this state.
In appellate review of a ruling on a general demurrer, this court is required to accept as true all the facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the conclusions of the pleader. Barks v. Cosgriff Co., 247 Neb. 660, 529 N.W.2d 749 (1995); S.I. v. Cutler, 246 Neb. 739, 523 N.W.2d 242 (1994); Erichsen v. No-Frills Supermarkets, 246 Neb. 238, 518 N.W.2d 116 (1994). A court cannot assume The constitutionality of a statute or ordinance is a question of law; accordingly, the Supreme Court is obligated to reach a conclusion independent of the decision reached by the trial court. Boll v. Department of Revenue, 247 Neb. 473, 528 N.W.2d 300 (1995); State v. Popco, Inc., 247 Neb. 440, 528 N.W.2d 281 (1995); Wagoner v. Central Platte Nat. Resources Dist., 247 Neb. 233, 526 N.W.2d 422 (1995).
the existence of a fact not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial. Dalition v. Langemeier, 246 Neb. 993, 524 N.W.2d 336 (1994); Merrick v. Thomas, 246 Neb. 658, 522 N.W.2d 402 (1994); First Nat. Bank in Morrill v. Union Ins. Co., 246 Neb. 636, 522 N.W.2d 168 (1994). In ruling on a demurrer, the petition is to be construed liberally; if as so construed the petition states a cause of action, the demurrer is to be overruled. S.I. v. Cutler, supra; Horton v. Ford Life Ins. Co., 246 Neb. 171, 518 N.W.2d 88 [248 Neb. 291] 1994); Hoiengs v. County of Adams, 245 Neb. 877, 516 N.W.2d 223 (1994).
"In any proceeding ... if the statute, ordinance or franchise is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the proceeding and be entitled to be heard." Neb.Rev.Stat. § 25-21,159 (Reissue 1989). If this condition is not met, the issue of constitutionality is not properly before the trial court.
On appeal to the Supreme Court, a party presenting a case involving the federal or state constitutionality of a statute must serve a copy of the brief assigning unconstitutionality on the Attorney General and file proof of service with the Clerk of the Supreme Court. If the party fails to observe these requirements, the Supreme Court will not consider the constitutionality of the statute under attack. Holdrege Co-op Assn. v. Wilson, 236 Neb. 541, 463 N.W.2d 312 (1990). See, also, How v. Mars, 245 Neb. 420, 513 N.W.2d 511 (1994).
We rely on Proctor's second amended complaint, accepting as true all the facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom.
Minnesota Mutual provided underinsured motorist coverage to Proctor through her father's policy, No. 449523. On July 18, 1989, Proctor was riding in a Jeep operated by Kevin Novotny. Novotny negligently operated the Jeep, causing an accident in which Proctor was seriously injured. Novotny had an insurance policy which provided a limit of $25,000 of coverage to Proctor; however, Novotny's insurance company paid Proctor $40,000. The record does not disclose why $40,000 was paid to Proctor. Proctor's damages exceeded that amount.
Proctor's family insurance policy provided $25,000 in coverage for underinsured motorist insurance. The policy defined an underinsured motor vehicle as "a land motor vehicle or trailer of any type to which a bodily injury liability bond or policy applies at the time of the accident but the amount paid under that bond or policy to the 'insured' is less than the limit of liability for this coverage." The policy also provided that the coverage only applied to the owner or operator of such an underinsured motor vehicle. Minnesota Mutual denied coverage to Proctor.
Proctor brought suit in the district court for Dodge County on April 15, 1993. Minnesota Mutual filed a motion to make more definite, after which Proctor filed an amended petition. Minnesota Mutual successfully demurred to the amended petition.
On September 17, 1993, Proctor filed a second amended petition and a motion to determine necessary parties. In the second amended petition, she challenged the constitutionality of the underinsured motorist act:
To the extent that the [act] may be interpreted to deny Plaintiff relief in the circumstances herein, the same is unconstitutional and that it unfairly legislates against the citizens of the State of Nebraska, in contravention of the equal protection rights and due process rights guaranteed to said citizens, including Defendant, by the United States Constitution and the Constitution of the State of Nebraska.
At the hearing on the motion, Proctor requested that the court decide whether the State of Nebraska was a necessary party to the dispute. The district court ruled that the state was not a necessary party, but added, "You may want to give the attorney general notice of your pleading." Nevertheless, there is no record within the bill of exceptions or transcript that Proctor served the Attorney General with a copy of the proceeding in the district court. There is no record that Proctor served a copy of the brief assigning unconstitutionality on the Attorney General and filed proof of service with the Clerk of the Supreme Court.
On October 8, 1993, the district court issued an order granting Minnesota Mutual's demurrer and dismissing the case with prejudice. Proctor timely filed her notice of appeal on November 3.
Proctor asserts that the district court erred (1) in finding that the second amended petition failed to state a cause of action, (2) in sustaining Minnesota Mutual's demurrer, (3) in failing to consider evidence on the issues raised in the second amended petition and in failing to make a factual interpretation thereof, (4) in failing to allow evidence on the constitutional issues raised and in failing to make a ruling thereon, (5) in entering a decision which is contrary to law, and (6) in dismissing the second amended petition with prejudice.
Proctor's argument, concisely stated, is that the district court's decision...
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