Ryder Truck Rental, Inc. v. Rollins

• Decision Date: 01 July 1994
• Docket Number: No. S-92-1134,S-92-1134
• Citation: 246 Neb. 250,518 N.W.2d 124
• Parties: RYDER TRUCK RENTAL, INC., Appellant, v. Helen ROLLINS and John H. Crom, Appellees.
• Court: Nebraska Supreme Court

Page 124

518 N.W.2d 124

246 Neb. 250

RYDER TRUCK RENTAL, INC., Appellant, v. Helen ROLLINS and John H. Crom, Appellees.

No. S-92-1134.

Supreme Court of Nebraska.

July 1, 1994.

Syllabus by the Court

1. Declaratory Judgments. In any case where declaratory relief is sought, there must be present an actual controversy.

2. Declaratory Judgments. An action for a declaratory judgment cannot be used to decide the legal effect of a state of facts which are future, contingent, or uncertain; there must, at the time that the declaration is sought, be an actual justiciable issue.

3. Declaratory Judgments. Declaratory relief cannot be used to obtain a judgment which is merely advisory.

4. Declaratory Judgments: Torts. A declaratory judgment action should not be entertained when it is initiated by a prospective tort defendant.

5. Declaratory Judgments. The function of a declaratory judgment is to determine justiciable controversies which either are not yet ripe for adjudication by conventional forms of remedy or, for other reasons, are not conveniently amenable to the usual remedies.

6. Declaratory Judgments. Declaratory judgment does not lie where another equally serviceable remedy is available.

Leif D. Erickson, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellant.

Wadie Thomas, Jr., and Lavon Stennis, Omaha, for appellee Rollins.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, FAHRNBRUCH, LANPHIER, and WRIGHT, JJ.

CAPORALE, Justice.

In this declaratory judgment action, the district court held that as the owner of the van-type vehicle the plaintiff-appellant, Ryder Truck Rental, Inc., rented to the defendant-appellee John H. Crom, Ryder is jointly and severally liable with Crom for any damages sustained by the defendant-appellee Helen Rollins, arising from the collision between the vehicle she was operating and the van Crom was operating. Claiming error in that ruling, Ryder appealed to the Nebraska Court of Appeals; we, on our own motion, removed the case to this court in order to regulate the caseloads of the two courts. We now reverse the judgment of the district court and remand the cause with the direction that it be dismissed.

On September 1, 1991, Crom entered into a written "Rental Agreement" with Ryder at Hinesville, Georgia, for a day of local use of the van. The relevant provisions of the agreement gave Ryder the right to terminate the agreement at any time and provided that Crom's failure to return the vehicle at the designated destination within 3 days of the specified time constituted an unauthorized taking, in which event Ryder could consider the vehicle stolen and issue theft notices and warrants for Crom's arrest and take such other steps as Ryder might deem reasonable. In addition, Crom agreed not to permit the vehicle to be used in violation of any law or to be operated in a reckless or abusive manner.

Crom did not return the vehicle at the scheduled time, and it was reported stolen to the Hinesville Police Department. An Omaha police officer later came upon Crom in a restricted area and told him to leave. Afterward, the officer determined that the vehicle Crom was driving, or the registration plate it bore, had been reported stolen. When the officer attempted to stop the departing van, Crom accelerated, and a chase ensued. At some point, Crom stopped the van, and when the police cruiser approached him, Crom put the van into reverse and rammed the cruiser. Crom continued to flee and during the continuing police chase struck the automobile Rollins was operating. Crom ultimately pled guilty to theft of the van and other charges.

Ryder subsequently filed this action, asking the district court to construe the agreement and to find that Crom stole the van and was operating it in violation of the agreement, that Crom operated the van in a reckless and abusive manner in violation of Nebraska's motor vehicle statutes, that the agreement is a Georgia contract which should be construed and interpreted in accordance with the laws of that state, and that Ryder has no vicarious liability to Rollins under the provisions of Neb.Rev.Stat. § 39-6,193 (Reissue 1988) or otherwise.

In general, § 39-6,193 makes the owner of certain types of vehicles leased to others jointly and severally liable with the lessee and the operator for damage occasioned by operation of the vehicle in Nebraska. Although Ryder alleges that Rollins asserted a claim against it for damages arising out of the collision, Rollins denies that she has done so. We neither find nor are we pointed to any evidence in this regard.

Our first task is to determine whether a declaratory judgment action may or should be used as a means by which a prospective defendant may obtain a declaration of nonliability. In essence, we must determine whether the trial court abused its discretion in exercising its jurisdiction in this matter.

Neb.Rev.Stat. § 25-21,149 (Cum.Supp.1992) provides that the courts

shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a final judgment or decree.

In addition, Neb.Rev.Stat. § 25-21,151 (Reissue 1989) permits a contract to be construed either before or after there has been a breach thereof.

We have previously addressed an issue similar to the one now before us in Allstate Ins. Co. v. Novak, 210 Neb. 184, 313 N.W.2d 636 (1981). The insureds therein appealed from a declaratory judgment entered by the district court holding that the insurance company was not obligated to defend the insureds or to pay any judgment rendered against them under the terms of a policy of insurance issued by Allstate to the insureds. While this court found that the insurance company had a duty to defend the insureds, it refused to grant declaratory judgment as to the carrier's obligation to pay. Noting that the existence of a controversy is required to maintain an action for a declaratory judgment, we held that such an action could not be used to "decide the legal effect of a state of facts which are future, contingent, or uncertain." Id. at 188, 313 N.W.2d at 638. We therefore ruled that until it was determined that the insured was legally obligated to pay the injured party, the question of the insurer's obligation was uncertain and contingent. However, citing two earlier cases, we recognized that there might be appropriate circumstances wherein a carrier's obligation to pay could be determined prior to a determination of an insured's liability.

Although this case does not involve an insurer, and we need not here explore the circumstances under which an insurer may obtain a declaration of its rights, Allstate Ins. Co.'s holding is relevant in that it clearly requires the existence of an actual controversy as a prerequisite to declaratory relief. See, Boyles v. Hausmann, 246 Neb. 181, 517 N.W.2d 610 (1994); Jaksha v. State, 241 Neb. 106, 486 N.W.2d 858 (1992); Koenig v. Southeast Community College, 231 Neb. 923, 438 N.W.2d 791 (1989); Mullendore v. Nuernberger, 230 Neb. 921, 434 N.W.2d 511 (1989).

A court should refuse a declaratory judgment unless the pleadings present a justiciable controversy which is ripe for judicial determination. See Skowron v. Skowron 259 Wis. 17, 47 N.W.2d 326 (1951). Therefore, an action for a declaratory judgment cannot be used to decide the legal effect of a state of facts which are future, contingent, or uncertain. Boyles v. Hausmann, supra; Mullendore v. Nuernberger, supra; Allstate Ins. Co. v. Novak, supra.

While it is not necessary that one party have an actual right of action against another to satisfy the jurisdictional requirement of an actual controversy, it is necessary that litigation appear unavoidable. Gaston Bd. of Realtors v. Harrison, 311 N.C. 230, 316 S.E.2d 59 (1984); Consumers Power v. Power Co., 285 N.C. 434, 206 S.E.2d 178 (1974); Stabler, et al., v. Ramsay, et al., 32 Del.Ch. 547, 88 A.2d 546 (1952); Ex parte State, 241 Ala. 304, 2 So.2d 765 (1941); Hicks v. Hicks, 60 N.C.App. 517, 299 S.E.2d 275 (1983). Mere apprehension or the mere threat of an action or a suit is not enough. Gaston Bd. of Realtors v. Harrison, supra; McKinnon v. Lane, 285 S.W.2d 269 (Tex.Civ.App.1955). See Third Nat. Bank in Nashville v. Carver, 31 Tenn.App. 520, 218 S.W.2d 66 (1948) (declaratory judgment act does not enable courts to make declaration with regard to claim which complainant merely fears defendant may assert in future). Contra N.J. Home Builders Ass'n v. Div. on Civil Rights, 81 N.J.Super. 243, 195 A.2d 318 (1963), aff'd sub nom. David v. Vesta Co., 45 N.J. 301, 212 A.2d 345 (1965) (existence of claim or threat of possible claim disturbing peace of plaintiffs' freedom by casting doubt or uncertainty upon rights or status establishes requisite condition of justiciability for declaratory judgment action). Nor is a declaratory judgment action to be used to adjudicate hypothetical or speculative situations which may never come to pass. Commonwealth Insurance Agency, Inc. v. Arnold, 389 S.W.2d 803 (Mo.1965) (claim against insurance company presents concrete, not hypothetical, situation). The declaratory judgment proceedings do not " 'require the court to give a purely advisory opinion which the parties might, so to speak, put on ice to be used if and when occasion might arise.' " Gaston Bd. of Realtors v. Harrison, 311 N.C. at 234, 316, S.E.2d at 62 (quoting Tryon v. Power Co., 222 N.C. 200, 22 S.E.2d 450 (1942)).

Here, Ryder seeks to have a declaration of nonliability before Rollins has sued anyone. We do not know if Rollins will bring suit against Ryder nor in which state such a suit may be brought. Moreover, even if we assume that Rollins will bring suit against Ryder, we...