Spulak v. Tower Ins. Co., Inc., No. S-94-1166

• Court: Supreme Court of Nebraska
• Writing for the Court: CAPORALE, WRIGHT, and CONNOLLY, JJ., and FLOWERS, D.J., and BOSLAUGH; WRIGHT; WHITE; GERRARD
• Citation: 559 N.W.2d 197,251 Neb. 784
• Docket Number: No. S-94-1166
• Decision Date: 21 February 1997
• Parties: Vickie J. SPULAK, now known as Vickie J. Maw, doing business as Broadway Cafe & Lounge, Appellant, v. TOWER INSURANCE COMPANY, INC., a Wisconsin corporation, et al., Appellees.

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559 N.W.2d 197 251 Neb. 784 Vickie J. SPULAK, now known as Vickie J. Maw, doing business as Broadway Cafe & Lounge, Appellant,
v.
TOWER INSURANCE COMPANY, INC., a Wisconsin corporation, et al., Appellees. No. S-94-1166. Supreme Court of Nebraska. Feb. 21, 1997.

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Syllabus by the Court

1. Judgments: Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.

2. Directed Verdict. A directed verdict is proper only where reasonable minds cannot differ and can draw but one conclusion from the evidence, where an issue should be decided as a matter of law.

3. Directed Verdict: Waiver. A party may waive or abandon a motion for the direction of a verdict in his favor by acts inconsistent with such motion.

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4. Directed Verdict: Waiver: Appeal and Error. A defendant who moves for a directed verdict at the close of the plaintiff's evidence and, upon the overruling of such motion, proceeds with trial and introduces evidence waives any error in the ruling on the motion.

5. Directed Verdict: Waiver: Appeal and Error. A plaintiff who moves for a directed verdict at the close of the defendant's evidence and, upon the overruling of such motion, proceeds to introduce rebuttal evidence waives any error in the ruling on the motion.

6. Directed Verdict: Summary Judgment. A renewed motion for summary judgment made during the course of trial and before the jury verdict is treated as a motion for directed verdict.

7. Directed Verdict: Judgments: Verdicts. A motion for directed verdict made at the close of all the evidence is a prerequisite to a motion for judgment notwithstanding the verdict.

8. Directed Verdict: Judgments: Verdicts. A motion for judgment notwithstanding the verdict may not properly be sustained in the absence of a motion for directed verdict made at the close of all the evidence.

9. Demurrer: Pleadings: Evidence. A demurrer ore tenus is an appropriate method to challenge a defective pleading and to object to the introduction of evidence in support of the defective pleading.

10. Demurrer: Pleadings: Evidence. A demurrer ore tenus is considered an objection to the introduction of evidence, rather than to a pleading.

11. Trial: Pleadings: Evidence. An objection to the admission of evidence on the grounds that a petition does not state a cause of action may be made at any time during trial.

12. Insurance: Contracts: Proof. The insurer bears the burden of establishing as an affirmative defense that an event falls within an exclusionary clause.

13. Demurrer: Pleadings. It is generally an abuse of discretion to grant a demurrer without leave to amend where there is a reasonable possibility that the defect can be cured by amendment.

Reversed and remanded for a new trial.

[251 Neb. 785] Denzel R. Busick and Kent A. Hadenfeldt, of Luebs, Leininger, Smith, Busick & Johnson, Grand Island, for appellant.

Eric L. Klanderud, of Walentine, O'Toole, McQuillan & Gordon, Omaha, for appellee Tower Insurance Co.

CAPORALE, WRIGHT, and CONNOLLY, JJ., and FLOWERS, D.J., and BOSLAUGH, J., Retired.

WRIGHT, Justice.

Vickie J. Spulak, now known as Vickie J. Maw (Maw), sued Tower Insurance Company, Inc. (Tower), for breach of an insurance contract. The jury returned a verdict for Tower, and Maw appeals.

SCOPE OF REVIEW

When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. Heins v. Webster County, 250 Neb. 750, 552 N.W.2d 51 (1996); Goolsby v. Anderson, 250 Neb. 306, 549 N.W.2d 153 (1996).

FACTS

Around November or December 1990, an insurance agent soliciting business for Tower offered to give a quote on insurance for the Broadway Cafe & Lounge, which was owned by Maw. The agent looked at the property and submitted a quote to Frank Spulak (Spulak), who was Maw's husband at that time. Spulak advised Maw to purchase the insurance, and Tower subsequently issued a policy of insurance to "Vickie J. Spulak DBA Broadway Cafe & Lounge," which covered the period of December 11, 1990, to December 11, 1991. The policy insured the business against several perils, including loss by fire.

On January 16, 1991, a fire occurred at the Broadway Cafe & Lounge. Maw filed a proof of loss with Tower and made a claim

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for damages. Tower denied the claim, and Maw sued Tower for breach of contract.

As an affirmative defense, Tower alleged, inter alia, that the fire was intentionally set by Spulak, who was still Maw's husband[251 Neb. 786] at the time of the fire. Tower asserted that Spulak was a partner, employee, and agent of Maw's and that, under the policy, losses due to dishonest or criminal acts of a partner, agent, or employee were excluded.

On November 3, 1993, Maw filed a motion for summary judgment, which was heard on February 4, 1994. The motion was overruled on February 25. On the first day of the trial, September 12, Maw made a motion to demur ore tenus. A demurrer ore tenus was later filed with the court on September 20. Maw alleged that Tower failed to state any legally cognizable defenses because (1) Tower cannot apply the partnership exclusion without first having reformed the insurance contract to state that the named insured is a partnership and (2) under the statutes of Nebraska, the relevant exclusion is not valid. The district court denied the demurrer ore tenus.

At the close of her case, Maw made a motion for directed verdict and renewed her motion for summary judgment and her demurrer ore tenus on the same grounds. These motions were denied. Again, when Tower rested, Maw renewed her motion for directed verdict, motion for summary judgment, and demurrer ore tenus, which the court denied.

Thereafter, Maw presented rebuttal evidence, and Tower presented evidence on surrebuttal. Maw did not renew any of her motions at the close of her rebuttal or at the close of Tower's surrebuttal, which was the end of all the evidence.

On September 20, 1994, the jury returned a verdict in favor of Tower. Following the jury verdict, Maw moved the court for a judgment notwithstanding the verdict or, in the alternative, a new trial. On November 18, the district court overruled the motion for new trial, and Maw appealed.

ASSIGNMENTS OF ERROR

Maw claims the district court erred (1) in failing to sustain her motion for summary judgment, demurrer ore tenus, motions for directed verdict, and motion for judgment notwithstanding the verdict or, in the alternative, motion for new trial; (2) in failing to declare that the insurance contract was inconsistent with the 1943 Standard Fire Insurance Policy of the State of New York and the applicable statutes of the State of Nebraska, [251 Neb. 787] thereby rendering Tower's affirmative defense invalid as a matter of law; (3) in failing to rule that the designation of the named insured in the policy should be reformed to designate a partnership as the insured, as a prerequisite to Tower's asserting as an affirmative defense that the policy excluded coverage for dishonest acts of a partner in the insured business; (4) in failing to declare as a matter of law that the insurance contract between Maw and Tower was ambiguous, requiring a construction of the contract in favor of Maw and affording coverage; (5) in sustaining Tower's oral motion in limine preventing Maw's counsel from discussing the pertinent provisions of the insurance policy, despite the fact that the policy had been...