State Auto. and Cas. Underwriters v. Farmers Ins. Exchange
| Decision Date | 21 August 1979 |
| Docket Number | No. 42340,42340 |
| Parties | STATE AUTOMOBILE AND CASUALTY UNDERWRITERS, a corporation, Appellant, v. FARMERS INSURANCE EXCHANGE and Clayton W. Kline, Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Pleadings: Demurrer. A petition which fails to plead actionable facts is vulnerable to a general demurrer.
2. Subrogation. Subrogation is the substitution of one person in the place of another with reference to a lawful claim, demand, or right, so that he who is substituted succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies, or securities.
3. Subrogation: Torts: Negligence: Insurance. The right of an insurance company to recover against a wrongdoer, whose negligence has subjected the insurance company to a liability, is traced through the insured; that is, no cause of action can exist on behalf of the insurer, unless it existed in favor of the insured.
4. Torts: Negligence: Damages. To state a cause of action in tort it is necessary to allege facts from which a conclusion can be drawn that the defendant was guilty of one or more acts of negligence, that such negligence was a proximately contributing cause of the accident, and that as a proximate result thereof the plaintiff was damaged.
5. Insurance: Torts: Negligence. Direct actions against liability insurance carriers because of the negligence of their insureds are not permitted in Nebraska.
Kutak Rock & Huie, Omaha, for appellant.
David A. Svoboda and Neil B. Danberg, Jr., of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellees.
John F. Thomas, of McGrath, North, O'Malley & Kratz, P.C., Omaha, for amicus curiae Blue Cross & Blue Shield.
Heard before BOSLAUGH, CLINTON, WHITE, and HASTINGS, JJ., and KORTUM, District Judge.
This is an appeal by the plaintiff, State Automobile and Casualty Underwriters, from an order of the District Court sustaining defendants' demurrer to State Auto's petition and dismissing the same. The motion for a new trial was overruled. State Auto assigns as error that: "The trial court erred in finding that State Auto Did not have a cause of action against Farmers and Kline." (Emphasis supplied.) Apparently State Auto elected to stand on its second amended petition because there is no complaint made that it was not permitted an opportunity to file an additional pleading.
State Auto's second amended petition stated that it insured one Kurt Kardell under a family automobile policy and that the defendant, Farmers Insurance Exchange, "insured Kline at the time of the accident under a policy of insurance applicable to the accident;" that on June 28, 1974, Kardell was operating an automobile in Omaha, Nebraska, when struck from the rear by Kline; that State Auto paid Kardell for medical expense under Coverage C-1 of its policy; that Coverage C-2 provided "In the event of any payment under Coverage C-1 of this policy, the company shall be subrogated to all the rights of recovery therefor which the injured person * * * may have against any person or organization * * *."; that State Auto notified Farmers of its subrogation rights, but Farmers replied, "Sorry we don't honor med pay subrogation." State Auto also notified Kline of its subrogation rights; thereafter Farmers paid Kardell, obtained a release from Kardell, and thereby willfully disregarded State Auto's subrogation rights. State Auto prayed for judgment against Farmers only for the amount of the claimed subrogation right. Interestingly enough, the petition alleges no facts supporting a cause of action for negligence on behalf of its insured Kardell against either defendant; it does not allege in any way that Farmers had issued to the apparent tortfeasor, Kline, a policy of Liability insurance; and, finally, the prayer of the petition is only against Farmers.
Section 25-804, R.R.S.1943, requires of a petition that it contain "a statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition * * *." A defendant may demur to a petition when it appears on its face "that the petition does not state facts sufficient to constitute a cause of action." § 25-806, R.R.S.1943. Johnson v. Ruhl, 162 Neb. 330, 75 N.W.2d 717 (1956). See, also, Clark & Enersen, Hamersky, S., B. & T., Inc. v. Schimmel Hotels Corp., 194 Neb. 810, 235 N.W.2d 870 (1975). With that rule in mind, it becomes incumbent upon us to identify the actionable facts necessary to plead a cause of action to enforce rights of subrogation.
Subrogation is defined as: ...
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