A-25-0559, Millard Gutter Company v. Nationwide Insurance a/k/a or d/b/a Nationwide Property and Casualty Insurance Company
District Court for Douglas County, Judge Duane C. Dougherty
Attorney for Appellant: Theodore R Boecker, Jr. (Boecker Law, P.C., L.L.O.)
Attorney for Appellee: Matthew D. Hammes and Cade C. Fries (Locher Pavelka Dostal Braddy & Hammes, LLC)
Civil: Breach of contract; summary judgment
Facts:
Millard Gutter brought the instant action in its own name as “the assignee of various insured property owners” who purchased insurance from a single named defendant--“Nationwide Insurance a/k/a or d/b/a Nationwide Property and Casualty Insurance Company.” Millard Gutter claimed that Nationwide Insurance breached the insurance policies when it failed to pay Millard Gutter for storm damage repairs.
In its answer, Nationwide Insurance denied that it was the actual entity that issued each policy of insurance referred to and/or otherwise alleged in the amended Complaint, and it alleged as an affirmative defense that it did not issue the policies. Nationwide Insurance later filed a motion for summary judgment.
Following a hearing, the district court granted summary judgment in favor of Nationwide Insurance’s motion. It reasoned that Nationwide Insurance carried its initial burden by citing to its Answer, in which it denied that it issued the insurance policies at issue. The court noted that Millard Gutter attempted to create a genuine issue of material fact by offering attachments to its principal’s affidavit showing that Nationwide Insurance personnel adjusted the claims at issue and checks from Nationwide Insurance were issued on these claims. The court explained:
While this evidence suggests at a minimum an affiliation or adjustment contract between [Nationwide Insurance] and the policy issuers, there is not enough evidence for a finder of fact to determine that [Nationwide Insurance] issued insurance policies. There is also not enough evidence to prove the terms of any such policy or whether [Nationwide Insurance] had breached them. [Millard Gutter] has failed to offer the insurance contracts at issue into evidence. Given [Nationwide Insurance’s] denial that it issued the policies at issue, there is not enough evidence in the record to create a genuine issue of material fact.
Millard Gutter filed a motion to alter or amend. First, it argued that the burden of production never shifted, because Nationwide Insurance failed to produce an affidavit stating it did not issue the policies, and the answer was insufficient evidence. The court reasoned that although it may have been “preferable practice” for Nationwide Insurance to submit an affidavit, the language in Neb. Rev. Stat. § 25-1332 expressly allows the court to consider both the pleadings and the evidence. The court found that referral to the pleadings as well as the lack of a contract in evidence satisfied Nationwide Insurance’s initial burden.
Second, Millard Gutter argued that the summary judgment applied only to “Nationwide Property and Casualty Insurance Company”--the party identified as the movant in the written motion for summary judgment--and not to “Nationwide Insurance.” The court reasoned that the complaint named a single defendant, who according to the caption, was known by two names. In other words, Millard Gutter did not sue two distinct defendants such that the summary judgment motion was only brought on behalf of one.” The district court overruled the motion to alter or amend.
Issues on Appeal:
Millard Gutter assigns that the district court erred in (1) granting summary judgment in favor of Nationwide Insurance, when it failed to establish an undisputed facts through competent evidence; (2) interpreting the motion for summary judgment as being brought by Nationwide Insurance and dismissing any claims against that entity even though it was not identified as the movant; and (3) overruling Millard Gutter’s motion to alter or amend.