Allstate Ins. Co. v. FARMERS MUT. INS.

444 N.W.2d 676, 233 Neb. 248
CourtNebraska Supreme Court
DecidedAugust 25, 1989
Docket88-1004
StatusPublished
Cited by40 cases

This text of 444 N.W.2d 676 (Allstate Ins. Co. v. FARMERS MUT. INS.) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allstate Ins. Co. v. FARMERS MUT. INS., 444 N.W.2d 676, 233 Neb. 248 (Neb. 1989).

Opinion

444 N.W.2d 676 (1989)
233 Neb. 248

ALLSTATE INSURANCE COMPANY, Plaintiff,
v.
FARMERS MUTUAL INSURANCE COMPANY OF NEBRASKA, Defendant.

No. 88-1004.

Supreme Court of Nebraska.

August 25, 1989.

*677 Waldine H. Olson, of Schmid, Mooney & Frederick, P.C., Omaha, for plaintiff.

Eugene P. Welch and Susan E. Fieber, of Gross, Welch, Vinardi, Kauffman & Day, P.C., Omaha, for defendant.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

BOSLAUGH, Justice.

The U.S. Court of Appeals for the Eighth Circuit has certified two questions of law to this court concerning the coverage under an automobile liability insurance policy issued by the Farmers Mutual Insurance Company of Nebraska. The policy was issued to L.A. Bethune to insure a 1977 Oldsmobile and provided bodily injury liability insurance of $100,000 for each person and $300,000 for each occurrence.

On March 9, 1985, Sylvia T. Miller was driving Bethune's 1977 Oldsmobile in New Mexico with his permission. The automobile was involved in an accident in which both Bethune and Miller received injuries from which they ultimately died. Bethune's estate made a claim for damages against Miller's estate, alleging that Miller's negligence was the proximate cause of the accident.

Prior to the accident, Allstate Insurance Company had issued an automobile liability policy to Miller, which provided bodily injury liability insurance of $50,000 for each person and $100,000 for each occurrence.

In settlement of the Bethune claim, and without prejudice to any claims the companies might have against each other, Allstate and Farmers each paid $12,500 to Bethune's estate. Allstate then brought a declaratory judgment action in the U.S. District Court against Farmers to determine whether the household exclusion clause in the Farmers policy was valid and excluded coverage to Miller for liability to Farmers' insured, Bethune.

The exclusion clause with which we are concerned is sometimes called the "household exclusion clause" because it commonly excludes coverage for liability for injuries to members of the family of the insured residing in the same household of the insured. In this case, however, we are concerned only with that part of the clause which excludes coverage for liability for bodily injuries to the named insured.

Allstate contended that its named insured, Miller, was driving Bethune's car as a permissive driver; that she was an omnibus insured under the Farmers policy; that the Farmers policy provided primary coverage for the accident; and that the Allstate policy provided excess coverage. Farmers concedes that Miller was a permissive driver and as such would have been an omnibus insured under the Farmers policy, but contends that the household exclusion in Bethune's policy issued by Farmers excluded coverage to Miller for injuries sustained by Bethune.

The case was submitted to the district court upon an agreed statement of facts. The district court found that under the Farmers policy Miller was an omnibus insured and that the policy contained exclusions from coverage, some of which referred to "the named insured" and others *678 to "the insured." The court noted that the household exclusion referred to "the insured" and that Farmers had agreed "to pay on behalf of the insured all sums which the insured became legally obligated to pay as damages because of ... bodily injury sustained by other persons." The court found the express language of the Farmers exclusion meant that the policy "does not apply under Coverage A to bodily injury to [Ms. Miller] or to any member of the family of [Ms. Miller] residing in the same household as [Ms. Miller]." The district court further found that the claim against Miller's estate was made by Bethune's estate and that "Mr. Bethune is not Ms. Miller and is not a member of Ms. Miller's family residing in her household." The district court concluded that Miller was not excluded from coverage under the exclusion, and Farmers was ordered to pay Allstate $12,500 for Allstate's contribution to the settlement of Bethune's claim.

Farmers appealed to the U.S. Court of Appeals. Finding no controlling Nebraska precedent, the court of appeals certified the following two questions to this court:

(1) Under Nebraska law, does the Farmers Mutual household exclusion by its terms exclude liability coverage for bodily injury to the named insured when those injuries are caused by the negligence of a permissive operator?
(2) If coverage is excluded by the policy terms, may the exclusion be enforced under Nebraska law?

There is no issue of fact because the parties submitted the case to the district court upon an agreed statement of facts.

The policy issued by Farmers to Bethune contained the following language:

Coverages A and B—(A) Bodily Injury Liability and (B) Property Damage Liability.
(1) To pay on behalf of any insured all sums which the insured shall become legally obligated to pay as damages because of (A) bodily injury sustained by other persons ... arising out of the ownership, maintenance or use, including loading or unloading of the owned automobile...
....
EXCLUSIONS—INSURING AGREEMENTS I AND II
This insurance does not apply under:
....
(i) coverage A, to bodily injury to the insured or any member of the family of the insured residing in the same household as the insured ...
DEFINITIONS—INSURING AGREEMENTS I AND II
Insured—Under coverages A, B and C the unqualified word "insured" includes
(1) the named insured, and
....
(4) any other person while using the owned automobile, provided the operation and the actual use of such automobile are with the permission of the named insured or such spouse and are within the scope of such permission....

The answer to the first question is found by applying the language of the policy issued by the defendant to the facts of the case in accordance with the following rules.

An insurance policy should be considered as any other contract and be given effect according to the ordinary sense of the terms used, and if they are clear they will be applied according to their plain and ordinary meaning. Pettid v. Edwards, 195 Neb. 713, 240 N.W.2d 344 (1976). Where the terms of an insurance contract are clear, they are to be accorded their plain and ordinary meaning. Polenz v. Farm Bureau Ins. Co., 227 Neb. 703, 419 N.W.2d 677 (1988); Waylett v. United Servs. Auto. Assn., 224 Neb. 741, 401 N.W.2d 160 (1987); Roth v. Farmers Mut. Ins. Co., 220 Neb. 612, 371 N.W.2d 289 (1985); Lumbard v. Western Fire Ins. Co., 221 Neb. 804, 381 N.W.2d 117 (1986); State Farm Mut. Auto. Ins. Co. v. Royal Ins. Co., 222 Neb.

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Bluebook (online)
444 N.W.2d 676, 233 Neb. 248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allstate-ins-co-v-farmers-mut-ins-neb-1989.