Appeal from the District Court for Douglas County: DUANE C. DOUGHERTY, Judge. Reversed and remanded for further proceedings.
Martin A. Cannon, of Cannon Law Office, for appellant.
Daniel P. Chesire and Cathy S. Trent-Vilim, of Lamson, Dugan, & Murray, L.L.P., and, on brief, Kara S. Jermain, for appellee Farmers Insurance Exchange.
Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ.
Syllabus by the Court
1. Judgments: Appeal and Error. An appellate court independently reviews questions of law decided by a lower court.
2. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law.
3. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted and gives that party the benefit of all reasonable inferences deducible from the evidence.
4. Actions: Insurance: Motor Vehicles: Breach of Contract. An insured's cause of action on an insurance policy to recover underinsured motorist benefits accrues at the time of the insurer's breach or failure to do that which is required under the terms of the policy.
5. Insurance: Motor Vehicles: Contracts: Tort-feasors. Underinsured motorist coverage is a contract which indemnifies an insured when a tort-feasor's insurance coverage is inadequate.
6. Limitations of Actions: Insurance: Motor Vehicles: Contracts. Neb.Rev.Stat. § 25-205 (Reissue 2008), which provides for a 5-year statute of limitations on written contracts, applies in an insured's suit against its underinsured motorist coverage insurer when the insured has timely filed the underlying claim against the underinsured motorist.
[286 Neb. 445] NATURE OF CASE
On January 4, 2011, Marie Shada filed this action in the district court for Douglas County based on contract against Farmers Insurance Exchange (Farmers) and another entity, the latter of which is not relevant to this appeal, alleging that Farmers failed to pay " sums available" for underinsured motorist coverage under her insurance policy with Farmers. Shada admitted that she never made a formal demand on Farmers prior to filing suit. As affirmative defenses in its answer, Farmers alleged that Shada's action is barred by the statute of limitations or by laches. Farmers then filed a motion for summary judgment.
The district court concluded that the limitations period commenced when Shada settled with the underinsured driver in December 2001 and that Shada's claim was barred by the 5-year contract statute of limitations. Neb.Rev.Stat. § 25-205(1) (Reissue 2008). The district court entered an order granting Farmers' motion for summary judgment on this basis. Shada appeals. Because we conclude that the district court erred as a matter of law in its selection of the commencement for limitations purposes, we reverse, and remand for further proceedings.
STATEMENT OF FACTS
On November 6, 1996, Shada was injured in an automobile ...