Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Peterson v. Homesite Indemnity Co.

Supreme Court of Nebraska

December 20, 2013

Dowayne Peterson, appellant,
v.
Homesite Indemnity Company, a Kansas corporation, appellee.

Page 886

[Copyrighted Material Omitted]

Page 887

Appeal from the District Court for Sarpy County: MAX KELCH, Judge. Reversed and remanded for further proceedings.

Ralph A. Froehlich, of Locher, Pavelka, Dostal, Braddy & Hammes, L.L.C., for appellant.

Thomas A. Grennan and Andrew J. Wilson, of Gross & Welch, P.C., L.L.O., for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ.

Syllabus by the Court

1. 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.

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. Insurance: Contracts: Judgments: Appeal and Error. The interpretation of an insurance policy presents a question of law that an appellate court decides independently of the trial court.

4. Summary Judgment. Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

5. Summary Judgment. Summary judgment proceedings do not resolve factual issues, but instead determine whether there is a material issue of fact in dispute.

6. Summary Judgment. If a genuine issue of fact exists, summary judgment may not properly be entered.

7. Summary Judgment: Proof. The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce

Page 888

sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law.

8. Bailment: Words and Phrases. Bailment is defined as the delivery of personal property for some particular purpose or on mere deposit, upon a contract, express or implied, that after the purpose has been fulfilled, it shall be redelivered to the person who delivered it or otherwise dealt with according to that person's directions or kept until reclaimed, as the case may be.

[287 Neb. 49] 9. Bailment: Words and Phrases. Bailment involves the delivery of personal property by one person to another in trust for a specific purpose, with a contract, express or implied, that the trust shall be faithfully executed and the property returned or duly accounted for when the special purpose is accomplished.

10. Conversion: Words and Phrases. Conversion is any unauthorized or wrongful act of dominion exerted over another's property which deprives the owner of his property permanently or for an indefinite period of time.

Wright, J.

I. NATURE OF CASE

This case presents the issue whether Dowayne Peterson suffered a loss of personal property due to theft, as defined in his homeowner's insurance policy. The question presented in this appeal is whether there is a material issue of fact in dispute.

Peterson contracted with a " shipper agent" to move his household goods and personal property from Nebraska to Florida. Individuals contacted by the shipper agent took possession of Peterson's property and demanded additional payment before delivery of the property to Florida. The property was never delivered to Florida or returned to Peterson.

Peterson's insurer, Homesite Indemnity Company (Homesite), denied coverage, claiming that a theft had not occurred. The district court found no material issues of fact in dispute and concluded that a theft had not occurred. It granted summary judgment in favor of Homesite.

Because there are genuine issues of material fact whether there was a theft, we reverse the judgment of the district court and remand the cause for further proceedings.

[287 Neb. 50] II. SCOPE OF REVIEW

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. Shada v. Farmers Ins. Exch., 286 Neb. 444, 840 N.W.2d 856, 2013 WL 4036446 (2013).

An appellate court will affirm a lower court's grant of summary judgment

Page 889

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. Id.

The interpretation of an insurance policy presents a question of law that we decide independently of the trial court. Alsidez v. American Family Mut. Ins. Co., 282 Neb. 890, 807 N.W.2d 184 (2011).

III. FACTS

In August 2007, Peterson obtained a homeowner's insurance policy from Homesite for his apartment in Bellevue, Nebraska. This policy insured against the " direct physical loss" of Peterson's personal property or that of his immediate family when caused by any of 16 listed perils, including theft. The term " theft" was not defined.

Peterson owned a house in Florida. On July 15, 2008, Peterson contacted United States Van Lines of Texas (USVLT) to move his personal property from Bellevue to Florida. He entered into a contract that provided for the disassembly, loading, transport, unloading, and reassembly of up to 8,000 pounds of household goods for an estimated cost of $3,845.37.

The final cost for the move would be determined based on the actual weight of the shipment. If " any additional pieces, packing services, weight or labor services [were] added at the origin or destination to those quoted," Peterson would be charged additional amounts. Peterson waived his right to have USVLT perform a visual estimate and instead prepared an [287 Neb. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.