Contracts: Reformation: Equity. An action to
reform a contract sounds in equity.
Equity: Appeal and Error. In an appeal of an
equitable action, an appellate court tries factual questions
de novo on the record, provided that where credible evidence
is in conflict on a material issue of fact, the appellate
court considers and may give weight to the fact that the
trial judge heard and observed the witnesses and accepted one
version of the facts rather than another.
Reformation: Intent. Reformation may be
granted to correct an erroneous instrument to express the
true intent of the parties to the instrument.
___. The right to reformation depends on whether the
instrument to be reformed reflects the intent of the parties.
Reformation: Presumptions: Intent: Evidence.
To overcome the presumption that an agreement correctly
expresses the parties' intent and therefore should be
reformed, the party seeking reformation must offer clear,
convincing, and satisfactory evidence.
Evidence: Words and Phrases. Clear and
convincing evidence means that amount of evidence which
produces in the trier of fact a firm belief or conviction
about the existence of the fact to be proved.
Reformation: Fraud. A court may reform an
agreement when there has been either a mutual mistake or a
unilateral mistake caused by fraud or inequitable conduct on
the part of the party against whom reformation is sought.
Reformation: Intent: Words and Phrases. A
mutual mistake is a belief shared by the parties, which is
not in accord with the facts. A mutual mistake is one common
to both parties in reference to the instrument to [24
Neb.App. 145] be reformed, each party laboring under the same
misconception about their instrument. A mutual mistake exists
where there has been a meeting of the minds of the parties
and an agreement actually entered into, but the agreement in
its written form does not express what was really intended by
Contracts: Reformation. The fact that one of
the parties to a contract denies that a mistake was made does
not prevent a finding of mutual mistake or prevent
Insurance: Contracts. The reasonable
expectations of an insured are not assessed unless the
language of the insurance policy is found to be ambiguous.
from the District Court for Saunders County: Mary C.
F. Suing and Milton A. Katskee, of Katskee, Suing &
Maxell, PC, L.L.O., for appellant.
J. Nedved, of Keating, O'Gara, Nedved & Peter, P.C.,
L.L.O., for appellee.
and Riedmann, Judges.
Locker, LLC, sought reformation of an insurance policy issued
by Farm Bureau Property and Casualty Insurance Company (Farm
Bureau) providing replacement coverage for the Wahoo Locker
building in Wahoo, Nebraska. The district court for Saunders
County found that Wahoo Locker was entitled to coverage as
set forth in the policy and that Wahoo Locker was not
entitled to reformation based upon a mutual mistake regarding
the terms of the policy. Wahoo Locker appeals the order of
the district court, and for the reasons that follow, we
1997, Charlie Emswiler bought Wahoo Locker, a meat processing
facility, for approximately $75, 000 to $85, 000. [24
Neb.App. 146] In 2009, Emswiler and his wife were the sole
owners of Wahoo Locker. Through the years, the Emswilers
purchased several insurance policies on behalf of Wahoo
Locker. Wahoo Locker was insured by Iowa Mutual Insurance
Company (Iowa Mutual) from 2006 until June 14, 2009. Wahoo
Locker was insured by Midwest Family Mutual Insurance Company
(Midwest Family Mutual) from June 14 to September 14, 2009.
September 14, 2009, Farm Bureau issued a policy insuring
Wahoo Locker for $491, 000. The policy was renewed annually,
and the limit of insurance did not change from year to year.
The policy was in effect on May 8, 2013, the day of a grease
fire which caused catastrophic loss to the Wahoo Locker
building. At the time of the fire, the Emswilers were the
majority owners of the business. The insurance policy in
effect on that day contained the following provisions:
a. In the event of loss or damage covered by this Coverage
Form, at [Farm Bureau's] option, [Farm Bureau] will
(1) Pay the value of lost or damaged property;
(2) Pay the cost of repairing or replacing the lost or
damaged property, ...