United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard, United States District Judge.
matter is before the Court on defendant Depositors Insurance
Company's objection (filing 178) to the
Magistrate Judge's pretrial order (filing 164).
The objection relates to whether the plaintiffs, Nelle and
John Paul Jamison, breached a promissory warranty, and
whether the defense of a breach of promissory warranty is an
issue remaining for trial. The Magistrate Judge found it was
not. The Magistrate Judge was correct, and Depositors'
objection will be overruled.
dispute is presented through two "Controverted and
Unresolved Issues" submitted to the Magistrate Judge in
the draft pretrial order: "1. Whether Plaintiffs
Breached Promissory Warranty" and "2. Whether the
defense of Promissory Warranty is an issue that exists in
this case and/or remains for trial." Filing 164 at
3. Depositors argued that "the plaintiff
agreed to not only shut off the water, but initiate a plan to
avoid water damage within the property-not through
incorporation into the policy itself but as an oral or
implied promissory warranty or warranty of intention apart
from the language of the policy." Filing 164 at
3. The Jamisons, on the other hand, contended that issue
hadn't been raised as a defense in Depositors'
answer, or elsewhere, and was resolved in the Court's
ruling on summary judgment (filing 136). Filing 164
at 3. The Magistrate Judge agreed with the Jamisons and
sustained their objection. Filing 164 at 3.
ruling on summary judgment, this Court said that:
As the Court understands the Jamisons' argument . . .
they are contending that while the email [containing the
alleged promise] might have been a representation made in
applying for renewal of the policy, it was not made part of
the agreement as a condition subsequent. See,
generally, D & S Realty, Inc. v. Markel Ins.
Co., 789 N.W.2d 1, 10, 16-17 (Neb. 2010). As best the
Court can tell, Depositors has not argued that it was. And
Depositors expressly agreed with the Jamisons' factual
assertion that the email "was not a part of the actual
policy, but a part of the underwriting file, " stating
that it "agrees the Jamisons' promise to shut off
the water was not made part of the policy. Filing 88 at
5; filing 122 at 5. Accordingly, the Court will
grant the Jamisons' motion [for summary judgment] on this
point and find that the email "did not add a condition
to the policy." Filing 126 at 2; see
D & S Realty, 789 N.W.2d at 9-11, 15-17
(explaining operation of "conditions" in
Filing 136 at 12. Depositors now argues that
"promissory warranties are a separate legal issue which
was not addressed by or precluded by the summary judgment
ruling." Filing 178 at 1.
contends that it
has not claimed that the Jamisons' representation that
they would shut off the water to the house while it was
unoccupied was a condition that was written into the four
corners of the policy. Rather, it was a promissory warranty
with which the objection to ¶2, ruling that
Depositors' promissory warranty defense is not available.
See Filing 164 at 3. Jamisons were required to
comply, and the breach of which meant that liability did not
arise on Depositors' part.
Filing 179 at 2. Depositors asserts that
"regardless of whether this representation was made part
of the four corners of the policy, it still created an
implied warranty or promissory warranty." So, Depositors
the Summary Judgment Order only found that the representation
that the Jamisons would shut off the water was not a
condition of the policy. The Order did not preclude a finding
that the Jamisons had made a promisorry [sic] warranty, the
breach of which meant that the conditions precedent to
Depositors' duty to pay were not met. It is this error to
which Depositors objects and appeals to the Court for relief.
Filing 179 at 2-3.
problem with Depositors' argument is, that's not how
contracts work. There are, in fact, two problems. First,
Depositors' contention that an emailed representation
made during negotiation of an insurance policy was somehow
incorporated into the agreement, without being incorporated
into the written text, is contradicted by basic principles of
contract law. Second, even if the promise was somehow made
part of the contract, ...