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Barnes v. American Standard Insurance Company of Wisconsin

Supreme Court of Nebraska

July 28, 2017

Jimmy R. Barnes, Jr., appellant,
v.
American Standard Insurance Company of Wisconsin, appellee.

         1. 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 those facts and that the moving party is entitled to judgment as a matter of law.

         2. __:__. 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.

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

         4. Summary Judgment. In the summary judgment context, a fact is material only if it would affect the outcome of the case.

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

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

         7. Insurance: Contracts: Proof. The burden of establishing an effective cancellation before a loss is on the insurer.

         8. Statutes: Intent: Service of Process. It is the intent of Neb. Rev. Stat. § 44-516 (Reissue 2010) to require registered or certified mail for every cancellation notice within its purview. The requirement of registered or certified mail facilitates proof of receipt of notice.

         9. Insurance: Notice. There is no requirement in Neb. Rev. Stat. § 44-516 (Reissue 2010) that the insured actually receive notice.

         [297 Neb. 332] 10. Statutes: Presumptions: Legislature: Intent. In construing a statute, it is presumed that the Legislature intended a sensible, rather than absurd, result.

         11. Insurance: Service of Process: Notice: Legislature: Intent: Proof. By using registered or certified services as required in Neb. Rev. Stat. § 44-516 (Reissue 2010), the Legislature relieved the insurer of proving that a notice of cancellation was received.

         Appeal from the District Court for Douglas County: Duane C. Dougherty, Judge. Reversed and remanded for further proceedings.

          Daniel L. Rock and Jordan E. Hoist, of Ellick, Jones, Buelt, Blazek & Longo, L.L.R, for appellant.

          Jane D. Hansen for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Kelch, and Funke, JJ.

          MILLER-LERMAN, J.

         NATURE OF CASE

         Jimmy R. Barnes, Jr., the appellant, was in a motorcycle-motor vehicle accident. American Standard Insurance Company of Wisconsin (American Standard) asserted that Barnes' motorcycle insurance policy had been canceled prior to the accident and denied underinsured coverage to Barnes. Barnes filed a complaint with a jury demand in the district court for Douglas County in which he claimed wrongful denial of coverage. The parties filed cross-motions for partial summary judgment. After a hearing, the district court granted American Standard's motion for partial summary judgment, denied ...


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