1. Arbitration and Award: Judgments:
Appeal and Error. Arbitrability presents a question
of law. On a question of law, an appellate court reaches a
conclusion independent of the court below.
Arbitration and Award. A party cannot be
required to submit a dispute to arbitration unless he or she
has agreed to do so.
Contracts: Arbitration and Award.
Arbitration is purely a matter of contract.
from the District Court for Douglas County: Horacio J.
Wheelock, Judge. Affirmed.
L. Friedrichsen, of Fitzgerald, Schorr, Barmettler &
Brennan, P.C., L.L.O., for appellant.
D. Hotz, of Pansing, Hogan, Ernst & Bachman, L.L.P., for
Heavican, C.J., Cassel, Stacy, and Kelch, JJ., and Bishop,
district court denied a motion to compel arbitration,
reasoning the agreement to arbitrate "concern[ed] or
relat[ed] to an insurance policy" and thus was
unenforceable [299 Neb. 181] under Nebraska
We affirm, although for different reasons.
M. Zweiback is the named insured under two variable life
insurance policies issued by Lincoln Benefit Life Company
(LBL). Zweiback is also the general partner of two
partnerships named as plaintiffs in this lawsuit. Zweiback
alleges that in 2004, he consulted two authorized agents or
brokers of LBL, Dennis Tubbergen and Brian Schuster, and told
them he wanted to purchase a life insurance policy. Zweiback
wanted a policy with a one-time premium of approximately $1
million that would continue to finance the ongoing cost of
insurance during his lifetime and then pay a large benefit
upon his death, regardless of his age.
2005, Zweiback applied for and was issued two LBL life
insurance policies; the death benefit of each was $10
million. Zweiback alleges both Tubbergen and Schuster advised
him on multiple occasions that the LBL policies satisfied
Zweiback's conditions. Zweiback paid premiums of
approximately $1 million for the policies, and he alleges
Tubbergen and Schuster received substantial commissions on
the sale of the policies. He also alleges he did not know the
policies were variable life insurance policies or that the
ability of the policies to pay future insurance costs without
additional premiums depended on the performance of underlying
1 year later, in October 2006, the face values of both LBL
policies were lowered from $10 million to $3.5 million.
Zweiback alleges this was done after the date upon which
Tubbergen and Schuster would have to return earned
commissions. In June 2012, Zweiback was informed by LBL that
additional premiums were due to keep the policies in force.
Instead of paying additional premiums, Zweiback chose to
reduce the face value of both policies to $2 million.
Neb. 182] In August 2014, Zweiback and the partnerships
(collectively Zweiback) filed an action against LBL,
Tubbergen, and Schuster in the Douglas County District Court.
Zweiback alleges Tubbergen and Schuster fraudulently induced
him into purchasing the LBL life insurance policies by
misrepresenting the nature and terms thereof. The operative
amended complaint alleges claims of fraudulent
misrepresentation and fraudulent concealment against
Tubbergen and Schuster and seeks to have LBL reform or
replace the existing policies with ones more suitable to
December 2014, all defendants answered, generally denying the
allegations of fraud and misrepresentation and raising a
variety of affirmative defenses. Tubbergen alone raised the
affirmative defense that the action against him was subject
to binding arbitration.
than 1½ years after filing his answer, Tubbergen filed
a motion to compel arbitration. A hearing on the motion was
held in February 2017. The only evidence offered and received
at the hearing was an affidavit authored by Tubbergen.
Attached to the affidavit were two "Investor
Profile" agreements executed by Zweiback, both of which