U.S. Specialty Insurancnce Company, a Corporation, Appellee,
D S Avionics Unlimited LLC, Appellant.
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
Declaratory Judgments. Whether to entertain an
action for declaratory judgment is within the discretion of
the trial court.
Declaratory Judgments: Justiciable Issues. The
existence of a justiciable issue is a fundamental requirement
to a court's exercise of its discretion to grant
Declaratory Judgments: Justiciable Issues: Words and
Phrases. A "justiciable issue" needed for
declaratory judgment requires a present substantial
controversy between parties having adverse legal interests
susceptible to immediate resolution and capable of present
Actions: Declaratory Judgments: Parties: Judges:
Jurisdiction. A declaratory judgment action will not
be entertained if there is pending, at the time of the
commencement of the declaratory action, another action or
proceeding to which the same persons are parties, in which
are involved and may be adjudicated the same identical issues
that are involved in the declaratory action. A court abuses
its discretion when it entertains jurisdiction over a
declaratory judgment action in such a situation.
Summary Judgment. Summary judgment is proper when
the pleadings and evidence admitted at the hearing disclose
no genuine issue [301 Neb. 389] regarding any material fact
or the ultimate inferences that may be drawn from those facts
and the moving party is entitled to judgment as a matter of
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 is granted and gives such party the benefit of all
reasonable inferences deducible from the evidence.
Declaratory Judgments. Declaratory judgment cannot
be used to decide the legal effect of a state of facts which
are future, contingent, or uncertain.
___. A declaratory judgment action cannot be used to
adjudicate hypothetical or speculative situations which may
never come to pass.
from the District Court for Douglas County: Shelly R.
Stratman, Judge. Reversed.
M. Locher, of Locher, Pavelka, Dostal, Braddy & Hammes,
L.L.C., for appellant.
E. O'Connor, Jr., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Johnson, District Judge.
Johnson, District Judge.
Avionics Unlimited LLC (DSA) presented a theft claim under
the physical damage coverage of an aircraft policy. The
insurer denied coverage, then filed a declaratory judgment
action seeking a determination that DSA's theft claim was
not covered under the policy. The district court granted
summary judgment in favor of the insurer, and DSA appeals.
Because we conclude the district court abused its discretion
in issuing declaratory relief on this record, we reverse.
relevant times, U.S. Specialty Insurance Company (USSIC)
insured a 1964 Piper PA-30 aircraft owned by DSA. The
agreed-upon value of the insured aircraft is $50, 000. In
November 2014, George Babcock, an authorized agent of [301
Neb. 390] DSA, delivered the aircraft to Trey M.
O'Daniel, a mechanic, for maintenance. O'Daniel
operated his business from an airport hangar in Omaha,
Nebraska, rented from the airport's owner, Keith B.
November 2014, O'Daniel was notified that the hangar
would no longer be available to him as of December 1.
O'Daniel removed his belongings from the hangar, but
DSA's aircraft remained in the hangar after December 1.
December 2, 2014, O'Daniel returned to the hangar to
remove DSA's aircraft and discovered the lock had been
changed. With the help of an adjacent property owner,
O'Daniel was able to access the hangar and move the
aircraft onto the tarmac. Because O'Daniel was not
authorized to fly the aircraft, he left it parked on the
tarmac and advised Babcock where the aircraft could be found.
to the record, DSA did not attempt to recover the aircraft
until December 11, 2014. On that day, Babcock told
O'Daniel to prepare the aircraft for flight on December
12. When O'Daniel went to the airport to verify the
airworthiness of the aircraft, he discovered Edquist's
plow truck was parked in front of the aircraft, blocking it.
Edquist told O'Daniel he would not allow the airplane to
be moved unless O'Daniel paid him a specified sum of
money. It is clear that parking the truck in front of the
aircraft was done intentionally to block its removal.
December 12, 2014, after learning the aircraft was blocked by
Edquist's truck and could not be flown away, Babcock met
with a deputy from the Douglas County sheriff's office.
The deputy told Babcock it would be lawful to hire a tow
truck to move Edquist's truck, but advised that doing so
might create the potential for a "violent breach of
peace." Babcock decided not to hire a tow truck, and
left the aircraft on the tarmac blocked by Edquist's
truck. At some point between December 12 and 17, Edquist
moved the aircraft from the tarmac into a hangar at the Omaha
airport. Babcock was advised of this.
Neb. 391] On December 17, 2014, Babcock reported the aircraft
stolen. The same day, Babcock sent a letter to Edquist
demanding that the aircraft be released. When contacted by
law enforcement, Edquist said the aircraft would be released
only if he was paid $1, 750. Babcock refused to pay. Later
that day, Edquist's attorney told law enforcement and
Babcock that Edquist would release the aircraft if paid $340,
which he claimed pursuant to Neb. Rev. Stat. § 52-601.01
(Reissue 2010). That statute applies to persons who
"shall perform work or labor, or exert care or
diligence, or who shall advance money or material upon
personal property under a contract, expressed or
implied." After reviewing § 52-601.01, Babcock
refused to make payment.
December 18, 2014, law enforcement concluded no crime had
been committed and advised Babcock the issues involving the
aircraft were "civil" in nature. Later that day,
Edquist told O'Daniel he would release the aircraft if
paid $1, 760. On December 20, Edquist again told Babcock the
aircraft would be released if an unspecified amount of money
were paid. On January 12, 2015, Edquist told O'Daniel he
would release the aircraft for a $500 storage fee if paid by
January 13 and for a $600 storage fee if paid at a later
February 12, 2015, Edquist told Babcock the aircraft was
being moved from the hangar and would be placed outside.
Edquist demanded a sum of money, which Babcock refused to
pay. On February 14, Edquist made another demand for payment
of the "storage" bill, and Babcock again refused to
February 18, 2015, on DSA's behalf, Babcock submitted a
sworn "Proof of Loss" to USSIC, reporting that
"[a] theft loss occurred on or about the 11th
day of December, 2014." [301 Neb. 392] Babcock claimed
the loss was caused by the "unlawful seizure, distraint,
conversion, and theft of the aircraft." He claimed the
amount of the loss was $50, 000-the full insured value of the
investigated DSA's theft claim and, in a letter dated
April 21, 2015, denied coverage, explaining:
You know where the plane is, who has it, and why they have
it. There has been no damage to the aircraft, it sits in a
hanger [sic]. Apparently law enforcement in Douglas County
has determined that it is a civil matter. Yet, you have taken
no action against O'Daniel.
The facts as you have described them in your claim and claim
summary, are not covered by your policy of insurance.
Specifically your policy contains the following provisions
applicable to your claim:
1. What We Cover
a. Coverage F covers direct physical loss of or damage to
your aircraft caused by an accident while the aircraft is not
1. Accident means a sudden event during the policy period,
neither expected nor intended by you, that involves your
aircraft and causes physical damage to or loss of the
aircraft during the policy period.
4. What We Will Not Pay
We will not pay for physical loss of or damage to your