Jennings Plant Servs. v. Ellerbrock-Norris Agency

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JENNINGS PLANT SERVS. v. ELLERBROCK-NORRIS AGENCY
Cite as 318 Neb. 138
Jennings Plant Services, LLC, et al., appellees, v.
Ellerbrock-Norris Agency, Inc., a Nebraska
corporation, and Elliot Bassett, CPCU, an
individual, appellees, and Kacey Kimbrough,
Special Administrator of the Estate
of Shawn Thomas Kimbrough,
intervenor-appellant.
___ N.W.3d ___
Filed December 6, 2024. 	No. S-23-989.
1. Interventions. Whether a party may intervene in a proceeding pursuant
to Neb. Rev. Stat. § 25-328 (Reissue 2016) is a question of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court has an obligation to resolve the questions independently
of the conclusion reached by the trial court.
3. Interventions: Pleadings. For purposes of ruling on a motion for leave
to intervene, a court must assume that the intervenor’s factual allega-
tions set forth in the complaint are true.
4. Interventions: Jurisdiction: Equity. A court with equitable jurisdiction
may allow persons to intervene as a matter of equity in a proper case.
5. Interventions: Pleadings. A court may make a preliminary determina-
tion whether the complaint in intervention brought pursuant to Neb. Rev.
Stat. § 25-328 (Reissue 2016) sufficiently alleges the requisite interest.
6. ____: ____. A court has authority to exclude from the case an inter-
venor whose pleadings do not disclose a direct interest in the matter
in litigation.
7. Interventions. As a prerequisite to intervention, the intervenor must
have a direct and legal interest of such character that the intervenor will
lose or gain by the direct operation and legal effect of the judgment
which the court may render in the action.
8. ____. An indirect, remote, or conjectural interest in the result of the suit
is not enough to permit intervention.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:10 AM CDT

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JENNINGS PLANT SERVS. v. ELLERBROCK-NORRIS AGENCY
Cite as 318 Neb. 138
9. Interventions: Pleadings. A prospective intervenor can raise his or her
claims or defenses, but those claims or defenses must involve the same
core issue as the claims between the existing parties.
10. Interventions: Pleadings: Standing. The intervenor must plead some
interest in the subject matter of the litigation to give him or her stand-
ing in court, describing the ultimate facts evidencing the intervenor’s
interest in the matter of litigation; otherwise, the intervenor is a mere
interloper and wholly incompetent to challenge the contentions of the
opposing parties.
11. Claims: Assignments. There is a distinction between the assignment of
a claim and the assignment of the proceeds of a claim.
12. ____: ____. The assignment of the proceeds of a claim does not give the
assignee control of the case.
13. Actions: Interventions. An intervenor cannot generally change the
nature and form of the action, or the issues presented therein.
14. Actions: Interventions: Debtors and Creditors. A mere creditor has
no right to intervene in an action, although the creditor may have an
indirect interest in the result of the suit.
Appeal from the District Court for Washington County,
John E. Samson, Judge. Affirmed.
Linsey Moran Bryant, of Sidner Law, and Andrew S.
Buchanan and James V. O’Brien, of Buchanan, Williams &
O’Brien, P.C., pro hac vice, for appellant.
Cathy S. Trent-Vilim, Patrick Vipond, and Sean A. Minahan,
of Lamson, Dugan & Murray, L.L.P., for appellees Ellerbrock-
Norris Agency, Inc., and Elliot Bassett.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Kacey Kimbrough (Kimbrough), special administrator of
the estate of Shawn Thomas Kimbrough, filed an amended
motion and complaint to intervene in this underlying state law-
suit pending in the district court for Washington County. The
lawsuit was brought by Jennings Plant Services, LLC; Spencer

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JENNINGS PLANT SERVS. v. ELLERBROCK-NORRIS AGENCY
Cite as 318 Neb. 138
Jennings; and Tarin Jennings (collectively Jennings) against the
Ellerbrock-Norris Agency, Inc., and chartered property casu-
alty underwriter Elliot Bassett (collectively Ellerbrock-Norris).
The underlying lawsuit involves an alleged breach of duty by
Ellerbrock-Norris based on its alleged failure to give compe-
tent insurance advice to Jennings regarding a vehicle owned
by Jennings Plant Services. The subject vehicle was involved
in a collision that killed Shawn Kimbrough, and Kimbrough
obtained a judgment of $5,436,266.87 against Jennings in a
federal wrongful death case.
Kimbrough’s motion to intervene was based on statutory
intervention pursuant to Neb. Rev. Stat. § 25-328 (Reissue
2016), which generally permits intervention where the pro-
posed intervenor has “an interest in the matter in litigation”
such as we have described in case law. On November 30, 2023,
the district court denied Kimbrough’s motion to intervene;
Kimbrough appeals. We affirm.
STATEMENT OF FACTS
Jennings Plant Services is a Nebraska limited liability com-
pany based out of Washington County, Nebraska. It performs
industrial welding and plant maintenance services. Spencer
Jennings is the sole member of the limited liability company.
Tarin Jennings is the spouse of Spencer Jennings.
Jennings Plant Services used Ellerbrock-Norris’ insurance
brokerage services. At Jennings’ request, Ellerbrock-Norris
procured two separate policies in April 2019. The first was
a commercial automobile liability policy, and the second
was a commercial umbrella liability policy. The commercial
automobile policy included coverage limited to “Hired/Non-
Owned” vehicles only, meaning that it provided coverage for
any vehicle operated by Jennings Plant Services that it did
not own, but did not provide coverage for vehicles owned by
Jennings Plant Services.
Jennings 	Plant 	Services 	purchased 	a 	Ford 	F-150 	truck
(F-150) in late 2019. In 2020, an on-duty Jennings Plant

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JENNINGS PLANT SERVS. v. ELLERBROCK-NORRIS AGENCY
Cite as 318 Neb. 138
Services employee was driving the F-150 when he crossed the
centerline of a highway and struck a vehicle driven by Shawn
Kimbrough. Shawn Kimbrough died from injuries he sustained
in the collision.
Federal Wrongful Death Case.
Kimbrough brought a wrongful death action against Jennings
Plant Services and the driver of the F-150 in the U.S. District
Court for the District of Nebraska, which action was docketed
as case No. 8:21CV35 (federal case).
Jennings Plant Services sought coverage from its insurer
against the claims in the federal case but was denied coverage
because the F-150 was not a covered vehicle under the policies
of insurance. Kimbrough alleges in her motion to intervene that
as partial settlement of the federal case, Jennings had assigned
to Kimbrough “a right to 85% of any proceeds resulting from”
Jennings’ underlying state claim against Ellerbrock-Norris.
After the district court’s order denying intervention, the
federal court in the wrongful death case entered judgment on
December 12, 2023, in the amount of $5,436,266.87 in favor of
Kimbrough and against Jennings Plant Services.
This Underlying State Insurance Procurement Case.
The underlying case between Jennings and Ellerbrock-Norris
that gives rise to this appeal centers on whether Ellerbrock-
Norris failed to provide competent advice to Jennings with
respect to procurement of insurance coverage for the F-150
involved in the collision. Jennings alleged that Ellerbrock-
Norris had recommended liability coverage for “non-owned”
company vehicles but failed to advise Jennings to procure
insurance for “owned” company vehicles. Jennings further
alleged that Ellerbrock-Norris advised Jennings not to add the
F-150 to the commercial insurance policies. Jennings claimed
that this advice breached a duty owed Jennings; that Jennings
relied on the advice; and that Jennings suffered damages,
including the cost to defend the federal case and any potential
judgment against Jennings Plant Services therein.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JENNINGS PLANT SERVS. v. ELLERBROCK-NORRIS AGENCY
Cite as 318 Neb. 138
Kimbrough moved to intervene in the underlying case under
§ 25-328, which in part allows intervention by “[a]ny person
who has or claims an interest in the matter in litigation, in the
success of either of the parties to an action, or against both,
in any action pending.” Kimbrough asserted that her interest
in a percentage of any proceeds of Jennings’ claim if it were
successful was a sufficient interest in the underlying case to
warrant intervention.
The district court denied Kimbrough’s motion to intervene.
The district court noted that Jennings had assigned Kimbrough
a right to a portion of “‘any proceeds’” resulting from the
state court lawsuit, but did not assign a “claim” Jennings may
have against Ellerbrock-Norris. (Emphasis omitted.) The dis-
trict court found that Kimbrough had no direct cause of action
against either Jennings or Ellerbrock-Norris and no “legal
interest” in the subject matter of the underlying litigation. The
district court denied Kimbrough’s motion to intervene.
Kimbrough appeals.
ASSIGNMENT OF ERROR
Kimbrough assigns that the district court erred when it
denied her motion to intervene brought pursuant to § 25-328.
STANDARDS OF REVIEW
[1,2] Whether a party may intervene in a proceeding pur-
suant to § 25-328 is a question of law. See Harchelroad v.
Harchelroad, 315 Neb. 351, 996 N.W.2d 263 (2023). When
reviewing questions of law, an appellate court has an obliga-
tion to resolve the questions independently of the conclusion
reached by the trial court. See id.
[3] For purposes of ruling on a motion for leave to inter-
vene, a court must assume that the intervenor’s factual allega-
tions set forth in the complaint are true. Id.
ANALYSIS
Kimbrough appeals from the district court’s order that
denied 	her 	motion 	to 	intervene 	in 	the 	underlying 	action

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JENNINGS PLANT SERVS. v. ELLERBROCK-NORRIS AGENCY
Cite as 318 Neb. 138
concerning whether Ellerbrock-Norris negligently failed to
provide competent advice and procure coverage on a vehicle
owned by Jennings Plant Services. Because we conclude that
Kimbrough’s alleged interest in this matter was indirect, she
was not entitled to intervene pursuant to § 25-328. We affirm
the order of the district court.
Intervention Under § 25-328.
[4] As an initial matter, we note that Kimbrough sought
to intervene solely on a statutory basis pursuant to § 25-328.
Intervention under § 25-328 is a creature of statute. See,
Carroll v. Gould, 308 Neb. 12, 952 N.W.2d 1 (2020); Ruzicka
v. Ruzicka, 262 Neb. 824, 635 N.W.2d 528 (2001). Although
a court with equitable jurisdiction may allow persons to inter-
vene as a matter of equity in a proper case, see Harchelroad v.
Harchelroad, supra, and In re Interest of Enyce J. & Eternity
M., 291 Neb. 965, 870 N.W.2d 413 (2015), the intervention
in this case was sought pursuant to statute prior to trial and
the issues in this case are circumscribed by the pleadings and
assignment of error on appeal and thus governed by the inter-
vention statutes.
Neb. Rev. Stat. § 25-330 (Reissue 2016) provides:
The intervention shall be by complaint, which shall set
forth the facts on which the intervention rests, and all the
pleadings therein shall be governed by the same rules as
other pleadings provided for in Chapter 25. If such com-
plaint is filed during term, the court shall direct the time
in which answers thereto shall be filed.
Under § 25-328, a person who claims an interest in the mat-
ter may become a party before trial commences:
Any person who has or claims an interest in the mat-
ter in litigation, in the success of either of the parties to
an action, or against both, in any action pending or to
be brought in any of the courts of the State of Nebraska,
may become a party to an action between any other per-
sons or corporations, either by joining the plaintiff in
claiming what is sought by the complaint, or by uniting

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JENNINGS PLANT SERVS. v. ELLERBROCK-NORRIS AGENCY
Cite as 318 Neb. 138
with the defendants in resisting the claim of the plaintiff,
or by demanding anything adversely to both the plaintiff
and defendant, either before or after issue has been joined
in the action, and before the trial commences.
[5,6] We have observed that the court may make a pre-
liminary determination whether the complaint in intervention
sufficiently alleges the requisite interest. See, e.g., Carroll v.
Gould, supra. A court has authority to exclude from the case
an intervenor whose pleadings do not disclose a direct inter-
est in the matter in litigation. Id.; Kirchner v. Gast, 169 Neb.
404, 100 N.W.2d 65 (1959). But when making such a deter-
mination on the pleadings alone, a court must assume that
the intervenor’s factual allegations set forth in the complaint
are true.
Sufficient Legal Interest to Intervene.
[7,8] As a prerequisite to intervention, the intervenor must
have a direct and legal interest of such character that the inter-
venor will lose or gain by the direct operation and legal effect
of the judgment which the court may render in the action.
In re Adoption of Faith F., 313 Neb. 491, 984 N.W.2d 640
(2023); Carroll v. Gould, supra. An indirect, remote, or con-
jectural interest in the result of the suit is not enough to permit
intervention. See, Carroll v. Gould, supra; Gilbert v. First
National Bank, 154 Neb. 404, 48 N.W.2d 401 (1951). A party
with a claim that simply arises out of the same facts as the
claims at issue in the litigation does not have a sufficient legal
interest to support intervention. See Wayne L. Ryan Revocable
Trust v. Ryan, 297 Neb. 761, 901 N.W.2d 671 (2017).
[9,10] A prospective intervenor can raise his or her claims or
defenses, but those claims or defenses must involve the same
core issue as the claims between the existing parties. Carroll
v. Gould, 308 Neb. 12, 22, 952 N.W.2d 1, 9 (2020). To permit
intervention, the prospective intervenor must add something
meaningful to the ultimate resolution of the litigation. See John
P. Lenich, Nebraska Civil Procedure § 16:6 (2024). For a court
to permit intervention, we have said that

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JENNINGS PLANT SERVS. v. ELLERBROCK-NORRIS AGENCY
Cite as 318 Neb. 138
the intervenor must plead some interest in the subject
matter of the litigation to give him or her standing in
court, describing the ultimate facts evidencing the inter-
venor’s interest in the matter of litigation; otherwise, the
intervenor is a mere interloper and wholly incompetent to
challenge the contentions of the opposing parties.
Carroll v. Gould, 308 Neb. at 22-23, 952 N.W.2d at 9.
Long ago, we said:
To authorize a party to intervene he must have an inter-
est of such a direct and immediate character that he will
either gain or lose by the direct legal operation of and
effect of the judgment. This interest must be one arising
from a claim to the subject-matter of the action or some
part thereof, or a lien upon the property or some part
thereof. A mere creditor has no right to intervene in an
action, although he may have an indirect interest in the
result of the suit. (Gasquet v. Johnson, 1 La. R. 425; Horn
v. Volcano, etc., Co., 13 Cal., 62; Bronson v. La Cross
R. Co., [67 U.S. 524,] 2 Black [U. S.], 524; Welborn v.
Eskey, 25 Neb., 19[3]. The petition for intervention [in
this case] fails to set forth . . . that the proposed inter-
venor is more than a creditor. This being the case, the
proposed intervenor is interested only in the assets of the
debtor, and after the rendition of the judgment, if one
should be rendered in favor of the defendant, may apply
in some of the modes provided by law for the application
of sufficient [sic] to pay his claim, or if there is not suf-
ficient [sic] to pay the same in full, then for a pro rata
share thereof.
K. & C. P. R. Co. v. Fitzgerald, 33 Neb. 137, 142, 49 N.W.
1100, 1101 (1891).
We have observed that although a creditor may have an
indirect interest in the result of an action, he or she has no
right to intervene. Drainage District v. Kirkpatrick-Pettis Co.,
140 Neb. 530, 300 N.W. 582 (1941) (deciding case under
Comp. Stat. § 20-328 (1929)). It has generally been recognized

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JENNINGS PLANT SERVS. v. ELLERBROCK-NORRIS AGENCY
Cite as 318 Neb. 138
under a variety of procedural provisions that an economic
interest in the outcome of the litigation is not sufficient to war-
rant intervention by a nonparty. See 67A C.J.S. Parties § 101
(2023). See, e.g., Curry v. Regents of University of Minnesota,
167 F.3d 420 (8th Cir. 1999); Manning v. Jaeger, 964 N.W.2d
522 (N.D. 2021); Travelers Ins. Co. v. Bagwell, 116 Ga. App.
675, 158 S.E.2d 267 (1967). See, also, e.g., Brown v. Brink, 57
Neb. 606, 78 N.W. 280 (1899) (stating that creditors may not
ordinarily intervene).
In contrast, an interest has been found sufficient when the
potential intervenor has an interest in the property or object that
is the subject of the litigation, such as real property, Ruzicka v.
Ruzicka, 262 Neb. 824, 635 N.W.2d 528 (2001); a residuary
beneficiary’s interest in damages asserted by decedent’s estate,
Harchelroad v. Harchelroad, 315 Neb. 351, 996 N.W.2d 263
(2023); holding of a lien on judgment, Montgomery v. Dresher,
97 Neb. 112, 149 N.W. 314 (1914); and grandparents’ rights
recognized in statute, In re Interest of Kayle C. & Kylee C.,
253 Neb. 685, 574 N.W.2d 473 (1998).
Kimbrough’s Interest in the Underlying State Claim
Is Not Sufficient to Intervene.
Kimbrough claims that she has a direct and legal interest
in the subject of the litigation. Given the allegations in the
proposed complaint, we determine that she does not have a
direct and legal interest in the subject of this litigation between
Jennings and Ellerbrock-Norris.
[11,12] Kimbrough alleged in her motion and complaint
that she had been assigned a percentage of Jennings’ proceeds
that might result from the underlying case. However, the law
recognizes that “‘[t]here is a distinction between the assign-
ment of a claim . . . and the assignment of the proceeds of . . .
a claim.’” Mutual of Omaha Bank v. Kassebaum, 283 Neb.
952, 958, 814 N.W.2d 731, 736 (2012). The assignment of the
proceeds of a claim does not give the assignee control of the
case. Id.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JENNINGS PLANT SERVS. v. ELLERBROCK-NORRIS AGENCY
Cite as 318 Neb. 138
[13] The core issue between the parties in this case concerns
whether Ellerbrock-Norris breached its duties in the procure-
ment of insurance for a vehicle owned by a business. Jennings’
claims in the underlying case arise from Jennings’ relation-
ships and dealings with Ellerbrock-Norris vis-a-vis insurance
brokerage services. Kimbrough has alleged no claim or defense
against any plaintiff or defendant related to the subject mat-
ter of this dispute. She has not alleged direct knowledge of
the facts giving rise to the dispute between Jennings and
Ellerbrock-Norris. As the matter is currently pled, Kimbrough
claims a right only “in the success of [Jennings].” An inter-
venor cannot generally change the nature and form of the
action, or the issues presented therein. See Arnold v. Arnold,
214 Neb. 39, 332 N.W.2d 672 (1983). She does not claim to
be an insured under either of the insurance policies, and she
had no direct involvement in the procurement process. It is
not likely she will add “something meaningful to the ultimate
resolution of the litigation.” See John P. Lenich, Nebraska Civil
Procedure § 16:6 at 795 (2024).
[14] Kimbrough’s objective in potentially seeking proceeds
from Jennings if Jennings wins a judgment is too attenuated to
constitute a direct interest in the litigation. “A mere creditor
has no right to intervene in an action, although he may have
an indirect interest in the result of the suit.” K. & C. P. R. Co.
v. Fitzgerald, 33 Neb. 137, 142, 49 N.W. 1100, 1101 (1891).
Because Kimbrough lacks sufficient direct and legal interest
in the underlying case to intervene under § 25-328, the district
court did not err when it denied the motion to intervene.
CONCLUSION
Kimbrough’s motion and complaint in intervention did not
allege sufficient facts under § 25-328 to entitle Kimbrough to
intervene in the underlying litigation. The district court did not
err when it denied the motion for leave to intervene. We affirm.
Affirmed.
Heavican, C.J., not participating in the decision.