Van Ert v. State Farm Mut. Auto. Ins. Co.

Wenke’s motion to suppress and receiving as evidence the
methamphetamine found in his possession. We affirm Wenke’s
conviction and sentence.
A ffirmed.
mAry m. vAn ert, personAl representAtive of the
estAte of leonArd vAn ert, deCeAsed, Appellee
And Cross -AppellAnt, v. stAte fArm mutuAl
Automobile insurAnCe C ompAny,
AppellAnt And Cross -Appellee .
758 N.W.2d 36
Filed December 12, 2008. 	No. S‑07‑1121.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as to any material fact
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. Statutes: Appeal and Error. Statutory interpretation is a matter of law, in con‑
nection with which an appellate court has an obligation to reach an independent,
correct conclusion irrespective of the determination made by the trial court.
3. Insurance: Contracts: Appeal and Error. The interpretation of an insurance
policy is a question of law, in connection with which an appellate court has an
obligation to reach its own conclusions independently of the determination made
by the trial court.
4. Insurance: Contracts: Parties. The parties to an insurance contract may contract
for any lawful coverage, and an insurer may limit its liability and impose restric‑
tions and conditions upon its obligation under the contract not inconsistent with
public policy or statute.
Appeal from the District Court for Lincoln County: John p.
murphy, Judge. Reversed and remanded with directions.
Stephanie F. Stacy and John J. heieck, of Baylor, Evnen,
Curtiss, Grimit & Witt, L.L.P., and Justin herrmann, of Jacobsen,
Orr, Nelson, Wright & Lindstrom, P.C., for appellant.
keith A. harvat and Amy L. Patras, of Waite, mcWha &
harvat, for appellee.
heAviCAn, 	C.J., 	Wright, 	C onnolly, 	gerrArd, 	stephAn,
mCC ormACk , and miller-lermAn, JJ.
908 	276 NEBRASkA REPORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

heAviCAn, C.J.
INTRODUCTION
State Farm mutual Automobile Insurance Company (State
Farm) appeals the Lincoln County District Court’s grant of
summary judgment to mary m. Van Ert (Van Ert), the personal
representative of the estate of Leonard Van Ert (Leonard).
Leonard was killed in a motor vehicle accident on June 18,
2005, while driving his 1996 Nissan pickup. Leonard had a
policy from State Farm on both the pickup and his 1988 Jeep
Wrangler, and Van Ert sought the full amount of uninsured/
underinsured motorist (Um/UIm) benefits under each policy.
State Farm claimed the policy excluded collecting benefits
from the policy on the Jeep, because Leonard was not driving
the Jeep at the time of the accident.
The district court granted summary judgment to Van Ert,
finding that the exclusion in State Farm’s policy was more
restrictive than allowed by state law. State Farm appeals. We
reverse the decision of the district court and remand with direc‑
tions to grant summary judgment to State Farm.
BACkGROUND
Leonard was killed by a drunk driver in a motor vehicle
accident on June 18, 2005. At the time of the accident, Leonard
was driving a Nissan pickup insured by State Farm. The
owner of the other vehicle had insured her automobile through
Progressive Northern Insurance Company. That insurance pol‑
icy had a bodily injury liability limit of $50,000, which did
not cover the amount of Leonard’s damages. Van Ert received
the amount of the insurance policy limits from Progressive
Northern Insurance Company and then demanded payment of
the Um/UIm benefits from State Farm under the insurance
policy on the Jeep.
The insurance policy on the Nissan had Um/UIm cover‑
age of up to $25,000, which was also insufficient to cover
Leonard’s damages. The insurance policy on the Jeep had Um/
UIm coverage of up to $100,000. Van Ert claimed that State
Farm was statutorily required to compensate her up to the high‑
est limit of any one of the insurance policies under Neb. Rev.
Stat. § 44‑6411 (Reissue 2004).
VAN ERT v. STATE FARm mUT. AUTO. INS. CO. 	909
Cite as 276 Neb. 908

State Farm refused to pay out to the limits of the insurance
policy on the Jeep, but did pay Van Ert $25,000, the Um/UIm
liability amount under the insurance policy on the Nissan. In
denying Van Ert’s claim, State Farm relied on language in the
Jeep’s insurance policy that specifically excluded coverage for
bodily injury if the insured was driving a vehicle that he or she
owned but was not covered under that insurance policy. Van Ert
brought an action for the entire amount of Um/UIm coverage
under the second insurance policy. Each party filed a motion
for summary judgment, alleging there were no genuine issues
of material fact.
The district court awarded summary judgment to Van Ert,
determining that the exclusion under the insurance policy was
more restrictive than allowed by Nebraska law. The district
court then awarded Van Ert the full amount of the Um/UIm
insurance under the insurance policy for the Jeep, plus costs
and attorney fees. State Farm appealed.
Van Ert cross‑appealed, claiming that the insurance policy
was vague and ambiguous, and also that the district court erred
in not granting prejudgment interest. We granted Van Ert’s peti‑
tion to bypass.
ASSIGNmENT OF ERROR
State Farm’s three assignments of error can be consolidated
as one: that the district court erred when it granted summary
judgment to Van Ert by determining the insurance policy exclu‑
sion violated Neb. Rev. Stat. § 44‑6413 (Reissue 2004).
STANDARD OF REVIEW
[1] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as
to any material fact 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.1
[2] Statutory interpretation is a matter of law, in connection
with which an appellate court has an obligation to reach an
1 Hughes v. Omaha Pub. Power Dist., 274 Neb. 13, 735 N.W.2d 793
(2007).
910 	276 NEBRASkA REPORTS

independent, correct conclusion irrespective of the determina‑
tion made by the trial court.2
[3] The interpretation of an insurance policy is a question of
law, in connection with which an appellate court has an obliga‑
tion to reach its own conclusions independently of the determi‑
nation made by the trial court.3
ANALYSIS
insurAnCe poliCy does not violAte § 44-6413
We first address whether the insurance policy was more
restrictive than allowed under the statute. The Uninsured and
Underinsured motorist Insurance Coverage Act (UUmICA)
requires an insurance company to provide coverage for those
injured or killed in a motor vehicle accident with an uninsured
or underinsured motorist.4 Section 44‑6413 provides excep‑
tions to the requirement that insurance companies provide Um/
UIm coverage. Section 44‑6413(1)(b) provides an exception
for “[b]odily injury, sickness, disease, or death of an insured
while occupying a motor vehicle owned by, but not insured
by, the named insured or a spouse or relative residing with the
named insured.”
Leonard was driving the Nissan at the time of the accident,
and Van Ert collected the Um/UIm insurance under that insur‑
ance policy. Van Ert also wanted to recover under the Um/UIm
insurance policy on the second vehicle, the Jeep. The Jeep’s
Um/UIm insurance policy contained the following exclu‑
sion: “FOR BODILY INJURY TO AN INSURED: . . . WhILE
OCCUPYING A mOTOR VEhICLE OWNED BY YOU, YOUR
SPOUSE OR ANY RELATIVE IF IT IS NOT INSURED FOR
ThIS COVERAGE UNDER ThIS POLICY.” Van Ert claimed,
and the district court agreed, that the provision violated the
statute because it was more restrictive than § 44‑6413(1)(b).
In essence, Van Ert asserts that by adding the words “this
policy” to the exclusionary statement, State Farm rendered its
2 Japp v. Papio-Missouri River NRD, 271 Neb. 968, 716 N.W.2d 707
(2006).
3 Jones v. Shelter Mut. Ins. Cos., 274 Neb. 186, 738 N.W.2d 840 (2007).
4 Neb. Rev. Stat. § 44‑6408 (Reissue 2004).
VAN ERT v. STATE FARm mUT. AUTO. INS. CO. 	911
Cite as 276 Neb. 908

insurance policy more restrictive than allowed under the stat‑
ute. State Farm argues that its provision is congruent with the
statute and that § 44‑6413(1)(b) can be read as “owned by the
insured, but not insured by that policy.” We find that the insur‑
ance policy can be read in harmony with that statute.
We recently addressed whether an insurance policy was
more restrictive than the UUmICA in Steffen v. Progressive
Northern Ins. Co.,5 and the Court of Appeals addressed the
same issue in Danner v. State Farm Mut. Auto. Ins. Co.6 Steffen
and Danner are inapplicable to the present case, because the
language in those insurance policies was in direct conflict with
the statute. Such is not the case here. The statutory language
“owned by, but not insured by” can be interpreted as “owned
by, but not insured by that policy.” We agree with State Farm
that a commonsense reading of the statute would allow an
insurance company to restrict coverage to the vehicle insured
under the insurance policy in question.
[4] We have stated that the parties to an insurance contract
may contract for any lawful coverage, and an insurer may
limit its liability and impose restrictions and conditions upon
its obligation under the contract not inconsistent with public
policy or statute.7 As discussed below, prior case law sup‑
ports reading the insurance policy in harmony with the statute.
Such a reading does not violate the public policy underpinning
the UUmICA.
restriCtion does not violAte publiC poliCy
The public policy behind requiring Um/UIm insurance is
to protect the insured from an uninsured or underinsured
motorist.8 State Farm argues that under Van Ert’s reasoning,
5 Steffen v. Progressive Northern Ins. Co., 276 Neb. 378, 754 N.W.2d 730
(2008).
6 Danner v. State Farm Mut. Auto. Ins. Co., 7 Neb. App. 47, 578 N.W.2d
902 (1998).
7 American Family Ins. Group v. Hemenway, 254 Neb. 134, 575 N.W.2d 143
(1998).
8 Herrick v. Liberty Mut. Fire Ins. Co., 202 Neb. 116, 274 N.W.2d 147
(1979); Shipley v. American Standard Ins. Co., 183 Neb. 109, 158 N.W.2d
238 (1968).
912 	276 NEBRASkA REPORTS

an insured would be able to insure one vehicle for the maxi‑
mum amount while underinsuring all other owned vehicles.
State Farm cites two cases in support of its position that it
can restrict Um/UIm coverage to the vehicle named in the
insurance policy: Shipley v. American Standard Ins. Co.9 and
Herrick v. Liberty Mut. Fire Ins. Co.10
In Shipley, the plaintiff was injured while operating his
uninsured motorcycle. The plaintiff’s insurance policy cov‑
ered his automobile, but not the motorcycle. The insurance
policy restricted coverage to the “‘Described Automobile.’”11
This court determined that the insurance policy’s restriction
to the named automobile in the insurance policy did not vio‑
late Nebraska law, because “[t]he statute was designed to
protect innocent victims of negligent and financially irrespon‑
sible motorists. . . . An overriding public policy of protecting
an owner‑operator who inexcusably has no applicable bodily
injury liability coverage is not presently discernible.”12 The
court determined that the insurance policy language controlled
and that the motorcycle was not covered.
We affirmed that reasoning in Herrick, stating that “[i]t is
difficult to find a policy in the statute to protect one uninsured
motorist from another uninsured motorist.”13 Although the
statutory provisions cited in these two cases have since been
superseded by the current UUmICA, the requirement that an
insurance carrier provide Um/UIm coverage has not changed.
Both Shipley and Herrick involved plaintiffs who suffered inju‑
ries from a collision with an uninsured or underinsured motor‑
ist and who attempted to recover from their Um/UIm policies
for injuries received. In both cases, neither insurance policy
covered the vehicle the plaintiff was driving at the time of the
accident. The reasoning of this court, that the statute was not
meant to protect one uninsured or underinsured motorist from
another, applies to Van Ert’s case as well.
9 Shipley, supra note 8.
10 Herrick, supra note 8.
11 Shipley, supra note 8, 183 Neb. at 111, 158 N.W.2d at 240.
12 Id. at 112, 158 N.W.2d at 240.
13 Herrick, supra note 8, 202 Neb. at 119, 274 N.W.2d at 149.
VAN ERT v. STATE FARm mUT. AUTO. INS. CO. 	913
Cite as 276 Neb. 908

As previously noted, we have generally allowed limitations
on liability unless those limitations violate statutory provisions
or public policy.14 We have also consistently enforced unambig‑
uous insurance contracts.15 Allowing Van Ert to recover under
the Jeep’s insurance policy would encourage drivers to insure
one vehicle while underinsuring any other vehicles they own.
We therefore reverse the district court’s order and remand with
directions to grant summary judgment for State Farm. Because
we reverse the district court’s award to Van Ert, we need not
address Van Ert’s cross‑appeal.
CONCLUSION
Our prior case law has allowed insurance companies to
limit their liability as long as those limitations do not violate
statutes or public policy. We find that the language of the State
Farm insurance policy is not more restrictive than the statute,
nor does it violate the public policy of this state. We therefore
reverse the decision of the district court with directions to enter
judgment in favor of State Farm.
reversed And remAnded With direCtions.
14 See, Lynch v. State Farm Mut. Auto. Ins. Co., 275 Neb. 136, 745 N.W.2d
291 (2008); Hemenway, supra note 7; Ploen v. Union Ins. Co., 253 Neb.
867, 573 N.W.2d 436 (1998); State Farm Mut. Auto. Ins. Co. v. Hildebrand,
243 Neb. 743, 502 N.W.2d 469 (1993).
15 See, Jones, supra note 3; Ostransky v. State Farm Ins. Co., 252 Neb. 833,
566 N.W.2d 399 (1997); Farm Bureau Ins. Co. v. Bierschenk, 250 Neb.
146, 548 N.W.2d 322 (1996).
914 	276 NEBRASkA REPORTS