IN THE NEBRASKA SUPREME COURT. Court of Appeal. AMERICAN STATES INSURANCE COMPANY, a Corporation, vs.

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1 IN THE NEBRASKA SUPREME COURT Court of Appeal AMERICAN STATES INSURANCE COMPANY, a Corporation, vs. Appellant FARM BUREAU INSURANCE COMPANY OF NEBRASKA, a Corporation; ALVIN LUIKENS; BARBARA LUIKENS, a minor and protected:person by and through Alvin Luikens as her~t~ther and next friend, Appellees APPELLEES LUIKENS' BRIEF IN OPPOSITION TO APPELLANT'S PETITION FOR FURTHER REVIEW Prepared and submitted by: Terry M. Anderson, #10102 David S. Lathrop, Jr., #15986 HAUPTMAN, O'BRIEN, WOLF & LATHROP, P.C West Dodge Road, Suite 403 Omaha, Nebraska ( ATTORNEYS FOR APPELLEES LUIKENS '. j \

2 ARGUMENT I. NEB. REV. STAT (2 HAS NO APPLICATION TO THIS APPEAL. Appellant contends in its Argument Number I, that the Court of Appeals' decision should be reversed under Neb. Rev. Stat (2. That statute, which allocates responsibility between two uninsured motorist coverages, is inapplicable here. Appellant initiated this litigation by filing a Declaratory Judgment action which named Appellee and Farm Bureau Insurance Company as defendants. Farm Bureau covered the automobile in which Appell~e was a passenger. Farm Bureau provided the<~e~er of the automobile involved in this accident with both liability and uninsured motorist coverage. Appellee, as a passenger in the owned automobile, would, as Appellant contends, be an insured under Farm Bureau's uninsured motorist coverage. However, that coverage was not applicable under the facts of this case. Farm Bureau insured an automobile owned by James Anderson, the step-father of Amanda Hill. Ms. Hill permitted Tara Lawson to operate the automobile, and Appellee was a passenger in the back seat. The negligence of Ms. Lawson caused Appellee's injuries, and Miss Lawson was not an insured under any policy of insurance other than Farm Bureau's liability coverage

3 The District Court found no coverage for Miss Lawson under Farm Bureau's liability coverage, and that decision was not appealed. The District Court's decision finding "no coverage" under Farm Bureau's policy may also have held that Farm Bureau provided no uninsured motorist coverage as well. In such a case, Appellant would be precluded from raising any issue of such coverage in this Court, since that issue was not raised in the Court of Appeals. Appellee believes the full scope of the District Court's judgment need not be addressed here. Even assuming that Miss Lawson was an uninsured motorist, and that Appellee was an insured under Farm Bureau's u~~~sured motorist coverage, Neb. _:,:2:<- Rev. Stat (d, 44~~407(2, and (1 make it clear that the automobile covered by Farm Bureau policy does not qualify as an "uninsured motor vehicle." Those sections clearly exclude from coverage the injuries suffered by an insured as a result of the negligence of the operator of an automobile owned by Farm Bureau's named insured, Mr. Anderson: "An uninsured or underinsured motor vehicle shall not include a motor vehicle: ( 1 Insured under the liability coverage of the same policy of which the uninsured or underinsured motorist coverage is a part; - 2 -

4 merit. (2 Owned by, furnished, or available for the regular use of the named insured or any resident of the insured's household;" ( " ( 1 The uninsured motorist coverage... shall not apply to: (d Bodily injury, sickness, disease, or death of an insured through being struck by a vehicle owned by the named insured....",;.,:' Appellant's first argumeiir- for further review is without ARGUMENT II. THE POLICY BEHIND ET. SEQ. RENDERS APPELLANT'S EXCLUSION VOID. Appellant contends the Court of Appeals erred in concluding that the Uninsured Motorist Act, Neb. Rev. Stat et. seq. established mandatory and exclusion coverage provisions for uninsured motorist coverage written in Nebraska. Appellee believes this contention is without merit. The Court of Appeals carefully reviewed the caaes decided by this Court, both before and after the Uninsured Motorist Act was adopted in It concluded, correctly Appellee - 3 -

5 believes, that the legislature and this Court have identified a public policy in favor of mandatory uninsured motorist coverage which must meet statutory minimum standards. In Stephens v. Allied Mut. Ins. Co., 182 Neb. 562, 156 N.W.2d 133 (1968, a pre-act decision, this Court stated that the purpose of the uninsured motorist act was to give the injured person the same protection as would be the case if the offending motorist had liability coverage. In Muller v. Tri-State Ins. Co., 252 Neb. 7, 560 N.W.2d 130 (1997, a post-act decision, this Court reaffirmed the public policy behind the uninsured motorist statute as set forth in Stephens. It is clear in the presenf'case that had Ms. Lawson, the "offending motorist", had liability coverage, the coverage would have been available to compensate Appellee for her injuries. The Court of Appeals, relying on Stephens and Muller, simply hold that Appellant must do so since none of the statutory exclusions were applicable. Appellant's contention that the list of exclusions permitted by is not exclusive appears to rest on two foundations. First, citing Mayfield v. Allied Mut. Ins. Co., 231 Neb. 308, 436 N.W.2d 164 (1989, Appellant contends this Court has permitted uninsured motorist exclusions broader or different from those declared by the legislature. 4 - That contention

6 misunderstands Mayfield. In Mayfield, the court was called upon to decide whether an insurer could require a "hit-and-run-driver" to have physical contact with an insured to trigger uninsured motorist coverage. The court simply interpreted the phrase "hit-andrun-driver" in the uninsured motorist statute in place then as meaning actual physical contact. This is because, the court stated, the legislature was aware of the meaning of that term in the courts, and meant to adopt that meaning in the statute. Indeed, the legislature did exactly that in 1996 when it amended to expressly require actual physical contact. Thus, the cases and legis~ative response to them make it ~,...,"""'. " ~,. clear that this Court' s long'~:history of treating uninsured motorist statutes as mandatory statements of our state's public policy is endorsed and approved by the legislature. The present case is merely another example of the joint process. Appellant's second argument appears to be that since the Financial Responsibility Act permits liability insurers to.limit coverage to permissive users, the Uninsured Motorist Act should be read to do the same. (See Brief of Appellant, p. 7. Appellant states "[T]here is no rationale for mandating greater UM coverage than.for liability coverage." (Id. But of course, this Court has repeatedly found that "rationale" in the actions of our legislature. In the case of - 5 -

7 liability insurance, this Court has held that the usual power of the liability insurer to define and limit coverage is lost when a liability policy is certified as proof of financial responsibility. See State Farm v. Hildebrand, 502 N.W.2d 469 (1993. That power is gone because the legislature, in Neb. Rev. Stat , mandated that certified policies contain certain minimum, mandatory provisions. The legislature in passing the Uninsured Motorist Act clearly was seeking to accomplish the same goal as accomplished by sections There is thus every reason for the Court of Appeals, and this Court, to rend as containing an exclus,ive list of permitted policy. ;.,~ -',' exclusions from uninsured mof6~ist coverage. CONCLUSION The Court of Appeals carefully and accurately identified the public policy behind Nebraska's Uninsured Motorist Act. Its decision is in a long tradition of similar decisions of this Court. Moreover, there clearly is in this state a close, working relationship between this Court's statements of the legislature's wishes, and the legislature's response to those statements. Together, these two bodies have developed a clear, complete, and mandatory system to provide protection for those injured by an uninsured motorist. The Court of Appeals' decision is but one more expression of the peoples' will

8 WHEREFORE, Appellee respectfully prays the Court for an order denying Appellant's Petition for Further Review. Respectfully submitted, ALVIN LUIKENSi BARBARA LUIKENS, a minor and protected person by and through Alvin Luikens as her father and next friend, APPELLEES n, #101 Da id S. Lathr p, Jr., #15986 HAUPTMAN, O'BRIEN, WOLF & LATHROP, P.C West Dodge Road, suite 403 Omaha, Nebraska ( ATTORNEYS FOR APPELLEES LUIKENS - 7 -

9 IN THE NEBRASKA SUPREME COURT AMERICAN STATES INSURANCE COMPANY, a Corporation, vs. Appellant, FARM BUREAU INSURANCE COMPANY OF NEBRASKA, a Corporation; ALVIN LUIKENS; BARBARA LUIKENS, a minor and protected person by and through Alvin Luikens as her father and next friend, Appellees. Court of Appeals A PROOF OF SERVICE The undersigned hereby certifies that on the 25th day of September, 1998, two (2 copies of the brief in the entitled case were served by regular V~ited States Mail, first class,./...:,: ";~.' postage prepaid, to Dan H. I<~;:tcham & Suzanne M. Shehan at Hansen, Engles & Locher, P.C., 800 Exchange Building, 1905 Harney Street, Omaha, Nebraska 68102, and upon Thomas Otepka, at Gross & Welch, 2120 South 72nd Street, suite 800, Omaha, Nebraska ALVIN LUIKENS; BARBARA LUIKENS, a minor and protected person by and through Alvin Luikens as her father and ne t frien APPELLEES LUIKENS

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