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Pogge v. American Family Mutual Insurance Co.11/9/2004
INTRODUCTION
American Family Mutual Insurance Company (American Family) filed a motion to dismiss the declaratory judgment action brought by Rosemary Pogge and Philip H. Pogge. The Pogges filed the action, after their settlement with the insurers for the other two parties involved in a motor vehicle accident, in order to determine the extent of underinsured motorist coverage available to them under their "Family Car Policy" issued by American Family. The trial court sustained the motion to dismiss, and the Pogges appeal. We also deal with issues raised by the Nebraska Rules of Pleading in Civil Actions.
FACTUAL BACKGROUND
As there were no evidentiary proceedings, our statement of facts comes from the pleadings. On January 15, 1999, Lois Sisson's vehicle entered the intersection of 114th and Jackson Streets in Omaha, Nebraska, and collided with Nathan Mandell's vehicle. At the time of that collision, the vehicle Rosemary was driving was stopped at a stop sign at the intersection of 114th Street and Meadow Drive. The impact of the collision of Sisson's and Mandell's vehicles caused Mandell's vehicle to spin in a northwesterly direction and strike Rosemary's vehicle. Rosemary sustained significant bodily injuries.
At the time of the collision, Sisson's vehicle was covered by a $100,000 liability insurance policy issued by Safeco Insurance. Safeco Insurance tendered its $100,000 policy limits to the Pogges. Mandell's automobile insurance carrier, State Farm Insurance Company (State Farm), ultimately offered to settle with the Pogges for $75,000 of Mandell's policy limit of $100,000. The Pogges notified American Family of their intent to settle the claim for $175,000 ($100,000 from Sisson's insurer and $75,000 from Mandell's insurer). American Family did not object to such settlement, but it informed the Pogges that their underinsured motorist coverage of $100,000 "would not be available to the Pogges for this claim in that they are agreeing to settle their claim for less than the full policy limits of all underlying liability policies available for this accident." The Pogges made demand on American Family for the underinsured motorist benefits under the policy because their damages allegedly exceeded the $175,000 settlement. American Family refused such demand, and the instant litigation followed.
PROCEDURAL BACKGROUND
The Pogges filed a petition on January 14, 2003, asking the district court to determine the coverage available to the Pogges under their Family Car Policy issued by American Family and alleging that American Family breached its duty of good faith and fair dealing in failing to pay the underinsured motorist benefits. On February 18, American Family filed a motion to dismiss pursuant to Neb. Ct. R. of Pldg. in Civ. Actions 12(b)(6) (rev. 2003). Following a hearing on the motion, the district court entered an order on April 1 sustaining the motion to dismiss. The Pogges appeal, but only with respect to the dismissal of their underinsured benefits claim. The breach of good faith claim is not at issue in this appeal.
ASSIGNMENTS OF ERROR
The Pogges assert that the district court erred in (1) failing to overrule American Family's motion to dismiss and find the language of the exhaustion clause to be ambiguous, (2) failing to overrule American Family's motion to dismiss and find the exhaustion clause void as against public policy, (3) not finding the exhaustion clause contrary to Nebraska's Uninsured and Underinsured Motorist Insurance Coverage Act, (4) not finding the exhaustion clause void and unenforceable because it was not a permissible exclusion or exception under the act, and (5) failing to overrul
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