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Monnier v. American Family Insurance Group9/28/2004
efusal to negotiate in good faith and willful, fraudulent, intentional, and bad faith refusal to consider the nature and extent of Monnier's loss, alleges an action for bad faith against American Family.
In response to questions during oral argument, counsel for Monnier took the position that the claim for the contractual benefits under Monnier's policy had not been disposed of and was still pending in the district court. Turning to the trial court's order, the final paragraph thereof reads: American Family's "motion for summary judgment as to Count II shall be sustained and that Count II shall be dismissed with prejudice." Thus, it appears clear to us that the district court viewed the petition as setting forth two counts and that the court's comprehensive seven-page decision, which discusses only the matter of bad faith, is in fact a resolution of only count II and leaves pending Monnier's claim for contractual damages under the American Family policy. Therefore, we must examine whether we have jurisdiction and whether there is a final, appealable order.
Section 25-1315 states that "the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." In the instant case, there were two claims asserted but only the bad faith claim was decided. The trial court did not make an express determination that there was no just reason for delay or direct the entry of a final judgment as required by § 25-1315 for there to be a final, appealable order.
Because there was not a final, appealable order, we do not have jurisdiction. See § 25-1315(1). Thus, we do not reach the merits of the case, and we must dismiss this premature appeal.
Appeal dismissed.
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