 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
American Employers Group12/10/2002
for summary judgment has shown facts warranting judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact which prevents judgment as a matter of law. Popple v. Rose, 254 Neb. 1, 573 N.W.2d 765 (1998); Universal Assurors Life Ins. Co. v. Hohnstein, 243 Neb. 359, 500 N.W.2d 811 (1993).
We address the merits of the Defendants' summary judgment motion, taking AEG's causes of action one at a time.
(a) Breach of Fiduciary Duty
In AEG's amended petition, AEG first alleges that the Defendants manipulated the health insurance enrollment of the employees of Gottsch so as to make it appear that the demographic composition of Gottsch satisfied the health insurance underwriting rules of SSM and AMS by not submitting the applications of employees with poor health histories. AEG maintains that by this alleged conduct, the Defendants breached their fiduciary duty and duty of loyalty. We do not hesitate to say that if there were evidence of such conduct, given the duty of the Defendants to SSM, summary judgment would not be proper. See Bode v. Prettyman, 149 Neb. 179, 30 N.W.2d 627 (1948), and I. P. Homeowners v. Radtke, 5 Neb. App. 271, 558 N.W.2d 582 (1997) (both discuss duty owed to corporations by corporate officers).
The evidence reveals that AMS had the sole responsibility in electing whether to accept or decline a group under the health insurance plan offered by SSM. The evidence further reveals that AMS conducted all of the underwriting for the Gottsch employees. Therefore, according to the uncontroverted evidence, AMS, not SSM, determined whether Gottsch and its employees would be accepted or declined for health insurance coverage.
Furthermore, according to the health insurance plan procedures regarding late enrollees and timely add-ons, the Defendants could not have manipulated the agreement between SSM and AMS. Any late enrollee would be reviewed and evaluated individually. Therefore, under this procedure, the Defendants could not have waited until after the initial Gottsch employee group was accepted by AMS to submit current employees' applications showing poor medical histories. Additionally, there were no late enrollees and only one timely add-on. As indicated by the evidence, that add-on was a new employee who had to wait 90 days before he was enrolled under the Gottsch health plan.
(b) Fraud
AEG next alleges that the Defendants fraudulently obtained commissions by bringing Gottsch on as a client even though they knew that the demographic composition of Gottsch did not satisfy SSM's health insurance underwriting rules and would result in monetary losses.
In order to maintain an action for fraud, AEG must allege and prove the following elements: (1) that a representation was made; (2) that the representation was false; (3) that when made, the representation was known to be false or made recklessly without knowledge of its truth and as a positive assertion; (4) that it was made with the intention that AEG should rely upon it; (5) that AEG reasonably did so rely; and (6) that AEG suffered damage as a result. See Four R Cattle Co. v. Mullins, 253 Neb. 133, 570 N.W.2d 813 (1997). Nothing in this record even remotely comes close to satisfying this standard, and we need not repeat the evidence again to establish that proposition.
(c) Conspiracy
AEG alleges, finally, that the Defendants engaged in a conspiracy to breach their fiduciary duty to SSM and to defraud SSM. A civil conspiracy is a combination of two or more persons to accomplish by concerted action an unlawful or oppressive object, or a lawful object by unlawful or oppressiv
Page 1 2 3 4 5 6 7 8 9 10 Nebraska Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|