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Laravie v. Battle Creek Mutual Insurance Co.8/23/2005
(Not Designated for Permanent Publication)
Inbody, Chief Judge, and Sievers and Cassel, Judges.
INTRODUCTION
Battle Creek Mutual Insurance Company (Battle Creek) appeals from the summary judgment entered by the Madison County District Court in favor of Carol Ann Laravie, formerly known as Carol Ann Guthmiller, formerly known as Carol Ann Parks (Laravie), based upon an automobile liability insurance policy that provided Laravie with underinsured motorist coverage, thereby rejecting Battle Creek's defense that Laravie failed to provide certain notices required under the policy concerning prior litigation. Because the record fails to establish whether the earlier litigation was pending at the time that Laravie provided Battle Creek with the notice required by Neb. Rev. Stat. § 44-6412(2) (Reissue 2004), neither party established entitlement to judgment as a matter of law.
BACKGROUND
Laravie's amended complaint alleged, and Battle Creek's amended answer admitted, that at all relevant times, Laravie was an insured under a personal automobile insurance policy issued by Battle Creek. Pursuant to the underinsured motorist provisions of the policy, Battle Creek was to pay Laravie up to $50,000 per person and $100,000 per accident for bodily injuries suffered as a result of a collision with an underinsured motorist.
Laravie was injured in an automobile accident in O'Neill, Holt County, Nebraska, on April 6, 1999. The automobile operated by Laravie collided with a vehicle operated by Marsha Banks.
On May 23, 2001, Laravie's attorney wrote a letter to Battle Creek. The May 23 letter referred to a letter from Battle Creek to Laravie's attorney dated May 2, 2001; however, the May 2 letter does not appear in our record. The May 23 letter notified Battle Creek that Laravie's attorney expected Banks' insurer to tender its policy limits of $25,000. The letter also made demand for the policy limits of Battle Creek's underinsured coverage, together with its medical payments coverage. On July 16, Laravie's attorney sent a letter to Battle Creek enclosing a copy of Laravie's settlement brochure. The settlement brochure contained a copy of a proposed petition--so titled using the terminology in effect prior to the operative date on January 1, 2003, of the Nebraska Rules of Pleading in Civil Actions--to be filed by Laravie against Banks in Holt County District Court. On September 13, 2001, Laravie's attorney sent another letter to Battle Creek notifying Battle Creek that Banks' insurer had extended an offer of the policy limits of Banks' policy in settlement of Laravie's personal injury claim. The September 13 letter suggested that the underinsured motorist coverage in Battle Creek's policy had become operative. The letter also referred to Laravie's previous demand for the policy limits of the underinsured motorist coverage. By letter dated November 12, 2001, Laravie's attorney formally provided the notice to Battle Creek contemplated by § 44-6412(2). However, the November 12 letter was sent by regular mail rather than by certified or registered mail as required by § 44-6412(2), and on December 10, Laravie's attorney sent the same letter to Battle Creek by certified mail.
At some point not disclosed by our record but prior to October 21, 2002, Laravie filed suit against Banks in the district court for Holt County. On October 21, upon a confession of judgment, the district court for Holt County entered judgment for Laravie against Banks in the amount of $81,591.45 and costs. The record does not show that Laravie notified Battle Creek that the Holt County suit had been instigated, nor does it appear from the record that a copy of the
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