Peterson v. Homesite Indem. Co.

287 Neb. 48

840 N.W.2d 885

Dowayne Peterson, appellant,

v.Homesite Indemnity Company, a Kansas corporation, appellee.

No. S–12–875

Supreme Court of Nebraska.

Filed December 20, 2013

Appeal from the District Court for Sarpy County: Max Kelch, Judge. Reversed and remanded for further proceedings.

Ralph A. Froehlich, of Locher, Pavelka, Dostal, Braddy & Hammes, L.L.C., for appellant.

Thomas A. Grennan and Andrew J. Wilson, of Gross & Welch, P.C., L.L.O., for appellee.

Heavican, C.J.,Wright Connolly Stephenlly, McCormak, Miller–Lerman, and Cassel,JJ.

Syllabus by the Court

1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted and gives that party the benefit of all reasonable inferences deducible from the evidence.

2. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law.

3. Insurance: Contracts: Judgments: Appeal and Error. The interpretation of an insurance policy presents a question of law that an appellate court decides independently of the trial court.

4. Summary Judgment. Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

5. Summary Judgment. Summary judgment proceedings do not resolve factual issues, but instead determine whether there is a material issue of fact in dispute.

6. Summary Judgment. If a genuine issue of fact exists, summary judgment may not properly be entered.

7. Summary Judgment: Proof. The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must producesufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law.

8. Bailment: Words and Phrases. Bailment is defined as the delivery of personal property for some particular purpose or on mere deposit, upon a contract, express or implied, that after the purpose has been fulfilled, it shall be redelivered to the person who delivered it or otherwise dealt with according to that person's directions or kept until reclaimed, as the case may be.

9. Bailment: Words and Phrases. Bailment involves the delivery of personal property by one person to another in trust for a specific purpose, with a contract, express or implied, that the trust shall be faithfully executed and the property returned or duly accounted for when the special purpose is accomplished.

10. Conversion: Words and Phrases. Conversion is any unauthorized or wrongful act of dominion exerted over another's property which deprives the owner of his property permanently or for an indefinite period of time.

Wright, J.

I. NATURE OF CASE

This case presents the issue whether Dowayne Peterson suffered a loss of personal property due to theft, as defined in his homeowner's insurance policy. The question presented in this appeal is whether there is a material issue of fact in dispute.

Peterson contracted with a “shipper agent” to move his household goods and personal property from Nebraska to Florida. Individuals contacted by the shipper agent took possession of Peterson's property and demanded additional payment before delivery of the property to Florida. The property was never delivered to Florida or returned to Peterson.

Peterson's insurer, Homesite Indemnity Company (Homesite), denied coverage, claiming that a theft had not occurred. The district court found no material issues of fact in dispute and concluded that a theft had not occurred. It granted summary judgment in favor of Homesite.

Because there are genuine issues of material fact whether there was a theft, we reverse the judgment of the district court and remand the cause for further proceedings.

II. SCOPE OF REVIEW

In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted and gives that party the benefit of all reasonable inferences deducible from the evidence. Shada v. Farmers Ins. Exch., 286 Neb. 444, 840 N.W.2d 856, 2013 WL 4036446 (2013).

An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law. Id.

The interpretation of an insurance policy presents a question of law that we decide independently of the trial court. Alsidez v. American Family Mut. Ins. Co., 282 Neb. 890, 807 N.W.2d 184 (2011).

III. FACTS

In August 2007, Peterson obtained a homeowner's insurance policy from Homesite for his apartment in Bellevue, Nebraska. This policy insured against the “direct physical loss” of Peterson's personal property or that of his immediate family when caused by any of 16 listed perils, including theft. The term “theft” was not defined.

Peterson owned a house in Florida. On July 15, 2008, Peterson contacted United States Van Lines of Texas (USVLT) to move his personal property from Bellevue to Florida. He entered into a contract that provided for the disassembly, loading, transport, unloading, and reassembly of up to 8,000 pounds of household goods for an estimated cost of $3,845.37.

The final cost for the move would be determined based on the actual weight of the shipment. If “any additional pieces, packing services, weight or labor services [were] added at the origin or destination to those quoted,” Peterson would be charged additional amounts. Peterson waived his right to have USVLT perform a visual estimate and instead prepared an inventory of the items to be moved, which USVLT then used to calculate the estimated cost.

The contract provided that USVLT was to serve only as the “moving coordinator/shipper agent” and would not physically move Peterson's property. USVLT was “not responsible for any acts or omissions of the Carrier or its employees or agents.” Peterson was “subject to all applicable laws and the general terms and conditions of the Carrier,” which included a requirement that he “may not receive possession of [his] goods until all charges are paid in full.”

On Friday, August 15, 2008, men named “Arthur” and “Earl” arrived at Peterson's apartment in a U–Haul truck. They identified themselves as being with USVLT. Peterson was concerned because they had arrived in a U–Haul instead of “a long moving truck.” USVLT confirmed that it had sent Arthur and Earl to complete Peterson's move and explained that their normal moving truck had broken down. USVLT arranged for Desmond Campbell–Arthur and Earl's superior–to call Peterson with reassurance that the U–Haul would hold all of Peterson's property. But everything did not fit in the U–Haul, and Campbell arranged for a second truck to load the remainder of Peterson's property. Arthur agreed to tow Peterson's wife's vehicle behind the U–Haul, for which Peterson paid $500 cash.

Arthur and Earl left around noon on Saturday, August 16, 2008, with the full U–Haul and the vehicle. They expected to deliver Peterson's property to his residence in Florida on Sunday. On Saturday night, a Budget truck arrived to move the remainder of Peterson's property. Once Peterson received verification from Campbell that the men with the truck worked for Campbell, the two men loaded the remaining items and left. For simplicity, we refer to Arthur, Earl, and the two men in the second truck collectively as “the movers.”

On August 15 and 16, 2008, Peterson signed numerous documents given to him by the movers. These documents indicatedthat the movers and their superior, Campbell, were associated with two moving companies based in Georgia: Move Direct Relocation and Advance Budget Moving & Storage. None of the paperwork provided by the movers was from USVLT, but USVLT confirmed that it had sent the movers.

After several delays in delivery, Campbell informed Peterson that the shipment weighed 4,000 pounds more than estimated and that Peterson owed an additional $5,100. Peterson thought the alleged weight of the shipment was “an outrageous amount” and asked for documentation of the weight. Under the USVLT contract, Peterson had agreed to pay approximately $3,800 for the transport of 8,000 pounds of personal property.

As documentation of the weight of Peterson's shipment, Campbell faxed four weigh tickets to USVLT, which in turn faxed the weigh tickets to Peterson. The weigh tickets related to at least three different trucks, but only two had been used in the move. One weigh ticket described a semi-trailer, not the small rental trucks, and originated from a weigh station in Indiana. It was unclear whether the weight of the vehicle being towed by the movers was included in the weigh tickets. Three of the four weigh tickets were dated before Peterson's move. Because Peterson found “serious discrepancies” in the weigh tickets that “indicated that the documents were not reliable,” he said that he would pay an additional amount only after he was satisfied as to the weight of the shipment.

Peterson proposed that Campbell meet Peterson's wife at a weigh station in Florida to verify that Peterson's shipment was in fact over the estimated weight. Campbell rejected the proposal and stated that he would not deliver Peterson's property unless and until Peterson paid an additional amount in advance of delivery. USVLT asked Campbell to comply with Peterson's request to weigh the truck in the presence of Peterson's wife, but Campbell said that h...