Johnson v. Nelson ( 2015 )

Nebraska Advance Sheets
JOHNSON v. NELSON 703
Cite as 290 Neb. 703
If the jury believed Ginn’s version of the facts, then Ginn
did not breach a duty to ensure that the documents were signed
before or after the closing. Instead, Balames’ injury was caused
by his failure to follow Ginn’s advice, his failure to review the
documents for the required signatures, and his misrepresenta-
tion to Ginn that the documents were signed.
Because the court incorrectly concluded that plain error per-
meated the trial, we presume that the jury’s general verdict for
Ginn shows it found for him on all the submitted issues. Those
issues included (1) whether Ginn breached a duty of care, (2)
whether Balames’ negligence was the sole proximate cause
of his own injury, and (3) whether the statute of limitations
for malpractice claims barred Balames’ recovery even if he
proved his claim. Because we presume that the jury determined
these issues in Ginn’s favor, we vacate the court’s judgment
and remand with directions for it to reinstate the judgment
for Ginn.
Judgment vacated, and cause
remanded with directions.
Stephan, J., not participating.
Chad P. Johnson, appellant and cross-appellee, v.
Chris M. Nelson, Personal R epresentative of
the Estate of Stewart S. M innick, deceased,
et al., appellees and cross-appellants.
___ N.W.2d ___
Filed April 17, 2015. No. S-14-049.
1. Summary Judgment. Summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing show that there is no genuine issue as to any
material facts 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.
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 infer-
ences that may be drawn from the facts and that the moving party is entitled to
judgment as a matter of law.
3. Summary Judgment: Jurisdiction: Appeal and Error. When reviewing cross-
motions for summary judgment, an appellate court acquires jurisdiction over
Nebraska Advance Sheets
704 290 NEBRASKA REPORTS
both motions and may determine the controversy that is the subject of those
motions; an appellate court may also specify the issues as to which questions of
fact remain and direct further proceedings as the court deems necessary.
4. Specific Performance: Real Estate: Contracts. The equitable remedy of spe-
cific performance regarding a contract for the sale of real estate may be granted
where a valid, binding contract exists which is definite and certain in its terms,
mutual in its obligation, free from overreaching fraud and unfairness, and where
the remedy at law is inadequate.
5. Contracts: Specific Performance: Proof. Before a court may compel specific
performance, there must be a showing that a valid, legally enforceable contract
exists. The burden of proving a contract is on the party who seeks to compel
specific performance.
6. Contracts: Insurance: Public Policy. At common law, life insurance policies
issued to a party not having an insurable interest in the life of an insured are
considered a wager on the life of another and therefore void as being against
public policy.
7. Public Policy: Words and Phrases. Public policy is that principle of the law
which holds that no subject can lawfully do that which has a tendency to be
injurious to the public or against the public good, the principles under which
the freedom of contract or private dealings are restricted by law for the good of
the community.
8. Contracts: Public Policy. A contract which is clearly contrary to public policy
is void.
9. ____: ____. The determination of whether a contract violates public policy pre­
sents a question of law.
10. Standing: Jurisdiction: Parties. Standing is a jurisdictional component of
a party’s case; only a party who has standing may invoke the jurisdiction of
a court.
11. Standing. It is the party initiating the suit who must meet the standing require-
ment, not a defendant.
12. Courts: Contracts: Public Policy. The power of courts to invalidate contracts
for being in contravention of public policy is a very delicate and undefined power
which should be exercised only in cases free from doubt.
13. Appeal and Error. An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy before it.
Appeal from the District Court for Frontier County: David
Urbom, Judge. Affirmed.
Nathaniel J. Mustion, of Mousel, Brooks, Garner &
Schneider, P.C., L.L.O., and Victor E. Covalt III and Adam R.
Little, of Ballew, Covalt & Hazen, P.C., L.L.O., for appellant.
Terry R. Wittler, of Cline, Williams, Wright, Johnson &
Oldfather, L.L.P., for appellees.
Nebraska Advance Sheets
JOHNSON v. NELSON 705
Cite as 290 Neb. 703
Heavican, C.J., Connolly, Stephan, McCormack, Miller-
Lerman, and Cassel, JJ.
Stephan, J.
In 2007, Chad P. Johnson and Stewart S. Minnick entered
into a written agreement whereby, after Minnick’s death,
Johnson would purchase farmland he had been renting from
Minnick and Minnick’s sister for a specified price. The pur-
chase price was to be funded by an insurance policy owned by
Johnson on Minnick’s life. Following Minnick’s death in 2012,
the proceeds of the policy were paid to Johnson. He tendered
them pursuant to the agreement, but the personal representative
of Minnick’s estate refused to consummate the sale.
Johnson then brought an action for specific performance
and other relief. The district court for Frontier County held the
purchase agreement was unenforceable, because (1) Minnick
lacked authority to enter into it on behalf of his sister and (2)
the agreement provided no means of allocating the purchase
price to only that portion of the property which Minnick owned
in his own right. The court also held that Johnson’s claim for
damages was time barred and dismissed a counterclaim filed
by the personal representative and Minnick’s heirs seeking
equitable distribution of the insurance proceeds that had been
paid to Johnson. Although our reasoning differs from that of
the district court, we affirm its judgment.
BACKGROUND
Facts
Since 1997, Johnson has farmed land owned by Minnick
and Minnick’s sister Mary E. Nelson pursuant to an oral lease
agreement. The lease terms required Johnson to pay cash rent
for pastureland and to pay a share of the crop on the remain-
ing land. The land is made up of two contiguous tracts. What
is referred to in the record as “Tract 1” was owned solely by
Minnick, and what is referred to as “Tract 2” was owned by
Minnick and Nelson as tenants in common. Minnick’s fam-
ily had a long association with the land. Johnson always dealt
directly with Minnick on matters pertaining to both tracts;
Nelson had no direct involvement.
Nebraska Advance Sheets
706 290 NEBRASKA REPORTS
In the fall of 2006, Johnson met with an insurance agent
and discussed taking out a life insurance policy on Minnick
and then using the proceeds to purchase the farmland after
Minnick’s death. The agent was Johnson’s cousin. The agent
advised Johnson that he would need an insurable interest in
Minnick’s life and recommended that Johnson and Minnick
enter into a buyout agreement. Minnick agreed to the plan and
worked with the agent to find a company willing to issue a
$500,000 insurance policy on his life. Eventually, an applica-
tion for life insurance signed by both Johnson and Minnick
was submitted to a life insurance company and a policy was
issued with an effective date of March 12, 2007. Johnson was
the owner of the policy, Minnick was the named insured, and
Johnson and his wife were the primary and secondary ben-
eficiaries, respectively. On the effective date of the policy,
Minnick was 80 years old.
The buyout agreement is dated January 16, 2007. It spe-
cifically provides that Johnson will purchase life insurance on
Minnick; that on Minnick’s death, Johnson will pay the pro-
ceeds of the policy to the personal representative of Minnick’s
estate; and that the estate shall then transfer the farmland to
Johnson. The agreement is signed by Johnson, Minnick, and
“Mary Nelson by Stewart Minnick, P.O.A.”
Minnick died in January 2012. He never married, and had no
surviving children. Nelson was his only surviving sibling. His
will, executed in 2002, designates Nelson’s three adult children
as residual beneficiaries.
Prior to Minnick’s death, Johnson paid approximately
$170,000 in premiums on the life insurance policy. After
Minnick died, the insurer paid the policy proceeds of $500,000
to Johnson. Johnson then tendered this amount to the personal
representative of Minnick’s estate and requested conveyance of
the farmland pursuant to the buyout agreement. The personal
representative refused to convey the farmland.
Nelson testified that she and Minnick discussed the pos-
sibility of selling the farmland on only one occasion, in late
2006, and that she told Minnick at that time she was unwilling
to sell. She denied giving Minnick either verbal permission or
Nebraska Advance Sheets
JOHNSON v. NELSON 707
Cite as 290 Neb. 703
a written power of attorney authorizing him to enter into the
agreement with Johnson on her behalf. There is no power of
attorney in the record, and the parties agree that Minnick had
no authority to enter into the agreement on behalf of Nelson.
During his lifetime, Minnick did not disclose the agreement
to Nelson, her children, or the attorney who drew his will and
regularly handled his financial affairs.
P rocedural History
Following Minnick’s death, the personal representative pub-
lished a notice to creditors stating that claims against the estate
were to be filed by April 17, 2012. On March 21, Johnson filed
a claim against Minnick’s estate in the county court for Furnas
County, seeking specific performance of the buyout agreement.
On April 2, the personal representative mailed a notice of disal-
lowance of the claim to Johnson.
On July 2, 2012, Johnson filed this action in the district
court for Frontier County seeking specific performance of the
buyout agreement and other relief. In the operative complaint,
he alleged that when the agreement was executed in 2007,
the farmland was worth approximately $450,000, and that the
farmland was worth $1.25 million at the time of Minnick’s
death in 2012. The original defendants were Nelson and the
personal representative. Nelson’s three children later inter-
vened in their individual capacities. For purposes of clarity,
we shall refer to the personal representative, Nelson, and her
children collectively as “the estate.”
In his amended complaint, Johnson alleged that Minnick
owned tract 1 in fee simple and owned an undivided one-
half interest in tract 2. Johnson acknowledged that when
Minnick executed the buyout agreement, he lacked the req-
uisite power of attorney to convey Nelson’s interest. Johnson
further alleged that an award of damages would not adequately
compensate him for the personal representative’s “refusal to
convey that portion of the Real Estate that . . . Minnick had
the power to contract to sell.” Johnson sought specific per­
formance of the buyout agreement; he asked the court to
require the personal representative to convey to him title to
Nebraska Advance Sheets
708 290 NEBRASKA REPORTS
tract 1 and title to “Minnick’s undivided one-half (1/2) inter-
est” in tract 2. In separate causes of action, Johnson sought
reformation of the contract and damages for negligent and
fraudulent misrepresentation.
The estate filed an answer alleging that the buyout agree-
ment was void for various reasons, including that Johnson
lacked an insurable interest in Minnick’s life. It also alleged
that Johnson’s claim for damages was barred by his failure to
file a timely claim as required by Neb. Rev. Stat. § 30-2485
(Cum. Supp. 2014). In addition, it asserted counterclaims
for slander of title and equitable distribution of the insur-
ance proceeds.
Johnson moved for partial summary judgment on his spe-
cific performance claim, and the estate moved for summary
judgment in its favor with respect to all of Johnson’s claims.
In overruling Johnson’s motion for summary judgment, the
district court rejected the estate’s claim that the buyout agree-
ment was void as against public policy because Johnson had
no insurable interest in Minnick’s life, reasoning the estate
had no standing to raise that claim. The court also rejected
the estate’s claims that the buyout was unenforceable as an
“agreement to agree” or as an unreasonable restraint on alien-
ation of land. The court determined, however, that the buyout
agreement could not be specifically performed, because there
was no means of apportioning the $500,000 purchase price
between Minnick’s interest in the land and Nelson’s interest in
the land. Further, the court determined that Johnson’s claim for
damages was time barred by § 30-2485(a)(1), because he filed
this action more than 60 days after the notice of disallowance
of claim was mailed.
The district court also dismissed the estate’s counterclaim
for equitable distribution, concluding that only the insurer
can assert a claim against a beneficiary based upon a lack of
insurable interest. The court ultimately entered summary judg-
ment for the estate on all of Johnson’s claims, and the estate
dismissed its counterclaim for slander of title.
Johnson filed this timely appeal, and the estate cross-
appealed. We granted the estate’s petition to bypass.
Nebraska Advance Sheets
JOHNSON v. NELSON 709
Cite as 290 Neb. 703
ASSIGNMENTS OF ERROR
Johnson assigns, restated and summarized, that the district
court erred (1) in failing to grant specific performance of the
buyout agreement and (2) in dismissing his claim for damages.
On cross-appeal, the estate assigns, restated and summa-
rized, that the district court erred in (1) failing to rule that
the buyout agreement was an unreasonable restraint on alien-
ation, an unenforceable agreement to agree, or void due to the
absence of an insurable interest, and (2) holding that it could
not assert an equitable claim to the insurance proceeds paid to
Johnson based upon a claim that Johnson lacked an insurable
interest in Minnick’s life.
STANDARD OF REVIEW
[1] Summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing show that there is no gen-
uine issue as to any material facts or as to the ultimate infer-
ences that may be drawn from those facts and that the moving
party is entitled to judgment as a matter of law.1
[2] 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.2
[3] When reviewing cross-motions for summary judgment,
an appellate court acquires jurisdiction over both motions and
may determine the controversy that is the subject of those
motions; an appellate court may also specify the issues as to
which questions of fact remain and direct further proceedings
as the court deems necessary.3
1
Stick v. City of Omaha, 289 Neb. 752, 857 N.W.2d 561 (2015); Southwind
Homeowners Assn. v. Burden, 283 Neb. 522, 810 N.W.2d 714 (2012).
2
Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816
(2015); Brothers v. Kimball Cty. Hosp., 289 Neb. 879, 857 N.W.2d 789
(2015).
3
Chicago Lumber Co. of Omaha v. Selvera, 282 Neb. 12, 809 N.W.2d 469
(2011).
Nebraska Advance Sheets
710 290 NEBRASKA REPORTS
ANALYSIS
Specific P erformance
[4,5] The equitable remedy of specific performance regard-
ing a contract for the sale of real estate may be granted where
a valid, binding contract exists which is definite and certain
in its terms, mutual in its obligations, free from overreaching
fraud and unfairness, and where the remedy at law is inade-
quate.4 Before a court may compel specific performance, there
must be a showing that a valid, legally enforceable contract
exists.5 The burden of proving a contract is on the party who
seeks to compel specific performance.6
The estate alleged that specific performance was improper
for four reasons: (1) The buyout agreement was simply an
agreement to agree, (2) the buyout agreement was an unrea-
sonable restraint on alienation, (3) there was no means of
abating the purchase price to account for Nelson’s interest,
and (4) the buyout was void because Johnson lacked an insur-
able interest in Minnick’s life. The district court determined
the buyout was not simply an agreement to agree and was
not an unreasonable restraint on alienation. It also concluded
that because there was no means of abating the purchase price
to account for Nelson’s interest, the buyout agreement could
not be enforced by ordering specific performance. The court
refused to decide whether Johnson lacked an insurable interest
in Minnick’s life, reasoning the estate lacked standing to raise
that defense. Both Johnson and the estate challenge the district
court’s ruling on specific performance.
We first address the estate’s claim that the buyout was void
because Johnson lacked an insurable interest in Minnick’s
life.
[6-9] At common law, life insurance policies issued to a
party not having an insurable interest in the life of an insured
are considered a wager on the life of another and therefore
4
See Mohrlang v. Draper, 219 Neb. 630, 365 N.W.2d 443 (1985).
5
Satellite Dev. Co. v. Bernt, 229 Neb. 778, 429 N.W.2d 334 (1988).
6
Id.
Nebraska Advance Sheets
JOHNSON v. NELSON 711
Cite as 290 Neb. 703
void as being against public policy.7 In contract and insurance
law, public policy is that principle of the law which holds
that no subject can lawfully do that which has a tendency
to be injurious to the public or against the public good, the
principles under which the freedom of contract or private deal-
ings are restricted by law for the good of the community.8 A
contract which is clearly contrary to public policy is void.9
The determination of whether a contract violates public policy
presents a question of law.10
The district court rejected this defense on the ground that
the estate did not have standing to question Johnson’s insurable
interest in Minnick’s life. In reaching this conclusion, it relied
on Ryan v. Tickle,11 an action brought by the widow of the
insured and the executrix of his estate to recover the proceeds
of a life insurance policy taken out by the insured’s former
business partner and paid to the partner upon the insured’s
death. The issue was whether the executrix could sue the for-
mer partner to recover the policy proceeds, based on a claim
that he lacked an insurable interest in the life of the insured.
We concluded that the widow/executrix had “no standing or
right to bring [the] lawsuit.”12
[10,11] In the estate’s cross-appeal, it argues that the dis-
trict court erred in concluding that Ryan precluded it from
asserting that the buyout agreement was void as a defense to
Johnson’s claim for specific performance. It argues that Ryan
7
See, Warnock v. Davis, 104 U.S. (14 Otto) 775, 26 L. Ed. 924 (1881);
Chamberlain v. Butler, 61 Neb. 730, 86 N.W. 481 (1901). See, also, 28
Bertram Harnett & Irving I. Lesnick, Appleman on Insurance 2d, Life
Insurance § 174.01[A] (2006).
8
American Fam. Mut. Ins. Co. v. Hadley, 264 Neb. 435, 648 N.W.2d 769
(2002); Volquardson v. Hartford Ins. Co., 264 Neb. 337, 647 N.W.2d 599
(2002).
9
Bamford v. Bamford, Inc., 279 Neb. 259, 777 N.W.2d 573 (2010).
10
Law Offices of Ronald J. Palagi v. Howard, 275 Neb. 334, 747 N.W.2d
1 (2008); American Fam. Mut. Ins. Co. v. Hadley, supra note 8; Ploen v.
Union Ins. Co., 253 Neb. 867, 573 N.W.2d 436 (1998).
11
Ryan v. Tickle, 210 Neb. 630, 316 N.W.2d 580 (1982).
12
Id. at 634, 316 N.W.2d at 582.
Nebraska Advance Sheets
712 290 NEBRASKA REPORTS
involved an issue of standing to seek affirmative relief, not
the assertion of a defense. Standing is a jurisdictional com-
ponent of a party’s case; only a party who has standing may
invoke the jurisdiction of a court.13 In Community Dev. Agency
v. PRP Holdings,14 we stated that it is the party initiating the
suit who must meet the standing requirement, not a defendant.
Other jurisdictions hold likewise. For example, the Colorado
Supreme Court has observed that “[t]raditional concerns sur-
rounding standing are not implicated when a defendant’s
standing is challenged; a defendant may assert an affirmative
defense in response to a complaint, which asserts that the
defendant has an interest in the action.”15 Similarly, the Idaho
Supreme Court has held that “‘[s]tanding is a subcategory of
justiciability, and the standing inquiry is focused on the party
seeking relief.’”16
We acknowledge that there is language in Ryan which,
taken out of context, could suggest that a party other than the
insurer cannot raise the lack of an insurable interest under any
circumstances. For example, we stated in Ryan that there was
established law in other jurisdictions that “only the insurer
can raise the objection of want of an insurable interest.”17
But, as noted, Ryan involved a claim brought against a benefi-
ciary to recover policy proceeds on the ground that the ben-
eficiary lacked an insurable interest, as did Secor v. Pioneer
Foundry,18 the principal case on which Ryan relied. Because
Ryan dealt with a challenge to insurable interest only in the
context of standing to assert a claim to insurance proceeds,
13
Brook Valley Ltd. Part. v. Mutual of Omaha Bank, 281 Neb. 455, 797
N.W.2d 748 (2011).
14
Community Dev. Agency v. PRP Holdings, 277 Neb. 1015, 767 N.W.2d 68
(2009).
15
Mortgage Investments v. Battle Mountain, 70 P.3d 1176, 1182 (Colo.
2003).
16
Stonebrook Const. v. Chase Home Finance, 152 Idaho 927, 930, 277 P.3d
374, 377 (2012), quoting Taylor v. AIA Services Corp., 151 Idaho 552, 261
P.3d 829 (2011).
17
Ryan, supra note 11, 210 Neb. at 634, 316 N.W.2d at 582.
18
Secor v. Pioneer Foundry, 20 Mich. App. 30, 173 N.W.2d 780 (1969).
Nebraska Advance Sheets
JOHNSON v. NELSON 713
Cite as 290 Neb. 703
we do not read it as precluding the assertion of the estate’s
defense that the buyout agreement is unenforceable because
its funding mechanism is an insurance policy on the life of
one in whom the owner and beneficiary of the policy had no
insurable interest.
The question, then, is whether the defense has merit. In
Nebraska, an “[i]nsurable interest, in the matter of life and
health insurance, exists when the beneficiary because of rela-
tionship, either pecuniary or from ties of blood or marriage,
has reason to expect some benefit from the continuance of the
life of the insured.”19 Johnson and Minnick were not related
by blood or marriage, so the question of whether Johnson had
an insurable interest in Minnick’s life turns on their “pecuni-
ary” relationship.
This court has not decided the type of pecuniary or eco-
nomic relationship which may form the basis of an insurable
interest in the context of life insurance. Some courts have held
that one business partner may have an insurable interest in the
life of another business partner where there is an expectation
of pecuniary benefit from the continued life of the insured
partner.20 But Johnson acknowledged that he and Minnick
were not business partners. Courts have also held that a busi-
ness entity may have an insurable interest in the life of a key
employee whose death would adversely affect the business.21
But there was no employment relationship between Johnson
and Minnick. Under some circumstances, a creditor has been
held to have an insurable interest in the life of a debtor.22
But the record reflects no such relationship between Johnson
and Minnick.
19
Neb. Rev. Stat. § 44-103(13)(b) (Reissue 2010).
20
See, e.g., Graves v. Norred, 510 So. 2d 816 (Ala. 1987); Ridley v.
VanderBoegh, 95 Idaho 456, 511 P.2d 273 (1973).
21
See, e.g., U.S. v. Supplee-Biddle Co., 265 U.S. 189, 44 S. Ct. 546, 68 L.
Ed. 970 (1924); Murray, Exrs., v. G. F. Higgins Co., 300 Pa. 341, 150
A. 629 (1930); Mutual Life Ins. Co. v. Board, 115 Va. 836, 80 S.E. 565
(1914).
22
See, e.g., Cosentino v. William Penn Life Ins. Co. of New York, 224 A.D.2d
777, 636 N.Y.S.2d 943 (1996).
Nebraska Advance Sheets
714 290 NEBRASKA REPORTS
At the time the policy issued, the relationship between
Johnson and Minnick was that of (1) landlord and tenant
under an oral farm lease and (2) parties to the buyout agree-
ment, which could be performed only after Minnick’s death.
A similar relationship was the subject of a Maryland case,
Beard v. American Agency.23 There, a farmer who leased land
and had an option to purchase it after the owner’s death pur-
chased an insurance policy on the life of the owner, planning
to use the proceeds to purchase the land after the owner died.
After the landowner’s death, the insurer sought a declaratory
judgment that the farmer had no insurable interest in the life
of the landowner and that the policy was therefore void. A
Maryland statute defined an insurable interest in the life of an
unrelated person as “‘a lawful and substantial economic inter-
est in having the life . . . of the individual insured continue, as
distinguished from an interest which would arise only by, or
would be enhanced in value by, the death’”24 of such person.
The court reasoned that this standard was not met, because
the farmer would not receive any particular benefit from the
continued life of the landlord; at best he would remain a ten-
ant on the land while the landlord was alive, and would realize
an economic benefit only after the landowner died. And the
court held that the relationship between the farmer and the
landowner could not be considered a partnership, noting that
payment of rent, whether in the form of cash or a share of the
farm’s profits, would not create an inference supporting the
existence of a partnership.
We need not decide whether a landlord-tenant relationship
with respect to agricultural property could ever form the basis
of an insurable interest. We conclude only that in this case,
as in Beard, it did not. The agent who procured the policy
for Johnson described the insurable interest as “guaranteeing
a buyer for . . . Minnick and his sister at a price agreeable
to both parties, while at the same time ensuring . . . Johnson
and his family the opportunity and resources to purchase this
farm property essential to continuing their farm business.” But
23
Beard v. American Agency, 314 Md. 235, 550 A.2d 677 (1988).
24
Id. at 245, 550 A.2d at 681.
Nebraska Advance Sheets
JOHNSON v. NELSON 715
Cite as 290 Neb. 703
this does not meet the requirement of § 44-103(13)(b) that for
there to be an insurable interest, the beneficiary must have
“reason to expect some benefit from the continuance of the
life of the insured.” Like the farmer in Beard, Johnson had
no reason to expect any pecuniary benefit from the continu-
ance of his landlord’s life. As long as Minnick lived and was
willing to rent the land to Johnson, Johnson would remain a
tenant on the land. The only difference in the relationship after
the execution of the buyout agreement was that Johnson had
the financial obligation to pay premiums on the life insurance
policy. The longer Minnick lived, the more premiums Johnson
had to pay to keep the policy in force. Under this arrange-
ment, Johnson’s pecuniary interest would not benefit from the
continuation of Minnick’s life; to the contrary, it would ben-
efit from Minnick’s death before additional premiums came
due. In effect, Johnson was gambling that Minnick would die
sooner rather than later. This is precisely the reason why an
insurance policy on the life of one in whom the owner and
beneficiary of the policy lacks an insurable interest is void as
against public policy.25
[12,13] The insurance policy on Minnick’s life was an
integral component of the buyout agreement which Johnson
sought to enforce after Minnick’s death. The agreement was
the reason for the policy, and the policy was the exclusive
financing mechanism for the agreement. The power of courts
to invalidate contracts for being in contravention of public
policy is a very delicate and undefined power which should
be exercised only in cases free from doubt.26 We are satisfied
that this is one of those cases. We conclude that the buyout
agreement was void as against public policy because it incor-
porated a financing mechanism consisting of a life insurance
policy in which the owner and beneficiary lacked an insurable
interest in the life of the insured. We therefore agree with the
district court that the buyout agreement was not specifically
25
See sources cited supra note 7.
26
Hearst-Argyle Prop. v. Entrex Comm. Servs., 279 Neb. 468, 778 N.W.2d
465 (2010); Myers v. Nebraska Invest. Council, 272 Neb. 669, 724 N.W.2d
776 (2006).
Nebraska Advance Sheets
716 290 NEBRASKA REPORTS
enforceable as a matter of law, although for different reasons
than those articulated by the district court.27 Because we reach
this determination, we need not address the other assignments
of error relating to specific performance; an appellate court is
not obligated to engage in an analysis that is not necessary to
adjudicate the case and controversy before it.28
Claim for Damages
Johnson argues that the district court erred in determining
that his alternative claim for damages based on theories of
breach of contract, fraudulent misrepresentation, and negli-
gent misrepresentation was time barred by § 30-2485(a)(1).
That statute provides that all claims against a decedent’s
estate which arose before the death of the decedent are barred
unless presented within 2 months after the date of the first
publication of notice to creditors. Under Neb. Rev. Stat.
§ 30-2486 (Reissue 2008), claims against a decedent’s estate
may be presented either by filing a written statement with
the clerk of the court29 or by commencing an action against
the personal representative in any court having subject mat-
ter jurisdiction and personal jurisdiction.30 If the claim is
presented by filing a written statement with the clerk of the
court, then “no proceeding thereon may be commenced more
than sixty days after the personal representative has mailed a
notice of disallowance.”31
Here, notice to creditors was first published on February
2, 2012, and creditors were required to file claims by April
17. Johnson filed a claim with the clerk of the Furnas County
Court on March 21. A notice of disallowance of his claim was
mailed to him on April 2. The notice specifically stated that
failing to commence a proceeding within 60 days after the
mailing of the notice would forever bar the claim.
27
See Tyson Fresh Meats v. State, 270 Neb. 535, 704 N.W.2d 788 (2005).
28
Whitesides v. Whitesides, ante p. 116, 858 N.W.2d 858 (2015); Millennium
Laboratories v. Ward, 289 Neb. 718, 857 N.W.2d 304 (2014).
29
§ 30-2486(1).
30
§ 30-2486(2).
31
§ 30-2486(3).
Nebraska Advance Sheets
JOHNSON v. NELSON 717
Cite as 290 Neb. 703
This action was filed on July 2, 2012, which was outside
the 60-day period specified in § 30-2486(3), and for that
reason, the district court concluded it was time barred. In his
brief, Johnson asserts that he filed and served a petition for
allowance of claim in the county court on April 10, 2012. He
concedes this document does not appear in the record, but
argues its existence “can, and should have been, inferred from
the record.”32 Specifically, he contends the existence of this
document can be inferred because the attorney for the personal
representative testified that he prepared a motion to summarily
deny a claim on May 21, thus creating the inference that there
was a claim to deny.
We find no merit in this argument. If such a document
existed, Johnson had the opportunity to offer it into evidence
at the summary judgment hearing. Even though Johnson as the
party opposing a motion for summary judgment is entitled to
all reasonable inferences in his favor,33 he cannot avoid sum-
mary judgment on a record that clearly demonstrates his claim
was time barred by speculating that he may have actually filed
in time in another court.
For completeness, we note that Johnson also argues that
the district court lacked subject matter jurisdiction to decide
whether his claim for damages was timely filed, because the
probate court has exclusive jurisdiction over claims against
the estate. This argument is also without merit. Johnson
invoked the jurisdiction of the district court to adjudicate his
claim for damages, and the district court clearly had subject
matter jurisdiction to interpret and apply the nonclaim stat-
utes in order to adjudicate the defense that the action was
time barred.
Counterclaim for
Insurance P roceeds
The estate counterclaimed for “Equitable Distribution of
[the] Insurance Proceeds,” alleging that because Johnson
32
Brief for appellant at 27.
33
See O’Brien v. Bellevue Public Schools, 289 Neb. 637, 856 N.W.2d 731
(2014).
Nebraska Advance Sheets
718 290 NEBRASKA REPORTS
lacked an insurable interest in Minnick’s life, Minnick’s estate
and heirs “are the proper beneficiaries of any insurance upon
his life.” The estate prayed for judgment against Johnson in
the amount of $500,000, the amount of the life insurance
policy proceeds.
The district court dismissed this counterclaim, reasoning
it was barred by our holding in Ryan v. Tickle.34 In its cross-
appeal, the estate contends this was error and asks us to impose
a constructive trust on the life insurance proceeds paid to
Johnson in favor of the estate.
This claim is barred by our holding in Ryan, because the
estate lacks standing to assert the claim against Johnson. But
the estate asks that we overrule Ryan, because the “only effec-
tive means of enforcing the prohibition against wagers on an
individual’s life is to remove the economic incentive for such
wagers by recognizing that the estate and heirs of the deceased
have standing to challenge the payment of policy proceeds to a
beneficiary lacking an insurable interest.”35
Although Ryan is consistent with case law in other
jurisdictions,36 the reasoning on which it and other simi-
lar cases relies has been questioned. The insurable interest
doctrine “evolved to protect the public from wagering con-
tracts and incentives to the destruction of property or lives.”37
Nothing about the doctrine was meant to protect the interests
of insurance companies; thus, for the courts to allow only the
insurer to raise the issue seems incongruent. The rule that only
the insurer can raise a lack of an insurable interest is also
somewhat at odds with a corollary rule, also followed by a
majority of jurisdictions, that an insurer, by entering into a life
34
Ryan v. Tickle, supra note 11.
35
Reply brief for appellees at 4.
36
See, generally, 28 Harnett & Lesnick, supra note 7, § 174.10[A]; 3 Steven
Plitt et al., Couch on Insurance 3d §§ 41:5 and 41:6 (2011).
37
Peter Nash Swisher, The Insurable Interest Requirement for Life Insurance:
A Critical Reassessment, 53 Drake L. Rev. 477, 532 (2005) (emphasis
supplied), quoting Robert H. Jerry II, Understanding Insurance Law
§ 47[b] (3d ed. 2002).
Nebraska Advance Sheets
JOHNSON v. NELSON 719
Cite as 290 Neb. 703
i­nsurance contract with someone who lacks an insurable inter-
est in the insured, does not waive the lack of an insurable inter-
est defense by waiver or estoppel, or even by an incontestabil-
ity clause in the contract.38 Courts adopt this rule by reasoning
that the insurable interest doctrine is intended to protect the
public, not the insurer, and that thus, the insurer cannot waive
something designed to protect the public.39 One commentary
notes that as a general rule, “the social goal underlying the
insurable interest requirement would be better served by allow-
ing the estate of the insured to recover the proceeds of a policy
issued without insurable interest than by continuing to allow
that issue to be raised by the insurer as a defense.”40
A few state courts have departed from the majority position
and held that an estate has standing to challenge a beneficiary’s
right to retain insurance proceeds where the beneficiary lacked
an insurable interest in the life of the deceased insured.41
And in a number of states, the standing of an estate to sue
for recovery of insurance proceeds from a beneficiary who
lacked an insurable interest has been conferred by statute.42
For example, South Dakota has statutes which provide that if
a beneficiary lacking an insurable interest receives insurance
benefits, “the individual insured or his executor or administra-
tor, as the case may be, may maintain an action to recover such
benefits from the person so receiving them.”43 And Oklahoma
statutes provide “in substance that if anyone takes out a con-
tract of insurance . . . on a person in whom it does not have an
38
See 3 Plitt et al., supra note 36, § 41:7.
39
Id. See, Phillips v. Ins. Co., 60 Ohio St. 2d 180, 398 N.E.2d 564 (1979);
Farm Bur. Mut. Ins. Co. of Ark. v. Glover, 2 Ark. App. 79, 616 S.W.2d 755
(1981).
40
28 Harnett & Lesnick, supra note 7, § 174.11 at 134.
41
See, Tamez v. Certain Underwriters at Lloyd’s, 999 S.W.2d 12 (Tex. App.
1998); Smith v. Coleman, 184 Va. 259, 35 S.E.2d 107 (1945); Tate v.
Building Ass’n., 97 Va. 74, 33 S.E. 382 (1899).
42
28 Harnett & Lesnick, supra note 7, § 174.10[B].
43
S.D. Codified Laws § 58-10-5 (2004). See, also, S.D. Codified Laws
§ 58-10-3 (2004).
Nebraska Advance Sheets
720 290 NEBRASKA REPORTS
insurable interest, the insured or his representative may main-
tain a cause of action to recover the proceeds.”44
We find some merit in the criticism of the rule established
in Ryan and similar cases in other jurisdictions. But simply
overruling Ryan, which has been the law in this state for more
than 30 years, would not necessarily achieve legal clarity or
an equitable result in all instances. For example, the liability
of a beneficiary who obtains insurance proceeds in the good
faith belief that an insurable interest existed may be different
than the liability of one who achieves the same result through
fraud or undue influence. In the former instance, recovery
of the full amount of the policy proceeds by an estate may
constitute a windfall, at least to the extent of premiums paid
by the beneficiary. And, depending on the facts, there could
be tension with a Nebraska statute which provides that “any
money used as a bet or stake in gambling activity . . . shall be
forfeited to the state.”45
We conclude that the better course is not to overrule Ryan.
We leave to the Legislature the policy questions of whether
and under what circumstances an estate of an insured may
recover insurance proceeds paid to a beneficiary who lacks
an insurable interest in the life of the insured. Accordingly,
we conclude that the district court did not err in dismissing
the counterclaim.
CONCLUSION
Although our reasoning differs from that of the district
court, we conclude that it did not err in dismissing Johnson’s
claims and the estate’s counterclaim. Accordingly, we affirm.
Affirmed.
Wright, J., not participating.
44
Tillman ex rel. Estate v. Camelot Music, 408 F.3d 1300, 1302 (10th Cir.
2005), citing Okla. Stat. Ann. tit. 36, §§ 3601 and 3604(B) (West 1999).
45
Neb. Rev. Stat. § 28-1111 (Reissue 2008).