Shelter Ins. Co. v. Gomez , 306 Neb. 607 ( 2020 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
SHELTER INS. CO. v. GOMEZ
Cite as 306 Neb. 607
Shelter Insurance Company, appellee and
cross-appellee, v. Santos Gomez, Jr., et al.,
appellees and cross-appellants, Carlene S.
Calder, Personal Representative of the
Estate of Jason Kraeger, deceased,
appellant, and Kate Benjamin,
appellee and cross-appellee.
___ N.W.2d ___
Filed July 31, 2020. No. S-18-927.
1. Summary Judgment: Appeal and Error. An appellate court will affirm
a lower court’s grant of summary judgment if the pleadings and admit-
ted evidence 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. ____: ____. 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.
3. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law for which an appellate court has an obligation to reach an
independent conclusion irrespective of the decision made by the court
below.
4. Motor Carriers. Neb. Rev. Stat. § 75-363 (Cum. Supp. 2014) adopts,
as Nebraska law, several parts of the Federal Motor Carrier Safety
Regulations and makes them applicable to certain intrastate motor carri-
ers not otherwise subject to federal regulation.
5. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
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SHELTER INS. CO. v. GOMEZ
Cite as 306 Neb. 607
6. Statutes: Legislature: Intent. Components of a series or collection of
statutes pertaining to a certain subject matter are in pari materia and
should be conjunctively considered and construed to determine the
intent of the Legislature, so that different provisions are consistent, har-
monious, and sensible.
7. Statutes. It is not within the province of the courts to read a meaning
into a statute that is not there or to read anything direct and plain out of
a statute.
8. Motor Carriers: Insurance. Under the plain language of Neb. Rev.
Stat. § 75-363 (Cum. Supp. 2014) and part 387 of title 49 of the Code
of Federal Regulations adopted therein, compliance with the minimum
financial responsibility requirements is the responsibility of the motor
carrier, not the insurer.
9. ____: ____. Neither Neb. Rev. Stat. § 75-363 (Cum. Supp. 2014) nor
part 387 of title 49 of the Code of Federal Regulations adopted therein
require an insurer to issue a policy with liability limits that satisfy a
motor carrier’s minimum level of financial responsibility.
Appeal from the District Court for Box Butte County:
Derek C. Weimer, Judge. Affirmed.
Maren Lynn Chaloupka, of Chaloupka, Holyoke, Snyder,
Chaloupka & Longoria, P.C., L.L.O., for appellant.
Raymond E. Walden and Michael T. Gibbons, of Woodke &
Gibbons, P.C., L.L.O., for appellee Shelter Insurance Company.
Amy L. Patras, of Crites, Shaffer, Connealy, Watson, Patras
& Watson, P.C., L.L.O., for appellees Santos Gomez, Jr., et al.
Steven W. Olsen and Paul W. Snyder, of Simmons Olsen
Law Firm, P.C., for appellee Kate Benjamin.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
Through the enactment of Neb. Rev. Stat. § 75-363 (Cum.
Supp. 2014), the Nebraska Legislature adopted several parts of
the Federal Motor Carrier Safety Regulations and made those
regulations applicable to certain intrastate motor carriers not
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SHELTER INS. CO. v. GOMEZ
Cite as 306 Neb. 607
otherwise subject to the federal regulations. 1 One of the fed-
eral regulations adopted by statute sets out minimum levels of
financial responsibility for motor carriers. 2 The central ques-
tion in this appeal is whether that federal regulation imposes a
duty on insurers to issue policies that satisfy a motor carrier’s
minimum level of financial responsibility. Because we con-
clude that compliance with the financial responsibility require-
ments under § 75-363 and the pertinent federal regulations is
the duty of the motor carrier and not its insurer, we affirm the
judgment of the district court.
I. UNDISPUTED FACTS
1. Collision
On May 27, 2015, Jason Kraeger was riding his bicycle on
a highway in Morrill County, Nebraska, when he was struck by
a 1988 Peterbilt semi-tractor being driven by Santos Gomez,
Jr. (Gomez Jr.). The negligence of Gomez Jr. is not in dispute.
Kraeger died from injuries sustained in the collision.
The Peterbilt involved in the collision was owned by the
driver’s parents, Santos Gomez, Sr., and Julia Gomez, who
operate Santos Gomez Trucking, an unincorporated commer-
cial trucking business operating exclusively within Nebraska
(collectively Gomez Trucking).
2. Shelter’s Policy
At the time of the collision, Gomez Trucking insured the
Peterbilt under a commercial automobile liability policy
with Shelter Insurance Company (Shelter). When applying
for insurance with Shelter, Gomez Trucking represented that
it had no federal motor carrier number and that its trucks
made no deliveries outside Nebraska. It requested a bodily
injury liability limit of $1 million. Gomez Trucking used local
Shelter agent Kate Benjamin to procure the Shelter policy
1
See Cruz v. Lopez, 301 Neb. 531, 919 N.W.2d 479 (2018).
2
See § 75-363(3)(d) (adopting “Part 387” of title 49 of the Code of Federal
Regulations).
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SHELTER INS. CO. v. GOMEZ
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and to request periodic adjustments to the liability limits of
such policy.
Gomez Trucking had a business practice of adjusting the
liability limits on the Shelter policy either up or down, depend-
ing on how its trucks were to be used. The apparent goal of
this practice was to minimize the premium cost over time by
reducing the liability limit when a truck was not in use. The
evidence shows that after initially purchasing liability lim-
its of $1 million, Gomez Trucking requested, and Benjamin
made, the following adjustments to the liability limits on the
Shelter policy:
•  On November 24, 2014, the liability limit was reduced from
$1 million to $100,000;
•  On December 4, 2014, the liability limit was increased to
$1 million;
•  On March 15, 2015, the policy was renewed and the liability
limit was reduced to $500,000;
•  On March 19, 2015, the liability limit was reduced again to
$100,000;
•  On April 15, 2015, the liability limit was increased to
$1 million;
•  On April 20, 2015, the liability limit was reduced to $100,000.
On the day of the fatal collision, May 27, 2015, Julia vis-
ited Benjamin’s office twice, both times seeking to adjust the
liability limits. The first time, Julia asked to increase the lia-
bility limit from $100,000 to $500,000, explaining that Gomez
Jr. was going to be using the Peterbilt. Benjamin entered data
on the requested policy limit change into the computer sys-
tem, and Julia left Benjamin’s office. About 15 minutes after
Julia left Benjamin’s office, she returned, noticeably upset.
She told Benjamin that Gomez Jr. had collided with a bicy-
clist while driving the Peterbilt, and she asked whether the
liability limit could be increased again. Benjamin told Julia
she could do so, but the higher limit would not “backdate” to
an accident that already had occurred. The precise time of the
collision is not apparent from our record, but the appellant’s
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SHELTER INS. CO. v. GOMEZ
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brief states the collision occurred just before Julia’s first visit
to Benjamin’s office.
As discussed in the next section, under § 75-363(3)(d) and
the federal regulation adopted therein, intrastate motor carri-
ers are required to obtain and have in effect certain minimum
levels of financial responsibility. Because those regulatory
requirements are central to the dispute which gave rise to this
declaratory judgment action, we set them out now and discuss
them in more detail later in our analysis.
3. § 75-363
At the time of the collision, § 75-363 provided, in perti-
nent part:
(1) The parts, subparts, and sections of Title 49 of the
Code of Federal Regulations listed below, as modified in
this section . . . in existence and effective as of January 1,
2014, are adopted as Nebraska law.
(2) Except as otherwise provided in this section, the
regulations shall be applicable to:
(a) All motor carriers, drivers, and vehicles to which
the federal regulations apply; and
(b) All motor carriers transporting persons or property
in intrastate commerce[.]
Subsection (3) of § 75-363 contained a list of the federal
regulations adopted as Nebraska law, and it included 49 C.F.R.
§ 387 (2014) (Part 387), which sets out the financial responsi-
bility requirements for motor carriers. 3
Part 387 is titled “Minimum Levels of Financial Respon­
sibility for Motor Carriers,” and it is composed of several sub-
parts. Only subpart A, which applies to for-hire motor carriers
transporting property, 4 is pertinent to this case. The purpose of
that subpart is to prescribe
the minimum levels of financial responsibility required
to be maintained by motor carriers of property [and] to
3
§ 75-363(1) and (2) (Cum. Supp. 2014).
4
49 C.F.R. § 387.3(a).
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SHELTER INS. CO. v. GOMEZ
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create additional incentives to motor carriers to main-
tain and operate their vehicles in a safe manner and to
assure that motor carriers maintain an appropriate level
of financial responsibility for motor vehicles operated on
public highways. 5
Under this federal regulation, “No motor carrier shall oper-
ate a motor vehicle until the motor carrier has obtained and
has in effect the minimum levels of financial responsibility as
set forth in § 387.9 of this subpart.” 6 That section identifies
different minimum levels of financial responsibility depend-
ing on the nature of the property being transported; the
type of vehicle being used; and whether it is being operated
in interstate, foreign, or intrastate commerce. 7 The lowest
level of financial responsibility is $750,000, and it applies
to for-hire vehicles operated in interstate or foreign com-
merce with a gross vehicle weight rating of 10,001 pounds or
more transporting nonhazardous property. 8 Higher levels of
financial responsibility are required for vehicles transporting
certain hazardous materials in interstate, intrastate, and for-
eign commerce. 9
As such, in Nebraska, § 75-363(2) makes the federal regu-
lations just described applicable not only to the motor carriers,
drivers, and vehicles to which the federal regulations already
apply, 10 but also to “[a]ll motor carriers transporting persons
or property in intrastate commerce,” 11 with certain excep-
tions. 12 The record suggests that before the fatal collision,
5
49 C.F.R. § 387.1.
6
49 C.F.R. § 387.7(a).
7
See 49 C.F.R. § 387.9(1) through (4).
8
49 C.F.R. § 387.9(1).
9
See 49 C.F.R. § 387.9(2) through (4).
10
§ 75-363(2)(a).
11
§ 75-363(2)(b).
12
See, e.g., § 75-363(5) (excluding certain farm trucks operated only in
intrastate commerce).
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SHELTER INS. CO. v. GOMEZ
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the parties were generally unaware of the minimum financial
responsibility requirements imposed by § 75-363(3)(d) and
Part 387. 13
4. Wrongful Death Action
In 2015, the duly appointed personal representative for
Kraeger’s estate filed a wrongful death and survival action
against “Gomez Jr. and Santos Gomez, Sr., d/b/a Santos Gomez
Trucking.” Shelter offered to settle the suit on behalf of the
defendants for $100,000—the liability limit Shelter asserted
was in effect at the time of the collision. The personal rep-
resentative rejected Shelter’s offer, but eventually reached a
settlement directly with the defendants. Under that settlement,
the defendants confessed judgment in the amount of $750,000
and assigned to the personal representative any claim they may
have against Shelter and/or Benjamin under the policy issued
to Gomez Trucking.
5. Declaratory Judgment Action
In 2016, Shelter filed a declaratory judgment action in the
district court for Box Butte County. It sought a declaration
of the applicable liability limit under the policy issued to
Gomez Trucking for damages arising from the fatal bicycle
collision of May 27, 2015. Named as defendants and interested
parties in the declaratory judgment action were Benjamin,
Gomez Trucking, Gomez Jr., and the personal representative of
Kraeger’s estate.
As relevant to the issues on appeal, Shelter’s operative
amended complaint alleged that on the date of the fatal col-
lision, Shelter insured Gomez Trucking under a commercial
automobile liability policy with liability limits of $100,000,
13
But see Neb. Rev. Stat. § 75-369 (Reissue 2018) (requiring Department of
Motor Vehicles and county treasurers to distribute declaration regarding
federal regulations to each applicant who registers commercial motor
vehicle subject to § 75-363; applicants required to acknowledge they have
read declaration and are aware Federal Motor Carrier Safety Regulations
have been enacted into state law).
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SHELTER INS. CO. v. GOMEZ
Cite as 306 Neb. 607
and further alleged that the Peterbilt was a covered vehicle on
that policy. Shelter also alleged that the personal representa-
tive for Kraeger’s estate had demanded damages in excess of
Shelter’s $100,000 policy limits and was asserting Shelter was
“obligated to afford coverage in excess of that stated in the
policy due to certain federal regulations.”
Benjamin answered the amended complaint and gener-
ally joined in Shelter’s request for a declaratory judgment.
Summarized, Benjamin’s answer alleged the Shelter policy was
originally issued with liability limits of $1 million and that all
subsequent adjustments to the liability limits were made at the
insured’s request.
The personal representative answered Shelter’s amended
complaint both in her capacity as the personal representative
of Kraeger’s estate and as the assignee of Gomez Trucking
and Gomez Jr. The personal representative’s answer generally
denied Shelter’s allegation that the liability limits in place at the
time of the collision were $100,000, and she asserted that under
§ 75-363 and the federal regulations adopted therein, Benjamin
was required to sell, and Shelter was required to issue, a policy
with liability limits of at least $750,000. However, no request
was made to reform the policy. Instead, the personal represent­
ative took the position that the parties’ real dispute was not
based in contract at all, but in professional negligence.
In that regard, the personal representative filed a counter-
claim against Shelter and a cross-claim against Benjamin, seek-
ing to recover $750,000 in damages for negligence and demand-
ing a jury trial. The cross-claim alleged Benjamin was negligent
in failing to advise Gomez Trucking that § 75-363 required
intrastate motor carriers to have a minimum of $750,000 in
liability coverage. The counterclaim alleged Benjamin’s neg-
ligence should be imputed to Shelter under an agency theory.
Shelter and Benjamin denied any negligence and raised several
affirmative defenses, including that Gomez Trucking was con-
tributorily negligent in failing to obtain the minimum levels of
financial responsibility required by § 75-363.
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SHELTER INS. CO. v. GOMEZ
Cite as 306 Neb. 607
6. Summary Judgment
All parties moved for summary judgment. In an order entered
September 20, 2018, the district court disposed of all issues in
the case by granting the summary judgment motions filed by
Shelter and Benjamin, and overruling those filed by all other
parties. The parties’ arguments, and the court’s reasoning, are
summarized below.
(a) Declaratory Judgment
In seeking and opposing summary judgment on the declara-
tory judgment, the parties did not dispute that the Shelter
policy issued to Gomez Trucking had a liability limit of
$100,000 at the time of the fatal collision. But they did dispute
whether such a limit was enforceable, given the provisions of
§ 75-363(3)(d).
The personal representative argued the $100,000 liability
limit was void and unenforceable as a matter of law because
it failed to comply with the minimum financial responsibil-
ity requirements imposed by § 76-363 and Part 387. Shelter
and Benjamin argued these provisions had no impact on the
enforceability of the $100,000 liability limit, because § 75-363
and Part 387 make it the responsibility of the motor carrier, not
the insurer, to obtain and have in effect the required minimum
levels of financial responsibility.
After analyzing the provisions of § 75-363 and Part 387, the
district court agreed with Shelter and Benjamin, reasoning:
[T]here is no reference to be found within the operative
statute and regulations that specifically create a duty on
the part of an insurer to ascertain or confirm the existence
of sufficient insurance policies, sureties or resources to
satisfy the minimum required amount of insurance under
[49 C.F.R.] § 387.9. All of the relevant provisions relate
to requirements of or for the “motor carrier”. The motor
carrier is to obtain and have in effect the minimum lev-
els of financial responsibility. The motor carrier is not to
operate a motor vehicle until it has so done. Neb. Rev.
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SHELTER INS. CO. v. GOMEZ
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Stat. § 75-363 puts the onus on the motor carrier to com-
ply with the applicable C.F.R. provisions.
The district court also found it significant that under the fed-
eral regulations, “financial responsibility” was not limited to
insurance policies, but included surety bonds and approved
self-insurance. 14
The district court ultimately concluded there were no genu-
ine issues of material fact related to Shelter’s amended com-
plaint for declaratory judgment. It found that § 75-363 imposed
no duty on Shelter or Benjamin to “only sell or market an
insurance policy [to Gomez Trucking for] $750,000 or more,”
and it ultimately concluded, as a matter of law, that the
$100,000 liability limit in place at the time of the accident was
enforceable.
(b) Cross-Claim and Counterclaim
Regarding the cross-claim and counterclaim for professional
negligence, the district court also found Shelter and Benjamin
were entitled to judgment as a matter of law. Relying on
Hansmeier v. Hansmeier, 15 the court found Benjamin had
no legal duty to advise Gomez Trucking about the finan-
cial responsibility requirements of § 75-363 and no duty
to sell Gomez Trucking a liability policy that satisfied the
motor carrier’s minimum level of financial responsibility under
that statute. 16
The personal representative timely appealed from the sum-
mary judgment order, and Gomez Trucking and Gomez Jr.
cross-appealed. We moved the case to our docket on our own
motion.
14
See, e.g., 49 C.F.R. §§ 387.5 and 387.7(b) and (d).
15
Hansmeier v. Hansmeier, 25 Neb. Ct. App. 742, 752, 912 N.W.2d 268, 275-
76 (2018) (holding “an insurance agent has no duty to anticipate what
coverage an insured should have. . . . Rather, when an insured asks an
insurance agent to procure insurance, the insured has a duty to advise the
insurance agent as to the desired insurance”).
16
See, also, Dahlke v. John F. Zimmer Ins. Agency, 245 Neb. 800, 515
N.W.2d 767 (1994).
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SHELTER INS. CO. v. GOMEZ
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II. ASSIGNMENTS OF ERROR
The personal representative assigns a single error: The dis-
trict court erred in granting declaratory judgment in favor of
Shelter and Benjamin and declaring the liability limit of the
Shelter policy was $100,000 “irrespective of the statutorily-
required minimum” under § 75-673. Similarly, the cross-appeal
of Gomez Trucking and Gomez Jr. assigns it was error to grant
summary judgment in favor of Shelter because its policy did
not provide “lawful coverage.”
III. STANDARD OF REVIEW
[1] 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 those
facts and that the moving party is entitled to judgment as a
matter of law. 17
[2] 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. 18
[3] Statutory interpretation presents a question of law for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below. 19
IV. ANALYSIS
As a threshold matter, we note that neither the appellant nor
the cross-appellants assigned error to the trial court’s judg-
ment in favor of Benjamin and Shelter on the professional
17
JB & Assocs. v. Nebraska Cancer Coalition, 303 Neb. 855, 932 N.W.2d 71
(2019).
18
Id.
19
Id.; Cruz, supra note 1.
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negligence cross-claim and counterclaim. Instead, their assign-
ments of error focus exclusively on the district court’s declara-
tory judgment ruling which interpreted § 75-363(3)(d) and the
federal regulations incorporated therein. We limit our analysis
accordingly. 20
1. Minimum Levels of Financial
Responsibility Under
§ 75-363 and Part 387
[4] As stated earlier, § 75-363 adopts, as Nebraska law,
several parts of the Federal Motor Carrier Safety Regulations
and makes them applicable to certain intrastate motor carriers
not otherwise subject to federal regulation. 21 Since 2006, one
of the federal regulations included in § 75-363 has been Part
387, 22 which governs minimum levels of financial responsibil-
ity for motor carriers. This case presents our first opportunity
to consider the financial responsibility requirements imposed
by § 75-363 and Part 387, and the parties urge significantly
different interpretations.
The appellant and the cross-appellants argue that § 75-363
and Part 387 require insurers, when issuing policies to intra-
state motor carriers, to provide liability limits that will satisfy
the motor carrier’s minimum financial responsibility under 49
C.F.R. § 387.9. They contend that the Peterbilt was required to
have a minimum level of financial responsibility of $750,000
and argue that any policy providing lower limits was “illegal” 23
and unenforceable.
20
State v. Ferrin, 305 Neb. 762, 770-71, 942 N.W.2d 404, 411-12 (2020)
(“[t]o be considered by an appellate court, an alleged error must be both
specifically assigned and specifically argued in the brief of the party
asserting the error”).
21
See Cruz, supra note 1.
22
See 2006 Neb. Laws, L.B. 1007, § 13, codified as § 75-363(3)(d)
(adopting 49 C.F.R. § 387).
23
See, brief for appellant at 16, 18, 19, and 21; brief for appellees Gomez
Trucking and Gomez Jr. on cross-appeal at 41.
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Shelter and Benjamin generally argue that § 75-363 and
Part 387 put the burden on the motor carrier to obtain and
maintain the required minimum levels of financial respon­
sibility and do not require an insurer to issue a policy with
liability limits that satisfy the motor carrier’s financial respon-
sibility. They contend that by enacting § 75-363 and Part 387,
the Legislature sought to regulate motor carriers, not insur-
ers, and they point out that Part 387 permits motor carriers to
meet their minimum level of financial responsibility through
more than one policy of insurance, and using methods other
than insurance. 24
[5-7] In considering the competing interpretations advanced
by the parties, we are guided by settled principles. Statutory
language is to be given its plain and ordinary meaning, and
an appellate court will not resort to interpretation to ascertain
the meaning of statutory words which are plain, direct, and
unambiguous. 25 Components of a series or collection of stat-
utes pertaining to a certain subject matter are in pari materia
and should be conjunctively considered and construed to deter-
mine the intent of the Legislature, so that different provisions
are consistent, harmonious, and sensible. 26 It is not within the
province of the courts to read a meaning into a statute that is
not there or to read anything direct and plain out of a statute. 27
We apply these rules of statutory construction both to § 75-383
and to Part 387, because that federal regulation has been
adopted as Nebraska law.
Before beginning our analysis, we pause to note that our
appellate record does not include evidence of the gross weight
rating of the Peterbilt or the nature of the load, if any, being
transported at the time of the accident. Consequently, while the
parties appear to generally agree the Peterbilt was the type of
24
See 49 C.F.R. §§ 387.5 and 387.7(b) and (d).
25
In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653 (2019).
26
Id.
27
State v. Montoya, 304 Neb. 96, 933 N.W.2d 558 (2019).
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vehicle described in 49 C.F.R. § 387.9(1) and thus was subject
to minimum financial responsibility of $750,000, we express
no opinion in that regard. Instead, as we explain further below,
we conclude that even if the Peterbilt was the type of vehicle
described in 49 C.F.R. § 387.9(1), the district court was cor-
rect to conclude that Part 387 imposes the minimum financial
responsibility requirements only on the motor carrier, not on
the insurer.
2. Compliance With § 75-363 and
Part 387 Is Responsibility
of Motor Carrier
The plain language of both § 75-363 and Part 387 focuses
exclusively on regulating motor carriers. Section 75-363 makes
the selected federal regulations applicable to “[a]ll motor car-
riers transporting . . . property in intrastate commerce” and to
the vehicles and drivers of such motor carriers. 28
Similarly, Part 387 applies only to “for-hire motor carriers,” 29
and the stated purpose of the regulation is to create additional
incentives for “motor carriers to maintain and operate their
vehicles in a safe manner and to assure that motor carriers
maintain an appropriate level of financial responsibility for
motor vehicles operated on public highways.” 30 The financial
responsibility requirements under Part 387 are directed to the
motor carrier, requiring that “[n]o motor carrier shall operate
a motor vehicle until the motor carrier has obtained and has
in effect the minimum levels of financial responsibility as set
forth in [49 C.F.R. § 387.9].” 31
[8] Given the plain language of § 75-363 and Part 387, we
conclude that compliance with the minimum financial respon-
sibility requirements is the responsibility of the motor carrier,
not the insurer.
28
§ 75-363(2)(b) (emphasis supplied).
29
49 C.F.R. § 387.3(a) (emphasis supplied).
30
49 C.F.R. § 387.1 (emphasis supplied).
31
49 C.F.R. § 387.7(a) (emphasis supplied).
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3. Motor Carriers Can Satisfy Minimum
Financial Responsibility Requirements
Through Combination of Resources
Importantly, Part 387, and the federal statute on which that
regulation is based, 32 allows a motor carrier to meet its mini-
mum financial responsibility through more than just a single
insurance policy. The federal statute provides that a “motor
carrier may obtain the required amount of financial respon-
sibility from more than one source provided the cumulative
amount is equal to the minimum requirements.” 33 Further, that
federal statute generally authorizes financial responsibility to
be established using “one or a combination of the following,”
including insurance, a guarantee, a surety bond, or qualifi-
cation as a self-insurer. 34 Part 387 similarly permits proof
of the required level of financial responsibility to be shown
through “[p]olicies of [i]nsurance,” surety bonds, or authorized
self-insurance. 35
The interpretation of Part 387 proposed by the appellant and
the cross-appellants does not accommodate, and would require
that we read out of the federal regulation altogether, those
provisions allowing motor carriers to combine more than one
policy, and use more than one method, to meet the minimum
financial responsibility requirement under Part 387.
4. Part 387 Does Not Require Insurers to Issue
Policy With Liability Limits That Satisfy
Motor Carrier’s Minimum Level of
Financial Responsibility
The appellant and the cross-appellants repeatedly character-
ize the $100,000 liability limit in Shelter’s policy as illegal
or unlawful under Part 387. The appellant relies on Steffen v.
32
See 49 U.S.C. § 31139 (2012).
33
49 U.S.C. § 31139(f)(3).
34
49 U.S.C. § 31139(f)(2).
35
49 C.F.R. § 387.7(d).
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Progressive Northern Ins. Co. 36 to argue that Shelter should
not be permitted to issue a policy containing less than the
statutorily required coverage and to argue that the minimum
financial responsibility requirements of Part 387 should be
read into the Shelter policy. We find the appellant’s position in
this regard contrary to the plain language of Part 387, and we
find the appellant’s reliance on Steffen to be misplaced.
It is true there are some Nebraska statutes which mandate
the type and amount of coverage insurers must provide when
issuing an automobile liability policy. For instance, Neb.
Rev. Stat. § 44-6408 (Reissue 2010) provides, “No policy
insuring against liability imposed by law for bodily injury,
sickness, disease, or death suffered by a natural person aris-
ing out of the ownership, operation, maintenance, or use of
a motor vehicle . . . shall be delivered, issued for delivery,
or renewed” unless it provides uninsured and underinsured
motorist coverage with limits of $25,000 per person and
$50,000 per accident. Similarly, other statutes within the
Uninsured and Underinsured Motorist Insurance Coverage
Act 37 (UUMICA) mandate definitions of an uninsured motor
vehicle 38 and an underinsured motor vehicle, 39 list avail-
able exclusions, 40 and address the priority of payment when
multiple policies apply. 41 As such, the plain language of the
UUMICA seeks to regulate the issuance of automobile insur-
ance policies in Nebraska and places the burden of complying
with certain statutory provisions directly on the insurer. For
36
Steffen v. Progressive Northern Ins. Co., 276 Neb. 378, 754 N.W.2d 730
(2008) (insurers may not issue policies that carry terms and conditions less
favorable to insured than those provided in Uninsured and Underinsured
Motorist Insurance Coverage Act).
37
Neb. Rev. Stat. §§ 44-6401 to 44-6414 (Reissue 2010).
38
See § 44-6405.
39
See § 44-6406.
40
See §§ 44-6407 and 44-6413.
41
See § 44-6411.
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Cite as 306 Neb. 607
the sake of completeness, we note the Shelter policy included
uninsured and underinsured motorist coverage in limits higher
than required by § 44-6408.
As this court made clear in Steffen, insurers may not issue
policies that carry terms and conditions less favorable to the
insured than those provided in the UUMICA. 42 When the terms
of such a policy are less favorable than the UUMICA requires,
the UUMICA, and not the policy, will be controlling. 43
But neither Steffen nor its reasoning apply here. Unlike the
compulsory provisions of the UUMICA, § 75-363 and Part
387 do not regulate the terms and conditions of insurance poli-
cies; instead, their purpose is to regulate motor carriers. The
plain language of § 75-363 applies only to motor carriers as
defined in that statute, and the stated purpose of Part 387 is
to “assure that motor carriers maintain an appropriate level of
financial responsibility for motor vehicles operated on public
highways.” 44 In construing a statute, a court must determine
and give effect to the purpose and intent of the Legislature as
ascertained from the entire language of the statute considered
in its plain, ordinary, and popular sense. 45
[9] The district court correctly concluded that neither
§ 75-363 nor Part 387 require an insurer to issue a policy with
liability limits that satisfy a motor carrier’s minimum level of
financial responsibility.
5. Declaratory Judgment
Correctly Decided
For the reasons set out above, we conclude the district
court was correct in finding, as a matter of law, that Shelter
was not required by the provisions of § 75-363 and Part 387
to issue Gomez Trucking a policy with liability limits of at
42
Steffen, supra note 36.
43
See id.
44
49 C.F.R. § 387.1.
45
Steffen, supra note 36.
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SHELTER INS. CO. v. GOMEZ
Cite as 306 Neb. 607
least $750,000 and that the $100,000 liability limit in place
at the time of the fatal collision was neither inconsistent with
nor repugnant to Nebraska law. Our conclusion in this regard
is compelled by the plain language of § 75-363 and Part 387,
both of which place the burden of compliance on the motor
carrier, and our reasoning is consistent with that of other courts
to have considered similar questions. 46
V. CONCLUSION
Finding no merit to the assigned errors, we affirm the dis-
trict court’s judgment.
Affirmed.
46
See, e.g., Illinois Central R. Co. v. Dupont, 326 F.3d 665 (5th Cir. 2003)
(financial responsibility under Part 387 is directed at motor carrier and
does not impose duty on insurer to make sure motor carrier complies
with requirements); North Carolina Farm Bureau Mut. Ins. Co., Inc.
v. Armwood, 361 N.C. 576, 653 S.E.2d 392 (2007) (reversing decision
to reform commercial automobile insurance policy to reflect minimum
liability limit of $750,000, reasoning federal motor carrier regulations
place duty to provide minimum level of financial responsibility on motor
carrier, not insurer); Howard v. Quality Xpress, Inc., 128 N.M. 79, 82, 989
P.2d 896, 899 (N.M. App. 1999) (“regulatory scheme [in Part 387] appears
to place the burden of compliance with the compulsory insurance coverage
requirements upon the motor carrier, not the insurer”).