Saif v. Atlantic States Ins. Co. , 29 Neb. Ct. App. 442 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
SAIF v. ATLANTIC STATES INS. CO.
Cite as 29 Neb. Ct. App. 442
Michael F. Saif and Mary Sue Saif, appellants,
v. Atlantic States Insurance Company,
successor by merger with Le Mars
Insurance Company, appellee.
___ N.W.2d ___
Filed February 2, 2021. No. A-19-366.
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. Summary Judgment. Summary judgment proceedings do not resolve
factual issues, but instead determine whether there is a material issue of
fact in dispute.
4. ____. If a genuine issue of fact exists, summary judgment may not prop-
erly be entered.
5. Summary Judgment: Proof. The party moving for summary judgment
has the burden to show that no genuine issue of material fact exists and
must produce sufficient evidence to demonstrate that the moving party
is entitled to judgment as a matter of law.
6. Summary Judgment: Evidence: Proof. After the movant for summary
judgment makes a prima facie case by producing enough evidence to
demonstrate that the movant is entitled to judgment if the evidence were
uncontroverted at trial, the burden to produce evidence showing the
existence of a material issue of fact that prevents judgment as a matter
of law shifts to the party opposing the motion.
7. Summary Judgment. In the summary judgment context, a fact is mate-
rial only if it would affect the outcome of the case.
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SAIF v. ATLANTIC STATES INS. CO.
Cite as 29 Neb. Ct. App. 442
8. Insurance: Breach of Contract. An insurer cannot assert a breach of
a policy’s cooperation provision as a policy defense in the absence of
showing prejudice or detriment to the insurer.
9. Summary Judgment: Insurance: Breach of Contract: Proof. To be
entitled to a summary judgment, the insurer must establish, as a matter
of law, that there was a breach of a cooperation provision and that said
breach prejudiced the insurer.
10. Insurance: Breach of Contract: Proof. It is the insurer’s burden to
prove the breach resulted in prejudice.
11. Insurance: Breach of Contract. Normally, the question of whether an
insured’s breach of a cooperation clause prejudiced an insurer is a ques-
tion of fact, and will seldom be decided as a matter of law.
12. Insurance: Contracts. The purpose of a cooperation provision in
a contract is to ensure that an insurer has an opportunity to protect
its interests.
13. Insurance: Notice: Proof: Time. Prejudice is established by examin-
ing whether the insurer received notice in time to meaningfully protect
its interests.
14. Insurance: Breach of Contract: Proof. Regardless of the nature
of the breach, there must be a showing of detriment or prejudice to
the insurer.
15. ____: ____: ____. In jurisdictions where a showing of prejudice to the
insurer is required, it is usually inevitable that the merits of the main
case must be developed to some extent when the defense of nonco­
operation is raised. That is frequently the only way the triers of fact can
intelligently appraise and determine whether actual prejudice did or did
not exist.
16. Claims: Insurance: Breach of Contract. When an insured seeks cov-
erage for his or her own loss, the issue is whether the insurer has been
able to complete a reasonable investigation with regard to whether the
insured’s claim is valid. If the insured’s refusal to cooperate prevents
the insurer from completing such a reasonable investigation, prejudice
should be found to exist.
17. Claims: Insurance. When an insured has provided a significant amount
of information that has been requested by an insurer, a fact finder could
conclude that to whatever extent additional information was not pro-
vided, the failure did not prevent (or should not have prevented) the
insurer from making a reasonable estimate of the insured’s claim.
18. Contracts: Waiver: Intent: Proof. A party may prove the waiver of a
contract by (1) a party’s express declarations manifesting the intent not
to claim an advantage or (2) a party’s neglecting and failing to act so as
to induce the belief that it intended to waive the right.
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Nebraska Court of Appeals Advance Sheets
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SAIF v. ATLANTIC STATES INS. CO.
Cite as 29 Neb. Ct. App. 442
19. Insurance: Contracts: Waiver. An unreasonable delay amounts to
denial of coverage and constitutes a waiver of any right to insist on
certain policy provisions.
20. Breach of Contract. The general rule is that a demand for performance
is not necessary unless required by the terms of the contract or its pecu-
liar nature.
21. Claims: Marriage. Loss of consortium claims are derivative and are
based upon an injured spouse’s right to recover for direct injuries.
Appeal from the District Court for Lancaster County:
Lori A. Maret, Judge. Reversed and remanded for further
proceedings.
Steven M. Lathrop and Joshua J. Yambor, of Hauptman,
O’Brien, Wolf & Lathrop, P.C., for appellants.
Michael L. Moran, of Engles, Ketcham, Olson & Keith,
P.C., for appellee.
Riedmann and Bishop, Judges.
Per Curiam.
INTRODUCTION
Michael F. Saif and Mary Sue Saif appeal from an order
of the Lancaster County District Court in which summary
judgment was granted in favor of Atlantic States Insurance
Company (Atlantic), successor by merger with Le Mars
Insurance Company, on Michael’s claim for underinsured
motorist (UIM) benefits and Mary Sue’s claim for UIM ben-
efits on a theory of loss of consortium. The district court
found that based on the undisputed material facts, (1) Michael
materially breached the cooperation provisions in the policy
and his refusal to cooperate prejudiced Atlantic’s ability to
investigate the claim without the expense and delay of litiga-
tion, (2) Atlantic did not waive the cooperation provisions, and
(3) Atlantic did not breach the policy by refusing to pay UIM
benefits to Mary Sue, and that therefore, Atlantic was entitled
to judgment as a matter of law. Because we conclude there
were material questions of fact, summary judgment was not
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SAIF v. ATLANTIC STATES INS. CO.
Cite as 29 Neb. Ct. App. 442
proper in this case. For the reasons that follow, we reverse, and
remand for further proceedings.
BACKGROUND
On October 1, 2014, Michael was cycling on the shoulder
of Highway 43 in Lancaster County, Nebraska, when he was
struck from behind by a pickup driven by Edward Vasa. At
the time, Vasa was acting within the scope of his employment
with Vasa Construction, which was insured by EMC Insurance
Companies (EMC) up to a liability amount of $1 million.
Michael suffered extensive injuries as a result of the collision,
incurring medical expenses in excess of $350,000 and the like-
lihood of ongoing treatment for the rest of his life.
At the time of the accident, the Saifs owned an insur-
ance policy with Atlantic, which included UIM coverage up
to $500,000. The policy included provisions outlining the
duties an insured has after an accident or loss, including
that the insured would cooperate with Atlantic’s investiga-
tion of the claim, submit to examination under oath at the
request of Atlantic, and authorize Atlantic to obtain medi-
cal and other relevant records. The policy also required full
compliance with its terms prior to bringing any legal action
against Atlantic.
On November 6, 2014, counsel for the Saifs wrote Atlantic,
advising it of a potential claim for medical payment and UIM
benefits. In response, Atlantic opened a UIM claim file and
assigned an adjuster for the file, who established an initial
reserve. On April 1, 2015, Michael’s counsel informed Atlantic
that Michael had reached a tentative settlement with EMC,
Vasa’s insurance provider, for the limits of Vasa’s coverage.
Along with the April letter was included a signed authorization
to disclose health information and a release of employment
information, both of which expired after 45 days. Atlantic did
not use this initial authorization, nor request an examination
under oath of Michael, because a formal demand for pay-
ment of UIM benefits under the policy had not been made.
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SAIF v. ATLANTIC STATES INS. CO.
Cite as 29 Neb. Ct. App. 442
On May 9, Atlantic wrote Michael’s counsel, advising that
Atlantic would not substitute the policy limits tendered by
EMC and authorized Michael to settle with EMC.
On February 16, 2016, Michael’s counsel contacted Atlantic,
reaffirming his intent to submit a UIM claim at a later date.
In September, Atlantic followed up with Michael’s counsel
regarding whether it should still expect a UIM claim. A month
later, Michael’s counsel replied that Michael continued to be
treated for ongoing medical issues, that he was in the process
of gathering additional medical records and reports, and that a
demand would be made when those records were received.
On January 31, 2017, counsel for Atlantic again reached out
to Michael’s counsel, questioning whether Michael intended
to make a UIM claim. Michael’s counsel responded by email
that same day: “I most definitely intend to proceed with a
claim. You should have a policy limit demand within the week.
We have recently gathered updated medical.” The next day,
counsel for Atlantic contacted Michael’s counsel identifying
the documents Atlantic was requesting along with Michael’s
UIM demand: “We need all medical records, bills and reports
relating to this matter, including medical evaluations and docu-
mentation for lost wages and loss of earning capacity.” Neither
a signed medical authorization nor a signed release of informa-
tion form was requested by Atlantic at that time.
On February 24, 2017, Michael’s counsel made a formal
demand upon Atlantic for the UIM limits under the Saifs’
policy. The demand included, inter alia, medical records
related to treatment between the date of Michael’s accident
and September 2, 2016; tax returns from Michael’s business
for the years 2012 to 2015; a profit-and-loss statement of the
business for 2016; an “[o]ffer of employment from Alliance
Partnership” to Michael dated March 8, 2016; and a detailed
description of the injuries Michael sustained from the accident.
The demand did not refer to any claim for UIM benefits by
Mary Sue. On March 2, 2017, counsel for Atlantic confirmed
receipt of Michael’s demand and requested certain additional
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SAIF v. ATLANTIC STATES INS. CO.
Cite as 29 Neb. Ct. App. 442
medical records, including copies of previously provided
records. Those records were provided on March 7.
On March 16, 2017, Michael’s counsel attempted to con-
tact Atlantic’s counsel to inquire into the status of Atlantic’s
response to Michael’s demand. That same date, attorney
Michael Moran responded to Michael’s counsel, acknowledg-
ing receipt of the demand, and informed him that the matter
had been transferred to him as outside counsel. After a month,
on April 17, a paralegal with Moran’s office sent a letter to
Michael’s counsel requesting a second signed authorization
for health information in order to allow Atlantic to “obtain
all medical records for an evaluation of [Michael’s] damage
claim.” No signed authorization was provided in response to
this request.
On April 26, 2017, Michael’s counsel left a voice mail mes-
sage with Moran, advising him that since no response had
been received to Michael’s counsel’s demand, he would be
filing suit. On May 2, Moran followed up Atlantic’s request
for a second authorization for health information and sought
to schedule an examination under oath (EUO) at some point
in the future after Atlantic had received the additional medical
records sought through the second authorization. The request
for the EUO did not specify a date, time, or place for the
examination. A representative for Atlantic later testified that
it sought to examine Michael due to the size of the claim and
his subjective claims of how the accident affected his quality
of life.
On May 10, 2017, without having signed the second autho-
rization for health information, or responding to the request for
an EUO, the Saifs filed suit against Atlantic. The complaint
alleged two causes of action: (1) Atlantic erroneously refused
to pay Michael UIM benefits in breach of the terms of the
Saifs’ policy with Atlantic, and (2) Mary Sue suffered a loss of
Michael’s society, comfort, support, and companionship, and
as his spouse, she too was entitled to UIM benefits erroneously
refused by Atlantic.
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SAIF v. ATLANTIC STATES INS. CO.
Cite as 29 Neb. Ct. App. 442
On June 2, 2017, Atlantic filed an answer to the Saifs’
complaint, as well as a motion for summary judgment, even
though no formal discovery had taken place to date. The
Saifs subsequently filed a motion for continuance on Atlantic’s
motion for summary judgment, alleging that Atlantic was
required to show prejudice from the Saifs’ alleged failure to
cooperate and that further discovery was required before the
Saifs could “offer a meaningful response to [Atlantic’s] Motion
for Summary Judgment.” That motion was sustained, and fur-
ther discovery was ordered by the district court.
On December 20, 2018, Atlantic filed an amended motion
for summary judgment, alleging that “no genuine issue of
material fact exists as to [the Saifs’] material breach of the
policy of insurance and that [Atlantic] was prejudiced at the
time of the breach” insomuch as it was denied the opportunity
to investigate and adjust the claims of the Saifs and was sub-
jected to unnecessary legal expenses.
A hearing was held on Atlantic’s amended motion for
summary judgment on February 11, 2019. After receiving
evidence and hearing the arguments of both parties, the dis-
trict court sustained the motion, granting summary judgment
for Atlantic on both causes of action. In its order, the dis-
trict court made explicit findings that (1) Michael breached
the cooperation provisions of the policy and his refusal to
cooper­ate prejudiced Atlantic’s ability to investigate the claim
without the expense and delay of litigation, (2) Atlantic did
not waive the cooperation provisions, and (3) Atlantic did not
refuse to pay UIM benefits to Mary Sue under the policy. This
appeal followed.
ASSIGNMENTS OF ERROR
The Saifs assign, restated, that the district court erred in
concluding there were no genuine issues of material fact and
in granting Atlantic’s motion for summary judgment based on
its findings that (1) Michael failed to cooperate, which failure
was material and prejudicial to Atlantic; (2) Atlantic did not
forfeit its right to assert its affirmative defenses as a result
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SAIF v. ATLANTIC STATES INS. CO.
Cite as 29 Neb. Ct. App. 442
of its unreasonable delay in investigating the Saifs’ claims and
failure to respond to the Saifs’ demand in a timely manner; and
(3) Mary Sue was required, and failed, to make a demand prior
to filing suit.
STANDARD OF REVIEW
[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 those
facts and that the moving party is entitled to judgment as a
matter of law. Midland Properties v. Wells Fargo, 296 Neb.
407, 893 N.W.2d 460 (2017). In reviewing a summary judg-
ment, 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. Id.
ANALYSIS
[3,4] Summary judgment proceedings do not resolve factual
issues, but instead determine whether there is a material issue
of fact in dispute. Peterson v. Homesite Indemnity Co., 287
Neb. 48, 840 N.W.2d 885 (2013). If a genuine issue of fact
exists, summary judgment may not properly be entered. Id.
[5-7] The party moving for summary judgment has the bur-
den to show that no genuine issue of material fact exists and
must produce sufficient evidence to demonstrate that the mov-
ing party is entitled to judgment as a matter of law. Id. After
the movant for summary judgment makes a prima facie case
by producing enough evidence to demonstrate that the movant
is entitled to judgment if the evidence were uncontroverted at
trial, the burden to produce evidence showing the existence of
a material issue of fact that prevents judgment as a matter of
law shifts to the party opposing the motion. Id. In the summary
judgment context, a fact is material only if it would affect the
outcome of the case. Id.
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Nebraska Court of Appeals Advance Sheets
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SAIF v. ATLANTIC STATES INS. CO.
Cite as 29 Neb. Ct. App. 442
1. Breach of Cooperation Clause
The Saifs first contend that summary judgment was improp-
erly granted because the district court erred in resolving fac-
tual issues concerning Michael’s alleged failure to cooperate
as a matter of law in favor of Atlantic.
The relevant portion of the Saifs’ UIM policy, “Part E - Duties
After an Accident or Loss,” provides:
We have no duty to provide coverage under this policy
unless there has been full compliance with the follow-
ing duties:
A. We must be notified promptly of how, when and
where the accident or loss happened. Notice should also
include the names and addresses of any injured persons
and of any witnesses.
B. A person seeking any coverage must:
1. Cooperate with us in the investigation, settlement or
defense of any claim or suit.
2. Promptly send us copies of any notices or legal
papers received in connection with the accident or loss.
3. Submit, as often as we reasonably require:
a. To physical exams by physicians we select. We will
pay for these exams.
b. To examination under oath and subscribe the same.
4. Authorize us to obtain:
a. Medical reports; and
b. Other pertinent records.
5. Submit a proof of loss when required by us.
The parties do not dispute that Atlantic requested a second
medical authorization on April 17, 2017. That request sought
Michael’s authorization for Atlantic to “obtain all medical
records for an evaluation of [Michael’s] damage claim.” The
Saifs do not dispute that Michael failed to execute the sec-
ond medical authorization by the time of the summary judg-
ment hearing. However, the record is absent of any evidence
that Michael refused to ever provide such an authorization.
There also does not appear to be any dispute that on May 2, a
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SAIF v. ATLANTIC STATES INS. CO.
Cite as 29 Neb. Ct. App. 442
week after the Saifs indicated their intent to file their lawsuit,
Atlantic requested that Michael sit for an EUO, although no
date, time, or place was scheduled. While the EUO had not
taken place by the time of the summary judgment hearing,
there is nothing in the record to indicate that Michael refused
to ever cooperate with that request. In sum, there is no evi-
dence that Michael outright refused to cooperate; thus, there
is no direct evidence of a breach of the cooperation provision
itself. Rather, it appears that the only evidence of a possible
breach is the undisputed fact that the Saifs filed their lawsuit
before such an authorization was executed and before an EUO
took place. This would arguably constitute a breach of the
policy terms which direct that no legal action may be brought
against the insurer until there has been full compliance with all
terms of the policy.
[8-10] But even if we assume without deciding that the
facts establish as a matter of law that Michael breached the
cooperation clause simply by filing a lawsuit before comply-
ing with the request for a medical authorization and submit-
ting to an EUO, this case cannot be decided as a matter of law
on the issue of whether Atlantic was prejudiced by Michael’s
failure to cooperate as to those matters prior to filing his
action. This is because an insurer cannot assert a breach of
a policy’s cooperation provision as a policy defense in the
absence of showing prejudice or detriment to the insurer. See
Mefferd v. Sieler & Co., 267 Neb. 532, 676 N.W.2d 22 (2004)
(to be entitled to summary judgment, insurer must establish,
as matter of law, that there was breach of cooperation provi-
sion and breach prejudiced insurer). It is the insurer’s burden
to prove the breach resulted in prejudice. See id. The Saifs
contend that there are material facts in dispute regarding the
issue of prejudice and that when construed in their favor, sum-
mary judgment should not have been granted against them.
We agree.
[11] Normally, the question of whether an insured’s breach
of a cooperation clause prejudiced an insurer is a question
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SAIF v. ATLANTIC STATES INS. CO.
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of fact, and will seldom be decided as a matter of law. See, e.g.,
Smith v. Nationwide Mut. Ins. Co., 175 Vt. 355, 830 A.2d 108
(2003); Staples v. Allstate Ins. Co., 176 Wash. 2d 404, 295 P.3d
201 (2013). But see Wright v. Farmers Mut. of Neb., 266 Neb.
802, 669 N.W.2d 462 (2003) (insurance companies prejudiced
as matter of law by insured’s failure to answer questions when
interviewed under oath; summary judgment granted in favor of
insurance companies). The dissent relies heavily on Wright v.
Farmers Mut. of Neb., supra, in support of its position that this
case is factually similar and, therefore, controlling. However,
we would note that in Wright, the insurers were relying on the
affirmative defense that the insured had been engaged in sub-
mitting a fraudulent claim. There is no such assertion in this
case, and therefore, the factual issues pertinent to establishing
prejudice are quite different.
Atlantic claims that Michael’s lack of cooperation preju-
diced its “ability to investigate [Michael’s] claim and deprived
[Atlantic] of a fair opportunity to make a decision on the
claim prior to being subjected to suit.” Brief for appellee at
8. Atlantic further argues that Michael’s breach “subjected
[Atlantic] to litigation defense costs.” Id. at 18.
[12,13] The purpose of a cooperation provision in a contract
is to ensure that an insurer has an opportunity to protect its
interests. See Rent-A-Roofer v. Farm Bureau Prop. & Cas. Ins.
Co., 291 Neb. 786, 869 N.W.2d 99 (2015). See, also, Mefferd
v. Sieler and Co., supra (prejudice is established by examining
whether insurer received notice in time to meaningfully protect
its interests).
[14] As previously noted, an insurer cannot assert a breach
of the cooperation clause as a policy defense in the absence
of a showing of prejudice or detriment to the insurer. See
Mefferd v. Sieler & Co., supra. See, also, MFA Mutual Ins. Co.
v. Sailors, 180 Neb. 201, 141 N.W.2d 846 (1966). Regardless
of the nature of the breach, there must be a showing of detri-
ment or prejudice to the insurer. See MFA Mutual Ins. Co. v.
Sailors, supra. See, also, Campbell v. Allstate Ins. Co., 60
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Cal. 2d 303, 384 P.2d 155, 32 Cal. Rptr. 827 (1963) (insured’s
failure to communicate with and give statement to insurer was
breach of cooperation provision, but presumption of prejudice
does not arise from violation of cooperation clause); White v.
Boulton, 259 Minn. 325, 107 N.W.2d 370 (1961) (insured’s
failure to attend trial may be breach of cooperation provision,
but insurer must show it was prejudiced by such absence);
Allen v. Cheatum, 351 Mich. 585, 88 N.W.2d 306 (1958)
(mere showing of nonattendance of insured at trial is not tan-
tamount to showing of prejudicial noncooperation as matter
of law).
[15] In jurisdictions where a showing of prejudice to the
insurer is required, it is usually inevitable that the merits of
the main case must be developed to some extent when the
defense of noncooperation is raised. That is frequently the
only way the triers of fact can intelligently appraise and deter-
mine whether actual prejudice did or did not exist. White v.
Boulton, supra.
[16] When an insured seeks coverage for his or her own
loss, the issue is whether the insurer has been able to complete
a reasonable investigation with regard to whether the insured’s
claim is valid. If the insured’s refusal to cooperate prevents the
insurer from completing such a reasonable investigation, preju-
dice should be found to exist. See 1 Allan D. Windt, Insurance
Claims & Disputes: Representation of Insurance Companies
and Insureds § 3:2 (6th ed. 2013).
There is little case law in Nebraska regarding a failure to
comply with a cooperation provision where an insured is seek-
ing recovery from the insured’s insurance company for his or
her own loss. In Wright v. Farmers Mut. of Neb., 266 Neb.
802, 669 N.W.2d 462 (2003), the district court sustained the
insurance companies’ motions for summary judgment because
the insured concealed information on her insurance applica-
tions about a previous fire and failed to answer questions
when interviewed under oath as required by the policies.
The Nebraska Supreme Court found that the record contained
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SAIF v. ATLANTIC STATES INS. CO.
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averments that the insured’s refusal to answer questions
and provide documents hindered the investigation of the claims
and prejudiced the insurance companies. The insured did
not present evidence to dispute the claims of prejudice. The
Supreme Court held that the failure to provide material infor-
mation under a clause requiring the insured to submit to an
examination under oath was a material breach of the contract.
The Supreme Court further determined that the insurance com-
panies provided evidence that the breach prejudiced their inves-
tigation of the claims and that the insured had not presented
evidence to dispute the claims of prejudice. It concluded that
the district court correctly granted the insurance companies’
motions for summary judgment. The Supreme Court further
stated that it did not need to address whether there was an issue
of material fact that the insured intentionally misrepresented or
concealed information when she obtained her policies.
As noted earlier, Wright v. Farmers Mut. of Neb., supra, is
distinguishable from the present matter because it involved
a possible fraudulent claim and an insured’s concealment of
information and refusal to answer material questions, which is
not the case here. Atlantic’s claim of prejudice is not based on
any alleged fraudulent concealment or behavior by Michael;
there is no question Michael suffered significant injuries from
the accident. Rather, Atlantic’s claim of prejudice rests entirely
on the notion that Michael filed a lawsuit before providing
a second medical authorization and before submitting to an
EUO. Atlantic alleges it was prejudiced in its ability to inves-
tigate the claim and determine if Michael had been fully com-
pensated by his earlier settlement with Vasa’s insurer. Atlantic
states that at the time the demand was received, there was a
5-month gap in Michael’s medical records, which prevented
Atlantic from reviewing objective medical information con-
cerning Michael’s current condition. It further alleges that it
had no medical records that predated the accident, so it had
no way of assessing the claim that Michael was “‘completely
changed’” by the accident. Brief for appellee at 17.
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SAIF v. ATLANTIC STATES INS. CO.
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Atlantic’s evidence of prejudice consisted of an affidavit
of a claims supervisor for Atlantic, which stated that Atlantic
was “unable to conduct a meaningful assessment of Michael’s
alleged damages due to his refusal to provide access to his
medical history and refusal to submit to an [EUO]” and that
Atlantic was “unable to conduct an adequate evaluation of
Michael’s claim before being subject to this litigation.” The
claims supervisor also stated in her deposition that Atlantic
was prejudiced because it was unable to complete its investiga-
tion. In addition, an assistant vice president in Atlantic’s claims
department was asked in his deposition how Atlantic had been
prejudiced. He stated that Atlantic was not allowed to complete
its investigation by meeting with Michael. He further stated
he believed that Atlantic was subject to unnecessary legal
expenses because of the defense costs it was now incurring and
that Atlantic was unnecessarily subject to potential legal fees
under Nebraska law.
However, there is substantial evidence that Atlantic had
multiple opportunities to obtain the information it sought either
immediately upon the demand letter being received or in the
years following its receipt of notice of the claim following the
accident. Atlantic first received notice of a potential claim by
Michael on November 6, 2014. Michael’s counsel reaffirmed
his intent to submit a claim in February and October 2016, as
well as January 2017. A formal demand was made on February
24. Despite knowledge of an impending UIM demand, Atlantic
did not utilize the first medical authorization from April 2015,
which would have allowed it to obtain medical records predat-
ing the accident to the extent it thought that may be necessary.
Nor did Atlantic at any point request a list of prior medical
providers or prior medical records, which it now claims was
necessary for its investigation. And while Atlantic claims that
these requests were not made because a “formal” demand
had not yet been made by the Saifs, it nevertheless did not
send its second medical authorization request until April 17,
2017, nearly 2 months after the formal demand was made and
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after Michael had already supplemented documents in response
to Atlantic’s request. Atlantic also did not request Michael to
sit for an EUO until May 2, over 2 months following the for-
mal demand and a week after the Saifs indicated their intent to
file this lawsuit. And notably, Atlantic did not specify an actual
date, time, or place for its requested EUO.
[17] Atlantic had knowledge of a potential claim from
the time it received notice in November 2014 and was kept
“in the loop” on an ongoing basis. It could have conducted
its own investigation at any time, but elected not to do so.
Instead, it waited 30 months from the date it was notified of
Michael’s UIM claim to request a medical authorization and
EUO. Unlike the circumstances in Wright v. Farmers Mut.
of Neb., 266 Neb. 802, 669 N.W.2d 462 (2003), Michael
has not refused to provide material information. To the con-
trary, Michael has remained in continual contact with Atlantic,
Michael has supplied substantial medical documentation to
Atlantic, and there is no evidence that he has intentionally
misrepresented or concealed information or that his claim is
fraudulent. When an insured has provided a significant amount
of information that has been requested by an insurer, a fact
finder could conclude that “to whatever extent additional
information was not provided, the failure did not prevent (or
should not have prevented) [the insurer] from making a rea-
sonable estimate of [the insured’s claim].” Cribari v. Allstate
Fire & Casualty Ins. Company, 375 F. Supp. 3d 1189, 1201
(D. Colo. 2019). In many cases where summary judgment is
granted in favor of the insurer, the failure to cooperate was
an effort by the insured to prevent the insurer from discover-
ing the claim was fraudulent. See id. In Cribari, the insured
“was indisputably injured, and there [was] no suggestion
that the failure to provide additional information was part
of a plot to conceal a fraudulent claim.” Id. See, also, King
v. Federal Insurance Co., 788 F. Supp. 506 (D. Kan. 1992)
(while records withheld were material and would have been
helpful, no evidence produced that insured’s failure to give
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up records prejudiced defendant’s defense once suit was filed);
Ahmadi v. Allstate Ins. Co., 22 P.3d 576 (Colo. App. 2001)
(right to recover under policy may be forfeited only when, in
violation of policy provision, insured fails to cooperate with
insurer in some material and substantial respect); Wallace v.
Woolfolk, 312 Ill. App. 3d 1178, 728 N.E.2d 816, 245 Ill. Dec.
734 (2000) (insurer must act in good faith to secure insured’s
cooperation; insurer failed to allege facts showing reasonable
diligence in getting insured to cooperate early on in litigation);
Mazzuca v. Eatmon, 45 Ill. App. 3d 929, 360 N.E.2d 454, 4 Ill.
Dec. 518 (1977) (whether insured breached cooperation clause
requires insurer to show it exercised reasonable degree of dili-
gence in seeking insured’s participation, and insured’s lack of
participation represented willful refusal to cooperate); Boone
v. Lowry, 8 Kan. App. 2d 293, 657 P.2d 64 (1983) (breach
of cooperation clause must cause substantial prejudice to
­insurer’s ability to defend itself; burden of proof to establish
policy defense is on insurer).
A fact finder could certainly conclude that Atlantic’s evi-
dence did not establish that Michael’s failure to sign the sec-
ond medical authorization or submit to the EUO before filing
his lawsuit prevented Atlantic from completing a reasonable
investigation or that the information it sought was materially
significant in determining the validity or value of Michael’s
claim. A fact finder could also conclude that Atlantic was not
reasonably diligent in securing Michael’s cooperation earlier
in the process when initially notified of the accident and when
first provided with a medical authorization. Therefore, in view-
ing the evidence in the light most favorable to the Saifs, we
cannot say that Atlantic established as a matter of law that it
suffered substantial prejudice from Michael’s failure to cooper-
ate. Because there remain issues of material fact as to whether
Michael’s filing of a lawsuit, before signing a second medical
authorization and before submitting to an EUO, was preju-
dicial, we find that summary judgment on Michael’s claim
was inappropriate.
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2. Atlantic’s Affirmative Defenses
[18,19] The Saifs next argue that the district court also
erred in resolving factual issues concerning whether or not
Atlantic waived its right to the defense of failure to cooper-
ate by its unreasonable delay in processing the Saifs’ claim.
We agree. Our review of the record reveals there were genu-
ine issues of material fact as to whether Atlantic unreason-
ably delayed processing the Saifs’ claim and whether such
amounted to a denial of coverage of the claim and, therefore,
a breach waiving the right to insist on the cooperation clause.
See, D & S Realty v. Markel Ins. Co., 280 Neb. 567, 588, 789
N.W.2d 1, 17-18 (2010) (“[a] party may prove the waiver by
(1) a party’s express declarations manifesting the intent not to
claim an advantage or (2) a party’s neglecting and failing to act
so as to induce the belief that it intended to waive [the right]”);
Otteman v. Interstate Fire & Cas. Co., Inc., 172 Neb. 574, 111
N.W.2d 97 (1961) (unreasonable delay amounts to denial of
coverage and constitutes waiver of any right to insist on certain
policy provisions).
The Saifs argue that the Unfair Insurance Claims Settlement
Practices Act, Neb. Rev. Stat. §§ 44-1536 to 44-1544 (Reissue
2010 & Cum. Supp. 2018), provides a guidepost to measure
whether Atlantic was reasonable in its investigation of the
Saifs’ claim. See, e.g., § 44-1540 (it shall be unfair claims
settlement practice to “[n]ot attempt[] in good faith to effectu-
ate prompt, fair, and equitable settlement of claims submitted
in which liability has become reasonably clear”). However, the
reasonableness of Atlantic’s claim handling, investigation, and
purported unreasonable delay are issues of fact that should be
resolved on remand.
3. Mary Sue’s Loss of
Consortium Claim
The Saifs’ final assignment of error is that the district court
erred in finding that Mary Sue was required, and failed, to
make a demand with Atlantic prior to filing suit. The Saifs
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argue, in the alternative, that if Mary Sue was obligated to
make a demand prior to filing suit, there are genuine issues of
material fact as to whether the demand was necessary due to
Atlantic’s prior denial of Michael’s claim through its unreason-
able delay.
We first note that in the Saifs’ complaint, the following alle-
gation was made: “That . . . Mary Sue . . . has made demand
upon [Atlantic] for payment of benefits under the [UIM]
coverage of the policy issued by [Atlantic] to the [Saifs], but
[Atlantic] has failed and refused to make payment to the [Saifs]
pursuant to the terms of the policy.” This allegation was denied
by Atlantic in its answer, and the record before us would indi-
cate that no formal demand was made by Mary Sue for a loss
of consortium claim prior to filing suit. The district court came
to the same conclusion. It found that the evidence was uncon-
troverted that Mary Sue never submitted a claim to Atlantic
before filing this lawsuit.
[20] The Saifs argue on appeal that Mary Sue was not
required to make a demand for benefits prior to filing suit. See
Fink v. Denbeck, 206 Neb. 462, 465, 293 N.W.2d 398, 401
(1980) (“[t]he general rule is that a demand for performance
is not necessary unless required by the terms of the contract
or its peculiar nature”). However, we conclude that the terms
of the insurance policy at issue, specifically the cooperation
agreement, required Mary Sue to make a demand for payment
of benefits prior to filing suit. Because she did not make a
demand, she breached the contract as a matter of law.
[21] However, just as set forth above in regard to Michael’s
breach, Atlantic had to prove that Mary Sue’s breach resulted
in prejudice to Atlantic. See Mefferd v. Sieler & Co., 267
Neb. 532, 676 N.W.2d 22 (2004). Atlantic presented evidence
in regard to prejudice in the affidavit of its claims supervi-
sor. The affidavit stated that Atlantic was unable to conduct
a meaningful assessment of Mary Sue’s damages prior to her
filing suit; was deprived of an opportunity to investigate or
evaluate her claim; was prejudiced by her breach; and was
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forced to incur litigation defense costs it may have avoided.
The evidence also showed that Atlantic had knowledge of
Michael’s potential claim since November 2014 and knew that
Michael was married and that his wife was an insured under
the policy. Atlantic also had general knowledge of Michael’s
injuries. Mary Sue’s cause of action is for the “loss of the
society, comfort, support and companionship of her husband,
Michael.” In other words, Mary Sue raised a claim for loss of
consortium, which is a derivative claim that is entirely depen-
dent on Michael’s claim. See Erickson v. U-Haul Internat.,
278 Neb. 18, 767 N.W.2d 765 (2009) (loss of consortium
claims are derivative and are based upon injured spouse’s
right to recover for direct injuries). See, also, Rasmussen v.
State Farm Mut. Auto Ins. Co., 278 Neb. 289, 770 N.W.2d
619 (2009). Thus, Atlantic did not establish as a matter of law
that it was prejudiced by Mary Sue’s failure to file a demand
prior to filing a lawsuit where her claim is tied to Michael’s.
Accordingly, Mary Sue’s loss of consortium claim should have
survived the motion for summary judgment, and we remand
this issue for further proceedings.
CONCLUSION
Based on the foregoing reasons, we find there were genuine
issues of material fact in this case and summary judgment was
inappropriate. We reverse the district court’s order granting
Atlantic’s motion for summary judgment and remand the cause
for further proceedings.
Reversed and remanded for
further proceedings.
Pirtle, J., participating on briefs.
Riedmann, Judge, dissenting.
Contrary to the district court’s order, the majority “assume[s]
without deciding” that an insured’s failure to sign a medical
authorization and sit for an examination under oath (EUO)
constituted a breach of his obligations under a policy of insur-
ance, but holds that material issues of fact exist as to whether
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the insurer was prejudiced as a result. It also holds that despite
a complete failure to make a demand upon the insurer prior
to filing suit, material issues of fact exist as to the viability
of a derivative claim. Based upon Nebraska case law and the
unrebutted evidence presented by the insurer as to the preju-
dice it suffered, I agree with the district court that the insurer
was entitled to judgment as a matter of law on both claims. I
therefore would affirm the district court’s order dismissing the
appellants’ complaint.
Breach of Cooperation Clause.
Michael F. Saif and Mary Sue Saif’s policy of insurance
informed them that their insurer, Atlantic States Insurance
Company (Atlantic), would have no duty to provide cover-
age under the policy unless there has been “full compliance”
with the duties set forth in the policy. Those duties included a
duty to “Submit, as often as [Atlantic] reasonably require[s]:
. . . To [EUO] and subscribe the same” and to “Authorize
[Atlantic] to obtain: . . . [m]edical reports; and . . . [o]ther
pertinent records.” The policy further provides that “[n]o legal
action may be brought against [Atlantic] until there has been
full compliance with all the terms of this policy.” Michael
was involved in a bicycle-pickup accident in October 2014; he
claims the driver of the pickup that struck him was underin-
sured. After settling with the driver’s insurer in May 2015, he
made a formal demand for underinsured motorist (UIM) cover-
age with Atlantic in February 2017. Prior to Atlantic’s accept-
ing or rejecting the demand, the appellants filed suit against
Atlantic in May 2017.
The evidence is uncontroverted that in July 2015, after
requesting a medical authorization from Michael, Atlantic was
advised that Michael’s counsel does not give medical authori-
zations to insurance companies. It is also uncontroverted that
on April 17, 2017, Atlantic requested Michael to sign a medi-
cal authorization and that he did not do so. The majority con-
cedes that Michael “failed” to sign that medical authorization,
despite his contractual obligation to do so under the policy, but
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dismisses it because “the record is absent of any evidence that
Michael refused to ever provide such an authorization.” The
majority ignores both the July 2015 statement of Michael’s
counsel and the statement contained in his affidavit offered
at the summary judgment hearing in 2019 that “no purpose
would be served by granting [Atlantic] a medical authorization
to secure copies of records already in [its] possession and pro-
vided by [Michael].” In addition to the only inference that can
be drawn from these two statements, the affidavit of Atlantic’s
claims supervisor confirms that Michael never provided the
requested authorization. The affidavit states that Atlantic “has
been unable to conduct a meaningful assessment of Michael’s
alleged damages due to his refusal to provide access to this
medical history and refusal to submit to an [EUO].” The
record, therefore, does include evidence that Michael’s refusal
to sign a medical authorization continued throughout the dura-
tion of the proceedings. Even the appellants, themselves, do
not advance the majority’s supposition that Michael belatedly
complied or offered to comply.
However, even if Michael had agreed to sign an authoriza-
tion after he filed suit, it would not negate his prior breach.
See Wright v. Farmers Mut. of Neb., 266 Neb. 802, 808, 669
N.W.2d 462, 467 (2003) (finding material breach of policy for
failing to comply with policy requirements and recognizing
that “in several instances, courts have held that a later promise
to comply was too late and could not cure the breach”). The
Wright court cited Monticello Ins. Co. v. Mooney, 733 So. 2d
802 (Miss. 1999), for the proposition that a belated promise
to comply with a policy’s cooperation clause could not cure
an insured’s failure to cooperate before litigation. No genuine
issue of material facts exists as to whether Michael materially
breached the policy of insurance by failing to provide a signed
medical authorization, and the district court was correct in
its finding.
Michael also failed to sit for a requested EUO in violation
of the policy. When asked that he do so, Michael’s counsel
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responded, “It occurs to me that if we are going to do discov-
ery before I get an answer to my demand, we might as well
have the case on file.” As with the medical authorization, the
majority claims that “[w]hile the EUO had not taken place by
the time of the summary judgment hearing, there is nothing
in the record to indicate that Michael refused to ever cooperate
with that request.” This statement again ignores the averment
contained in Atlantic’s affidavit that it “has been unable to con-
duct a meaningful assessment of Michael’s alleged damages
due to his refusal to provide access to this medical history and
refusal to submit to an [EUO].” Michael presented no evidence
at the summary judgment hearing to refute the statement that
he refused to submit to an EUO. Even if Michael would have
agreed to a deposition after filing suit, doing so would not
cure the breach. See Archie v. State Farm Fire & Cas. Co.,
813 F. Supp. 1208, 1213 (S.D. Miss. 1992) (stating insured’s
agreement to sit for deposition after filing suit “hardly satisfies
the spirit or intent of insurance policy clauses mandating oral
examinations”). Michael’s refusal to sit for an EUO constituted
a material breach of the policy, and the district court was cor-
rect in so finding.
Atlantic Was Prejudiced
as Matter of Law.
Although many jurisdictions have viewed compliance with
insurance policy provisions as a condition precedent to recov-
ery, Nebraska requires that an insurer show prejudice before
coverage can be denied. See Wright v. Farmers Mut. of Neb.,
supra. According to the majority, genuine issues of material
fact exist as to whether Atlantic was prejudiced by Michael’s
breach of the policy. I disagree.
In Wright v. Farmers Mut. of Neb., 266 Neb. 802, 669
N.W.2d 462 (2003), the Nebraska Supreme Court found preju-
dice as a matter of law and entered summary judgment in
favor of an insurer based upon the insured’s failure to answer
questions during an EUO. In Wright, the insured refused to
answer certain questions, including questions regarding her
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finances, properties owned, insurance held, and prior claims
made. She also initially refused to produce certain documents,
including her tax returns. Consequently, the insurers denied
coverage and the insured filed suit. The insurers answered,
claiming that the insured breached the policy in that she con-
cealed certain material facts and failed to comply with the
EUO. Both parties moved for summary judgment.
The district court held that the insured concealed informa-
tion and materially breached the insurance contracts when she
refused to answer questions during the EUO; thus, it granted
summary judgment in favor of the insurers. On appeal, the
Supreme Court recognized that the “effect of an insured’s
refusal to answer questions in an [EUO] is an issue of first
impression in Nebraska.” Id. at 806-07, 669 N.W.2d at 466.
It recognized, however, that it has held that “an insurer may
assert a breach of a cooperation clause as a defense when the
insurer was prejudiced by the lack of cooperation.” Id. at 807,
669 N.W.2d at 466, citing MFA Mutual Ins. Co. v. Sailors,
180 Neb. 201, 141 N.W.2d 846 (1966). It concluded that the
failure to provide material information under a clause requir-
ing the insured to submit to an EUO was a material breach of
the contract that may be raised by the insurer when the insurer
shows prejudice.
After finding the information sought by the insurers was
material, the Wright court determined: “[T]he insurance com-
panies provided evidence that the breach prejudiced their
investigation of the claims; [the insured] has not presented
evidence to dispute the claims of prejudice.” 266 Neb. at 808,
669 N.W.2d at 467. The only evidence identified in the opin-
ion regarding prejudice is as follows: “The record contains
averments that [the insured’s] refusal to answer questions and
provide documents hindered the investigation of the claims
and prejudiced [the insurers]. [The insured] did not present
evidence to dispute the claims of prejudice.” Id. at 805-06, 669
N.W.2d at 465. Consequently, it affirmed the grant of summary
judgment in favor of the insurers.
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As in Wright, Atlantic averred that Michael’s failure to
submit to an EUO and sign a medical authorization hindered
its investigation of the claim and prejudiced it. It produced
evidence in the form of affidavits and deposition testimony.
Daniel Hystad, who oversees Atlantic’s claims department,
explained in his deposition that Michael had already received
close to $1 million from the tort-feasor’s insurer and was
demanding Atlantic’s policy limits of $500,000. He stated that
Michael claimed he suffered “mental declination [and] physical
declination” and that “he wasn’t the man he used to be.” Based
upon Michael’s claims and his significant lost wage claim, an
EUO was requested because it was important to “get it unfil-
tered. Because the witness, how they tell their story, that also
affects the value of the case.”
Hystad explained that given the amount of money Michael
already received, Hystad was not convinced that Michael had
not been “made whole” and “having the opportunity to visit
with [Michael] directly would have been the best way to obtain
that information.” Hystad elaborated that there were several
ways in which the inability to conduct an EUO prejudiced
Atlantic, stating:
One, we were not allowed to complete our investigation
by visiting with [Michael]. I believe we are now subject
to unnecessary legal expenses because of the defense
costs we’re incurring with this suit. And I believe now we
are unnecessarily subject to the potential legal fees under
Nebraska law, when had we been able to simply get the
[EUO], the answer, we probably could have brought this
to a resolution.
A claims supervisor for Atlantic also testified as to the value
of an EUO in Michael’s case:
To be able to sit and talk with him and find out how did
this accident and his injuries affect his life. How does it
affect what he could no longer do as opposed to what he
could do before. How did it affect his ability to make an
income, his working.
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As to Michael’s failure to provide a signed medical autho-
rization, Hystad explained that in September 2016, Michael’s
counsel indicated that Michael was still receiving medical
treatment, but in the demand letter packet, there were no
records beyond that date. Current records were necessary to
assist Atlantic in evaluating whether Michael was continuing
to improve. Additionally, there were no medical records prior
to the date of the accident that would provide a baseline for
Michael’s preinjury condition.
The appellants provided no evidence at the summary judg-
ment hearing to refute Atlantic’s evidence that it was preju-
diced. Rather, they set forth the chronology of the case and
asserted that Atlantic did not request a medical authorization
prior to April 17, 2017, nor request an EUO until May 2.
They did not refute Atlantic’s evidence that it had been told
in 2015 that a medical authorization would not be provided
or that without a medical authorization, Atlantic was unable
to obtain medical records that predated the accident or post-
dated September 2017. They did not produce evidence to
refute Atlantic’s assertion that seeing how a witness presents
his story affects the value of a claim. As in Wright v. Farmers
Mut. of Neb., 266 Neb. 802, 669 N.W.2d 462 (2003), they
did not set forth any evidence to refute Atlantic’s claims
of prejudice.
The majority distinguishes Wright from the present mat-
ter, because Wright involved a possible fraudulent claim. It
states that because fraud was an assertion, “the factual issues
pertinent to establishing prejudice are quite different.” But
the validity of an insured’s claim is the threshold issue in
any first-party claim. The majority recognizes that in a first-
party claim, “the issue is whether the insurer has been able to
complete a reasonable investigation with regard to whether
the insured’s claim is valid.” Atlantic asserted it was unable
to do so without the EUO and the medical authorization, and
Michael presented no evidence to the contrary. Atlantic fur-
ther stated it was not able to ascertain whether Michael had
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been made whole by the payment of the nearly $1 million
settlement from the tort-feasor’s insurer and, if not, to what
extent he remained uncompensated. The majority recognizes
the proposition of law that “[i]f the insured’s refusal to coop-
erate prevents the insurer from completing such a reasonable
investigation, prejudice should be found to exist,” citing 1
Allan D. Windt, Insurance Claims & Disputes: Representation
of Insurance Companies and Insureds § 3:2 (6th ed. 2013), yet
the majority fails to apply it here.
Other jurisdictions in first-party claims have found prejudice
as a matter of law when an insured fails to provide documents
or submit to an EUO. See, e.g., Piser v. State Farm Mut. Auto.
Ins. Co., 405 Ill. App. 3d 341, 938 N.E.2d 640, 345 Ill. Dec.
201 (2010) (affirming order dismissing insured’s complaint for
failure to sign financial authorization and submit to EUO and
finding prejudice as matter of law); Rymsha v. Trust Ins. Co.,
51 Mass. App. 414, 746 N.E.2d 561 (2001) (insured’s refusal
to furnish requested information put insurer in untenable posi-
tion of either paying claim without ability to investigate its
validity or being sued for breach of contract; prejudice to
insured too obvious to warrant discussion); Tran v. State Farm
Fire and Cas. Co., 136 Wash. 2d 214, 961 P.2d 358 (1998) (if
insurers are inhibited in their effort to process claims due to
uncooperativeness of insured, they suffer prejudice); Pilgrim
v. State Farm Fire & Cas. Ins. Co., 89 Wash. App. 712, 950
P.2d 479 (1997) (where insured refuses to produce documents,
insurer prejudiced as matter of law by its inability to complete
its investigation of claim and risk of litigation if it denied
claim). See, also, Lorenzo-Martinez v. Safety Ins. Co., 58
Mass. App. 359, 790 N.E.2d 692 (2003) (holding that insurer’s
heightened need for reliable information on uninsured motorist
claim mandates rule that insured’s willful, unexcused failure
to submit to EUO constitutes breach of standard automobile
insurance contract resulting in forfeiture of coverage for unin-
sured motorist benefits without proof of actual prejudice result-
ing to insurer’s interests).
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Rather than focusing on whether the appellants’ actions pre-
vented Atlantic from completing its investigation prior to being
subject to suit, the majority focuses on what Atlantic “could
have done” from the moment it was advised of a potential
UIM claim. It asserts that Atlantic was “kept ‘in the loop’ on an
ongoing basis,” but the following chronology establishes that it
was Atlantic that consistently prodded Michael for a status of
his potential claim once he settled with the tort-feasor:
•  10/01/14: Accident.
•  11/06/14: Michael’s counsel notifies Atlantic of potential
uninsured or UIM claim for Michael.
•  04/01/15: Michael’s counsel notifies Atlantic of tentative
settlement with the tort-feasor and encloses medical authori-
zation valid for 45 days.
•  05/09/15: Atlantic notifies Michael’s counsel that it would not
substitute its policy limits and that it authorizes settlement
with the tort-feasor.
•  07/28/15: Atlantic orally requests medical authorization. A
paralegal for Michael’s counsel responds that her office does
not give medical authorizations to insurance companies but
that she would check with Michael’s counsel.
•  02/16/16: Michael’s counsel reaffirms intent to submit UIM
claim at later date.
•  09/08/16: Atlantic inquires when and if a UIM demand will
be made.
•  10/10/16: Michael’s counsel responds that the UIM claim
is coming but that Michael is still being treated. Michael’s
counsel states that when medical records are received, a
demand will be made.
•  01/31/17: Atlantic inquires again whether a UIM claim is
coming. Michael’s counsel responds that it can expect “a
policy limit demand within the week.”
•  02/01/17: Atlantic advises of additional documents it needs to
accompany the demand.
•  02/24/17: Michael’s counsel sends formal demand for policy
limits of $500,000 for Michael’s UIM claim.
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•  03/02/17: Atlantic’s counsel acknowledges demand and
requests additional medical records. He advises that Atlantic
is “reviewing” Michael’s demand and materials in order to
evaluate the same.
•  03/07/17: Michael’s counsel sends flash drive with additional
medical records.
•  03/16/17: After Michael’s counsel inquires as to status of the
demand, Atlantic’s counsel responds that Atlantic is continu-
ing to review the “voluminous supporting materials.”
•  04/17/17: Atlantic’s counsel requests medical authorization
“which will allow [Atlantic] to obtain all medical records for
an evaluation of [Michael’s] damage claim.”
•  04/26/17: Michael’s counsel leaves voice mail advising he is
filing suit.
•  05/02/17: Atlantic’s counsel follows up on the status of the
medical authorization, and he requests an EUO. He also
quotes policy language setting forth insured’s duty to autho-
rize the collection of medical reports and other records and to
sit for an EUO.
•  05/10/17: Michael’s counsel files lawsuit. He advises that “if
we are going to do discovery before I get an answer to my
demand, we might as well have the case on file.”
The majority asserts that Atlantic could have utilized the
first medical authorization from April 2015 to obtain Michael’s
records; however, the authorization expired in 45 days and
would have done nothing to assist Atlantic in obtaining medi-
cal records from June 2015 through February 2017 when the
demand was finally made. Hystad explained that Michael’s
counsel had advised in September 2016 that Michael continued
to seek medical treatment, so current records would be neces-
sary to evaluate whether Michael continued to improve and
what his current condition was.
The majority is critical of Atlantic for not requesting a
second medical authorization until “nearly 2 months after”
receipt of the formal demand; however, the evidence indicates
that Atlantic was advised in July 2015 that the appellants’
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counsel does not provide medical authorizations to insurance
companies. The affidavit of the appellants’ counsel offered
at the summary judgment hearing makes clear that regardless
of whether an authorization was requested earlier following
the demand, one would not have been provided. The affidavit
states that “at the time [the] request was made, a copy of all of
[Michael’s] medical records had been provided to [Atlantic];
that no purpose would be served by granting [Atlantic] a medi-
cal authorization to secure copies of records already in [its]
possession and provided by [Michael].”
The evidence reveals that as of the date of the summary
judgment hearing, an authorization was never signed, and that
an earlier request for an authorization would not have been
granted. Not all of the medical records were included in the
demand, and although additional records were received on
March 7, 2017, at the time the EUO was requested on May
2, Atlantic was still missing medical records that predated the
accident and postdated September 2016. Therefore, Atlantic’s
decision not to make another request for a medical authoriza-
tion between July 2015 and April 2017 does not negate its
assertion that it was prejudiced by Michael’s failure to sign
a medical authorization, nor does it create a genuine issue of
material fact on the issue.
The majority is also critical of Atlantic for not requesting
an EUO until May 2, 2017. However, the evidence reveals
that Atlantic received the demand packet on February 27,
which consisted of voluminous attachments, including medi-
cal records from October 1, 2014, through September 2,
2016. On March 7, 2017, Atlantic received additional medical
records. It requested an EUO to be scheduled after receipt of
additional medical records it hoped to obtain with the medical
authorization it had requested. Hystad explained that an EUO
was not requested prior to the formal demand because Atlantic
had been advised that Michael was still being treated and that
the claim “wasn’t ripe or it wasn’t ready to be settled . . . at
that point.” The purpose for delaying an EUO was to avoid
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having to “do it twice.” The appellants presented no evidence
to counter this position.
The majority essentially determines that Atlantic failed to
start its investigation early enough and that therefore, whether
Michael’s failure to sign the medical authorization and submit
to an EUO prejudiced Atlantic is a question of fact. But it
recognizes that “the issue is whether the insurer has been able
to complete a reasonable investigation with regard to whether
the insured’s claim is valid.” One of the insureds, Michael, did
not submit his demand until February 24, 2017, and even if
Atlantic had requested a medical authorization prior to April
17, the uncontroverted evidence is that Michael’s counsel
would not have agreed to Michael’s signing it. And, as stated
by Hystad, it would be futile to take an EUO prior to receipt of
all requested information.
To fully evaluate Michael’s claim, Atlantic required a signed
medical authorization to investigate how and if Michael’s
current condition differed from his preaccident condition and
Atlantic was contractually entitled to the opportunity to con-
duct an EUO, but Michael filed suit before complying with
either of those requests. As attested to by Atlantic’s claims
supervisor, Atlantic was “unable to conduct a meaningful
assessment of Michael’s alleged damages” and was “unable to
conduct an adequate evaluation of Michael’s claim” prior to
a lawsuit being filed. Atlantic is now subject to attorney fees
under Neb. Rev. Stat. § 44-359 (Reissue 2010), as alleged in
the appellants’ complaint.
Based upon my review of the record, Atlantic produced evi-
dence that it was prejudiced as a result of Michael’s failure to
provide a signed medical authorization and submit to an EUO.
Michael presented no evidence to rebut these averments. As
in Wright v. Farmers Mut. of Neb., 266 Neb. 802, 669 N.W.2d
462 (2003), Atlantic was therefore entitled to summary judg-
ment. I would affirm the district court’s order as to Michael in
this regard.
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Mary Sue’s Claim.
As to Mary Sue, she asserted in the complaint that she had
made demand upon Atlantic for UIM benefits and that Atlantic
had failed and refused to make payment to her. The evidence
is uncontroverted, however, that she never made demand upon
Atlantic prior to filing suit. The initial letter sent by Michael’s
attorney to Atlantic on November 6, 2014, does not refer-
ence Mary Sue or that she has a potential UIM claim. The
demand letter of February 24, 2017, includes neither Mary
Sue’s name as a person represented nor a claim on her behalf.
In fact, the letter refers solely to Michael as Atlantic’s insured
and the author attorney’s client.
Having never received a demand, Atlantic could not have
breached any obligation it owed to Mary Sue. That basis
alone was sufficient to grant summary judgment to Atlantic.
Additionally, Mary Sue failed to comply with the terms of the
insurance policy that required her to make a demand for pay-
ment prior to filing suit. The majority concedes that this was
a breach of the policy as a matter of law, and I agree. But like
Michael’s claim, the majority determines that Atlantic failed
to prove it was prejudiced by this breach. I disagree, because
Mary Sue presented no evidence to refute Atlantic’s averments
that it had been prejudiced. Additionally, Mary Sue’s claim is
derivative of Michael’s; therefore, because his claim fails, so
too does hers. See Erickson v. U-Haul Internat., 278 Neb. 18,
767 N.W.2d 765 (2009).
I would affirm the order of the district court granting sum-
mary judgment in favor of Atlantic.