Peterson v. Homesite Indemnity Co.

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48 287 NEBRASKA REPORTS
that Fester’s counsel did not provide ineffective assistance in
this regard.
CONCLUSION
For all of the foregoing reasons, we affirm the decision of
the district court denying postconviction relief.
Affirmed.
Dowayne P eterson, appellant, v. Homesite Indemnity
Company, a K ansas corporation, appellee.
___ N.W.2d ___
Filed December 20, 2013. No. S-12-875.
1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted and gives that party the benefit of all reasonable
inferences deducible from the evidence.
2. ____: ____. An appellate court will affirm a lower court’s grant of summary
judgment if the pleadings and admitted evidence show that there is no genuine
issue as to any material facts or as to the ultimate inferences that may be drawn
from the facts and that the moving party is entitled to judgment as a matter
of law.
3. Insurance: Contracts: Judgments: Appeal and Error. The interpretation of an
insurance policy presents a question of law that an appellate court decides inde-
pendently of the trial court.
4. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no genuine issue as to any
material fact or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
5. ____. Summary judgment proceedings do not resolve factual issues, but instead
determine whether there is a material issue of fact in dispute.
6. ____. If a genuine issue of fact exists, summary judgment may not properly
be entered.
7. Summary Judgment: Proof. The party moving for summary judgment has the
burden to show that no genuine issue of material fact exists and must produce
sufficient evidence to demonstrate that the moving party is entitled to judgment
as a matter of law.
8. Bailment: Words and Phrases. Bailment is defined as the delivery of personal
property for some particular purpose or on mere deposit, upon a contract, express
or implied, that after the purpose has been fulfilled, it shall be redelivered to the
person who delivered it or otherwise dealt with according to that person’s direc-
tions or kept until reclaimed, as the case may be.
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PETERSON v. HOMESITE INDEMNITY CO. 49
Cite as 287 Neb. 48
9. ____: ____. Bailment involves the delivery of personal property by one person
to another in trust for a specific purpose, with a contract, express or implied, that
the trust shall be faithfully executed and the property returned or duly accounted
for when the special purpose is accomplished.
10. Conversion: Words and Phrases. Conversion is any unauthorized or wrongful
act of dominion exerted over another’s property which deprives the owner of his
property permanently or for an indefinite period of time.
Appeal from the District Court for Sarpy County: Max
K elch, Judge. Reversed and remanded for further proceedings.
Ralph A. Froehlich, of Locher, Pavelka, Dostal, Braddy &
Hammes, L.L.C., for appellant.
Thomas A. Grennan and Andrew J. Wilson, of Gross &
Welch, P.C., L.L.O., for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Wright, J.
I. NATURE OF CASE
This case presents the issue whether Dowayne Peterson
suffered a loss of personal property due to theft, as defined
in his homeowner’s insurance policy. The question presented
in this appeal is whether there is a material issue of fact
in dispute.
Peterson contracted with a “shipper agent” to move his
household goods and personal property from Nebraska to
Florida. Individuals contacted by the shipper agent took pos-
session of Peterson’s property and demanded additional pay-
ment before delivery of the property to Florida. The property
was never delivered to Florida or returned to Peterson.
Peterson’s insurer, Homesite Indemnity Company
(Homesite), denied coverage, claiming that a theft had not
occurred. The district court found no material issues of fact in
dispute and concluded that a theft had not occurred. It granted
summary judgment in favor of Homesite.
Because there are genuine issues of material fact whether
there was a theft, we reverse the judgment of the district court
and remand the cause for further proceedings.
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II. SCOPE OF REVIEW
[1] 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 evi-
dence. Shada v. Farmers Ins. Exch., 286 Neb. 444, ___ N.W.2d
___ (2013).
[2] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
of law. Id.
[3] The interpretation of an insurance policy presents a
question of law that we decide independently of the trial court.
Alsidez v. American Family Mut. Ins. Co., 282 Neb. 890, 807
N.W.2d 184 (2011).
III. FACTS
In August 2007, Peterson obtained a homeowner’s insur-
ance policy from Homesite for his apartment in Bellevue,
Nebraska. This policy insured against the “direct physical loss”
of Peterson’s personal property or that of his immediate fam-
ily when caused by any of 16 listed perils, including theft. The
term “theft” was not defined.
Peterson owned a house in Florida. On July 15, 2008,
Peterson contacted United States Van Lines of Texas (USVLT)
to move his personal property from Bellevue to Florida.
He entered into a contract that provided for the disassem-
bly, loading, transport, unloading, and reassembly of up
to 8,000 pounds of household goods for an estimated cost
of $3,845.37.
The final cost for the move would be determined based on
the actual weight of the shipment. If “any additional pieces,
packing services, weight or labor services [were] added at
the origin or destination to those quoted,” Peterson would be
charged additional amounts. Peterson waived his right to have
USVLT perform a visual estimate and instead prepared an
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inventory of the items to be moved, which USVLT then used
to calculate the estimated cost.
The contract provided that USVLT was to serve only as the
“moving coordinator/shipper agent” and would not physically
move Peterson’s property. USVLT was “not responsible for any
acts or omissions of the Carrier or its employees or agents.”
Peterson was “subject to all applicable laws and the general
terms and conditions of the Carrier,” which included a require-
ment that he “may not receive possession of [his] goods until
all charges are paid in full.”
On Friday, August 15, 2008, men named “Arthur” and
“Earl” arrived at Peterson’s apartment in a U-Haul truck. They
identified themselves as being with USVLT. Peterson was
concerned because they had arrived in a U-Haul instead of “a
long moving truck.” USVLT confirmed that it had sent Arthur
and Earl to complete Peterson’s move and explained that their
normal moving truck had broken down. USVLT arranged
for Desmond Campbell—Arthur and Earl’s superior—to call
Peterson with reassurance that the U-Haul would hold all of
Peterson’s property. But everything did not fit in the U-Haul,
and Campbell arranged for a second truck to load the remain-
der of Peterson’s property. Arthur agreed to tow Peterson’s
wife’s vehicle behind the U-Haul, for which Peterson paid
$500 cash.
Arthur and Earl left around noon on Saturday, August 16,
2008, with the full U-Haul and the vehicle. They expected
to deliver Peterson’s property to his residence in Florida on
Sunday. On Saturday night, a Budget truck arrived to move
the remainder of Peterson’s property. Once Peterson received
verification from Campbell that the men with the truck worked
for Campbell, the two men loaded the remaining items and left.
For simplicity, we refer to Arthur, Earl, and the two men in the
second truck collectively as “the movers.”
On August 15 and 16, 2008, Peterson signed numerous doc-
uments given to him by the movers. These documents indicated
that the movers and their superior, Campbell, were associated
with two moving companies based in Georgia: Move Direct
Relocation and Advance Budget Moving & Storage. None of
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the paperwork provided by the movers was from USVLT, but
USVLT confirmed that it had sent the movers.
After several delays in delivery, Campbell informed
Peterson that the shipment weighed 4,000 pounds more
than estimated and that Peterson owed an additional $5,100.
Peterson thought the alleged weight of the shipment was
“an outrageous amount” and asked for documentation of the
weight. Under the USVLT contract, Peterson had agreed to
pay approximately $3,800 for the transport of 8,000 pounds of
personal property.
As documentation of the weight of Peterson’s shipment,
Campbell faxed four weigh tickets to USVLT, which in turn
faxed the weigh tickets to Peterson. The weigh tickets related
to at least three different trucks, but only two had been used
in the move. One weigh ticket described a semi-trailer, not
the small rental trucks, and originated from a weigh station in
Indiana. It was unclear whether the weight of the vehicle being
towed by the movers was included in the weigh tickets. Three
of the four weigh tickets were dated before Peterson’s move.
Because Peterson found “serious discrepancies” in the weigh
tickets that “indicated that the documents were not reliable,” he
said that he would pay an additional amount only after he was
satisfied as to the weight of the shipment.
Peterson proposed that Campbell meet Peterson’s wife at
a weigh station in Florida to verify that Peterson’s shipment
was in fact over the estimated weight. Campbell rejected
the proposal and stated that he would not deliver Peterson’s
property unless and until Peterson paid an additional amount
in advance of delivery. USVLT asked Campbell to comply
with Peterson’s request to weigh the truck in the presence of
Peterson’s wife, but Campbell said that he would not “deliver
anything until [he got his] money.” On August 21, 2008,
USVLT refused to assist Peterson further in securing delivery
of his property.
On August 22, 2008, Peterson again attempted to get his
property from Campbell by assuring payment upon delivery.
Campbell continued to demand payment before delivery and
stated that Peterson’s property was being stored in Georgia.
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Peterson did not send additional money and did not receive
any of his personal property.
Peterson filed a claim with Homesite under his homeowner’s
insurance policy. Homesite sent Peterson an initial payment of
$2,000 but later denied his claim. Peterson received $25,000
for the loss of personal property and $5,000 for the loss of his
vehicle under separate insurance policies with another insur-
ance company.
Peterson sued Homesite for breach of contract and bad faith
in denying the insurance claim. In response, Homesite asserted
multiple affirmative defenses, including the allegation that
Peterson lost his property as a result of a contract dispute, not
theft. It counterclaimed to recover the $2,000 it had advanced
to Peterson.
Homesite moved for summary judgment. After a hearing at
which both parties adduced evidence, the district court sus-
tained the motion. It found that Peterson lost his property in
a contractual dispute after voluntarily delivering the property
into the custody of USVLT and that there was “no showing
of criminal intent.” The court sustained Homesite’s motion for
summary judgment and dismissed Peterson’s complaint with
prejudice. It later dismissed Homesite’s counterclaim with-
out prejudice.
Peterson timely appeals. Pursuant to our statutory authority
to regulate the dockets of the appellate courts of this state, we
moved the case to our docket. See Neb. Rev. Stat. § 24-1106(3)
(Reissue 2008).
IV. ASSIGNMENTS OF ERROR
Peterson assigns, restated, that the district court erred in
granting Homesite’s motion for summary judgment by (1)
making factual findings where genuine issues of material
fact exist and failing to give him the benefit of all reason-
able inferences deducible from the evidence, (2) concluding
that no theft had occurred because “a contractual dispute
arose” after he “voluntarily delivered” his property into the
custody of USVLT, and (3) dismissing his cause of action for
bad faith.
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V. ANALYSIS
[4-6] Summary judgment is proper when the pleadings
and evidence admitted at the hearing disclose that there is no
genuine issue as to any material fact or as to the ultimate infer-
ences that may be drawn from those facts and that the mov-
ing party is entitled to judgment as a matter of law. Shipley v.
Department of Roads, 283 Neb. 832, 813 N.W.2d 455 (2012).
Summary judgment proceedings do not resolve factual issues,
but instead determine whether there is a material issue of fact
in dispute. Young v. Govier & Milone, 286 Neb. 224, 835
N.W.2d 684 (2013). If a genuine issue of fact exists, summary
judgment may not properly be entered. Cartwright v. State, 286
Neb. 431, 837 N.W.2d 521 (2013).
[7] 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. 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 was 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. Professional Mgmt. Midwest v. Lund Co.,
284 Neb. 777, 826 N.W.2d 225 (2012).
1. Summary Judgment on Breach
of Contract Claim
Peterson claims that the district court erred by making fac-
tual findings on genuine issues of material fact. We therefore
examine what are the material facts in Peterson’s breach of
contract claim against Homesite. The material facts are those
facts that relate to the alleged theft of Peterson’s property. In
order to consider what facts are material to Peterson’s claim,
we must first determine what definition of theft is applicable to
Peterson’s homeowner’s insurance policy.
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(a) Definition of Theft
Under Peterson’s
Insurance Policy
An insurance policy is a contract, and its terms provide
the scope of the policy’s coverage. Rickerl v. Farmers Ins.
Exch., 277 Neb. 446, 763 N.W.2d 86 (2009). In construing an
insurance contract, a court must give effect to the instrument
as a whole and, if possible, to every part thereof. Travelers
Indemnity Co. v. International Nutrition, 273 Neb. 943, 734
N.W.2d 719 (2007). We construe insurance contracts like
other contracts, according to the meaning of the terms that
the parties have used. Federated Serv. Ins. Co. v. Alliance
Constr., 282 Neb. 638, 805 N.W.2d 468 (2011). “In cases
of doubt, [an insurance policy] is to be liberally construed
in favor of the insured.” Modern Sounds & Systems, Inc. v.
Federated Mut. Ins. Co., 200 Neb. 46, 49, 262 N.W.2d 183,
186 (1978).
The relevant provisions of Peterson’s homeowner’s insur-
ance policy are:
We insure for direct physical loss to the property described
in Coverage C caused by a peril listed below unless the
loss is excluded in SECTION I - EXCLUSIONS.
....
9. Theft, including attempted theft and loss of property
from a known place when it is likely that the property has
been stolen.
(Emphasis in original.) However, the policy did not define
theft. There were several specific exclusions, such as theft by
an insured, that were not covered under the theft provision, but
none of those exclusions apply to Peterson’s situation.
In the absence of an explicit definition for the term “theft,”
we examine the policy to determine what definition is appli-
cable. The district court applied the definition of theft from
Modern Sounds & Systems, Inc., supra, and we agree that this
definition of theft applies to Peterson’s policy.
In Modern Sounds & Systems, Inc., 200 Neb. at 48, 262
N.W.2d at 185, we examined an insurance policy that “pro-
vided that the defendant would pay for any loss ‘caused by
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theft or larceny.’” We held that “in an automobile insurance
policy providing coverage against theft, in which the term
is not defined, the term ‘theft’ will be construed broadly to
include a loss caused by any unlawful or wrongful taking of
the insured vehicle with criminal intent.” Id. at 52, 262 N.W.2d
at 187.
Similar to Peterson’s policy quoted above, the policy lan-
guage in Modern Sounds & Systems, Inc., supra, identified
a specific peril for which coverage was provided. Under a
specific perils policy, also called a named perils policy, prop-
erty is covered only if the occurrence arises from one of the
perils listed in the policy. See Poulton v. State Farm Fire &
Cas. Cos., 267 Neb. 569, 675 N.W.2d 665 (2004). In Modern
Sounds & Systems, Inc., 200 Neb. at 48, 262 N.W.2d at 185,
“‘theft or larceny’” was a listed peril for which coverage was
provided under the insurance policy. In the instant case, “theft”
was a listed peril. Modern Sounds & Systems, Inc., supra,
involved the interpretation of a particular policy, but we con-
sidered the definition of theft within the broader context of all
specific perils policies.
Neither of the parties disputes the facts that Peterson had a
specific perils policy with Homesite, that the policy generally
covered theft, and that his policy did not define theft. Because
Peterson’s homeowner’s insurance policy was a specific perils
policy that failed to define theft, we apply a broad definition to
the term “theft,” just as we did in Modern Sounds & Systems,
Inc., supra.
Homesite claims a narrow application of the term “theft”
should be applied because the policy allegedly demonstrated
the parties’ desire for theft to be defined narrowly. According
to Homesite, because Peterson’s policy had no exclusions, we
should conclude that “the term theft is not meant to be used in
a broad sense.” Brief for appellee at 12. We are not persuaded
by this argument.
Peterson’s policy had exclusions to theft coverage—the pol-
icy listed six occurrences of theft that were not covered. Just
as in Modern Sounds & Systems, Inc. v. Federated Mut. Ins.
Co., 200 Neb. 46, 262 N.W.2d 183 (1978), those limited exclu-
sions indicate that the term “theft” covered all occurrences
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of theft other than the six specifically listed and would have
covered those occurrences but for the exclusions. Additionally,
Peterson’s policy provided coverage against the loss of prop-
erty resulting from “[t]heft, including attempted theft and
loss of property from a known place when it is likely that the
property has been stolen.” (Emphasis omitted.) This language,
including attempted theft and likely theft, indicates that the
parties intended a broad meaning of theft within Peterson’s
policy. Even if this were not clear, “[i]n cases of doubt, [an
insurance policy] is to be liberally construed in favor of the
insured.” Id. at 49, 262 N.W.2d at 186.
Despite Homesite’s arguments, we find that applying this
broad definition to Peterson’s homeowner’s insurance policy
would not be contrary to the intent of the parties to that pol-
icy. Therefore, using the broad definition of theft in Modern
Sounds & Systems, Inc., supra, we interpret the theft provision
in Peterson’s policy to cover any loss of the insured’s personal
property caused by an unlawful or wrongful taking with crimi-
nal intent.
(b) Whether Genuine Issues
of Material Fact Exist
Given the applicable definition of theft, to ultimately suc-
ceed on his claim of theft, Peterson must prove that (1) he
suffered a loss (2) caused by the unlawful or wrongful taking
of the insured property (3) with criminal intent. Intent “must
be determined from the particular circumstances of each case.”
10A Lee R. Russ et al., Couch on Insurance 3d § 151:15 at
151-24 (2005). Thus, the material facts are those that relate to
whether there was an unlawful or wrongful taking of the prop-
erty with criminal intent.
(i) Homesite’s Evidence
Homesite argues that it was entitled to summary judgment
because Peterson did not suffer a loss due to theft. It claims
Peterson did not suffer a theft because the evidence showed
that he was embroiled in a contract dispute with Campbell and
the movers, to whom Peterson had entrusted his property in
a bailment.
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[8,9] Bailment is defined as
the delivery of personal property for some particular
purpose or on mere deposit, upon a contract, express or
implied, that after the purpose has been fulfilled, it shall
be redelivered to the person who delivered it or otherwise
dealt with according to that person’s directions or kept
until reclaimed, as the case may be.
Gerdes v. Klindt, 253 Neb. 260, 268, 570 N.W.2d 336, 342
(1997). Nebraska case law also states that bailment involves
the “delivery of personal property by one person to another
in trust for a specific purpose, with a contract, express or
implied, that the trust shall be faithfully executed and the
property returned or duly accounted for when the special
purpose is accomplished.” Id. at 268, 570 N.W.2d at 342-43.
The law of bailments generally applies to “the delivery and
acceptance of custody of personal property for safekeeping,
transportation, or storage.” 8A Am. Jur. 2d Bailments § 5 at
525 (2009).
Homesite adduced evidence that the agreement between
Peterson and the movers constituted a bailment. Peterson deliv-
ered his property to Campbell and the movers for the express
purpose of having the property transported to Florida. The
reason for Peterson’s arrangement with USVLT was the trans-
portation and delivery of his personal property to Florida.
According to Homesite’s evidence, Campbell and the movers
acknowledged that they were given possession of Peterson’s
property in accordance with the USVLT contract and for
that same purpose—delivery to Florida. Such evidence would
establish the existence of an agreement between Peterson and
the movers that once the property had been transported, the
movers would redeliver possession of the property to Peterson
at his house in Florida. This arrangement meets the basic defi-
nition of a bailment.
Because Homesite adduced evidence that if uncontroverted,
would establish a bailment, we examine the legal implications
of bailment to this case. Homesite argues that because Peterson
voluntarily gave his property to the movers as part of a bail-
ment, there can be no theft under his homeowner’s insurance
policy. It argues that the existence of a bailment situation
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necessarily makes the dispute between Peterson and the movers
a “contract dispute” for which Peterson cannot recover. Brief
for appellee at 15. These arguments ignore the fact that the
person entrusted with bailed property (the bailee) is limited in
what he or she can do with such property.
[10] Under a bailment, the person delivering the property
for a specific purpose (the bailor) has “the right to have the
bailed property returned to him or her strictly in accordance
with the terms of the bailment contract.” 8A Am. Jur. 2d,
supra, § 130 at 654. If the bailee “fails or refuses to return the
property in the manner expressly required by the contract,”
he or she “may be liable for conversion, or for breach of con-
tract.” Id. In Nebraska, a bailee who handles bailed property
in a manner that is in breach of the bailment agreement—that
is, in a manner other than that required by the contract—com-
mits conversion. See Chadron Energy Corp. v. First Nat.
Bank, 236 Neb. 173, 459 N.W.2d 718 (1990). Conversion is
any unauthorized or wrongful act of dominion exerted over
another’s property which deprives the owner of his property
permanently or for an indefinite period of time. Brook Valley
Ltd. Part. v. Mutual of Omaha Bank, 285 Neb. 157, 825
N.W.2d 779 (2013).
In the instant case, the fact that Campbell and the movers
initially obtained possession of Peterson’s property with his
consent does not preclude the possibility that they may have
intended to convert the property for their own use. Because
Peterson delivered possession of his property to Campbell and
the movers for a specific purpose, any actions by the movers
that were contrary to that purpose went beyond the scope of
Peterson’s initial consent and could be a theft.
In the absence of a provision specifically excluding con-
version from theft coverage, Peterson’s homeowner’s insur-
ance policy encompasses theft by conversion. The policy
does not exclude conversion from theft coverage, and there-
fore, conversion falls within the broad definition of theft in
Peterson’s policy.
Homesite’s evidence of bailment showed that Campbell
and the movers took possession of Peterson’s property for the
specific purpose of transporting and delivering it to Florida. It
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also showed that once Campbell and the movers obtained pos-
session of Peterson’s property in the context of a bailment, they
kept the property according to what they asserted to be their
contractual rights. If this evidence were uncontroverted, there
is no showing that a theft occurred.
The contract with USVLT provided the carrier would not
deliver the goods until all charges were paid in full. Through
evidence that USVLT acknowledged sending the movers
to transport Peterson’s belongings and that Campbell was
their superior, Homesite established that Campbell was “the
Carrier” referenced in the USVLT contract. Therefore, if this
provision in the contract was lawful, Campbell and the movers
were not prohibited by Peterson’s contract with USVLT from
retaining possession of Peterson’s property until Peterson paid
in full.
Homesite presented evidence that Campbell kept Peterson’s
property because Campbell claimed Peterson owed more
money. If uncontroverted, this evidence would support find-
ings that Campbell and the movers did not keep Peterson’s
property with criminal intent and that their continued pos-
session of Peterson’s property was based on their contractual
right to deliver the property only after Peterson paid in full.
In the absence of an unlawful taking with criminal intent,
no theft occurred. And if no theft occurred, Homesite did
not breach its contract with Peterson by denying his claim.
Therefore, Homesite made a prima facie case that it was
entitled to judgment as a matter of law on the breach of con-
tract claim.
(ii) Peterson’s Evidence
Once Homesite made its prima facie case, the burden
shifted to Peterson to show the existence of genuine issues
of material fact that would prevent judgment as a matter of
law. See Cartwright v. State, 286 Neb. 431, 837 N.W.2d 521
(2013). Peterson met this burden by presenting evidence from
which it could reasonably be inferred that Campbell’s actions
were committed with criminal intent and not with the com-
mercial intent suggested by Homesite. Per our standard of
review, we view this evidence in a light favorable to Peterson.
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See Shada v. Farmers Ins. Exch., 286 Neb. 444, ___ N.W.2d
___ (2013).
Peterson adduced evidence showing that the movers’ actions
leading up to and during Peterson’s move on August 15 and
16, 2008, cast doubt upon their affiliation with legitimate
businesses engaged in the interstate transportation of house-
hold goods. USVLT’s contract with Peterson explained that
USVLT would engage a carrier to move Peterson’s personal
property, but the contract did not name the carrier. Indeed,
USVLT never disclosed which carriers it used, in violation of
federal regulations. See 49 C.F.R. § 371.109(a) (2012). The
contract also provided that the carrier could withhold delivery
until Peterson paid in full. In light of the fact that Peterson
opted to receive a binding estimate from USVLT, this provi-
sion allowing the carrier to withhold delivery may have been
prohibited by federal law. See 49 C.F.R. § 375.403(a)(8)
through (10) (2012). Peterson was asked to initial next to each
of these provisions in addition to signing at the bottom of
the contract.
The evidence showed that the information Peterson had
about the movers’ affiliation with USVLT or any legitimate
carrier was questionable. Upon arrival in Bellevue, the movers
presented Peterson with paperwork from two separate mov-
ing companies in Georgia, neither of which was registered
to do business in Georgia. The telephone numbers provided
on the paperwork were disconnected, and the addresses on
the paperwork corresponded to vacant lots that were for sale.
On the first day of the move, Peterson reached the individ-
ual allegedly in charge of these companies—Campbell—only
after USVLT referred him to a different telephone number,
which in turn directed him to a third number. Peterson was
able to reach Campbell and the movers only via cell phone.
The movers did not offer any paperwork indicating a connec-
tion with USVLT. And when Peterson asked for identifica-
tion, they did not provide it. Under the federal regulations
governing interstate carriers of household goods, the movers
were required to provide at least their names, addresses, and
U.S. Department of Transportation numbers. See 49 C.F.R.
§ 375.501(a)(1) (2012).
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As described by Peterson, the performance of the movers
was not what one would expect from employees of a profes-
sional moving company. On the first day of the move, the
movers arrived in a small rental truck, despite a prior arrange-
ment for “a long moving truck.” Even after Peterson told
them that his personal property was located in an apartment
and two garages, the movers and Campbell assured Peterson
that they could fit his belongings in the small rental truck.
When the movers realized later that Peterson’s belongings
would not fit into the small rental truck, they arranged for a
second rental truck, which did not arrive until the evening of
August 16, 2008, and did not finish loading Peterson’s property
until midnight.
The business of transporting household goods through inter-
state commerce is highly regulated, see 49 C.F.R. § 375.101
et seq. (2012), and yet, Campbell and the movers seemed
unprepared to carry out Peterson’s move professionally and
in compliance with federal law. Given that they represented
themselves as professional movers affiliated with USVLT
and two moving companies from Georgia who engaged in
the interstate transport of household goods, the actions of
Campbell and the movers leading up to Peterson’s move were
highly suspect.
Once the movers had possession of Peterson’s property, the
reason for their dubious actions became almost immediately
apparent. Within a day, the movers called Peterson to delay
delivery. And a few days later, Campbell called Peterson and
demanded additional money because Campbell claimed that
the shipment was over the estimated weight. For the initial
move of 8,000 pounds, USVLT charged Peterson about $3,800,
or approximately $1,900 to move 4,000 pounds. Once in pos-
session of Peterson’s property, Campbell demanded $5,100
for the additional 4,000 pounds—almost three times as much
as Peterson had paid per pound under the initial estimate.
Furthermore, Campbell wanted Peterson to send the additional
funds to an unidentified post office box in Georgia, refused
Peterson’s offer of a cashier’s check, and would accept only
cash or a wire transfer.
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Peterson adduced evidence that Campbell was unwilling
to provide Peterson with accurate documentation to support
the demand for additional money. When Peterson asked for
documentation that the shipment was overweight, Campbell
provided weigh tickets that contained many discrepancies.
One weigh ticket described the truck being weighed as a
semi-trailer, which the U-Haul and Budget trucks were not.
That weigh ticket was from a weigh station in Indiana, which
was not close to the route Peterson told the movers to take
to Florida. Based on the identification numbers printed on
each ticket, the four weigh tickets related to at least three
different trucks, when only two trucks were used to transport
Peterson’s property. And three of the four weigh tickets were
dated before Peterson’s move. Peterson stated that when con-
fronted with these discrepancies, Campbell “was not able to
give [Peterson] a satisfactory explanation.” One of the mov-
ers denied being in Indiana or signing a weigh ticket from
there. Campbell and Arthur also provided conflicting accounts
whether the weigh tickets included the weight of the vehicle
being towed by the U-Haul.
In light of the unusual weigh tickets, Peterson promised to
make additional payment when he was satisfied of the actual
weight of his property and asked Campbell to reweigh the
shipment in the presence of Peterson’s wife. USVLT ordered
Campbell, as its carrier, to reweigh the shipment, but Campbell
refused to reweigh Peterson’s shipment or attempt delivery.
Under 49 C.F.R. §§ 375.513 and 375.517 (2012), as a carrier,
Campbell was required to grant Peterson’s requests to have his
property reweighed in person.
At one point, Campbell agreed to confirm that he was still
in possession of Peterson’s belongings, but failed to follow
through. A police officer in Georgia claimed that Campbell
showed the officer where Peterson’s property was being stored,
but the officer never confirmed that Peterson’s property was
in fact being stored there and could not locate Peterson’s
wife’s vehicle.
The evidence supports an inference that Campbell and the
movers acted with criminal intent in obtaining possession of
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64 287 NEBRASKA REPORTS
Peterson’s property under the auspices of a legitimate bailment
to transport property. Campbell and the movers claimed to be
associated with supposedly legitimate moving companies, yet
failed to provide valid business addresses or business telephone
numbers. They arrived in rented trucks that were too small for
the job described in the USVLT contract. Furthermore, the
contract signed by Peterson and USVLT contained provisions
contrary to federal law and conveniently put Campbell and the
movers in a position where they could hold on to Peterson’s
property simply by claiming that he owed additional money.
Campbell and the movers made precisely such a claim within
a few days of loading Peterson’s property. From that point for-
ward, they refused to deliver the property, even when Peterson
offered to pay the additional amount demanded in the generally
accepted form of a cashier’s check.
Looking back upon the movers’ actions in Bellevue with
knowledge of the later events, it can reasonably be inferred
that acquiring possession of Peterson’s property under the
auspices of a bailment was the means of gaining leverage that
could later be used to make a demand for additional money.
Such facts support the inference that Campbell and the mov-
ers obtained possession of the property by false pretenses, in
which case a bailment may not have been created in the first
place. See, e.g., Reserve Ins. Co. v. Interurban &c. Lines,
105 Ga. App. 278, 124 S.E.2d 498 (1962). But more impor-
tant, this evidence supports an inference that Campbell and
the movers unlawfully took Peterson’s property with crimi-
nal intent.
The evidence also supports the inference that Campbell and
the movers had no intention of completing the move as required
by their bailment agreement with Peterson. They demanded an
additional $5,100, claiming the load exceeded the estimated
weight by 4,000 pounds. When asked for confirmation of the
excess weight, they produced false weigh tickets that related
to more trucks than were involved in the move and that were
dated several weeks prior to the move. Peterson still agreed to
pay $5,100 if Campbell would reweigh the trucks at a licensed
weigh station in the presence of Peterson’s wife, but Campbell
refused to do so. Campbell stated that he would not deliver the
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PETERSON v. HOMESITE INDEMNITY CO. 65
Cite as 287 Neb. 48
property until Peterson mailed $5,100 in cash to a post office
box in Georgia. Peterson offered to obtain a cashier’s check
that he would give to Campbell upon delivery, but Campbell
demanded cash or a wire transfer. Peterson offered multiple
times to meet Campbell’s demands in a manner that ensured
both delivery of the property and payment for the additional
4,000 pounds—a “win-win” situation if both parties were act-
ing upon legitimate business motives.
(iii) Conclusion
Viewing the evidence in the light most favorable to Peterson,
we determine there are reasonable inferences that Campbell and
the movers wrongfully took Peterson’s property with criminal
intent when they took Peterson’s property under the auspices
of a bailment and when they refused delivery in an attempt to
elicit additional money from Peterson. Such inferences dem-
onstrate the existence of a genuine issue of material fact as
to whether a theft occurred. If a genuine issue of fact exists,
summary judgment may not properly be entered. Cartwright
v. State, 286 Neb. 431, 837 N.W.2d 521 (2013). Therefore, the
district court erred in granting Homesite’s motion for summary
judgment on the breach of contract claim.
2. Summary Judgment
on Bad Faith Claim
Peterson also alleges that the district court erred in entering
summary judgment in Homesite’s favor on his claim for bad
faith. The court granted summary judgment against Peterson
on his bad faith claim for the reason that it had determined
no theft had occurred. Because the finding that there was no
theft was error, it was also error for the court to grant summary
judgment on the bad faith claim.
VI. CONCLUSION
For the foregoing reasons, we reverse the order of the district
court which granted summary judgment in favor of Homesite
on the breach of contract and bad faith claims, and we remand
the cause for further proceedings.
R eversed and remanded for
further proceedings.