dissenting.
I find that I cannot join in the result reached by my colleagues. On the face of the two insurance policies involved, both German Mutual and Federated provided coverage for the damage to the Von Seggem tractor caused by vandalism while it was in the possession of West Point. Both policies have “other insurance” clauses, but the majority declines to address the consequence of those mutually repugnant other insurance clauses and instead concludes that the demurrer was properly sustained by the trial court because this is a direct action against an insurer which is not authorized in Nebraska law.
I believe that the policy behind the no direct action against an insurer rule, except in limited circumstances, is consistent with our longstanding notion that juries not be informed via the evidence of the existence of liability insurance. See Patterson v. Swarr, May, Smith & Anderson, 238 Neb. 911, 473 N.W.2d 94 (1991). The premise behind that rule has been the fear that a jury will award excessive damages if it knows it is an insurance company that is writing the check to the injured plaintiff.
In the instant case, none of the dangers are present which preclude mention of insurance and, by logical extension, would provide a logical underpinning for the notion that the petition is demurrable because it is a direct action against an insurance company. Federated and German Mutual, by the terms of their policies standing alone, are liable to Von Seggem for the dam*1069age to the tractor by vandalism while in the possession of West Point. German Mutual stepped forward and paid its insured, and it now seeks reimbursement from West Point’s insurer, Federated.
It has long been the law of Nebraska that an action be brought in the name of the real party in interest, which is the person or entity entitled to the avails of the action. Gerner v. Church, 43 Neb. 690, 62 N.W. 51 (1895). Thus, since German Mutual paid the full damages to Von Seggem, Von Seggem is precluded from being the real party in interest. The basis for reimbursement from Federated is the insurance contract between Federated and West Point, despite the fact that the petition alludes to negligence on the part of West Point. See Security Inv. Co. v. State, 231 Neb. 536, 437 N.W.2d 439 (1989) (court must examine and construe petition’s essential and factual allegations by which plaintiff requests relief, rather than legal terminology utilized in petition to form pleading).
For these reasons, I believe that under the unique facts presented here, the prohibition against direct actions against liability insurance carriers does not make German Mutual’s action against Federated demurrable. Therefore, I would reverse.