Krohn v. Gardner

Boslaugh, J.,

dissenting.

There are several reasons why I believe the majority has reached an incorrect result in this case.

The issues in garnishment proceedings are framed by the application and answer. See Neb. Rev. Stat. § 25-1030 (Reissue 1989). In NC + Hybrids v. Growers Seed Assn., 219 Neb. 296, 300-01, 363 N.W.2d 362, 366 (1985), this court stated:

By the application the garnisher frames the issue: Does the garnishee owe a debt to the judgment debtor or hold property, funds, or credits of a judgment debtor? The answers of the garnishee and the controverted answers or factual allegations in the garnisher’s application constitute the pleading for disposition of the liability issue under § 25-1030.

Farm Bureau Insurance Company of Nebraska, the garnishee, in its answers to the interrogatories, denied that the 1971 Mercury automobile involved in the accident was covered by the insurance policy to Randy Gardner’s father because a judgment in the Pierce County District Court in a declaratory judgment action filed by Gardner had determined there was no coverage, and alleged that the issue was res judicata. In their applications for determination of garnishee liability, the Krohns alleged merely that Farm Bureau did provide coverage for the automobile involved in the accident on October 13, 1983. No factual allegations attacking the Pierce County District Court declaratory judgment were made by the Krohns.

The trial court in the garnishment proceedings found that the *468issue of whether Farm Bureau provided insurance coverage for the 1971 Mercury had been litigated and fully determined in the Pierce County District Court; that that court had determined the policy did not provide coverage for the automobile in question; and that, accordingly, the matter was res judicata. The trial court further found that because Farm Bureau was not indebted to Gardner, it could not be indebted to the Krohns.

Even though Krohns’ pleadings in the garnishment proceedings raised no issue in the trial court as to whether the judgment in the declaratory judgment action was binding on them, all of Krohns’ rights regarding the subject matter of the previous litigation, the insurance policy, were derived through Gardner. The same evidence would determine both causes of action. Accordingly, in the garnishment proceedings in this court, the issue raised by the Krohns ought to be res judicata as to them.

There is a further reason why the judgment of the trial court should be affirmed. The trial court determined the action on the garnishee’s motion for summary judgment.

A summary judgment is proper when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences to be drawn therefrom and that the moving party is entitled to judgment as a matter of law. Neb. Rev. Stat. § 25-1332 (Reissue 1989); Millard v. Hyplains Dressed Beef, 237 Neb. 907, 468 N.W.2d 124 (1991). Since the party moving for summary judgment has the burden of showing that no genuine issue as.to any material fact exists, that party must produce enough evidence to demonstrate his entitlement to a judgment if the evidence were to remain uncontroverted at a trial, after which the burden of producing contrary evidence shifts to the party opposing the motion. Deutsche Credit Corp. v. Hi-Bo Farms, Inc., 224 Neb. 463, 398 N.W.2d 693 (1987).

The only issue before the trial court was whether the Farm Bureau policy provided coverage for the 1971 Mercury involved in the October 13,1983, accident.

The depositions of Merlyn Kuhl and George Morrison show that the Gardner insurance policy with Farm Bureau was due to *469expire on October 24, 1983. On October 12, 1983, Gardner’s father made an application to add the 1971 Mercury to the policy.

Farm Bureau’s underwriting procedures provided that if coverage for another vehicle was to be added to a policy within 30 days of the policy’s expiration date, payment for the next premium period must be made with the application. The policy also provided a 10-day grace period after the expiration date, during which an insured could make the payment for the renewal coverage.

Gardner’s father sent his check for the renewal of the policy with the application on October 12, 1983. However, his check was twice returned for insufficient funds. On November 4, 1983, 1 day after the 10-day grace period had expired, Farm Bureau received a money order from Gardner’s father in the mail. Because the premium was not paid in time, there was no coverage under the policy for the 1971 Mercury on the date of the accident.

No evidence was presented at the hearing on the motion for summary judgment to controvert the fact that there was no coverage under the Farm Bureau insurance policy for the accident with the 1971 Mercury. Accordingly, Gardner had no coverage for the 1971 Mercury under the policy, and the Krohns had no rights against Farm Bureau.

The order sustaining Farm Bureau’s motion for summary judgment was proper, and the judgment should have been affirmed.