Durand v. Western Surety Co.

White, J.,

dissenting.

The opinion of the majority concludes that appellant failed to state sufficient facts to support a cause of action and that there is no reasonable possibility that appellant could amend his petition to correct the deficiency. I disagree and dissent.

In his petition, appellant contends that he is entitled to recover on the bond provided by appellee. Appellant alleges that liability on the bond arises from the fact that the dealer, Daisy Motors, Inc., failed to satisfy “all the provisions of [its] license and the acts of the Legislature relating thereto.” Neb. Rev. Stat. § 60-1419(3) (Reissue 1988). Specifically, appellant argues that Daisy Motors failed to secure workers’ compensation insurance and failed to provide proper tools for the repair of vehicles on the dealer’s premises. As to the allegation regarding proper tools, I agree with the majority’s conclusion. However, I disagree with the majority’s conclusion *654regarding workers’ compensation because I find that appellant may be able to correct the deficiency.

The language of § 60-1419(3) is not so narrow as to necessarily exclude from coverage by the bond the requirements which other laws place on dealers. According to the language of § 60-1419(3), if a dealer violates his particular license, the dealer has violated the provisions of the bond. Additionally, if the dealer violates other legislative acts related to licensing, the dealer has violated the provisions of the bond. Appellant may be able to amend his petition to state facts sufficient to support a cause of action related to the workers’ compensation laws if appellant can demonstrate that the workers’ compensation laws are related to the dealer’s licensing requirements.

I recognize that at the time appellant was injured, the motor vehicle industry licensing act itself did not require that a dealer comply with the workers’ compensation laws. However, the act may not be the only evidence that compliance with the workers’ compensation laws is related to a dealer’s license. For example, the motor vehicle industry licensing act provides for the formation of a Nebraska Motor Vehicle Industry Licensing Board. The act further provides that the board make rules and regulations related to the implementation of the act and that the board regulate the issuance and revocation of licenses. Neb. Rev. Stat. §§ 60-1402, 60-1403, and 60-1415 (Reissue 1988). The record does not include any of the rules and regulations adopted and implemented by the board, and thus I hesitate to eliminate the possibility that such rules have made compliance with other laws, such as the workers’ compensation laws, a condition of attaining or retaining a dealer’s license.

Because I find that there is a reasonable possibility that appellant may be able to correct the deficiency in his petition, I respectfully disagree with the holding of the majority’s opinion. I would reverse the decision of the district court and direct the district court to grant appellant leave to amend his petition.

Lanphier, J., joins in this dissent.