Appleby v. Andreasen

lee appleby, peRsonal R epResentative of the estate
of opal shepaRd, deceased, appellant, v.
stanley andReasen and new yoRk life
insuRance /new yoRk life insuRance
and annuity company, appellees.
758 N.W.2d 615
Filed December 19, 2008. 	No. S-07-780.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose 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.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Summary Judgment: Proof. A party moving for summary judgment must make
a prima facie case by producing enough evidence to demonstrate that the movant
is entitled to judgment if the evidence were uncontroverted at trial.
4. ____: ____. Once the moving party makes a prima facie case, 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.
Appeal from the District Court for Burt County: daRvid d.
Q uist, Judge. Affirmed.
gail E. Boliver, of Boliver Law Firm, for appellant.
kevin r. mcmanaman and Jocelyn W. golden, of knudsen,
Berkheimer, richardson & Endacott, L.L.p., and Joseph A.
Wilkins, of Heinisch Law Office, for appellees.
heavican, c.J., wRiGht, connolly, G eRRaRd, mccoRmack ,
and milleR-leRman, JJ.
milleR-leRman, J.
NAtUrE OF CASE
Opal Shepard filed an action against Stanley Andreasen
and New york Life Insurance/New york Life Insurance and
Annuity Company (New york Life) asserting various causes of
action premised on her allegation that Andreasen and New york
Life gave her improper financial advice regarding multiple life
926 	276 NEBrASkA rEpOrtS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

insurance products. the district court for Burt County granted
summary judgment in favor of Andreasen and New york Life
on various bases, including its determinations that Shepard’s
claims were previously disposed of in a national class action
and that Shepard had failed to submit evidence preventing
judgment in favor of Andreasen and New york Life. Shepard
appeals the summary judgment.
We note that this court was informed that Shepard died after
this appeal was filed. We granted a motion to substitute the
estate of Opal Shepard, by the personal representative, Lee
Appleby, as the plaintiff-appellant in this case. Hereinafter, we
use “Shepard” to refer to both Opal Shepard and the estate.
Because we conclude that the settlement in the class action
released Andreasen and New york Life from liability on
Shepard’s claims and that Shepard failed to introduce evidence
to the contrary, we affirm the summary judgment in favor of
Andreasen and New york Life.
StAtEmENt OF FACtS
In 1987, when she was 72 years old and a widow living in
Oakland, Nebraska, Shepard met with Andreasen, a general
agent for New york Life who was licensed to sell both insur-
ance and securities. Over the following years, Andreasen sold
Shepard various life insurance policies, as well as shares of
various mutual funds and other investment products.
On April 11, 2005, Shepard filed the present action against
Andreasen 	and 	New 	york 	Life, 	generally 	asserting 	that
Andreasen misrepresented certain facts and improperly advised
her that certain life insurance products were suitable invest-
ments for her. In her complaint, Shepard asserted various
causes of action and theories of recovery, including negligence,
breach of fiduciary duty, misrepresentation, negligent misrep-
resentation, negligent supervision, and breach of contract. She
generally alleged that Andreasen and New york Life failed to
give her proper financial advice concerning the investment of
her resources and, in particular, that they recommended pur-
chases and sales of multiple insurance products which caused
her to incur significant losses. Shepard sought compensation
for her losses.
AppLEBy v. ANDrEASEN 	927
Cite as 276 Neb. 926

Andreasen and New york Life answered and generally denied
most of Shepard’s allegations. they also asserted affirmative
defenses, including statutes of limitations and laches.
On march 15, 2007, Andreasen and New york Life moved for
summary judgment on the bases of (1) class action preclusion,
(2) statutes of limitations, and (3) lack of evidence to support
Shepard’s claims. With regard to class action preclusion, they
asserted that Shepard’s claims against them had already been
litigated and resolved pursuant to a nationwide class action in
Willson v. New York Life Ins. Co., No. 94/127804, 1995 N.y.
misc. LExIS 652 (N.y. Sup. Nov. 8, 1995) (Willson). With
regard to statutes of limitations, Andreasen and New york Life
asserted that Shepard’s claims were premised on 15 life insur-
ance policies purchased from 1987 through 1992, 12 of which
were surrendered or canceled between 1993 and 1997. they
argued that Shepard’s action filed in 2005 was barred by the
applicable statutes of limitations.
A 	hearing 	on 	the 	motion 	for 	summary 	judgment 	was
held April 16, 2007. the court received evidence offered by
Andreasen and New york Life in support of their motion,
including a letter from Shepard’s counsel clarifying and list-
ing the policies that were the subject of Shepard’s claims. the
evidence also included the affidavit of a New york Life officer
setting forth, inter alia, the policy date and type of insurance
plan for each of the policies listed. the affidavit indicated that
each of the policies was issued in the period from 1987 through
1992. the affidavit further indicated that a class notice regard-
ing the Willson class action had been mailed to Shepard and
that the class notice applied to all the policies listed by Shepard.
the undisputed affidavit states that Shepard did not opt out of
the class action. the affidavit finally indicated that a postsettle-
ment notice inclusive of election forms had been mailed to
Shepard in connection with the class action. Andreasen and
New york Life’s evidence also included the affidavit of counsel
for New york Life regarding the history and settlement of the
Willson class action. Attached to the counsel’s affidavit were
documents related to the Willson action, including a copy of
the class notice, which indicated that the class included those
who owned whole life policies and universal life policies,
928 	276 NEBrASkA rEpOrtS

including target life policies, issued by New york Life during
the period from January 1, 1982, through December 31, 1994.
the attachments also indicated that in the settlement agreement
in the Willson action, the class members agreed to release and
discharge New york Life and its agents from various types of
claims arising from the issuance of policies included in the
class action.
the court also received evidence offered by Shepard in
opposition to the summary judgment, including Andreasen’s
deposition. In the deposition, Andreasen described his deal-
ings 	with 	Shepard. 	Shepard’s 	evidence 	also 	included 	an
unsworn, unsigned letter by a self-described “expert,” who
opined that Andreasen and New york Life breached certain
duties owed to Shepard “by mischaracterizing life insurance
as an investment and repeatedly selling it to her instead of
more appropriate investments.” the record of the summary
judgment hearing contains mention of a deposition given by
Shepard; however, Shepard’s deposition was not offered into
evidence at the summary judgment hearing and is not in the
record on appeal.
the district court granted the motion for summary judg-
ment on all three bases asserted by Andreasen and New york
Life. the court first concluded that “all of [Shepard’s] claims
were previously disposed of in a nationwide class action
rendering the claims res judicata, released, and enjoined by
the prior court.” the court determined that all of Shepard’s
claims in this action related to claims previously adjudicated
and resolved in Willson and that Shepard’s claims were pre-
cluded by the release of claims in the Willson settlement and
final judgment and the New york court’s permanent injunction
against lawsuits such as Shepard’s. the court next concluded
that all of Shepard’s claims were barred by the applicable
statutes of limitations and the doctrine of laches. the court
determined that Shepard’s claims accrued when she purchased
life insurance policies between 1987 and 1992 and that there-
fore her claims were barred by 4-year statutes of limitations
under Neb. rev. Stat. §§ 25-206 and 25-207 (reissue 1995).
Finally, the court concluded that Andreasen and New york
Life were entitled to summary judgment because Shepard “has
AppLEBy v. ANDrEASEN 	929
Cite as 276 Neb. 926

not submitted any evidence that show[s] Defendants breached
a duty owed to” Shepard. the court therefore granted the
motion for summary judgment and dismissed Shepard’s claims
with prejudice.
Shepard appeals.
ASSIgNmENtS OF ErrOr
Shepard asserts that the district court erred in granting sum-
mary judgment and dismissing her complaint (1) based on the
class action settlement when material facts were in dispute
concerning conduct outside the class period, (2) based on stat-
ute of limitations grounds when material facts were in dispute
concerning the accrual of her claims, and (3) based on a “fail-
ure of proof.”
StANDArDS OF rEVIEW
[1,2] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose 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. Builders Supply Co. v. Czerwinski,
275 Neb. 622, 748 N.W.2d 645 (2008). In reviewing a sum-
mary judgment, an appellate court views the evidence in a
light most favorable to the party against whom the judgment is
granted and gives such party the benefit of all reasonable infer-
ences deducible from the evidence. Id.
ANALySIS
The Willson Settlement Releases Andreasen and New York
Life From Liability on the Claims Asserted by Shepard,
and Shepard Failed to Offer Evidence to Support
Claims Not Covered by the Release.
Shepard asserts that the district court erred by granting sum-
mary judgment based on its conclusion that the class action
settlement in Willson released Andreasen and New york Life
from liability on all of the claims asserted by Shepard in this
case. Shepard argues that her claims encompass misconduct
that occurred after the period covered by the class action. Even
giving Shepard the favorable inferences from the evidence,
we conclude that Shepard failed to present evidence at the
930 	276 NEBrASkA rEpOrtS

summary judgment hearing of conduct or representations that
were not covered by the class action.
We note first that other courts have found certain tort claims
against New york Life and its agents to be encompassed within
and thus barred by the settlement in Willson. See, Manji v.
New York Life Ins. Co., 945 F. Supp. 919 (D.S.C. 1996); New
York Life Ins. Co. v. Robinson, 735 So. 2d 463 (Ala. 1999).
In Manji, the federal District Court for the District of South
Carolina determined that the plaintiffs’ claims were identi-
cal to claims in the Willson class action and that because the
plaintiffs did not opt out of the Willson class, the final judg-
ment in Willson was res judicata as to the plaintiffs’ action in
federal district court. In Robinson, the Alabama Supreme Court
noted that
the Willson Stipulation of Settlement released New york
Life and its agents from liability for claims “connected
with, arising out of, or related to, in whole or in part, . . .
representations allegedly made . . . relating to: . . . the fact
that the policies were or were not life insurance . . . [or]
whether the policies were, would operate or could func-
tion as an Investment plan.”
735 So. 2d at 467. the court in Robinson rejected the plain-
tiffs’ argument that their misrepresentation claims fell outside
the scope of the settlement agreement. By contrast, in New
York Life Ins. Co. v. Griffin, 794 So. 2d 1072 (Ala. 2001), the
Alabama Supreme Court determined that although certain of
the plaintiff’s claims were precluded by the Willson settle-
ment, other claims of fraud concerning a replacement policy
issued after the period covered by the Willson settlement,
regardless of their merit, were not necessarily precluded by
the Willson settlement and, on the record, not suitable for sum-
mary judgment.
the district court in the present case found that all of
Shepard’s claims were encompassed within the Willson settle-
ment. the court’s determination was based on the list of poli-
cies that Shepard identified as being at issue in this case and
evidence provided by Andreasen and New york Life that all
the policies listed by Shepard were of the type covered by the
class action and were issued during the time period covered
AppLEBy v. ANDrEASEN 	931
Cite as 276 Neb. 926

by the class action. Shepard’s claims were all generally based
on allegations that Andreasen advised her that purchasing the
life insurance policies would be a good investment plan for
her. As noted in Robinson, supra, the settlement in Willson
releases New york Life and its agents from claims based on
such representations with regard to policies covered by the
class action.
On appeal, Shepard does not dispute that the Willson settle-
ment releases New york Life and Andreasen to the extent her
claims relate to policies issued during the time period covered
by the class action. Instead, Shepard argues on appeal that
her lawsuit is intended to encompass additional claims related
to activity subsequent to the class action period. We note in
this regard that while at the trial level Shepard listed several
policies that were the subject of her claims, on appeal, she
argues that there was activity outside the class period with
respect to only three of the policies. Shepard does not dispute
the district court’s findings that she was covered by the class
action and that she failed to opt out of the class action. thus,
to the extent Shepard’s claims relate to policies issued during
the class period and to representations Andreasen and New
york Life made in selling those policies, Shepard does not dis-
pute the district court’s finding that Andreasen and New york
Life were released from such claims, and we find no error in
such finding.
Shepard argues on appeal that there was misconduct with
respect to three of the policies after the end of the period cov-
ered by the Willson class action and that Andreasen and New
york Life were not released from liability to the extent her
claims relate to such alleged misconduct. Shepard concedes
that each of the three policies was “sold and incurred initial
premium costs within the class period” of Willson, which ran
from January 1, 1982, through December 31, 1994. Brief for
appellant at 17. However, because the three policies remained
in effect after December 31, 1994, Shepard argues in her brief
that when she paid additional premiums in 1995 and succeed-
ing years, “additional new money was ‘invested’ in each of
these ‘investments’ (life insurance contracts) based upon the
recommendations of” Andreasen and New york Life. Id.
932 	276 NEBrASkA rEpOrtS

Although not articulated as such, it appears that Shepard’s
argument is based on an analogy to the “continuing invest-
ment doctrine” which has been applied to statute of limitations
questions in federal securities cases. See In re Prudential Ins.
Co. of America Sales Prac., 975 F. Supp. 584 (D.N.J. 1996).
See, also, Lampf v. Gilbertson, 501 U.S. 350, 111 S. Ct. 2773,
115 L. Ed. 2d 321 (1991) (considering statutes of limitations
in securities actions). We believe the continuing investment
concept is helpful in the present context. As stated by the court
in In re Prudential Ins. Co. of America Sales Prac., under the
continuing investment doctrine, “investors who make periodic
discretionary payments are held to make a new investment
decision, and enter a new investment transaction, with each
payment.” 975 F. Supp. at 604 n.15. However, the court spe-
cifically held that even applying the continuing investment
doctrine, “plaintiffs must also tie such payments to a mis-
representation or omission occurring within [the limitations]
period.” Id.
Shepard’s argument in this case appears to be similar to the
continuing investment doctrine, in that she argues that when
she made premium payments on policies after December 31,
1994, or when the proceeds of other policies were used to
make such payments, she was making a new “investment” and
that therefore a new claim had arisen. Even assuming such
premium payments are new investments, Shepard must by a
showing of evidence tie new investment decisions to miscon-
duct or misrepresentations made after December 31, 1994,
in order to establish new claims arising outside the Willson
class period.
[3,4] A party moving for summary judgment must make a
prima facie case by producing enough evidence to demonstrate
that the movant is entitled to judgment if the evidence were
uncontroverted at trial. Builders Supply Co. v. Czerwinski, 275
Neb. 622, 748 N.W.2d 645 (2008). Once the moving party
makes a prima facie case, 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. Andreasen and New york Life presented evidence
in support of their motion for summary judgment which, if
AppLEBy v. ANDrEASEN 	933
Cite as 276 Neb. 926

unrefuted, entitled them to judgment as a matter of law. We
have examined the record, and we determine that Shepard
thereafter failed to meet her burden.
the evidence Shepard offered in opposition to summary
judgment does not support an assertion that Andreasen and
New york Life made new misrepresentations after the Willson
class period. Shepard’s evidence of claimed new investments
after December 31, 1994, mainly consisted of a chart which
showed that as a factual matter, premiums continued to be
paid on certain policies, and that proceeds of other policies
were used to fund money market accounts from which such
premiums were paid. However, Shepard offered no evidence
that Andreasen or New york Life made new misrepresentations
regarding the nature of these transactions after December 31,
1994. Shepard offered Andreasen’s deposition, in which he tes-
tified generally about investment advice he had given Shepard.
the deposition does not indicate when advice regarding the
policies was given, and the deposition does not indicate, even
giving Shepard favorable inferences, that it was given after the
class period.
For completeness, we note that there is reference in the
record to the existence of a deposition of Shepard which may
or may not relate to the errors assigned on appeal. However,
Shepard’s deposition was not offered into evidence at the sum-
mary judgment hearing and thus is not part of the record on
appeal. Because the deposition was not offered at the hearing,
it cannot be considered by this court on appeal. See, Zannini
v. Ameritrade Holding Corp., 266 Neb. 492, 667 N.W.2d 222
(2003); Altaffer v. Majestic Roofing, 263 Neb. 518, 641 N.W.2d
34 (2002). In addition, we notice that there is also an unsworn,
unsigned letter by a self-described expert in the record. this
document is not a pleading, deposition, admission, or affidavit
and, accordingly, is of no effect in the proper consideration of
a summary judgment motion. See, Neb. rev. Stat. § 25-1332
(Cum. Supp. 2006); Kulhanek v. Union Pacific RR., 8 Neb.
App. 564, 598 N.W.2d 67 (1999).
In summary, Shepard does not argue that the district court
erred 	in 	concluding 	that 	the 	Willson 	settlement 	released
Andreasen and New york Life from liability to the extent her
934 	276 NEBrASkA rEpOrtS

claims related to policies issued and misrepresentations made
during the period covered by the class action. Instead, Shepard
argues that Andreasen and New york Life were not released
from liability on her claims to the extent that her claims related
to misconduct or misrepresentation after the period covered by
the class action. However, Shepard offered no evidence at the
summary judgment hearing to support an assertion that specific
misconduct occurred or misrepresentations were made after
December 31, 1994. We therefore conclude that the district
court did not err in determining that the Willson settlement
released Andreasen and New york Life from liability on the
entirety of Shepard’s claims in this action and in granting sum-
mary judgment on such basis.
Other Assignments of Error Need Not Be Considered.
In addition to concluding that the Willson settlement released
Andreasen and New york Life from liability on Shepard’s
claims, the district court also concluded that her claims were
barred by the statute of limitations and the doctrine of laches
and that Andreasen and New york Life were entitled to sum-
mary judgment because Shepard “has not submitted any evi-
dence that show[s] Defendants breached a duty owed to”
Shepard. Shepard assigns error on appeal to such additional
conclusions. We determined above that the district court did
not err in granting summary judgment as to all of Shepard’s
claims based on the release and preclusive effect provided by
the Willson settlement. Because such determination was suf-
ficient to justify the district court’s granting of summary judg-
ment in favor of Andreasen and New york Life, we need not
consider Shepard’s assignments of error relating to the other
bases the district court added to support its decision.
CONCLUSION
Andreasen and New york Life offered evidence that they
were released from liability on Shepard’s claims because of the
Willson settlement, which entitled them to judgment. Shepard
failed to present evidence supporting her allegation that her
claims encompassed activity not covered by the Willson release.
We conclude the district court did not err in granting summary
AppLEBy v. ANDrEASEN 	935
Cite as 276 Neb. 926

judgment in favor of Andreasen and New york Life, and we,
therefore, affirm.
affiRmed.
stephan, J., not participating.
doRothy m. loves , appellant, v. woRld insuRance
company, a nebRaska coRpoRation, appellee .
758 N.W.2d 640
Filed December 19, 2008. 	No. S-07-1067.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose 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.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment was granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. ____: ____. When cross-motions for summary judgment have been ruled upon
by the district court, the appellate court may determine the controversy that is
the subject of those motions or may make an order specifying the facts that
appear without substantial controversy and direct such further proceedings as it
deems just.
4. Statutes: Appeal and Error. Statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
5. Statutes. In the absence of a statutory indication to the contrary, words in a stat-
ute will be given their ordinary meaning.
6. Employer and Employee: Wages: Termination of Employment. the Nebraska
Wage payment and Collection Act does not prohibit an employer from provid-
ing a sick leave benefit which may be used only in the event of illness or injury
and which has no monetary value upon termination of employment if it is not
so used.
Appeal from the District Court for Douglas County: John d.
haRtiGan, JR., Judge. Affirmed.
Steven J. riekes and Howard N. Epstein, of marks, Clare &
richards, L.L.C., for appellant.
mary kay O’Connor and pamela Epp Olsen, of Cline,
Williams, Wright, Johnson & Oldfather, L.L.p., for appellee.
936 	276 NEBrASkA rEpOrtS