State ex rel. Wagner v. United Nat. Ins. Co.

Henceforth, if a trial court fails to prepare the applicable
worksheets, the parties are required to request that such
worksheet be included in the trial court’s order. Orders for
child support or modification which do not contain such
worksheets will on appeal be summarily remanded to the
trial court so that it can prepare the worksheets as required
by the guidelines. Such requirement is set forth in this
court’s rules.15
[5] Therefore, effective upon the filing of this opinion, the
record on appeal from an order imposing or modifying child
support shall include any applicable worksheets with the trial
court’s order. Failure to include such worksheets in the record
will result in summary remand of the trial court’s order.
CONCLUSION
The cause is remanded with directions that the trial court
prepare an order of modification consistent with this opinion.
R emanded with diRections.
heavican, C.J., participating on briefs.
15 See § 4-203.
state of nebRaska ex Rel . l. tim wagneR, diRectoR of
insuRance of the state of nebRaska , as liquidatoR
of amwest suRety insuRance company, appellant,
v. united national insuRance company
et al ., appellees.
761 N.W.2d 916
Filed March 6, 2009. 	No. S-07-1160.
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. Judgments: Appeal and Error. When reviewing a question of law, an appellate
court reaches a conclusion independent of the lower court’s ruling.
3. Insurance: Contracts. If the terms of an insurance policy are clear and unam-
biguous, then those terms will be enforced.
308 	277 NebraSka repOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

4. ____: ____. Insurance contracts, like other contracts, are to be construed accord-
ing to the sense and meaning of the terms which the parties have used. If the
terms of the contract are clear and unambiguous, they are to be taken and under-
stood in their plain, ordinary, and popular sense.
5. Contracts: Public Policy. It is not the province of courts to emasculate the lib-
erty of contract by enabling parties to escape their contractual obligations on the
pretext of public policy unless the preservation of the public welfare imperatively
so demands.
6. Contracts. Unless the case is one that is free from doubt, the respective par-
ties to a contract bear risks that the conditions under which the contract was
entered will change and become less favorable to them over the course of the
contract’s term.
appeal from the District Court for Lancaster County: John
a. colboRn, Judge. affirmed.
robert L. Nefsky, John H. binning, and Jane F. Langan, of
rembolt Ludtke, L.L.p., and Mark I. Wallach and Matthew M.
Mendoza, of Calfee, Halter & Griswold, L.L.p., for appellant.
Jerald L. rauterkus, of erickson & Sederstrom, p.C., and, of
Counsel, Michael p. Comiskey and Hugh S. balsam, of Locke,
Lord, bissell & Liddell, L.L.p., for appellee United National
Insurance Company.
kevin J. Schneider and Travis p. O’Gorman, of Cline,
Williams, Wright, Johnson & Oldfather, L.L.p., and r. Douglas
rees and Lauren N. pierce, of Cooper & Scully, p.C., for
appellee General agents Insurance Company of america, Inc.
heavican, 	c.J., 	connolly, 	stephan, 	mccoRmack , 	and
milleR-leRman, JJ.
heavican, c.J.
INTrODUCTION
L. Tim Wagner, acting as liquidator, appeals the order of
the Lancaster County District Court granting summary judg-
ment to United National Insurance Company (United National)
and General agents Insurance Company of america, Inc.
(GaINSCO). The liquidator was acting pursuant to the author-
ity granted him under the Nebraska Insurers Supervision,
rehabilitation, and Liquidation act, Neb. rev. Stat. § 44-4801
STaTe ex reL. WaGNer v. UNITeD NaT. INS. CO. 	309
Cite as 277 Neb. 308

et seq. (reissue 1998) (Liquidation act), on behalf of the insol-
vent insurance company, amwest Surety Insurance Company
(amwest). The district court found that a regulatory exclusion
within the United National and GaINSCO insurance policies
applied to amwest and the liquidator, and granted summary
judgment to the insurance companies. The liquidator claims
the regulatory exclusions contained in the policies do not apply
to the liquidator in his statutory capacity and that, in any case,
the exclusion is void as against public policy. We find the regu-
latory exclusion does apply and is not void as against public
policy. We therefore affirm.
baCkGrOUND
amwest is an insolvent Nebraska insurance company in
liquidation pursuant to the Liquidation act. The Director of
Insurance was appointed to serve as liquidator for amwest
under § 44-4818(1). amwest’s headquarters were previously
located in Calabasas, California, and it is a wholly owned
subsidiary of amwest Insurance Group, Inc., a Delaware cor-
poration. United National is a pennsylvania corporation with
its place of business in pennsylvania, but is licensed to sell,
and has sold, insurance in the State of Nebraska. GaINSCO is
an Oklahoma corporation with its principal place of business
located in Texas. GaINSCO is also engaged in the business
of insurance and is licensed to sell, and has sold, insurance in
Nebraska. GaINSCO has since been dismissed from the action,
however, and Wagner has since died and has been replaced by
his successor in office, ann Frohman. (For simplicity, when
referring to the actions of the director while serving as liquida-
tor, we will use the term “the liquidator.”)
amwest purchased a “Directors, Officers and Corporate
Liability” 	(D&O) 	insurance 	policy 	from 	National 	Union
Fire 	Insurance 	Company 	(National 	Union) 	of 	pittsburgh,
pennsylvania, on September 30, 1999. amwest also purchased
D&O policies from United National and GaINSCO. The United
National policy was in excess to the National Union policy, and
the GaINSCO policy was in excess to both policies. each
supplemental policy carried a limit of $5 million.
310 	277 NebraSka repOrTS

The liquidator filed this action against the insurance com-
panies on January 26, 2006. This action is closely related to the
liquidator’s separate lawsuit against the directors and officers
of amwest. The liquidator has alleged that amwest became
insolvent through the wrongful conduct and breach of multiple
fiduciary duties of its officers and directors. The liquidator
brought the action to request that the district court invalidate
the regulatory exclusions contained in both the United National
and GaINSCO policies. The United National regulatory exclu-
sion provides:
This policy does not apply to any Claims brought
by or on behalf of, any insurance regulatory agency or
supervisory authority including but not limited to any
state or local insurance department or Commission, or
any state or local Insurance Guaranty or Insolvency Fund
(any of the foregoing organizations hereafter referred to
as an “agency”), including any type of legal or equitable
action which such agency has the legal right to bring
as receiver, conservator, liquidator or assignee of the
insured, its security/unit holders or its creditors, or other-
wise; whether such action or proceeding is brought in the
name of such agency or by or on behalf of such agency
in the name of any other entity(ies) or solely in the name
of any third entity(ies).
The district court found that the regulatory exclusion applied
to the liquidator and was not void as against public policy and
granted summary judgment to United National and GaINSCO.
The liquidator appeals.
aSSIGNMeNTS OF errOr
The liquidator assigns that the district court erred in (1) find-
ing that the regulatory exclusion applied to the liquidator and
(2) failing to hold that the regulatory exclusion was void as
against public policy.
STaNDarD OF reVIeW
[1] 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
STaTe ex reL. WaGNer v. UNITeD NaT. INS. CO. 	311
Cite as 277 Neb. 308

drawn from those facts and that the moving party is entitled to
judgment as a matter of law.1
[2] When reviewing a question of law, an appellate court
reaches a conclusion independent of the lower court’s ruling.2
aNaLYSIS
R egulatoRy exclusion applies
to liquidatoR
We first address the argument that the regulatory exclusion
in the policy does not apply to the liquidator. essentially,
the liquidator argues that the position of liquidator cannot
be considered as an “‘agency, authority, department, fund,
or organization’” under the regulatory exclusion.3 United
National argues that because the Director of Insurance is the
liquidator, the liquidator is a “‘supervisory authority’” under
the regulatory exclusion.4 The liquidator claims that the role
of liquidator is legally separate from the role of Director of
Insurance and that the liquidator is an officer of the court
and is under the authority of the court. For that reason,
the liquidator claims he cannot be considered as either an
“‘agency’” or an “‘authority.’”5 We do not find this argu-
ment persuasive.
Section 44-4818(1) provides that the Director of Insurance
and his or her successors in office shall be appointed as liq-
uidator of an insolvent domestic insurance company. The liq-
uidator is granted statutory authority to act under § 44-4821.
The statute states that “[t]he liquidator shall have the power”
to (among other things) appoint a special deputy to act for
him or her, employ various personnel and experts as nec-
essary, appoint an advisory committee with approval from
the court, fix compensation for employees, pay reasonable
1 Hughes v. Omaha Pub. Power Dist., 274 Neb. 13, 735 N.W.2d 793
(2007).
2 Eggers v. Rittscher, 247 Neb. 648, 529 N.W.2d 741 (1995).
3 brief for appellant at 14.
4 brief for appellee United National at 13.
5 brief for appellant at 14.
312 	277 NebraSka repOrTS

compensation, hold hearings, audit books and records, and
collect debts and money.
The language of United National’s regulatory exclusion spe-
cifically precludes
any type of legal or equitable action which such agency
has the legal right to bring as receiver, conservator, liqui-
dator or assignee of the insured . . . whether such action
or proceeding is brought in the name of such agency or
by or on behalf of such agency in the name of any other
entity(ies) or solely in the name of any third entity(ies).
(emphasis supplied.)
The district court pointed out in its order that while the roles
of liquidator and director are not identical, “the Director while
serving as Liquidator still carries out regulatory and supervi-
sory functions in an effort to oversee the business of insurance
in Nebraska.” The language of the regulatory exclusion clearly
applies to the liquidator in this case.
[3,4] We have previously held that if the terms of an insur-
ance policy are clear and unambiguous, then those terms will
be enforced.6 and insurance contracts, like other contracts,
are to be construed according to the sense and meaning of the
terms which the parties have used. If the terms of the contract
are clear and unambiguous, they are to be taken and under-
stood in their plain, ordinary, and popular sense.7 We find
that the plain language of the regulatory exclusion applies to
the liquidator.
R egulatoRy exclusion is not void
as against public policy
We next turn to the liquidator’s argument that the district
court erred when it failed to invalidate the regulatory exclusion
as against public policy. The liquidator argues that because
§ 44-4821 grants the liquidator the right to enforce all the
rights, remedies, and powers of any insured, creditor, or share-
holder, the regulatory exclusion is in direct conflict with the
provisions of the Liquidation act. The liquidator also argues
6 See Fokken v. Steichen, 274 Neb. 743, 744 N.W.2d 34 (2008).
7 Id.
STaTe ex reL. WaGNer v. UNITeD NaT. INS. CO. 	313
Cite as 277 Neb. 308

that the regulatory exclusion is against public policy, because
the exclusion blocks the liquidator’s ability to carry out his or
her statutory duties.
The 	liquidator 	cites 	§ 	44-4821(1)(h) 	and 	(u). 	Section
44-4821(1)(h) grants the liquidator the power “[t]o collect
all debts and money due and claims belonging to the insurer,
wherever located . . . .” The power to collect debts was granted
for three express purposes: “[t]o institute timely action in other
jurisdictions . . . [t]o do such other acts as are necessary or
expedient to collect, conserve, or protect its assets or property
. . . and . . . [t]o pursue any creditor’s remedies available to
enforce his or her claims.”8 Section 44-4821(1)(u) grants the
liquidator the power “[t]o exercise and enforce all the rights,
remedies, and powers of any insured, creditor, shareholder, or
member, including any power to avoid any transfer or lien that
may be given by the general law . . . .”
There is no direct conflict between the statutory provi-
sions and the regulatory exclusion. The liquidator argues that
the statute grants the liquidator any remedies available to an
insured, creditor, shareholder, or member and that the regula-
tory exclusion strips one of those remedies from the liquidator.
The regulatory exclusion does not conflict with the statute,
because under the terms of the policy, the liquidator may
still have a claim against the personal assets of the directors
and officers.
[5,6] We have continuously upheld the freedom to contract.9
We have also stated that “‘“[i]t is not the province of courts
to emasculate the liberty of contract by enabling parties to
escape their contractual obligations on the pretext of public
policy unless the preservation of the public welfare impera-
tively so demands.”’”10 Unless the case is one that is free from
8 § 44-4821(1)(h)(i) to (iii).
9 Parkert v. Lindquist, 269 Neb. 394, 693 N.W.2d 529 (2005); American
Fam. Mut. Ins. Co. v. Hadley, 264 Neb. 435, 648 N.W.2d 769 (2002);
Hood v. AAA Motor Club Ins. Assn., 259 Neb. 63, 607 N.W.2d 814 (2000);
OB-GYN v. Blue Cross, 219 Neb. 199, 361 N.W.2d 550 (1985).
10 OB-GYN, supra note 9, 219 Neb. at 204, 361 N.W.2d at 554, quoting E. K.
Buck Retail Stores v. Harkert, 157 Neb. 867, 62 N.W.2d 288 (1954).
314 	277 NebraSka repOrTS

doubt, “[t]he respective parties to a contract bear risks that the
conditions under which the contract was entered will change
and become less favorable to them over the course of the
contract’s term.”11
The liquidator, as Director of Insurance, approved, or did
not disapprove, a significant number of exclusions like the one
involved in this case. In his deposition, the liquidator conceded
there is no stated public policy addressing regulatory exclu-
sions in Nebraska. and the district court pointed out that in
Nebraska, “it is the Director of Insurance’s duty to approve
or disapprove insurance policies based on their conformance
with public policy and the provisions and intent of the law
in Nebraska.”
although we have said that the sole fact that the Department
of Insurance approves a policy is not determinative,12 the liq-
uidator, as director, admitted he was unaware of a clear public
policy prohibiting regulatory exclusions. Furthermore, there
is no statutory requirement that an insurance company carry
D&O coverage. Upholding the regulatory exclusion does not
violate any clearly articulated public policy in Nebraska, but
voiding the provision would undermine our policy support-
ing freedom to contract. We therefore find that the regula-
tory exclusion does not violate public policy, and we find
that the liquidator is barred from recovery under the regula-
tory provision.
CONCLUSION
The plain language of the regulatory provision applies to
the liquidator, and the regulatory exclusion does not violate
a clearly articulated public policy. We therefore affirm the
decision of the district court granting summary judgment to
United National.
affiRmed.
geRRaRd, J., participating on briefs.
wRight, J., not participating.
11 Jeffrey Lake Dev. v. Central Neb. Pub. Power, 262 Neb. 515, 523, 633
N.W.2d 102, 109 (2001).
12 Rawlings v. Amco Ins. Co., 231 Neb. 874, 438 N.W.2d 769 (1989).
STaTe ex reL. WaGNer v. UNITeD NaT. INS. CO. 	315
Cite as 277 Neb. 308