277 Neb. 757•Harvey v. Nebraska Life & Health Ins. Guar. Assn.
Gesamter Gesetzestext
None of these statutes are applicable to the records in this case, however, for the same reasons that HIPAA does not apply. Sections 27-504(3), 71-961, and 83-109 all deal with medical records or patient histories. As already stated, we find that the records requested by ACHS are records of deaths, and § 84-712.05(2) specifically allows release of “records of births and deaths.” Because we have found that these records are records of deaths, they are not prohibited from release under § 27-504(3), § 71-961, or § 83-109. CONCLUSION Although HIPAA prevents the release of individually identi- fiable medical information, it also provides for release of infor- mation when required by state law. Nebraska’s public records statutes require that medical records be kept confidential, but exempt birth and death records from that requirement. Our pri- vacy laws also apply to medical records and patient histories, but not to records of deaths. The records sought by ACHS are records of deaths and therefore are public records. Kinyoun is hereby ordered to release the information under the public records statutes. Writ of mandamus granted. miller-lerman, J., participating on briefs. Wright, J., not participating. tex r. harvey et al ., appellants and cross -appellees , v. nebraska life and health insurance guaranty association, appellee and cross -appellant. 765 N.W.2d 206 Filed May 15, 2009. No. S-08-520. 1. Summary Judgment. Summary judgment is proper if the pleadings and admis- sible evidence offered at the hearing show that there is no genuine issue as to any material facts 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 the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence. HArvey v. NeBrASKA LIFe & HeALTH INS. gUAr. ASSN. 757 Cite as 277 Neb. 757 Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 11/01/2026 04:51 AM CST
3. Statutes. The meaning of a statute is a question of law. 4. Judgments: Appeal and Error. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. 5. Statutes: Legislature: Intent. When asked to interpret a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascer- tained from the entire language of the statute considered in its plain, ordinary, and popular sense. 6. ____: ____: ____. To determine the legislative intent of a statute, a court gener- ally considers the subject matter of the whole act, as well as the particular topic of the statute containing the questioned language. 7. Judgments: Appeal and Error. Where the record adequately demonstrates that the decision of the trial court is correct, although such correctness is based on a ground or reason different from that assigned by the trial court, an appellate court will affirm. Appeal from the District Court for Lancaster County: Jodi nelson, Judge. Affirmed. David D. Begley, P.C., L.L.O., for appellants. Shawn D. renner, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for appellee. Steven D. Davidson, of Baird Holm, L.L.P., J. Brett Busby and David T. McDowell, of Bracewell & giuliani, L.L.P., and Lisa Tate for amicus curiae American Council of Life Insurers. Timothy r. engler, of Harding & Shultz, P.C., L.L.O., and, of Counsel, Charles T. richardson and Scott D. Himsel, of Baker & Daniels, L.L.P., and William P. O’Sullivan for amicus curiae National Organization of Life and Health Insurance guaranty Associations. heavican, c.J., connolly, gerrard, stephan, and mccormack, JJ. gerrard, J. Future First Financial group, Inc. (Future First), was a broker of viatical settlements. viatical settlements are the sale or assignment of either the death benefit or ownership or any portion of the insurance policy or certificate of insurance.1 1 Neb. rev. Stat. § 44-1102(14) (reissue 2004). 758 277 NeBrASKA rePOrTS
each of the named plaintiffs-appellants (hereinafter plaintiffs) invested in viatical settlements from Future First by enter- ing into purchase request agreements (PrA’s). Although the PrA’s required plaintiffs to be named as life insurance pol- icy beneficiaries, Future First failed to do so. The Florida Department of Insurance revoked Future First’s viatical settle- ment provider license, and Future First was placed into judi- cial conservatorship. Plaintiffs filed this declaratory judgment action seeking a declaration of the rights of the parties regarding liability arising from the PrA’s. The question presented is whether, under the Nebraska Life and Health Insurance guaranty Association Act (the Act),2 Future First is a “member insurer.”3 We conclude that because Future First was not licensed by the Nebraska Department of Insurance, the Nebraska Life and Health Insurance guaranty Association (guaranty Association) is not obligated to guarantee the PrA’s. FACTS The defendant-appellee, guaranty Association, is a nonprofit unincorporated association of insurance companies created by the Act to provide protection to Nebraska residents who own or are beneficiaries of statutorily covered life insurance, health insurance, or annuity contracts. generally, as limited by the Act, the guaranty Association guarantees payment of benefits and continuation of coverage when an insurer becomes insol- vent.4 Future First was a Florida corporation which has never been licensed by the Nebraska Department of Insurance to con- duct business in Nebraska and has never paid dues or assess- ments to the guaranty Association. Future First was engaged in the business of providing or brokering viatical settlements. The parties define a viatical settlement as “a commercial transaction in which a terminally ill person insured by an existing life insurance policy sells the policy at a discount from its face value based upon the insured’s 2 Neb. rev. Stat. §§ 44-2701 to 44-2720 (reissue 2004). 3 See § 44-2702(8). 4 See § 44-2701. HArvey v. NeBrASKA LIFe & HeALTH INS. gUAr. ASSN. 759 Cite as 277 Neb. 757
life expectancy.” Nebraska law defines a viatical settlement contract as the sale or assignment of either “the death benefit or ownership or any portion of the insurance policy or certifi- cate of insurance.”5 Plaintiffs, all of whom are Nebraska residents, each entered into contracts to invest in viatical settlements by executing PrA’s with Future First. Plaintiffs executed PrA’s in favor of Future First specifying the rate of return they desired for their investment based on the duration of the “program” they chose. The PrA’s advised plaintiffs that “life expectancy may vary, and there is no guarantee that the insurance policy purchased will pay a death benefit” to the purchaser within the time period selected by the purchaser. (emphasis omitted.) Fidelity viatical Trust was named as the owner of the life insurance policies in the PrA’s. The PrA’s also stated that plaintiffs “must be named as either an absolute, irrevocable, non-transferable or direct bene- ficiary.” With the exception of a list of names set forth in the stipulated record, however, no plaintiffs were contractually designated as the beneficiaries of any life insurance policy pur- chased by Future First. Future First eventually “collapsed due to a combination of fraud, new medical developments and [policy sellers’] not dying according to the expected schedule.”6 The Florida Department of Insurance revoked Future First’s viatical settle- ment provider license, and Future First was placed into judi- cial conservatorship. Plaintiffs filed a declaratory judgment action seeking a declaration of the rights and duties of the parties under the PrA’s. Both sides filed motions for partial summary judg- ment on the issue of liability only. The district court initially granted plaintiffs’ motion for partial summary judgment on the issue of liability and overruled the guaranty Association’s motion for partial summary judgment. The court initially found that Future First was a “member insurer” for purposes of the Act and that the PrA’s were “supplemental contracts” 5 § 44-1102(14). 6 Brief for appellants at 11. 760 277 NeBrASKA rePOrTS
under § 44-2703(2)(a), effectively ordering the guaranty Association to provide coverage to plaintiffs for their invest- ment losses. The guaranty Association filed a motion to reconsider the partial summary judgment ruling, and the district court vacated its previous ruling. Although the court declined to alter its ruling that Future First was a “member insurer” and that the PrA’s were “supplemental contracts” for purposes of the Act, the court held that the exclusion in § 44-2703(2)(b)(i) precludes coverage of plaintiffs’ claims. That section states that the Act does not apply to “[a]ny portion of any policy or contract not guaranteed by the insurer or under which the risk is borne by the policy or contract holder.”7 The court concluded that the PrA’s require plaintiffs to bear risks and that therefore, the PrA’s are excluded from the Act’s coverage. Plaintiffs appeal, and the guaranty Association cross-appeals. ASSIgNMeNTS OF errOr Plaintiffs assign that the district court erred in (1) deciding that the contracts and transactions were exempt from coverage by § 44-2703(2)(b)(i), (2) granting the guaranty Association’s motion for summary judgment, and (3) reconsidering and reversing the result which had previously granted plaintiffs’ motion for partial summary judgment. On cross-appeal, the guaranty Association assigns that the district court erred in holding that (1) Future First is a “mem- ber insurer” for purposes of the Act and (2) the PrA’s are “supplemental contracts” for purposes of the Act. STANDArD OF revIeW [1,2] Summary judgment is proper if the pleadings and admissible evidence offered at the hearing show that there is no genuine issue as to any material facts 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.8 In reviewing a summary judgment, an appellate court views the 7 § 44-2703(2)(b)(i). 8 Thone v. Regional West Med. Ctr., 275 Neb. 238, 745 N.W.2d 898 (2008). HArvey v. NeBrASKA LIFe & HeALTH INS. gUAr. ASSN. 761 Cite as 277 Neb. 757
evidence in the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence.9 [3,4] The meaning of a statute is a question of law.10 When reviewing questions of law, an appellate court has an obliga- tion to resolve the questions independently of the conclusion reached by the trial court.11 ANALySIS We first address an issue raised by the guaranty Association’s cross-appeal, as our resolution of the issue is dispositive of this appeal. On cross-appeal, the guaranty Association con- tends that Future First is not a “member insurer” for the pur- poses of the Act. Therefore, the guaranty Association argues, it has no obligation to guarantee the PrA’s issued by Future First. The guaranty Association asserts that the Act requires the association to protect only insurance products issued by “member insurers” and that treating Future First as a “mem- ber insurer” is inconsistent with the underlying purpose of the Act. The stated purpose of the Act is to protect resident policy owners and insureds against failure of an insolvent or finan- cially impaired insurer to perform its contractual obligations and to assist in the detection and prevention of insurer insol- vencies.12 In order to provide this protection, the Act creates an association of insurers, the guaranty Association, that enables the guarantee of payment of benefits and continuation of cover- ages, as limited in the Act.13 When a “member insurer” becomes insolvent, the guaranty Association’s duty is to “[g]uarantee, assume, or reinsure, or cause to be guaranteed, assumed, or 9 Amanda C. v. Case, 275 Neb. 757, 749 N.W.2d 429 (2008). 10 Ahmann v. Correctional Ctr. Lincoln, 276 Neb. 590, 755 N.W.2d 608 (2008). 11 Steffen v. Progressive Northern Ins. Co., 276 Neb. 378, 754 N.W.2d 730 (2008). 12 § 44-2701; Nebraska Life & Health Ins. Guar. Assn. v. Dobias, 247 Neb. 900, 531 N.W.2d 217 (1995). 13 § 44-2701(1). 762 277 NeBrASKA rePOrTS
reinsured, all the covered policies of the impaired [or insol- vent] insurer.”14 The funds required to carry out the powers and duties of the association are obtained by assessments levied against member insurers.15 essentially, the guaranty Association pays or guarantees the insurance benefits that the insolvent member insurer is no longer able to pay, up to the statutory coverage limits. In order to transact insurance business in Nebraska, a for- eign insurance company must obtain a certificate of author- ity from the Nebraska Department of Insurance.16 Insurers become members of the guaranty Association as a condition of their authority to transact business in Nebraska, and the guaranty Association operates under the direct supervision of the Nebraska Director of Insurance.17 The Act defines “member insurer” as “any person authorized to transact in this state any kind of insurance provided for under section 44-2703.”18 The insurance provided for under that section generally includes direct nongroup life, health, or annuity policies or contracts and supplemental contracts to any of those policies. But the Act specifically states that it shall not apply to “any [such] policy or contract issued by any person, corporation, or organization which is not licensed by the Department of Insurance under Chapter 44” of the Nebraska revised Statutes.19 Here, the parties stipulated that Future First is not autho- rized and has never possessed a certificate of authority from the Nebraska Department of Insurance authorizing it to trans- act business in Nebraska. Although Future First was licensed by the Florida Department of Insurance as a viatical settle- ment provider, Future First was not authorized to trans- act insurance business in Nebraska. Therefore, Future First was not a member insurer under the Act and the viatical 14 § 44-2707(1)(a). Accord § 44-2707(2)(a). 15 § 44-2708. 16 Neb. rev. Stat. § 44-135 (reissue 2004). 17 § 44-2705. 18 § 44-2702(8). 19 § 44-2703(2)(b)(xiii). HArvey v. NeBrASKA LIFe & HeALTH INS. gUAr. ASSN. 763 Cite as 277 Neb. 757
settlements it sold are specifically excluded from coverage under the Act, because they were issued by a business that was not licensed by the Nebraska Department of Insurance under chapter 44. [5,6] When asked to interpret a statute, a court must deter- mine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute consid- ered in its plain, ordinary, and popular sense.20 To determine the legislative intent of a statute, a court generally considers the subject matter of the whole act, as well as the particular topic of the statute containing the questioned language.21 Plaintiffs admit that Future First was never a member of the guaranty Association and never paid dues or assessments to the associa- tion. In light of the fact that Future First was never a member insurer, Future First investors may not benefit from a system designed to guarantee a continuation of coverage of member insurers. Based on the undisputed evidence, we conclude as a matter of law that Future First is not a “member insurer” as defined by the Act, and because it was not authorized to trans- act business in Nebraska, the PrA’s are specifically excluded from the Act. Therefore, the guaranty Association has no obli- gation to guarantee the PrA’s. Plaintiffs argue that Future First is a member insurer because viatical settlements are “supplemental contracts” for the dis- tribution of policy or contract proceeds,22 and according to plaintiffs, Future First was able to legally sell viatical settle- ments in Nebraska by virtue of being licensed to do so in Florida. But that, even if true, is beside the point. The issue in this case is not whether Future First’s sale of the PrA’s was “legal.” The issue is whether the PrA’s are guaranteed by the Act. The Act, as explained above, does not operate to generally guarantee every product that can legally be sold in Nebraska. Instead, it is intended to guarantee insurance products that are sold to Nebraska residents by insurers that are authorized 20 Unisys Corp. v. Nebraska Life & Health Ins. Guar. Assn., 267 Neb. 158, 673 N.W.2d 15 (2004). 21 Id. 22 See § 44-2702(15). 764 277 NeBrASKA rePOrTS
to do business here and therefore are member insurers of the guaranty Association. Future First was not, and its PrA’s are not covered by the Act. Our conclusion that Future First is not a “member insurer” under the Act is dispositive of this appeal, and therefore, we need not address the guaranty Association’s remaining assignments of error on cross-appeal or plaintiffs’ assignments of error. CONCLUSION [7] We conclude that the district court erred in concluding that Future First was a “member insurer” under the Act. But where the record adequately demonstrates that the decision of the trial court is correct, although such correctness is based on a ground or reason different from that assigned by the trial court, an appellate court will affirm.23 Based on the fore- going reasons, we affirm the district court’s order granting the guaranty Association’s motion for summary judgment. affirmed. miller-lerman, J., participating on briefs. Wright, J., not participating. 23 In re Estate of Lamplaugh, 270 Neb. 941, 708 N.W.2d 645 (2006). BerrINgTON COrP. v. STATe 765 Cite as 277 Neb. 765 berrington corporation, doing business as eldorado hills golf club, appellant, v. state of nebraska department of revenue and douglas a. eWald, nebraska state tax commissioner , appellees. 765 N.W.2d 448 Filed May 15, 2009. No. S-08-580. 1. Administrative Law: Final Orders: Appeal and Error. Under the Administrative Procedure Act, Neb. rev. Stat. §§ 84-901 to 84-920 (reissue 2008), an appellate court may reverse, vacate, or modify a district court’s judgment or final order for errors appearing on the record. 2. Administrative Law: Judgments: Appeal and Error. When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
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