Kline v. Farmers Ins. Exch.

DaviD K line anD Patricia l. K line , aPPellants , v.
Farmers insurance exchange , aPPellee .
766 N.W.2d 118
Filed June 5, 2009. 	No. S-07-325.
1. Insurance: Contracts: Appeal and Error. The interpretation and construction
of an insurance contract or policy involve questions of law, in connection with
which an appellate court has an obligation to reach its conclusions independent
of the determinations made by the court below.
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 is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Insurance: Motor Vehicles: Contracts. Neb. Rev. Stat. § 44-6408(2) (Reissue
2004) does not prevent insurers from entering into agreements with insureds
providing more underinsured motorist coverage limits than those required by
§ 44-6408(2).
4. ____: ____: ____. Insurers may provide insurance policies with more favor-
able terms and conditions than are required by the Uninsured and Underinsured
Motorist Insurance Coverage Act, but insurers are prohibited from issuing poli-
cies that carry terms and conditions less favorable to the insured than those pro-
vided by the act.
5. ____: ____: ____. An insurer that provides higher underinsured motorist coverage
limits than are required by Neb. Rev. Stat. § 44-6408(2) (Reissue 2004) does not
thereby escape the minimum requirements of the Uninsured and Underinsured
Motorist Insurance Coverage Act. Likewise, an insured who pays for higher cov-
erage does not forfeit the protections of the act.
6. ____: ____: ____. Unless one of the exclusions set forth in Neb. Rev. Stat.
§ 44-6413 (Reissue 2004) applies, an insured is entitled to recover for injuries
sustained in any accident, so long as the injuries were caused by an uninsured
or underinsured motor vehicle. In other words, the exclusions provided by the
Uninsured and Underinsured Motorist Insurance Coverage Act in § 44-6413 are
the only exceptions permitted to the coverage mandated by the act.
7. Insurance: Motor Vehicles: Damages. The purpose of the Uninsured and
Underinsured Motorist Insurance Coverage Act is to provide a means whereby
victims of less than adequately insured motorists are made as nearly whole
as possible.
8. Insurance: Motor Vehicles: Legislature: Intent. A court must construe the
provisions of the Uninsured and Underinsured Motorist Insurance Coverage Act
liberally to accomplish the indicated legislative purpose.
9. Summary Judgment: Proof. The party moving for summary judgment has the
burden to show that no genuine issue of material fact exists and must produce
sufficient evidence to demonstrate that the moving party is entitled to judgment
as a matter of law.
874 	277 NebRASkA RepoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

10. ____: ____. A prima facie case for summary judgment is shown by producing
enough evidence to demonstrate that the movant is entitled to a judgment in its
favor if the evidence were uncontroverted at trial.
11. Summary Judgment: Evidence: Proof. After the movant for summary judgment
makes a prima facie case by producing enough evidence to demonstrate that the
movant is entitled to judgment if the evidence was uncontroverted at trial, 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.
petition for further review from the Court of Appeals,
inboDy, Chief Judge, and irwin and carlson, Judges, on appeal
thereto from the District Court for Douglas County, w. russell
bowie iii, Judge. Judgment of Court of Appeals affirmed.
John C. Wieland and kevin J. McCoy, of Dwyer, Smith,
Gardner, 	Slusky, 	Lazer, 	pohren 	& 	Rogers, 	L.L.p., 	for
appellants.
Daniel p. Chesire, of Lamson, Dugan & Murray, L.L.p., and
Raymond e. Walden, of Walden Law office, for appellee.
heavican, 	c.J., 	wright, 	connolly, 	gerrarD, 	stePhan,
mccormacK, and miller-lerman, JJ.
mccormacK, J.
I. NATURe oF CASe
Farmers Insurance exchange (Farmers) petitioned for further
review the decision of the Nebraska Court of Appeals find-
ing an exclusion in its automobile insurance policy to be void
as against public policy. The exclusion denies underinsured
motorist (UIM) coverage when a person is injured while occu-
pying a vehicle he or she does not own but is insured for UIM
coverage under another policy. We granted Farmers’ petition
for further review. We affirm.
II. bACkGRoUND
For the most part, the facts of this case are undisputed. on
December 29, 2001, David kline was returning from work,
driving a 1985 GMC Suburban, when Donald C. Minard turned
left in front of the Suburban. The vehicles collided, and, as a
result of the collision, David was injured. David is the sole
shareholder of “blade Home Improvement LLC” (blade), a
kLINe v. FARMeRS INS. exCH. 	875
Cite as 277 Neb. 874

Nebraska limited liability company. blade is the titled owner
of the Suburban.
The Suburban was insured through American Family Mutual
Insurance Company (American Family) for collision and lia-
bility, and the policy included UIM benefits of $100,000 per
person and $300,000 per accident. David and patricia L. kline
also held a personal automobile insurance policy through
Farmers providing UIM benefits of $500,000 per person and
$500,000 per accident. The only vehicle listed under the
Farmers’ policy was the klines’ family vehicle, a 2001 Ford
Windstar van.
The klines filed suit against Minard for the injuries David
sustained from the accident, and they also named as defendants
Farmers and American Family. The klines sought a determi-
nation of liability for the UIM benefits under the insurance
policies and for payment under those policies. Minard’s insur-
ance company paid its policy limit of $25,000 on his behalf,
and Minard was dismissed from the case. before settling with
Minard, both American Family and Farmers waived subroga-
tion rights. American Family then paid its maximum per person
coverage of $100,000 in UIM benefits and was also dismissed
from the case.
The klines thus received a total of $125,000 from the set-
tling defendants. but the klines assert that their damages
exceeded that amount. Farmers, the sole remaining defendant,
filed a motion for summary judgment. The klines did not
cross-motion for summary judgment. In support of its motion,
Farmers argued that its insurance policy with the klines con-
tained two relevant exclusions that prohibited them from recov-
ering. Under the UIM section, the policy stated:
This coverage does not apply to bodily injury sustained
by a person:
(1) While occupying any vehicle owned by you or a
family member for which insurance is not afforded under
this policy or though [sic] being struck by that vehicle.
. . . .
(4) If the injured person was occupying a vehicle you
do not own which is insured for this coverage under
another policy.
876 	277 NebRASkA RepoRTS

(emphasis supplied.)
At the motion for summary judgment hearing, Farmers
argued that if the court determined that David was actually
the owner of the Suburban and not blade, then exclusion
No. 1 (hereinafter referred to as the “owned-but-not-insured”
exclusion) applied, which would preclude coverage under
the policy. but, if the court concluded that blade was the
owner of the Suburban and not David, then exclusion No. 4
(hereinafter referred to as the “not-owned-but-insured” exclu-
sion) applied.
No evidence was introduced to refute that blade was the
actual owner of the Suburban. To the contrary, the klines
maintained that the owned-but-not-insured exclusion was inap-
plicable because blade, and not David, was the owner of the
Suburban. In support of their argument, the klines offered the
American Family insurance policy listing blade as the owner
of the Suburban and they offered David’s deposition testimony
that blade owned the Suburban. Farmers responded that by
piercing the corporate veil, the court could conclude that David
was the actual owner of the Suburban, but Farmers did not
introduce any evidence to support this allegation.
The klines’ argument regarding the not-owned-but-insured
exclusion was twofold. First, the klines argued that “this
coverage” as used in the not-owned-but-insured exclusion is
ambiguous. They maintained that the language could refer to
both the type of coverage and the amount of coverage. And
since Farmers drafted the policy, the language should be con-
strued against Farmers to mean the amount of coverage. Since
the amount of the UIM coverage provided through blade’s
contract with American Family was a different amount than
the UIM coverage provided through Farmers’ policy with the
klines, the klines argued that the exclusion from “this cover-
age” did not apply.
Second, the klines argued that even if the not-owned-but-
insured exclusion was unambiguous as to what “this coverage”
meant, then the exclusion violated public policy, because it
allowed Farmers to deny UIM benefits whenever underinsured
coverage was available in a lesser amount under another pol-
icy, preventing an insured from receiving full indemnification
kLINe v. FARMeRS INS. exCH. 	877
Cite as 277 Neb. 874

to the extent of the highest policy limit as mandated by
Nebraska’s stacking statute codified at Neb. Rev. Stat. § 44-6411
(Reissue 2004).
The district court granted Farmers’ second motion for sum-
mary judgment, concluding that based on the evidence sub-
mitted by the parties, the Farmers’ policy excluded coverage
whether David owned the Suburban or not. The court con-
cluded that the “this coverage” language contained in the not-
owned-but-insured exclusion was not ambiguous and referred
only to the type of coverage, not the amount of coverage. The
court also found that the not-owned-but-insured exclusion did
not violate public policy. The court then reasoned that if David
owned the Suburban, then the owned-but-not-insured exclusion
applied, and if he did not own the vehicle, then the not-owned-
but-insured exclusion applied. The klines timely appealed to
the Court of Appeals.
In a memorandum opinion, the Court of Appeals reversed
the decision of the district court granting summary judgment in
favor of Farmers and remanded the cause for further proceed-
ings.1 The Court of Appeals first concluded that the owned-
but-not-insured exclusion was inapplicable because blade,
not David, owned the Suburban. As to the not-owned-but-
insured exclusion, the Court of Appeals agreed with the district
court that the language “this coverage” was not ambiguous.
However, the Court of Appeals held that the not-owned-but-
insured exclusion violated public policy in circumstances such
as the klines, where the nonowned vehicle’s underinsured cov-
erage limits are less than the UIM coverage on the insured’s
own vehicle.
We granted Farmers’ petition for further review of the Court
of Appeals’ decision. The klines did not file a cross-petition for
further review, but instead filed a brief with a cross-appeal.
III. ASSIGNMeNTS oF eRRoR
Farmers alleges the Court of Appeals erred in (1) holding
that the not-owned-but-insured exclusion is void as against
1 Kline v. Farmers Ins. Exch., No. A-07-325, 2008 WL 2388768 (Neb. App.
June 10, 2008) (selected for posting to court Web site).
878 	277 NebRASkA RepoRTS

public policy under Nebraska’s Uninsured and Underinsured
Motorist Insurance Coverage Act (UUMICA)2 and (2) conclud-
ing as a matter of law that blade owns the Suburban.
The klines filed a brief for cross-appeal on further review,
alleging the Court of Appeals erred in concluding that the lan-
guage “this coverage” in the not-owned-but-insured exclusion
was not ambiguous as to whether it refers to the type of cover-
age or the amount of coverage. The klines also argue that the
Court of Appeals’ statement that public policy would only be
violated when the excluded UIM coverage was greater than the
amount of UIM coverage provided under another policy was an
improperly narrow interpretation of the UIM statutes.
IV. STANDARD oF ReVIeW
[1] The interpretation and construction of an insurance
contract or policy involve questions of law, in connection
with which an appellate court has an obligation to reach its
conclusions independent of the determinations made by the
court below.3
[2] In reviewing a summary judgment, an appellate court
views the evidence in the 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.4
V. ANALYSIS
1. cross -aPPeal on F urther review
First, we address whether the klines properly perfected their
cross-appeal from the Court of Appeals’ decision. Farmers
asserts that the klines are precluded from cross-appealing
because they failed to file a cross-petition for further review.
This argument is without merit. Neb. Ct. R. App. p. § 2-102(H)
provides that each party may file additional briefs in compliance
2 Neb. Rev. Stat. §§ 44-6401 to 44-6414 (Reissue 2004).
3 Hood v. AAA Motor Club Ins. Assn., 259 Neb. 63, 607 N.W.2d 814
(2000).
4 Jones v. Shelter Mut. Ins. Cos., 274 Neb. 186, 738 N.W.2d 840 (2007);
Johnson v. Knox Cty. Partnership, 273 Neb. 123, 728 N.W.2d 101 (2007).
kLINe v. FARMeRS INS. exCH. 	879
Cite as 277 Neb. 874

with Neb. Ct. R. App. p. § 2-109 when further review is granted.
Section 2-109 allows appellees to file a cross-appeal by noting
on the cover of their brief “brief on Cross-Appeal.” This is
exactly what the klines did. Further, we note that the klines
were successful in the Court of Appeals; therefore, they had
no reason to file a petition for further review. However, once
Farmers filed a petition for further review, the only way for the
klines to preserve any errors would be to file a cross-appeal.
As such, we conclude that the klines properly perfected their
cross-appeal on further review by complying with our court
rules. We turn now to the exclusions in issue.
2. exclusions
(a) Not-owned-but-Insured exclusion and § 44-6413
The Court of Appeals held that the not-owned-but-insured
exclusion was void for public policy reasons. but Farmers
maintains that the not-owned-but-insured exclusion is consistent
with the purpose of the UUMICA. The not-owned-but-insured
exclusion provides that its UIM coverage does not apply if the
injured person sustains bodily injury while occupying a vehicle
that person does not own, and such vehicle is insured for “this
coverage” under another insurance policy.
David was injured by an underinsured motor vehicle as
defined by the UUMICA. The UUMICA defines an under-
insured motor vehicle as a “motor vehicle with respect to the
ownership, operation, maintenance, or use of which there is
bodily injury liability insurance . . . applicable at the time of
the accident and the amount of the insurance . . . is less than
. . . the damages for bodily injury, sickness, disease, or death
sustained by the insured.”5 UIM coverage has been defined as
“first party coverage that affords compensation for injured per-
sons whenever a tortfeasor is inadequately insured.”6
[3] Although the klines and Farmers contracted for UIM
coverage higher than the coverage limits mandated by the
5 § 44-6406.
6 2 Alan L. Widiss & Jeffrey e. Thomas, Uninsured and Underinsured
Motorist Insurance § 31.4 at 5 (rev. 3d ed. 2005). Accord Anderson v. MSI
Preferred Ins. Co., 281 Wis. 2d 66, 697 N.W.2d 73 (2005).
880 	277 NebRASkA RepoRTS

UUMICA, the protections of the UUMICA are still applicable.
The UUMICA requires that any liability policy insuring against
bodily injury, sickness, disease, or death sustained by a person
arising out of the ownership, operation, maintenance, or use of a
motor vehicle must provide UIM coverage in limits of $25,000
per person and $50,000 per accident.7 Under § 44-6408(2),
if an insured requests higher UIM limits, the insurer must
provide UIM coverage limits of at least $100,000 per per-
son and $300,000 per accident. Section 44-6408(2) does not
prevent insurers from entering into agreements with insureds
providing more UIM coverage limits than those required by
§ 44-6408(2).8
[4,5] We have explained that insurers may provide insur-
ance policies with more favorable terms and conditions than
are required by the UUMICA, but insurers are prohibited from
issuing policies that carry terms and conditions less favor-
able to the insured than those provided by the UUMICA.9
As such, an insurer that provides higher UIM limits than are
required by § 44-6408(2) does not thereby escape the mini-
mum requirements of the UUMICA.10 Likewise, an insured
who pays for higher coverage does not forfeit the protections
of the UUMICA.11
[6] Section 44-6413 of the UUMICA contains certain
allowable exclusions from UIM coverage. Unless one of
the exclusions set forth in § 44-6413 applies, an insured is
entitled to recover for injuries sustained in any accident, so
long as the injuries were caused by an “[u]ninsured motor
vehicle”12 or an “[u]nderinsured motor vehicle.”13 In other
7 § 44-6408(1).
8 See Steffen v. Progressive Northern Ins. Co., 276 Neb. 378, 754 N.W.2d
730 (2008). See, also, Van Ert v. State Farm Mut. Auto. Ins. Co., 276 Neb.
908, 758 N.W.2d 36 (2008).
9 See, Van Ert v. State Farm Mut. Auto. Ins. Co., supra note 8; Steffen v.
Progressive Northern Ins. Co., supra note 8.
10 See id.
11 See id.
12 § 44-6405. See, also, § 44-6407.
13 § 44-6406. See, also, § 44-6407.
kLINe v. FARMeRS INS. exCH. 	881
Cite as 277 Neb. 874

words, the exclusions provided by the UUMICA in § 44-6413
are the only exceptions permitted to the coverage mandated
by the UUMICA.14
The allowable exclusions contained in § 44-6413 provide
that coverage under the UUMICA shall not apply when the
bodily injury occurs (1) while the “insured” is occupying
a motor vehicle owned by, but not insured by, the “named
insured”; (2) while the insured is occupying an owned motor
vehicle that is used as a public conveyance; (3) where the
insured is struck by a vehicle owned by the named insured or
a spouse or a relative residing with the named insured; or (4)
where the statute of limitations has run on the claim. Section
44-6413 does not set forth an exception for vehicles not owned
by the insured, but that are insured for “this coverage” under
another policy.
Farmers fails to explain, and we cannot determine, how the
not-owned-but-insured exclusion fits into one of the allowable
exclusions. Accordingly, the not-owned-but-insured exclusion
is an unsuccessful attempt by Farmers to broaden the allowable
exclusions contained in § 44-6413 and provide less favorable
UIM coverage than allowed by our UIM statutes.15 As written,
the not-owned-but-insured exclusion would prevent a victim
from recovering UIM benefits even in a situation where the
victim has only received UIM benefits in the minimum amount
of $25,000. And, under the exclusion, an insured would be
more adequately protected from tort-feasors in a vehicle with
no UIM coverage. This is clearly not what the Legislature
intended when it enacted the UUMICA.
When the Legislature enacted the UUMICA, it clearly did not
contemplate the not-owned-but-insured exclusion. Nebraska’s
stacking statute is codified within the UUMICA at § 44-6411.
Section 44-6411 provides that when an insured has the right to
recover under multiple uninsured or UIM motorist policies, the
insured’s maximum recovery is limited to the highest limit of
any one of the applicable policies and sets forth the priorities
14 Steffen v. Progressive Northern Ins. Co., supra note 8.
15 See 46A C.J.S. Insurance § 2242 (2007).
882 	277 NebRASkA RepoRTS

of the claims. Clearly, the Legislature considered that some
insureds may have multiple uninsured or UIM policies, and
so long as the insured’s maximum recovery was limited to the
highest limit of any one of the applicable policies, recovery
above the mandatory limits in § 44-6408 is allowable.
In the present case, the klines paid an extra premium to
Farmers for UIM benefits up to $500,000 in the event they were
injured by the actions of an underinsured motorist. Now, David
has been injured and has been placed in a position where, in
order to be made as nearly whole as possible, he may need to
utilize part of the underinsured benefits he paid and contracted
for with Farmers. Farmers now attempts to deny payment under
the not-owned-but-insured exclusion. but Farmers cannot avoid
payment under the not-owned-but-insured exclusion because
the not-owned-but-insured exclusion, as written, contravenes
the UUMICA. This result supports the public policy concerns
and purpose of the UUMICA.
[7,8] We have explained that the purpose of the UUMICA
is to provide a means whereby victims of less than adequately
insured motorists are made as nearly whole as possible.16 And
we must construe the provisions of the UUMICA liberally
to accomplish the indicated legislative purpose.17 Under the
not-owned-but-insured exclusion, victims are prevented from
being made as nearly whole as possible. To hold as Farmers
suggests would stymie the intended purpose of the UUMICA,
and such a result would be inconsistent with the conclusions
of other jurisdictions that have considered the enforceabil-
ity of exclusions similar or identical to the not-owned-but-
insured exclusion.
other jurisdictions have concluded that exclusions similar or
identical to the not-owned-but-insured exclusion violate public
policy when interpreted to disallow an insured from recover-
ing UIM benefits if the insured is injured while occupying a
16 Ostransky v. State Farm Ins. Co., 252 Neb. 833, 566 N.W.2d 399 (1997);
Luedke v. United Fire & Cas. Co., 252 Neb. 182, 561 N.W.2d 206
(1997).
17 See Austin v. State Farm Mut. Auto. Ins. Co., 261 Neb. 697, 625 N.W.2d
213 (2001).
kLINe v. FARMeRS INS. exCH. 	883
Cite as 277 Neb. 874

vehicle which he or she does not own and which is insured for
UIM coverage under another policy.18
For example, in Veach v. Farmers Ins. Co.,19 Greg Veach
was injured by an underinsured motorist while riding his
motorcycle. Veach received payment for his injuries from
both the other motorist and his own insurance policy, totaling
$125,000.20 Veach was also an “insured” under his mother’s
insurance policy with Farmers Insurance Group of Companies
from which he sought payment.21 His mother’s UIM policy
limit with that insurance company was $50,000 per person,
per occurrence.22 The insurance policy contained an exclu-
sion identical to the not-owned-but-insured exclusion in the
present case, and the company denied payment.23 The Iowa
Supreme Court concluded that the exclusion was void because
it “frustrates the purpose of the [UIM] coverage and because it
is contrary to ‘common sense and the consuming public’s gen-
eral understanding of coverage under these circumstances.’”24
In so concluding, the Iowa Supreme Court reasoned that such
an exclusion creates a situation where an insured is more pro-
tected in a vehicle with no UIM coverage than one with the
statutory minimum.
Similarly, in Estate of Sinn v. Mid-Century Ins. Co.,25 the
Fifth District Appellate Court of Illinois held that exclusions
intended to prevent UIM coverage when the policyholder occu-
pies a vehicle he or she does not own were void for public
policy reasons. In Estate of Sinn, the insured victim’s policy
18 Veach v. Farmers Ins. Co., 460 N.W.2d 845 (Iowa 1990); Estate of Sinn v.
Mid-Century Ins. Co., 288 Ill. App. 3d 193, 679 N.e.2d 870, 223 Ill. Dec.
419 (1997); Erickson v. Farmers Ins. Co. of Oregon, 331 or. 681, 21 p.3d
90 (2001). See 2 Irvin e. Schermer & William J. Schermer, Automobile
Liability Insurance § 25:10 (4th ed. 2004).
19 Veach v. Farmers Ins. Co., supra note 18.
20 Id.
21 Id.
22 Id.
23 Id.
24 Id. at 848.
25 Estate of Sinn v. Mid-Century Ins. Co., supra note 18.
884 	277 NebRASkA RepoRTS

contained the same not-owned-but-insured exclusion. In con-
cluding that the exclusion was void, the court reasoned that
as the exclusion was written, “it could operate to deprive the
insured of the full coverage provided in his policy should the
other, nonowned vehicle have underinsured motorist coverage
in a lesser amount than that provided in the insured’s policy.”26
Additionally, the court noted that because the purpose of UIM
coverage was to place the insured in the same position he or
she would have been in if the tort-feasor had carried adequate
insurance, such an exclusion violated public policy.27
Considering the public policy concerns, we conclude that the
not-owned-but-insured exclusion, in the context of UIM cover-
age, contravenes the UUMICA and is, therefore, void.
(b) klines’ Cross-Appeal on Further Review
The klines argue in their cross-appeal on further review that
if we conclude that the not-owned-but-insured exclusion is per-
missible, it is still inapplicable because “this coverage,” as it is
used in the not-owned-but-insured exclusion, is ambiguous in
that it could refer to the type of coverage, i.e., UIM coverage,
or the amount of coverage, i.e., policy limits. because we con-
cluded that the not-owned-but-insured exclusion violates public
policy and § 44-6413, we do not reach the klines’ assignment
of error on cross-appeal.28
(c) owned-but-Not-Insured exclusion
Next, Farmers asserts that the Court of Appeals erred in
holding that, as a matter of law, the owned-but-not-insured
exclusion did not apply. Farmers argues that even if the not-
owned-but-insured exclusion is void, there remains a material
issue of fact whether coverage is precluded by the owned-
but-not-insured exclusion. The owned-but-not-insured exclu-
sion applies to vehicles “owned by you or a family member.”
The parties do not argue that this provision is ambiguous but
dispute whether the Suburban was “owned by” David or any
26 Id. at 196, 679 N.e.2d at 872, 223 Ill. Dec. at 421.
27 Estate of Sinn v. Mid-Century Ins. Co., supra note 18.
28 See, Nielsen v. Nielsen, 275 Neb. 810, 749 N.W.2d 485 (2008); Domjan v.
Faith Regional Health Servs., 273 Neb. 877, 735 N.W.2d 355 (2007).
kLINe v. FARMeRS INS. exCH. 	885
Cite as 277 Neb. 874

members of his family. The Court of Appeals concluded that
the owned-but-not-insured exclusion did not apply, because it
determined that there was no material issue of fact that blade
owned the Suburban. We agree.
In its brief, Farmers maintains that it did not concede the
issue of who actually owned the Suburban, but was only argu-
ing that blade owned the vehicle as part of its alternative
argument that the not-owned-but-insured exclusion applied.
In its argument concerning the owned-but-not-insured exclu-
sion, Farmers alleged that David, and not blade, owned the
Suburban. Farmers did not present any evidence as to the
ownership of the vehicle. The district court was correct that,
assuming both exclusions were valid, the issue of who owned
the vehicle was immaterial, because, either way, coverage was
excluded. but because the not-owned-but-insured exclusion is
not a valid provision, the ownership of the vehicle is now a
material issue of fact.
[9-11] The party moving for summary judgment has the
burden to show that no genuine issue of material fact exists
and must produce sufficient evidence to demonstrate that the
moving party is entitled to judgment as a matter of law.29 A
prima facie case for summary judgment is shown by producing
enough evidence to demonstrate that the movant is entitled to
a judgment in its favor if the evidence were uncontroverted at
trial.30 After the movant for summary judgment makes a prima
facie case by producing enough evidence to demonstrate that
the movant is entitled to judgment if the evidence was uncon-
troverted at trial, 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.31
Farmers moved for summary judgment. As to the owned-but-
not-insured exclusion, Farmers thus bore the burden to show that
there was no issue of material fact as to whether the Suburban
was a “vehicle owned by you or a family member.” It clearly
29 Hofferber v. City of Hastings, 275 Neb. 503, 747 N.W.2d 389 (2008).
30 Controlled Environ. Constr. v. Key Indus. Refrig., 266 Neb. 927, 670
N.W.2d 771 (2003).
31 Misle v. HJA, Inc., 267 Neb. 375, 674 N.W.2d 257 (2004).
886 	277 NebRASkA RepoRTS

did not sustain that burden. And the klines, in response to
Farmers’ allegations in its motion for summary judgment, pro-
vided ample evidence to show that blade was the owner of the
Suburban. An agent with American Family testified by affidavit
that American Family “issued a policy of insurance to blade
. . . insuring a 1985 GMC Suburban.” Further, the Suburban was
titled in the name of blade. Although Farmers argues that the
issue of who owns the Suburban has not been conceded, view-
ing the evidence presented, we can only conclude that blade
is the owner of the Suburban. by not presenting any evidence
that would put the ownership of the vehicle into controversy,
Farmers took the risk that the not-owned-but-insured exclusion
would be held void and that the ownership question would be
decided against it in its motion for summary judgment.
Thus, reviewing the evidence in the light most favorable
to the nonmoving party, we agree with the Court of Appeals
that Farmers did not meet its burden for summary judgment
to show the Suburban was owned by David, rather than blade.
As such, the Court of Appeals was correct in holding that there
was no material issue of fact that the owned-but-not-insured
exclusion does not apply.
VI. CoNCLUSIoN
We conclude that the not-owned-but-insured exclusion vio-
lates the UUMICA. Therefore, we affirm the decision of the
Court of Appeals, which reversed the district court’s entry
of summary judgment in favor of Farmers and remanded the
cause for further proceedings.
aFFirmeD.
STATe v. pRATT 	887
Cite as 277 Neb. 887
state oF nebrasKa , aPPellee , v.
Juneal Dale P ratt, aPPellant.
766 N.W.2d 111
Filed June 5, 2009. 	No. S-08-279.
1. Judgments: Statutes: Appeal and Error. Statutory interpretation is a matter of
law in connection with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determination made by the
trial court.