Steffen v. Progressive Northern Ins. Co.

CONCLUSION
Crane’s motion to dismiss was converted to a motion for sum-
mary judgment under § 6-1112(b). However, the parties were
not given sufficient notice of that conversion, nor was Crane
provided with a reasonable opportunity to present any material
it might find relevant to a motion for summary judgment. As
such, we reverse the judgment of the district court and remand
the cause to the district court with directions.
R eveRsed and Remanded with diRections .
K athie steffen , P eRsonal R ePResentative of the estate of
J effRey l. steffen , deceased , aPPellant , v . PRogRessive
noRtheRn insuRance comPany , aPPellee .
754 N.W.2d 730
Filed August 15, 2008. 	No. S-07-509.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is 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. Contracts. The meaning of a contract and whether a contract is ambiguous are
questions of law.
4. Statutes. Statutory interpretation presents a question of law.
5. 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.
6. Insurance: Contracts. Insurers may not issue policies that carry terms and con-
ditions less favorable to the insured than those provided in the Uninsured and
Underinsured Motorist Insurance Coverage Act, Neb. Rev. Stat. §§ 44-6401 to
44-6414 (Reissue 2004).
7. Statutes: Legislature: Intent. In construing a statute, a court must determine
and give effect to the purpose and intent of the Legislature as ascertained from
the entire language of the statute considered in its plain, ordinary, and popu-
lar sense.
8. Insurance: Motor Vehicles: Statutes. Read together, the provisions of the
Uninsured and Underinsured Motorist Insurance Coverage Act, Neb. Rev. Stat.
378 	276 NebRASkA RepORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

§§ 44-6401 to 44-6414 (Reissue 2004), mandate that 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 underinsured motor
vehicle or an uninsured motor vehicle.
9. Statutes. It is not within the province of a court to read a meaning into a statute
that is not warranted by the legislative language.
10. Insurance: Contracts: Statutes. Where a statutory omnibus provision is in
conflict with the provisions of an insurance policy, the statute and not the policy
provision is controlling.
11. Insurance: Contracts. While the Uninsured and Underinsured Motorist Insurance
Coverage Act, Neb. Rev. Stat. §§ 44-6401 to 44-6414 (Reissue 2004), allows insur-
ers to issue policies with terms and conditions more favorable to their insureds,
they may not exclude coverage that is guaranteed by the act.
12. Limitations of Actions: Insurance: Motor Vehicles. The purpose underlying Neb.
Rev. Stat. § 44-6413(1)(e) (Reissue 2004) is the protection of the insurer when it
may have to pay uninsured or underinsured motorist benefits.
13. Limitations of Actions: Insurance: Motor Vehicles: Tort-feasors. An insured
must file suit against or settle with all uninsured or underinsured motorist tort-
feasors involved in an automobile accident within the applicable statute of limita-
tions pursuant to Neb. Rev. Stat. § 44-6413(1)(e) (Reissue 2004).
14. Statutes: Legislature: Intent. The components of a series or collection of statutes
pertaining to a certain subject matter which are in pari materia may be conjunc-
tively considered and construed to determine the intent of the Legislature, so that
different provisions of the act are consistent, harmonious, and sensible.
15. Insurance: Motor Vehicles: Tort-feasors: Words and Phrases. A “claim against
the uninsured or underinsured motorist,” within the meaning of Neb. Rev. Stat.
§ 44-6413(1)(e) (Reissue 2004), is a claim against a tort-feasor who caused the
injury with respect to which the insured is claiming uninsured or underinsured
motorist coverage. Thus, uninsured or underinsured motorist coverage is not barred
where the person alleged to have been “the uninsured or underinsured motorist”
was not, in fact, a tort-feasor.
Appeal 	from 	the 	District 	Court 	for 	Cedar 	County:
william B inKaRd, Judge. Reversed and remanded for further
proceedings.
Mark A. keenan, of Moyer, egley, Fullner, Montag & keenan,
for appellant.
Stephan L. Ahl, of Wolfe, Snowden, Hurd, Luers & Ahl,
L.L.p., for appellee.
heavican , 	c.J., 	wRight , 	connolly , 	geRRaRd , 	stePhan ,
mccoRmacK, and milleR-leRman , JJ.
STeFFeN v. pROgReSSIve NORTHeRN INS. CO. 	379
Cite as 276 Neb. 378

mccoRmacK, J.
NATURe OF CASe
kathie Steffen brought this breach of contract claim against
progressive 	Northern 	Insurance 	Company 	(progressive),
the underinsured motorist carrier for her husband, Jeffrey L.
Steffen. Jeffrey was killed when his tractor was struck from
the rear by an underinsured motorist. The district court granted
progressive’s motion for summary judgment on the grounds that
the progressive policy did not provide for underinsured motor-
ist coverage for operation of a farm tractor and that the breach
of contract claim was barred by the statute of limitations. We
reverse the decision of the district court because the exclusion in
the progressive policy is contrary to Nebraska law and remand
the cause for further proceedings regarding the determination of
the statute of limitations issue.
bACkgROUND
On November 17, 2003, Jeffrey was operating his tractor on
Highway 84 just west of Hartington, Nebraska. Jeffrey was struck
from behind by a westbound vehicle driven by an underinsured
motorist, Mary A. Arens. The force of the impact ejected Jeffrey
from his westbound tractor, and he landed in the eastbound lane.
Shortly after the collision, Lyle J. Hochstein approached the
scene of the accident, traveling eastbound at approximately 50
miles per hour in his 1980 Chevrolet pickup, pulling a loaded
flatbed car hauler. As he crested a hill, Hochstein saw two
vehicles stopped on the north side of the highway. As he passed
the two vehicles, his vehicle drove over Jeffrey. Hochstein stated
in his affidavit that he had no knowledge that a collision had
occurred between Arens’ vehicle and Jeffrey’s tractor and that he
did not observe Jeffrey’s body in the road until after he stopped
his vehicle. Jeffrey died at the scene of the accident. The par-
ties stipulated that Jeffrey “died as a result of the injuries he
sustained as a result of the collision between Arens’ vehicle and
his tractor.”
At the time of the accident, Jeffrey was insured by a liability
policy issued by progressive. The policy also provided underin-
sured motorist (UIM) coverage of $100,000. The UIM coverage
section of the policy included the following provisions:
380 	276 NebRASkA RepORTS

Subject to the Limits of Liability, if you pay a premium
for Underinsured Motorist Coverage, we will pay for dam-
ages, other than punitive or exemplary damages, which an
insured person is entitled to recover from the owner or
operator of an underinsured motor vehicle because of
bodily injury:
1. sustained by an insured person;
2. caused by an accident; and
3. arising out of the ownership, maintenance, or use of
an underinsured motor vehicle.
(emphasis in original.)
The progressive UIM coverage had certain exclusions. The
pertinent exclusion in this case provided:
1. Coverage under this part III is not provided for bodily
injury sustained by any person while using or occupying:
. . . .
d. a motorized vehicle or device of any type designed to
be operated on the public roads that is owned by you or a
relative, other than a covered vehicle.
(emphasis in original.) The progressive policy defined “vehicle”
as follows:
“vehicle” and “vehicles” mean a land motor vehicle:
a. of the private passenger, pickup body, or cargo
van type;
b. designed for operation principally upon public roads;
c. with at least four wheels; and
d. with a gross vehicle weight rating of 12,000 pounds
or less, according to the manufacturer’s specifications.
However, “vehicle” and “vehicles” do not include step-
vans, parcel delivery vans, or cargo cutaway vans or other
vans with cabs separate from the cargo area.
(emphasis omitted.) And a “covered vehicle” was defined as
any “vehicle” listed in the declarations page and any additional
“vehicle” or any replacement “vehicle” acquired during the
policy period.
Jeffrey’s tractor was not listed on the declarations page of
the progressive policy, and kathie admits that the tractor was
purchased prior to the policy period. kathie also concedes
STeFFeN v. pROgReSSIve NORTHeRN INS. CO. 	381
Cite as 276 Neb. 378

that a farm tractor is not included within the policy definition
of “vehicle.”
Arens’ motor vehicle insurer offered to pay its policy limits of
$100,000 to kathie to settle her claim for wrongful death. before
accepting Arens’ insurer’s offer, kathie notified progressive of
the tentative settlement offer in a certified letter. In that letter,
kathie also informed progressive of her intent to make a UIM
claim under the automobile liability policy. progressive declined
to exercise its right of substitution pursuant to Neb. Rev. Stat.
§ 44-6412(2) (Reissue 2004). In a letter to kathie, progressive
explained that it was “unable to provide underinsured motorist
coverage for this claim and accident” because the farm tractor
Jeffrey was driving at the time of his death was not a “covered
vehicle” under his policy with progressive.
On August 1, 2005, kathie accepted $100,000 in full settlement
and satisfaction of all claims against Arens and Arens’ insurer.
She did not bring any action against Hochstein. On March 31,
2006, kathie filed this complaint against progressive for breach
of contract. both parties filed motions for summary judgment.
The district court entered summary judgment for progressive,
concluding that the progressive policy did not provide UIM
coverage for operation of a farm tractor and that the claim was
barred by the statute of limitations. The court denied kathie’s
cross-motion for summary judgment. kathie appeals.
ASSIgNMeNTS OF eRROR
kathie assigns, consolidated and restated, that the district
court erred in (1) failing to find that the progressive policy pro-
vided UIM coverage, (2) failing to find the exclusionary clause
of the progressive policy ambiguous, (3) failing to find the
exclusionary clause of the progressive policy contrary to public
policy, (4) finding that the statute of limitations had expired, and
(5) failing to grant her cross-motion for summary judgment.
STANDARD OF RevIeW
[1,2] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no genu-
ine 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
382 	276 NebRASkA RepORTS

entitled to judgment as a matter of law.1 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 deduc-
ible from the evidence.2
[3-5] The meaning of a contract and whether a contract is
ambiguous are questions of law.3 Statutory interpretation pres-
ents a question of law.4 When reviewing questions of law, an
appellate court has an obligation to resolve the questions inde-
pendently of the conclusion reached by the trial court.5
ANALySIS
uim P olicy exclusions
kathie argues on appeal that she is entitled to UIM coverage
for two reasons: (1) She had a reasonable expectation of UIM
coverage under the provisions of the policy, and (2) insofar as
the policy may be interpreted as excluding coverage, it is con-
trary to the Uninsured and Underinsured Motorist Insurance
Coverage Act (UUMICA).6
[6,7] The UUMICA defines the required uninsured motorist
(UM) and UIM coverage, the minimum amount of liability, and
some exclusions to coverage.7 Insurers may not issue policies
that carry terms and conditions less favorable to the insured than
those provided in the UUMICA.8 In construing a statute, a court
must determine and give effect to the purpose and intent of the
1 Hofferber v. City of Hastings, 275 Neb. 503, 747 N.W.2d 389 (2008).
2 Id.
3 Coral Prod. Corp. v. Central Resources, 273 Neb. 379, 730 N.W.2d 357
(2007).
4 In re Estate of Cooper, 275 Neb. 297, 746 N.W.2d 653 (2008).
5 See State ex rel. Bruning v. R.J. Reynolds Tobacco Co., 275 Neb. 310, 746
N.W.2d 672 (2008).
6 Neb. Rev. Stat. §§ 44-6401 to 44-6414 (Reissue 2004).
7 American States Ins. v. Farm Bureau Ins., 7 Neb. App. 507, 583 N.W.2d 358
(1998).
8 Id.
STeFFeN v. pROgReSSIve NORTHeRN INS. CO. 	383
Cite as 276 Neb. 378

Legislature as ascertained from the entire language of the statute
considered in its plain, ordinary, and popular sense.9
Section 44-6408 of the UUMICA states that all automobile
liability insurance policies issued with respect to any motor
vehicle principally garaged in this state shall provide for pro-
tection “of persons insured who are legally entitled to recover
compensatory damages for bodily injury, sickness, disease, or
death from . . . the owner or operator of an underinsured motor
vehicle.” An “[u]nderinsured motor vehicle” is defined broadly
as “a motor vehicle with respect to the ownership, operation,
maintenance, or use of which there is bodily injury liability
insurance . . . and the amount of the insurance . . . is less than
. . . the damages for bodily injury, sickness, disease, or death
sustained by the insured.”10 Certain exclusions to “underinsured
motor vehicle” are set forth in § 44-6407, which are not appli-
cable here.
We have explained that the purpose of the UIM provisions
is to give the same protection to the insured as he or she would
have had if injured in an accident caused by a vehicle covered
by an adequate liability policy.11 The language of § 44-6408 is
broad, specifying only that it be for “persons insured” who are
injured by an uninsured or underinsured motorist.
In § 44-6413, the UUMICA sets forth specific exclusions to
this broad coverage. Section 44-6413 states that the UIM/UM
coverage 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
9 Allied Mut. Ins. Co. v. Action Elec. Co., 256 Neb. 691, 593 N.W.2d 275
(1999).
10 § 44-6406.
11 See, Hood v. AAA Motor Club Ins. Assn., 259 Neb. 63, 607 N.W.2d 814
(2000); Allied Mut. Ins. Co. v. Action Elec. Co., supra note 9; Muller v. Tri-
State Ins. Co., 252 Neb. 1, 560 N.W.2d 130 (1997); Stephens v. Allied Mut.
Ins. Co., 182 Neb. 562, 156 N.W.2d 133 (1968).
384 	276 NebRASkA RepORTS

named insured; or (4) where the statute of limitations has run
on the claim.
[8,9] Read together, the provisions of the UUMICA mandate
that unless one of the exclusions set forth in § 44-6413 applies,
an insured is entitled to recover for injuries sustained in any acci-
dent, so long as the injuries were caused by an “[u]nderinsured
motor vehicle”12 or an “[u]ninsured motor vehicle.”13 It is not
within the province of a court to read a meaning into a statute
that is not warranted by the legislative language.14 Other courts
and authorities reading similar language have likewise con-
cluded that unless any statutory exclusion applies, the UIM/UM
coverage is to be liberally construed.15
The general coverage provision of progressive’s policy with
Jeffrey is similar in nature to the general coverage provisions set
forth by § 44-6408. The policy provides that unless the policy
exclusions apply, progressive
will pay for damages . . . which an insured person is enti-
tled to recover from the owner or operator of an underin-
sured motor vehicle because of bodily injury:
1. sustained by an insured person;
2. caused by an accident; and
3. arising out of the ownership, maintenance, or use of
an underinsured motor vehicle.
(emphasis in original.) We agree with kathie that the undisputed
facts clearly satisfy the general coverage provisions of the policy
with progressive. Jeffrey was an “insured person” under the
policy, and he sustained “bodily injury” in an “accident” which
arose out of the use of an underinsured motor vehicle.
12 § 44-6406. See, also, § 44-6407.
13 § 44-6405. See, also, § 44-6407.
14 In re Petition of SID No. 1, 270 Neb. 856, 708 N.W.2d 809 (2006).
15 See, 16 Samuel Williston, A Treatise on the Law of Contracts § 49:35
(Richard A. Lord ed., 4th ed. 2000); 2 Irvin e. Schermer & William J.
Schermer, Automobile Liability Insurance § 25:3 (4th ed. 2004); 1 Alan I.
Widiss et al., Uninsured and Underinsured Motorist Insurance § 2.3 (3d rev.
ed. 2005). See, e.g., Ball v. Midwestern Ins. Co., 250 kan. 738, 829 p.2d
897 (1992).
STeFFeN v. pROgReSSIve NORTHeRN INS. CO. 	385
Cite as 276 Neb. 378

but progressive asserts that the exclusion provision bars
Jeffrey’s recovery. progressive argues that Jeffrey’s tractor was
either a “motor vehicle” or a “device of any type designed to be
operated on the public roads.” If this is the case, then, since the
tractor was owned by Jeffrey, but was not a “covered vehicle”
under the policy, the exclusion would apply. kathie argues,
however, that both under the policy definitions section of the
contract with progressive and under the UUMICA, a tractor is
not considered a “motor vehicle.” To the extent that a tractor is a
“device of any type designed to be operated on the public roads,”
kathie argues that this deviation from the exclusions specified in
§ 44-6413 is an impermissible reduction in the coverage man-
dated by the UUMICA. We agree.
[10,11] Where a statutory omnibus provision is in conflict
with the provisions of the insurance policy, the statute and not
the policy provision is controlling.16 As the Nebraska Court of
Appeals explained in American States Ins. v. Farm Bureau Ins.,17
where the exclusions provision of a policy was broader than the
exclusions set forth by the UUMICA, then the policy exclusion
was void:
It is obvious that an insurance company could reduce its
exposure or risk by excluding coverage of certain events
or conditions and that if enough exclusions are allowed,
the public could receive markedly less than what the
Legislature has decreed it is entitled to. With each exclu-
sion, the insured would receive less coverage than what the
Legislature has directed . . . . What possible basis could the
courts have for deciding that some exclusions unauthorized
by statute are valid and some not?
While the UUMICA allows insurers to issue policies with terms
and conditions more favorable to their insureds, they may not
exclude coverage that is guaranteed by the act.18 In other words,
the exclusions provided by § 44-6413 are the only exceptions
permitted to the coverage mandated by § 44-6408.
16 Allied Mut. Ins. Co. v. Action Elec. Co., supra note 9.
17 American States Ins. v. Farm Bureau Ins., supra note 7, 7 Neb. App. at 517-
18, 583 N.W.2d at 365.
18 See, American States Ins. v. Farm Bureau Ins., supra note 7; § 44-6413(4).
386 	276 NebRASkA RepORTS

progressive’s policy exclusion states: “Coverage . . . is not
provided for bodily injury sustained by any person while using
or occupying . . . a motorized vehicle or device of any type
designed to be operated on the public roads that is owned by
you or a relative, other than a covered vehicle” (emphasis omit-
ted). Section 44-6413(b) of the UUMICA states that coverage
shall not apply to “[b]odily injury, sickness, disease, or death
of an insured while occupying a motor vehicle owned by,
but not insured by, the named insured or a spouse or relative
residing with the named insured.” both provisions state that if
the insured is injured in a vehicle that the insured or a family
member could have insured, but did not, then there will be no
coverage when that insured is injured by an uninsured or under-
insured motorist.
but the language of the policy and the UUMICA diverges
with respect to whether a farm tractor is a device included
within this exemption. Under the UUMICA, the exemption
is triggered by a “motor vehicle” which is owned by, but not
insured by, the named insured or relative residing with the
named insured. Section 44-6404 incorporates the definition
of “motor vehicle” provided by Neb. Rev. Stat. § 60-501(4)
(Reissue 2004): “any self-propelled vehicle which is designed
for use upon a highway, including trailers designed for use with
such vehicles, except . . . (d) farm tractors.” progressive’s policy
does not specifically exclude a tractor as a “motor vehicle.” but
the policy states in relevant part that the term “motor vehicle”
means a land motor vehicle “of the private passenger, pickup
body, or cargo van type . . . designed for operation principally
upon public roads.”
progressive argues that this definition of “motor vehicle”
includes tractors and that in any event, a tractor is a “device of
any type designed to be operated on the public roads.” Therefore,
progressive contends, a tractor is a “vehicle” or “device” that
must be specifically covered if owned by the insured or a resi-
dent family member. Section 60-501, by specifically excluding
farm tractors from the definition of “motor vehicle,” trumps any
definition in progressive’s policy to the contrary. progressive’s
policy definition of a farm tractor as a motor vehicle is, there-
fore, an attempt to make the policy exclusion broader than the
STeFFeN v. pROgReSSIve NORTHeRN INS. CO. 	387
Cite as 276 Neb. 378

statutory definition in § 44-6413(b) and is void.19 Accordingly,
the district court erred in granting summary judgment on the
ground that Jeffrey’s tractor fell under the exclusions provision
of the progressive policy. We turn now to whether the court was
correct in granting summary judgment on the alternative ground
that kathie had violated the statute of limitations provisions of
the UUMICA and the policy.
statute of limitations
As an alternative basis for its ruling in favor of progressive,
the district court determined that the breach of contract action
was barred by the statute of limitations. The court found that
kathie’s failure to file suit against Arens and Hochstein within
the 2-year statute of limitations for wrongful death claims barred
the breach of contract claim against progressive. kathie asserts
that the court erred in granting summary judgment in favor of
progressive on this basis and that her cross-motion for summary
judgment should have been granted instead. As to Arens, we
conclude that the statute of limitations is not a bar to the breach
of contract action because kathie settled with Arens before the
wrongful death statute of limitations expired. As to kathie’s
failure to sue or settle with Hochstein, we conclude that there
are material issues of fact as to whether Hochstein was, in fact,
a second tort-feasor against whom she would have had a “claim”
that she allowed to expire.
We first address the court’s conclusion that kathie’s failure
to file suit against Arens before settling her claim barred her
subsequent breach of contract action against progressive. Under
the UUMICA, UIM/UM coverage will not apply to “[b]odily
injury, sickness, disease, or death of the insured with respect to
which the applicable statute of limitations has expired on the
insured’s claim against the uninsured or underinsured motor-
ist.”20 progressive’s policy with Jeffrey incorporated this provi-
sion by reference to the limitations periods set forth by appli-
cable state law.
19 See American States Ins. v. Farm Bureau Ins., supra note 7.
20 § 44-6413(1)(e).
388 	276 NebRASkA RepORTS

[12] We have explained that § 44-6413(1)(e) bars as untimely
an insured’s claim for UIM/UM benefits when the statute of
limitations on the underlying claim against the uninsured or
underinsured motorist has “expired.”21 The purpose underly-
ing § 44-6413(1)(e) is the protection of the insurer when it
may have to pay UIM/UM benefits.22 The statute makes it the
responsibility of the insured to preserve the claim against the
tort-feasor in order to protect the insurer’s subrogation rights
against the tort-feasor.23
but, the insured can prevent the statute of limitations from
“expiring” either by filing a timely complaint24 or by settling a
claim25 against the tort-feasor. The district court did not have the
benefit of our decision in Reimers-Hild v. State26 at the time of
its ruling. In Reimers-Hild, we clarified that where the insured
settles with the tort-feasor within the applicable statute of limita-
tions, a suit against the UIM/UM insurer is not barred, regard-
less of whether any suit was ever filed against that tort-feasor.
We conclude that the district court erred in finding that kathie’s
claim for UIM/UM coverage was barred by her failure to sue
Arens before the statute of limitations on kathie’s claim against
her expired.
[13] However, it does not appear from the record that kathie
either filed suit against or settled with Hochstein. We have
never specifically been presented with a situation where an
insured’s injuries were caused by more than one uninsured or
underinsured tort-feasor. There is, however, no reason why the
insured’s obligations would change simply because multiple
motorists are involved. As mentioned above, § 44-6413(1)(e)
makes it the responsibility of the insured to preserve the claim
against the tort-feasor in order to protect the insurer’s rights
21 Reimers-Hild v. State, 274 Neb. 438, 741 N.W.2d 155 (2007); Schrader v.
Farmers Mut. Ins. Co., 259 Neb. 87, 608 N.W.2d 194 (2000).
22 Dworak v. Farmers Ins. Exch., 269 Neb. 386, 693 N.W.2d 522 (2005).
23 See, Reimers-Hild v. State, supra note 21; Dworak v. Farmers Ins. Exch.,
supra note 22.
24 See Schrader v. Farmers Mut. Ins. Co., supra note 21.
25 See Reimers-Hild v. State, supra note 21.
26 Id.
STeFFeN v. pROgReSSIve NORTHeRN INS. CO. 	389
Cite as 276 Neb. 378

against the tort-feasor.27 Two statutory limitations periods are
relevant to the insurer’s claim because of the derivative nature
of UIM coverage.28 Allowing a claim to “expire” against one of
several tort-feasors would prejudice the insurer in the same way
that expiration of a claim against a single tort-feasor would. We
determine that an insured must, utilizing the procedures set forth
in § 44-6412, file suit against or settle with all UIM/UM tort-
feasors involved in an automobile accident within the applicable
statute of limitations pursuant to § 44-6413(1)(e).
Nevertheless, we do not read § 44-6413(1)(e) as requir-
ing that the insured file an action against or settle with all
motorists tangentially involved in an accident. To begin with,
§ 44-6413(1)(e)’s reference to the insured’s “claim” against the
uninsured or underinsured motorist presupposes the existence
of such a claim. A “claim” for these purposes is the equivalent
of a cause of action and consists of the fact or facts which give
one a right to judicial relief against another.29 by definition, an
insured cannot have a “claim” against a person who did not
injure the insured. It is axiomatic that the statute of limitations
cannot “expire” on a claim that never existed.30 In other words,
§ 44-6413(1)(e) is only applicable to tort-feasors who injured
the insured.
This is consistent with the general scheme of the UUMICA.
The UIM/UM coverage required by the act extends only to
persons “who are legally entitled to recover compensatory
damages” from the owner or operator of an uninsured or under-
insured motor vehicle.31 Settlement with “any person who may
be legally liable for [the insured’s] injuries” can bar recov-
ery under UIM/UM coverage if the insurer was not properly
notified and “such settlement adversely affects the rights of
the insurer.”32
27 Id.; Dworak v. Farmers Ins. Exch., supra note 22.
28 See Snyder v. EMCASCO Ins. Co., 259 Neb. 621, 611 N.W.2d 409 (2000).
29 See Poppert v. Dicke, 275 Neb. 562, 747 N.W.2d 629 (2008).
30 See Reimers-Hild v. State, supra note 21.
31 See § 44-6408(1).
32 See § 44-6413(1)(a).
390 	276 NebRASkA RepORTS

It is obvious that the intent of § 44-6413(1)(e), to protect the
insurer’s rights against a purported tort-feasor, is only implicated
if the insurer has rights against the tort-feasor arising from an
underlying tort. “Uninsured motor vehicle”33 and “[u]nderinsured
motor vehicle”34 are defined in terms of the relationship between
the available insurance and the insured’s damages. It is simply
nonsensical to refer to a vehicle as being “uninsured” or “under-
insured” unless the owner or operator of that vehicle is liable for
contributing to the insured’s injury.
[14,15] The components of a series or collection of statutes
pertaining to a certain subject matter which are in pari materia
may be conjunctively considered and construed to determine
the intent of the Legislature, so that different provisions of
the act are consistent, harmonious, and sensible.35 When the
UUMICA is read as a whole, it is evident that a “claim against
the uninsured or underinsured motorist,” within the meaning of
§ 44-6413(1)(e), is a claim against a tort-feasor who caused the
injury with respect to which the insured is claiming UIM/UM
coverage. Thus, UIM/UM coverage is not barred where the per-
son alleged to have been “the uninsured or underinsured motor-
ist”36 was not, in fact, a tort-feasor.
In this case, kathie argues that the district court’s finding that
Hochstein was a “second potential tort-feasor” is without basis
in law or fact. Specifically, kathie contends that there are genu-
ine issues of material fact as to whether Hochstein negligently
operated his vehicle and, if so, whether that negligence was a
proximate cause of any injury to Jeffrey. These questions of
fact, kathie argues, should have precluded summary judgment
in favor of progressive. We agree.
The record demonstrates that there is a genuine issue of mate-
rial fact regarding Hochstein’s negligence and whether that neg-
ligence was a proximate cause of Jeffrey’s injuries. As part of
the record, Hochstein submitted a sworn affidavit regarding the
33 See § 44-6405.
34 See § 44-6406.
35 Japp v. Papio-Missouri River NRD, 271 Neb. 968, 716 N.W.2d 707 (2006).
36 § 44-6413.
STeFFeN v. pROgReSSIve NORTHeRN INS. CO. 	391
Cite as 276 Neb. 378

accident. Hochstein stated that he had no opportunity to observe
Jeffrey on the highway and had no knowledge that a collision had
occurred between Arens’ vehicle and Jeffrey’s tractor until after
Hochstein stopped his vehicle. Hochstein stated that “[u]nder the
circumstances, [he felt he] operated [his] vehicle appropriately.”
And progressive admits in its brief that “there were sufficient
facts to tender to a jury the question of . . . Hochstein’s role in
contributing to [Jeffrey’s] death.”37
As the party moving for summary judgment seeking to be
relieved of its UIM coverage obligations to kathie, progressive
had the burden of showing that Hochstein was negligent
and that his negligence was a proximate cause of Jeffrey’s
death. progressive failed to introduce evidence showing that
Hochstein was negligent and that his negligence was the proxi-
mate cause of Jeffrey’s damages. progressive, therefore, failed
to carry its burden of showing that Hochstein was an under-
insured tort-feasor with whom kathie was required to settle
or whom she must sue, in accordance with § 44-6413(1)(e),
before the statute of limitations expired on any potential claim
against Hochstein.
Therefore, a genuine issue of material fact exists as to
whether Hochstein was negligent and whether his negligence
proximately caused Jeffrey’s damages. We conclude that the dis-
trict court erred in sustaining progressive’s motion for summary
judgment. However, because there was a genuine issue of mate-
rial fact, the court did not err in denying kathie’s cross-motion
for summary judgment.
CONCLUSION
For the foregoing reasons, we reverse the district court’s entry
of summary judgment in favor of progressive and remand the
cause to the district court for further proceedings consistent with
this opinion.
R eveRsed and Remanded foR
fuRtheR PRoceedings .
37 brief for appellee at 11.
392 	276 NebRASkA RepORTS