Alsidez v. American Family Mut. Ins. Co.

otherwise attended by another physician and conducting an
autopsy when requested by the county coroner or when other
wise required by law. In this case, where the death was that of
a minor and under suspicious circumstances, state law required
that an autopsy be performed.
Here, Okoye was appointed as required by and in accord
ance with state law. He was vested with the duty to conduct an
autopsy in connection with the minor in the underlying case.
During the course of that autopsy, Okoye was tasked with
attempting to establish, “by a reasonable degree of medical
certainty, the cause or causes of the death” and was further
required to “certify the cause or causes of death to the county
attorney.”
Under the circumstances presented by this case, I would
find that in his role, Okoye was acting in tandem with the
county attorney, who was ultimately responsible for bringing
any necessary criminal charges. I would find that the coroner’s
physician’s duties, like the duties of a prosecutor in the same
situation, are quasi judicial in nature. As such, I would find
that Okoye is entitled to the same immunity as enjoyed by the
county attorney.
 Neb. Rev. Stat § 23 1820 (Reissue 2007).
 Neb. Rev. Stat. § 23 182(1) (Reissue 2007).
 § 23 182(2).
M elissa alsidez , special adMinistrator of the estate
of anthony alsidez , deceased, and M elissa alsidez ,
individually, appellants , v. aMerican faMily
Mutual insurance coMpany, appellee .
807 N.W.2d 18
Filed December 1, 2011. 	No. S 10 1220.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s granting of summary judgment if the pleadings and admitted evidence
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.
890 	282 NebRASkA RepORtS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:44 AM CST

2. ____: ____. 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, and gives that party the benefit of all reasonable inferences deducible
from the evidence.
3. Insurance: Contracts: Judgments: Appeal and Error. the interpretation of an
insurance policy presents a question of law that an appellate court decides inde
pendently of the trial court.
. Insurance: Motor Vehicles: Contracts: Statutes: Damages. In order to be
entitled to underinsured motorist coverage under the terms of both an insurance
policy and the Uninsured and Underinsured Motorist Insurance Coverage Act, an
insured must be legally entitled to recover compensatory damages from the owner
or operator of an underinsured motor vehicle.
. Statutes: Legislature: Public Policy. It is the function of the Legislature
through the enactment of statutes to declare what is the law and public policy of
this state.
. Insurance: Contracts: Statutes: Legislature: Public Policy. An exclusion in an
insurance policy cannot be void as against public policy when it mirrors a statu
tory exclusion and when the statute, which has not been found wanting, is the
Legislature’s expression of the public policy of this state.
Appeal from the District Court for Scotts bluff County: leo
dobrovolny, Judge. Affirmed.
Christopher Welsh, of Welsh & Welsh, p.C., L.L.O., for
appellants.
tanya J. Janulewicz, of Leininger, Smith, Johnson, baack,
placzek & Allen, for appellee.
heavican, 	c.J., 	Wright, 	connolly, 	gerrard, 	stephan,
MccorMack, and M iller-lerMan, JJ.
M iller-lerMan, J.
NAtURe OF CASe
In this automobile accident insurance coverage appeal, the
appellants, Melissa Alsidez, individually and as special admin
istrator of the estate of Anthony Alsidez (collectively the appel
lants), appeal the order of the district court for Scotts bluff
County in which the court granted summary judgment in favor
of American Family Mutual Insurance Company (American
Family) and dismissed the complaint. because we agree with
the district court’s conclusions that the recovery the appellants
seek is not available under the underinsured motorist cover
age endorsement of the policy issued to Melissa by American
ALSIDez v. AMeRICAN FAMILy MUt. INS. CO. 	891
Cite as 282 Neb. 890

Family and the policy is not void as against public policy,
we affirm.
StAteMeNt OF FACtS
the material facts in this appeal are not in dispute. On April
27, 2009, Anthony Alsidez was in a single car accident on
South Mitchell Road near Mitchell, Nebraska. Anthony was
driving a 199 Jeep Grand Cherokee Laredo, which was owned
by Melissa, Anthony’s mother. Gregory Segura was riding in
the front passenger seat, and two others were riding in the back
seat. At one point, Segura grabbed the steering wheel, which
caused the vehicle to veer to the right. Anthony attempted to
correct the vehicle, but overcorrected, which caused the vehicle
to slide across the road and into a ditch, where the vehicle
rolled and crashed. On May 1, Anthony died as a result of the
injuries he received in the accident.
the appellants filed a negligence suit against Segura, com
bined with a coverage action against American Family. In
May 2010, the appellants settled their claims against Segura
for $0,000, which was the liability limit of Segura’s pol
icy with State Farm Automobile Insurance Company for a
vehicle that was not involved in this accident. this limit did
not compensate the appellants for their claimed loss. the
appellants moved to dismiss their claims against Segura with
prejudice, and the district court granted this motion on July .
Accordingly, American Family was the only remaining defend
ant in the lawsuit.
the appellants sought to recover underinsured motorist cov
erage from American Family through the policy issued by
American Family to Melissa individually, which was in effect
on the date of the accident. the policy stated:
UNDERINSURED MOTORISTS (UIM)
COVERAGE ENDORSEMENT . . . .
. . . .
We will pay compensatory damages for bodily injury
which an insured person is legally entitled to recover
from the owner or operator of an underinsured motor
vehicle. the bodily injury must be sustained by an
892 	282 NebRASkA RepORtS

insured person and must be caused by accident and arise
out of the use of the underinsured motor vehicle.
. . . .
As used in this endorsement:
1. Insured person means:
a. You or a relative.
b. Anyone else occupying your insured car.
. . . .
3. Underinsured motor vehicle means a motor vehicle
which is insured by a liability bond or a policy at the time
of the accident and the amount of the bond or policy:
a. Is less than the limit of underinsured motorists cov
erage under this policy . . . .
. . . .
Underinsured motor vehicle, however, does not mean
a vehicle:
a. Insured under the Liability coverage of this policy.
. . . .
c. Owned by or furnished or available for the regular
use of you or a relative.
the policy stated in its definitions section: “Use means own
ership, maintenance, or use,” and “[r]elative means a person
living in your household, related to you by blood, marriage
or adoption.” the policy defines “insured car” as “[a]ny car
described in the declarations . . . .” the Jeep is listed in the
policy’s declarations section.
American Family filed a motion for summary judgment,
which the district court granted on November 18, 2010. the
district court reasoned that the language of the American
Family policy made it clear that the Jeep cannot be considered
an “underinsured vehicle” under Melissa’s policy. the district
court also determined that the “‘regular use’” exclusion in
Melissa’s policy does not violate public policy. Accordingly,
the district court granted American Family’s motion for sum
mary judgment and dismissed the complaint.
the appellants appeal the order of the district court granting
summary judgment in favor of American Family.
ALSIDez v. AMeRICAN FAMILy MUt. INS. CO. 	893
Cite as 282 Neb. 890

ASSIGNMeNtS OF eRROR
the appellants claim generally that the district court erred
as a matter of fact and law when it granted American Family’s
motion for summary judgment. they specifically claim that
the district court erred when it determined that the Jeep was
an “insured car” and not an “underinsured vehicle” under
Melissa’s policy and that the exclusion from the underinsured
coverage in Melissa’s policy for vehicles “[o]wned by or fur
nished or available for the regular use of you or a relative” was
not void as against public policy.
StANDARDS OF ReVIeW
[1,2] An appellate court will affirm a lower court’s granting
of summary judgment if the pleadings and admitted evidence
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. Palmer v. Lakeside Wellness Ctr., 281 Neb. 780,
798 N.W.2d 8 (2011). In reviewing a summary judgment, the
appellate court views the evidence in the light most favorable
to the party against whom the judgment was granted, and gives
that party the benefit of all reasonable inferences deducible
from the evidence. Id.
[3] the interpretation of an insurance policy presents a
question of law that we decide independently of the trial court.
Countryside Co-op v. Harry A. Koch Co., 280 Neb. 79, 790
N.W.2d 873 (2010).
ANALySIS
the appellants claim that the district court erred when it
granted summary judgment in favor of American Family based
on the provisions in Melissa’s policy with American Family
and further erred when it determined that such language was
not void as against public policy.
With regard to the provisions in Melissa’s policy, the appel
lants argue that under the facts of this case, the Jeep should be
deemed as an “underinsured vehicle” under Melissa’s policy
and that the appellants should be compensated under the poli
cy’s underinsured provisions. the appellants reason that Segura
89 	282 NebRASkA RepORtS

was “operating” the vehicle at the time of the accident and that
because Segura’s insurance policy compensated for liability
that was insufficient to adequately compensate the appellants
for the death of Anthony, the underinsured motorist coverage
in Melissa’s policy should be invoked and render the Jeep an
“underinsured vehicle.” the appellants claim the district court’s
determinations to the contrary were error.
With regard to the appellants’ public policy argument, the
appellants claim that the exclusion of vehicles that are “[o]wned
by or furnished or available for the regular use of you or a rela
tive” from the scope of “underinsured motor vehicles” is void
as against public policy and that the district court erred when
it failed to so find. the appellants point to cases from other
jurisdictions which have concluded that similar “regular use”
exclusions are void as against public policy. the appellants
assert that the “regular use” exclusion is contrary to the pur
pose of Nebraska’s underinsured motorist coverage statute. the
appellants state that the purpose of the underinsured motorist
coverage statute is to make victims of drivers who carry less
than adequate liability insurance as nearly whole as possible.
they assert that the purpose of the “regular use” exclusion is to
prevent coverage under both the underinsured motorist and the
liability portions of the same policy and that because they did
not receive liability compensation under Melissa’s policy, the
rationale underlying the exclusion does not apply.
In response, American Family contends for a variety of
reasons that the language in Melissa’s policy precludes under
insured coverage in this case and that the “regular use” exclu
sion from the underinsured coverage in Melissa’s policy is not
against public policy. We agree with American Family that the
Jeep was not an underinsured motor vehicle in this case and
that the exclusion to which the appellants take exception is not
void as against public policy.
Our resolution of this appeal relies on the provisions of
Melissa’s policy and references to Nebraska statutes. the
underinsured motorist coverage provision of the automobile
policy American Family issued to Melissa provides:
We will pay compensatory damages for bodily injury
which an insured person is legally entitled to recover
ALSIDez v. AMeRICAN FAMILy MUt. INS. CO. 	89
Cite as 282 Neb. 890

from the owner or operator of an underinsured motor
vehicle. the bodily injury must be sustained by an
insured person and must be caused by accident and arise
out of the use of the underinsured motor vehicle.
the policy describes an underinsured vehicle and states that
an “[u]nderinsured motor vehicle, however, does not mean a
vehicle: a. [i]nsured under the Liability coverage of this policy
[or] c. [o]wned by or furnished or available for the regular use
of you or a relative.”
the 	Uninsured 	and 	Underinsured 	Motorist 	Insurance
Coverage Act is implicated in our analysis of this case. As a
general matter, the act requires that automobile liability insur
ance policies provide for protection against uninsured and
underinsured motor vehicles. See Neb. Rev. Stat. §§  01
to  1 (Reissue 2010). the act provides at §  08(1)
as follows:
No policy insuring against liability imposed by law for
bodily injury, sickness, disease, or death suffered by a
natural person arising out of the ownership, operation,
maintenance, or use of a motor vehicle within the United
States, its territories or possessions, or Canada shall be
delivered, issued for delivery, or renewed with respect to
any motor vehicle principally garaged in this state unless
coverage is provided for the protection of persons insured
who are legally entitled to recover compensatory dam
ages for bodily injury, sickness, disease, or death from
. . . (b) the owner or operator of an underinsured motor
vehicle . . . .
(emphasis supplied.)
elsewhere, §  07 of the act provides in part:
An uninsured or underinsured motor vehicle shall not
include a motor vehicle:
(1) Insured under the liability coverage of the same
policy of which the uninsured or underinsured motorist
coverage is a part;
(2) Owned by, furnished, or available for the regular
use of the named insured or any resident of the insured’s
household.
89 	282 NebRASkA RepORtS

[] In order to be entitled to underinsured motorist cover
age under the terms of both the policy and the Uninsured and
Underinsured Motorist Insurance Coverage Act, an insured
must be legally entitled to recover compensatory damages from
the owner or operator of an “underinsured motor vehicle.” In
the present case, in order for the appellants to be entitled to
underinsured motorist compensation with respect to the April
27, 2009, accident, the Jeep involved in the accident must be
an “underinsured motor vehicle.” For the reasons set forth
below, we conclude under both the policy issued by American
Family and by reference to the Uninsured and Underinsured
Motorist Insurance Coverage Act, that the Jeep was not an
“underinsured motor vehicle” and that, therefore, the appel
lants cannot recover under the underinsured provisions of
Melissa’s policy.
the interpretation of an insurance policy presents a ques
tion of law that we decide independently of the trial court.
Countryside Co-op v. Harry A. Koch Co., 280 Neb. 79, 790
N.W.2d 873 (2010). We have reviewed the policy and the
undisputed facts. We determine that the Jeep is not an under
insured vehicle under Melissa’s policy for several reasons,
including that it is an “insured” vehicle under the policy; that
it is owned by Melissa, the policyholder; and that it was made
available for the “regular use” of Anthony.
the policy issued by American Family in the present case
specifically excludes from the definition of “underinsured motor
vehicle” any vehicle “[i]nsured under the Liability coverage of
this policy.” According to the liability section of the policy,
American Family “will pay compensatory damages an insured
person is legally liable for because of bodily injury and prop
erty damage due to the use of a car or utility trailer.” the
policy defines “[i]nsured person” as “[y]ou or a relative” or
“[a]ny person using your insured car.” In the policy, “You”
refers to Melissa. “Your insured car” is defined as “[a]ny
car described in the declarations . . . .” the 199 Jeep Grand
Cherokee Laredo is listed in the policy’s declarations section.
thus, because the Jeep is insured under the liability coverage
section of the American Family policy, it is an insured vehicle
ALSIDez v. AMeRICAN FAMILy MUt. INS. CO. 	897
Cite as 282 Neb. 890

and excluded from the definition of “underinsured motor vehi
cle” under the terms of the policy. the district court did not err
when it so determined.
Referring again to the policy, the Jeep is not an underinsured
motor vehicle, because it was owned by Melissa, who is the
named insured. the underinsured motorists coverage provision
states that an “[u]nderinsured motor vehicle” does not mean
a vehicle “[o]wned by or furnished or available for the regular
use of you or a relative.” the policy defines “[y]ou and your”
as “the policyholder named in the declarations.” the policy
holder named in the declarations is Melissa. In this case, the
Jeep was owned by Melissa and Melissa is the policyholder
named in the declarations. thus, because the Jeep was owned
by the policyholder named in the declarations, it is excluded
from the definition of “underinsured motor vehicle” under the
terms of the policy. the district court did not err when it so
determined.
Referring again to the policy, the policy defines “[r]elative”
as “a person living in your household, related to you by blood,
marriage or adoption.” there is no dispute that the Jeep that
Anthony was driving at the time of the accident was avail
able to him for his regular use, that Anthony was Melissa’s
son, and that he was living with her at the time of the acci
dent. therefore, because the Jeep was made available for the
regular use of Anthony, a relative of the policyholder, the
Jeep was excluded from the definition of “underinsured motor
vehicle” under the policy. the district court did not err when it
so determined.
Similar 	to 	the 	policy 	language, 	the 	Uninsured 	and
Underinsured Motorist Insurance Coverage Act, which man
dates the availability of underinsured coverage, provides in part
at §  07 as follows:
An uninsured or underinsured motor vehicle shall not
include a motor vehicle:
(1) Insured under the liability coverage of the same
policy of which the uninsured or underinsured motorist
coverage is a part;
(2) Owned by, furnished, or available for the regular
use of the named insured or any resident of the insured’s
household.
898 	282 NebRASkA RepORtS

thus, in addition to the terms of Melissa’s policy, the Jeep was
excluded from the definition of “underinsured motor vehicle”
for purposes of the insurance requirements of the Uninsured
and Underinsured Motorist Insurance Coverage Act.
Notwithstanding the dictates of the language of the policy
and the act, the appellants assert that the provision in the policy
excluding vehicles that are owned or furnished for the “regular
use” of the insured or a relative is void as against public policy
and is contrary to the purpose of Nebraska’s underinsured
motorist coverage statute. they claim that the district court
erred when it rejected this assertion. We conclude that the dis
trict court did not err.
In connection with their public policy argument, the appel
lants refer us to cases from other jurisdictions. In the cases
upon which the appellants rely, courts have held that various
provisions in automobile insurance policies excluding vehicles
owned by, furnished, or made available for the regular use of
a named insured or a relative of the insured from the defini
tion of “uninsured motor vehicles” or “underinsured motor
vehicles” are unenforceable contract restrictions, because they
are at odds with mandatory uninsured or underinsured motorist
coverage required by statute, the purpose of which is to protect
citizens from damages caused by uninsured or underinsured
motorists. the appellants rely on these cases to show that the
trial court erred in determining the provision in the policy
is not void as against public policy. See, Gibbs v. National
General Ins. Co., 938 S.W.2d 00 (Mo. App. 1997); Fontanez
v. Texas Farm Bureau Ins. Companies, 80 S.W.2d 7 (tex.
App. 1992). the decisions on which the appellants rely are dis
tinguishable from the instant case, which must be decided with
reference to Nebraska’s statutes.
Unlike Nebraska’s Uninsured and Underinsured Motorist
Insurance Coverage Act, which excludes vehicles made avail
able for the regular use of a named insured or any resident of
the insured’s household from the definition of “underinsured
motor vehicle,” §  07(2), the state statutes involved in the
cases relied on by the appellants do not require the exclusion
of vehicles made available for the regular use of a relative
of the insured. In Gibbs v. National General Ins. Co., supra,
the uninsured and underinsured motorist coverage statute in
ALSIDez v. AMeRICAN FAMILy MUt. INS. CO. 	899
Cite as 282 Neb. 890

Missouri did not include a “regular use” exclusion. Similarly,
in Fontanez v. Texas Farm Bureau Ins. Companies, supra, the
uninsured and underinsured motorist coverage statute in texas
did not specifically include a “regular use” exclusion in the
definition of an “underinsured motor vehicle.”
Unlike the analyses in the cases relied on by the appellants
which involve statutes which do not exclude vehicles provided
for the regular use of the insured or a relative of the insured
from the definition of “uninsured motor vehicle” or “under
insured motor vehicle,” the instant case is more comparable
to our analysis employed in Continental Western Ins. Co. v.
Conn, 22 Neb. 17, 29 N.W.2d 9 (2001). In Continental
Western Ins. Co., the appellants therein asserted that the auto
mobile policy provision which excluded from the definition
of an “underinsured motor vehicle” any vehicle “‘[o]wned
by any governmental unit or agency’” was void as against
public policy. Id. at 1, 29 N.W.2d at 99. We rejected
this argument.
[,] In rejecting the contention of the appellants appear
ing in Continental Western Ins. Co., we referred to Nebraska’s
Uninsured and Underinsured Motorist Insurance Coverage Act,
which provides that an “‘underinsured motor vehicle shall
not include a motor vehicle . . . () [w]hich is owned by any
government, political subdivision or agency thereof . . . .’”
22 Neb. at 1, 29 N.W.2d at 00. See §  07(). In
Continental Western Ins. Co., we stated:
“[I]t is the function of the Legislature through the enact
ment of statutes to declare what is the law and public
policy of this state.” Clemens v. Harvey, 27 Neb. 77, 82,
2 N.W.2d 18, 189 (199). the exclusion in the insur
ance policy cannot be void as against public policy when
it mirrors the statutory exclusion and when the statute,
which has not been found wanting, is the Legislature’s
expression of the public policy of this state.
22 Neb. at 17, 29 N.W.2d at 01. In Continental Western
Ins. Co., we therefore found that the exclusion of government
owned vehicles from the definition of an “underinsured motor
900 	282 NebRASkA RepORtS

vehicle” in the insurance policy at issue was not void as against
public policy.
Similar to our observation in Continental Western Ins. Co.
v. Conn, supra, the policy exclusion challenged herein mirrors
the statute’s provisions. In the instant case, the policy issued by
American Family excluded from the definition of an “under
insured motor vehicle” any vehicle “[o]wned by or furnished
or available for the regular use of you or a relative.” this
policy language closely follows the language of Nebraska’s
Uninsured and Underinsured Motorist Insurance Coverage Act,
which excludes from the definition of an “underinsured motor
vehicle” a vehicle “[o]wned by, furnished, or available for
the regular use of the name insured or any resident of the
insured’s household.” §  07(2). Applying our reasoning
in Continental Western Ins. Co., we conclude that the “regular
use” exclusion in the insurance policy, which mirrors the statu
tory exclusion, reflects the public policy of this state and is
not void as against public policy. the district court did not err
when it reached the same conclusion.
CONCLUSION
Following our consideration on appeal, we agree with the
district court that the Jeep is not an “underinsured vehicle”
under the policy and that the “regular use” exclusion is con
sistent with §  07(2) of the Uninsured and Underinsured
Motorist Insurance Coverage Act, and not void as against pub
lic policy. the district court did not err when it entered sum
mary judgment in favor of American Family and dismissed the
complaint. We therefore affirm.
affirMed.
Wright, J., not participating in the decision.
ALSIDez v. AMeRICAN FAMILy MUt. INS. CO. 	901
Cite as 282 Neb. 890