Harvey v. Nebraska Life & Health Ins. Guar. Assn.

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.