Rasmussen v. State Farm Mut. Auto. Ins. Co.

Appellants also claim the district court erred in denying their
motion for an order nunc pro tunc reinstating their sixth cause
of action for involuntary liquidation. In its order of April 22,
2008, the court expressly stated that it intended to dismiss the
sixth cause of action and that the dismissal was “no mistake.”
We find that the court has been extremely patient in dealing
with appellants’ repeated attempts to retry issues that have pre-
viously been decided. The court did not abuse its discretion in
denying appellants’ motion for an order nunc pro tunc.
Having previously decided in Ferer I that the district court
did not err when it dismissed appellants’ first through sixth
causes of action, we conclude that the district court did not
abuse its discretion in refusing to allow appellants to resur-
rect causes of action that have merely been repackaged and
rewrapped. The case of Aaron Ferer and Robin Monsky versus
AFS, Matthew Ferer, and Whitney Ferer is over and done.
CONCLUSION
We find no merit to the assignments of error or argu-
ments made by appellants. The judgment of the district court
is affirmed.
A ffirmed.
Wright, J., participating on briefs.
mccormAck, J., not participating.
RASMUSSeN v. STATe FARM MUT. AUTO. INS. CO. 	289
Cite as 278 Neb. 289
Brent e. rAsmussen And kim rAsmussen, AppellAnts And
cross -Appellees , v. stAte fArm mutuAl AutomoBile
insurAnce compAny et Al ., Appellees , And kristA
lisBon, formerly knoWn As kristA vAn Wyhe ,
Appellee And cross -AppellAnt.
770 N.W.2d 619
Filed August 7, 2009. 	No. S-08-747.
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
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

whom the judgment was granted, and the court gives that party the benefit of all
reasonable inferences deducible from the evidence.
3. Insurance: Contracts: Appeal and Error. The meaning of an insurance policy
is a question of law, in connection with which an appellate court has an obliga-
tion to reach its own conclusions independently of the determination made by the
lower court.
4. Rescue Doctrine. The rescue doctrine contemplates a voluntary act by one who,
in an emergency and prompted by spontaneous human motives to save human
life, attempts a rescue which he had no duty to attempt by virtue of a legal obliga-
tion or duty fastened on him by his employment.
5. Rescue Doctrine: Negligence. The rescue doctrine recognizes that those who
negligently imperil life or property may be liable not only to their victims, but
also to the rescuers.
6. Rescue Doctrine: Negligence: Public Policy. The rescue doctrine is shorthand
for a public policy that imposes a duty of care owed to rescuers.
7. Negligence. Whether a legal duty exists for actionable negligence is a question of
law dependent on the facts in a particular situation.
8. Negligence: Words and Phrases. A duty, in negligence cases, may be defined as
an obligation, to which the law will give recognition and effect, to conform to a
particular standard of conduct toward another.
9. Rescue Doctrine: Negligence. The rescue doctrine defines a particular standard
of conduct and recognizes a duty of the rescued person whose conduct has placed
the rescuer in peril.
10. Negligence. A person has a duty to exercise ordinary care for his own safety.
11. Negligence: Motor Vehicles. The driver of an automobile owes a duty of reason-
able care in the operation of the vehicle.
12. Claims: Marriage: Derivative Actions. Loss of consortium claims are
derivative.
13. Appeal and Error. For an appellate court to consider an alleged error, the error
must be both specifically assigned and specifically argued in the brief of the party
assigning the error.
14. Negligence: Proof. The burden of proving negligence is on the party alleging it,
and merely establishing that an accident happened does not prove negligence.
15. Negligence: Motor Vehicles. The mere skidding of an automobile, without more,
does not prove negligence.
16. ____: ____. Skidding, together with evidence of some other facts and circum-
stances tending to show a failure to exercise reasonable care, may be sufficient to
permit an inference of negligent loss of control.
17. Motor Vehicles. A motorist is required to maintain reasonable control of the
vehicle commensurate with the road conditions then and there existing at the time
of the occurrence.
Appeal from the District Court for Douglas County: J. pAtrick
mullen, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
290 	278 NebRASkA RepORTS

Thomas A. Grennan and bryan J. Roberts, of Gross &
Welch, p.C., L.L.O., for appellants.
Donald R. Witt and Andrea D. Snowden, of baylor, evnen,
Curtiss, Grimit & Witt, L.L.p., for appellee krista Lisbon.
Russell A. Westerhold, of Fraser Stryker, p.C., L.L.O., for
appellee State Farm Mutual Automobile Insurance Company.
heAvicAn, 	c.J., 	Wright, 	connolly, 	gerrArd, 	stephAn,
mccormAck, and miller-lermAn, JJ.
Wright, J.
NATURe OF CASe
krista Lisbon, formerly known as krista Van Wyhe, was
driving eastbound on Interstate 80 between Lincoln and Omaha,
Nebraska, when her automobile slid off the right side of the
Interstate into a ditch. brent e. Rasmussen, who was also driv-
ing eastbound, stopped his vehicle to assist. When attempts to
rock Lisbon’s vehicle to get it out of the ditch were unsuccess-
ful, Rasmussen decided to retrieve a towrope from his vehicle.
As Rasmussen stepped away from Lisbon’s vehicle, another car
slid off the highway and struck Rasmussen, Lisbon’s vehicle,
and another motorist who had stopped to help. Rasmussen was
severely injured. The district court granted summary judg-
ment against Rasmussen and his wife, and they appeal. Lisbon
cross-appeals.
SCOpe 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. Jardine
v. McVey, 276 Neb. 1023, 759 N.W.2d 690 (2009). In reviewing
a summary judgment, an appellate court views the evidence in
the light most favorable to the party against whom the judg-
ment was granted, and the court gives that party the benefit of
all reasonable inferences deducible from the evidence. Id.
RASMUSSeN v. STATe FARM MUT. AUTO. INS. CO. 	291
Cite as 278 Neb. 289

[3] The meaning of an insurance policy is a question of law,
in connection with which an appellate court has an obligation
to reach its own conclusions independently of the determina-
tion made by the lower court. Steffensmeier v. Le Mars Mut.
Ins. Co., 276 Neb. 86, 752 N.W.2d 155 (2008).
FACTS
While driving eastbound on Interstate 80 between Lincoln
and Omaha on February 9, 2002, Lisbon’s vehicle slid into
the left lane and then veered right and slid off the Interstate
into the ditch. Rasmussen saw Lisbon’s vehicle slide off the
Interstate, and he stopped his vehicle on the right shoulder of
the road to offer assistance. He proceeded on foot to Lisbon’s
vehicle to determine the extent of her injuries, if any. He tried
to help Lisbon get the vehicle back onto the road by rocking it
back and forth. The attempt was unsuccessful, and Rasmussen
turned to go to his vehicle to obtain a towrope that could be
used to pull Lisbon’s vehicle. Another motorist had stopped
his vehicle and was walking down into the ditch to help. A car
driven by Marilyn Andersen slid off the Interstate and struck
Rasmussen, the other motorist attempting to help, and Lisbon’s
vehicle. Rasmussen sustained severe injuries that required
amputation of his left foot.
Lisbon’s 	vehicle 	was 	owned 	by 	her 	stepfather, 	Gary
bosch, who lived in Michigan. The car was insured by State
Farm Mutual Automobile Insurance Company (State Farm).
Andersen’s vehicle was uninsured. Rasmussen and his wife,
kim Rasmussen, made a claim for uninsured motorist benefits
under their insurance policy (Rasmussen policy), which was
also issued by State Farm. The Rasmussens were paid $100,000
pursuant to uninsured motorist benefits provided by their pol-
icy. They also made a claim against State Farm for uninsured
motorist benefits under the policy issued on the Lisbon vehicle
(bosch policy). State Farm denied the claim.
The Rasmussens filed suit in the Douglas County District
Court against Lisbon and State Farm. The Rasmussens claimed
uninsured motorist benefits under the bosch policy. Rasmussen
alleged that his actions as related to the vehicle driven by
Lisbon constituted the operation, maintenance, or use of the
292 	278 NebRASkA RepORTS

bosch vehicle and that therefore, Rasmussen was an insured
under the bosch policy. Rasmussen claimed that State Farm
acted in bad faith by denying the claim.
Rasmussen also claimed that Lisbon placed him in peril by
operating her vehicle in a negligent manner. He claimed that in
attempting to rescue Lisbon, he sustained severe and permanent
injuries. Rasmussen’s wife claimed loss of consortium.
State Farm and Lisbon generally denied the Rasmussens’
allegations. State Farm denied coverage under the bosch policy
and alleged that the payment of $100,000 pursuant to the unin-
sured motorist benefits portion of the Rasmussen policy barred
recovery for additional benefits under any policy issued by
State Farm.
Lisbon denied liability and alleged she owed no duty to
Rasmussen that would create a cause of action for negligence.
She further alleged that the “rescue doctrine” did not create a
cause of action in favor of Rasmussen and was not applicable
to a two-party action where the rescuer sues the person rescued
based upon the alleged negligence of the person rescued.
It was not disputed that at the time of the accident, Lisbon’s
vehicle was insured through State Farm under a policy owned
by her parents. The vehicle was licensed and registered in the
state of Michigan and was used by Lisbon while attending
school at the University of Nebraska-Lincoln. Rasmussen’s
vehicle was insured by State Farm, and State Farm had paid
$100,000 pursuant to the uninsured motorist benefits under
the Rasmussen policy. The district court for Douglas County
sustained State Farm’s motion for summary judgment and dis-
missed the Rasmussens’ complaint with prejudice. Applying
Michigan law, the district court concluded that Rasmussen
was not an insured under the bosch policy and that neither
Rasmussen nor his wife was entitled to benefits under the pro-
visions of that policy. The district court also found that State
Farm did not act in bad faith in refusing to make payments to
the Rasmussens based on the bosch policy.
As to Lisbon’s motion for summary judgment, the dis-
trict court found genuine issues of fact as to whether Lisbon
was negligent, whether Rasmussen had a reasonable belief
that Lisbon was in peril, and whether the alleged rescue
RASMUSSeN v. STATe FARM MUT. AUTO. INS. CO. 	293
Cite as 278 Neb. 289

was reasonable and completed. However, the court sustained
Lisbon’s summary judgment motion on the grounds that Lisbon
did not owe a legal duty to the Rasmussens and that Nebraska
did not recognize an independent cause of action based on the
rescue doctrine where the rescuer sues the person rescued. It
denied the Rasmussens’ motion to reconsider. The Rasmussens
timely appealed, and Lisbon cross-appealed.
ASSIGNMeNTS OF eRROR
The Rasmussens claim, summarized and restated, that the
district court erred in sustaining Lisbon’s motion for summary
judgment, in concluding that a cause of action under the rescue
doctrine did not exist under these circumstances, and in con-
cluding that Lisbon owed Rasmussen no duty. The Rasmussens
also claim the court erred in denying their motion for summary
judgment against State Farm, in granting State Farm’s motion
for summary judgment, and in applying Michigan law in inter-
preting the bosch policy to find that they were not insureds and
were not entitled to benefits under the policy.
Lisbon cross-appeals, arguing that the district court erred
in finding that there were genuine issues of fact as to whether
Lisbon was negligent and proximately caused the accident and
whether Rasmussen had a reasonable belief that Lisbon was in
imminent peril.
ANALYSIS
rescue doctrine
[4] We first address the summary judgment in favor of
Lisbon in which the district court determined that Lisbon did
not owe a duty to Rasmussen and that Nebraska does not recog-
nize an independent cause of action based upon the rescue doc-
trine. “The rescue doctrine contemplates a voluntary act by one
who, in an emergency and prompted by spontaneous human
motives to save human life, attempts a rescue which he had no
duty to attempt by virtue of a legal obligation or duty fastened
on him by his employment.” Buchanan v. Prickett & Son, Inc.,
203 Neb. 684, 688, 279 N.W.2d 855, 858 (1979).
This court has considered the rescue doctrine in several
cases. Application of the rescue doctrine in Nebraska has
294 	278 NebRASkA RepORTS

generally involved the issue of the contributory negligence of
the plaintiff. In Beatty v. Davis, 224 Neb. 663, 400 N.W.2d
850 (1987), the plaintiff attempted to jump into an unoccupied
moving vehicle to stop it, and she was injured when she fell
out of the car as it traveled in a circle. We held that it was not
contributory negligence for the plaintiff to expose herself to
danger in an effort to save herself or others from injury to their
person or property, unless the effort itself was an unreason-
able one or the plaintiff acted unreasonably in the course of
the rescue.
In Moravec v. Moravec, 216 Neb. 412, 343 N.W.2d 762
(1984), the plaintiff was burned when he attempted to warn the
owners of a house about a fire in the kitchen. The trial court
had concluded that the plaintiff, who undertook to fight a fire
on the premises of another, assumed the risk. We reversed the
judgment and remanded the cause, stating:
Under the rescue doctrine it is not contributory neg-
ligence for a plaintiff to expose himself to danger in a
reasonable effort to save a third person or the property of
a third person from harm. The extent of the risk which the
volunteer is justified in assuming under the circumstances
increases in proportion to the imminence of the danger
and the value to be realized from meeting the danger and
attempting to remove or eliminate the hazard; i.e., the less
the danger to the third party, the less the risk the volunteer
is justified in taking.
Id. at 415, 343 N.W.2d at 764.
In Struempler v. Estate of Kloepping, 261 Neb. 832, 626
N.W.2d 564 (2001), the plaintiff injured her back while assist-
ing an elderly, invalid neighbor into his wheelchair. The plain-
tiff sued the neighbor’s estate, alleging that the neighbor neg-
ligently placed himself in a position of immediate peril by
remaining in his residence without qualified medical personnel
to assist him when he fell from his wheelchair. The plaintiff
maintained she was a rescuer because the neighbor placed him-
self in a position of peril which invited rescue. The trial court
granted summary judgment to the estate, and we affirmed. We
declined the plaintiff’s invitation to apply the rescue doctrine
to the facts of that case.
RASMUSSeN v. STATe FARM MUT. AUTO. INS. CO. 	295
Cite as 278 Neb. 289

prior cases applying the rescue doctrine have generally
involved three parties—the rescuer, the person rescued, and a
third-party tort-feasor. The person attempting a rescue was try-
ing to recover damages from a third person whose negligence
allegedly put the victim in peril and created the need for the
rescue. In the case at bar, the question is whether Lisbon, the
person rescued, may be liable to Rasmussen, the rescuer.
We conclude that the district court should have applied the
rescue doctrine to the facts of this case. Here, we find no rea-
son to make a distinction between the negligence of the person
being rescued which is a proximate cause of injury to the
rescuer and the negligence of a third party which placed the
person to be rescued in peril and caused injury to another who
attempted the rescue.
Rasmussen alleged that Lisbon’s negligent operation of her
motor vehicle placed her in peril and invited the rescue by
Rasmussen. It is reasonably foreseeable that one who wit-
nesses a motor vehicle accident will stop and attempt to ren-
der assistance.
[5] Other courts have applied the doctrine based upon the
premise that heroic people will do heroic deeds. See Clinkscales
v. Nelson Securities, Inc., 697 N.W.2d 836 (Iowa 2005). The
Iowa court in Clinkscales noted that it had consistently and
liberally applied the rescue doctrine, which was forged at com-
mon law, for more than 100 years. The court quoted Justice
benjamin Cardozo:
“Danger invites rescue. The cry of distress is the summons
to relief. The law does not ignore these reactions of the
mind in tracing conduct to its consequences. It recognizes
them as normal. It places their effects within the range of
the natural and probable. The wrong that imperils life is
a wrong to the imperiled victim; it is a wrong also to his
rescuer. . . . The risk of rescue, if only it be not wanton,
is born of the occasion. The emergency begets the man.
The wrongdoer may not have foreseen the coming of a
deliverer. He is accountable as if he had.”
697 N.W.2d at 841, quoting Wagner v. International Ry. Co.,
232 N.Y. 176, 133 N.e. 437 (1921). The rescue doctrine recog-
nizes that those who negligently imperil life or property may
296 	278 NebRASkA RepORTS

be liable not only to their victims, but also to the rescuers.
Clinkscales, supra.
In Clinkscales, the plaintiff was burned when he attempted
to turn off the gas line to a grill in a bar that had started on
fire. The trial court and the Iowa Court of Appeals declined to
apply the rescue doctrine, concluding that the plaintiff had suf-
fered a “‘self-inflicted wound.’” Id. at 840. The Iowa Supreme
Court reversed, finding that so long as the rescuer’s response
was normal, the negligent actor would not escape liability for
the rescuer’s injuries. The court stated that in most cases, what
constituted normal or natural conduct depended on the circum-
stances and was a question for the jury.
The Missouri Supreme Court also considered whether a
person injured during a reasonable attempt to rescue another
may recover from the person rescued when such person was
guilty of negligently imperiling himself. Lowrey v. Horvath,
689 S.W.2d 625 (Mo. 1985). The court concluded that there
was no logical basis to distinguish between a situation in which
recovery is sought against the defendant whose negligence put
a third party at peril and the situation in which recovery is
sought against a defendant who put himself at peril negligently.
The court stated:
A 	person 	with 	reasonable 	foresight 	who 	negligently
imperils another or who negligently imperils himself will
normally contemplate the probability of an attempted res-
cue, in the course of which the rescuer may sustain injury.
Under the rescue doctrine, “the right of action depends
. . . upon the wrongfulness of the defendant’s conduct
in its tendency . . . to cause the rescuer to take the risk
involved in the attempted rescue. . . .”
Id. 	at 	628, 	quoting 	F. 	bohlen, 	Studies 	in 	the 	Law 	of
Torts (1926).
In Hoefer v. Roche Biomedical Laboratories, 826 S.W.2d
49 (Mo. App. 1992), a woman driving on an icy highway
lost control, crossed the highway, and embedded her car in
a ditch. A man traveling in the same direction saw the car in
the ditch and crossed the road to help her. While assisting the
woman, the man was struck by another vehicle that slid off
the highway. The court held that the man could bring a cause
RASMUSSeN v. STATe FARM MUT. AUTO. INS. CO. 	297
Cite as 278 Neb. 289

of action under the rescue doctrine against the woman whose
loss of control of her vehicle had placed her in a position
of peril.
In French v. Uribe, Inc., 132 Wash. App. 1, 130 p.3d 370
(2006), the court applied the rescue doctrine to allow recovery
of damages from the rescued person if the rescuer is injured
during the rescue of a person who negligently caused the dan-
gerous situation that invited the rescue. The court stated that
the rescue doctrine serves two purposes:
First, the rescue doctrine notifies tortfeasors that it is
foreseeable a rescuer will come to the aid of the person
imperiled by a tortfeasor’s conduct, and that the tort-
feasor owes the rescuer a duty similar to the duty owed
to the person the tortfeasor imperils. Second, the doctrine
negates the presumption that the rescuer assumed the risk
of injury by undertaking the rescue, as long as the rescuer
does not act rashly or recklessly.
Id. at 14, 130 p.3d at 375.
We conclude that the facts in the case at bar lend themselves
to application of the rescue doctrine. The rescuer who sus-
tains injuries in reasonably undertaking a rescue may recover
from the rescued person if such person’s negligence created a
situation which necessitated the rescue. See Annot., 4 A.L.R.3d
558 (1965).
[6] The question of the duty owed by the rescued person is
subsumed in our conclusion that the rescue doctrine applies
to the case at bar. The rescue doctrine is “‘shorthand for a
public policy’ that imposes a duty of care owed to rescu-
ers.” Baldonado v. El Paso Natural Gas Company, 143 N.M.
288, 292, 176 p.3d 277, 281 (2007), quoting Govich v. North
American Systems, Inc., 112 N.M. 226, 814 p.2d 94 (1991).
[7-9] Whether a legal duty exists for actionable negligence is
a question of law dependent on the facts in a particular situa-
tion. Fuhrman v. State, 265 Neb. 176, 655 N.W.2d 866 (2003).
A duty, in negligence cases, may be defined as an obligation,
to which the law will give recognition and effect, to conform
to a particular standard of conduct toward another. Erickson v.
U-Haul Internat., 274 Neb. 236, 738 N.W.2d 453 (2007). The
rescue doctrine defines a particular standard of conduct and
298 	278 NebRASkA RepORTS

recognizes a duty of the rescued person whose conduct has
placed the rescuer in peril.
[10,11] It has long been held that a person has a duty to
exercise ordinary care for his own safety. See, e.g., Fullenwider
v. Brawner, 224 ky. 274, 6 S.W.2d 264 (1928); Varela v. Reid,
23 Ariz. 414, 204 p. 1017 (1922). The driver of an automobile
owes a duty of reasonable care in the operation of the vehicle.
See Adams v. Welliver, 155 Neb. 331, 51 N.W.2d 739 (1952).
Lisbon was required to exercise due care in the operation of her
motor vehicle upon a public highway. It was reasonably fore-
seeable that a passing motorist, upon seeing the accident, would
stop to render aid. Lisbon had a duty of reasonable care to avoid
a risk of harm to herself that would invite rescue by others.
We therefore conclude that the district court erred in find-
ing that Nebraska did not recognize an independent cause of
action based on the rescue doctrine and in granting summary
judgment in favor of Lisbon. There remain material issues of
fact regarding Lisbon’s alleged negligence and the damages
resulting from her alleged negligence. For these reasons, we
reverse the summary judgment granted in favor of Lisbon
and remand the cause for further proceedings consistent with
this opinion.
Having disposed of the matters involving Lisbon, we now
proceed to the issues involving State Farm and the summary
judgment entered in its favor against Rasmussen.
stAte fArm’s deniAl of rAsmussens’ clAims
The Rasmussens assert that the district court erred in apply-
ing Michigan law and in concluding that they were not insureds
and, therefore, not entitled to uninsured motorist benefits under
the bosch policy. They claim that under Nebraska law, they are
insureds, and that the summary judgment should be reversed.
They claim that neither Rasmussen nor his wife has collected
the maximum amount payable under the bosch policy.
The meaning of an insurance policy is a question of law, in
connection with which an appellate court has an obligation to
reach its own conclusions independently of the determination
made by the lower court. Steffensmeier v. Le Mars Mut. Ins.
Co., 276 Neb. 86, 752 N.W.2d 155 (2008). We conclude that
RASMUSSeN v. STATe FARM MUT. AUTO. INS. CO. 	299
Cite as 278 Neb. 289

under either Nebraska or Michigan law, the Rasmussens are
not entitled to additional payments based on coverage pursuant
to the uninsured motorist provisions of either the bosch or the
Rasmussen policy.
The bosch policy provides:
If uninsured motor vehicle coverage for bodily injury is
available to an insured from more than one policy pro-
vided by us or any other insurer, the total limit of liability
available from all policies provided by all insurers shall
not exceed the limit of liability of the single policy pro-
viding the highest limit of liability. This is the most that
will be paid regardless of the number of policies involved,
persons covered, claims made, vehicles insured, premiums
paid or vehicles involved in the accident.
The Rasmussen policy provides:
If the insured sustains bodily injury as a pedestrian and
other uninsured motor vehicle coverage applies:
a. the total limits of liability under all such coverages
shall not exceed that of the coverage with the highest
limit of liability; and
b. we are liable only for our share. Our share is that
per cent of the damages that the limit of liability of this
coverage bears to the total of all uninsured motor vehicle
coverage applicable to the accident.
State Farm paid the Rasmussens $100,000 pursuant to the
uninsured motorist coverage of the Rasmussen policy. both
the bosch policy and the Rasmussen policy limit the uninsured
motor vehicle benefits per person to $100,000.
Nebraska law provides:
Regardless of the number of vehicles involved, persons
covered, claims made, vehicles or premiums shown on the
policy, or premiums paid, the limits of liability for unin-
sured or underinsured motorist coverage for two or more
motor vehicles insured under the same policy or separate
policies shall not be added together, combined, or stacked
to determine the limit of insurance coverage available to
an injured person for any one accident except as provided
in section 44-6411.
Neb. Rev. Stat. § 44-6410 (Reissue 2004).
300 	278 NebRASkA RepORTS

“In the event an insured is entitled to uninsured or under-
insured motorist coverage under more than one policy of motor
vehicle liability insurance, the maximum amount an insured
may recover shall not exceed the highest limit of any one such
policy.” Neb. Rev. Stat. § 44-6411(1) (Reissue 2004).
Michigan courts have held that “antistacking provisions” are
valid and not in contravention of public policy when they are
clear and unambiguous. State Farm Ins v Tiedman, 181 Mich.
App. 619, 624, 450 N.W.2d 13, 15 (1989). See, also, DeMaria
v Auto Club (On Rem), 165 Mich. App. 251, 418 N.W.2d 398
(1987). Thus, it is not necessary to determine which state’s laws
are applied here, because under either Michigan or Nebraska
law, Rasmussen has already recovered the maximum amount to
which he is entitled.
Although not assigned as a separate error, the Rasmussens’
argument also suggests that neither Rasmussen nor his wife
has received the maximum amount recoverable under any one
policy because they were paid $100,000 together. The payment
from State Farm was made payable to both of them, and the
funds were deposited in a joint account. Rasmussen claims
that he has received only $50,000, that his wife’s loss of con-
sortium claim was not fully compensated, and that each is due
another $50,000.
[12] Loss of consortium claims are derivative. See Schendt
v. Dewey, 246 Neb. 573, 520 N.W.2d 541 (1994). The loss
of consortium claim is based upon the injuries sustained by
Rasmussen in the accident. The coverage to Rasmussen under
the Rasmussen policy is one-person coverage of $100,000 per
person. There are not two separate injuries. Rasmussen’s wife’s
loss is compensable as a part of Rasmussen’s $100,000-per-
person coverage and is not a separate bodily injury that would
provide another $100,000 of coverage under the policy.
In Wilson v. Capital Fire Ins. Co., 136 Neb. 435, 286 N.W.
331 (1939), a husband and wife were both injured. The insur-
ance policy in question had a $5,000/$10,000 limit for loss from
an accident resulting in bodily injuries to one or more persons.
The wife, in one suit, obtained a judgment of $5,000, which
the defendant paid. The husband, in a second action, sued for
personal injuries and loss of consortium, which resulted in a
RASMUSSeN v. STATe FARM MUT. AUTO. INS. CO. 	301
Cite as 278 Neb. 289

judgment of $4,000—$275 for injuries and property damage
and $3,725 for loss of services and companionship. The issue
was whether the insurance company was liable for loss of con-
sortium. The court held that the loss of consortium represented
injuries sustained by one person (the wife) and that the insur-
ance company, having paid the limit for injuries to the wife,
was not liable under the terms of the policy for damages for
loss of consortium. The policy limit of $5,000 covered dam-
ages, whether direct or consequential.
Here, State Farm has paid the limit for injuries to one per-
son. It is not liable for any amount above the $100,000 limit.
The bosch policy provided: “‘Bodily injury to one person’
includes all injury and damages to others resulting from this
bodily injury.” The Rasmussen policy has an identical pro-
vision. Any loss of consortium damages sustained by one
spouse would fall into the category of damages resulting from
bodily injury to the other spouse. Under the policy, such dam-
ages are combined with Rasmussen’s damages and are subject
to one limit of liability. State Farm has no additional liability to
the Rasmussens under either policy, and the district court was
correct in granting summary judgment to State Farm.
BAd fAith
[13] The Rasmussens also assert that the district court erred
in finding that State Farm did not act in bad faith in refusing to
pay benefits under the bosch policy. The assigned error has no
merit for two reasons. First, there has been no bad faith shown.
Second, the Rasmussens have not argued this error on appeal.
For an appellate court to consider an alleged error, the error
must be both specifically assigned and specifically argued in
the brief of the party assigning the error. Parker v. State ex rel.
Bruning, 276 Neb. 359, 753 N.W.2d 843 (2008).
cross -A ppeAl
Consistent with her argument that she owed no duty of
care to Rasmussen and that there was no actionable negli-
gence as a matter of law, Lisbon asserts the district court was
correct in concluding that she did not owe a duty of care to
Rasmussen and that the rescue doctrine did not provide an
302 	278 NebRASkA RepORTS

independent cause of action against her under the facts and
circumstances presented.
On cross-appeal, she argues that the district court erred
in finding there was a genuine issue of material fact regard-
ing whether she was negligent and proximately caused her
vehicle to leave the roadway and slide into the ditch. She
claims the court erred in finding that there was a genuine issue
of fact as to whether Rasmussen had a reasonable belief that
she was in imminent peril at the time he was struck by the
Andersen vehicle.
Lisbon argues that even if Nebraska recognized an indepen-
dent cause of action under the rescue doctrine, the Rasmussens’
claims fail because they are predicated on the fact that Lisbon
was negligent in the operation of her vehicle. She asserts that
as a matter of law, she was not negligent.
[14] The burden of proving negligence is on the party alleg-
ing it, and merely establishing that an accident happened does
not prove negligence. Macfie v. Kaminski, 219 Neb. 524, 364
N.W.2d 31 (1985). In Macfie, the defendant was traveling on
Interstate 80 while it was raining or snowing and the tempera-
ture was near freezing. He lost control of his car, started slid-
ing sideways along a bridge, and was hit by a second vehicle.
His car eventually came to a stop straddling both eastbound
lanes of the Interstate. A series of collisions occurred there-
after, including the one involving the plaintiff. The plaintiff
contended that the defendant was negligent in operating his
motor vehicle at an excessive rate of speed and failing to have
his vehicle under proper control. The district court granted
the defendant’s motion for directed verdict, finding that the
plaintiff had failed as a matter of law to present sufficient
evidence to warrant submission of the question of negligence
to the jury. We affirmed on appeal, finding that the evidence
disclosed that the defendant was traveling at 55 m.p.h., that
the plaintiff was traveling at 50 m.p.h., and that the rest of
the traffic was also traveling at that speed. We said the evi-
dence was clear that both the plaintiff and the defendant, as
well as most of the other traffic, were traveling within the
speed limit.
RASMUSSeN v. STATe FARM MUT. AUTO. INS. CO. 	303
Cite as 278 Neb. 289

Lisbon argues that the record in this case demonstrates a
complete lack of proof that she was negligent in the operation
of her motor vehicle. She points out that the only evidence
regarding the operation of her vehicle immediately before it
left the roadway was that she was traveling at 65 m.p.h., the
other traffic was going approximately the same speed, no cars
were passing her, and she did nothing to affect the movement
of her vehicle. Rasmussen admitted that he knew of no action
Lisbon took which caused her vehicle to go off the roadway
and that the speed of 65 m.p.h. seemed reasonable under
the circumstances.
[15,16] 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 the court
gives that party the benefit of all reasonable inferences deduc-
ible from the evidence. Jardine v. McVey, 276 Neb. 1023, 759
N.W.2d 690 (2009). The mere skidding of an automobile, with-
out more, does not prove negligence. Porter v. Black, 205 Neb.
699, 289 N.W.2d 760 (1980). Skidding, together with evidence
of some other facts and circumstances tending to show a fail-
ure to exercise reasonable care, may be sufficient to permit an
inference of negligent loss of control. Id. Lisbon was traveling
at 65 m.p.h. on the Interstate when it was snowing. Her car ini-
tially slid to the left side of the roadway and then to the right
and into a ditch. Whether Lisbon was driving at a speed that
was reasonable and proper under the then-existing conditions is
a factual question and should be left to the jury. See Middleton
v. Nichols, 178 Neb. 282, 132 N.W.2d 882 (1965).
[17] A motorist is required to maintain reasonable control
of the vehicle commensurate with the road conditions then and
there existing at the time of the occurrence. See Huntwork v.
Voss, 247 Neb. 184, 525 N.W.2d 632 (1995). The speed of an
automobile is excessive if it is found to be unreasonable or
imprudent under the existing circumstances, even though it
may not exceed the applicable statutory limits. Id. Giving all
reasonable inferences to the Rasmussens, as we are required to
do in a motion for summary judgment, we cannot say as a mat-
ter of law that the Rasmussens failed to establish any evidence
of negligence on Lisbon’s part.
304 	278 NebRASkA RepORTS

Similarly, we find that the district court did not err in
concluding that there was a material issue of fact whether
Rasmussen had a reasonable belief that Lisbon was in imme-
diate peril at the time he was struck by the Andersen vehicle.
even if Rasmussen realized that Lisbon was not in immediate
peril when he began to return to his vehicle, it was the initial
occurrence that caused him to stop and attempt a rescue. He
still had to return to his vehicle in the same manner in which he
had come. Whether Rasmussen no longer believed that Lisbon
was in immediate danger is not material. Obviously, there was
an immediate danger. Another vehicle slid off the Interstate and
crashed into Lisbon’s vehicle, Rasmussen, and the other motor-
ist who had stopped to assist Lisbon.
To conclude as a matter of law that Rasmussen lost the
status of a rescuer because he no longer believed that Lisbon
was in immediate peril would defeat the purpose of the rescue
doctrine. The question is whether Rasmussen had a reasonable
belief that Lisbon was in immediate peril at the time he left
his vehicle to render her assistance. We therefore conclude that
Lisbon’s cross-appeal is without merit.
CONCLUSION
The district court erred in granting summary judgment in
favor of Lisbon and in concluding that Lisbon owed no duty to
Rasmussen and that Nebraska does not recognize an indepen-
dent cause of action under the rescue doctrine. However, the
court was correct in granting summary judgment in favor of
State Farm. Lisbon’s cross-appeal is without merit.
For the reasons set forth herein, we affirm in part, and in
part reverse and remand for further proceedings consistent with
this opinion.
A ffirmed in pArt, And in pArt reversed And
remAnded for further proceedings.
RASMUSSeN v. STATe FARM MUT. AUTO. INS. CO. 	305
Cite as 278 Neb. 289