D & S Realty v. Markel Ins. Co.

an evidentiary hearing.” That order effectively disposed of all
matters then pending before the court.
CONCLUSION
For the reasons discussed, we affirm the judgment of the
district court dismissing McGhee’s motion for postconviction
relief without an evidentiary hearing.
A ffirmed.
d & S reAlty, inc., AppellAnt, v.
mArkel inSurAnce compAny,
A corporAtion, Appellee .
789 N.W.2d 1
Filed September 10, 2010. 	No. S-09-642.
1. Insurance: Contracts. The interpretation of an insurance policy is a question
of law.
2. Statutes. The interpretation of a statute is a question of law.
3. Judgments: Appeal and Error. An appellate court reviews questions of law
independently of the lower court’s conclusion.
4. Equity: Estoppel. Although a party can seek equitable estoppel in both legal and
equitable actions, as its name implies, it is a judicial doctrine that is equitable
in nature.
5. Insurance: Contracts. Insurance contracts, like other contracts, are to be con-
strued according to the meaning of the terms which the parties have used.
6. ____: ____. When the terms of an insurance contract are clear, a court should not
resort to rules of construction. Instead, the court will give the terms their plain
and ordinary meaning as a reasonable person in the insured’s position would
understand them.
7. ____: ____. In an insurance policy, conditions precedent are those which relate to
the attachment of the risk, meaning whether the agreement is effective.
8. ____: ____. Conditions subsequent in an insurance policy are those which pertain
to the contract of insurance after the risk has attached and during the existence
thereof; that is, those conditions which must be maintained or met after the risk
has commenced, in order that the contract may remain in full force and effect.
Clauses which provide that a policy shall become void or its operation defeated
or suspended, or the insurer relieved wholly or partially from liability upon the
happening of some event, or the doing or omission to do some act, are not condi-
tions precedent, but conditions subsequent.
9. Insurance: Contracts: Liability: Words and Phrases. An exclusion in an insur-
ance policy is a limitation of liability, or a carving out of certain types of loss, to
which the insurance coverage never applied.
d & S reALTy v. MArkeL INS. CO. 	567
Cite as 280 Neb. 567
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

10. Insurance: Contracts. Vacancy clauses in insurance policies are “increased haz-
ard” provisions and function as conditions subsequent.
11. Insurance: Contracts: Breach of Contract: Statutes. Statutory provisions like
Neb. rev. Stat. § 44-358 (reissue 2004) that limit an insurer’s ability to avoid
liability for breach of increased-hazard conditions exist because the conditions
are often so broad that an insured’s violation of them is not causally relevant to
the loss.
12. Insurance: Contracts: Case Overruled. regardless of an insurer’s labeling, a
clause that requires an insured to avoid an increased hazard is a condition subse-
quent for coverage, overruling Omaha Sky Divers Parachute Club, Inc. v. Ranger
Ins. Co., 189 Neb. 610, 204 N.W.2d 162 (1973), and Krause v. Pacific Mutual
Life Ins. Co., 141 Neb. 844, 5 N.W.2d 229 (1942).
13. Insurance: Contracts: Warranty. To the extent that Nebraska law permits an
insured’s statements in the negotiation for a contract to be treated as warranties,
the first sentence of Neb. rev. Stat. § 44-358 (reissue 2004) applies only to war-
ranties that function as conditions precedent to the policy’s being effective.
14. ____: ____: ____. Warranties that are relevant to an insurance policy’s being
effective are classified as “affirmative” warranties.
15. Insurance: Contracts: Warranty: Breach of Contract. The first and second
sentences of Neb. rev. Stat. § 44-358 (reissue 2004) are mutually exclusive
in their application, and the contribute-to-the-loss standard of the second sen-
tence applies to breaches of conditions after the risk attaches and the insurance
policy is effective. That is, the contribute-to-the-loss standard applies to breaches
of conditions subsequent and continuing warranties that function as condi-
tions subsequent.
16. Insurance: Contracts: Warranty: Words and Phrases. A promissory warranty
is one by which the insured stipulates that something shall be done or omitted
after the policy takes effect and during its continuance, and has the effect of a
condition subsequent.
17. Insurance: Contracts. For insurance policies, the term condition subsequent
comprises both preloss conditions, to which the contribute-to-the-loss standard
applies, and postlost conditions, to which the standard does not apply.
18. Insurance: Contracts: Warranty: Case Overruled. The contribute-to-the-loss
standard in the second sentence of Neb. rev. Stat. § 44-358 (reissue 2004)
applies to preloss conditions subsequent and promissory warranties, overruling
Coppi v. West Am. Ins. Co., 247 Neb. 1, 524 N.W.2d 804 (1994).
19. Insurance: Contracts. A vacancy clause in an insurance contract is not an
exclusion; it is a condition subsequent to which the contribute-to-the-loss stan-
dard applies.
20. Insurance: Contracts: Waiver: Equity: Estoppel. Waiver and estoppel are
distinct legal concepts, but Nebraska courts do not strictly apply the elements
of equitable estoppel when an insured claims that an insurer has waived a pol-
icy provision.
21. Insurance: Contracts: Waiver: Estoppel. If the evidence shows that the insurer
has waived a policy provision, it may be estopped from denying liability where,
by its course of dealing and the acts of its agent, it has induced the insured to
pursue a course of action to his or her detriment.
568 	280 NebrASkA repOrTS

22. Waiver: Words and Phrases. A waiver is a voluntary and intentional relin-
quishment of a known right, privilege, or claim, and may be demonstrated by or
inferred from a person’s conduct.
23. Insurance: Contracts: Waiver. An insurer may waive any provision of a policy
that is for the insurer’s benefit, including vacancy provisions.
24. Waiver: Estoppel. Ordinarily, to establish a waiver of a legal right, there must be
a clear, unequivocal, and decisive act of a party showing such a purpose, or acts
amounting to an estoppel on his or her part.
25. Contracts: Waiver. A party may waive a written contract in whole or in part,
either directly or inferentially.
26. Contracts: Waiver: Proof. A party may prove the waiver of a contract by (1) a
party’s express declarations manifesting the intent not to claim an advantage or
(2) a party’s neglecting and failing to act so as to induce the belief that it intended
to waive.
27. Insurance: Contracts: Waiver. Whether an insurer may waive an increased haz-
ard condition does not depend upon whether the insured’s breach of the condition
occurred before or after the risk attached.
28. Insurance: Contracts: Warranty: Breach of Contract: Liability. When an
insurer knows of a breach of condition or warranty that permits it to treat the
policy as void, and the insurer continues to accept premiums, its conduct shows
its intent to treat the policy as valid despite the breach. but waiver does not apply
when the insured’s breach of an increased hazard provision did not result in an
absolute forfeiture of the policy and the insurer continues to be liable for loss
from other covered causes.
Appeal from the district Court for douglas County: JoSeph
S. troiA, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
Charles F. Gotch, James d. Garriott, and david A. blagg, of
Cassem, Tierney, Adams, Gotch & douglas, for appellant.
richard 	J. 	Gilloon 	and 	Heather 	Veik, 	of 	erickson 	&
Sederstrom, p.C., for appellee.
heAvicAn, 	c.J., 	Wright, 	connolly, 	gerrArd, 	StephAn,
mccormAck, and miller-lermAn, JJ.
connolly, J.
I. SUMMAry
Appellant, d & S realty, Inc. (d&S), owned a building
known as the North Tower, located in Omaha, Nebraska.
Markel Insurance Company (Markel) insured the building.
After the building incurred water damage, Markel denied lia-
bility. Markel claimed that d&S violated a policy clause which
d & S reALTy v. MArkeL INS. CO. 	569
Cite as 280 Neb. 567

provided that Markel would not be liable for water damage if
the insured property had been vacant for more than 60 con-
secutive days before the loss or damage occurred.
At the heart of d&S’ breach of contract action is the inter-
pretation and application of Neb. rev. Stat. § 44-358 (reissue
2004). Section 44-358, in part, precludes an insurer from deny-
ing liability for an insured’s breach of a warranty or condition
unless the breach existed at the time of the loss and contributed
to the loss. before trial, d&S argued that the contribute-to-
the-loss standard applied to its alleged breach of the vacancy
provision. It alleged the breach did not contribute to the loss.
Markel countered that the statute did not apply. The court
agreed with Markel.
At trial, the court found as a matter of law that the policy
was in effect and that the building was vacant for more than 60
days. The court also refused to instruct the jury on, or to allow
d&S to argue, the following: (1) § 44-358 prevented Markel
from denying liability based upon the vacancy clause; or (2)
Markel waived the provision or was estopped from denying
liability because it had accepted premiums after learning that
the building was vacant.
The only issues before the jury were whether Markel had
wrongfully 	denied 	coverage 	or 	whether 	the 	policy 	terms
excluded d&S’ loss. The jury returned a verdict for Markel.
We conclude that the court erred in ruling that § 44-358 did
not apply to the vacancy clause. because it applied, the court
should have allowed the jury to decide whether d&S’ breach
of the vacancy clause contributed to the loss. but we conclude
that the court did not err in refusing to instruct the jury on
d&S’ claim of waiver and estoppel.
II. bACkGrOUNd
In January 2003, in preparation for renovations, a d&S
employee turned off the heating system. but he did not
drain the pipes or put in antifreeze to prevent damage.
Three days later, the pipes burst and the building sustained
water damage.
d&S claimed the loss under its insurance policy. The policy
provided coverage for damage to the North Tower and personal
570 	280 NebrASkA repOrTS

property resulting from covered causes of loss, subject to
various conditions and exclusions. The “Loss Conditions” sec-
tion contained a “Vacancy” clause. It provided that “[i]f the
building where loss or damage occurs has been vacant for
more than 60 consecutive days before loss or damage occurs,”
Markel would not pay for any loss caused by listed items,
including water damage, “even if they are Covered Causes
of Loss.” The vacancy clause separately defined “vacant” for
owners of buildings: “(b) . . . Such building is vacant when
70% or more of its square footage: (i) Is not rented; or (ii) Is
not used to conduct customary operations. (2) buildings under
construction or renovation are not considered vacant.”
And a Nebraska endorsement to the policy provided, in rele-
vant part, that “[a] breach of warranty or condition will void
the policy if such breach exists at the time of loss and contrib-
utes to the loss.”
When d&S sought recovery under the policy, it represented
that the North Tower was 60-percent vacant. but Markel deter-
mined that when the loss occurred, the North Tower had only
a 5-percent occupancy and had less than a 30-percent occu-
pancy for more than 60 days before the loss. Markel denied
d&S’ claim.
d&S sued for breach of the insurance contract. It alleged
that Markel breached its obligations in denying coverage for
the water damage. Markel denied that it breached any obli-
gations. It affirmatively alleged that the policy did not cover
d&S’ loss because d&S failed to comply with the vacancy
clause. It also claimed that d&S’ loss was not covered under a
limitation provision.
After Markel filed its answer, d&S moved for leave to file
a reply.1 In its proposed reply, d&S alleged that waiver and
estoppel barred Markel’s vacancy clause defense. d&S also
claimed that § 44-358 barred Markel’s vacancy clause defense
because d&S’ alleged breach of the condition had not contrib-
uted to the loss.
In ruling on the reply, the court permitted d&S to file it,
but limited the reply to d&S’ waiver and estoppel claims.
1 See Neb. Ct. r. pldg. § 6-1107.
d & S reALTy v. MArkeL INS. CO. 	571
Cite as 280 Neb. 567

It sustained Markel’s objection to d&S’ § 44-358 claim.
Later, d&S moved for leave to file an amended reply. but
the court reaffirmed its earlier order striking d&S’ § 44-358
claim. It determined that the statute did not apply. The court
did not state whether the vacancy clause was a condition
or exclusion.
At 	trial, 	the 	evidence 	showed 	that 	in 	October 	2002,
3 months before the loss, Markel’s inspection revealed that
the following parts of the building were occupied: the 10th
floor of the building, the penthouse, two apartments on the
9th floor, one apartment on the 8th floor, one commercial
office on the 3rd floor, and one commercial office on the
1st floor. The inspector concluded that the building was
80-percent unoccupied. The inspector also reported that 85
percent of the interior of the North Tower was “unfinished,”
or under construction. d&S, however, claimed that Markel
knew of the building’s percentage of occupancy before the
loss, but had not informed d&S of the possible insurance
consequences. d&S argued that because of this, Markel had
waived the vacancy provision or should be estopped from
asserting it to deny liability.
Markel moved for a directed verdict on several issues. The
court determined, as a matter of law, that the insurance policy
was in effect when the loss occurred and that the North Tower
was more than 70-percent vacant for more than 60 days pre-
ceding the loss. In addition, the vacancy clause contained an
exception for buildings under construction or renovation. The
court ruled that whether the North Tower was under construc-
tion or renovation when the loss occurred was a fact question
for the jury. And it took under advisement whether waiver
and estoppel applied. but after Markel rested, the court ruled
that they did not apply and that d&S could not argue waiver
or estoppel to the jury. The court also ruled that § 44-358 did
not apply to d&S’ breach of the vacancy clause. It refused to
instruct the jury on whether § 44-358 precluded Markel from
avoiding liability and on waiver and estoppel. The jury returned
a verdict for Markel.
d&S moved for judgment notwithstanding the verdict and
for a new trial. The court denied both motions.
572 	280 NebrASkA repOrTS

III. ASSIGNMeNTS OF errOr
d&S argues that the district court erred in refusing to sub-
mit to the jury whether (1) under § 44-358, the breach of the
vacancy clause existed at the time of the loss and contributed
to the loss; (2) Markel waived the provisions of the policy
regarding occupancy; and (3) Markel was estopped from rais-
ing the policy provisions regarding occupancy as a defense.
d&S also alleges that the court erred in denying its motion
for judgment notwithstanding the verdict and its motion for a
new trial.
IV. STANdArd OF reVIeW
[1-3] The interpretation of an insurance policy is a question
of law2; the interpretation of a statute is also a question of law.3
And we review questions of law independently of the lower
court’s conclusion.4
[4] Although a party can seek equitable estoppel in both
legal and equitable actions, as its name implies, it is a judicial
doctrine that is equitable in nature.5 It is true that a jury in an
equitable action serves only in an advisory role.6 And we have
stated that when the jury’s role is advisory only, the trial court
cannot commit reversible error in the giving or refusing of
instructions.7 but here the trial court ruled as a matter of law
that waiver or estoppel did not apply to these facts. So we also
review that ruling as a question of law.
2 Copple Constr. v. Columbia Nat. Ins. Co., 279 Neb. 60, 776 N.W.2d 503
(2009).
3 See State ex rel. Amanda M. v. Justin T., 279 Neb. 273, 777 N.W.2d 565
(2010).
4 See Dutton-Lainson Co. v. Continental Ins. Co., 279 Neb. 365, 778
N.W.2d 433 (2010).
5 Burns v. Nielsen, 273 Neb. 724, 732 N.W.2d 640 (2007); 1 dan b. dobbs,
dobbs Law of remedies § 2.3(5) (2d ed. 1993); 28 Am Jur. 2d Estoppel
and Waiver § 1 (2000).
6 See Wolf v. Walt, 247 Neb. 858, 530 N.W.2d 890 (1995). but see Billingsley
v. BFM Liquor Mgmt., 259 Neb. 992, 613 N.W. 2d 478 (2000).
7 See In re Estate of Layton, 212 Neb. 518, 323 N.W.2d 817 (1982), citing
Peterson v. Estate of Bauer, 76 Neb. 652, 107 N.W. 993 (1906).
d & S reALTy v. MArkeL INS. CO. 	573
Cite as 280 Neb. 567

V. ANALySIS
d&S does not contest the district court’s conclusion that
the building was more than 70-percent vacant for more than
60 days preceding the loss. Nor does d&S contest the jury’s
implicit finding that the building was not under construction
or renovation. d&S only argues that the court erred in failing
to instruct the jury on whether under § 44-358, the breach of
the vacancy clause contributed to the loss, and on whether the
doctrines of waiver or estoppel prevented Markel from denying
liability based upon the vacancy clause.
1. A pplicAbility of § 44-358
d&S argues that the vacancy clause is a condition under
the policy and, therefore, § 44-358 applies. It argues that
because § 44-358 applies, whether its breach of the condition
contributed to the loss was an issue for the jury. The second
sentence of § 44-358 imposes a contribute-to-the-loss standard
for breaches of insurance warranties and conditions:
The breach of a warranty or condition in any contract or
policy of insurance shall not avoid the policy nor avail the
insurer to avoid liability, unless such breach shall exist at
the time of the loss and contribute to the loss, anything
in the policy or contract of insurance to the contrary
notwithstanding.
Markel views the matter differently. It argues that § 44-358
does not apply. Although Markel included the vacancy clause
in the “Loss Conditions” section of the policy, it argues that
this label is not determinative. It contends that we should look
to the language of the clause to determine the parties’ intent.
Markel contends that the vacancy clause functions as an exclu-
sion; thus, § 44-358 does not apply.
[5,6] We agree that we must determine the vacancy clause’s
purpose and function from the plain language of the policy.
Insurance contracts, like other contracts, are to be construed
according to the meaning of the terms which the parties
have used. yet, when the terms of an insurance contract
are clear, we should not resort to rules of construction.
Instead, we will give the terms their plain and ordinary mean-
ing as a reasonable person in the insured’s position would
574 	280 NebrASkA repOrTS

understand them.8 Neither party contends that the policy was
ambiguous.
Whether the contribute-to-the-loss standard under § 44-358
applies depends on the vacancy clause’s purpose and func-
tion. And the purpose and function of an insurance provision
can only be determined with an understanding of the rele-
vant terms.
(a) A Vacancy Clause Is a Condition
Subsequent, Not an exclusion
[7,8] A notable insurance treatise divides insurance policy
conditions into “conditions precedent” and “conditions sub-
sequent.”9 In an insurance policy, “[c]onditions precedent are
those which relate to the attachment of the risk,” meaning
whether the agreement is effective.10 examples include condi-
tions that the applicant satisfy the requirements of the insur-
ability, be in good health for life and health policies, and pay
the required premium. In addition, an applicant must “answer
all questions in the application to the best of the applicant’s
knowledge and belief.”11 In contrast, conditions subsequent in
an insurance policy
are those which pertain to the contract of insurance after
the risk has attached and during the existence thereof;
that is, those conditions which must be maintained or
met after the risk has commenced, in order that the con-
tract may remain in full force and effect. Clauses which
provide that a policy shall become void or its operation
defeated or suspended, or the insurer relieved wholly or
partially from liability upon the happening of some event,
or the doing or omission to do some act, are not condi-
tions precedent, but conditions subsequent and are matters
of defense to be pleaded and proved by insurer.12
8 See, Rickerl v. Farmers Ins. Exch., 277 Neb. 446, 763 N.W.2d 86 (2009);
Olson v. Le Mars Mut. Ins. Co., 269 Neb. 800, 696 N.W.2d 453 (2005).
9 See 6 Lee r. russ & Thomas F. Segalla, Couch on Insurance 3d § 81:19
at 81-34 (2006).
10 See id.
11 Id., § 81:20 at 81-35.
12 Id., § 81:19 at 81-34.
d & S reALTy v. MArkeL INS. CO. 	575
Cite as 280 Neb. 567

Markel concedes that the vacancy clause is not a condi-
tion precedent. but relying on our definition of an exclusion,
Markel argues that the clause is an exclusion and not subject to
§ 44-358. We have defined an exclusion as “a provision which
eliminates coverage where, were it not for the exclusion, cov-
erage would have existed.”13 Markel argues that the vacancy
clause is an exclusion because it does not set forth a condition
that d&S must fulfill to trigger Markel’s duty to pay the loss.
We disagree.
Here, the vacancy clause does not provide that there is no
coverage for water damage. Instead, the clause was clearly
intended to permit Markel to suspend or avoid coverage for
water damage while d&S failed to maintain a specified occu-
pancy level. That level of occupancy was the condition that
d&S was required to comply with to maintain coverage. The
clause itself does not eliminate coverage unless the insured
breaches the condition. These types of provisions are distinct
from exclusions:
A condition subsequent is to be distinguished from an
exclusion from the coverage: the breach of the former is
to terminate or suspend the insurance, while the effect
of the latter is to declare that there never was insur-
ance with respect to the excluded risk. Accordingly, the
suicide clause in a life insurance policy is not a condi-
tion subsequent, but rather suicide is simply not a risk
insured against.14
[9] So, it is more precise to define an exclusion in an
insurance policy as a limitation of liability, or a carving out
of certain types of loss, to which the insurance coverage
never applied.15
13 Coppi v. West Am. Ins. Co., 247 Neb. 1, 11, 524 N.W.2d 804, 813 (1994);
Kansas-Nebraska Nat. Gas Co., Inc. v. Hawkeye-Security Ins. Co., 195
Neb. 658, 240 N.W.2d 28 (1976).
14 See 6 Couch on Insurance 3d, supra note 9, § 81:19 at 81-34 to 81-35.
15 See, also, 17 Samuel Williston, A Treatise on the Law of Contracts
§ 49:111 (richard A. Lord ed., 4th ed. 2000).
576 	280 NebrASkA repOrTS

[10] In contrast, vacancy clauses in insurance policies are
“increased hazard” provisions.16 These provisions allow insur-
ers to suspend or avoid coverage upon the occurrence of
an “increased hazard.”17 And, as explained above, “Clauses
which provide that a policy shall become void or its operation
defeated or suspended, or the insurer relieved wholly or par-
tially from liability upon the happening of some event, or the
doing or omission to do some act, [are] conditions subsequent
. . . .”18 We conclude that vacancy clauses function as condi-
tions subsequent; they are not exclusions.
(b) Our earlier Cases Failed to properly distinguish
Conditions Subsequent From exclusions
We concede that some of our earlier cases could be read to
support Markel’s position that the vacancy clause is an exclu-
sion. Markel relies on Omaha Sky Divers Parachute Club, Inc.
v. Ranger Ins. Co.,19 and Krause v. Pacific Mutual Life Ins.
Co.20 but we conclude that we misunderstood the function of
the contract provisions in those cases.
In Omaha Sky Divers Parachute Club, Inc., an aircraft
insurer denied coverage for loss or damage to the aircraft
while in motion. The declarations page provided that only
pilots holding valid pilot and medical certificates with required
ratings would operate the plane. And a clause in the exclu-
sions section provided that the policy did not apply to “‘any
loss or damage occurring while the aircraft is operated in
flight by other than the pilot or pilots’” set forth in the
16 See 6A Lee r. russ & Thomas F. Segalla, Couch on Insurance 3d
§ 94:102 (2006).
17 See, id., § 94:1; 10A Lee r. russ et al., Couch on Insurance 3d § 148:73
(2006).
18 6 Couch on Insurance 3d, supra note 9, § 81:19 at 81-34.
19 Omaha Sky Divers Parachute Club, Inc. v. Ranger Ins. Co., 189 Neb. 610,
204 N.W.2d 162 (1973).
20 Krause v. Pacific Mutual Life Ins. Co., 141 Neb. 844, 5 N.W.2d 229
(1942).
d & S reALTy v. MArkeL INS. CO. 	577
Cite as 280 Neb. 567

declarations page.21 The plane was damaged because a brake
failed. The pilot’s medical certificate had expired but was
renewed 2 days after the accident. We stated that the pilot’s
lack of a valid medical certificate had not contributed to the
accident. but we rejected the plaintiff’s argument that these
provisions constituted a warranty or condition, the breach of
which was subject to the contribute-to-loss standard under
§ 44-358. We concluded that the exclusion of coverage was
clear and unambiguous.
Similarly, in Krause v. Pacific Mutual Life Ins. Co., the
plaintiff’s decedent was killed in an airplane crash while he
was covered under an accident policy. but a clause in the pol-
icy provided that it did not provide coverage for bodily injury
sustained while riding in an airplane unless the following con-
ditions were met:
“[T]he insured (1) is actually riding as a fare-paying pas-
senger (2) in a licensed commercial aircraft (3) provided
by an incorporated common carrier for passenger service,
(4) and while such aircraft is operated by a licensed
transport pilot (5) and is flying in a regular civil airway
between definitely established airports.”22
The insurer denied liability on the sole ground that the dece-
dent was not a fare-paying passenger.
Although the decedent had paid a nominal fee for a “trip
pass,” we concluded that air travel was “a strictly excluded
risk, save and except when it is carried out in compliance with
the words framing the exception.”23 We further concluded that
fare-paying passengers included only those who had paid the
full legal fare. On this reasoning, we concluded that the precur-
sor to § 44-35824 did not apply: “What we have here is not a
21 Omaha Sky Divers Parachute Club, Inc., supra note 19, 189 Neb. at 612,
204 N.W.2d at 163.
22 Krause, supra note 20, 141 Neb. at 848, 5 N.W.2d at 231.
23 Id. at 846-47, 5 N.W.2d at 230-31.
24 See Comp. Stat. § 44-322 (1929).
578 	280 NebrASkA repOrTS

forfeiture of a policy upon conditions broken, but an excepted
risk never assumed by the insurer.”25
We believe that these cases provide little guidance for deter-
mining whether a policy clause operates to define the insured
risk or to condition coverage on the doing or omission of some
act after the risk has attached. And we have struggled with
the chameleon-like terms “conditions” and “exclusions.” but
in Krause, there was no meaningful difference between that
policy, which excluded coverage for air travel unless specified
conditions were met, and one that would provide coverage for
air travel if specified conditions were met. either policy would
allow the insurer to avoid liability—after the risk of loss had
attached—because the insured failed to satisfy preloss condi-
tions for coverage of bodily injury sustained while riding in
an airplane.
Such “exclusions,” as in Krause and Omaha Sky Divers
Parachute Club, Inc., do not define the insured risk in the
same sense as a suicide clause in a life insurance policy that
unconditionally excludes coverage for that risk. The insurer
in Krause clearly would have been liable if the decedent had
paid the full legal fare for his transportation. Krause pro-
vides an example of a policy that conditions coverage for a
loss rather than unconditionally excluding that loss from the
insured risk.
The insured risk in Krause was bodily injury sustained while
riding in an airplane. The conditions permitted the insurer
to avoid liability if the insured failed to act in a manner that
would avoid an increased hazard during air travel. Similarly,
property insurance policies commonly terminate or avoid the
policy if the insured acts or fails to act in a way that increases
the hazard to which the insured property is exposed or changes
the nature of the risk.26 but a fire policy condition regarding
an increase in hazard “is not an exclusion, but is a condition
25 Krause, supra note 20, 141 Neb. at 850, 5 N.W.2d at 232.
26 6A Couch on Insurance 3d, supra note 16, § 94:1.
d & S reALTy v. MArkeL INS. CO. 	579
Cite as 280 Neb. 567

subsequent.”27 And we had specifically held in cases preceding
Krause that failure to comply with policy conditions related
to increased physical hazards were subject to the statutory
contribute-to-the-loss standard.28
[11] In 1907, before the Legislature enacted § 44-358, this
court strictly enforced a vacancy clause that forfeited coverage
by allowing the insurer to treat the policy as void upon breach
of the condition, even though the breach was unrelated to the
loss.29 Statutory provisions like § 44-358 that limit an insurer’s
ability to avoid liability for breach of increased hazard condi-
tions exist because the conditions are often so broad that an
insured’s violation of them is not causally relevant to the loss.30
but in Krause, we nullified the purpose of § 44-358 because
we accepted the insurer’s characterization of the policy provi-
sion as an exclusion of coverage for air travel except under its
specified conditions.
Omaha Sky Divers Parachute Club, Inc. presented a similar
classification problem. The certification provision excluded
coverage unless the pilot possessed the necessary medical cer-
tification, which was proof of the pilot’s medical fitness. The
proof was intended to protect the insurer from the increased
hazard of a pilot with health problems flying the plane.31 And
other courts have interpreted the same provision as imposing a
condition for coverage.32 And further confusing the distinction,
27 Id., § 94:3 at 94-12, citing Knoff v. United States Fidelity and Guaranty
Co., 447 S.W.2d 497 (Tex. Civ. App. 1969).
28 See, Johnson v. Caledonian Ins. Co., 125 Neb. 759, 251 N.W. 821 (1933);
Mayfield v. North River Ins. Co., 122 Neb. 63, 239 N.W. 197 (1931);
Hannah v. American Live Stock Ins. Co., 111 Neb. 660, 197 N.W. 404
(1924).
29 See Farmers & Merchants Ins. Co. v. Bodge, 76 Neb. 35, 110 N.W. 1018
(1907) (on rehearing).
30 See robert Works, Insurance Policy Conditions and the Nebraska
Contribute to the Loss Statute: A Primer and A Partial Critique, 61 Neb.
L. rev. 209 (1982).
31 See id.
32 See, e.g., Global Aviation Ins. Managers v. Lees, 368 N.W.2d 209 (Iowa
App. 1985), abrogated on other grounds, Schneider Leasing v. U.S.
Aviation Underw., 555 N.W.2d 838 (Iowa 1996).
580 	280 NebrASkA repOrTS

even insurers have argued that increased hazard provisions
were not exclusions when state law put the burden on insur-
ers to prove exclusions.33 Insurers have often, as in this policy,
included vacancy clauses as conditions “‘suspending or restrict-
ing insurance’”34 or voiding the policy upon the insured’s
breach.35 And we have specifically treated vacancy provisions
as conditions for coverage that the insurer may enforce, but not
as exclusions of coverage.36
[12] 	These 	cases 	illustrate 	that 	insurers 	have 	couched
increased hazard provisions as both conditions and exclusions.
but we do not believe that the application of § 44-358 should
hinge upon the policy’s labeling. We conclude that regardless
of an insurer’s labeling, a clause that requires an insured to
avoid an increased hazard is a condition subsequent for cover-
age. To the extent that Omaha Sky Divers Parachute Club, Inc.
and Krause can be read to hold that increased hazard provi-
sions are exclusions, they are overruled.
(c) Our decision in Coppi v. West Am. Ins. Co. Incorrectly
Held That the Contribute-to-the-Loss Standard
does Not Apply to promissory Warranties
Markel argues that even if the vacancy provision is a con-
dition or warranty, it is a “‘promissory warranty’” to which
§ 44-358 does not apply.37 Markel relies on our decision in
Coppi v. West Am. Ins. Co.,38 but we conclude that Coppi was
also incorrectly decided.
33 See, Stortenbecker v. Pottawattamie Mutual Ins. Ass’n, 191 N.W.2d 709
(Iowa 1971); AIG Aviation, Inc. v. Holt Helicopters, 198 S.W.3d 276 (Tex.
App. 2006).
34 See Zweygardt v. Farmers Mut. Ins. Co., 195 Neb. 811, 814, 241 N.W.2d
323, 325 (1976).
35 See Farmers & Merchants Ins. Co. v. Bodge, 76 Neb. 31, 106 N.W. 1004
(1906), vacated on other grounds, Bodge, supra note 29.
36 See, Schmidt v. Williamsburgh City Fire Ins. Co., 95 Neb. 43, 144 N.W.
1044 (1914); Bodge, supra note 29; Bodge, supra note 35; Home Fire Ins.
Co. v. Kuhlman, 58 Neb. 488, 78 N.W. 936 (1899).
37 brief for appellee at 24.
38 Coppi, supra note 13.
d & S reALTy v. MArkeL INS. CO. 	581
Cite as 280 Neb. 567

In Coppi, a business owner’s policy, which covered loss
by theft up to $10,000, contained an “iron-safe” clause. The
clause required the business to keep record from which losses
could be determined. The issue on appeal was whether the
trial court erred in failing to rule that § 44-358 prevented the
insurer from denying coverage. We held the insured could
not rely on § 44-358 because his breach of the recordkeeping
provision was a promissory warranty to which the contribute-
to-the-loss standard did not apply. We set out the following
definitions regarding warranties, promissory warranties, and
conditions precedent:
A warranty has been defined as a statement or prom-
ise the untruthfulness or nonfulfillment of which in any
respect renders the policy voidable by the insurer. . . . It
enters into and forms a part of the contract itself, defin-
ing the precise limits of the obligation, and no liability
can arise except within those limits. . . . That is to say, a
warranty serves to establish a condition precedent to an
insurer’s obligation to pay. . . . A condition precedent is
a condition which must be performed before the parties’
agreement becomes a binding contract, or a condition
which must be fulfilled before a duty to perform an exist-
ing contract arises. . . .
A warranty may be express or implied, and affirmative
or promissory. . . . A “promissory” or “executory” war-
ranty is one in which the insured undertakes to perform
some executory stipulation, as that certain acts shall or
will be done, or that certain facts shall or will continue to
exist. . . . A promissory warranty requires certain action
or nonaction on the part of the insured after the policy has
been entered into in order that its terms shall not thereaf-
ter be breached.39
Consistent with what other courts had held, we concluded
that the recordkeeping provision was a promissory warranty.
We recognized that we had previously held that § 44-358 can-
not apply to the breach of postloss conditions, those “terms of
39 Id. at 8, 524 N.W.2d at 811 (citations omitted).
582 	280 NebrASkA repOrTS

a policy which could arise only after the loss has occurred.”40
We explained that postloss conditions include notice of loss
provisions and proof of loss provisions.41 We also recognized
that the recordkeeping provision was not a postloss condition.
yet we concluded that
§ 44-358 deals with warranties which are conditions pre-
cedent to the very existence of an insurance contract, not
with promissory warranties the fulfillment of which are
conditions precedent to recovery under an insurance con-
tract which has come into being. Thus, § 44-358 has no
application to the situation at hand . . . .42
Upon further analysis, we were wrong. before Coppi, we
had already implicitly held that the contribute-to-the-loss stan-
dard does not apply to warranties that function as conditions
precedent to the existence of a contract (i.e., fraudulent state-
ments in an application for insurance).43 The plain language of
the statute compels this conclusion.
Section 	44-358 	has 	two 	sentences. 	The 	first 	sentence
provides:
No oral or written misrepresentation or warranty made
in the negotiation for a contract or policy of insurance by
the insured, or in his behalf, shall be deemed material or
defeat or avoid the policy, or prevent its attaching, unless
such misrepresentation or warranty deceived the company
to its injury.44
[13,14] by its terms, the first sentence applies only to war-
ranties made in the negotiations for a contract of insurance,
40 See id. at 9, 524 N.W.2d at 812, citing First Security Bank v. New
Hampshire Ins. Co., 232 Neb. 493, 441 N.W.2d 188 (1989); Ach v.
Farmers Mut. Ins. Co., 191 Neb. 407, 215 N.W.2d 518 (1974), abrogated
on other grounds, Herman Bros. v. Great West Cas. Co., 255 Neb. 88, 582
N.W.2d 328 (1998); and Clark v. State Farmers Ins. Co., 142 Neb. 483, 7
N.W.2d 71 (1942).
41 See Coppi, supra note 13.
42 Id. at 9-10, 524 N.W.2d at 812 (emphasis supplied).
43 See Gillan v. Equitable Life Assurance Society, 143 Neb. 647, 10 N.W.2d
693 (1943).
44 § 44-358 (emphasis supplied).
d & S reALTy v. MArkeL INS. CO. 	583
Cite as 280 Neb. 567

i.e., those that relate to whether the contract is effective. So, to
the extent that Nebraska law permits an insured’s statements in
the negotiation for a contract to be treated as warranties, the
first sentence of § 44-358 applies only to warranties that func-
tion as conditions precedent to the policy’s being effective.45
Warranties that are relevant to an insurance policy’s being
effective are classified as “affirmative” warranties:
An affirmative warranty is one which asserts an exist-
ing fact or condition, and appears on the face of the
policy, or is attached thereto and made a part thereof. As
a general rule, it is in the nature of a condition precedent
to the validity of the policy, and if broken in its inception
the policy never attaches.46
[15] In contrast to misrepresentations and affirmative warran-
ties, the second sentence of § 44-358 applies only to the breach
of warranties and conditions that exist at the time of the loss.
but an insurer can rescind a policy for breach of an affirmative
warranty or condition precedent to the policy’s being effective
as soon as it learns of the relevant facts, regardless of whether
a loss has occurred; its failure to act until a loss occurs will
result in a waiver of the defense if it has continued to accept
premiums with knowledge of the facts constituting a breach.47
So, the Legislature clearly did not intend the second sentence
of § 44-358 to apply to conditions precedent or affirmative
warranties (e.g., statements relevant to insurability). Instead, as
we have previously recognized, the first and second sentences
of § 44-358 are mutually exclusive in their application, and the
contribute-to-the-loss standard of the second sentence applies
to breaches of conditions after the risk attaches and the policy
is effective.48 That is, the contribute-to-the-loss standard applies
45 See, Gillan, supra note 43; Neb. rev. Stat. § 44-502(4) (reissue 2004).
46 See 6 Couch on Insurance 3d, supra note 9, § 81:13 at 81-27 to 81-28.
Compare Coryell v. Old Colony Ins. Co., 118 Neb. 303, 224 N.W. 684
(1929), vacated on other grounds 118 Neb. 312, 229 N.W. 326 (1930).
47 See, e.g., Lowry v. State Farm Auto. Ins. Co., 228 Neb. 171, 421 N.W.2d
775 (1988).
48 See, Gillan, supra note 43; Muhlbach v. Illinois Bankers Life Ass’n, 108
Neb. 146, 187 N.W. 787 (1922).
584 	280 NebrASkA repOrTS

to breaches of conditions subsequent and continuing warranties
that function as conditions subsequent.
[16] In Coppi, we correctly characterized a promissory
warranty as a stipulation that the insured will act or refrain
from acts to maintain a term of the policy.49 but we failed
to recognize that a promissory warranty is a continuing war-
ranty that functions as a condition subsequent for coverage:
“A promissory warranty is one by which the insured stipulates
that something shall be done or omitted after the policy takes
effect and during its continuance, and has the effect of a condi-
tion subsequent.”50
In Sanks v. St. Paul Fire & Marine Ins. Co.,51 we held that
the contribute-to-the-loss standard applied to a provision that
we characterized as a promissory warranty. It is true that Sanks
arguably involved a postloss warranty or condition to which
we have since held that § 44-358 does not apply.52 but as
stated, we have also specifically held that the contribute-to-the-
loss standard applies to provisions that function as conditions
subsequent.53
Moreover, if our conclusion in Coppi were correct—that
the contribute-to-the-loss standard does not apply to promis-
sory warranties—then the second sentence does not apply
to any warranty in an insurance policy. This result is obvi-
ously contrary to the statutory interpretation principles and the
Legislature’s intent. It appears that we got off track in Coppi
because we failed to recognize how the term “condition subse-
quent” is applied to insurance policies.
As noted, in Coppi, we classified the recordkeeping provision
as a promissory warranty, which functions as a condition prece-
dent to the insurer’s obligation to pay. but we jumped from that
principle to our holding that the contribute-to-the-loss standard
49 See 6 Couch on Insurance 3d, supra note 9, § 81:14.
50 Id. at 81-29.
51 Sanks v. St. Paul Fire & Marine Ins. Co., 131 Neb. 266, 267 N.W. 454
(1936).
52 See First Security Bank, supra note 40.
53 See, Johnson, supra note 28; Mayfield, supra note 28; Hannah, supra note
28.
d & S reALTy v. MArkeL INS. CO. 	585
Cite as 280 Neb. 567

applies only to “warranties which are conditions precedent to
the very existence of an insurance contract” (e.g., insureds’
insurability statements).54 In Coppi, we failed to distinguish
between conditions precedent and conditions subsequent or
to recognize that a breach of either type of condition (or
related warranty) will avoid the insurer’s liability absent statu-
tory intervention.55
Any warranty that must be strictly satisfied will serve as a
condition precedent to an insurer’s obligation to pay. Warranties
are effectively policy stipulations that function as conditions on
an insurer’s obligation to pay a loss.56 but in insurance law,
we believe it is more precise to refer to any condition that
must be satisfied after the risk of loss attaches as a “condition
subsequent” to distinguish it from a condition precedent to the
policy’s being effective.
[17] Using the term “condition subsequent” to refer to any
insurance policy condition that applies after the risk of loss has
attached is different from its meaning in a noninsurance con-
text. Conditions subsequent are less common in noninsurance
contracts because they can permit a party to avoid its obliga-
tion after its duty to perform has been triggered.57 A true condi-
tion subsequent is the equivalent of a postloss condition in an
insurance policy: e.g., after a loss has occurred, an insured’s
failure to comply with a notice of loss provision may result in
the insurer’s avoidance of liability.58 but for insurance policies,
the term condition subsequent comprises both preloss condi-
tions (e.g., keep records), to which the contribute-to-the-loss
standard applies, and postloss conditions (e.g., provide notice
of loss), to which the standard does not apply.
[18] In Coppi, we did not recognize this use of the term
condition subsequent. So we failed to recognize that the
54 Coppi, supra note 13, 247 Neb. at 9, 524 N.W.2d at 812.
55 See 6 Couch on Insurance 3d, supra note 9, § 83:30.
56 See id., § 81:10.
57 See Schmidt v. J. C. Robinson Seed Co., 220 Neb. 344, 370 N.W.2d 103
(1985).
58 See Herman Bros., supra note 40.
586 	280 NebrASkA repOrTS

contribute-to-the-loss 	standard 	in 	the 	second 	sentence 	of
§ 44-358 applies to preloss conditions subsequent and promis-
sory warranties. To the extent that Coppi holds the contribute-
to-the-loss standard does not apply to promissory warranties
and applies only to conditions precedent to the existence of an
insurance contract, it is overruled.
[19] In sum, we determine that a vacancy clause in an insur-
ance contract is not an exclusion; it is a condition subsequent
to which the contribute-to-the-loss standard applies. We con-
clude that the court erred in refusing to permit d&S to argue
that § 44-358 precluded Markel from denying liability.
2. WAiver And eStoppel do not A pply
The court refused to instruct the jury on waiver and estoppel.
It concluded that even if Markel knew about the level of occu-
pancy, it had no duty to inform d&S of the coverage impli-
cations. d&S contends that Markel has waived the vacancy
provision or should be estopped from denying liability. d&S
argues that Markel waived the vacancy provision because it
accepted premiums after it knew the building’s occupancy was
below the required level.
[20,21] Initially, we note that waiver and estoppel are distinct
legal concepts.59 but we do not strictly apply the elements of
equitable estoppel when an insured claims that an insurer has
waived a policy provision.60 Instead, if the evidence shows that
the insurer has waived a policy provision, it may be “estopped
from denying liability where, by its course of dealing and the
acts of its agent, it has induced the insured to pursue a course
of action to his detriment.”61
[22,23] A waiver is a voluntary and intentional relinquish-
ment of a known right, privilege, or claim, and may be
59 See 17 Lee r. russ & Thomas F. Segalla, Couch on Insurance 3d § 239:96
(2006).
60 See Kuhlman, supra note 36. See, also, 44A Am. Jur. 2d Insurance § 1543
(2003).
61 Keene Coop. Grain & Supply Co. v. Farmers Union Ind. Mut. Ins. Co., 177
Neb. 287, 291, 128 N.W.2d 773, 777 (1964).
d & S reALTy v. MArkeL INS. CO. 	587
Cite as 280 Neb. 567

demonstrated by or inferred from a person’s conduct.62 We
have long held that an insurer may waive any provision of
a policy that is for the insurer’s benefit,63 including vacancy
provisions.64
[24-26] Ordinarily, to establish a waiver of a legal right,
there must be a clear, unequivocal, and decisive act of a party
showing such a purpose, or acts amounting to an estoppel on
his or her part.65 A party may waive a written contract in whole
or in part, either directly or inferentially.66 A party may prove
the waiver by (1) a party’s express declarations manifesting
the intent not to claim an advantage or (2) a party’s neglect-
ing and failing to act so as to induce the belief that it intended
to waive.67
[27] An insurer is precluded from asserting a forfeiture
when, after acquiring knowledge of the facts constituting a
breach of condition, it has retained the unearned portion of the
premium or has failed to return or tender it back with reason-
able promptness.68 but we have also stated that this rule is most
applicable where the breach or ground for forfeiture is of such
character as to render the policy void from its inception.69 And
we have specifically held that an insurer may waive conditions
that void the policy if it becomes vacant or unoccupied, or be
estopped from relying on those conditions as a defense to an
62 Daniels v. Allstate Indemnity Co., 261 Neb. 671, 624 N.W.2d 636 (2001).
63 See id., quoting Schoneman v. Insurance Co., 16 Neb. 404, 20 N.W. 284
(1884).
64 Zweygardt, supra note 34; German Ins. Co. v. Frederick, 57 Neb. 538, 77
N.W. 1106 (1899), overruled on other grounds, Gillan, supra note 43.
65 Daniels, supra note 62.
66 See, Davenport Ltd. Partnership v. 75th & Dodge I, L.P., 279 Neb. 615,
780 N.W.2d 416 (2010); Jelsma v. Scottsdale Ins. Co., 231 Neb. 657, 437
N.W.2d 778 (1989).
67 Id.
68 See, Dairyland Ins. Co. v. Kammerer, 213 Neb. 108, 327 N.W.2d 618
(1982); Hawkeye Casualty Co. v. Stoker, 154 Neb. 466, 48 N.W.2d 623
(1951).
69 Id.
588 	280 NebrASkA repOrTS

action upon the policy.70 Although in that case, the agent had
knowledge that the building was vacant when the policy was
issued, we have recognized waiver of a vacancy provision
when the vacancy occurred after the policy became effec-
tive.71 We have similarly held an insurer waived other types of
increased hazard conditions after the risk attached when it had
knowledge of the breach before the loss occurred and failed
to take steps to cancel the policy.72 So whether an insurer may
waive an increased hazard condition does not depend upon
whether the insured’s breach of the condition occurred before
or after the risk attached.
but Markel argues that these cases are distinguishable
because the insured’s breach of the condition resulted in a
forfeiture of the policy—whereas d&S’ breach did not. As
stated, we have held that an insurer may waive any provision
in a policy73 and that an insurance contract may be waived in
whole or in part.74 These rules are obviously broad enough
to include any defense to an action to enforce a policy, not
just claims that the policy is void or forfeited. And that is the
rule in other jurisdictions.75 but there is a critical distinction
between forfeiture of the policy and forfeiture of a particular
coverage in determining whether waiver can be shown solely
by an insurer’s continued acceptance of premiums.
[28] When an insurer knows of a breach of condition or
warranty that permits it to treat the policy as void, and the
70 Zweygardt, supra note 34.
71 Hunt v. State Ins. Co., 66 Neb. 125, 92 N.W. 921 (1902) (on rehearing);
Kuhlman, supra note 36. See, also, Rochester Loan & Banking Co. v.
Liberty Ins. Co., 44 Neb. 537, 62 N.W. 877 (1895). Accord, North River
Insurance Co. v. Rawls, 185 ky. 509, 214 S.W. 925 (ky. App. 1919);
Security Ins. Co. v. Cook, 99 Okla. 275, 227 p. 402 (1924); Republic Ins.
Co. v. Dickson, 69 S.W.2d 599 (Tex. Civ. App. 1934).
72 See, Kor v. American Eagle Fire Ins. Co., 104 Neb. 610, 178 N.W. 182
(1920); Slobodisky v. Phenix Ins. Co., 52 Neb. 395, 72 N.W. 483 (1897);
Grand Lodge v. Brand, 29 Neb. 644, 46 N.W. 95 (1890).
73 See Daniels, supra note 62.
74 See Jelsma, supra note 66.
75 See 17 Couch on Insurance 3d, supra note 59, § 239:93.
d & S reALTy v. MArkeL INS. CO. 	589
Cite as 280 Neb. 567

insurer continues to accept premiums, its conduct shows its
intent to treat the policy as valid despite the breach.76 The
insurer’s acceptance of premiums is inconsistent with treating
the breach as voiding the policy. but waiver does not apply
when the insured’s breach of an increased hazard provision
does not result in an absolute forfeiture of the policy and
the insurer continues to be liable for loss from other cov-
ered causes.77
It is true that the Nebraska endorsement to the policy per-
mitted Markel to treat the breach as voiding the policy “if such
breach exists at the time of loss and contributes to the loss.”
Markel certainly knew that if a loss occurred during the period
of a breach that contributed to the loss, it could treat the policy
as void. but it could not have treated the policy as void until a
loss occurred and Markel had reason to believe that the breach
of the vacancy condition contributed to the loss. And until
that time, Markel was liable for any other covered losses. A
loss was entirely speculative when Markel had the building
inspected. Thus, Markel’s continued acceptance of premiums
is insufficient to show that it intended to abandon a defense
based on d&S’ breach. We conclude that the court did not
err is refusing to instruct the jury on d&S’ waiver and estop-
pel theory.
VI. CONCLUSION
We conclude that the district court erred in refusing to per-
mit d&S to instruct the jury, or permit d&S to argue, that
the contribute-to-the-loss standard under § 44-358 applied to
preclude Markel from denying liability for its loss. but we con-
clude that the court was correct in refusing to instruct the jury
on Markel’s alleged waiver and estoppel. The evidence was
insufficient to show that Markel intended to abandon a defense
based on d&S’ breach of the vacancy condition. Accordingly,
we remand the cause for further proceedings limited to the
76 See id., § 239:121.
77 See, Crites v. Modern Woodmen of America, 82 Neb. 298, 117 N.W. 776
(1908); Modern Woodmen of America v. Talbot, 76 Neb. 621, 107 N.W.
790 (1906).
590 	280 NebrASkA repOrTS

issue of whether d&S’ breach of the vacancy condition con-
tributed to the loss.
A ffirmed in pArt, And in pArt reverSed And
remAnded for further proceedingS.
d & S reALTy v. MArkeL INS. CO. 	591
Cite as 280 Neb. 567