Nebraska Truck Service & Sales, Inc. v. United States Fire Insurance
Nebraska Truck Service & Sales, Inc. v. United States Fire Insurance
Opinion of the Court
The appellant, Nebraska Truck Service and Sales, Inc. (Nebraska Truck Service), appeals from an order entered by the District Court for Douglas County, Nebraska, sustaining a motion for judgment notwithstanding the verdict in favor of the appellees, United States Fire Insurance Company, Johnston Insurance Agency, and Robert Lampe, hereinafter jointly referred to as Insurers. We affirm.
Nebraska Truck Service filed suit against Insurers, alleging that Nebraska Truck Service, the owner of a 1978 Cobra fifth-wheel trailer, requested the Johnston Insurance Agency to obtain a garage and auto fleet insurance policy providing comprehensive coverage for the trailer. Nebraska Truck Service maintains that Johnston Insurance Agency negligently failed to obtain a comprehensive policy for the full value of the trailer and, instead, obtained coverage from U.S. Fire with a limit of $8,500. The trailer was stolen during the Labor Day weekend in September of 1979. U.S. Fire paid Nebraska Truck Service $8,500 for the loss of the trailer, pursuant to the policy.
In its order sustaining the motion for judgment notwithstanding the verdict, the trial court acknowledged that it should have sustained the motions for directed verdict made by Insurers at the close of the case. The rationale for the court’s conclusion was that Nebraska Truck Service was contributorily negligent in not reading the policy when it was sent to it and that the policy, on its face, disclosed that the limit of liability was $8,500. The record is fairly clear that had the policy been examined it would have been apparent that the maximum amount of liability under the comprehensive section of the
As we noted in Kenyon & Larsen v. Deyle, 205 Neb. 209, 217, 286 N.W.2d 759, 764 (1980): “The measure of damages for the loss caused by the negligence of the broker is the amount that would have been due under the policy if it had been obtained by the broker.” That amount is clearly provided for by the contract of insurance, and reads as follows: “B. The most we will pay for loss is the smallest of the following amounts: 1. The amount shown in the schedule of this .endorsement. 2. The actual cash value of the damaged or stolen property at the time of loss. 3. The cost of repairing or replacing the damaged or stolen property with other of like kind or quality.” (Emphasis supplied.) Nebraska Truck Service maintains that it should have been entitled to receive payment in an amount of not less than the difference between $18,347.94 and the $8,500 paid to it by U.S. Fire. In order to be entitled to that sum, or any sum in excess of the amount actually received, Nebraska Truck Service was obligated to introduce evidence showing that the actual cash value of the Cobra or the cost of replacing the Cobra on the date of loss was in excess of the amount which, in fact, it received from U.S. Fire. Damages, like any other element of plaintiff’s cause of action, must be pled and proved, and the burden is on the plaintiff to offer evidence sufficient to prove plaintiff’s alleged damages. See Settell’s, Inc. v. Pitney Bowes, Inc., 209 Neb. 26, 305 N.W.2d 896 (1981).
Assuming, for the sake of argument, that one can determine from all of the evidence a specific dollar amount representing the purchase price of the trailer, the most that one can determine is the purchase price of the trailer nearly a year earlier than the loss; and while the purchase price might, under proper conditions, reflect present value, the evidence in this case is simply insufficient. There is no testimony as to the condition of the trailer after its purchase, nor any testimony from which it can be concluded that the value of the trailer when it was stolen was equal to or greater than the purchase
In the instant case Nebraska Truck Service was alerted to the problem when Insurers moved for a directed yerdict, both at the close of the plaintiff’s case and again at the close of all the evidence, on the specific ground that Nebraska Truck Service had failed to prove the value of the trailer on the date of its loss. It was not too much to ask Nebraska Truck Service to offer testimony as to the value on the date of the loss, as required by the policy. Having failed to do so, there was no evidence upon which the jury could determine the proper measure of damages, and the trial court therefore should have sustained the motion to dismiss. Recognizing its error and having entered a judgment notwithstanding the verdict, the court corrected the defect which earlier had gone uncorrected. The fact that it may have given a reason other or different than the one upon which we base our decision is of no moment in the present case. The judgment of the trial court is affirmed.
Affirmed.
Reference
- Full Case Name
- Nebraska Truck Service and Sales, Inc., and cross-appellee v. United States Fire Insurance Company, a corporation, appellee Johnston Insurance Agency, Inc., a corporation, and Robert Lampe, and
- Cited By
- 1 case
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- Published