Zook v. Zook, 978 N.W.2d 156

Robert and Jerry Zook were 50/50 co-owners of a welding business; the business purchased key-man life insurance on both brothers in 1993.
A 1993 buy-sell agreement required the parties to transfer ownership of the life policies upon payment and stock transfer. Robert became sole owner in November 1993.
Insurance-agent John Marshall processed a beneficiary-change form signed by Robert (to name his wife), but the insurer returned it because Jerry, as policy owner, also needed to sign; Marshall did not notify Robert the change was unrecorded. Jerry later signed an assignment in August 1995.
Robert died in 2017 (his wife predeceased him); the insurer denied the plaintiffs’ claim and paid approximately $200,000 to Jerry. Robert’s children (and copersonal representatives) sued Jerry (unjust enrichment, constructive trust, conversion) and Marshall (professional negligence).
The district court held Marshall and Jerry jointly and severally liable and imposed a constructive trust on the proceeds. Marshall appealed (but died during the appeal); Jerry cross-appealed challenging unjust enrichment and the constructive trust. The Nebraska Supreme Court dismissed Marshall’s appeal, reversed the unjust-enrichment finding against Jerry, vacated the constructive trust, and remanded with directions to dismiss as to Jerry.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Marshall’s negligence claim was subject to the professional statute of limitations and time-barred	Plaintiffs relied on district court finding against Marshall; argued claim timely under general tort SOL	Marshall argued the professional SOL applied and the claim was barred	Appeal dismissed for procedural reasons (Marshall died; no substitution); Court did not decide SOL issue
Whether Marshall’s appeal could proceed after his death	Plaintiffs (respondents) implicitly argued proceedings should continue; substitution was requested by Marshall’s wife	Marshall’s estate/wife sought substitution under Neb. Rev. Stat. § 25-322	Court exercised discretion to deny substitution for lack of sufficient record and dismissed Marshall’s appeal
Whether Jerry was unjustly enriched by receiving and retaining the life-insurance proceeds	Plaintiffs argued Robert intended proceeds for his wife/children and Jerry’s retention was unjust; constructive trust required	Jerry argued he was the named beneficiary, exercised lawful rights, and engaged in no wrongdoing or misleading acts	Reversed: plaintiffs failed to show unjust enrichment or wrongful conduct by Jerry; constructive trust vacated and dismissal directed

Colwell v. Mullen, 301 Neb. 408 (2018) (procedural standards when an appellant dies during appeal; substitution issues)
Reinke Mfg. Co. v. Hayes, 256 Neb. 442 (1999) (authority on substitution and survival of appeals)
In re Estate of Adelung, 306 Neb. 646 (2020) (discussion of appellate procedure after death of a party)
Kissinger v. Genetic Eval. Ctr., 260 Neb. 431 (2000) (one free from fault cannot be held unjustly enriched merely for exercising a legal right)
Kanne v. Visa U.S.A., 272 Neb. 489 (2006) (elements required to prove unjust enrichment)
City of Scottsbluff v. Waste Connections of Neb., 282 Neb. 848 (2011) (definitions and principles of unjust enrichment and restitution)
Haggard Drilling, Inc. v. Greene, 195 Neb. 136 (1975) (third party not liable in quasi-contract merely for benefitting from a contract between others)
Wrede v. Exchange Bank of Gibbon, 247 Neb. 907 (1995) (limitations on imposing restitutionary liability absent wrongdoing)