Carlson v. Allianz Versicherungs-AGCarlson v. Allianz Versicherungs-AG
Case Information
*1 N ebraska a dvaNce s heets
Jеremiah did not receive formal notice that he was the pur- ported father until November 2011. The evidence indicates that once he received notice, Jeremiah made attempts to contact Dakota to discuss the pregnancy, which are confirmed by tele- phone records. A caseworker with the adoption agency testified that Jeremiah had asked her questions about the pregnancy so that he could protect his parental rights.
The county court found that Dakota intentionally hid her pregnancy and the birth of the baby from Jeremiah in an attempt to procedurally bar him from objecting to the adoption. This finding is not appealed by Dakota.
Considering the entire record as presented, we find that competent evidence supports the county court’s finding that Jeremiah was excused for not providing financial support dur- ing Dakota’s pregnancy because of Dakota’s actions to not include him in her pregnancy.
CONCLUSION
The county court’s finding that Dakota did not prove by clear and convincing evidence that Jeremiah’s consent was not required under § 43-104.22 is well supported by competent evidence. The decision of the county court is affirmed.
a ffirmed .
c arolyN c arlsoN aNd r ichard c arlsoN , appellaNts , v . a lliaNz v ersicheruNgs -a ktieNgesellschaft aNd d oes 1 through 50, iNclusive , appellees . ___ N.W.2d ___ Filed March 7, 2014. No. S-13-492.
1. Motions to Dismiss: Appeal and Error. A district court’s grant of a motion to dismiss is reviewed de novo. 2. Appeal and Error. To be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error. 3. Declaratory Judgments: Courts: Jurisdiction: Parties: Waiver. The presence of necessary parties in declaratory judgment actions is jurisdictional and cannot be waived, and if such persons are not made parties, then the district court has no jurisdiction to determine the controversy.
4.
Jurisdiction.
It is fundamental that a court has the power to determine whether it
has jurisdiction over the matter before it.
5.
Actions: Parties.
A dismissal based upon a failure to join a necessary party is a
dismissal of the action without prejudice.
*2
6.
Courts: Jurisdiction.
In civil cases, a court of general jurisdiction has inherent
power to vacate or modify its own judgment at any time during the term in which
the court issued it.
7.
Courts: Motions to Vacate: Time.
Appeal from the District Court for Lancaster County: r obert r. o tte , Judge. Affirmed.
Thomas G. Sundvold, of Sundvold Law Firm, P.C., L.L.O., and Raymond D. McElfish, of McElfish Law Firm, P.C., L.L.O., for appellants.
Kyle Wallor and Sarah F. Macdissi, of Lamson, Dugan & Murray, L.L.P., for appellee Allianz Versicherungs-Aktiengesellschaft.
h eavicaN , c.J., W right , c oNNolly , s tephaN , m c c ormack , and c assel , JJ.
c assel , J.
I. INTRODUCTION
Twenty months after the district court dismissed the appel-
lants’ declaratory judgment action against an insurance com-
pany for failure to join a necessary party, the appellants filed a
complaint to vacate the judgment. The district court sustained
the insurance company’s motion to dismiss the complaint.
Because we conclude that (1) the time for exercise of the dis-
trict court’s inherent power to vacate its judgment had expired,
(2) the court lacked jurisdiction to vacate its judgment under
II. BACKGROUND 1. u NderlyiNg l aWsuit aNd b aNkruptcy s tay In February 2005, the appellants, Carolyn Carlson and Richard Carlson, were involved in a rollover collision while driving their Chrysler PT Cruiser. The back of Carolyn’s seat collapsed during the rollover, and she suffered a cervical frac- ture and paralysis from the neck down. The Carlsons filed a products liability action against Daimler-Chrysler Corporation in the district court for Lancaster County, Nebraska.
In April 2009, prior to the scheduled trial date, Chrysler LLC sought chapter 11 bankruptcy protection. The bankruptcy court imposed an automatic stay, which stayed the Carlsons’ suit.
In May 2009, the Carlsons sought the bankruptcy court’s relief from the automatic stay. In their motion, they alleged that the state court proceeding was not connected to and would not interfere with the bankruptcy case and that litigation in the Nebraska state court would not prejudice the interests of a other creditors and interested parties. Old Carco LLC and its affiliated debtors and debtors in possession filed an objection. (Daimler-Chrysler Corporation and Old Carco LLC, formerly known as Chrysler LLC, will be referred to as “Chrysler” in this opinion.) They alleged, among othеr things, that they did not have “‘first-dollar’ insurance coverage with respect to costs incurred defending against [the Carlsons’] specific claim” and that Chrysler’s estate would be depleted by the litigation of the lawsuit. The bankruptcy court denied the Carlsons’ motion.
2. s uit gaiNst a lliaNz Allianz Versicherungs-Aktiengesellschaft (Allianz), a for- eign insurance company, provided insurance to Chrysler. On February 22, 2010, the Carlsons filed a complaint for declara- tory relief against Allianz. This suit was also filed in the district court for Lancaster County, Nebraska. The Carlsons alleged that Allianz was an excess insurer obligated to “drop down” and provide “first dollar coverage” to Chrysler because Chrysler, which was partially self-insured, had become insol- vent. The Carlsons alleged that Allianz had an immediate duty to defend Chrysler in the underlying products liability action. They requested judicial determination of the duties and obliga- tions of Allianz. The Carlsons filed a praecipe directing the clerk of the court to issue summons for service of process on Allianz in Munich, Germany. Because Allianz is a German entity, the district court entered an order authorizing a service company to effect service of process on Allianz in Germany. Allianz was thereafter served in Germany.
Allianz filed a motion to dismiss pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(6) (failure to state claim) and (7) (failure to join necessary party). Allianz argued that Chrysler was a necessary party, but the Carlsons disagreed. The district court *4 overruled the motion. The court reasoned that it could not, as a matter of law, exclude the possibility that the insurance policy contained terms and conditions whereby Chrysler would not be a necessary party to the underlying accident.
3. b aNkruptcy c oNfirmatioN o rder aNd p laN i NJuNctioN On April 23, 2010, the bankruptcy court entered an order confirming a second amended joint plan of liquidation of debtors and debtors in pоssession, as modified. The confir- mation order, which had an effective date of April 30, stated in part:
30. . . . In addition, as of the Effective Date, the injunction imposed by Section III.E.4 of the Plan (the “Plan Injunction”) will be deemed modified solely to the extent necessary to (a) permit Tort Claimants to com- mence, pursue or continue litigation to pursue applicable insurance, including litigation against the Debtors’ insur- ers, if any (“Insurance Litigation”); and (b) in connec- tion therewith, to name one or more of the Debtors as nominal defendants, with the naming of such nominal defendants and such Insurance Litigation being solely for the purpose of pursuing claims against and collec- tion of payment of proceeds under any such insurance, if any . . . .
31. Except as described in this paragraph and in para- graph 30 above, the modification of the Plan Injunction in the foregoing paragraph 30 shall not: (a) expand, limit or otherwise impact in any way any rights of any Tort Claimant, the applicable insurer, if any, the Debtors, the Liquidation Trust, the Liquidation Trustee or any other party with respect to any matter; (b) authorize, or be deemed or construed to authorize, any Tort Claimant, the applicable insurer or any other party to seek fur- thеr relief against the Debtors or the Liquidation Trust or the Liquidation Trustee in any forum outside of the Bankruptcy Court with respect to the Tort Claim; (c) be deemed to modify the Plan Injunction to allow any party to pursue any action, or attempt to enforce any right, against the Debtors, the Liquidation Trust or the Liquidation Trustee (including, but not limited to, seeking (i) reimbursement of any amount, including any deduct- ible amount, defense costs or expenses from the Debtors, the Liquidation Trust or the Liquidation Trustee, (ii) any
N ebraska a dvaNce s heets
discovery from the Debtors, the Liquidation Trust or the Liquidation Trustee with respect to the Debtors’ records, personnel, assets and other information related thereto, (iii) to compel the appearance or testimony of any of the Liquidation Trust’s employees, officers, managers, agents or other Representatives (in their capacities as such) in the Insurance Litigation or (iv) otherwise to compel the Liquidation Trust’s employees, officers, man- agers, agents or other Representatives or counsel (in their capacities as such) to participate in the Insurance Litigation); or (d) limit the ability of the Debtors or the Liquidation Trust to seek to include Tort Claims asserted in the Chapter 11 Cases in any ADR Procedures in the Bankruptcy Court.
4. a lliaNz ’ m otioN for s ummary J udgmeNt
In October 2010, Allianz moved for summary judgment in
the suit initiated by the Carlsons against it. On March 8, 2011,
the district court entered an order sustaining Allianz’ motion.
The court examined the insurance policy and reasoned that
under its terms, Allianz’ “obligation to indemnify Chrysler
is only triggered after Chrysler has exhausted its $25 mil-
lion self[-]insured retention and Chrysler’s liability is fixed
by entry of final judgment.” The court found that the insur-
ance policy and any policy proceeds were part of Chrysler’s
bankruptcy estate and were subject to the automatic stay. The
district court stated, “Assuming
arguendo
the stay does not
apply, [Allianz] argues that Chrysler’s policy does not provide
drop[-]down coverage to the [Carlsons],” and proceeded to
engage in an analysis concerning drop-down coverage. The
court found that under the terms of the policy, Allianz was an
excess liability insurer and was not required to drop down and
provide coverage to Chrysler as a partially self-insured entity.
The court next addressed Allianz’ argument that Chrysler was
a necessary party as required by
Following the entry of the March 2011 summary judgment dismissing the suit against Allianz, the Carlsons did not file an appeal within 30 days, file a motion to alter or amend the judg- *6 ment within 10 days, or file a motion to vacate prior to the end of the court’s term.
5. b aNkruptcy o rder
On August 17, 2012, the bankruptcy court entered a “Stipulation and Agreed Order” which granted limited modi- fication of the plan injunction with respect to the Carlsons. The order recognized that the Carlsons had filed suit against Alliаnz. The order stated that the April 2010 confirmation order had modified the plan injunction to allow a tort claimant to commence or continue litigation to pursue applicable insur- ance and, in connection therewith, to name one or more of the debtors as nominal defendants. The order then stated:
Nevertheless, the [Carlsons] have informed the Liquidation Trust that, on account of the Plan Injunction, the Trial Court will not permit the Insurance Litigation to proceed against Allianz . . . absent an order from the Bankruptcy Court modifying the Plan Injunction, to the extent neces- sary, to permit the Insurance Litigation to proceed.
The bankruptcy debtors (which did not include Allianz) there- fore stipulated that the Carlsons could amend the complaint against Allianz to name Chrysler as a nominal defendant, con- sistent with paragraph 31 of the confirmation order.
6. c omplaiNt to v acate
On November 15, 2012, the Carlsons filed a complaint to vacate the March 2011 summary judgment. They submitted the following “new facts” for the district court’s consideration, which were based on the bankruptcy court’s August 2012 order: (1) The plan injunction was amended to permit the con- tinued prosecution of the declaratory judgment action against Allianz and to permit the Carlsons to аmend the complaint to name Chrysler as a nominal defendant; (2) the excess policy of Allianz is not the property of Chrysler, and the plan injunc- tion was amended to permit this litigation to proceed against Allianz and its excess insurance policy to determine whether Allianz owes coverage for the loss involving the Carlsons; (3) the self-insured retention of Chrysler has been depleted through payment of claims in the bankruptcy proceeding; and (4) the amendment of the plan injunction allowing this action to proceed against Allianz lifted the automatic stay of the bank- ruptcy court so that this action сan be litigated and decided on its merits.
The Carlsons sought to have the summary judgment vacated
under
Allianz moved to dismiss the Carlsons’ complaint to vacate. Allianz alleged that the complaint should be dismissed pursu- ant to § 6-1112(b)(5) because the Carlsons’ service of process violated both Nebraska and international law. The Carlsons had served summons by certified mail on Allianz’ attorney in Omaha, Nebraska. Counsel for Allianz submitted an affidavit *7 stating that he is not the registered agent for Allianz and that he has not been authorized to accept, sign for, or receive service of process on Allianz’ behalf. Allianz also alleged that dis- missal was warranted under § 6-1112(b)(6) for failure to state a claim upon which relief may be granted.
7. d istrict c ourt ’ s o rder
The district court entered a 22-page order sustaining Allianz’
motion to dismiss. The court reasoned that the plain language
of
The court determined that the motion to vacate was pro-
cedurally defective under
Finally, the court determined that the Carlsons could not avail themselves of the court’s independent equity jurisdic- tion to vacate the summary judgment. The court observed that the Carlsons had not appealed the entry of summary judg- ment, filed a motion to alter or amend the judgment, filed a motion to vacate the judgment prior to the end of the court’s term, or requested to amend their complaint to name Chrysler as a nominal defendant and that their arguments in sup- port of vacating the summary judgment were the same ones made at the time the summary judgment motion was argued and submitted.
The Carlsons timely appealed, and we moved the case to our docket under our statutory authority to regulate the caseloads of the appellate courts of this state.
III. ASSIGNMENTS OF ERROR
The Carlsons allege, consolidated and restated, that the dis- trict court erred by (1) dismissing their complaint to vacate and (2) issuing an advisory opinion regarding drop-down coverage.
IV. STANDARD OF REVIEW
[1] An aрpellate court will reverse a decision on a motion to
vacate only if the litigant shows that the district court abused
its discretion. But this case comes to us on an appeal from
[1]
See
[2]
Johnson v. Johnson
,
N ebraska a dvaNce s heets
the district court’s sustaining of Allianz’ motion to dismiss the complaint to vacate. A district court’s grant of a motion to dismiss is reviewed de novo. [3] Because the matter was disposed based upon Allianz’ motion to dismiss, we review the issue de novo.
[2] Because the Carlsons do not assign error to the district
court’s determination that Allianz’ motion was not converted to
a motion for summary judgment, we do not address that ques-
tion. In disposing of Allianz’ motion to dismiss, the court held
a hearing and received evidence. Section 6-1112(b) provides
that when matters outside the pleading are presented by the
parties and accepted by the trial court with respect to a motion
to dismiss under § 6-1112(b)(6), the motion “shall be treated”
as a motion for summary judgment as provided in
[3]
Estate of Teague v. Crossroads Co-op Assn.
,
[4]
DMK Biodiesel v. McCoy
,
[6]
Wulf v. Kunnath
,
V. ANALYSIS
Before addressing the Carlsons’ assignments of error, we pause to clarify the effect of the March 2011 judgment and ensuing developments.
The critical matter decided by the March 2011 judgment was Chrysler’s status as a necessary party to the Carlsons’ suit against Allianz. The court recounted that a stay had been imposed by the bankruptcy court, thus barring the commence- ment or prosecution of an action against Chrysler without an order from the bankruptcy court lifting or modifying the automatic stay. The court observed that the parties disagreed regarding whether Chrysler was a necessary party, with the Carlsons taking the position that Chrysler was not a neces- sary party. According to the order, the Carlsons argued that Chrysler’s interests were wholly protected in its absence by Allianz’ presence and that there was no controversy between Allianz and Chrysler in this action because the present law- suit would not adjudicate any rights between Chrysler and the injured parties. The court determined that Chrysler was a necessary party.
[3-5] The determination that Chrysler was a necessary party
was jurisdictional and became a final order dismissing the
Carlsons’ action without prejudice. The presence of necessary
parties in declaratory judgment actions is jurisdictional and
cannot be waived, and if such persons are not made parties,
then the district court has no jurisdiction to determine the
controversy.
[7]
It is fundamental that a court has the power to
determine whether it has jurisdiction over the matter before it.
[8]
When the district court determined that Chrysler was a neces-
sary party and implicitly determined that the Carlsons were
not going to ask to bring Chrysler in as a party (or could not
do so because of the bankruptcy stay), dismissal—achieved
in this case by sustaining Allianz’ motion for summary judg-
ment—was аppropriate. This was a final order from which
[7]
Dunn v. Daub
,
[8] See
Ryan v. Ryan
,
[9] See
no appeal was taken. And it is clear that a dismissal based upon a failure to join a necessary party is a dismissal of the action without prejudice. Thus, the March 2011 order dis- missing the Carlsons’ suit against Allianz was a dismissal without prejudice.
Subsequently, the Carlsons obtained explicit permission from the bankruptcy court to bring Chrysler in as a nominal party in this declaratory judgment action against Allianz. But this did not change the situation in effect at the time of the March 2011 judgment.
With this background, we turn to the errors assigned by the Carlsons.
1. d ismissal of c omplaiNt to v acate (a) Inherent Power to Vacate [6] In civil cases, a court of general jurisdiction has inher- ent power to vacate or modify its own judgment at any time during the term in which the court issued it. [11] The applicable district court rule provides that the term of the court is the calendar year. [12] Here, the Carlsons’ November 2012 com- plaint sought to vacate the March 2011 judgment. Because the Carlsons did not file their complaint to vacate within the 2011 calendar year, the court lacked the inherent power to vacate the judgment.
[7] The district court’s inherent power to vacate the judgment,
as extended by statute, had also expired.
[10]
See
Taylor Oil Co. v. Retikis
,
(b) Vacation of Judgment
Under
[9] At oral argument, counsel for the Carlsons conceded
that the complaint to vacate was not properly served under the
Hague Convention. The methods of service prescribed by the
Hague Convention are mandatory where service abroad to a
person in a signatory country is required. Allianz concededly
falls within the protection of the Hague Convention. Rather
than implementing the procedures prescribed by the Hague
Convention, the Carlsons filed a praecipe with their complaint
to vacate which directed the clerk of the court to issue sum-
mons and deliver it to Allianz’ attorney via certified mail at
the attorney’s Omaha office. By conceding their failure to
utilize the Hague Convention’s procedures, they acknowledged
that their attempt to serve Allianz’ Nebraska counsel was not
sufficient to comply with § 25-2002. But this does not end
our analysis under
In the Carlsons’ argument on waiver, they assert that Allianz
*11
did so by voluntarily appearing on other issues before the court,
and they rely upon our decision in
Doe v. Board of Regents
.
[16]
Allianz agrees that
Doe
controls, but disputes the Carlsons’
[13]
[14] See Convention on the Service Abroad of Judicial and Extrajudicial
Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361. [15] See Volkswagenwerk Aktiengesellschaft v. Schlunk , 486 U.S. 694, 108 S.
Ct. 2104,
[10] In
Doe
, John Doe sued the Board of Regents of the
University of Nebraska, the University of Nebraska Medical
Center (UNMC), and eight UNMC faculty members in each
individual’s official and individual capacities. Doe served
summons at the Attorney General’s office. The defendants
moved to dismiss under the following subsections of § 6-1112:
subsection (b)(1) (lack of jurisdiction), subsection (5) (insuf-
ficiency of service), and subsection (6) (failure to state claim).
At the hearing on the motion to dismiss, the defendants stated
that they were not challenging service on them in their official
capacities but that the UNMC faculty members had not been
properly served in their individual capacities. Doe argued that
the defendants all made voluntary appearances at the hearing
on their motion to dismiss. Under
[17] Id.
[18]
Id.
at 509,
[19] Id.
N ebraska a dvaNce s heets
[11,12] Allianz did not waive its defense of insufficient
service of process under § 6-1112(b)(5) by asserting a defense
of failure to state a claim under § 6-1112(b)(6) in the same
motion. Section 6-1112(b) explicitly provides that “[n]o
defense or objection is waived by being joined with one or
more other defenses or objections in a responsive pleading or
motion.” And we have stated that when a motion to dismiss
raises a defense under § 6-1112(b)(6) and any combination
of § 6-1112(b)(2), (4), and (5), the court should consider
dismissal under § 6-1112(b)(2), (4), and (5) first and should
consider dismissal under § 6-1112(b)(6) only if it determines
that it has jurisdiction and that process and service of process
were sufficient. Here, Allianz affirmatively pled insufficiency
of service of process under § 6-1112(b)(5) and asked the court
during the hearing to “take judicial notice of the court file,
specifically with respect to the information in the court file
about the serv ice of process of the complaint to vacate [the
court’s] prior order.” We conclude that Allianz did not waive
this defense by also offering exhibits and argument in sup-
port of its defense that the complaint to vacate on grounds
other than under
(c) Equitable Power to Vacate
[13] The Carlsons claim that the district court could have properly invoked its equity jurisdiction and vacated the March 2011 judgment. But equitable remedies are generally not avail- able where there exists an adequate remedy at law. Following the court’s judgment in March 2011, the Carlsons did not (1) aрpeal the order; (2) move to alter or amend the judgment; (3) move to vacate the judgment on or before December 31, 2011; or (4) request to amend their complaint in order to name Chrysler as a nominal defendant. Further, after obtaining the [20] See Doe v. Board of Regents, supra note 16.
[21]
Jeffrey B. v. Amy L.
,
2. a dvisory o piNioN
[14,15] The Carlsons also argue that the district сourt improperly issued an advisory opinion and that the court’s conclusion that there is no possibility of drop-down coverage until Chrysler’s liability is fixed by entry of a final judgment was erroneous. However, a determination of whether the court improperly issued an advisory opinion is not necessary to our adjudication. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it. Further, this issue was not raised to the district court. An appellate court will not con- sider an issue on appeal that was not presentеd to or passed upon by the trial court. Accordingly, we decline to address this assigned error.
VI. CONCLUSION
We conclude that the time for exercise of the district court’s
inherent power to vacate its judgment—both within term and as
extended by
a ffirmed . m iller -l ermaN , J., participating on briefs.
[22]
Lang v. Howard County, ante
p. 66,
(2013).