*1 Kratochvil, appellant, J. v. Motor Club Insurance Neal Underwriters, Inc., Association, also known as Motor Club as AAA appellee. Nebraska, known also 2d 565 588 N.W. 22, 1999. January No.
Filed S-97-865. *2 Karel, Seckman,
L.J. of & Karel for appellant. Wolfe, Snowden, Hurd, Ahl, Michael A. England, Luers & appellee. for
Hendry, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, Miller-Lerman, JJ.
Hendry, C.J.
INTRODUCTION insurer, Neal J. filed Kratochvil an action his against Motor (Motor Club Insurance Club), Association to recover uninsured benefits provided automobile liability insur- ance The policy. issue on primary review whether an insured’s claims an insurer for uninsured motorist ben- are efits barred Neb. Rev. by 44-6413(l)(e) (Reissue Stat. § 1998) when the cause action arose of the prior passage Uninsured and Underinsured Motorist Insurance (UUMICA), Coverage Act Neb. Rev. Stat. 44-6401 et seq. (Reissue 1994), 1993 & Cum. but was not filed until Supp. after the legislation became operative.
FACTUAL BACKGROUND 15,1991, On Kratochvil suffered May personal injuries automobile accident with an uninsured motorist. Kratochvil was passenger the automobile which was driven his mother. by accident, At the time of the Kratochvil was insured two auto- by mobile both of liability policies, which contained uninsured motorist coverage issued Motor Club. Within 4 months accident, $500 Kratochvil received a from payment Motor Club for ambulance and services him transportation rendered to at the scene of the accident. Kratochvil was also notice given that Motor Club would be unable to further on his pay anything claim. this time
During same period, was also negotiat- ing settlement for uninsured motorist benefits with his father’s insurer. In with Motor compliance Club’s policy, contacted Motor Club on December its seeking *3 consent to a settlement offer from his father’s insurer. The pur- pose of the consent was to avoid exclusion of future any claims Kratochvil may have had against Motor Club. On January 1992, Motor Club informed Kratochvil that its consent was unnecessary the settlement with his father’s insurer. Motor Club that its explained policy consent to required only settle- ments paid under own directly its policies. Nothing record indicates that there was any further communication between the until Kratochvil parties filed this suit.
PROCEDURAL BACKGROUND 14, 1996, On May Kratochvil filed suit the Platte County against District Court Motor Club for uninsured motorist cover- benefits. Motor age Club answered Kratochvil’s petition and that it was alleged bound to contractually pay only “ those benefits that he would be entitled to ‘legally recover ” from the owner or operator of an uninsured motor vehicle.’ Motor Club alleged also that claim Kratochvil any would have against the uninsured driver was barred by Neb. Rev. Stat. (Reissue 1995). § and for summary judgment filed a motion
Motor Club claim uninsured against that Kratochvil’s alleged to tort actions pertaining of limitations barred the statute was therefore, that, barred Motor Club was against the claim and 44-6413(1)(e). A on the motion for sum hearing pursuant held, the district and on June was mary judgment summary judgment. Motor Club’s motion for court sustained Kratochvil’s claim was precluded by The court found that 44-6413(1)(e) of limitations because the statute had expired. claims the uninsured driver Kratochvil’s 44-6413(1)(e) because it was applied The court reasoned that § the time of limitations effect at specific claim Kratochvil’s was filed. alleged a motion for new trial and that the
Kratochvil filed to law and contrary district court’s decision was that to his claim. The apply retrospectively UUMICA should motion, denied the and Kratochvil thereafter district court We removed the Appeals. Nebraska Court of appealed to our docket to our the Court pursuant power regulate case caseload and that of this court. See Rev. Stat. Appeals’ 1995). 24-1106(3) (Reissue
ASSIGNMENTS OF ERROR summarized, contends, that the dis rephrased (1) trict erred in rather determining court (Reissue 1993) than Neb. Rev. Stat. 60-509.01 governed (2) finding claim for uninsured motorist benefits and governed determining without whether “rea claim, sonable time” had been allowed in which to file his as due required by process.
STANDARD OF REVIEW
when the
Summary judgment
only
pleadings, depo-
is proper
admissions,
sitions,
affidavits in the record dis-
stipulations,
*4
close that there is no
issue as to
material fact or as
genuine
any
the ultimate
drawn from
inferences that
those facts
may
and that the
is entitled to
as a matter of
moving party
judgment
134,
law. American
v.
254 Neb.
Family
Hemenway,
Ins. Group
Keno,
(1998);
[981] 81,
(1998).
574
494
In reviewing summary judgment,
N.W.2d
a
an
court views the evidence
most favorable
appellate
light
whom the
party ¿gainst
judgment
granted
gives
such
the benefit of all reasonable inferences
party
deducible
Peters,
74,
from the evidence. Barnett v.
254
574 N.W.2d
Neb.
59,
(1998);
487
v.
254 Neb.
574 N.W.2d
Chalupa Chalupa,
509
(1998). In
an order
reviewing
a motion
granting
summary
is not how a factual issue is to be
judgment,
question
decided,
any
but whether
real issue of material fact exists.
Omaha,
798,
Miller
(1998).
v.
253 Neb.
121
City
N.W.2d
determination
The
of which statute of limitations
is a
applies
Trust,
question of law.
v. State Nat. Bank &
ante
Jorgensen
p.
241,
Rich,
(1998);
N.W.2d 331
PSB Credit
Servs.
474,
Neb.
(1997).
ANALYSIS case, Before reaching merits of a brief discussion of the UUMICA is warranted. On April Nebraska UUMICA, Legislature which passed became on operative January and is codified at et The seq. UUMICA provides, pertinent part:
(1) The uninsured and underinsured motorist coverages in the provided Uninsured and Underinsured Motorist Insurance Act Coverage shall to: apply sickness, disease,
(e) Bodily death of injury, or insured with to which the respect statute of lim- itations has expired on the insured’s claim against the uninsured or underinsured motorist. *5 essence, 44-6413(1)(e). 44-6413(1)(e) In created specific
§ § limitation as to for when actions insurers unin sured motorist benefits could be maintained. Prior to passage UUMICA, the coverage uninsured motorist was governed by 60-509.01, which in was 1994 and did not contain repealed § reference to any a limitation period. action, asserts,
If 60-509.01 this as Kratochvil then governs § However, we must determine which limitation if period applies. statute, 44-6413(l)(e) is then Kratochvil’s governing § claim would have been time barred and we upon filing, must then determine whether he was allowed a reasonable amount of Therefore, time which file his action. the issue before this court is which statute when the cause of applies action ques- tion accrued prior of the UUMICA but passage was filed until after the legislation became operative. Legislation Substantive Versus Procedural error,
In Kratochvil’s first assignment of he argues that 60-509.01 is the statute applicable § to his claim and that 44-6413 is because his inapplicable § cause of action accrued before the of the passage UUMICA. See 44-6401 et In seq. § turn, Kratochvil argues because 60-509.01 did not con- tain reference to a any limitation period, general statute of contracts, applying limitations to written Neb. Rev. Stat. (Reissue 1995), 25-205, should control. Under statute of limitations would be 5 from accrual of years the cause and, of action consequently, Kratochvil’s claim would have been timely filed.
Kratochvil that a acknowledges change a statute of limita- tions which alters only procedural enforcement of those on rights operates all proceedings instituted after its passage, whether However, accrued rights before or after that date. attempts support argument 44-6413(l)(e) that § should not be applied retrospectively his claim by asserting that it is substantive legislation. Kratochvil argues that the UUMICA, whole, aas was substantive because it involved the duties, enactment of rights, and obligations never before avail- able with regard to uninsured motorist benefits. Kratochvil rea- sons that 44-4613(l)(e) because a small merely portion UUMICA, it cannot be out as parsed legislation, separate that, therefore, it is also substantive. Motor response, Club contends that was merely procedural legislative change therefore applied accrued already causes of action. claim that Any would have had against the uninsured motorist would have been 25-207, a tort claim. Tort claims are governed by which requires injuries actions within 4 brought years .would, accrual of the cause of action. Section *6 therefore, bar Kratochvil’s claim because his cause of action would have been filed outside the statute of limitations on his tort claim the uninsured motorist. Motor Club argues that it is common for acts to affect legislative issues multiple that, and the only manner to accordingly, logical judge whether a particular issue is substantive or procedural is to examine the effect of its application. Motor Club contends that § affects only remedy uninsured motorist whereby is coverage obtained and should therefore be treated as procedural.
To
44-6413(1)(e)
determine whether
should be
ret
applied
§
claim,
to KratochviTs
rospectively
we must first determine
44-6413(1)(e)
whether
is substantive or procedural.
This is
necessary because legislative acts
substantive
affecting
matters
operate only
unless the
intent of
prospectively
legislative
retro
spective
is
See
operation
clear.
Proctor v. Minnesota Mut. Fire
Cas.,
289,
&
248
(1995).
Neb.
Where a statute has been
repealed
reen-
substantially
acted with additions or
changes,
additions or
are
changes
as
from the
treated
amendments effective
time the new statute
732,
goes into effect. State v.
248 Neb.
538
Sundling,
N.W.2d
(1995);
749
Power
Dairyland
Co-op v. State Bd.
238
Equal.,
984
696,
(1991);
Co.
Neb. 286, instance, (1979). 275 v. 202 Neb. N.W.2d 67 this Frye, 44-6413(1)(e) is a statute that has been part repealed Section substantially reenacted. See 60-582. to the
therefore treated as an amendment uninsured laws.
While it is
was enacted as
part
true
UUMICA,
in itself
entitle
does not
it to substantive
we
treatment. Kratochvil’s assertion that
must look at the
UUMICA as a whole and cannot
its individual
parse
statutes
is incorrect. We have often had to
with
analysis
deal
new
legislation
amendments to
in order to
whether
existing
establish
applied
question.
amendment
case in
retroactively
Co.,
18,
Behrens v.American
Packing
Stores
Carriers,
12 (1988);
N.W.2d
Smith v. Fremont Contract
(1984);
Neb.
N.W.2d
Denver WoodProducts
Oviatt v.
supra;
Archbishop
Mercy
Bergan
Hospital,
“a substantive is one right which creates a right remedy or which, did that exist and the previously but for cre- ation of the substantive right, would not one to entitle hand, recover. A procedural ... right, on other is con- sidered be the simply method which an already exist- ing right exercised.” 25, at
228 Neb.
[985] 338, N.W.2d Accord Denver Wood Products 340 Co., supra. 44-6413(1)(e) does not create or change
Section
serve to
Therefore,
to a
for uninsured motorist benefits.
right
remedy
44-6413(1)(e)
not be considered a substantive right,
should
but, rather,
merely
a
relates to the rem
procedural change
44-6413(l)(e)
Section
limits the insured’s
lim
edy.
remedy by
the insurer’s
of time
which
iting
liability
period
during
insured
a
still has
viable claim
the uninsured
motorist. This
essence limits the insured to a torts limitation
for
on
a claim the
Statutes of limitations are
period
filing
policy.
defined as “such legislative enactments as
prescribe
periods
which
may
within
actions
be
certain claims or
brought upon
within which certain
rights may
(Emphasis sup
enforced.”
1979).
(5th
Black’s Law
ed.
plied.)
Dictionary
Although
does not
a
time
which an
prescribe
specific
on the
it does limit the
may bring
insured
action
time
policy,
such
bemay
which
a
enforced. We therefore determine
right
44-4613(l)(e)
as a statute of limitations.
operates
Statutes of limitations are
considered
generally
procedural,
legislative
limitation
on all
changes
periods operate
pro
ceedings instituted after
passage,
rights
whether
accrued
or after
before
that date.
v.
e.g.,
Dewey,
Schendt
573,
Swoboda,
(1994);
N.W.2d 541
Corp.
Cedars
v.
(1981);
Neb.
Motor Club that the argues general statute limitations written contracts should not control a specific where limitation is, on uninsured motorist That coverage exists. Motor Club claims that is the applicable statute to claim it is a specific Kratochvil’s because statute of limitations 25-205, and therefore supersedes general of limita- *8 44-6413(l)(e) In this the district court found that regard, tions. it to uninsured motorist cover- controlled because was specific age. statute, a more actions on written
Generally, absent specific years, contracts within 5 to 25-205. may brought pursuant #2, Grand Island School Dist. In the instant e.g., supra. case, however, the has addressed Legislature directly Nebraska 44-6413(1)(e). the limitation on uninsured motorist See coverage. This is our statute of significant given holding special “[a] limitations controls takes over a statute precedence general of limitations because the statute is a special expression specific will legislative concerning a particular subject.” Murphy Co., Lumber 481 N.W.2d Spelts-Schultz The it adoption makes clear that Legislature chose to limit the time in which a claim period insurer, could be filed against an rather than leave it ato gener Moreover, limitation ally applicable it is well settled period. that it is for the Legislature to competent change statutes pre scribing limitations to actions and that the one in force at the Schendt, time suit is is brought applicable cause of action. #2, Therefore, Grand supra-, Island School Dist. supra. control, 44-6413(1)(e) should since it is a specific expression of the Nebraska will Legislature’s uninsured concerning and it was force at the coverage time Kratochvil brought action. Reasonable Time error,
In Kratochvil’s second assignment of he argues even if procedural is the applicable limitations, he must be allowed a “reasonable time” which to his action. bring Kratochvil’s assertion is correct. The Legislature may shorten a limitation commencement of a cause of action and the be made change may claims, existing so as a reasonable long time is allowed to bring such action. Macku v. Drackett Products More specifically, the Legislature con- may shorten limitation stitutionally periods fixed by previously existing statutes or establish new limitation periods where none *9 before, existed that such new statutes are not made provided to of action in such a as would existing way causes See, Schendt, suit. preclude any opportunity bring e.g., Macku, #2, Grand supra; Island School Dist. supra; supra; Inc., Mammel, O., S., S., See 2d H. & 51 Am. Jur. supra. (1970 1998). Limitation 37 & Actions Cum. Supp. of The Legislature’s change limitation is sub power periods First, to two restrictions. the not a ject Legislature may deprive Second, defendant a bar of which has become already complete. the of Legislature may plaintiff already a accrued deprive of cause action without a time providing plaintiff reasonable 573, in which to file the v. Dewey, action. Schendt 246 Neb. 520 Macku, (1994); 541 N.W.2d Grand Island School supra; Dist. 559, #2 v. (1979); Celotex N.W.2d Corp., 279 603 Mammel, O., S., Inc., S., Educational Service Unit No. 3 v. H. & 431, 222 With regard to afore restriction, mentioned “reasonable time” there ais constitu tional concern that aptly articulated the California Court of Appeals:
The doctrine of of limitations statutes is retrospectivity California, one of constitutional dimension. In statutes of limitations, being procedural, are normally retroactively action; of applied accrued causes but the court must whether, case, inquire in a given that retrospective appli- may cation violate due process by effect eliminating the reasonable, plaintiff’s right. If the time left to file suit is no occurs, such constitutional violation and the statute is left, as If applied enacted. no time is or only an unreason- remains, short time ably then cannot applied Further, at all. . . . the issue is one of law for appellate resolution. (Matthew 294, A.),
Aronson v. Superior Court 191 Cal. 3d App. 297, 347, also, Schendt, See, 236 Rptr. Cal. supra. Therefore, question before this court is whether Kratochvil is, was denied due process; that whether the time afforded Kratochvil in which to file his claim was “reasonable” that no such violation constitutional occurred. ‘reasonable time’ for prosecution of claim must be
“[A] of sufficient duration to afford full to resort to the opportunity lim- on which the statute rights for enforcement of
courts Macku, N.W.2d at 62. at operates.” itations however, case, the time why Kratochvil fails argue In this He insufficient. he had to file his action was in which period of uninsured motorist that a liberal construction simply asserts would allow bodily injury law in a case serious involving from effective of the new leg- at least 2 date years were sug- file a claim. If we to entertain that islation which to however, extending in essence be the statute gestion, we would he even what Kratochvil asserts was enti- beyond limitations Moreover, effectively tled such an act would to under 25-205. which we will not do. Wilson legislation, constitute judicial (1902); Ed. 804 U.S. S. Ct. 46 L. Iseminger, *10 Co., 1947). (8th Keith 162 F.2d Cir. Kendall v. Furnace Mammel, O., S„ S., Inc., In H. sim- supra, & we addressed a ilar in which for professional issue the statute of limitations was cause In shortened after the of action accrued. negligence Inc., Mammel, O., S., S., the of limita- H. & new statute supra, In tions to the effective date of the Id. prior legislation. expired case, the waited additional 11 months after the plaintiff an date of the act before his We out filing pointed effective claim. that the of less than months between the of the passage period act effective date was an unreasonable time period and its not of Here, to action. court urges an Id. Kratochvil this to bring adopt a from time” of at least 2 the effective date of years “reasonable However, the has UUMICA. Kratochvil not facts alleged any Mammel, O., S., S., distinguish that would his claim from H. & Inc., to merit an such supra, adoption.
In
v. State Farm Mut. Auto. Ins.
based the record in this it cannot be said that the time allowed so Kratochvil which to file his claim was insufficient that it a denial of manifestly justice. constituted
CONCLUSION greater weight authority The Motor Club’s supports posi tion that is the statute of limitations claim. Kratochvil’s Kratochvil was afforded a sufficient courts, to resort to the opportunity time allowed which to file his claim was not “unreasonable.” We agree with the district court’s finding governed action because it specific was a statute of limitations and it was reasons, when force the claim was filed. For these we affirm of the in all judgment respects. district court
Affirmed. Wright, J., concurring.
I concur in the result because under the language Kratochvil’s Motor Club policy, contractually bound for uninsured motorist benefits. coverage Kratochvil’s with Motor policy Club it provided that would pay damages person which covered “is legally entitled to recover from owner or operator of uninsured motor vehicle because bodily injury.” *11 Cullan, v. Carpenter 581 N.W.2d (1998), we explained where the insured bring failed to
an action
against
underinsured motorist within
the statute
limitations, the insured never attained the status of one “legally
collect,”
entitled to
as
described
the insured’s underinsured
See, also,
State
policy.
Lane v.
Farm Mut. Automobile
Ins.
(1981)
Kratochvil suffered personal Thus, motorist on 1991. when May uninsured 14, 1996, his May this action Motor Club on brought against appli- action the uninsured motorist was barred reason, cable of limitations. For this accor- 4-year statute Carpenter, dance with failed to as a qualify person entitled to collect” from the uninsured motorist. “legally Therefore, Kratochvil have claim under his policy does not Club, I with Motor and concur the result. Connolly JJ., McCormack, in this concurrence. join Nebraska, appellant,
State of appellee. Harrison, Verma J.