took out a mortality policy on his carriage horse, Duke, from the defendant
company. Duke died from a large wooden splinter in his chest. He had escaped
from his six foot wood fence corral and was found dead in a neighborís yard.
The policy covered death only if it occurred from one of twenty specified
causes. Donovan claimed that Duke must have been spooked by wild animals or dogs
(a covered cause) to
jump the fence and impale himself on the splinter. Donovan was unable to present any specific evidence that wild animals had chased Duke from the corral.
The trial court granted summary judgment for the defendant on the ground that Donovanís evidence as to cause of death was pure speculation and therefore he did not prove that a covered cause of death existed. In this opinion, the Court of Appeals agrees with the trial courtís decision. So, Donovan does not collect from the insurance policy.
Hartford Fire Insurance Company (Hartford) insured Mark Donovan, doing business as M & J Carriage Service (Donovan), for $3,000 against the death of a horse called Duke provided that such death was due to 1 of some 20 specified causes. Duke was found dead in a neighbor's yard with a large splinter in his chest. Hartford denied coverage, and Donovan sued to recover the $3,000. On the basis of Donovan's answers to Hartford's interrogatories, which answers essentially admitted that the cause of Duke's death was unknown, Hartford moved for summary judgment. We conclude that the admissions, if uncontroverted at trial, would have been sufficient for Hartford to establish a prima facie case that it was entitled to judgment as a matter of law and that Donovan's evidence did not establish a genuine issue of material fact. We therefore affirm.
The evidence at the summary judgment hearings mainly consisted of answers and supplemental answers to interrogatories, and Donovan's affidavit. As background for the issues, we summarize the facts contained in the record in the light most favorable to Donovan, as he is entitled for us to do when we review the granting of a motion for summary judgment against him. See Lewis v. Board of Comrs. of Loup Cty., 247 Neb. 655, 529 N.W.2d 745 (1995). Later, we will outline the evidence introduced by the respective parties.
Donovan operates a horse carriage business in which he uses horses to pull carriages in downtown Omaha, Nebraska. One of the horses, Duke, died during the period covered by Donovan's policy with Hartford. On the date of his death, Duke was 10 years old and weighed in excess of 1,700 pounds. Donovan had owned Duke for 1 year 8 months. The policy insuring Duke describes him as a stallion, but Donovan's affidavit alleges that Duke was a gelding. Donovan was insured by Hartford against Duke's death, provided that such death resulted from a "Covered Cause of Loss." The
policy lists some 20 different covered causes of loss, starting with fire, then listing lightning, explosion, smoke, and so on. In his amended petition, Donovan alleges that Duke's death was a result of one or more of the following covered causes: "(a) Explosion; (b) Smoke; (c) Windstorm; (d) Riot or civil commotion; (e) Aircraft; (f) Theft; and (g) Physical attack by dogs or wild animals." Hartford denied coverage and alleged in its answer that Duke's death did not result from a covered cause. In this court, Donovan does not directly argue that the evidence supports the conclusion that Duke died as a result of an attack by wild animals or dogs, but does so by disputing Hartford's arguments to the contrary and by citing cases which he claims justify that conclusion.
Donovan kept Duke at his rural ranch in Fort Calhoun, Nebraska. Duke was confined in a corral of unknown size, surrounded by a 6-foot-high fence constructed of 2-by 6-inch boards. On December 14, 1999, at about 7 a.m., a neighbor informed Donovan that one of Donovan's horses was in the neighbor's backyard. Donovan found Duke dead in the neighbor's backyard, lying against a fence. Donovan noticed that the top board of the fence of the corral where Duke had been confined was "busted into splinters." It was still dark at the time. Donovan did not have surveillance equipment, and there were no eyewitnesses to Duke's death.
After seeing Duke, Donovan called a veterinarian. The veterinarian's post mortem examination of Duke revealed that a piece of wood shaped like a stake had pierced Duke's chest cavity, inflicting a wound about 3 inches in diameter, causing his death. A trail of blood led from Duke's carcass to the fence surrounding the corral where Duke had been confined. Donovan opined that the piece of wood came from a top board of that fence.
In his affidavit, Donovan stated that he has observed many wild animals crossing his property, people crossing his property, and low-flying aircraft overhead, generating a great deal of noise and commotion. Donovan stated in his supplemental answers to Hartford's interrogatories that he had extensive experience with Duke and that he had never seen Duke jump anything. He asserted in his affidavit that Duke was a very docile animal that would not jump unless provoked or otherwise influenced; that Duke was a relaxed, well-trained, and not easily frightened horse. Donovan stated he believed that something must have been chasing Duke to have caused him to attempt to jump the fence.
The only evidence Hartford introduced at the hearing on its motion for summary judgment was Donovan's answers to its interrogatories and requests for production of documents, which answers were admitted without objection. In those interrogatories, Hartford requested that Donovan "[s]tate with specificity each and every fact known to [him] that [he] will rely upon at the time of trial to prove that Duke's death was caused by explosion." To this request, Donovan answered "Unknown." Hartford requested the same information concerning each of the covered causes Donovan alleged in his petition, and Donovan replied "Unknown" to each of these requests. He also answered "Unknown" when Hartford asked him to state how many times Duke had attempted to "jump a fence and run." The other answers contained no additional information relevant to the cause of Duke's death or to Donovan's lack of information relative to the cause of Duke's death. Donovan introduced his above-mentioned affidavit and supplemental answers to Hartford's interrogatories and request for production of documents. The evidence contained in the documents Donovan produced is summarized above, and they contain the facts about Duke, his temperament, where he was kept, and where he was found, as well as Donovan's explanation of the cause of Duke's death.
The trial court granted Hartford's motion for summary judgment, stating, "[Donovan] has the burden to prove by the greater weight of the evidence that the loss of Duke was a covered loss under the policy, but [Donovan] can offer no evidence as to the conditions that existed at the time Duke and the piece of wood came into contact." The trial court concluded, "The exhibits disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts--there are no facts, only speculation leading to [Donovan's] conclusion as to what transpired."
ASSIGNMENTS OF ERROR
Donovan asserts that the trial court erred in (1) granting Hartford's motion for summary judgment despite evidence on the record of genuine issues of material fact and (2) failing to draw reasonable inferences of genuine issues of material fact from the pleadings, admissions, and affidavits in the record.
STANDARD OF REVIEW
In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Lewis v. Board of Comrs. of Loup Cty., 247 Neb. 655, 529 N.W.2d 745 (1995).
Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law
The insurance policy and the pleadings show that the relevant issue of fact is whether Duke died from one of the covered causes enumerated in the policy. In their briefs, the parties focus on whether the evidence shows that there is a material issue of fact in regard to whether Duke died as a result of an attack by wild animals or dogs. Hartford bases its claim for a summary judgment on Donovan's answers to the interrogatories, which answers amount to an admission by Donovan that the cause of Duke's death was unknown. Donovan argues that the summary judgment was wrongly granted because his evidence would support a finding that Duke's death was caused by an attack by wild animals or dogs.
In Ratigan v. K.D.L., Inc., 253 Neb. 640, 648, 573 N.W.2d 739, 744 (1998), the court explained the burden of proof on a party moving for summary judgment.
Summary judgment is proper when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to summary judgment as a matter of law....
A party moving for summary judgment must make a prima facie case by producing enough evidence to demonstrate that it is entitled to a judgment if the evidence were uncontroverted at trial. If such a showing is made, the opposing party has the burden to produce evidence showing an issue of material fact which prevents judgment as a matter of law for the moving party. However, if a prima facie showing is not made, the opposing party is not required to reveal evidence which he or she expects to produce at trial to prove the allegations contained in his or her petition.... [W]e review the record to determine whether the evidence offered by [the defendant], when viewed in a light most favorable to [the plaintiff], is sufficient to entitle [the defendant] to judgment as a matter of law.
From the above, we conclude that we must first determine whether Hartford's evidence--that is, Donovan's admissions that facts proving that Duke's death resulted from a covered cause of loss were unknown to him--is sufficient for Hartford to establish a prima facie case if the evidence were uncontroverted at trial. Only if the answer to that question is in the affirmative do we consider whether Donovan produced evidence to show an issue of material fact which prevents judgment as a matter of law for Hartford.
Since the insurance policy requires Donovan to prove that Duke's death resulted from one of the covered causes, an admission by Donovan that it was unknown whether any of the covered causes was the cause of Duke's death would entitle Hartford to a judgment of dismissal if the admission were not controverted at trial. Therefore, we conclude that Hartford did establish the prima facie showing necessary for a summary judgment in the absence of Donovan's producing evidence showing an issue of material fact which prevents judgment as a matter of law.
Evidence in Conflict With Prior Answers to Interrogatories.
Hartford seeks to prevent Donovan from making the required showing by, first of all, maintaining that the evidence Donovan introduced was not admissible because it was in conflict with the admissions Hartford had relied upon.
To support this position, Hartford relies upon a rule from Momsen v. Nebraska Methodist Hospital, 210 Neb. 45, 53, 313 N.W.2d 208, 213 (1981), which provides, " ' "Where a party without reasonable explanation testifies to facts materially different concerning a vital issue, the change clearly being made to meet the exigencies of pending litigation, such evidence is discredited as a matter of law and should be disregarded." ' " (Quoting Insurance Co. of North America v. Omaha Paper Stock, Inc., 189 Neb. 232, 202 N.W.2d 188 (1972), quoting Clark v. Smith, 181 Neb. 461, 149 N.W.2d 425 (1967)). Hartford argues that we should apply this "Momsen rule" to the statements contained in Donovan's affidavit and supplemental answers to its interrogatories as compared to Donovan's original answers to the interrogatories Hartford introduced. In its brief, Hartford argues that most of the evidence Donovan submitted on the motion for summary judgment must be discredited as a matter of law. Hartford points out that the Momsen rule was deemed applicable to interrogatories and affidavits in Levander v. Benevolent and Protective Order of Elks, 257 Neb. 283,
596 N.W.2d 705 (1999).
If the record clearly showed that Donovan's new evidence came within the Momsen rule, we would apply the rule to prevent Donovan from changing his evidence to meet the exigencies of the situation. However, we do not apply the Momsen rule to this case, for the same reason the Levander court did not apply it in that case. This is because in this case, as in Levander, the evidence does not clearly show that the witness at issue changed his testimony to meet the exigencies of the litigation.
Parker v. Lancaster Cty. Sch. Dist. No. 001, 256 Neb. 406, 591 N.W.2d 532 (1999), a slip-and-fall case, is instructive on this subject. Therein, the plaintiff had stated in her deposition that the cause of her fall was unknown and the Nebraska Supreme Court decided that if that were the only evidence on the cause of the fall, the trial court's summary judgment would have to be affirmed. However, the Supreme Court found that circumstantial evidence at the scene of the accident "support[ed] a reasonable inference that the unmarked floor riser was the cause of [the plaintiff's] fall and resulting injury." 256 Neb. at 415-16, 591 N.W.2d at 539.
In Parker, the plaintiff had made an admission in a deposition and was successful in disputing that admission with circumstantial evidence at a hearing on a motion for summary judgment. It appears that Donovan is attempting to do the same thing in this case. We have concluded that Hartford has established a prima facie case with Donovan's admissions. The question is whether Donovan has shown by circumstantial evidence an issue of material fact that would prevent judgment as a matter of law for Hartford.
Sufficiency of Donovan's Evidence.
In granting summary judgment in the instant case, the trial court found that Donovan had "the burden to prove by the greater weight of the evidence that the loss of Duke was a covered loss under the policy, but [that Donovan could] offer no evidence as to the conditions that existed at the time Duke and the piece of wood came into contact." The court stated that Donovan was guessing and speculating when he concluded the piece of wood came from the top of the corral fence. It is clear that there can be no direct evidence that Duke died as a result of any of the covered causes. The ensuing question is whether such direct evidence is required. We find several cases that have considered the import of circumstantial evidence in
situations similar to the case at hand.
The following cases were decided upon the basis that circumstantial evidence could establish that a loss resulted from a covered cause: Hartford Fire Ins. Co. v. Thompson, 175 F.2d 10 (8th Cir.1949) (recovery allowed for loss by lightning of cattle found dead in pasture); Rohde v. Farmers Alliance Mut. Ins. Co., 244 Neb. 863, 509 N.W.2d 618 (1994) (loss of motor due to presence of water in its lubricating oil was covered under policy covering loss from vandalism or malicious mischief); Ditloff v. State Farm Fire & Cas. Co., 225 Neb. 375, 406 N.W.2d 101 (1987) (circumstantial evidence sufficient to show willful and malicious destruction of cattle where cattle died from overeating and circumstantial evidence showed that
gate from which grain spilled had to have been opened by someone willfully and maliciously). Donovan relies upon Greene v. Truck Ins. Exchange, 114 Idaho 63, 753 P.2d 274 (Idaho App.1988) (circumstantial evidence and opinion evidence could support recovery under animal mortality policy upon theory that cougar frightened dairy herd).
In some cases, a plaintiff has tried and failed to make such a case on circumstantial evidence. In Ward Cattle Co. v. Farm Bureau Ins. Co., 223 Neb. 69, 388 N.W.2d 89 (1986), the plaintiff sought to recover under a theft policy when it discovered its cattle missing and fences flattened rather than cut, but offered no explanation as to how the cattle were removed from their pen or how four of them reappeared at a neighbor's farm 2 weeks later. In Popken v. Farmers Mutual Home Ins. Co., 180 Neb. 250, 142 N.W.2d 309 (1966), the plaintiffs could not recover under a policy insuring cattle against loss by fire, lightning, tornado, and windstorm where two inferences as to the cause of death could be drawn from the evidence, one covered by the policy, one not covered. In Swedberg v. Battle Creek Mut. Ins. Co., 218 Neb. 447, 356 N.W.2d 456 (1984), the claimant did not succeed in proving loss from vandalism and malicious mischief when cattle died from eating poison from a bucket that lay with discarded trash. In Anderson v. Farm Bureau Ins. Co., 219 Neb. 1, 2, 360 N.W.2d 488, 489 (1985), the plaintiffs' grain was insured against " 'direct loss by theft (but excluding escape, mysterious disappearance, inventory shortages, wrongful conversion and embezzlement).' " The court in Anderson held in favor of the insurer because while theft was possible, under the evidence, it was not the only conclusion that could be drawn.
The recognized rule for recovery for such covered losses by way of circumstantial evidence has been stated as follows:
Circumstantial evidence is not sufficient to sustain a verdict depending solely thereon for support, unless the circumstances proved by the evidence are of such a nature and so related to each other that the conclusion reached by the jury is the only one that can fairly and reasonably be drawn therefrom.
Rohde v. Farmers Alliance Mut. Ins. Co., 244 Neb. at 872, 509 N.W.2d at 625.
We believe the trial court's analysis to be wrong in part because almost anyone who has observed a piece of wood in the chest of a horse found at the end of a trail of blood leading to a broken fence from which the wood appears to have come should be able to state that the piece came from the fence when the horse tried to jump it. Duke's carcass was outside of the fence surrounding the corral where he had been confined and was found with what was apparently a piece of that fence. There is clearly ample evidence to support a finding that the piece of wood found in Duke came from the top of the corral fence and became lodged in Duke's chest while he was jumping that fence. This deduction does not require the aid of expert testimony. However, this does not establish that Duke's death was caused by an attack by wild animals or dogs, but only that Duke's death occurred as a result of his attempting to jump a 6-foot corral fence. In order to recover, Donovan must prove that Duke attempted to or did jump the fence because of an attack by wild animals or dogs.
Donovan's evidence on this point consists of his testimony of Duke's temperament and where Duke was when last seen; that is, essentially, that Duke was a gentle, good-tempered horse that was confined in a substantial enclosure. In order to prove his case, Donovan must establish circumstances of such a nature and so related to each other that the only conclusion that can fairly and reasonably be drawn from the circumstances is that Duke attempted to jump the fence because of an attack by wild animals or dogs. This conclusion requires evidence that wild animals or dogs are the only things that could have caused Duke to jump when and where he did.
A study of the cases cited above which consider the sufficiency of circumstantial evidence will throw light upon the problem. In Rohde v. Farmers Alliance Mut. Ins. Co., 244 Neb. 863, 509 N.W.2d 618 (1994), the evidence established by expert testimony the various ways that water could have gotten into the oil drum and other evidence excluded all of those ways except that someone deliberately put water in the drum. Since there could be no reason under the circumstances for anyone to do such an act other than malice, the proof was held to be adequate. In Ditloff v. State Farm Fire & Cas. Co., 225 Neb. 375, 406 N.W.2d 101 (1987), essentially the same case was made by the plaintiff's proving that the gate from which the grain had spilled was not left open by any authorized person who might have left it open negligently or by mistake and that no animal or mechanical failure could have opened it. Therefore, the court concluded that some unauthorized person had to have opened the gate and that to open someone's grain gate to allow the grain to run upon the ground is malicious. In Rohde, while an expert testified that the presence of water in the oil could not have been caused by condensation of water, the other evidence in the case included facts that did not require expert testimony.
In Greene v. Truck Ins. Exchange, 114 Idaho 63, 753 P.2d 274 (Idaho App.1988), the plaintiffs' dairy cows were insured against enumerated causes of loss, but only that of death or injury by wild animal had a possibility of being applicable. The plaintiffs returned home after a social engagement and found the dairy herd outside its corral. A section of the fence supported by " 'railroad tie' " posts was flattened, and some of the herd were cut up badly. Id. at 65, 753 P.2d at 276. Later, the plaintiffs found a partially eaten colt nearby. The plaintiffs surmised that the cattle had been frightened by a cougar. The plaintiffs supplied affidavits, including those of other dairy farmers, which described how cattle typically react to wild animals. An affidavit from an expert on wildlife stated that the colt kill was uniquely characteristic of cougar behavior, and the insurance company
investigator had opined that something did " 'spook [the] herd [of cattle].' " Id. at 66, 753 P.2d at 277. The Greene court did not discuss the qualifications of the plaintiffs and other dairy farmers to opine how cattle typically react to wild animals; rather, their qualifications seem to have been assumed. Donovan relies upon Greene, but we think the quality of the evidence in Greene makes that case distinguishable from the one at hand.
First of all, Donovan did not introduce any evidence as to how horses act in the presence of wild animals or dogs. Donovan stated in the affidavit and in the supplemental answers to Hartford's interrogatories that Duke was a docile, relaxed, well-trained, and not easily frightened horse and that Duke would not jump or become agitated without provocation. This is valid evidence of Duke's character, and such evidence is admissible in a suit seeking recovery for damages arising from the conduct of domestic animals. See 3A C.J.S. Animals section 221 (1973). Furthermore, this evidence might tend to establish what Donovan must prove in order to recover, but it does not establish that wild animals or dogs provoked Duke to jump the 6-foot wooden fence. Evidence that Donovan had witnessed animals and trespassers on his property in the past, as well as low- flying aircraft, does not
establish that wild animals or dogs attacked Duke. Evidence of strangers' possibly being present might even tend to establish a noncovered cause of death. This circumstantial evidence clearly does not meet the rule stated above; that is, it does not establish circumstances of such a nature and so related that the only conclusion that can fairly and reasonably be drawn from that evidence is that Duke's death was caused by an attack by wild animals or dogs. It simply does not establish that nothing other than wild animals or dogs could have provoked Duke in this incident.
Donovan also stated in his supplemental answers to Hartford's interrogatories that "[b]ased upon [his] extensive experience with Duke, something must have been chasing [Duke] to cause him to jump." This opinion is supported only by Donovan's assertion that he has "extensive" experience with Duke. Donovan does not elaborate on the "something" that he claims must have chased Duke.
There is no evidence in this record that any wild animal or dog would cause a horse, or Duke in particular, to attempt to jump a 6-foot fence or even to be frightened. We do not wish to pretend expertise which we do not have, but it is obvious that there are a great many horses in this state and also a great many wild animals and dogs. It would seem that if horses are afraid of wild animals or dogs, evidence on the subject should be available.
In summary, Donovan's attempt to use circumstantial evidence to prove his case fails in two respects: One, it does not exclude causes other than wild animals or dogs, and two, it does not really establish that wild animals or dogs were a likely cause of Duke's death. Since Donovan failed to raise a material issue of fact concerning the cause of Duke's death's being covered by the insurance policy, we conclude that the trial court correctly granted Hartford's motion for summary judgment, and we affirm.
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