Whether a prior conviction for a violation of the refusal to submit to a chemical test statute, can be used to enhance the conviction for a violation of the DUI statute to a second offense, is addressed here by the Nebraska Court of Appeals.
State v. Hansen, 16 Neb. App. 671 (2008)
Court of Appeals Headnotes
Judgments:
1. Appeal and Error. With respect to questions of law, an appellate court has an obligation to reach an independent conclusion, irrespective of the decision of the court below.
Statutes.
1. When the words of a statute are plain, direct, and unambiguous, no interpretation is necessary or will be indulged to ascertain meaning.
2. Prior Convictions. Neb. Rev. Stat. § 60-6,197.03 (Supp. 2005) provides enhanced penalties by enhancing the conviction presently before the court for which sentencing is occurring in the event there are prior convictions.
1. Drunk Driving: Blood, Breath, and Urine Tests. Neb. Rev. Stat. § 60-6,197.02 (Supp. 2005) is structured by first articulating the two different crimes for which there can be enhancement because of a prior conviction. The first category of crime is for a violation of Neb. Rev. Stat. § 60-6,196 (Reissue 2004), driving under the influence, and the second category of crime is for a violation of Neb. Rev. Stat. § 60-6,197 (Reissue 2004), refusal to submit to a chemical test. ●●● When a judge is sentencing for a violation of the driving under the influence statute, the present offense can be enhanced by prior driving under the influence convictions, and when a judge is sentencing for a violation of the refusal to submit to a chemical test statute, the offense then before the court can be enhanced, but only by prior refusal convictions. ●●● Under the plain language of Neb. Rev. Stat. § 60-6,197.02 (Supp. 2005), when sentencing for a driving under the influence conviction, a previous refusal to submit to chemical testing conviction is not in the list of convictions that are prior convictions for the purpose of enhancement, and when sentencing for a refusal conviction, a previous driving under the influence conviction is not in the list of prior convictions which can be used to enhance the refusal conviction.
Date Filed and Case No.: May 13, 2008. No. A-07-1014.
Court Appealed From: District Court for Buffalo County, John P. Icenogle, Judge, on appeal thereto from the County Court for Buffalo County, Gerald R. Jorgensen, Jr., Judge.
Attorneys for the Appeal: Shawn R. Eatherton and Michele J. Romero for State of Nebraska, appellant. No appearance for Emily M. Hansen, appellee.
Judges: Sievers, Carlson, and Moore, Judges.
Authored By: Sievers, Judge.
Summary: Emily M. Hansen pled no contest to driving while under the influence (DUI) with a blood alcohol content of .15 or greater, and the State sought to enhance such conviction to a second offense. Enhancement was denied by the county court on the basis that hansen’s earlier conviction for refusal to submit to alcohol testing cannot be used to enhance the instant conviction to a second offense under Neb. Rev. Stat. § 60-6,197.03 (Supp. 2005), because such conviction is not a “prior conviction” as defined under Neb. Rev. Stat. § 60-6,197.02 (Supp. 2005).
After denying enhancement, the trial court sentenced Hansen to a $500 fine and 60 days’ incarceration on the DuI conviction and a conviction for driving with a revoked license was handled at the same time adding an additional consecutive 30 days’ incarceration. On the DUI conviction, her license was revoked for 1 year.
Hansen appealed this sentence to the district court asserting that the sentence was excessive. The State cross-appealed contesting the county court’s failure to enhance the DUI conviction to a second offense. The district court rejected Hansen’s argument that the county court’s sentence was excessive but also found that a prior conviction under the refusal statute, cannot be used to enhance a conviction under the DUI statute. The State was granted an application for leave to docket error proceedings before the Nebraska Court of Appeals.
Can a prior conviction for a violation of the refusal statute, be used to enhance the conviction for violation of the DUI statute, to a second offense when an offender is sentenced? The Court said that here, there is no dispute that Hansen had a prior conviction for refusal and that such was within the statute’s 12-year “qualifying” timeframe. “That said,” they wrote “whether enhancement is permissible is determined by the definition of ‘prior conviction’ found in § 60-6,197.02.” The Court followed by writing out in full Neb. Rev. Stat. § § 60-6,197.02.
The Court wrote that the district court’s order affirming the county court’s denial of enhancement reasoned that a plain reading of § 60-6,197.02 indicates the legislature’s intent to define prior conviction separately when a person is convicted for DUI and refusal is readily apparent in that the definitions are set forth in separate subparagraphs (notably (i) and (ii)).
Although the statutory language is not as clear as it could have been and no legislative history has been provided to this court by either party, this court believes that the interpretation of the statute by the county court was in fact proper and the appeal of the State is without merit. . . . The county court, in its comments from the bench in refusing to enhance, reasoned that it did not see any “cross over” in § 60-6,197.02 in that “[r]efusal isn’t listed under DUI and DUI isn’t listed under [r]efusal.”
Hansen’s memorandum brief argues first that the elements of the crimes of DUI and refusal to submit to chemical testing are different, and “of course we agree” wrote the Court. Hansen then submits:
It is simply strained logic to assert that a motorist having been convicted of previously refusing a chemical test is presumed to have been under the influence and therefore that previous conviction can be used to enhance a subsequent [DUI] conviction. These are two crimes that although related to driving, are completely different and just happen to have the same penalty. To commit one offense in 2006 and a completely different offense in 2007 and enhance [its] penalty defies reason.
The State’s position is simply that we need only give the statutory language of § 60-6,197.02 its plain and ordinary meaning, and when the words of a statute are plain, direct, and unambiguous, no interpretation is necessary or will be indulged to ascertain meaning.
The Court wrote that when a judge is sentencing for a violation of our DUI statute, the present offense can be enhanced by prior DUI convictions, and when a judge is sentencing for refusal, the offense then before the court can be enhanced, but only by prior refusal convictions. But, as said by the county court, there is no “cross over” under the plain language of the statute because when sentencing for a DUI conviction, a previous refusal conviction is not in the list of convictions that are “prior convictions,” and when sentencing for a refusal conviction, a previous DUI conviction is not in the list of “prior convictions” which can be used to enhance the refusal conviction.
Here, the Court of Appeals said that their plain reading of the statute is different than the State’s. “We cannot read the statute any differently than did the county court and the district court, given that Hansen was before the court for a DUI conviction, and the alleged ‘prior conviction’ was a refusal conviction—but such is not within the statutorily listed ‘prior convictions’ for a DUI conviction.” Because the statute is clear, the Court did not resort to legislative history.
Quote worth remembering: “Whether this is the result the Legislature intended is unknown, but the statute ‘says what it says.’”
Conclusion: Accordingly, the Court affirmed the decision of the lower courts. AFFIRMED.
Whether a prior conviction for a violation of the refusal to submit to a chemical test statute, can be used to enhance the conviction for a violation of the DUI statute to a second offense, is addressed here by the Nebraska Court of Appeals.
State v. Hansen, 16 Neb. App. 671 (2008)
Court of Appeals Headnotes
Judgments:
1. Appeal and Error. With respect to questions of law, an appellate court has an obligation to reach an independent conclusion, irrespective of the decision of the court below.
Statutes.
1. When the words of a statute are plain, direct, and unambiguous, no interpretation is necessary or will be indulged to ascertain meaning.
2. Prior Convictions. Neb. Rev. Stat. § 60-6,197.03 (Supp. 2005) provides enhanced penalties by enhancing the conviction presently before the court for which sentencing is occurring in the event there are prior convictions.
1. Drunk Driving: Blood, Breath, and Urine Tests. Neb. Rev. Stat. § 60-6,197.02 (Supp. 2005) is structured by first articulating the two different crimes for which there can be enhancement because of a prior conviction. The first category of crime is for a violation of Neb. Rev. Stat. § 60-6,196 (Reissue 2004), driving under the influence, and the second category of crime is for a violation of Neb. Rev. Stat. § 60-6,197 (Reissue 2004), refusal to submit to a chemical test. ●●● When a judge is sentencing for a violation of the driving under the influence statute, the present offense can be enhanced by prior driving under the influence convictions, and when a judge is sentencing for a violation of the refusal to submit to a chemical test statute, the offense then before the court can be enhanced, but only by prior refusal convictions. ●●● Under the plain language of Neb. Rev. Stat. § 60-6,197.02 (Supp. 2005), when sentencing for a driving under the influence conviction, a previous refusal to submit to chemical testing conviction is not in the list of convictions that are prior convictions for the purpose of enhancement, and when sentencing for a refusal conviction, a previous driving under the influence conviction is not in the list of prior convictions which can be used to enhance the refusal conviction.
Date Filed and Case No.: May 13, 2008. No. A-07-1014.
Court Appealed From: District Court for Buffalo County, John P. Icenogle, Judge, on appeal thereto from the County Court for Buffalo County, Gerald R. Jorgensen, Jr., Judge.
Attorneys for the Appeal: Shawn R. Eatherton and Michele J. Romero for State of Nebraska, appellant. No appearance for Emily M. Hansen, appellee.
Judges: Sievers, Carlson, and Moore, Judges.
Authored By: Sievers, Judge.
Summary: Emily M. Hansen pled no contest to driving while under the influence (DUI) with a blood alcohol content of .15 or greater, and the State sought to enhance such conviction to a second offense. Enhancement was denied by the county court on the basis that hansen’s earlier conviction for refusal to submit to alcohol testing cannot be used to enhance the instant conviction to a second offense under Neb. Rev. Stat. § 60-6,197.03 (Supp. 2005), because such conviction is not a “prior conviction” as defined under Neb. Rev. Stat. § 60-6,197.02 (Supp. 2005).
After denying enhancement, the trial court sentenced Hansen to a $500 fine and 60 days’ incarceration on the DuI conviction and a conviction for driving with a revoked license was handled at the same time adding an additional consecutive 30 days’ incarceration. On the DUI conviction, her license was revoked for 1 year.
Hansen appealed this sentence to the district court asserting that the sentence was excessive. The State cross-appealed contesting the county court’s failure to enhance the DUI conviction to a second offense. The district court rejected Hansen’s argument that the county court’s sentence was excessive but also found that a prior conviction under the refusal statute, cannot be used to enhance a conviction under the DUI statute. The State was granted an application for leave to docket error proceedings before the Nebraska Court of Appeals.
Can a prior conviction for a violation of the refusal statute, be used to enhance the conviction for violation of the DUI statute, to a second offense when an offender is sentenced? The Court said that here, there is no dispute that Hansen had a prior conviction for refusal and that such was within the statute’s 12-year “qualifying” timeframe. “That said,” they wrote “whether enhancement is permissible is determined by the definition of ‘prior conviction’ found in § 60-6,197.02.” The Court followed by writing out in full Neb. Rev. Stat. § § 60-6,197.02.
The Court wrote that the district court’s order affirming the county court’s denial of enhancement reasoned that a plain reading of § 60-6,197.02 indicates the legislature’s intent to define prior conviction separately when a person is convicted for DUI and refusal is readily apparent in that the definitions are set forth in separate subparagraphs (notably (i) and (ii)).
Although the statutory language is not as clear as it could have been and no legislative history has been provided to this court by either party, this court believes that the interpretation of the statute by the county court was in fact proper and the appeal of the State is without merit. . . . The county court, in its comments from the bench in refusing to enhance, reasoned that it did not see any “cross over” in § 60-6,197.02 in that “[r]efusal isn’t listed under DUI and DUI isn’t listed under [r]efusal.”
Hansen’s memorandum brief argues first that the elements of the crimes of DUI and refusal to submit to chemical testing are different, and “of course we agree” wrote the Court. Hansen then submits:
It is simply strained logic to assert that a motorist having been convicted of previously refusing a chemical test is presumed to have been under the influence and therefore that previous conviction can be used to enhance a subsequent [DUI] conviction. These are two crimes that although related to driving, are completely different and just happen to have the same penalty. To commit one offense in 2006 and a completely different offense in 2007 and enhance [its] penalty defies reason.
The State’s position is simply that we need only give the statutory language of § 60-6,197.02 its plain and ordinary meaning, and when the words of a statute are plain, direct, and unambiguous, no interpretation is necessary or will be indulged to ascertain meaning.
The Court wrote that when a judge is sentencing for a violation of our DUI statute, the present offense can be enhanced by prior DUI convictions, and when a judge is sentencing for refusal, the offense then before the court can be enhanced, but only by prior refusal convictions. But, as said by the county court, there is no “cross over” under the plain language of the statute because when sentencing for a DUI conviction, a previous refusal conviction is not in the list of convictions that are “prior convictions,” and when sentencing for a refusal conviction, a previous DUI conviction is not in the list of “prior convictions” which can be used to enhance the refusal conviction.
Here, the Court of Appeals said that their plain reading of the statute is different than the State’s. “We cannot read the statute any differently than did the county court and the district court, given that Hansen was before the court for a DUI conviction, and the alleged ‘prior conviction’ was a refusal conviction—but such is not within the statutorily listed ‘prior convictions’ for a DUI conviction.” Because the statute is clear, the Court did not resort to legislative history.
Quote worth remembering: “Whether this is the result the Legislature intended is unknown, but the statute ‘says what it says.’”
Conclusion: Accordingly, the Court affirmed the decision of the lower courts. AFFIRMED.
In this declaratory judgment action, appellant sought to establish his entitlement to the proceeds of a life insurance policy issued by a life insurance company to his deceased wife. The district court entered an order sustaining the company's motion for summary judgment and dismissing the action, finding the wife failed to satisfy a condition precedent required by the company and that the policy therefore never went into effect. The Nebraska Court of Appeals affirmed the decision of the district court.
Kuehl v. First Colony Life Ins. Co., 16 Neb. App. 661 (2008)
Court of Appeals Headnotes
Insurance:
1. Contracts: Insurance contracts, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used. If the terms of the contract are clear and unambiguous, they are to be taken and understood in their plain, ordinary, and popular sense. ••• An ambiguity exists in an insurance contract only when the policy can be interpreted to have two or more reasonable meanings. ••• The language of an insurance policy should be read to avoid ambiguities, if possible, and the language should not be tortured to create them.
a. Appeal and Error. The interpretation of an insurance policy is a question of law, in connection with which an appellate court has an obligation to reach its own conclusions independently of the determination reached by the trial court.
Summary Judgment.
1. Summary judgment is proper when the pleadings and evidence admitted at the hearing 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.
2. Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in a 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.
Appeal and Error.
1. An appellate court is not obligated to engage in an analysis that is not needed to adjudicate the controversy before it.
Fraud:
1. Contracts. In the absence of fraud or misrepresentation, a health defect existing but undetected on the date of the medical examination cannot later be advanced as a breach of a continued insurability clause. ••• An applicant for life insurance has no duty to voluntarily inform the insurer of new information about his health which arises after a medical examination by the insurer.
Date Filed and Case No.: May 13, 2008. No. A-06-1170.
Court Appealed From: District Court for Douglas County: John D. Hartigan, Jr., Judge.
Attorneys for the Appeal: Richard J. Rensch for Terence Kuehl, appellant. Kyle Wallor and John M. Walker for First Colony Life Insurance Company, appellee.
Judges: Sievers, Carlson, and Moore, Judges.
Authored By: Moore, Judge.
Summary: In this declaratory judgment action, Terence Kuehl sought to establish his entitlement to the proceeds of a life insurance policy issued by First Colony Life Insurance Company to Terence’s deceased wife, Deborah Kuehl.
In August 2003, an independent insurance agent who had obtained life insurance policies for the Kuehls in the past, suggested that Deborah could obtain a better rate if she purchased a $600,000 life insurance policy from First Colony as a substitute for two existing $300,000 policies issued by other companies. On September 5, Deborah completed Part I of the usual application form and checked the box which indicated that she currently uses tobacco or other nicotine products. “Part II” of the application, the “Medical history,” was completed on September 12 in conjunction with the insurance medical examination conducted on that day. Due to a problem with the EKG machine, the examiner was required to obtain another EKG reading from Deborah, which she did at Deborah’s home on October 8, 2003. Deborah did not advise the examiner of any changes in her health since completing the medical history on September 12.
First Colony issued a life insurance policy on November 7, 2003, which was delivered to Deborah on November 14. The “Policy Delivery Acknowledgment” form was signed by Deborah on November 14. When the first premium payment was made by Deborah, she did not advise the agent that she was spitting up blood, nor that she had a chronic lung disorder or lung cancer, between the time of the application and the delivery of the policy.
However, Deborah began having trouble with spitting up blood around the middle of October 2003. On October 9, 2003, Deborah had an office visit with her primary care physician in which she indicated that she had been coughing up blood for 2 to 3 weeks. An x-ray performed revealed a “suspicious” shadow or mass which her doctor discussed with Deborah, at which time he “probably” said it could be cancer. Following a CT scan on October 14, a positron emission tomography scan on October 16, and a biopsy on October 30, Deborah was diagnosed with “[m]etastatic non-small cell carcinoma.” On November 3, Deborah had a consultation for potential treatment of the carcinoma of her lung. Deborah passed away on March 28, 2004, as a result of the lung cancer.
On April 12, Terence, as primary beneficiary under the policy, submitted a “Proof of Loss” to the company. Following an investigation, the company denied the claim for death benefits. On July 30, Terence filed a petition for declaratory judgment, seeking a declaration that the company wrongfully denied Terence’s claim for death benefits and that the company is obligated to pay the $600,000 death benefits together with costs pursuant to Neb. Rev. Stat. § 44-359 (Reissue 2004).
In its answer, the company admitted that it issued a life insurance policy. Also in its answer, the company affirmatively alleged that Deborah made material misrepresentations during the course of the application and delivery process which rendered the policy void ab initio and, further, that Deborah failed to meet all conditions precedent to the policy by failing to advise the company of the change in her health status. First Colony moved for summary judgment and following a hearing the district court entered a detailed, eight-page order, granting the company’s summary judgment motion and dismissing Terence’s petition with prejudice. Terence appealed to the Nebraska Court of Appeals.
Was the insurance policy plain and unambiguous? The district court here found that the condition precedent requiring the insurance applicant to “‘notify the Insurer if any statement or answer given in the application changes prior to policy delivery’” is clear and unambiguous. The court stated that a literal and plain reading of the clause demonstrates that it required the insurance applicant to inform the company of any change in the statements made in the application, including whether the applicant had been treated for “coughing up of blood” or “cancer.” The district court found that there is no other meaning which can be given to these policy provisions and that no ambiguity exists which requires construction.
The Court of Appeals agreed with the district court that this provision is clear and unambiguous and is dispositive of the case. Therefore, they did not address the issue of whether the language regarding being “insurable” is ambiguous.
Did Deborah fail to meet condition precedent? Here, the district court found that it is undisputed that between the time Deborah signed the application indicating she had never coughed up blood or had cancer and the effective date of her policy, her answers to those questions changed. The court concluded that Deborah had an obligation to update the answers given in her application for those changes in health and that because she failed to meet that condition precedent, the insurance contract never became effective. Deborah had a confirmed diagnosis of lung cancer 2 weeks before delivery of the policy. More important, however, is the difference in the policy language.
In Ortega v. North American Co. for L. & H. Ins., 187 Neb. 571, 193 N.W.2d 254 (1971), the insurer’s position that the insured breached a condition precedent to coverage related solely to the continued insurability language of the policy. In Ortega, there was no contractual obligation of the insured to notify the insurer of any change in health status before delivery of the policy. The court in Ortega referred to the general rule that an applicant for life insurance has no duty to voluntarily inform the insurer of new information about his health which arises after a medical examination by the insurer. Therefore the difference between this case and Ortega is that here, the insured had a contractual duty to inform the insurer of new information concerning statements in the application prior to policy delivery. As Nebraska case law has not addressed this specific language in the context of a life insurance contract the Court looked to other jurisdictions which have addressed a policy provision very similar to the one at issue here in the context of conditions precedent to formation of the contract.
After reviewing those cases, the Court concluded that the requirement in First Colony’s policy was a condition precedent to the formation of the insurance contract. This notification requirement was a condition of the contract which Deborah acknowledged and signed, and which she failed to satisfy. Deborah’s failure to notify the company of the changes precluded the formation of the insurance contract.
Conclusion: Because a condition precedent to the formation of the contract of life insurance was not fulfilled, the life insurance policy never went into effect. AFFIRMED.
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