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HANSMEIER v. HANSMEIER

Cite as 25 Neb. App. 742

Scott and Karie Hansmeier, appel

v. Merva Hansmeier and We

Insurors-Platte Va

Agency, appelle

___ N.W.2d ___

Filed April 10, 2018. No. A-17-115.

1. Summary Judgment. Summary judgment is proper when the pleadings 

and evidence admitted at the hearing disclose no genuine issue regarding any material fact or 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. Summary Judgment: Appeal and Error. 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.

3. Negligence: Proof. To prevail in any negligence action, a plaintiff must 

show a legal duty owed by the defendant to the plaintiff, a breach of 

such duty, causation, and resulting damages.

4. Insurance: Agents. An insurance agent has no duty to anticipate what 

coverage an insured should have.

5. ____: ____. When an insured asks an insurance agent to procure insurance, the insured has a duty to advise the insurance agent as to the 

desired insurance.

6. Insurance: Contracts: Breach of Contract: Negligence. Absent evidence that an insurance agent has agreed to provide advice or the 

insured was reasonably led by the agent to believe he would receive 

advice, the failure to volunteer information does not constitute either 

negligence or breach of contract for which an insurance agent must 

answer in damages.

7. Insurance: Agents. It would be an unreasonable burden to impose 

upon insurance agents a duty to anticipate what coverage an individual 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

04/17/2018 12:09 AM CDT
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should have, absent the insured’s requesting coverage in at least a general way.

8. Insurance: Agents: Brokers. If an insurance agent or broker undertakes 

to advise an insured, the agent or broker must use reasonable care to 

provide accurate information.

9. Insurance: Agents: Brokers: Liability: Negligence. An insurance 

agent or broker may be held liable for a negligent misrepresentation 

made to an insured.

10. Insurance: Agents: Liability: Negligence: Proof. In order for an insurance agent to be liable for negligent misrepresentation, the client must 

show that the insurance agent supplied the client with false information 

upon which the client reasonably relied and that the agent failed to exercise reasonable care or competence in communicating such information 

to the client.

Appeal from the District Court for Keith County: Richa

A. Birch, Judge. Affirm

Brock D. Wurl, of Norman, Paloucek, Herman & Wurl, for 

appellants.

Sean A. Minahan and Patrick G. Vipond, of Lamson, Dugan 

& Murray, L.L.P., for appellees.

Pirtle, Bishop, and Arterburn, Jud

Bishop, Judge

Scott and Karie Hansmeier filed a negligence claim against 

Merva Hansmeier and her employer, Western Insurors-Platte 

Valley Agency (Western Insurors), claiming that Merva 

improperly advised them regarding the need to purchase workers’ compensation insurance for their farm and ranch operation. The district court for Keith County granted Merva and 

Western Insurors’ motion for summary judgment. Scott and 

Karie appeal, claiming that there are genuine issues of material 

fact that prevent summary judgment. We affirm.

FACTUAL BACKGROUND

Scott and his wife, Karie, live in Ogallala, Nebraska. Scott 

and Karie own and operate a farm and ranch; they also 
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rent farmland and pastureland. Scott and his father are each 

sole proprietors of their own farming operations, but work 

together and are “basically 50/50 partners.” Scott said he 

does “all [of] the work,” some of the farmland is owned by 

his father, they each own their own machinery but use each 

other’s as needed, and they crop share. In 2012, Scott had 

two full-time employees, including Mike Heble, and Scott’s 

father had one full-time employee. Scott said he paid Heble, 

Scott’s father paid his own employee, and they both paid 

the third employee; “[t]hat’s how we get 50/50 out of the 

three guys.”

Merva is Scott’s aunt and was his insurance agent in 2012, 

and for several years prior. In 2012, Scott got all of his insurance through Merva, including his farm policy, homeowner’s 

insurance, auto insurance, and health insurance. Scott did not 

provide any insurance for his employees.

On February 2, 2012, Heble injured his thumb in an auger 

while loading grain out of a bin and into a truck, and his thumb 

had to be “stitched . . . back on.” When Scott tried to file a 

farm liability claim with his insurance company, he learned 

that Heble’s injury was not covered.

In 2014, Heble filed a lawsuit against Scott, but that workers’ compensation claim was eventually settled for an amount 

that included medical bills and a disability payment. Scott and 

his father split the costs of the settlement. The amount of the 

settlement was not put into evidence at the summary judgment hearing. The date of the settlement is not evident from 

our record; but it appears to have been after January 23, 2015, 

based on the allegations in Scott and Karie’s complaint in the 

current case discussed below.

PROCEDURAL BACKGROUND

On January 23, 2015, Scott and Karie filed a complaint 

against Merva and her employer, Western Insurors. Scott and 

Karie alleged that Merva and Western Insurors were negligent 

in advising them regarding the need to purchase workers’ 

compensation insurance and that as a result, Scott and Karie 
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incurred costs defending a lawsuit brought by their employee, 

Heble, and they might also be liable for any judgment arising 

out of that lawsuit.

In their answer filed on March 24, 2015, Merva and Western 

Insurors denied the allegations made by Scott and Karie. Merva 

and Western Insurors asserted affirmative defenses, including 

contributory negligence, assumption of risk, estoppel, laches, 

waiver, and release.

On September 21, 2016, Merva and Western Insurors filed a 

motion for summary judgment, alleging that there were no genuine issues as to any material fact and that they were entitled to 

judgment as a matter of law.

The summary judgment hearing was held on November 18, 

2016. The depositions of Scott and Merva were received into 

evidence at the hearing. Also received into evidence was a letter dated February 28, 2012, from Farmers Mutual of Nebraska 

to Scott and Karie regarding a claim under their insurance 

policy for Heble’s accident. (In Scott’s deposition, he refers 

to a “farm policy,” and the letter from Farmers Mutual of 

Nebraska references a section of the policy related to “Farm 

and Personal Liability Protection,” so references to this policy 

relate to liability coverage.)

In his deposition, Scott testified to the following: In 2012 

and prior, Scott met with Merva on an “as needed basis” to 

discuss his insurance needs. They never talked about insurance 

for his employees. He initially said he never asked her about 

workers’ compensation insurance, but then said he had. Scott 

knew prior to 2012 that he did not have to have workers’ compensation insurance “on an agricultural person.” He could not 

remember if he ever discussed with Merva that he did not have 

to have any workers’ compensation insurance.

Scott testified that prior to February 2, 2012, Heble had 

previously been injured on the job two times. Scott paid 

Heble’s medical expenses for the first injury because Heble 

did not have the money. But Scott did not pay the medical 

bills the second time. He said that Heble knew he did not have 
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workers’ compensation insurance and that he was on his own 

for health insurance.

According to Scott, on February 2, 2012, Heble injured his 

thumb in an auger while loading grain out of a bin and into a 

truck, and his thumb had to be “stitched . . . back on.” When 

Scott tried to file a farm liability claim with his insurance 

company, Merva told him Heble’s injury was not covered. At 

some point after that, Scott learned for the first time that he 

was supposed to have provided his employees with notice that 

he was not providing workers’ compensation insurance. Scott 

said that at some point Merva told him “this is a bad deal, not 

sure how it’s all going to go out, but . . . if you end up getting 

sued, you’re going to turn around and end up suing me on my 

errs [sic] and omissions.”

Scott testified that Heble did file a workers’ compensation 

lawsuit against him, but that the claim has since settled for an 

amount which included medical bills and a disability payment. 

Scott could not remember the amount of the settlement, but he 

and his father split the settlement costs.

Scott stated that prior to 2012, Merva had never told Scott 

that the “blanket” farm policy did not cover workers’ compensation; and Scott acknowledged that he had never asked 

her if the liability portion of the policy covered injuries to his 

employees. Scott said that he had never read his policy “[f]rom 

front to back” and that he had not read the exclusion portions 

of his policy.

The letter dated February 28, 2012, from Farmers Mutual 

of Nebraska to Scott and Karie regarding the claim under their 

policy for Heble’s accident, sets forth provisions of Neb. Rev. 

Stat. § 48-106 (Reissue 2010) regarding workers’ compensation and includes the relevant provision from Scott and Karie’s 

policy. The letter states that Scott and Karie had not been compliant with § 48-106(7), which provides that if an employer is 

exempt from the Nebraska Workers’ Compensation Act by the 

subsection regarding services performed by an employee of 

an agricultural operation, then the employer must provide all 
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unrelated employees with written notice that the employer does 

not provide workers’ compensation coverage, and the employee 

must sign the notice. Further, the letter notes that § 48-106(7) 

states that failure to provide the required notice subjects the 

employer to inclusion in the Nebraska Workers’ Compensation 

Act, which requires an employer to carry a policy of workers’ 

compensation. The letter then addresses the relevant provision 

from Scott and Karie’s policy and the effect of their noncompliance with § 48-106(7). According to the letter:

The policy states, under Section VI - Farm and Personal 

Liability Protection; Exclusions Applying to Section VI:

“. . . we do not cover . . .

“9. Bodily injury to a person if an insured person

has or is required to have a policy providing workers’ 

compensation, nonoccupational disease or occupational 

disease benefits covering the bodily injury.”

Because you did not comply with the Nebraska 

Workers’ Compensation statute §48-106(7), this exclusion 

for coverage may apply to this accident.

(Emphasis in original.)

In her deposition, Merva testified to the following: In 2012, 

she knew about Scott’s farming and ranching operation and 

that he had employees. Prior to 2012, she had multiple conversations with Scott about workers’ compensation insurance. 

Merva told Scott they offered workers’ compensation insurance and that she would be “happy” to get him a quote. When 

asked if she recommended Scott purchase the insurance, Merva 

said, “If the fact of telling him to protect his employees, that 

he probably should think about Work Comp., that’s probably 

what I told him.” And that “he, in my book, he should have 

it; but I can’t tell somebody what they have to have.” Merva 

said, “I did recommend that he had work — that he purchase 

it; but he told me it was too expensive. He told me that he 

doesn’t have to have it by law. I told him that was true.” When 

asked if, prior to 2012, she told Scott that if he was not going 

to carry workers’ compensation insurance, that he needed to 
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have a waiver signed by his employees, Merva said, “No.” 

When asked if she was aware that there was a waiver that 

Scott would need to have signed, Merva said, “No.” She did 

not learn about the required waiver until after Heble’s February 

2012 accident.

Scott and Karie argued there were three claims: (1) They 

were instructed they were not required to purchase workers’ 

compensation insurance, (2) they were never advised that 

workers’ compensation insurance was available or necessary 

to cover their employees, and (3) Merva and Western Insurors 

failed to properly advise them as to their insurance needs. 

“It’s basically an . . . errors and omissions against the agents 

claiming it [sic] didn’t tell us we needed workers’ compensation. Or if you did tell us, you didn’t tell us anything about the 

notice requirement.”

Merva and Western Insurors argued that Nebraska law is 

“pretty clear” that an independent insurance agent has no duty 

to advise an insured as to their insurance needs. They further 

argued that even if Merva tried to encourage workers’ compensation insurance, Scott did not rely on that information.

In an order filed on January 10, 2017, the district court sustained Merva and Western Insurors’ motion for summary judgment. The court found:

To the extent Scott and Merva have a different recollection of their communications, that difference does not 

affect the result in this case and therefore is not material. 

There is no evidence from which it can be concluded 

that [Scott and Karie] requested workers[’] compensation 

insurance and the policy they obtained unambiguously 

did not provide such coverage. The evidence is equally 

clear that [Scott and Karie] never asked [Merva and/or 

Western Insurors] for help or advice on how to exclude 

their employees from such coverage.

The court said the law is clear that an insurance agent has no 

duty to anticipate what coverage an insured should have. The 

court also noted the law requires that in order for an insurance 
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agent to be liable for negligent misrepresentation, a plaintiff 

must prove the agent provided him with false information upon 

which he reasonably relied and must prove the agent failed 

to exercise reasonable care or competence in communicating 

such information to the plaintiff. The court found that “the 

evidence is uncontradicted that what Merva told Scott about 

workers[’] compensation coverage was accurate.” The court 

stated that “[t]he law is also clear that she does not have a 

duty to provide him with unsolicited advice.” Having found no 

material fact in dispute, the court granted Merva and Western 

Insurors’ motion for summary judgment and dismissed Scott 

and Karie’s complaint with prejudice.

Scott and Karie now appeal.

ASSIGNMENTS OF ERROR

Scott and Karie assign that the district court erred in (1) 

sustaining Merva and Western Insurors’ motion for summary 

judgment and dismissing Scott and Karie’s case and (2) determining that this was a case involving anticipation of coverage, 

rather than a professional negligence case where an insurance 

agent provided incorrect and incomplete advice to her client.

STANDARD OF REVIEW

[1,2] Summary judgment is proper when the pleadings and 

evidence admitted at the hearing disclose no genuine issue 

regarding any material fact or the ultimate inferences that may 

be drawn from those facts and that the moving party is entitled 

to judgment as a matter of law. Walters v. Sporer, 298 Neb. 

536, 905 N.W.2d 70 (2017). 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. Id.

ANALYSIS

In Scott and Karie’s assignments of error and at oral argument, they claimed this is a professional negligence case. 
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However, as noted by Merva and Western Insurors’ counsel at 

oral argument, Nebraska case law has never determined that an 

insurance agent is a “professional” for purposes of professional 

negligence actions under Neb. Rev. Stat. § 25-222 (Reissue 

2016) (2-year statute of limitations for professional negligence 

actions). See Motor Club Ins. Assn. v. Fillman, 5 Neb. App. 

931, 936, 568 N.W.2d 259, 263-64 (1997) (after setting forth 

description of “profession,” court stated that “[i]t would seem 

that insurance agents do not fall within the statutory or case 

law definition of ‘professionals’ for purposes of § 25-222”; 

but finding it was not necessary to decide issue in that case). 

Furthermore, any professional negligence claim against Merva 

and Western Insurors would be barred by the 2-year statute 

of limitations set forth in § 25-222. Accordingly, Scott and 

Karie’s claims against Merva and Western Insurors can only be 

for general negligence or negligent misrepresentation, and we 

address each below.

Scott and Karie primarily argue that there are material issues 

of fact in dispute which should prevent summary judgment. 

However, before considering the facts discernible from the 

record, we first consider the applicable law. Relevant to this 

case, § 48-106 provides:

(2) The [Nebraska Workers’ Compensation Act] shall 

not apply to:

. . . .

(d) Service performed by a worker when performed for 

an employer who is engaged in an agricultural operation 

and employs unrelated employees unless such service is 

performed for an employer who during any calendar year 

employs ten or more unrelated, full-time employees[.]

. . . .

(6) An employer who is exempt from the act under 

subsection (2) of this section may elect to bring the 

employees of such employer under the act. Such election 

is made by the employer obtaining a policy of workers’ 

compensation insurance covering such employees. . . .
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(7) Every employer exempted under subdivision (2)(d) 

of this section who does not elect to provide workers’ 

compensation insurance under subsection (6) of this section shall give all unrelated employees at the time of hiring or at any time more than thirty calendar days prior to 

the time of injury the following written notice which shall 

be signed by the unrelated employee and retained by the 

employer: “In this employment you will not be covered 

by the Nebraska Workers’ Compensation Act and you will 

not be compensated under the act if you are injured on 

the job or suffer an occupational disease. You should plan 

accordingly.” Failure to provide the notice required by 

this subsection subjects an employer to liability under and 

inclusion in the act for any unrelated employee to whom 

such notice was not given.

The evidence establishes that Scott knew he was not providing workers’ compensation insurance to his employees. Scott 

testified that prior to February 2, 2012, Heble had previously 

been injured on the job two times. Scott paid Heble’s medical 

expenses for the first injury, but he did not pay his medical 

bills the second time. Scott said that Heble knew he did not 

have workers’ compensation insurance and that he was on his 

own for health insurance. Further, Scott initially said he never 

asked Merva about workers’ compensation insurance, but he 

then said he had. Also, by his own testimony, Scott knew prior 

to 2012 that he did not have to have workers’ compensation 

insurance “on an agricultural person.” So the issue is not about 

whether he had to have workers’ compensation insurance or 

should have been advised to have it; rather, this case turns on 

whether an insurance agent has an affirmative duty to tell an 

employer about the written notice and signature provisions 

contained in § 48-106. Merva and Western Insurors argue they 

had no duty to advise Scott and Karie as to the steps necessary 

to exclude their employees from the workers’ compensation 

requirement. Based upon the facts viewed most favorably to 

Scott and Karie in this case, we agree.
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[3] To prevail in any negligence action, a plaintiff must 

show a legal duty owed by the defendant to the plaintiff, a 

breach of such duty, causation, and resulting damages. Lewison 

v. Renner, 298 Neb. 654, 905 N.W.2d 540 (2018). In their complaint and at the summary judgment hearing, Scott and Karie 

alleged, in part, that Merva and Western Insurors never advised 

them that workers’ compensation was available or necessary to 

cover their employees.

[4,5] The Nebraska Supreme Court has stated that an insurance agent has no duty to anticipate what coverage an insured 

should have. Dahlke v. John F. Zimmer Ins. Agency, 245 Neb. 

800, 515 N.W.2d 767 (1994). Rather, when an insured asks 

an insurance agent to procure insurance, the insured has a 

duty to advise the insurance agent as to the desired insurance. Id.

[6,7] While it may be good business for an insurance agent 

to make such suggestions, absent evidence that an insurance 

agent has agreed to provide advice or the insured was reasonably led by the agent to believe he would receive advice, 

the failure to volunteer information does not constitute either 

negligence or breach of contract for which an insurance agent 

must answer in damages. Polski v. Powers, 221 Neb. 361, 377 

N.W.2d 106 (1985) (although agent may have been aware that 

clients had built new building and were keeping hogs in building, he had no knowledge that they wished to change their 

insurance coverage or to obtain other or different coverage). 

“[I]t would be an unreasonable burden to impose upon insurance agents a duty to anticipate what coverage an individual 

should have, absent the insured’s requesting coverage in at 

least a general way.” Id. at 364, 377 N.W.2d at 108. See, also, 

Flamme v. Wolf Ins. Agency, 239 Neb. 465, 476 N.W.2d 802 

(1991) (no evidence that clients requested underinsured motorist coverage over and above someone else’s liability insurance 

or that agent agreed to obtain such coverage; therefore, agent 

and his agency could not be held liable for failing to obtain 

such coverage).
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As well-stated by the district court in this case:

If it is an unreasonable burden to require insurance 

agents to anticipate what coverage an individual should 

have absent the insured’s request, it would be an equally 

unreasonable burden to require an insurance agent to 

anticipate what steps the insured should take to not 

have the coverage he has already told the agent he does 

not want.

Because Merva had no duty to advise Scott and Karie that 

workers’ compensation insurance was available or necessary, 

their negligence action fails as a matter of law. Further, as 

noted previously, Scott testified as to his own understanding 

that workers’ compensation insurance was not required “on an 

agricultural person.”

Scott and Karie also raise a negligent misrepresentation 

claim, alleging that they were instructed they were not required 

to purchase a workers’ compensation policy and that they 

relied on that advice.

[8] A negligent misrepresentation cause of action does not 

require a request to obtain certain coverage. Flamme, supra. If 

an insurance agent or broker undertakes to advise an insured, 

the agent or broker must use reasonable care to provide accurate information. Id. The Supreme Court in Flamme cited to 

Trotter v. State Farm, 297 S.C. 465, 377 S.E.2d 343 (S.C. App. 

1988), for the foregoing proposition of law.

In Trotter, the client was a business owner who contacted an 

insurance agent to obtain “‘full protection’” on a work truck. 

297 S.C. at 469, 377 S.E.2d at 346. The client filled out an 

application and explained about his business, his employees, 

and how many miles the truck would be driven. The agent 

wrote a commercial policy on the client’s truck and a personal 

policy on his other vehicles. The commercial policy included 

a standard exclusion for any injury to an “‘employee of the 

insured arising out of his or her employment.’” Id. The agent 

neither reviewed the policy with the client, told him about 

the exclusion, discussed other types of insurance, nor asked 
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whether the client needed workers’ compensation insurance. 

The client, likewise, neither asked the agent to assess his insurance needs nor inquired about other types of insurance. The 

client did not communicate a desire for workers’ compensation 

or any other insurance. Their conversation was confined to the 

procurement of insurance on his vehicles.

Later, one of the client’s employees in Trotter was injured in 

an accident while riding in the work truck. The insurance company wrote the client a letter denying coverage for the employee’s injuries due to the exclusion. Until the client received the 

letter, he was unaware of the exclusion, as he had not read 

his policy. The employee sued the client and was eventually 

awarded a judgment for his injuries.

The client in Trotter then brought suit against the agent and 

the insurance company, alleging, in part, that they negligently 

failed to advise him of an exclusion in his motor vehicle insurance policy. A jury verdict was entered for the client. The 

South Carolina Court of Appeals reversed, holding that the 

agent and insurance company were under no duty to advise the 

client of the employee exclusion in his policy or to advise him 

that he needed workers’ compensation insurance. The court 

also held that the client failed to prove the agent undertook to 

advise the client either expressly or impliedly. As to an implied 

undertaking, there was no evidence that (1) the agent received 

consideration beyond a mere payment of the premium, (2) the 

insured made a clear request for advice, or (3) there is a course 

of dealing over an extended period of time which would put 

an objectively reasonable insurance agent on notice that his 

advice is being sought and relied on.

Here, as in Trotter, supra, there is no evidence that Merva 

received consideration beyond the payment of the premium. 

And there was no evidence that Scott and Karie made a clear 

request for advice. While there was a course of dealing over 

an extended period of time in this case, and Merva stated that 

she did recommend workers’ compensation insurance to Scott, 

there is no evidence that Merva’s advice was being relied 
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upon by Scott. In fact, Merva testified that Scott declined the 

workers’ compensation insurance, because it was too expensive, and told her that, by law, he did not have to have workers’ compensation insurance. And Scott testified that he knew 

prior to 2012 that he “didn’t have to have workers’ compensation on an agricultural person.”

[9,10] An insurance agent or broker may be held liable for 

a negligent misrepresentation made to an insured. Flamme v. 

Wolf Ins. Agency, 239 Neb. 465, 476 N.W.2d 802 (1991). In 

order for an insurance agent to be liable for negligent misrepresentation, the client must show that the insurance agent supplied the client with false information upon which the client 

reasonably relied and that the agent failed to exercise reasonable care or competence in communicating such information to 

the client. See Hobbs v. Midwest Ins., Inc., 253 Neb. 278, 570 

N.W.2d 525 (1997).

In order to be liable for negligent misrepresentation, Merva 

must have given Scott and Karie false information, and there is 

no indication that she did so. Scott told Merva that, by law, he 

did not have to have workers’ compensation insurance, and she 

told him that that was true. Her agreement that Scott’s assessment of the law was true did not constitute an instruction that 

he should not purchase a workers’ compensation policy. There 

is no evidence that Merva provided Scott with false information; and for that reason alone, any negligent misrepresentation 

claim fails. Additionally, because Scott knew prior to 2012 

that he did not have to have workers’ compensation insurance 

“on an agricultural person,” he did not reasonably rely on any 

information supplied by Merva; this is another reason why any 

negligent misrepresentation claim fails.

Based on the record before us, even when considering the 

facts most favorable to Scott and Karie, it appears the parties 

discussed workers’ compensation insurance and Scott opted 

to not purchase it because it was too expensive. The record 

shows Scott knew he did not need to carry workers’ compensation insurance; he just did not know about the notice 
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and signature requirements contained in § 48-106(7). When 

Merva agreed with Scott that he was not required to carry 

workers’ compensation insurance, it was not her responsibility 

to further inform Scott that a workers’ compensation statute 

set forth specific steps to be taken when an exempt employer 

chooses not to offer workers’ compensation insurance. As 

aptly noted by Merva and Western Insurors’ counsel at oral 

argument, the Nebraska Workers’ Compensation Act governs 

employers, not insurance agents. The district court was correct 

in stating that to the extent Scott and Merva have a different 

recollection of their communications, that difference does not 

affect the result in this case and is therefore not material. Any 

claim of negligence or negligent misrepresentation fails as a 

matter of law.

CONCLUSION

For the reasons stated above, we affirm the decision of the 

district court granting Merva and Western Insurors’ motion for 

summary judgment.

Affirmed