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North Star Mutual Insurance Company, 

as subrogee of Julie Blazer, appellee, 

v. Travis Stewart, appellant.

___ N.W.2d ___

Filed February 25, 2022. No. S-21-485.

1. Jurisdiction: Appeal and Error. The question of jurisdiction is a 

question of law, which an appellate court resolves independently of the 

trial court.

2. ____: ____. It is the duty of an appellate court to determine whether 

it has jurisdiction over the matter before it, irrespective of whether the 

issue is raised by the parties.

3. Subrogation: Words and Phrases. Generally, subrogation is the right 

of one, who has paid the obligation which another should have paid, to 

be indemnified by the other.

4. Subrogation: Equity: Contracts: Statutes. A right to subrogation may 

arise under principles of equity, may be contractual, or may be set out 

in statute, and no single rule can be laid down which will apply to every 

subrogation claim.

5. Parties. A real party in interest is one who, under the substantive law, 

has a claim to the relief sought. In this way, the real party in interest 

inquiry turns on the substantive law of the claim.

6. Actions: Parties. The purpose of the real party in interest statute is to 

prevent the prosecution of actions by persons who have no right, title, or 

interest in the cause.

7. Actions: Parties: Jurisdiction: Standing. The question whether the 

party who commenced an action has standing and is therefore the real 

party in interest is jurisdictional, and because the requirement of standing is fundamental to a court’s exercise of jurisdiction, either a litigant 

or a court can raise the question of standing at any time.

8. Standing: Jurisdiction: Pleadings: Evidence: Affidavits: Proof: 

Words and Phrases. A court’s consideration of standing will vary 

depending on when the issue is raised during the progression of a 

Nebraska Supreme Court Online Library

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

05/20/2022 08:07 AM CDT
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case. If standing is challenged at the pleadings stage, before an evidentiary hearing and before any evidence outside of the pleadings is admitted, it is deemed a “facial challenge.” In considering a facial challenge, 

a court will typically review only the pleadings to determine whether the 

plaintiff has alleged sufficient facts to establish standing. But when an 

issue of standing is presented and the court holds an evidentiary hearing 

and reviews evidence outside the pleadings, it is considered a “factual 

challenge.” When a factual challenge is made, the party opposing the 

motion must offer affidavits or other relevant evidence to support its 

burden of establishing subject matter jurisdiction.

9. Records: Affidavits: Appeal and Error. An affidavit used as evidence 

in the trial court cannot be considered on appeal of a cause unless it is 

offered in evidence in the trial court and preserved in and made a part of 

the bill of exceptions.

10. Actions: Insurance: Tort-feasors. The insured’s cause of action against 

the tortfeasor cannot be split, and at all times, there is one cause of 

action on the part of the insured against the tortfeasor.

11. ____: ____: ____. When the indemnity paid by the insurer covers only 

part of the loss, leaving a residue to be made good to the insured by the 

wrongdoer, the right of action remains in the insured for the entire loss.

12. ____: ____: ____. The rule against claim splitting is founded on the 

principle that the wrongful act was single and indivisible, and gives 

rise to but one liability. Upon this theory, the splitting of the causes of 

action is avoided and the wrongdoer is not subjected to a multiplicity 

of suits.

13. Actions: Insurance: Tort-feasors: Parties: Statutes. Under statutes 

providing that every action must be prosecuted in the name of the real 

party in interest, if the insurance paid by an insurer covers only a portion 

of the loss, the right of action against the wrongdoer who caused the loss 

remains in the insured for the entire loss, and the action must be brought 

in the name of the insured.

14. Actions: Insurance. When an insurer indemnifies its insured for only 

part of the loss, the insured retains the right of action for the entire loss.

15. Actions: Insurance: Subrogation: Tort-feasors: Parties. When a subrogated insurer has compensated its insured for the entire loss sustained 

as a result of the tortfeasor’s conduct, then the insurer, rather than the 

insured, is the real party in interest in an action to recover from the 

tortfeasor.

16. Actions: Insurance: Subrogation: Notice: Compromise and 

Settlement: Tort-feasors. The rule against claim splitting will not 

apply to prevent an insurer from filing suit in its own name to enforce 

a subrogation claim when, with notice of the subrogation claim, the 
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insured settles with the tortfeasor without protecting the subrogation claim.

Appeal from the District Court for Adams County, Stephen 

R. Illingworth, Judge, on appeal thereto from the County 

Court for Adams County, Michael P. Burns, Judge. Judgment 

of District Court reversed and remanded with directions.

Jared J. Krejci, of Smith, Johnson, Allen, Connick & Hansen, 

for appellant.

Brad Entwistle, of Walentine O’Toole, L.L.P., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Stacy, J.

The issue in this appeal is whether North Star Mutual 

Insurance Company (North Star) violated the rule against 

claim splitting when it filed a subrogation action in its own 

name, without joining its insured. The county court dismissed 

North Star’s complaint without prejudice on that basis, and the 

district court reversed. We now reverse the judgment of the 

district court and remand the matter with directions to affirm 

the judgment of the county court.

BACKGROUND

On or about May 21, 2020, Julie Blazer was operating 

her vehicle in Hastings, Nebraska, when she was struck by a 

pickup truck being operated by Travis Stewart. At the time of 

the accident, Blazer was insured with North Star. It appears 

North Star paid Blazer insurance benefits as a result of the accident, but the amount of any such benefits and the coverage(s) 

under which the benefits may have been paid are not clear on 

this record.

County Court

On August 25, 2020, North Star filed suit against Stewart 

in the county court for Adams County. North Star brought 
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the action in its own name “as subrogee of Julie Blazer,” 

but did not join Blazer as a party. The complaint alleged that 

Blazer and Stewart were involved in a motor vehicle accident 

which was solely and proximately caused by Stewart’s negligence. The complaint further alleged that North Star “issued 

a policy of insurance covering” Blazer and that “as a direct 

and proximate result of [Stewart’s] negligence, [North Star] 

and its Insured incurred damages in the amount of $6,710.00.” 

The complaint contained no allegations describing the nature 

of Blazer’s damages or the nature or amount of insurance 

benefits, if any, paid to Blazer by North Star. Nor is it clear 

from the complaint whether North Star is claiming a right of 

subrogation under the terms of the insurance policy, under a 

Nebraska statute, or under some other legal theory.

Stewart moved to dismiss the complaint, alleging it failed 

to state a claim on which relief could be granted 1 and failed to 

join Blazer as a necessary party plaintiff. 2 The motion asserted 

that Blazer, not North Star, was the real party in interest in any 

negligence action against Stewart arising from the accident 

and that North Star was improperly splitting Blazer’s claim by 

suing separately to recover its subrogation interest.

At the hearing on the motion to dismiss, neither party 

adduced evidence. North Star generally took the position that 

it was allowed to file the action in its own name because 

“this is just a subrogation of a property damage claim for 

North Star” and the subrogation claim was “separate and distinct from any claim that . . . Blazer could have.” The court 

questioned North Star’s counsel about the rule against claim 

splitting, and specifically, it asked whether Blazer intended 

to “forego[]” any claim against Stewart for damages related 

to the accident. Counsel replied, “Your Honor, before we file 

any of these for [North Star], we send a letter to the insured 

asking them if they have any type of personal injury cause 

1 See Neb. Ct. R. Pldg. § 6-1112(b)(6).

2 See § 6-1112(b)(7). See, also, Neb. Rev. Stat. §§ 25-301 and 25-318 

(Reissue 2016).
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of action. And then if we don’t hear back from them we 

just proceed.”

The court took the matter under advisement pending additional briefing. It also advised the parties that if documentation 

was provided showing that Blazer had either signed a release 

in favor of Stewart or was forgoing any additional claim for 

damages against him, “then I maybe . . . would entertain a 

withdrawal of the motion to dismiss.”

Several days later, North Star filed an affidavit from Blazer 

with the clerk of the county court. The affidavit was file 

stamped by the clerk, but there is nothing in the record indicating it was offered or received into evidence. We summarize the 

affidavit here, only to assist in understanding the arguments on 

appeal. According to the affidavit, North Star issued Blazer a 

check for property damage to her vehicle, but the affidavit did 

not identify the amount of the check, the amount of the property damage sustained, or the amount of any deductible. The 

affidavit also stated that Blazer did not intend to file a lawsuit 

against Stewart for “physical injury.”

In its written order granting Stewart’s motion to dismiss, the 

county court stated that Blazer’s affidavit was “not dispositive” 

of the claim-splitting issue. The court cited the rule against 

claim splitting discussed in Krause v. State Farm Mut. Auto 

Ins. Co.

 3 and reasoned that despite the averments in Blazer’s 

affidavit, Blazer could still sue Stewart “in a separate matter, 

for damages claimed as a result of the same accident alleged in 

this case.” The court therefore concluded that Blazer remained 

the real party in interest for the entire action against Stewart, 

and it dismissed North Star’s complaint without prejudice 

for lack of standing. North Star timely appealed to the district court.

3 Krause v. State Farm Mut. Auto Ins. Co., 184 Neb. 588, 169 N.W.2d 601 

(1969) (holding subrogating insurer may not split its insured’s cause of 

action against tortfeasor, and when indemnity paid by insurer covers only 

part of insured’s loss, right of action against tortfeasor remains in insured 

for entire loss).
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District Court

In connection with its appeal to the district court, North Star 

requested preparation of a transcript and bill of exceptions, but 

did not file a statement of errors. Consequently, the district 

court limited its appellate review to plain error. 4 It ultimately 

reversed, finding that it was plain error for the county court to 

apply the rule against claim splitting and that doing so deprived 

North Star of its right to pursue its subrogation claim. The district court generally relied on Blazer’s affidavit to conclude 

that North Star had compensated Blazer for property damage 

to her vehicle and that Blazer was asserting no personal injury 

claims related to the accident. Based on these conclusions, it 

determined there was no concern that North Star was improperly splitting its insured’s claim against Stewart.

Stewart filed a timely appeal, which we moved to our 

docket.

ASSIGNMENTS OF ERROR

Stewart assigns, restated and consolidated, that the district 

court erred in (1) reviewing the county court’s order for plain 

error and finding plain error, (2) considering Blazer’s affidavit 

as evidence, and (3) determining North Star’s action was not 

barred by the Nebraska rule against claim splitting.

STANDARD OF REVIEW

Generally, a district court and a higher appellate court 

review an appeal from the county court for errors appearing on 

the record. 5 When a party appealing from county court to district court fails to file a statement of errors, the district court’s 

review is for plain error. 6 And in appeals where the district 

4 See Neb. Ct. R. § 6-1518 (rev. 2022). See, also, Houser v. American 

Paving Asphalt, 299 Neb. 1, 907 N.W.2d 16 (2018).

5 See Neb. Rev. Stat. § 25-2733(1) (Reissue 2016). See, also, Stuthman v. 

Stuthman, 245 Neb. 846, 515 N.W.2d 781 (1994); State v. Jacobsen, 238 

Neb. 511, 471 N.W.2d 427 (1991).

6 See § 6-1518. See, also, Houser, supra note 4.
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court reviewed for plain error, a higher appellate court likewise 

reviews for plain error only. 7

[1,2] But here, the sole issue presented on appeal is jurisdictional. The question of jurisdiction is a question of law, 

which an appellate court resolves independently of the trial 

court. 8 Because it is the duty of an appellate court to determine 

whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised by the parties, 9 we will not 

limit our appellate review to plain error.

ANALYSIS

North Star filed this negligence action against Stewart in its 

own name, without joining its insured, seeking to recover damages in the sum of $6,710 as a result of the collision between 

Stewart and Blazer. The parties describe this as a subrogation action, and they frame the primary question on appeal as 

whether North Star has standing to bring a subrogation action 

in its own name. Before addressing that jurisdictional issue, we 

question, as a threshold matter, whether this case is properly 

characterized as one to enforce subrogation.

[3,4] Generally, subrogation is the right of one, who has 

paid the obligation which another should have paid, to be 

indemnified by the other. 10 A right to subrogation may arise 

under principles of equity, may be contractual, or may be set 

out in statute, 11 and no single rule can be laid down which 

7 Houser, supra note 4.

8 Federal Nat. Mortgage Assn. v. Marcuzzo, 289 Neb. 301, 854 N.W.2d 774 

(2014).

9 Id.

10 SFI Ltd. Partnership 8 v. Carroll, 288 Neb. 698, 851 N.W.2d 82 (2014); 

Buckeye State Mut. Ins. Co. v. Humlicek, 284 Neb. 463, 822 N.W.2d 351 

(2012).

11 See Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 

N.W.2d 167 (2003), disapproved on other grounds, Kimminau v. Uribe 

Refuse Serv., 270 Neb. 682, 707 N.W.2d 229 (2005).
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will apply to every subrogation claim. 12 From the parties’ briefing, we understand that North Star is claiming it has a right of 

subrogation against Stewart to recover sums it paid to Blazer 

under the terms of her automobile insurance policy as a result 

of loss or damage sustained in the accident. But no such allegations appear in the operative complaint.

In the complaint, North Star describes itself “as subrogee 

of” Blazer, but does not otherwise allege any facts which 

would support a right of subrogation under any recognized 

legal theory. The complaint does not allege that North Star paid 

insurance proceeds, in any amount, to Blazer under the policy 

as a result of damages sustained in the accident. The complaint’s only reference to damages states simply that “[North 

Star] and its Insured incurred damages in the amount of 

$6,710.00” as a result of the collision. Whether North Star is 

claiming to be subrogated to some, or all, of this alleged damage amount is unclear.

However, because North Star describes itself as Blazer’s 

subrogee in the complaint, we will, for purposes of analyzing 

whether North Star is the real party in interest only, accept the 

parties’ characterization of this action as one seeking to recover 

a subrogation interest.

Real Party in Interest and Standing

[5] As framed, the jurisdictional question presented here is 

whether North Star is the real party in interest with standing 

to prosecute this subrogation action in its own name, without 

joining its insured. Nebraska’s real party in interest statute 

provides that “[e]very action shall be prosecuted in the name 

of the real party in interest . . . .” 13 A real party in interest is 

one who, under the substantive law, has a claim to the relief 

12 See Buckeye State Mut. Ins. Co., supra note 10.

13 § 25-301.
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sought. 14 In this way, the real party in interest inquiry turns on 

the substantive law of the claim. 15

[6,7] The purpose of the real party in interest statute is to 

prevent the prosecution of actions by persons who have no 

right, title, or interest in the cause. 16 The question whether the 

party who commenced an action has standing and is therefore 

the real party in interest is jurisdictional, and because the 

requirement of standing is fundamental to a court’s exercise of 

jurisdiction, either a litigant or a court can raise the question of 

standing at any time. 17

[8] A court’s consideration of standing will vary depending 

on when the issue is raised during the progression of a case. If 

standing is challenged at the pleadings stage, before an evidentiary hearing and before any evidence outside of the pleadings 

is admitted, it is deemed a “‘facial challenge.’” 18 In considering a facial challenge, a court will typically review only 

the pleadings to determine whether the plaintiff has alleged 

sufficient facts to establish standing. 19 But when an issue of 

standing is presented and the court holds an evidentiary hearing and reviews evidence outside the pleadings, it is considered 

a “‘factual challenge.’” 20 When a factual challenge is made, 

the party opposing the motion must offer affidavits or other 

relevant evidence to support its burden of establishing subject 

matter jurisdiction. 21

14 SID No. 67 v. State, 309 Neb. 600, 961 N.W.2d 796 (2021).

15 See id.

16 See Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435 

(2018).

17 See id.

18 Id. at 54, 917 N.W.2d at 451, quoting Citizens Opposing Indus. Livestock 

v. Jefferson Cty., 274 Neb. 386, 740 N.W.2d 362 (2007).

19 See Jacobs Engr. Group, supra note 16.

20 Id. at 55, 917 N.W.2d at 452, quoting Washington v. Conley, 273 Neb. 908, 

734 N.W.2d 306 (2007).

21 Jacobs Engr. Group, supra note 16.
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The parties dispute whether this case involves a facial challenge or a factual challenge to North Star’s standing. Their disagreement turns on how we address Blazer’s affidavit. Stewart 

argues that Blazer’s affidavit was not received into evidence 

by the county court and thus cannot be considered part of the 

appellate record, while North Star generally argues that the 

affidavit was considered as evidence by both lower courts and 

should be considered as such by this court.

[9] We agree with Stewart that the affidavit is not properly 

before us on appeal. It is a longstanding rule that an affidavit used as evidence in the trial court cannot be considered 

on appeal of a cause “unless it is offered in evidence in the 

trial court and preserved in and made a part of the bill of 

exceptions.” 22 Blazer’s affidavit was filed with the clerk of the 

county court, but was not received into evidence or made part 

of the bill of exceptions in the trial court. We have said that if 

“an affidavit is not preserved in a bill of exceptions, its existence or contents cannot be known by [an appellate] court.” 23

Because Blazer’s affidavit was not received as evidence by 

the county court and does not appear in the bill of exceptions, 

it cannot be considered as evidence by an appellate court. The 

district court, sitting as an appellate court, should not have 

relied on the affidavit, and we will not rely on it. Consequently, 

there is no evidence in the appellate record related to the 

motion to dismiss for lack of standing, and this appeal presents 

a facial challenge to North Star’s standing, rather than a factual 

challenge. We limit our analysis accordingly.

Nebraska Law Prohibits Claim Splitting

[10-12] The rule against claim splitting is well established 

in Nebraska. 24 In Krause,

 25 we stated that “Nebraska is in 

22 T. S. McShane Co., Inc. v. Dominion Constr. Co., 203 Neb. 318, 321, 278 

N.W.2d 596, 599 (1979).

23 Id.

24 See Schweitz v. Robatham, 194 Neb. 668, 234 N.W.2d 834 (1975).

25 Krause, supra note 3, 184 Neb. at 591, 169 N.W.2d at 603.
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harmony with the prevailing rule in most jurisdictions that the 

insured’s cause of action against the tort-feasor cannot be split 

and that at all times there is one cause of action on the part of 

the insured against the tort-feasor.” We explained that “‘[w]hen 

the indemnity paid by the insurer covers only part of the loss, 

. . . leaving a residue to be made good to the insured by the 

wrongdoer, the right of action remains in the insured for the 

entire loss.’” 26 We also explained:

“In these cases the insured becomes a trustee and holds 

the amount of recovery, equal to the indemnity for the 

use and benefit of the insurer. The rule is founded on the 

principle that the wrongful act was single and indivisible, 

and gives rise to but one liability. Upon this theory[,] the 

splitting of causes of action is avoided and the wrongdoer 

is not subjected to a multiplicity of suits.” 27

[13,14] Krause cited various cases in support of its holding, 

including Shiman Bros. & Co. v. Nebraska Nat. Hotel Co.,

 28

which held:

The applicable rule is: “Under statutes providing that 

every action must be prosecuted in the name of the real 

party in interest, it is generally held that if the insurance 

paid by an insurer covers only a portion of the loss, . . . 

the right of action against the wrongdoer who caused the 

loss remains in the insured for the entire loss, and the 

action must be brought by him in his own name.”

And recently, in Jacobs Engr. Group v. ConAgra Foods 29 we 

summarized the rule against claim splitting by stating that 

“when an insurer indemnifies its insured for only part of the 

loss[,] the insured retains the right of action for the entire loss.”

[15,16] Nebraska cases have recognized two circumstances under which the rule against claim splitting will not 

26 Id. at 593, 169 N.W.2d at 604.

27 Id. (emphasis omitted).

28 Shiman Bros. & Co. v. Nebraska National Hotel Co., 143 Neb. 404, 409, 

9 N.W.2d 807, 811 (1943).

29 Jacobs Engr. Group, supra note 16, 301 Neb. at 57, 917 N.W.2d at 453.
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prevent a subrogated insurer from filing suit in its own name 

to enforce a subrogation interest. In Jelinek v. Nebraska Nat. 

Gas. Co., 30 we held that when a subrogated insurer has compensated its insured for the entire loss sustained as a result 

of the tortfeasor’s conduct, then the insurer, rather than the 

insured, is the real party in interest in an action to recover 

from the tortfeasor. And in Milbank Ins. Co. v. Henry,

 31 we 

allowed an insurer to file suit in its own name to enforce its 

medical payment subrogation after its insured settled with 

and released the tortfeasor without protecting the subrogation interest. Milbank Ins. Co. did not directly address the 

rule against claim splitting, because the issue in that case was 

whether the insurer’s subrogation right could survive separately from the insured’s claim after the insured executed a 

release in favor of the tortfeasor. But in concluding that the 

insurer’s right of subrogation survived the insured’s settlement made with notice of the unresolved subrogation claim, 

we noted that settling the insured’s claim without protecting 

the insurer’s subrogation claim “‘was equivalent to express 

consent to a splitting of the cause of action.’” 32 In that regard, 

our reasoning in Milbank Ins. Co. is consistent with the generally recognized principle that the rule against claim splitting 

does not apply to prevent an insurer from filing suit in its own 

name to enforce a subrogation claim when, with notice of the 

subrogation claim, the insured settles with the tortfeasor without protecting the subrogation. 33

30 Jelinek v. Nebraska Nat. Gas. Co., 196 Neb. 488, 243 N.W.2d 778 (1976).

31 Milbank Ins. Co. v. Henry, 232 Neb. 418, 441 N.W.2d 143 (1989).

32 Id. at 422, 441 N.W.2d at 146.

33 See, generally, 17 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 

3d, § 241:36 at 241-52 (2005) (noting that if subrogated insurer pays only 

portion of loss sustained by insured, then insured remains real party in 

interest for entire action “except where the insured has parted with all 

beneficial interest in the right of action, where the insured, after settling 

with the wrongdoer out of court, arbitrarily refuses to bring the action, or 

where there is no real possibility of another action by the insured”).
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With this background in mind, we consider how the rule 

against claim splitting impacts determination of the real party 

in interest in this action against Stewart. North Star generally relies on Blazer’s affidavit to argue that the rule against 

claim splitting is not implicated because Blazer has been fully 

compensated for all loss sustained in the accident. We do not 

address that argument because, as already explained, the affidavit is not before us on appeal.

Rather, this case presents a facial challenge to standing, and 

to resolve such a challenge, a court reviews the pleadings to 

determine whether there are sufficient allegations to establish 

standing, accepting the allegations of the complaint as true 

and drawing all reasonable inferences in favor of the nonmoving party. 34

Complaint Does Not Show North Star 

Is Real Party in Interest

In the complaint, North Star purports to bring the negligence action against Stewart as Blazer’s “subrogee” to recover 

damages caused by the accident. Under the rule against claim 

splitting, and even assuming North Star has a valid subrogation interest under some theory, Blazer is the real party in 

interest for the entire action against Stewart, not North Star. 35

Moreover, the complaint contains no facts suggesting that any 

exception to the rule against claim splitting applies here. North 

Star’s complaint does not allege that it has compensated Blazer 

for any of the damage or loss she sustained in the accident, let 

alone fully compensated her for all sustained damage or loss. 36

Nor is there an allegation that Blazer settled with Stewart 

without protecting North Star’s subrogation interest. 37 As to 

34 Jacobs Engr. Group, supra note 16.

35 See, id.; Krause, supra note 3; Shiman Bros. & Co., supra note 28.

36 See Jelinek, supra note 30.

37 See, Milbank Ins. Co., supra note 31; 17 Couch on Insurance 3d, supra

note 33.
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damages, the only allegation in the complaint is that “as a direct 

and proximate result of [Stewart’s] negligence, [North Star] 

and its Insured incurred damages in the amount of $6,710.00.” 

At best, this suggests that both the insured and the subrogated 

insurer are entitled to recovery against Stewart, and under that 

circumstance, the rule against claim splitting applies.

On appeal, North Star generally concedes it has not alleged 

facts suggesting that its insured has been fully compensated 

for all loss sustained in the accident. But it argues that other 

insurers, including the insurer defending Stewart in this case, 

regularly file subrogation actions in their own name without 

joining the insured and without affirmatively alleging that the 

insured has been fully compensated. We have no evidence of 

such in our record, but even if we did, the argument that it 

is commonplace to disregard the rule against claim splitting 

is not one we find persuasive. The question whether a party 

who commences an action has standing to bring the action is 

fundamental to a court’s exercise of jurisdiction, 38 and courts 

are not free to disregard the question just because the parties have.

Viewed in the light most favorable to North Star, the allegations of the complaint are insufficient to demonstrate that 

North Star has standing to commence this action in its own 

name. We therefore agree with the county court that under the 

rule against claim splitting, North Star’s insured is the real 

party in interest in this action. On this record, the district court 

erred in concluding otherwise.

For the sake of completeness, we note that under Nebraska’s 

real party in interest statute, an action “shall not be dismissed 

on the ground that it is not prosecuted in the name of the 

real party in interest until a reasonable time has been allowed 

after objection for joinder or substitution of the real party in 

interest.” 39 Here, the county court dismissed the complaint 

38 See Jacobs Engr. Group, supra note 16.

39 § 25-301.
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without prejudice, but did not expressly allow time for North 

Star to file an amended complaint seeking to join or substitute Blazer.

North Star has not assigned error to the dismissal procedure, 

and, as a practical matter, the dismissal without prejudice does 

not preclude North Star from filing a new complaint. But the 

better practice would have been for the court to allow North 

Star a reasonable period of time to file an amended complaint 

either joining or substituting the real party in interest, before 

dismissing the action on the basis it was not being prosecuted 

in the name of the real party in interest.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the 

district court and remand the matter with directions to affirm 

the judgment of the county court.

Reversed and remanded with directions.