- 629 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.

Cite as 312 Neb. 629

Millard Gutter Company, a corporation 

doing business as Millard Roofing and 

Gutter, appellant, v. Farm Bureau 

Property & Casualty Insurance 

Company, appellee.

___ N.W.2d ___

Filed October 14, 2022. No. S-19-1089.

1. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s 

grant of a motion to dismiss on the pleadings is reviewed de novo by 

an appellate court, accepting the factual allegations in the complaint as 

true and drawing all reasonable inferences of law and fact in favor of the 

nonmoving party.

2. Actions: Parties: Standing: Judgments: Jurisdiction: Appeal and 

Error. Whether a party who commences an action has standing and is 

therefore the real party in interest presents a jurisdictional issue. When a 

jurisdictional question does not involve a factual dispute, determination 

of the issue is a matter of law which requires an appellate court to reach 

a conclusion independent from the trial court.

3. Pleadings: Appeal and Error. An order of the district court requiring a 

complaint to be made more definite will be sustained on appeal unless it 

clearly appears that the court abused its discretion.

4. Judges: Words and Phrases. A judicial abuse of discretion exists when 

the reasons or rulings of a trial judge are clearly untenable, unfairly 

depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

5. Standing: Jurisdiction: Parties. Standing is a jurisdictional component 

of a party’s case, and courts must address it as a threshold matter.

6. Motions to Dismiss: Jurisdiction: Pleadings. When a motion to dismiss raises both subject matter jurisdiction and failure to state a claim 

as grounds for dismissal, the court should consider the jurisdictional 

grounds first and should consider whether the complaint states a claim 

for relief only if it has determined that it has subject matter jurisdiction.

Nebraska Supreme Court Online Library

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

10/28/2022 09:04 AM CDT
- 630 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.

Cite as 312 Neb. 629

7. Standing: Pleadings: Evidence: Words and Phrases. When 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.

8. Standing: Pleadings: Proof. When considering a facial challenge to 

standing, the trial court will typically review only the pleadings to 

determine whether the plaintiff has alleged sufficient facts to establish standing.

9. Insurance: Parties: Standing. Only a policyholder has standing to 

bring a first‐party bad faith claim against an insurer.

10. Torts: Assignments. The proceeds from personal injury tort actions may 

be validly assigned, but the right to prosecute the tort action cannot.

11. ____: ____. The right to prosecute a tort action for first‐party bad faith 

cannot be validly assigned.

12. Pleadings: Rules of the Supreme Court. The purpose of a motion for a 

more definite statement under Neb. Ct. R. Pldg. § 6‐1112(e) is to enable 

movants to obtain the information reasonably needed to frame a responsive pleading.

13. Pleadings: Rules of the Supreme Court: Pretrial Procedure. Motions 

for a more definite statement under Neb. Ct. R. Pldg. § 6‐1112(e) should 

not be used as a substitute for discovery; but if additional detail is 

needed to make a vague complaint intelligible, or to enable the movant 

to determine the availability of an affirmative defense, the fact that such 

detail can be obtained through discovery should not preclude providing 

it in response to a motion for a more definite statement, so long as the 

detail is reasonably needed to frame a responsive pleading.

14. Pleadings: Rules of the Supreme Court. One moving for a more 

definite statement under Neb. Ct. R. Pldg. § 6‐1112(e) must identify the 

alleged deficiencies in the pleading, specify the details being requested, 

and assert the inability to prepare a responsive pleading without the 

requested details. These requirements are designed to enable the trial 

court to test the propriety of the motion so that an order can be entered 

consistent with the limited purpose of such motions.

15. ____: ____. Motions for more definite statements under Neb. Ct. R. 

Pldg. § 6‐1112(e) are addressed to the sound discretion of the trial court.

16. Pleadings: Dismissal and Nonsuit: Time. The failure to file an 

amended pleading within the time specified by the court’s order is a 

basis for dismissing the action without prejudice under Neb. Rev. Stat. 

§ 25‐601(5) (Reissue 2016). Not only may a court sua sponte dismiss an 

action without prejudice under § 25‐601(5), but a defendant may file a 

motion to dismiss under that subsection.
- 631 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.

Cite as 312 Neb. 629

17. Courts: Dismissal and Nonsuit. In addition to the statutory authority 

under Neb. Rev. Stat. § 25‐601 (Reissue 2016), trial courts have the 

inherent authority to dismiss an action for violation of a court order.

18. Pleadings: Rules of the Supreme Court: Dismissal and Nonsuit: 

Time. When an order to make more definite is not obeyed within 

the time fixed by the court, Neb. Ct. R. Pldg. § 6‐1112(e) authorizes 

a trial court to strike the pleading or make such order as it deems 

just. Dismissal is an available sanction under such a provision and is 

reviewed for an abuse of discretion.

Petition for further review from the Court of Appeals, 

Pirtle, Chief Judge, and Moore and Riedmann, Judges, on 

appeal thereto from the District Court for Douglas County, 

Kimberly Miller Pankonin, Judge. Judgment of Court of 

Appeals affirmed in part, and in part reversed and remanded 

with directions.

Theodore R. Boecker, Jr., of Boecker Law, P.C., L.L.O., for 

appellant.

Michael T. Gibbons and Raymond E. Walden, of Woodke & 

Gibbons, P.C., L.L.O., for appellee.

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

Papik, and Freudenberg, JJ.

Stacy, J.

In connection with a 2013 storm, Millard Gutter Company 

(Millard Gutter) obtained assignments of the right to insurance proceeds due under policies issued by Farm Bureau 

Property & Casualty Insurance Company (Farm Bureau). 

Millard Gutter then filed suit against Farm Bureau in its own 

name, as assignee, seeking to recover damages for breach of 

the insurance contracts and for first‐party bad faith in failing to settle the insurance claims. In response to preanswer 

motions, the district court dismissed the claims of first‐party 

bad faith for lack of standing and ordered Millard Gutter to 

file an amended complaint providing additional detail on the 

remaining claims. When no amended complaint was filed, the 
- 632 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.

Cite as 312 Neb. 629

court sua sponte entered an order dismissing the entire action 

without prejudice.

Millard Gutter appealed, and the Nebraska Court of Appeals 

reversed. 1 We granted Farm Bureau’s petition for further 

review. Consistent with our opinion released today in Millard 

Gutter Co. v. Shelter Mut. Ins. Co. (Shelter), 2 we now in part 

reverse the Court of Appeals’ decision and remand the matter 

to the Court of Appeals with directions to affirm the district 

court’s dismissal of the first‐party bad faith claims for lack 

of standing. We otherwise affirm the decision of the Court 

of Appeals.

I. BACKGROUND

1. Original Complaint and 

Preanswer Motions

On April 9, 2018, Millard Gutter filed a complaint against 

Farm Bureau in the district court for Douglas County. The 

complaint alleged that Millard Gutter was bringing the action 

as “the assignee of various insured property owners, who purchased insurance from [Farm Bureau].” Without identifying the 

policyholders or the policies, the complaint alleged that “due 

to a storm occurring in 2013,” various property owners sustained property loss that was covered under the Farm Bureau 

policies. It alleged that the property owners “assigned their 

right to any proceeds under policies of insurance” to Millard 

Gutter. The assignments were not attached to the complaint, 

and neither the date of the storm nor the dates of the assignments were alleged.

According to the complaint, Farm Bureau was given copies of the assignments, and claims were made for insurance 

proceeds owed under the policies. The complaint alleged that 

Farm Bureau “breached the policies by failing to pay Millard 

1 Millard Gutter Co. v. Farm Bureau Prop. & Cas. Ins. Co., 29 Neb. App. 

678, 958 N.W.2d 440 (2021).

2 Millard Gutter Co. v. Shelter Mut. Ins. Co., ante p. 606, ___ N.W.2d ___ 

(2022).
- 633 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.

Cite as 312 Neb. 629

[Gutter] all benefits due and owing under the policies.” It also 

alleged that Farm Bureau “wrongfully retained money due 

to Millard [Gutter] and engaged in an unreasonable delay of 

payment” and that “[a]s a direct and proximate result of the 

bad faith conduct of Farm Bureau,” Millard Gutter sustained 

harm. The complaint sought general and special damages in 

an unspecified amount, as well as attorney fees and prejudgment interest.

Farm Bureau responded to the complaint by filing several 

preanswer motions, none of which were included in the appellate record. However, as relevant to the issues on appeal, other 

portions of the record indicate that Farm Bureau filed (1) a 

motion to dismiss the bad faith claims for lack of standing and 

(2) a motion for a more definite statement regarding the breach 

of contract claims.

2. Amended Complaint

On the same day the hearing was held on Farm Bureau’s 

preanswer motions, Millard Gutter filed an amended complaint. 

Our record indicates that all of Farm Bureau’s preanswer 

motions were deemed to relate to the amended complaint. The 

amended complaint was nearly identical to the original complaint, except it identified, by name and street address, 20 Farm 

Bureau policyholders in Omaha, Nebraska. It alleged these 

policyholders suffered property damage in a hailstorm occurring on April 9, 2013, after which they “assigned their right to 

any proceeds under policies of insurance” to Millard Gutter “in 

consideration for [Millard Gutter’s] agreeing to perform necessary repair work, which was accomplished . . . thereafter.” 

None of the assignments were attached.

3. Hearing and Order on 

Preanswer Motions

Our appellate record does not include the bill of exceptions 

from the hearing held on Farm Bureau’s preanswer motions. As 

such, the arguments advanced by the parties can be discerned 

only to the extent they are referenced in the court’s written 
- 634 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.

Cite as 312 Neb. 629

order ruling on the motions. That order does not reference any 

evidence adduced at the hearing, so we necessarily assume the 

court confined its analysis to the face of the amended complaint. We limit our review accordingly.

(a) Standing to Assert First‐Party 

Bad Faith Claims

Farm Bureau moved to dismiss the first‐party bad faith 

claims for lack of standing. According to the written order, 

Farm Bureau argued that Millard Gutter lacked standing to 

assert first‐party bad faith claims because (1) only policyholders have standing to assert first‐party bad faith claims under 

Nebraska law and (2) the assignments did not create standing 

to assert claims of first‐party bad faith because, even if such 

claims could be validly assigned, the complaint contained 

no factual allegations suggesting the assignments from Farm 

Bureau’s policyholders included a present interest in such 

claims. Farm Bureau also argued the complaint contained 

insufficient factual allegations to state claims for first‐party 

bad faith.

The district court’s order addressed only the standing arguments. First, it recited the rule from Braesch v. Union Ins. Co. 3

that only policyholders have standing to assert a first‐party bad 

faith claim. Because Millard Gutter had not alleged it was a 

Farm Bureau policyholder, the district court concluded Millard 

Gutter lacked “standing to assert a traditional first‐party bad 

faith claim” under Nebraska law.

Next, the court considered whether Millard Gutter had sufficiently alleged standing, as an assignee, to assert first‐party bad 

faith claims against Farm Bureau. It observed that this court 

“has not explicitly ruled on the assignability of bad faith claims 

nor on the requirements for such an assignment,” and it also 

observed the general rule that only a “‘present interest’” can 

3 Braesch v. Union Ins. Co., 237 Neb. 44, 464 N.W.2d 769 (1991), 

disapproved on other grounds, Wortman v. Unger, 254 Neb. 544, 578 

N.W.2d 413 (1998).
- 635 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.

Cite as 312 Neb. 629

be validly assigned. 4 It then examined the face of the amended 

complaint and noted allegations that the right to “proceeds 

under policies of insurance” had been assigned, but it found 

no allegations suggesting that any policyholder had a present 

interest in a tort action for first‐party bad faith, or had assigned 

such an interest to Millard Gutter. The court therefore concluded that Millard Gutter had not sufficiently alleged it had 

standing to assert any first‐party bad faith claims as assignee, 

and it dismissed such claims without prejudice.

(b) Motion for More Definite Statement

According to the district court’s order, Farm Bureau’s motion 

to make more definite was directed only to the breach of contract claims. The court granted that motion, stating:

Farm Bureau also seeks an order requiring Millard 

Gutter to make a more definite and certain statement as 

to the date of the alleged breaches of contract so that 

Farm Bureau can assess any potential statute of limitations defenses. This motion is sustained. Millard Gutter 

is ordered to file [a second] amended complaint within 

30 days from the date this order is filed including a more 

definite statement as to when the alleged breach of contract is claimed to have occurred as to each insured.

It is undisputed that Millard Gutter did not file a second 

amended complaint within 30 days or at any other point during 

the pendency of the case.

4. Sua Sponte Order of Dismissal

In October 2019, almost 6 months after ordering Millard 

Gutter to file a second amended complaint, the court entered 

4 See, Krohn v. Gardner, 248 Neb. 210, 533 N.W.2d 95 (1995) (holding 

assignment must transfer present interest in debt, fund, or subject matter); 

Craig v. Farmers Mut. Ins. Co., 239 Neb. 271, 273, 476 N.W.2d 529, 532 

(1991) (holding transaction is assignment only when assignor intends “‘to 

transfer a present interest in the debt or fund or subject matter’”). See, 

also, Neb. Rev. Stat. § 25‐304 (Reissue 2016) (“[a]ssignees of choses 

in action assigned for the purpose of collection may sue on any claim 

assigned in writing”).
- 636 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.

Cite as 312 Neb. 629

an order, sua sponte, dismissing the entire action without prejudice. In doing so, the order recited the procedural history of the 

case, and it noted that Millard Gutter had been ordered to file 

a second amended complaint and had failed to do so within the 

time fixed by the court. 5 Millard Gutter did not move to vacate 

the dismissal and reinstate the case, and instead, it timely 

appealed from the order of dismissal.

5. Court of Appeals

Before the Court of Appeals, Millard Gutter assigned, 

restated, that the district court erred by (1) dismissing the 

first‐party bad faith claims for lack of standing, (2) granting 

the motion to make more definite and ordering Millard Gutter 

to file a second amended complaint alleging the dates of the 

alleged breaches of contract, and (3) sua sponte dismissing the 

amended complaint without notice or a hearing.

In its analysis, the Court of Appeals agreed with the district 

court that because Millard Gutter was not a policyholder and 

had no contractual relationship with Farm Bureau, it lacked 

standing under Braesch to assert a “traditional first‐party bad 

faith claim against Farm Bureau.” 6 It also agreed with the 

district court that, to the extent Millard Gutter was claiming 

it had standing to assert the bad faith claims by virtue of the 

assignments, no Nebraska appellate court had yet “ruled on 

the assignability of bad faith claims or on the requirements for 

such an assignment.” 7 But the Court of Appeals determined it 

was not necessary to conclusively decide the assignability issue 

in this case, reasoning that under Nebraska’s liberal notice 

pleading standards, Millard Gutter had stated a plausible claim 

for first‐party bad faith. It ultimately determined the allegations 

5 See, generally, Neb. Rev. Stat. § 25‐601 (Reissue 2016) (“action may 

be dismissed without prejudice to a future action . . . by the court for 

disobedience by the plaintiff of an order concerning the proceedings in the 

action”).

6 Millard Gutter Co., supra note 1, 29 Neb. App. at 683, 958 N.W.2d at 445.

7 Id.
- 637 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.

Cite as 312 Neb. 629

of the amended complaint were sufficient to withstand a motion 

to dismiss, reasoning:

Upon our de novo review, accepting the allegations in 

the amended complaint as true and drawing all reasonable 

inferences in favor of Millard Gutter, we determine that 

for the purposes of a motion to dismiss, Millard Gutter 

has sufficiently pled a bad faith claim under Nebraska 

law. The amended complaint specifically alleges that 

Farm Bureau failed to make payments for the insureds’ 

losses, failed to recognize the validity of the assignments, 

and failed to act in good faith. These pleadings are sufficient to give Farm Bureau fair notice of the claims 

asserted against it. . . .

The district court correctly ascertained that at this point 

in the case, it is unclear whether the alleged assignments 

to Millard Gutter specifically include any tort claims or 

interest in the homeowners’ insurance policies. However, 

this information can be determined during the discovery process. If at some point in the future, Farm Bureau 

learns that some or all of the insureds at issue did not 

validly assign to Millard Gutter the right to pursue bad 

faith tort claims related to their insurance policies, then an 

appropriate motion may be filed at that time.

Therefore, we conclude that the district court erred in 

granting Farm Bureau’s motion to dismiss the bad faith 

claims. 8

The Court of Appeals also found merit in Millard Gutter’s 

second assignment of error, which argued the district court 

abused its discretion by requiring Millard Gutter to amend the 

complaint to specify the dates on which the alleged breaches of 

contract occurred. The Court of Appeals disagreed with the district court’s conclusion that the additional detail was necessary 

to allow Farm Bureau to identify potential statute of limitations 

defenses when framing its responsive pleading. It noted the 

8 Id. at 684, 958 N.W.2d at 445‐46.
- 638 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.

Cite as 312 Neb. 629

limitations period for breach of contract claims is 5 years, 9 and 

Millard Gutter’s operative complaint alleged the storm damage occurred on April 9, 2013. Millard Gutter’s lawsuit was 

filed on April 9, 2018‐‐exactly 5 years after the alleged storm 

damage occurred. Reasoning that none of the alleged breaches 

could possibly have occurred before the storm, the Court of 

Appeals concluded that no breach would “fall outside the statute of limitations period.” 10 It thus determined the district court 

had abused its discretion in granting the motion to make more 

definite and requiring Millard Gutter to file an amended complaint identifying the dates on which Farm Bureau breached the 

insurance agreements.

Because of its disposition on Millard Gutter’s first two 

assignments of error, the Court of Appeals deemed it unnecessary to consider the final assignment of error. It therefore 

reversed the district court’s order and remanded the matter for 

further proceedings consistent with its opinion.

We granted Farm Bureau’s petition for further review and 

ordered supplemental briefing at the discretion of the parties. 

Only Farm Bureau filed a supplemental brief.

II. ASSIGNMENTS OF ERROR

On further review, Farm Bureau assigns, restated, that the 

Court of Appeals erred in (1) reversing the district court’s dismissal of Millard Gutter’s bad faith claims for lack of standing and (2) finding it was an abuse of discretion to grant the 

motion for a more definite statement regarding the dates of the 

alleged breaches of the insurance contracts.

III. STANDARD OF REVIEW

[1] A district court’s grant of a motion to dismiss on the 

pleadings is reviewed de novo by an appellate court, accepting 

the factual allegations in the complaint as true and drawing all 

9 See Neb. Rev. Stat. § 25‐205 (Reissue 2016).

10 Millard Gutter Co., supra note 1, 29 Neb. App. at 686, 958 N.W.2d at 446.
- 639 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.

Cite as 312 Neb. 629

reasonable inferences of law and fact in favor of the nonmoving party. 11

[2] Whether a party who commences an action has standing 

and is therefore the real party in interest presents a jurisdictional issue. 12 When a jurisdictional question does not involve 

a factual dispute, determination of the issue is a matter of law 

which requires an appellate court to reach a conclusion independent from the trial court. 13

[3,4] An order of the district court requiring a complaint to 

be made more definite will be sustained on appeal unless it 

clearly appears that the court abused its discretion. 14 A judicial 

abuse of discretion exists when the reasons or rulings of a trial 

judge are clearly untenable, unfairly depriving a litigant of a 

substantial right and denying just results in matters submitted 

for disposition. 15

IV. ANALYSIS

1. Standing to Assert Claim 

of First‐Party Bad Faith

When reviewing the district court’s dismissal of the 

first‐party bad faith claims, the Court of Appeals focused on 

whether Millard Gutter’s amended complaint alleged a plausible claim of first‐party bad faith under Nebraska’s liberal 

notice pleading rules. But we begin our analysis by focusing on 

whether Millard Gutter is the real party in interest with standing to assert such a claim.

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

12 See Valley Boys v. American Family Ins. Co., 306 Neb. 928, 947 N.W.2d 

856 (2020).

13 Id.

14 See Christianson v. Educational Serv. Unit No. 16, 243 Neb. 553, 501 

N.W.2d 281 (1993).

15 George Clift Enters. v. Oshkosh Feedyard Corp., 306 Neb. 775, 947 

N.W.2d 510 (2020).
- 640 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.

Cite as 312 Neb. 629

[5,6] Standing is a jurisdictional component of a party’s 

case, and courts must address it as a threshold matter. 16 When a 

motion to dismiss raises both lack of subject matter jurisdiction 

and failure to state a claim as grounds for dismissal, the court 

should consider the jurisdictional grounds first and should consider whether the complaint states a claim for relief only if it 

has determined that it has subject matter jurisdiction. 17 In other 

words, before considering whether Millard Gutter sufficiently 

pled claims of first‐party bad faith, we must first determine 

whether Millard Gutter is the proper party to assert such claims 

under the substantive law. 18

[7,8] As noted, Farm Bureau’s challenge to Millard Gutter’s 

standing was raised and resolved at the pleading stage. When 

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.’” 19 When 

considering a facial challenge to standing, the trial court will 

typically review only the pleadings to determine whether the 

plaintiff has alleged sufficient facts to establish standing. 20

When the Court of Appeals issued its opinion in this case, 

it did not have the benefit of our recent decision in Shelter.

 21

In that case, as in this one, Millard Gutter obtained assignments 

of the right to insurance proceeds from various policyholders, 

and then it filed suit against the insurer in its own name, as 

16 See, Continental Resources v. Fair, 311 Neb. 184, 971 N.W.2d 313 (2022); 

In re Guardianship of Nicholas H., 309 Neb. 1, 958 N.W.2d 661 (2021); 

Egan v. County of Lancaster, 308 Neb. 48, 952 N.W.2d 664 (2020).

17 See, SID No. 67, supra note 11; Anderson v. Wells Fargo Fin. Accept., 269 

Neb. 595, 694 N.W.2d 625 (2005).

18 See Egan, supra note 16. See, also, Neb. Ct. R. Pldg. § 6‐1109(a) (rev. 

2008) (“[i]t is not necessary to aver the capacity . . . or the authority of a 

party to sue . . . except to the extent required to show the jurisdiction of 

the court”).

19 SID No. 67, supra note 11, 309 Neb. at 606, 961 N.W.2d at 802.

20 Id.

21 Shelter, supra note 2.
- 641 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.

Cite as 312 Neb. 629

assignee, seeking to recover damages for breaches of the insurance contracts and for first‐party bad faith in failing to settle 

the insurance claims. The district court in Shelter dismissed 

the bad faith claims for lack of standing, and we affirmed that 

dismissal on appeal.

[9] In Shelter, we noted that under Nebraska case law, only 

a policyholder has standing to bring a first‐party bad faith 

claim. 22 Millard Gutter did not claim to be a policyholder; 

instead, it asserted that it had standing to bring the first‐party 

bad faith claims by virtue of the postloss assignments from the 

policyholders. We thus framed the issue in Shelter as whether a 

policyholder could validly assign, to a policyholder, a cause of 

action for the tort of first‐party bad faith. To answer that question, we turned to our case law governing the assignability of 

tort claims generally.

[10,11] Shelter explained that under the rule announced in 

Mutual of Omaha Bank v. Kassebaum,

 23 the proceeds from personal injury tort actions may be validly assigned, but the right 

to control such an action cannot. Applying this rule in Shelter, 

we held that even assuming without deciding that the proceeds 

from a cause of action for first‐party bad faith could be validly 

assigned, the right to prosecute such an action could not. 24 As 

such, the policyholders in Shelter remained the real parties 

in interest under the substantive law and were the only ones 

with standing to assert claims of first‐party bad faith against 

the insurer.

Here, just as in Shelter, regardless of their validity for other 

purposes, the assignments from Farm Bureau’s policyholders 

could not, as a matter of law, give Millard Gutter standing 

to prosecute any tort actions for first‐party bad faith against 

Farm Bureau. We thus agree with the district court that Millard 

22 See Braesch, supra note 3.

23 Mutual of Omaha Bank v. Kassebaum, 283 Neb. 952, 814 N.W.2d 731 

(2012).

24 Shelter, supra note 2.
- 642 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.

Cite as 312 Neb. 629

Gutter’s amended complaint did not contain sufficient factual 

allegations to establish that it was the real party in interest with 

standing to assert the first‐party bad faith claims. We reverse 

the Court of Appeals’ decision on this issue and remand the 

matter with directions to affirm the district court’s dismissal of 

the first‐party bad faith claims for lack of standing.

2. More Definite Statement on 

Breach of Contract Claims

On further review, Farm Bureau also argues the Court of 

Appeals erred when it found the district court abused its discretion by sustaining the motion for a more definite statement. 

Motions for a more definite statement are governed by Neb. Ct. 

R. Pldg. § 6‐1112(e), which states:

If a pleading to which a responsive pleading is permitted 

is so vague or ambiguous that a party cannot reasonably 

be required to frame a responsive pleading, the party 

may move for a more definite statement before interposing a responsive pleading. The motion shall point out 

the defects complained of and the details desired. If the 

motion is granted and the order of the court is not obeyed 

within 10 days or within such time as the court may fix, 

the court may strike the pleading or make such order as 

it deems just.

[12,13] The purpose of a motion for a more definite statement is to enable movants to obtain the information reasonably needed to frame a responsive pleading. 25 Motions for a 

more definite statement should not be used as a substitute for 

discovery; but if additional detail is needed to make a vague 

complaint intelligible, or to enable the movant to determine the 

availability of an affirmative defense, the fact that such detail 

can be obtained through discovery should not preclude providing it in response to a motion for a more definite statement, 

25 See, 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and 

Procedure § 1376 (3d ed. 2004 & Supp. 2022); John P. Lenich, Nebraska 

Civil Procedure § 11:10 (2022).
- 643 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.

Cite as 312 Neb. 629

so long as the detail is reasonably needed to frame a responsive pleading. 26

[14,15] One moving for a more definite statement must 

identify the alleged deficiencies in the pleading, specify the 

details being requested, and assert the inability to prepare 

a responsive pleading without the requested details. 27 These 

requirements are designed to enable the trial court to test the 

propriety of the motion so that an order can be entered consistent with the limited purpose of such motions. 28 Motions for 

more definite statements are addressed to the sound discretion 

of the trial court. 29

As noted, Farm Bureau’s motion for a more definite statement was not included in our appellate transcript and no party 

requested preparation of a bill of exceptions. All we have available to review is the district court’s written order, which recited 

that Farm Bureau’s motion sought “a more definite and certain 

statement as to the date of the alleged breaches of contract so 

that Farm Bureau can assess any potential statute of limitations 

defenses.” To the extent Farm Bureau may have identified 

other deficiencies in its motion, or offered other reasons during 

the hearing for why it needed to know the dates of the alleged 

breaches to frame a responsive pleading, such matters are outside the limited record presented for our review.

On this record, the Court of Appeals concluded the district 

court abused its discretion by ordering Farm Bureau to amend 

the complaint within 30 days to provide “a more definite statement as to when the alleged breach of contract is claimed to 

have occurred as to each insured.” It reasoned that even without the additional detail requested, Farm Bureau could assess 

any potential statute of limitations defenses because the earliest date that any of the breach of contract claims could have 

26 See, id.

27 See 5C Wright & Miller, supra note 25, § 1378.

28 Id.

29 Vodehnal v. Grand Island Daily Independent, 191 Neb. 836, 218 N.W.2d 

220 (1974).
- 644 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.

Cite as 312 Neb. 629

accrued was the date of the storm that caused the property 

damage (alleged to be April 9, 2013, as to each policyholder), 

and suit was filed within 5 years of that date. As such, the 

Court of Appeals concluded that even though Millard Gutter’s 

breach of contract claims may span a period of several years, 

none of those claims could have accrued more than 5 years 

before suit was commenced.

We agree with the Court of Appeals that the allegations of 

the amended complaint were sufficient to allow Farm Bureau 

to assess whether it had a statute of limitations defense to the 

breach of contract claims. Our record on appeal does not contain any other rationale advanced for requiring Millard Gutter 

to file a second amended complaint specifying the dates of the 

alleged breaches. We thus agree it was an abuse of discretion to 

sustain the motion for a more definite statement on the grounds 

the additional detail was necessary for Farm Bureau to frame a 

responsive pleading. Farm Bureau’s arguments to the contrary 

are without merit.

3. Millard Gutter’s Remaining 

Assignment of Error

Before the Court of Appeals, Millard Gutter assigned error 

to the district court’s sua sponte dismissal of the entire action. 

The Court of Appeals declined to consider this assignment, 

reasoning that its disposition of the other assignments of error 

made it unnecessary.

On further review, we have discretion to consider, as we 

deem appropriate, some or all of the assignments of error the 

Court of Appeals did not reach. 30 We think it is appropriate to 

briefly address the dismissal order and to reverse it in part to 

facilitate further proceedings on remand.

As we read the sua sponte dismissal order, it was premised 

exclusively on Millard Gutter’s failure to obey the order to 

make more definite within the time fixed by the court, and it 

dismissed the entire action on that basis. To the extent Millard 

30 See Signal 88 v. Lyconic, 310 Neb. 824, 969 N.W.2d 651 (2022).
- 645 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.

Cite as 312 Neb. 629

Gutter argues on appeal that trial courts lack the authority 

to sua sponte dismiss a case under such circumstances, it 

is incorrect.

[16‐18] The failure to file an amended pleading within the 

time specified by the court’s order is a basis for dismissing the 

action without prejudice under § 25‐601(5). 31 We have stated 

that not only may a court sua sponte dismiss an action without 

prejudice under § 25‐601(5), but a defendant may file a motion 

to dismiss under that subsection, too. 32 And in addition to the 

statutory authority under § 25‐601, we have long recognized 

that courts have inherent authority to dismiss an action for violation of a court order. 33 Moreover, § 6‐1112(e) of the pleading 

rules authorizes a trial court to “strike the pleading or make 

such order as it deems just” if an order to make more definite 

is not obeyed within the time fixed by the court. Dismissal is 

generally considered an available sanction under such a provision and is reviewed for an abuse of discretion. 34

The available sanctions for failing to comply with an order 

to make more definite are well established and well known 

to the practicing bar. A party who ignores such an order and 

takes no further action in the case, allowing it to languish on 

the court’s docket, risks the possibility that such conduct may 

result in sua sponte dismissal of the case as a sanction for the 

31 See Bert Cattle Co. v. Warren, 238 Neb. 638, 471 N.W.2d 764 (1991).

32 Id.

33 Id. at 641‐42, 471 N.W.2d at 767 (internal quotation marks omitted) 

(“[i]t has almost universally been held or recognized that courts have the 

inherent power to dismiss an action for disobedience of a court order. . . . 

Without this right, a court could not control its dockets; business before 

it would become congested; its functions would be impaired; and speedy 

justice to litigants would largely be denied”).

34 See, Shelter, supra note 2. See, also, Nystrom v. Melcher, 262 Mont. 151, 

864 P.2d 754 (1993); Clay v. City of Margate, 546 So. 2d 434 (Fla. App. 

1989); Medved v. Baird, 58 Wis. 2d 563, 207 N.W.2d 70 (1973). Accord, 

5C Wright & Miller, supra note 25, § 1379 (noting when complaint is 

stricken as sanction for failure to obey order to make more definite, it has 

effect of dismissing action).
- 646 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.

Cite as 312 Neb. 629

failure to obey a court order or for the failure to prosecute 

the action. 35

But on this record, we have determined it was an abuse 

of discretion to sustain the motion for a more definite statement in the first instance. So, although we do not condone or 

excuse Millard Gutter’s conduct in ignoring the court’s order 

for nearly 6 months rather than timely advising the court and 

opposing counsel that it was electing to stand on its amended 

complaint, we are persuaded it is appropriate under the circumstances to reverse the order of dismissal to the extent it 

was imposed as a sanction for failing to obey the order to 

make more definite. This reversal impacts only the breach 

of contract claims alleged in the amended complaint and 

facilitates remand of those claims for further proceedings. For 

the reasons stated earlier, the district court’s dismissal of the 

first‐party bad faith claims for lack of standing was correct and 

should be affirmed.

V. CONCLUSION

Because Millard Gutter lacks standing to assert first‐party 

bad faith claims against Farm Bureau, we reverse the Court of 

Appeals’ decision in that regard and remand the matter to the 

Court of Appeals with directions to affirm the district court’s 

dismissal of such claims based on lack of standing. We further 

direct the Court of Appeals to reverse the district court’s dismissal as to the breach of contract claims only. We otherwise 

affirm the Court of Appeals’ decision.

Affirmed in part, and in part reversed 

and remanded with directions.

35 See, e.g., Link v. Wabash Railroad Co., 370 U.S. 626, 633, 82 S. Ct. 

1386, 8 L. Ed. 2d 734 (1962) (noting state and federal courts have long 

recognized trial courts’ inherent authority to sua sponte dismiss complaints 

for failure to prosecute, and under appropriate circumstances court “may 

dismiss a complaint for failure to prosecute even without affording notice 

of its intention to do so or providing an adversary hearing before acting. 

Whether such an order can stand on appeal depends not on power but on 

whether it was within the permissible range of the court’s discretion”).