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Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

SAIF v. ATLANTIC STATES INS. CO.

Cite as 29 Neb. App. 442

Michael F. Saif and Mary Sue Saif, appellants, 

v. Atlantic States Insurance Company, 

successor by merger with Le Mars 

Insurance Company, appellee.

___ N.W.2d ___

Filed February 2, 2021. No. A-19-366.

1. Summary Judgment: Appeal and Error. An appellate court will affirm 

a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts 

or as to the ultimate inferences that may be drawn from those facts and 

that the moving party is entitled to judgment as a matter of law.

2. ____: ____. In reviewing a summary judgment, an appellate court views 

the evidence in the light most favorable to the party against whom the 

judgment was granted and gives that party the benefit of all reasonable 

inferences deducible from the evidence.

3. Summary Judgment. Summary judgment proceedings do not resolve 

factual issues, but instead determine whether there is a material issue of 

fact in dispute.

4. ____. If a genuine issue of fact exists, summary judgment may not properly be entered.

5. Summary Judgment: Proof. The party moving for summary judgment 

has the burden to show that no genuine issue of material fact exists and 

must produce sufficient evidence to demonstrate that the moving party 

is entitled to judgment as a matter of law.

6. Summary Judgment: Evidence: Proof. After the movant for summary 

judgment makes a prima facie case by producing enough evidence to 

demonstrate that the movant is entitled to judgment if the evidence were 

uncontroverted at trial, the burden to produce evidence showing the 

existence of a material issue of fact that prevents judgment as a matter 

of law shifts to the party opposing the motion.

7. Summary Judgment. In the summary judgment context, a fact is material only if it would affect the outcome of the case.

Nebraska Supreme Court Online Library

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

02/02/2021 08:33 AM CST
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SAIF v. ATLANTIC STATES INS. CO.

Cite as 29 Neb. App. 442

8. Insurance: Breach of Contract. An insurer cannot assert a breach of 

a policy’s cooperation provision as a policy defense in the absence of 

showing prejudice or detriment to the insurer.

9. Summary Judgment: Insurance: Breach of Contract: Proof. To be 

entitled to a summary judgment, the insurer must establish, as a matter 

of law, that there was a breach of a cooperation provision and that said 

breach prejudiced the insurer.

10. Insurance: Breach of Contract: Proof. It is the insurer’s burden to 

prove the breach resulted in prejudice.

11. Insurance: Breach of Contract. Normally, the question of whether an 

insured’s breach of a cooperation clause prejudiced an insurer is a question of fact, and will seldom be decided as a matter of law.

12. Insurance: Contracts. The purpose of a cooperation provision in 

a contract is to ensure that an insurer has an opportunity to protect 

its interests.

13. Insurance: Notice: Proof: Time. Prejudice is established by examining whether the insurer received notice in time to meaningfully protect 

its interests.

14. Insurance: Breach of Contract: Proof. Regardless of the nature 

of the breach, there must be a showing of detriment or prejudice to 

the insurer.

15. ____: ____: ____. In jurisdictions where a showing of prejudice to the 

insurer is required, it is usually inevitable that the merits of the main 

case must be developed to some extent when the defense of nonco

operation is raised. That is frequently the only way the triers of fact can 

intelligently appraise and determine whether actual prejudice did or did 

not exist.

16. Claims: Insurance: Breach of Contract. When an insured seeks coverage for his or her own loss, the issue is whether the insurer has been 

able to complete a reasonable investigation with regard to whether the 

insured’s claim is valid. If the insured’s refusal to cooperate prevents 

the insurer from completing such a reasonable investigation, prejudice 

should be found to exist.

17. Claims: Insurance. When an insured has provided a significant amount 

of information that has been requested by an insurer, a fact finder could 

conclude that to whatever extent additional information was not provided, the failure did not prevent (or should not have prevented) the 

insurer from making a reasonable estimate of the insured’s claim.

18. Contracts: Waiver: Intent: Proof. A party may prove the waiver of a 

contract by (1) a party’s express declarations manifesting the intent not 

to claim an advantage or (2) a party’s neglecting and failing to act so as 

to induce the belief that it intended to waive the right.
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SAIF v. ATLANTIC STATES INS. CO.

Cite as 29 Neb. App. 442

19. Insurance: Contracts: Waiver. An unreasonable delay amounts to 

denial of coverage and constitutes a waiver of any right to insist on 

certain policy provisions.

20. Breach of Contract. The general rule is that a demand for performance 

is not necessary unless required by the terms of the contract or its peculiar nature.

21. Claims: Marriage. Loss of consortium claims are derivative and are 

based upon an injured spouse’s right to recover for direct injuries.

Appeal from the District Court for Lancaster County: 

Lori A. Maret, Judge. Reversed and remanded for further 

proceedings.

Steven M. Lathrop and Joshua J. Yambor, of Hauptman, 

O’Brien, Wolf & Lathrop, P.C., for appellants.

Michael L. Moran, of Engles, Ketcham, Olson & Keith, 

P.C., for appellee.

Riedmann and Bishop, Judges.

Per Curiam.

INTRODUCTION

Michael F. Saif and Mary Sue Saif appeal from an order 

of the Lancaster County District Court in which summary 

judgment was granted in favor of Atlantic States Insurance 

Company (Atlantic), successor by merger with Le Mars 

Insurance Company, on Michael’s claim for underinsured 

motorist (UIM) benefits and Mary Sue’s claim for UIM benefits on a theory of loss of consortium. The district court 

found that based on the undisputed material facts, (1) Michael 

materially breached the cooperation provisions in the policy 

and his refusal to cooperate prejudiced Atlantic’s ability to 

investigate the claim without the expense and delay of litigation, (2) Atlantic did not waive the cooperation provisions, and 

(3) Atlantic did not breach the policy by refusing to pay UIM 

benefits to Mary Sue, and that therefore, Atlantic was entitled 

to judgment as a matter of law. Because we conclude there 

were material questions of fact, summary judgment was not 
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SAIF v. ATLANTIC STATES INS. CO.

Cite as 29 Neb. App. 442

proper in this case. For the reasons that follow, we reverse, and 

remand for further proceedings.

BACKGROUND

On October 1, 2014, Michael was cycling on the shoulder 

of Highway 43 in Lancaster County, Nebraska, when he was 

struck from behind by a pickup driven by Edward Vasa. At 

the time, Vasa was acting within the scope of his employment 

with Vasa Construction, which was insured by EMC Insurance 

Companies (EMC) up to a liability amount of $1 million. 

Michael suffered extensive injuries as a result of the collision, 

incurring medical expenses in excess of $350,000 and the likelihood of ongoing treatment for the rest of his life.

At the time of the accident, the Saifs owned an insurance policy with Atlantic, which included UIM coverage up 

to $500,000. The policy included provisions outlining the 

duties an insured has after an accident or loss, including 

that the insured would cooperate with Atlantic’s investigation of the claim, submit to examination under oath at the 

request of Atlantic, and authorize Atlantic to obtain medical and other relevant records. The policy also required full 

compliance with its terms prior to bringing any legal action 

against Atlantic.

On November 6, 2014, counsel for the Saifs wrote Atlantic, 

advising it of a potential claim for medical payment and UIM 

benefits. In response, Atlantic opened a UIM claim file and 

assigned an adjuster for the file, who established an initial 

reserve. On April 1, 2015, Michael’s counsel informed Atlantic 

that Michael had reached a tentative settlement with EMC, 

Vasa’s insurance provider, for the limits of Vasa’s coverage. 

Along with the April letter was included a signed authorization 

to disclose health information and a release of employment 

information, both of which expired after 45 days. Atlantic did 

not use this initial authorization, nor request an examination 

under oath of Michael, because a formal demand for payment of UIM benefits under the policy had not been made. 
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SAIF v. ATLANTIC STATES INS. CO.

Cite as 29 Neb. App. 442

On May 9, Atlantic wrote Michael’s counsel, advising that 

Atlantic would not substitute the policy limits tendered by 

EMC and authorized Michael to settle with EMC.

On February 16, 2016, Michael’s counsel contacted Atlantic, 

reaffirming his intent to submit a UIM claim at a later date. 

In September, Atlantic followed up with Michael’s counsel 

regarding whether it should still expect a UIM claim. A month 

later, Michael’s counsel replied that Michael continued to be 

treated for ongoing medical issues, that he was in the process 

of gathering additional medical records and reports, and that a 

demand would be made when those records were received.

On January 31, 2017, counsel for Atlantic again reached out 

to Michael’s counsel, questioning whether Michael intended 

to make a UIM claim. Michael’s counsel responded by email 

that same day: “I most definitely intend to proceed with a 

claim. You should have a policy limit demand within the week. 

We have recently gathered updated medical.” The next day, 

counsel for Atlantic contacted Michael’s counsel identifying 

the documents Atlantic was requesting along with Michael’s 

UIM demand: “We need all medical records, bills and reports 

relating to this matter, including medical evaluations and documentation for lost wages and loss of earning capacity.” Neither 

a signed medical authorization nor a signed release of information form was requested by Atlantic at that time.

On February 24, 2017, Michael’s counsel made a formal 

demand upon Atlantic for the UIM limits under the Saifs’ 

policy. The demand included, inter alia, medical records 

related to treatment between the date of Michael’s accident 

and September 2, 2016; tax returns from Michael’s business 

for the years 2012 to 2015; a profit-and-loss statement of the 

business for 2016; an “[o]ffer of employment from Alliance 

Partnership” to Michael dated March 8, 2016; and a detailed 

description of the injuries Michael sustained from the accident. 

The demand did not refer to any claim for UIM benefits by 

Mary Sue. On March 2, 2017, counsel for Atlantic confirmed 

receipt of Michael’s demand and requested certain additional 
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SAIF v. ATLANTIC STATES INS. CO.

Cite as 29 Neb. App. 442

medical records, including copies of previously provided 

records. Those records were provided on March 7.

On March 16, 2017, Michael’s counsel attempted to contact Atlantic’s counsel to inquire into the status of Atlantic’s 

response to Michael’s demand. That same date, attorney 

Michael Moran responded to Michael’s counsel, acknowledging receipt of the demand, and informed him that the matter 

had been transferred to him as outside counsel. After a month, 

on April 17, a paralegal with Moran’s office sent a letter to 

Michael’s counsel requesting a second signed authorization 

for health information in order to allow Atlantic to “obtain 

all medical records for an evaluation of [Michael’s] damage 

claim.” No signed authorization was provided in response to 

this request.

On April 26, 2017, Michael’s counsel left a voice mail message with Moran, advising him that since no response had 

been received to Michael’s counsel’s demand, he would be 

filing suit. On May 2, Moran followed up Atlantic’s request 

for a second authorization for health information and sought 

to schedule an examination under oath (EUO) at some point 

in the future after Atlantic had received the additional medical 

records sought through the second authorization. The request 

for the EUO did not specify a date, time, or place for the 

examination. A representative for Atlantic later testified that 

it sought to examine Michael due to the size of the claim and 

his subjective claims of how the accident affected his quality 

of life.

On May 10, 2017, without having signed the second authorization for health information, or responding to the request for 

an EUO, the Saifs filed suit against Atlantic. The complaint 

alleged two causes of action: (1) Atlantic erroneously refused 

to pay Michael UIM benefits in breach of the terms of the 

Saifs’ policy with Atlantic, and (2) Mary Sue suffered a loss of 

Michael’s society, comfort, support, and companionship, and 

as his spouse, she too was entitled to UIM benefits erroneously 

refused by Atlantic.
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SAIF v. ATLANTIC STATES INS. CO.

Cite as 29 Neb. App. 442

On June 2, 2017, Atlantic filed an answer to the Saifs’ 

complaint, as well as a motion for summary judgment, even 

though no formal discovery had taken place to date. The 

Saifs subsequently filed a motion for continuance on Atlantic’s 

motion for summary judgment, alleging that Atlantic was 

required to show prejudice from the Saifs’ alleged failure to 

cooperate and that further discovery was required before the 

Saifs could “offer a meaningful response to [Atlantic’s] Motion 

for Summary Judgment.” That motion was sustained, and further discovery was ordered by the district court.

On December 20, 2018, Atlantic filed an amended motion 

for summary judgment, alleging that “no genuine issue of 

material fact exists as to [the Saifs’] material breach of the 

policy of insurance and that [Atlantic] was prejudiced at the 

time of the breach” insomuch as it was denied the opportunity 

to investigate and adjust the claims of the Saifs and was subjected to unnecessary legal expenses.

A hearing was held on Atlantic’s amended motion for 

summary judgment on February 11, 2019. After receiving 

evidence and hearing the arguments of both parties, the district court sustained the motion, granting summary judgment 

for Atlantic on both causes of action. In its order, the district court made explicit findings that (1) Michael breached 

the cooperation provisions of the policy and his refusal to 

cooperate prejudiced Atlantic’s ability to investigate the claim 

without the expense and delay of litigation, (2) Atlantic did 

not waive the cooperation provisions, and (3) Atlantic did not 

refuse to pay UIM benefits to Mary Sue under the policy. This 

appeal followed.

ASSIGNMENTS OF ERROR

The Saifs assign, restated, that the district court erred in 

concluding there were no genuine issues of material fact and 

in granting Atlantic’s motion for summary judgment based on 

its findings that (1) Michael failed to cooperate, which failure 

was material and prejudicial to Atlantic; (2) Atlantic did not 

forfeit its right to assert its affirmative defenses as a result 
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SAIF v. ATLANTIC STATES INS. CO.

Cite as 29 Neb. App. 442

of its unreasonable delay in investigating the Saifs’ claims and 

failure to respond to the Saifs’ demand in a timely manner; and 

(3) Mary Sue was required, and failed, to make a demand prior 

to filing suit.

STANDARD OF REVIEW

[1,2] An appellate court will affirm a lower court’s grant 

of summary judgment if the pleadings and admitted evidence 

show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from those 

facts and that the moving party is entitled to judgment as a 

matter of law. Midland Properties v. Wells Fargo, 296 Neb. 

407, 893 N.W.2d 460 (2017). In reviewing a summary judgment, an appellate court views the evidence in the light most 

favorable to the party against whom the judgment was granted 

and gives that party the benefit of all reasonable inferences 

deducible from the evidence. Id.

ANALYSIS

[3,4] Summary judgment proceedings do not resolve factual 

issues, but instead determine whether there is a material issue 

of fact in dispute. Peterson v. Homesite Indemnity Co., 287 

Neb. 48, 840 N.W.2d 885 (2013). If a genuine issue of fact 

exists, summary judgment may not properly be entered. Id.

[5-7] The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and 

must produce sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law. Id. After 

the movant for summary judgment makes a prima facie case 

by producing enough evidence to demonstrate that the movant 

is entitled to judgment if the evidence were uncontroverted at 

trial, the burden to produce evidence showing the existence of 

a material issue of fact that prevents judgment as a matter of 

law shifts to the party opposing the motion. Id. In the summary 

judgment context, a fact is material only if it would affect the 

outcome of the case. Id.
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Nebraska Court of Appeals Advance Sheets

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SAIF v. ATLANTIC STATES INS. CO.

Cite as 29 Neb. App. 442

1. Breach of Cooperation Clause

The Saifs first contend that summary judgment was improperly granted because the district court erred in resolving factual issues concerning Michael’s alleged failure to cooperate 

as a matter of law in favor of Atlantic.

The relevant portion of the Saifs’ UIM policy, “Part E - Duties 

After an Accident or Loss,” provides:

We have no duty to provide coverage under this policy 

unless there has been full compliance with the following duties:

A. We must be notified promptly of how, when and 

where the accident or loss happened. Notice should also 

include the names and addresses of any injured persons 

and of any witnesses.

B. A person seeking any coverage must:

1. Cooperate with us in the investigation, settlement or 

defense of any claim or suit.

2. Promptly send us copies of any notices or legal 

papers received in connection with the accident or loss.

3. Submit, as often as we reasonably require:

a. To physical exams by physicians we select. We will 

pay for these exams.

b. To examination under oath and subscribe the same.

4. Authorize us to obtain:

a. Medical reports; and

b. Other pertinent records.

5. Submit a proof of loss when required by us.

The parties do not dispute that Atlantic requested a second 

medical authorization on April 17, 2017. That request sought 

Michael’s authorization for Atlantic to “obtain all medical 

records for an evaluation of [Michael’s] damage claim.” The 

Saifs do not dispute that Michael failed to execute the second medical authorization by the time of the summary judgment hearing. However, the record is absent of any evidence 

that Michael refused to ever provide such an authorization. 

There also does not appear to be any dispute that on May 2, a 
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SAIF v. ATLANTIC STATES INS. CO.

Cite as 29 Neb. App. 442

week after the Saifs indicated their intent to file their lawsuit, 

Atlantic requested that Michael sit for an EUO, although no 

date, time, or place was scheduled. While the EUO had not 

taken place by the time of the summary judgment hearing, 

there is nothing in the record to indicate that Michael refused 

to ever cooperate with that request. In sum, there is no evidence that Michael outright refused to cooperate; thus, there 

is no direct evidence of a breach of the cooperation provision 

itself. Rather, it appears that the only evidence of a possible 

breach is the undisputed fact that the Saifs filed their lawsuit 

before such an authorization was executed and before an EUO 

took place. This would arguably constitute a breach of the 

policy terms which direct that no legal action may be brought 

against the insurer until there has been full compliance with all 

terms of the policy.

[8-10] But even if we assume without deciding that the 

facts establish as a matter of law that Michael breached the 

cooperation clause simply by filing a lawsuit before complying with the request for a medical authorization and submitting to an EUO, this case cannot be decided as a matter of law 

on the issue of whether Atlantic was prejudiced by Michael’s 

failure to cooperate as to those matters prior to filing his 

action. This is because an insurer cannot assert a breach of 

a policy’s cooperation provision as a policy defense in the 

absence of showing prejudice or detriment to the insurer. See 

Mefferd v. Sieler & Co., 267 Neb. 532, 676 N.W.2d 22 (2004) 

(to be entitled to summary judgment, insurer must establish, 

as matter of law, that there was breach of cooperation provision and breach prejudiced insurer). It is the insurer’s burden 

to prove the breach resulted in prejudice. See id. The Saifs 

contend that there are material facts in dispute regarding the 

issue of prejudice and that when construed in their favor, summary judgment should not have been granted against them. 

We agree.

[11] Normally, the question of whether an insured’s breach 

of a cooperation clause prejudiced an insurer is a question 
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of fact, and will seldom be decided as a matter of law. See, e.g., 

Smith v. Nationwide Mut. Ins. Co., 175 Vt. 355, 830 A.2d 108 

(2003); Staples v. Allstate Ins. Co., 176 Wash. 2d 404, 295 P.3d 

201 (2013). But see Wright v. Farmers Mut. of Neb., 266 Neb. 

802, 669 N.W.2d 462 (2003) (insurance companies prejudiced 

as matter of law by insured’s failure to answer questions when 

interviewed under oath; summary judgment granted in favor of 

insurance companies). The dissent relies heavily on Wright v. 

Farmers Mut. of Neb., supra, in support of its position that this 

case is factually similar and, therefore, controlling. However, 

we would note that in Wright, the insurers were relying on the 

affirmative defense that the insured had been engaged in submitting a fraudulent claim. There is no such assertion in this 

case, and therefore, the factual issues pertinent to establishing 

prejudice are quite different.

Atlantic claims that Michael’s lack of cooperation prejudiced its “ability to investigate [Michael’s] claim and deprived 

[Atlantic] of a fair opportunity to make a decision on the 

claim prior to being subjected to suit.” Brief for appellee at 

8. Atlantic further argues that Michael’s breach “subjected 

[Atlantic] to litigation defense costs.” Id. at 18.

[12,13] The purpose of a cooperation provision in a contract 

is to ensure that an insurer has an opportunity to protect its 

interests. See Rent-A-Roofer v. Farm Bureau Prop. & Cas. Ins. 

Co., 291 Neb. 786, 869 N.W.2d 99 (2015). See, also, Mefferd 

v. Sieler and Co., supra (prejudice is established by examining 

whether insurer received notice in time to meaningfully protect 

its interests).

[14] As previously noted, an insurer cannot assert a breach 

of the cooperation clause as a policy defense in the absence 

of a showing of prejudice or detriment to the insurer. See 

Mefferd v. Sieler & Co., supra. See, also, MFA Mutual Ins. Co. 

v. Sailors, 180 Neb. 201, 141 N.W.2d 846 (1966). Regardless 

of the nature of the breach, there must be a showing of detriment or prejudice to the insurer. See MFA Mutual Ins. Co. v. 

Sailors, supra. See, also, Campbell v. Allstate Ins. Co., 60 
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SAIF v. ATLANTIC STATES INS. CO.

Cite as 29 Neb. App. 442

Cal. 2d 303, 384 P.2d 155, 32 Cal. Rptr. 827 (1963) (insured’s 

failure to communicate with and give statement to insurer was 

breach of cooperation provision, but presumption of prejudice 

does not arise from violation of cooperation clause); White v. 

Boulton, 259 Minn. 325, 107 N.W.2d 370 (1961) (insured’s 

failure to attend trial may be breach of cooperation provision, 

but insurer must show it was prejudiced by such absence); 

Allen v. Cheatum, 351 Mich. 585, 88 N.W.2d 306 (1958) 

(mere showing of nonattendance of insured at trial is not tantamount to showing of prejudicial noncooperation as matter 

of law).

[15] In jurisdictions where a showing of prejudice to the 

insurer is required, it is usually inevitable that the merits of 

the main case must be developed to some extent when the 

defense of noncooperation is raised. That is frequently the 

only way the triers of fact can intelligently appraise and determine whether actual prejudice did or did not exist. White v. 

Boulton, supra.

[16] When an insured seeks coverage for his or her own 

loss, the issue is whether the insurer has been able to complete 

a reasonable investigation with regard to whether the insured’s 

claim is valid. If the insured’s refusal to cooperate prevents the 

insurer from completing such a reasonable investigation, prejudice should be found to exist. See 1 Allan D. Windt, Insurance 

Claims & Disputes: Representation of Insurance Companies 

and Insureds § 3:2 (6th ed. 2013).

There is little case law in Nebraska regarding a failure to 

comply with a cooperation provision where an insured is seeking recovery from the insured’s insurance company for his or 

her own loss. In Wright v. Farmers Mut. of Neb., 266 Neb. 

802, 669 N.W.2d 462 (2003), the district court sustained the 

insurance companies’ motions for summary judgment because 

the insured concealed information on her insurance applications about a previous fire and failed to answer questions 

when interviewed under oath as required by the policies. 

The Nebraska Supreme Court found that the record contained 
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averments that the insured’s refusal to answer questions 

and provide documents hindered the investigation of the claims 

and prejudiced the insurance companies. The insured did 

not present evidence to dispute the claims of prejudice. The 

Supreme Court held that the failure to provide material information under a clause requiring the insured to submit to an 

examination under oath was a material breach of the contract. 

The Supreme Court further determined that the insurance companies provided evidence that the breach prejudiced their investigation of the claims and that the insured had not presented 

evidence to dispute the claims of prejudice. It concluded that 

the district court correctly granted the insurance companies’ 

motions for summary judgment. The Supreme Court further 

stated that it did not need to address whether there was an issue 

of material fact that the insured intentionally misrepresented or 

concealed information when she obtained her policies.

As noted earlier, Wright v. Farmers Mut. of Neb., supra, is 

distinguishable from the present matter because it involved 

a possible fraudulent claim and an insured’s concealment of 

information and refusal to answer material questions, which is 

not the case here. Atlantic’s claim of prejudice is not based on 

any alleged fraudulent concealment or behavior by Michael; 

there is no question Michael suffered significant injuries from 

the accident. Rather, Atlantic’s claim of prejudice rests entirely 

on the notion that Michael filed a lawsuit before providing 

a second medical authorization and before submitting to an 

EUO. Atlantic alleges it was prejudiced in its ability to investigate the claim and determine if Michael had been fully compensated by his earlier settlement with Vasa’s insurer. Atlantic 

states that at the time the demand was received, there was a 

5-month gap in Michael’s medical records, which prevented 

Atlantic from reviewing objective medical information concerning Michael’s current condition. It further alleges that it 

had no medical records that predated the accident, so it had 

no way of assessing the claim that Michael was “‘completely 

changed’” by the accident. Brief for appellee at 17.
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SAIF v. ATLANTIC STATES INS. CO.

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Atlantic’s evidence of prejudice consisted of an affidavit 

of a claims supervisor for Atlantic, which stated that Atlantic 

was “unable to conduct a meaningful assessment of Michael’s 

alleged damages due to his refusal to provide access to his 

medical history and refusal to submit to an [EUO]” and that 

Atlantic was “unable to conduct an adequate evaluation of 

Michael’s claim before being subject to this litigation.” The 

claims supervisor also stated in her deposition that Atlantic 

was prejudiced because it was unable to complete its investigation. In addition, an assistant vice president in Atlantic’s claims 

department was asked in his deposition how Atlantic had been 

prejudiced. He stated that Atlantic was not allowed to complete 

its investigation by meeting with Michael. He further stated 

he believed that Atlantic was subject to unnecessary legal 

expenses because of the defense costs it was now incurring and 

that Atlantic was unnecessarily subject to potential legal fees 

under Nebraska law.

However, there is substantial evidence that Atlantic had 

multiple opportunities to obtain the information it sought either 

immediately upon the demand letter being received or in the 

years following its receipt of notice of the claim following the 

accident. Atlantic first received notice of a potential claim by 

Michael on November 6, 2014. Michael’s counsel reaffirmed 

his intent to submit a claim in February and October 2016, as 

well as January 2017. A formal demand was made on February 

24. Despite knowledge of an impending UIM demand, Atlantic 

did not utilize the first medical authorization from April 2015, 

which would have allowed it to obtain medical records predating the accident to the extent it thought that may be necessary. 

Nor did Atlantic at any point request a list of prior medical 

providers or prior medical records, which it now claims was 

necessary for its investigation. And while Atlantic claims that 

these requests were not made because a “formal” demand 

had not yet been made by the Saifs, it nevertheless did not 

send its second medical authorization request until April 17, 

2017, nearly 2 months after the formal demand was made and 
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after Michael had already supplemented documents in response 

to Atlantic’s request. Atlantic also did not request Michael to 

sit for an EUO until May 2, over 2 months following the formal demand and a week after the Saifs indicated their intent to 

file this lawsuit. And notably, Atlantic did not specify an actual 

date, time, or place for its requested EUO.

[17] Atlantic had knowledge of a potential claim from 

the time it received notice in November 2014 and was kept 

“in the loop” on an ongoing basis. It could have conducted 

its own investigation at any time, but elected not to do so. 

Instead, it waited 30 months from the date it was notified of 

Michael’s UIM claim to request a medical authorization and 

EUO. Unlike the circumstances in Wright v. Farmers Mut. 

of Neb., 266 Neb. 802, 669 N.W.2d 462 (2003), Michael 

has not refused to provide material information. To the contrary, Michael has remained in continual contact with Atlantic, 

Michael has supplied substantial medical documentation to 

Atlantic, and there is no evidence that he has intentionally 

misrepresented or concealed information or that his claim is 

fraudulent. When an insured has provided a significant amount 

of information that has been requested by an insurer, a fact 

finder could conclude that “to whatever extent additional 

information was not provided, the failure did not prevent (or 

should not have prevented) [the insurer] from making a reasonable estimate of [the insured’s claim].” Cribari v. Allstate 

Fire & Casualty Ins. Company, 375 F. Supp. 3d 1189, 1201 

(D. Colo. 2019). In many cases where summary judgment is 

granted in favor of the insurer, the failure to cooperate was 

an effort by the insured to prevent the insurer from discovering the claim was fraudulent. See id. In Cribari, the insured 

“was indisputably injured, and there [was] no suggestion 

that the failure to provide additional information was part 

of a plot to conceal a fraudulent claim.” Id. See, also, King 

v. Federal Insurance Co., 788 F. Supp. 506 (D. Kan. 1992) 

(while records withheld were material and would have been 

helpful, no evidence produced that insured’s failure to give 
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up records prejudiced defendant’s defense once suit was filed); 

Ahmadi v. Allstate Ins. Co., 22 P.3d 576 (Colo. App. 2001) 

(right to recover under policy may be forfeited only when, in 

violation of policy provision, insured fails to cooperate with 

insurer in some material and substantial respect); Wallace v. 

Woolfolk, 312 Ill. App. 3d 1178, 728 N.E.2d 816, 245 Ill. Dec. 

734 (2000) (insurer must act in good faith to secure insured’s 

cooperation; insurer failed to allege facts showing reasonable 

diligence in getting insured to cooperate early on in litigation); 

Mazzuca v. Eatmon, 45 Ill. App. 3d 929, 360 N.E.2d 454, 4 Ill. 

Dec. 518 (1977) (whether insured breached cooperation clause 

requires insurer to show it exercised reasonable degree of diligence in seeking insured’s participation, and insured’s lack of 

participation represented willful refusal to cooperate); Boone 

v. Lowry, 8 Kan. App. 2d 293, 657 P.2d 64 (1983) (breach 

of cooperation clause must cause substantial prejudice to 

insurer’s ability to defend itself; burden of proof to establish 

policy defense is on insurer).

A fact finder could certainly conclude that Atlantic’s evidence did not establish that Michael’s failure to sign the second medical authorization or submit to the EUO before filing 

his lawsuit prevented Atlantic from completing a reasonable 

investigation or that the information it sought was materially 

significant in determining the validity or value of Michael’s 

claim. A fact finder could also conclude that Atlantic was not 

reasonably diligent in securing Michael’s cooperation earlier 

in the process when initially notified of the accident and when 

first provided with a medical authorization. Therefore, in viewing the evidence in the light most favorable to the Saifs, we 

cannot say that Atlantic established as a matter of law that it 

suffered substantial prejudice from Michael’s failure to cooperate. Because there remain issues of material fact as to whether 

Michael’s filing of a lawsuit, before signing a second medical 

authorization and before submitting to an EUO, was prejudicial, we find that summary judgment on Michael’s claim 

was inappropriate.
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2. Atlantic’s Affirmative Defenses

[18,19] The Saifs next argue that the district court also 

erred in resolving factual issues concerning whether or not 

Atlantic waived its right to the defense of failure to cooperate by its unreasonable delay in processing the Saifs’ claim. 

We agree. Our review of the record reveals there were genuine issues of material fact as to whether Atlantic unreasonably delayed processing the Saifs’ claim and whether such 

amounted to a denial of coverage of the claim and, therefore, 

a breach waiving the right to insist on the cooperation clause. 

See, D & S Realty v. Markel Ins. Co., 280 Neb. 567, 588, 789 

N.W.2d 1, 17-18 (2010) (“[a] party may prove the waiver by 

(1) a party’s express declarations manifesting the intent not to 

claim an advantage or (2) a party’s neglecting and failing to act 

so as to induce the belief that it intended to waive [the right]”); 

Otteman v. Interstate Fire & Cas. Co., Inc., 172 Neb. 574, 111 

N.W.2d 97 (1961) (unreasonable delay amounts to denial of 

coverage and constitutes waiver of any right to insist on certain 

policy provisions).

The Saifs argue that the Unfair Insurance Claims Settlement 

Practices Act, Neb. Rev. Stat. §§ 44-1536 to 44-1544 (Reissue 

2010 & Cum. Supp. 2018), provides a guidepost to measure 

whether Atlantic was reasonable in its investigation of the 

Saifs’ claim. See, e.g., § 44-1540 (it shall be unfair claims 

settlement practice to “[n]ot attempt[] in good faith to effectuate prompt, fair, and equitable settlement of claims submitted 

in which liability has become reasonably clear”). However, the 

reasonableness of Atlantic’s claim handling, investigation, and 

purported unreasonable delay are issues of fact that should be 

resolved on remand.

3. Mary Sue’s Loss of 

Consortium Claim

The Saifs’ final assignment of error is that the district court 

erred in finding that Mary Sue was required, and failed, to 

make a demand with Atlantic prior to filing suit. The Saifs 
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argue, in the alternative, that if Mary Sue was obligated to 

make a demand prior to filing suit, there are genuine issues of 

material fact as to whether the demand was necessary due to 

Atlantic’s prior denial of Michael’s claim through its unreasonable delay.

We first note that in the Saifs’ complaint, the following allegation was made: “That . . . Mary Sue . . . has made demand 

upon [Atlantic] for payment of benefits under the [UIM] 

coverage of the policy issued by [Atlantic] to the [Saifs], but 

[Atlantic] has failed and refused to make payment to the [Saifs] 

pursuant to the terms of the policy.” This allegation was denied 

by Atlantic in its answer, and the record before us would indicate that no formal demand was made by Mary Sue for a loss 

of consortium claim prior to filing suit. The district court came 

to the same conclusion. It found that the evidence was uncontroverted that Mary Sue never submitted a claim to Atlantic 

before filing this lawsuit.

[20] The Saifs argue on appeal that Mary Sue was not 

required to make a demand for benefits prior to filing suit. See 

Fink v. Denbeck, 206 Neb. 462, 465, 293 N.W.2d 398, 401 

(1980) (“[t]he general rule is that a demand for performance 

is not necessary unless required by the terms of the contract 

or its peculiar nature”). However, we conclude that the terms 

of the insurance policy at issue, specifically the cooperation 

agreement, required Mary Sue to make a demand for payment 

of benefits prior to filing suit. Because she did not make a 

demand, she breached the contract as a matter of law.

[21] However, just as set forth above in regard to Michael’s 

breach, Atlantic had to prove that Mary Sue’s breach resulted 

in prejudice to Atlantic. See Mefferd v. Sieler & Co., 267 

Neb. 532, 676 N.W.2d 22 (2004). Atlantic presented evidence 

in regard to prejudice in the affidavit of its claims supervisor. The affidavit stated that Atlantic was unable to conduct 

a meaningful assessment of Mary Sue’s damages prior to her 

filing suit; was deprived of an opportunity to investigate or 

evaluate her claim; was prejudiced by her breach; and was 
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forced to incur litigation defense costs it may have avoided. 

The evidence also showed that Atlantic had knowledge of 

Michael’s potential claim since November 2014 and knew that 

Michael was married and that his wife was an insured under 

the policy. Atlantic also had general knowledge of Michael’s 

injuries. Mary Sue’s cause of action is for the “loss of the 

society, comfort, support and companionship of her husband, 

Michael.” In other words, Mary Sue raised a claim for loss of 

consortium, which is a derivative claim that is entirely dependent on Michael’s claim. See Erickson v. U-Haul Internat., 

278 Neb. 18, 767 N.W.2d 765 (2009) (loss of consortium 

claims are derivative and are based upon injured spouse’s 

right to recover for direct injuries). See, also, Rasmussen v. 

State Farm Mut. Auto Ins. Co., 278 Neb. 289, 770 N.W.2d 

619 (2009). Thus, Atlantic did not establish as a matter of law 

that it was prejudiced by Mary Sue’s failure to file a demand 

prior to filing a lawsuit where her claim is tied to Michael’s. 

Accordingly, Mary Sue’s loss of consortium claim should have 

survived the motion for summary judgment, and we remand 

this issue for further proceedings.

CONCLUSION

Based on the foregoing reasons, we find there were genuine 

issues of material fact in this case and summary judgment was 

inappropriate. We reverse the district court’s order granting 

Atlantic’s motion for summary judgment and remand the cause 

for further proceedings.

Reversed and remanded for 

further proceedings.

Pirtle, J., participating on briefs.

Riedmann, Judge, dissenting.

Contrary to the district court’s order, the majority “assume[s] 

without deciding” that an insured’s failure to sign a medical 

authorization and sit for an examination under oath (EUO) 

constituted a breach of his obligations under a policy of insurance, but holds that material issues of fact exist as to whether 
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the insurer was prejudiced as a result. It also holds that despite 

a complete failure to make a demand upon the insurer prior 

to filing suit, material issues of fact exist as to the viability 

of a derivative claim. Based upon Nebraska case law and the 

unrebutted evidence presented by the insurer as to the prejudice it suffered, I agree with the district court that the insurer 

was entitled to judgment as a matter of law on both claims. I 

therefore would affirm the district court’s order dismissing the 

appellants’ complaint.

Breach of Cooperation Clause.

Michael F. Saif and Mary Sue Saif’s policy of insurance 

informed them that their insurer, Atlantic States Insurance 

Company (Atlantic), would have no duty to provide coverage under the policy unless there has been “full compliance” 

with the duties set forth in the policy. Those duties included a 

duty to “Submit, as often as [Atlantic] reasonably require[s]: 

. . . To [EUO] and subscribe the same” and to “Authorize 

[Atlantic] to obtain: . . . [m]edical reports; and . . . [o]ther 

pertinent records.” The policy further provides that “[n]o legal 

action may be brought against [Atlantic] until there has been 

full compliance with all the terms of this policy.” Michael 

was involved in a bicycle-pickup accident in October 2014; he 

claims the driver of the pickup that struck him was underinsured. After settling with the driver’s insurer in May 2015, he 

made a formal demand for underinsured motorist (UIM) coverage with Atlantic in February 2017. Prior to Atlantic’s accepting or rejecting the demand, the appellants filed suit against 

Atlantic in May 2017.

The evidence is uncontroverted that in July 2015, after 

requesting a medical authorization from Michael, Atlantic was 

advised that Michael’s counsel does not give medical authorizations to insurance companies. It is also uncontroverted that 

on April 17, 2017, Atlantic requested Michael to sign a medical authorization and that he did not do so. The majority concedes that Michael “failed” to sign that medical authorization, 

despite his contractual obligation to do so under the policy, but 
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dismisses it because “the record is absent of any evidence that 

Michael refused to ever provide such an authorization.” The 

majority ignores both the July 2015 statement of Michael’s 

counsel and the statement contained in his affidavit offered 

at the summary judgment hearing in 2019 that “no purpose 

would be served by granting [Atlantic] a medical authorization 

to secure copies of records already in [its] possession and provided by [Michael].” In addition to the only inference that can 

be drawn from these two statements, the affidavit of Atlantic’s 

claims supervisor confirms that Michael never provided the 

requested authorization. The affidavit states that Atlantic “has 

been unable to conduct a meaningful assessment of Michael’s 

alleged damages due to his refusal to provide access to this 

medical history and refusal to submit to an [EUO].” The 

record, therefore, does include evidence that Michael’s refusal 

to sign a medical authorization continued throughout the duration of the proceedings. Even the appellants, themselves, do 

not advance the majority’s supposition that Michael belatedly 

complied or offered to comply.

However, even if Michael had agreed to sign an authorization after he filed suit, it would not negate his prior breach. 

See Wright v. Farmers Mut. of Neb., 266 Neb. 802, 808, 669 

N.W.2d 462, 467 (2003) (finding material breach of policy for 

failing to comply with policy requirements and recognizing 

that “in several instances, courts have held that a later promise 

to comply was too late and could not cure the breach”). The 

Wright court cited Monticello Ins. Co. v. Mooney, 733 So. 2d 

802 (Miss. 1999), for the proposition that a belated promise 

to comply with a policy’s cooperation clause could not cure 

an insured’s failure to cooperate before litigation. No genuine 

issue of material facts exists as to whether Michael materially 

breached the policy of insurance by failing to provide a signed 

medical authorization, and the district court was correct in 

its finding.

Michael also failed to sit for a requested EUO in violation 

of the policy. When asked that he do so, Michael’s counsel 
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responded, “It occurs to me that if we are going to do discovery before I get an answer to my demand, we might as well 

have the case on file.” As with the medical authorization, the 

majority claims that “[w]hile the EUO had not taken place by 

the time of the summary judgment hearing, there is nothing 

in the record to indicate that Michael refused to ever cooperate 

with that request.” This statement again ignores the averment 

contained in Atlantic’s affidavit that it “has been unable to conduct a meaningful assessment of Michael’s alleged damages 

due to his refusal to provide access to this medical history and 

refusal to submit to an [EUO].” Michael presented no evidence 

at the summary judgment hearing to refute the statement that 

he refused to submit to an EUO. Even if Michael would have 

agreed to a deposition after filing suit, doing so would not 

cure the breach. See Archie v. State Farm Fire & Cas. Co., 

813 F. Supp. 1208, 1213 (S.D. Miss. 1992) (stating insured’s 

agreement to sit for deposition after filing suit “hardly satisfies 

the spirit or intent of insurance policy clauses mandating oral 

examinations”). Michael’s refusal to sit for an EUO constituted 

a material breach of the policy, and the district court was correct in so finding.

Atlantic Was Prejudiced 

as Matter of Law.

Although many jurisdictions have viewed compliance with 

insurance policy provisions as a condition precedent to recovery, Nebraska requires that an insurer show prejudice before 

coverage can be denied. See Wright v. Farmers Mut. of Neb., 

supra. According to the majority, genuine issues of material 

fact exist as to whether Atlantic was prejudiced by Michael’s 

breach of the policy. I disagree.

In Wright v. Farmers Mut. of Neb., 266 Neb. 802, 669 

N.W.2d 462 (2003), the Nebraska Supreme Court found prejudice as a matter of law and entered summary judgment in 

favor of an insurer based upon the insured’s failure to answer 

questions during an EUO. In Wright, the insured refused to 

answer certain questions, including questions regarding her 
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finances, properties owned, insurance held, and prior claims 

made. She also initially refused to produce certain documents, 

including her tax returns. Consequently, the insurers denied 

coverage and the insured filed suit. The insurers answered, 

claiming that the insured breached the policy in that she concealed certain material facts and failed to comply with the 

EUO. Both parties moved for summary judgment.

The district court held that the insured concealed information and materially breached the insurance contracts when she 

refused to answer questions during the EUO; thus, it granted 

summary judgment in favor of the insurers. On appeal, the 

Supreme Court recognized that the “effect of an insured’s 

refusal to answer questions in an [EUO] is an issue of first 

impression in Nebraska.” Id. at 806-07, 669 N.W.2d at 466. 

It recognized, however, that it has held that “an insurer may 

assert a breach of a cooperation clause as a defense when the 

insurer was prejudiced by the lack of cooperation.” Id. at 807, 

669 N.W.2d at 466, citing MFA Mutual Ins. Co. v. Sailors, 

180 Neb. 201, 141 N.W.2d 846 (1966). It concluded that the 

failure to provide material information under a clause requiring the insured to submit to an EUO was a material breach of 

the contract that may be raised by the insurer when the insurer 

shows prejudice.

After finding the information sought by the insurers was 

material, the Wright court determined: “[T]he insurance companies provided evidence that the breach prejudiced their 

investigation of the claims; [the insured] has not presented 

evidence to dispute the claims of prejudice.” 266 Neb. at 808, 

669 N.W.2d at 467. The only evidence identified in the opinion regarding prejudice is as follows: “The record contains 

averments that [the insured’s] refusal to answer questions and 

provide documents hindered the investigation of the claims 

and prejudiced [the insurers]. [The insured] did not present 

evidence to dispute the claims of prejudice.” Id. at 805-06, 669 

N.W.2d at 465. Consequently, it affirmed the grant of summary 

judgment in favor of the insurers.
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As in Wright, Atlantic averred that Michael’s failure to 

submit to an EUO and sign a medical authorization hindered 

its investigation of the claim and prejudiced it. It produced 

evidence in the form of affidavits and deposition testimony. 

Daniel Hystad, who oversees Atlantic’s claims department, 

explained in his deposition that Michael had already received 

close to $1 million from the tort-feasor’s insurer and was 

demanding Atlantic’s policy limits of $500,000. He stated that 

Michael claimed he suffered “mental declination [and] physical 

declination” and that “he wasn’t the man he used to be.” Based 

upon Michael’s claims and his significant lost wage claim, an 

EUO was requested because it was important to “get it unfiltered. Because the witness, how they tell their story, that also 

affects the value of the case.”

Hystad explained that given the amount of money Michael 

already received, Hystad was not convinced that Michael had 

not been “made whole” and “having the opportunity to visit 

with [Michael] directly would have been the best way to obtain 

that information.” Hystad elaborated that there were several 

ways in which the inability to conduct an EUO prejudiced 

Atlantic, stating:

One, we were not allowed to complete our investigation 

by visiting with [Michael]. I believe we are now subject 

to unnecessary legal expenses because of the defense 

costs we’re incurring with this suit. And I believe now we 

are unnecessarily subject to the potential legal fees under 

Nebraska law, when had we been able to simply get the 

[EUO], the answer, we probably could have brought this 

to a resolution.

A claims supervisor for Atlantic also testified as to the value 

of an EUO in Michael’s case:

To be able to sit and talk with him and find out how did 

this accident and his injuries affect his life. How does it 

affect what he could no longer do as opposed to what he 

could do before. How did it affect his ability to make an 

income, his working.
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As to Michael’s failure to provide a signed medical authorization, Hystad explained that in September 2016, Michael’s 

counsel indicated that Michael was still receiving medical 

treatment, but in the demand letter packet, there were no 

records beyond that date. Current records were necessary to 

assist Atlantic in evaluating whether Michael was continuing 

to improve. Additionally, there were no medical records prior 

to the date of the accident that would provide a baseline for 

Michael’s preinjury condition.

The appellants provided no evidence at the summary judgment hearing to refute Atlantic’s evidence that it was prejudiced. Rather, they set forth the chronology of the case and 

asserted that Atlantic did not request a medical authorization 

prior to April 17, 2017, nor request an EUO until May 2. 

They did not refute Atlantic’s evidence that it had been told 

in 2015 that a medical authorization would not be provided 

or that without a medical authorization, Atlantic was unable 

to obtain medical records that predated the accident or postdated September 2017. They did not produce evidence to 

refute Atlantic’s assertion that seeing how a witness presents 

his story affects the value of a claim. As in Wright v. Farmers 

Mut. of Neb., 266 Neb. 802, 669 N.W.2d 462 (2003), they 

did not set forth any evidence to refute Atlantic’s claims 

of prejudice.

The majority distinguishes Wright from the present matter, because Wright involved a possible fraudulent claim. It 

states that because fraud was an assertion, “the factual issues 

pertinent to establishing prejudice are quite different.” But 

the validity of an insured’s claim is the threshold issue in 

any first-party claim. The majority recognizes that in a firstparty claim, “the issue is whether the insurer has been able to 

complete a reasonable investigation with regard to whether 

the insured’s claim is valid.” Atlantic asserted it was unable 

to do so without the EUO and the medical authorization, and 

Michael presented no evidence to the contrary. Atlantic further stated it was not able to ascertain whether Michael had 
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been made whole by the payment of the nearly $1 million 

settlement from the tort-feasor’s insurer and, if not, to what 

extent he remained uncompensated. The majority recognizes 

the proposition of law that “[i]f the insured’s refusal to cooperate prevents the insurer from completing such a reasonable 

investigation, prejudice should be found to exist,” citing 1 

Allan D. Windt, Insurance Claims & Disputes: Representation 

of Insurance Companies and Insureds § 3:2 (6th ed. 2013), yet 

the majority fails to apply it here.

Other jurisdictions in first-party claims have found prejudice 

as a matter of law when an insured fails to provide documents 

or submit to an EUO. See, e.g., Piser v. State Farm Mut. Auto. 

Ins. Co., 405 Ill. App. 3d 341, 938 N.E.2d 640, 345 Ill. Dec. 

201 (2010) (affirming order dismissing insured’s complaint for 

failure to sign financial authorization and submit to EUO and 

finding prejudice as matter of law); Rymsha v. Trust Ins. Co., 

51 Mass. App. 414, 746 N.E.2d 561 (2001) (insured’s refusal 

to furnish requested information put insurer in untenable position of either paying claim without ability to investigate its 

validity or being sued for breach of contract; prejudice to 

insured too obvious to warrant discussion); Tran v. State Farm 

Fire and Cas. Co., 136 Wash. 2d 214, 961 P.2d 358 (1998) (if 

insurers are inhibited in their effort to process claims due to 

uncooperativeness of insured, they suffer prejudice); Pilgrim 

v. State Farm Fire & Cas. Ins. Co., 89 Wash. App. 712, 950 

P.2d 479 (1997) (where insured refuses to produce documents, 

insurer prejudiced as matter of law by its inability to complete 

its investigation of claim and risk of litigation if it denied 

claim). See, also, Lorenzo-Martinez v. Safety Ins. Co., 58 

Mass. App. 359, 790 N.E.2d 692 (2003) (holding that insurer’s 

heightened need for reliable information on uninsured motorist 

claim mandates rule that insured’s willful, unexcused failure 

to submit to EUO constitutes breach of standard automobile 

insurance contract resulting in forfeiture of coverage for uninsured motorist benefits without proof of actual prejudice resulting to insurer’s interests).
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Rather than focusing on whether the appellants’ actions prevented Atlantic from completing its investigation prior to being 

subject to suit, the majority focuses on what Atlantic “could 

have done” from the moment it was advised of a potential 

UIM claim. It asserts that Atlantic was “kept ‘in the loop’ on an 

ongoing basis,” but the following chronology establishes that it 

was Atlantic that consistently prodded Michael for a status of 

his potential claim once he settled with the tort-feasor:

•10/01/14: Accide

•11/06/14: Michael’s counsel notifies Atlantic of potenti

uninsured or UIM claim for Michael.

•04/01/15: Michael’s counsel notifies Atlantic of tentati

settlement with the tort-feasor and encloses medical authorization valid for 45 days.

•05/09/15: Atlantic notifies Michael’s counsel that it would n

substitute its policy limits and that it authorizes settlement 

with the tort-feasor.

•07/28/15: Atlantic orally requests medical authorization.

paralegal for Michael’s counsel responds that her office does 

not give medical authorizations to insurance companies but 

that she would check with Michael’s counsel.

•02/16/16: Michael’s counsel reaffirms intent to submit U

claim at later date.

•09/08/16: Atlantic inquires when and if a UIM demand wi

be made.

•10/10/16: Michael’s counsel responds that the UIM cla

is coming but that Michael is still being treated. Michael’s 

counsel states that when medical records are received, a 

demand will be made.

•01/31/17: Atlantic inquires again whether a UIM claim 

coming. Michael’s counsel responds that it can expect “a 

policy limit demand within the week.”

•02/01/17: Atlantic advises of additional documents it needs 

accompany the demand.

•02/24/17: Michael’s counsel sends formal demand for poli

limits of $500,000 for Michael’s UIM claim.
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•03/02/17: Atlantic’s counsel acknowledges demand a

requests additional medical records. He advises that Atlantic 

is “reviewing” Michael’s demand and materials in order to 

evaluate the same.

•03/07/17: Michael’s counsel sends flash drive with addition

medical records.

•03/16/17: After Michael’s counsel inquires as to status of t

demand, Atlantic’s counsel responds that Atlantic is continuing to review the “voluminous supporting materials.”

•04/17/17: Atlantic’s counsel requests medical authorizati

“which will allow [Atlantic] to obtain all medical records for 

an evaluation of [Michael’s] damage claim.”

•04/26/17: Michael’s counsel leaves voice mail advising he 

filing suit.

•05/02/17: Atlantic’s counsel follows up on the status of t

medical authorization, and he requests an EUO. He also 

quotes policy language setting forth insured’s duty to authorize the collection of medical reports and other records and to 

sit for an EUO.

•05/10/17: Michael’s counsel files lawsuit. He advises that “

we are going to do discovery before I get an answer to my 

demand, we might as well have the case on file.”

The majority asserts that Atlantic could have utilized the 

first medical authorization from April 2015 to obtain Michael’s 

records; however, the authorization expired in 45 days and 

would have done nothing to assist Atlantic in obtaining medical records from June 2015 through February 2017 when the 

demand was finally made. Hystad explained that Michael’s 

counsel had advised in September 2016 that Michael continued 

to seek medical treatment, so current records would be necessary to evaluate whether Michael continued to improve and 

what his current condition was.

The majority is critical of Atlantic for not requesting a 

second medical authorization until “nearly 2 months after” 

receipt of the formal demand; however, the evidence indicates 

that Atlantic was advised in July 2015 that the appellants’ 
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counsel does not provide medical authorizations to insurance 

companies. The affidavit of the appellants’ counsel offered 

at the summary judgment hearing makes clear that regardless 

of whether an authorization was requested earlier following 

the demand, one would not have been provided. The affidavit 

states that “at the time [the] request was made, a copy of all of 

[Michael’s] medical records had been provided to [Atlantic]; 

that no purpose would be served by granting [Atlantic] a medical authorization to secure copies of records already in [its] 

possession and provided by [Michael].”

The evidence reveals that as of the date of the summary 

judgment hearing, an authorization was never signed, and that 

an earlier request for an authorization would not have been 

granted. Not all of the medical records were included in the 

demand, and although additional records were received on 

March 7, 2017, at the time the EUO was requested on May 

2, Atlantic was still missing medical records that predated the 

accident and postdated September 2016. Therefore, Atlantic’s 

decision not to make another request for a medical authorization between July 2015 and April 2017 does not negate its 

assertion that it was prejudiced by Michael’s failure to sign 

a medical authorization, nor does it create a genuine issue of 

material fact on the issue.

The majority is also critical of Atlantic for not requesting 

an EUO until May 2, 2017. However, the evidence reveals 

that Atlantic received the demand packet on February 27, 

which consisted of voluminous attachments, including medical records from October 1, 2014, through September 2, 

2016. On March 7, 2017, Atlantic received additional medical 

records. It requested an EUO to be scheduled after receipt of 

additional medical records it hoped to obtain with the medical 

authorization it had requested. Hystad explained that an EUO 

was not requested prior to the formal demand because Atlantic 

had been advised that Michael was still being treated and that 

the claim “wasn’t ripe or it wasn’t ready to be settled . . . at 

that point.” The purpose for delaying an EUO was to avoid 
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having to “do it twice.” The appellants presented no evidence 

to counter this position.

The majority essentially determines that Atlantic failed to 

start its investigation early enough and that therefore, whether 

Michael’s failure to sign the medical authorization and submit 

to an EUO prejudiced Atlantic is a question of fact. But it 

recognizes that “the issue is whether the insurer has been able 

to complete a reasonable investigation with regard to whether 

the insured’s claim is valid.” One of the insureds, Michael, did 

not submit his demand until February 24, 2017, and even if 

Atlantic had requested a medical authorization prior to April 

17, the uncontroverted evidence is that Michael’s counsel 

would not have agreed to Michael’s signing it. And, as stated 

by Hystad, it would be futile to take an EUO prior to receipt of 

all requested information.

To fully evaluate Michael’s claim, Atlantic required a signed 

medical authorization to investigate how and if Michael’s 

current condition differed from his preaccident condition and 

Atlantic was contractually entitled to the opportunity to conduct an EUO, but Michael filed suit before complying with 

either of those requests. As attested to by Atlantic’s claims 

supervisor, Atlantic was “unable to conduct a meaningful 

assessment of Michael’s alleged damages” and was “unable to 

conduct an adequate evaluation of Michael’s claim” prior to 

a lawsuit being filed. Atlantic is now subject to attorney fees 

under Neb. Rev. Stat. § 44-359 (Reissue 2010), as alleged in 

the appellants’ complaint.

Based upon my review of the record, Atlantic produced evidence that it was prejudiced as a result of Michael’s failure to 

provide a signed medical authorization and submit to an EUO. 

Michael presented no evidence to rebut these averments. As 

in Wright v. Farmers Mut. of Neb., 266 Neb. 802, 669 N.W.2d 

462 (2003), Atlantic was therefore entitled to summary judgment. I would affirm the district court’s order as to Michael in 

this regard.
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Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

SAIF v. ATLANTIC STATES INS. CO.

Cite as 29 Neb. App. 442

Mary Sue’s Claim.

As to Mary Sue, she asserted in the complaint that she had 

made demand upon Atlantic for UIM benefits and that Atlantic 

had failed and refused to make payment to her. The evidence 

is uncontroverted, however, that she never made demand upon 

Atlantic prior to filing suit. The initial letter sent by Michael’s 

attorney to Atlantic on November 6, 2014, does not reference Mary Sue or that she has a potential UIM claim. The 

demand letter of February 24, 2017, includes neither Mary 

Sue’s name as a person represented nor a claim on her behalf. 

In fact, the letter refers solely to Michael as Atlantic’s insured 

and the author attorney’s client.

Having never received a demand, Atlantic could not have 

breached any obligation it owed to Mary Sue. That basis 

alone was sufficient to grant summary judgment to Atlantic. 

Additionally, Mary Sue failed to comply with the terms of the 

insurance policy that required her to make a demand for payment prior to filing suit. The majority concedes that this was 

a breach of the policy as a matter of law, and I agree. But like 

Michael’s claim, the majority determines that Atlantic failed 

to prove it was prejudiced by this breach. I disagree, because 

Mary Sue presented no evidence to refute Atlantic’s averments 

that it had been prejudiced. Additionally, Mary Sue’s claim is 

derivative of Michael’s; therefore, because his claim fails, so 

too does hers. See Erickson v. U-Haul Internat., 278 Neb. 18, 

767 N.W.2d 765 (2009).

I would affirm the order of the district court granting summary judgment in favor of Atlantic.