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the appellees had financing in place and had expressed their 

ability and willingness to perform under the contract. In the 

face of Benson’s repudiation, the appellees were not required 

to tender the money due under the Purchase Agreement. 

Such would have been a useless act. The district court determined that the appellees’ efforts were sufficient and that thus, 

Benson was in breach at the time for performance. Based on 

the applicable law and the district court’s findings, which are 

supported by the record, we see no error. We find no merit 

to Benson’s assignments of error regarding repudiation and 

breach of contract.

CONCLUSION

The district court determined that Benson breached the 

Purchase Agreement by refusing to sell her interest in the property at issue and awarded damages to the appellees. For the 

reasons explained above, we find no merit to Benson’s assignments of error and, accordingly, affirm.

Affirmed

SFI Ltd. Partnership 8, a Neb

limited partnership, appel

Michelle Carroll,

___ N.W.2d ___

Filed August 1, 2014. No. S-13-192.

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 the facts and that the moving party is entitled to 

judgment as a matter of law.

2. Subrogation: Words and Phrases. Generally, subrogation is the right of one, 

who has paid the obligation which another should have paid, to be indemnified 

by the other.

3. Contracts: Insurance: Subrogation. Subrogation applies to an insurer’s right 

to proceed against a third party responsible for a loss which the insurer has 

compensated pursuant to its contractual obligation under a policy, and which 

depends, inter alia, on the existence of the insured’s right to proceed against 

that entity.
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4. Contracts: Insurance: Subrogation: Equity: Tort-feasors. In the context of 

insurance, the right to equitable subrogation is generally based on two premises: 

(1) A wrongdoer should reimburse an insurer for payments that the insurer has 

made to its insured, and (2) an insured should not be allowed to recover twice 

from the insured’s insurer and the tort-feasor.

5. Contracts: Insurance: Subrogation. Under the antisubrogation rule, no right of 

subrogation can arise in favor of an insurer against its own insured or coinsured 

for a risk covered by the policy, even if the insured is a negligent wrongdoer.

6. Insurance: Subrogation. The antisubrogation rule has been extended to implied 

coinsureds.

7. Contracts: Insurance: Subrogation: Presumptions: Negligence. Absent an 

agreement to the contrary, the law presumes that a tenant is coinsured under a 

landlord’s fire insurance policy and that therefore, a landlord’s insurer cannot 

maintain a subrogation action against a tenant for damage to the insured property 

that is caused by the tenant’s negligence.

8. Rules of the Supreme Court: Pleadings: Waiver: Appeal and Error. A question concerning the waiver of an affirmative defense involves the interpretation 

of Neb. Ct. R. Pldg. § 6-1108(c) and, as such, is a question of law reviewed 

de novo.

9. Pleadings. The issues in a given case will be limited to those which are pled.

10. Rules of the Supreme Court: Pleadings. Under Neb. Ct. R. Pldg. § 6-1108(c), 

a party pleading to a preceding pleading must set forth affirmatively matters constituting an avoidance or affirmative defense.

11. ____: ____. The federal rules of pleading, which Nebraska has generally adopted, 

were designed to liberalize pleading requirements.

12. Leases: Contracts: Public Policy. The interpretation of a lease, the unconscionability of a contract provision, and the determination of whether a contract violates public policy are questions of law.

13. Judgments: Appeal and Error. When reviewing questions of law, an appellate 

court has an obligation to resolve the questions independently of the conclusions 

reached by the trial court.

14. Contracts: Insurance: Landlord and Tenant. Renter’s insurance is a contents 

policy which covers tenant’s possessions, such as furniture, appliances, personal 

belongings, and household goods. However, renter’s insurance does not typically 

cover the structure of the leased premises.

15. Contracts: Public Policy. Courts should be cautious in holding contracts void 

on the ground that the contract is contrary to public policy; to be void as against 

public policy, the contract should be quite clearly repugnant to the public 

conscience.

16. Words and Phrases. The term “unconscionable” means manifestly unfair 

or inequitable.

17. Courts: Contracts: Leases. Where a court finds that a rental agreement or 

any provision thereof was unconscionable when made, the court may refuse 

to enforce the agreement, enforce the remainder of the agreement without the 

unconscionable provision, or limit the application of any unconscionable provision to avoid an unconscionable result.
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18. Landlord and Tenant: Negligence: Damages. Notwithstanding the provisions of 

Neb. Rev. Stat. § 76-1429 (Reissue 2009), the tenant is responsible for damage 

caused by his or her negligence.

19. Statutes. To the extent there is conflict between two statutes on the same subject, 

the specific statute controls over the general statute.

20. Landlord and Tenant: Leases: Negligence: Damages: Public Policy: Statutes. 

Where a specific statute holds a tenant responsible for fire damages caused by his 

or her negligence, a court cannot hold a lease provision doing so as void against 

public policy or unconscionable.

21. Summary Judgment: Final Orders: Appeal and Error. Although the denial of 

a motion for summary judgment, standing alone, is not a final, appealable order, 

when adverse parties have each moved for summary judgment and the trial court 

has sustained one of the motions, the reviewing court obtains jurisdiction over 

both motions and may determine the controversy which is the subject of those 

motions or make an order specifying the facts which appear without substantial 

controversy and direct such further proceedings as it deems just.

Appeal from the District Court for Sarpy County: Willi

B. Zastera, Judge. Reversed and remanded for further

proceedings.

Jeffrey A. Silver for appellant.

Todd R. McWha, Angela M. Franz, and Patrick Heng, of 

Waite, McWha & Heng, for appellee.

Heavican, C.J., Wright, Connolly, Stephan

Miller-Lerman, and Casse

Cassel, 

I. INTRODUCTION

In previous cases, we have applied an antisubrogation rule 

to prohibit a landlord’s insurer from seeking reimbursement 

from the tenant of fire losses paid by insurance. In this appeal, 

we decline to extend the antisubrogation rule to a landlord’s 

uninsured losses allegedly caused by its tenant’s negligence. 

We therefore reverse the district court’s summary judgment in 

favor of the tenant. But because the tenant has not been determined to have been free from negligence, we decline to address 

whether specific provisions in the lease are unconscionable 

or void as against public policy. Accordingly, we remand the 

cause to the district court for further proceedings consistent 

with this opinion.
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II. BACKGROUND

1. Lease

SFI Ltd. Partnership 8 (SFI) owns an apartment complex 

containing approximately 200 apartments. Through its agent, 

SFI leased an apartment to Michelle Carroll. SFI’s agent and 

Carroll signed a residential lease agreement including various 

addendums. The lease employed a standard form used for all 

units in the complex. Tenants were not allowed to change any 

of the provisions of the lease or addendums.

The lease included provisions requiring Carroll to pay for 

repairs caused by her use of the unit and to maintain renter’s 

insurance including “a personal liability coverage to a minimum of $100,000.00.” We will recite the pertinent provisions 

of the lease only as it becomes necessary.

2. Fire and Insurance Po

A fire occurred in the apartment rented to Carroll. Both the 

apartment and the surrounding building were damaged.

SFI had $10 million of total insurance coverage on the 

apartment complex. The policy provided for a deductible of 

$250,000 per occurrence unless a specific deductible applied. 

However, the forms schedule attached to the policy referred 

to two endorsements not included in the copies attached to 

the stipulation. Thus, we cannot discern whether the policy 

provided for a specific deductible attributable to the loss in 

this instance.

The parties stipulated that SFI sustained damages in excess 

of $100,000 resulting from the fire, which damages were not 

covered by its insurance policy. But neither the total amount of 

damages nor the amount of any insurance recovery by SFI was 

included in the evidence.

Carroll had renter’s insurance in place at that time, and 

she submitted a claim to her insurer. Carroll’s insurer paid 

her $1,500, representing only her damages under “Loss of 

Use Coverage.”

3. Lawsui

SFI sued Carroll and attached a copy of the lease to the 

complaint. SFI alleged that Carroll breached several provisions 
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of the lease. SFI further alleged that Carroll was negligent in 

failing to properly dispose of cigarettes being smoked in the 

apartment and that this negligence proximately caused the 

damage to the apartment and surrounding building.

Carroll filed an answer. She alleged that the fire was caused 

by someone else; that SFI’s claims were barred because she 

and SFI were considered coinsureds under SFI’s fire insurance policy, as set forth in Tri-Par Investments v. Sousa1

; 

that several paragraphs of the lease were unconscionable and 

void as against public policy; and that SFI failed to mitigate 

any damages.

Carroll moved for summary judgment. SFI then moved for 

partial summary judgment on Carroll’s claim that several paragraphs of the lease were unconscionable and void as against 

public policy.

The parties stipulated that SFI brought the claim in its 

own behalf. They also stipulated that it was not a subrogation claim.

4. District Court’s Deci

Following a hearing, the district court granted Carroll’s 

motion for summary judgment, denied SFI’s motion for partial 

summary judgment, and dismissed the complaint. The court 

stated that the crux of the case revolved around paragraph 17 

of the lease, which stated:

Resident’s personal property is not insured or covered 

by Landlord for loss of any kind, including without limitation, loss due to theft, fire, smoke, wind, rain, lightening 

[sic], seismic occurrence or water damage.

Evidence of renter’s insurance is required at the time of 

occupancy and Resident agrees to maintain such Renter’s 

Insurance throughout its residency. The renter’s insurance 

to be maintained by Resident shall include a personal 

liability coverage to a minimum of $100,000.00. Resident 

agrees to provide proof of such renter’s insurance from 

time to time as requested by Landlord.

1 Tri-Par Investments v. Sousa, 268 Neb. 119, 680 N.W.2d 190 (2004).
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The court agreed with Carroll’s contention that the lease was 

“void for public policy because it is a gross economic waste to 

require every tenant to insure the entire rental complex.” The 

court stated:

In the instant case, this Court finds that Paragraph 

17 of the Residential Lease is void for public policy 

and unconscionable because [SFI] cannot require each 

of its tenants to insure its building. [Carroll] lived in a 

multi-unit building, where each tenant was required to 

have renter’s insurance in an amount equal to at least 

$100,000.00. Based on the views expressed in [Tri-Par 

Investments2], this Court finds that it is not in the public 

interest to require all tenants to insure the building in 

which they share. As the Nebraska Supreme Court noted 

in [Tri-Par Investments], the more sound approach would 

be for a landlord to carry a fire insurance policy on the 

complex and to pass that cost along to the tenants in the 

form of higher rent.

SFI filed a timely appeal, and we granted its petition to 

bypass the Nebraska Court of Appeals.

III. ASSIGNMENTS OF ERROR

SFI assigns that the district court erred as a matter of law 

in (1) sustaining Carroll’s motion for summary judgment after 

finding that paragraph 17 of the lease was void as against 

public policy when Carroll did not allege in her answer 

that paragraph 17 of the lease was unconscionable and void 

as against public policy; (2) determining that SFI’s action 

was barred by Tri-Par Investments3; and (3) overruling SFI’s 

motion for partial summary judgment that paragraphs 10q, 15, 

and 16 of the lease were not unconscionable or void as against 

public policy.

IV. STANDARD OF REVIEW

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

summary judgment if the pleadings and admitted evidence 

2 Id.

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

as to the ultimate inferences that may be drawn from the facts 

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

of law.4

We set forth other pertinent standards of review at appropriate points in the analysis.

V. ANALYSIS

1. Subrogation and Tri-

Investments

Carroll admits that “this is not a true subrogation claim, 

[but] is a claim by a landlord against a tenant for the uninsured portion that public policy still bars as a gross economic 

waste.”5 In order to understand the parties’ arguments, we 

briefly recall the concept of subrogation and the antisubrogation rule.

(a) Subrogation

[2-4] Generally, subrogation is the right of one, who has 

paid the obligation which another should have paid, to be 

indemnified by the other.6 Subrogation applies to an insurer’s 

right to proceed against a third party responsible for a loss 

which the insurer has compensated pursuant to its contractual 

obligation under a policy, and which depends, inter alia, on the 

existence of the insured’s right to proceed against that entity.7

In the context of insurance, the right to equitable subrogation 

is generally based on two premises: (1) A wrongdoer should 

reimburse an insurer for payments that the insurer has made to 

its insured, and (2) an insured should not be allowed to recover 

twice from the insured’s insurer and the tort-feasor.8

4 Coffey v. Planet Group, 287 Neb. 834, 845 N.W.2d 255 (2014).

5 Brief for appellee at 13.

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

(2012).

7 See 16 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d § 222:2 

(2005).

8 Buckeye State Mut. Ins. Co., supra note 6.
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(b) Antisubrogation Rule

[5,6] Under the antisubrogation rule, no right of subrogation can arise in favor of an insurer against its own insured 

or coinsured for a risk covered by the policy, even if the 

insured is a negligent wrongdoer.9 The antisubrogation rule 

has been extended to “implied coinsureds.”10 To allow subrogation under such circumstances would permit an insurer, 

in effect, to avoid the very coverage which its insured purchased.11 In addition, the insurer should not be in a situation 

where there exists a potential conflict of interest which could 

affect the insurer’s incentive to provide its insured with a vigorous defense.12

(c) Tri-Par Investments

[7] In Tri-Par Investments,

13 a fire damaged a house that 

was being rented. After the landlord made a claim for coverage, its insurer initiated a subrogation action in the name of 

the landlord against the tenant, alleging negligence and breach 

of the lease agreement. We formally adopted the rule from 

Sutton v. Jondahl14: “[A]bsent an agreement to the contrary, 

the law presumes that a tenant is coinsured under a landlord’s 

fire insurance policy and that therefore, a landlord’s insurer 

cannot maintain a subrogation action against a tenant for 

damage to the insured property that is caused by the tenant’s 

negligence.”15 The Sutton court explained that the law considers the tenant to be a coinsured of the landlord based upon 

“a relational reality, namely, that both landlord and tenant 

have an insurable interest in the rented premises—the former 

owns the fee and the latter has a possessory interest.”16 The 

9 Id.

10 Id.

11 Id.

12 Id.

13 Tri-Par Investments, supra note 1.

14 Sutton v. Jondahl, 532 P.2d 478 (Okla. App. 1975).

15 Tri-Par Investments, supra note 1, 268 Neb. at 124, 680 N.W.2d at 195.

16 Sutton, supra note 14, 532 P.2d at 482.
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district court in the instant case characterized Sutton as the 

“controlling case for liability of a tenant for a fire on the 

leased premises.”

In Tri-Par Investments, we reasoned that the Sutton rule 

“represents the better public policy”17 for several reasons. We 

stated that it “prevents landlords from engaging in gamesmanship when drafting leases by providing the necessary 

incentive for them, if they so desire, to place express subrogation provisions in their leases.”18 It also “comports with the 

reasonable expectations of tenants” and “accounts for modern 

commercial realities by preventing the economic waste that 

will undoubtedly occur if each tenant in a multiunit dwelling 

or multiunit rental complex is required to insure the entire 

building against his or her own negligence.”19

2. Whether Issues Regard

Paragraph 17 Were Rais

(a) Issue

SFI first assigns that the district court erred in ruling upon 

paragraph 17 of the lease, because the issue was outside the 

pleadings. The district court determined that paragraph 17 of 

the lease was void as against public policy and unconscionable. 

Carroll responds that she specifically raised both defenses in 

her answer and that paragraph 17 was incidental to the paragraphs she specifically attacked.

(b) Standard of Review

[8] A question concerning the waiver of an affirmative 

defense involves the interpretation of Neb. Ct. R. Pldg. 

§ 6-1108(c) and, as such, is a question of law reviewed 

de novo.20

17 Tri-Par Investments, supra note 1, 268 Neb. at 131, 680 N.W.2d at 199.

18 Id.

19 Id.

20 See Harbeson v. Parke Davis, Inc., 746 F.2d 517 (9th Cir. 1984).
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(c) Additional Facts

Carroll’s answer included two allegations pertinent to our 

discussion of this issue. She alleged that SFI’s claims were 

barred because SFI and Carroll were considered coinsureds 

under Tri-Par Investments. She also alleged that paragraphs 

10q, 15, and 16 of the lease were unconscionable and void as 

against public policy.

Paragraph 10q of the lease provided, in relevant part, that 

Carroll agreed “[t]o hold [SFI] harmless for any loss or 

liability, including attorney fees, for any personal injury or 

accident sustained by [Carroll] or Others, except where said 

injury results from the active and actionable gross negligence 

of [SFI.]”

Paragraphs 15 and 16 of the lease addressed indemnification 

and liability. These provisions stated:

15. INDEMNIFICATION:

Resident will indemnify and save Landlord harmless 

from and against any and all claims, action, damages, 

liability and expenses in connection with loss of life, personal injury, and/or damage to property, arising from any 

act or omission of Resident or Others.

16. LIABILITY:

Resident agrees that all property kept in the Premises 

shall be at the risk of Resident. Resident further agrees to 

indemnify and hold Agent and Owner harmless from any 

loss, lawsuit, or damages incurred as a result of any loss 

or damage sustained by action of any third party; fire, 

water, theft, or the elements, or for loss of any articles 

from any cause from said Apartment or any other portion of the Premises. Resident also indemnifies and holds 

Agent and Owner harmless from any lawsuit or damages 

resulting from any injury to Resident or Others entering 

the Apartment building property of which the premises 

is a part. Resident shall be responsible for obtaining fire, 

extended coverage and liability insurance with respect to 

the contents of the Apartment.
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(d) Discussion

[9-11] We acknowledge that the issues in a given case will 

be limited to those which are pled.21 And we acknowledge 

that under the controlling rule, a party pleading to a preceding pleading must set forth affirmatively matters constituting an avoidance or affirmative defense.22 But we have also 

recognized that the federal rules of pleading, which Nebraska 

has generally adopted, were designed to liberalize pleading 

requirements.23 Thus, our inquiry becomes whether SFI was 

afforded fair notice of the nature of the defense.24

Read together, Carroll’s allegations regarding Tri-Par 

Investments and the conscionability of the lease provisions 

placed SFI on fair notice that the lease provisions imposing 

liability on Carroll for damages resulting from fire were being 

challenged. Although paragraph 17 focused on Carroll’s personal property and her obligation to provide renter’s insurance, 

insurance covering Carroll’s potential liability to SFI for fire 

damages caused by her negligence reasonably related to her 

allegations regarding Tri-Par Investments. SFI was placed on 

fair notice that paragraph 17 was material to the issues raised 

by Carroll’s answer.

(e) Resolution

Paragraph 17 of the lease was fairly raised in the proceeding 

by the allegations of Carroll’s answer. SFI’s first assignment of 

error lacks merit.

3. Paragraph 17 in Rel

to Tri-Par Investme

(a) Issue

SFI next assigns that the district court erred in determining 

that SFI’s action was barred by Tri-Par Investments.

25

21 See Rickerl v. Farmers Ins. Exch., 277 Neb. 446, 763 N.W.2d 86 (2009).

22 See § 6-1108(c).

23 See Weeder v. Central Comm. College, 269 Neb. 114, 691 N.W.2d 508 

(2005).

24 See id.

25 Tri-Par Investments, supra note 1.
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(b) Standard of Review

[12] The interpretation of a lease,26 the unconscionability of 

a contract provision,27 and the determination of whether a contract violates public policy28 are questions of law.

[13] When reviewing questions of law, an appellate court 

has an obligation to resolve the questions independently of the 

conclusions reached by the trial court.29

(c) Discussion

SFI argues that the rule announced in Tri-Par Investments

is inapplicable to the instant case. We agree. SFI brought 

this action against Carroll to recover damages which were 

not covered by its insurance policy. This is not a subrogation 

action brought by SFI’s insurer to recover sums the insurer 

paid to SFI. And because this is not a subrogation action, 

the antisubrogation rule adopted in Tri-Par Investments does 

not apply. Accordingly, the district court erred to the extent 

that it relied upon Tri-Par Investments and Sutton as controlling precedent.

But as we noted at the outset of the analysis, Carroll concedes that this is not a true subrogation claim. And she argues 

that the principles of Tri-Par Investments and Sutton should be 

extended to the landlord’s uninsured loss. We examine paragraph 17 in that context.

Paragraph 17 notified Carroll that (1) her personal property 

was not insured or covered by SFI for loss of any kind, (2) 

renter’s insurance was required, and (3) the renter’s insurance 

needed to include personal liability coverage to a minimum of 

$100,000. The district court stated that paragraph 17 was “[t]he 

crux of the instant case” and that it was “void for public policy 

and unconscionable because [SFI] cannot require each of its 

tenants to insure its building.”

26 See Beveridge v. Savage, 285 Neb. 991, 830 N.W.2d 482 (2013).

27 See Myers v. Nebraska Invest. Council, 272 Neb. 669, 724 N.W.2d 776 

(2006).

28 See Lexington Ins. Co. v. Entrex Comm. Servs., 275 Neb. 702, 749 N.W.2d 

124 (2008).

29 Id.
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SFI does not dispute that it is not in the public interest to 

require all tenants to insure the building in which they share. 

But SFI asserts that paragraph 17 does not require tenants to 

insure the building. We agree. Paragraph 17 provides that the 

tenant’s personal property is not insured or covered by SFI’s 

insurance coverage and that the resident must obtain renter’s 

insurance to include personal liability coverage to a minimum 

of $100,000.

[14] We discussed a similar lease provision regarding insurance in Beveridge v. Savage.

30 In that case, a provision of 

the lease stated that “‘[t]he Tenant shall provide a liability and renter[’]s insurance [policy] ($100,000) at Tenant’s 

expense.’”31 We explained: “‘Renter’s insurance is a “contents” 

policy which covers tenant’s possessions, such as furniture, 

appliances, personal belongings, and household goods.’ . . . 

‘However, renter’s insurance does not typically cover the structure of the leased premises.’”32 We reasoned that “[t]he lease 

provision requiring the tenant to obtain renter’s insurance did 

not require the tenant to insure the building against loss by 

fire.”33 Similarly, although paragraph 17 required Carroll to 

obtain renter’s insurance, it did not require her to insure the 

entire building. The district court’s concern that paragraph 17 

would require each tenant to insure the entire rental complex 

is unfounded.

[15,16] Courts should be cautious in holding contracts void 

on the ground that the contract is contrary to public policy; to 

be void as against public policy, the contract should be quite 

clearly repugnant to the public conscience.34 We find no such 

repugnancy. Further, the term “unconscionable” means manifestly unfair or inequitable.35 Nothing in paragraph 17 strikes 

us as manifestly unfair or inequitable.

30 Beveridge, supra note 26.

31 Id. at 993, 830 N.W.2d at 485.

32 Id. at 997, 830 N.W.2d at 487.

33 Id.

34 Bedrosky v. Hiner, 230 Neb. 200, 430 N.W.2d 535 (1988).

35 Myers, supra note 27.
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[17-20] Moreover, the Uniform Residential Landlord and 

Tenant Act36 contemplates that a court may determine a lease 

provision to be unconscionable, but expressly upholds tenants’ liability for negligent fire damage. Where a court finds 

that a rental agreement or any provision thereof was unconscionable when made, the court may refuse to enforce the 

agreement, enforce the remainder of the agreement without 

the unconscionable provision, or limit the application of any 

unconscionable provision to avoid an unconscionable result.37

But the act treats fire damage caused by a tenant’s negligence differently. Section 76-1429 regulates the landlordtenant relationship where the property is damaged by fire. 

“Notwithstanding the provisions of this section, the tenant is 

responsible for damage caused by his [or her] negligence.”38

To the extent there is conflict between two statutes on the 

same subject, the specific statute controls over the general 

statute.39 Where a specific statute holds a tenant responsible 

for fire damages caused by his or her negligence, we cannot 

hold a lease provision doing so void as against public policy 

or unconscionable.

Carroll relies on a New Hampshire decision extending the 

Sutton rule to uninsured fire losses. In Cambridge Mut. Fire 

Ins. Co. v. Crete,

40 the landlords’ insurer brought a subrogation 

action against the tenant of a building that sustained extensive 

fire damage for the amount paid to the landlords under a fire 

insurance policy. The landlords also sought reimbursement 

from the tenant for their uninsured losses. In addition to following the Sutton rule regarding the subrogation claim, the 

New Hampshire court held that a landlord may not hold a tenant liable for any uninsured losses as a result of fire damage 

where the landlord did not have adequate insurance.

36 Neb. Rev. Stat. §§ 76-1401 to 76-1449 (Reissue 2009).

37 § 76-1412(1).

38 § 76-1429(2).

39 Jeffrey B. v. Amy L., 283 Neb. 940, 814 N.W.2d 737 (2012).

40 Cambridge Mut. Fire Ins. Co. v. Crete, 150 N.H. 673, 846 A.2d 521 

(2004).
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Carroll’s reliance on the New Hampshire decision is misplaced. The Sutton decision did not address uninsured losses, 

particularly those allegedly caused by a tenant’s negligence. 

Thus, the New Hampshire court extended the rule beyond 

the rationale of the Sutton decision. And the court provided 

no other support for that part of its decision. At least where a 

tenant negligently causes the fire damage, we cannot extend 

the Sutton rule to uninsured losses where a statute expressly 

declares the tenant to be responsible.41 Moreover, the Sutton

rule is premised on the idea that to allow subrogation under 

such circumstances would permit an insurer, in effect, to avoid 

the very coverage which its insured purchased. Where the damages are not covered by the landlord’s insurance, this rationale disappears.

Of course, we are mindful that the district court’s decision was made on summary judgment focusing on an issue of 

law. The question of whether the fire damage was caused by 

any negligence on Carroll’s part has not been determined by 

the district court, and accordingly, we express no opinion on 

that issue.

(d) Resolution

Because we conclude that paragraph 17 is not void as 

against public policy or unconscionable, the district court erred 

in entering summary judgment for Carroll upon that basis. The 

summary judgment must be reversed, and the cause remanded 

for further proceedings consistent with this opinion.

4. Denial of Motion for P

Summary Judgme

(a) Issue

Finally, SFI assigns that the district court erred in denying its motion for partial summary judgment seeking a ruling 

that paragraphs 10q, 15, and 16 of the lease were not unconscionable or void as against public policy, as Carroll had 

alleged in her answer. The district court denied the motion 

without discussion.

41 See § 76-1429(2).
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(b) Standard of Review

As we explained above, questions regarding whether the 

lease was unconscionable or was void as against public policy 

are questions of law, which we review de novo.

(c) Discussion

[21] We first note that we have jurisdiction of this issue. 

Although the denial of a motion for summary judgment, 

standing alone, is not a final, appealable order, when adverse 

parties have each moved for summary judgment and the trial 

court has sustained one of the motions, the reviewing court 

obtains jurisdiction over both motions and may determine the 

controversy which is the subject of those motions or make 

an order specifying the facts which appear without substantial controversy and direct such further proceedings as it 

deems just.42 Because the court sustained Carroll’s motion for 

summary judgment, we have jurisdiction over the denial of 

SFI’s motion.

And to the extent that Carroll’s arguments regarding conscionability and public policy rest upon extending the Tri-Par 

Investments rule to a landlord’s uninsured fire losses allegedly 

caused by a tenant’s negligence, we have already rejected 

them in discussing paragraph 17. The same rationale would 

apply to the other paragraphs.

But the unresolved issues of fact regarding Carroll’s negligence, if any, prevent us from going any further. The litigation below has not focused on whether any of the challenged 

paragraphs of the lease would impose liability upon Carroll for 

damage to SFI’s property that was not attributable in any way 

to Carroll’s negligence.

We encountered an analogous situation in Kuhn v. Wells 

Fargo Bank of Neb.43 We agreed with a landlord that the district court erred in sustaining a tenant’s motion for summary 

judgment and concluding as a matter of law that an indemnity 

clause in the lease was ambiguous and unenforceable. But 

we declined to direct that the landlord’s motion for summary 

42 U.S. Bank Nat. Assn. v. Peterson, 284 Neb. 820, 823 N.W.2d 460 (2012).

43 Kuhn v. Wells Fargo Bank of Neb., 278 Neb. 428, 771 N.W.2d 103 (2009).
Nebraska Advance She

714 288 NEBRASKA REPORTS

judgment against the tenant be granted. There was no evidence establishing that the landlord was liable to the injured 

party, who fell into an elevator car stationed “‘about a foot’” 

below floor level.44 We directed that the cause be remanded 

for further proceedings consistent with our opinion. Although 

the facts in Kuhn were considerably different, the same principle applies to the instant case. The focus has been on the 

Tri-Par Investments rule. The circumstances dictate that we 

likewise remand the cause for further proceedings consistent 

with this opinion.

(d) Resolution

Under the circumstances of this case, we decline to direct 

entry of partial summary judgment in favor of SFI. Rather, we 

remand the cause for further proceedings.

VI. CONCLUSION

The judgment of the district court granting Carroll’s motion 

for summary judgment and dismissing SFI’s complaint is 

reversed, and the cause is remanded to the district court for 

further proceedings consistent with this opinion.

 Reversed and remanded

further proceeding

44 Id. at 432, 771 N.W.2d at 110.

State of Nebraska, appellee

Francisco C. Rodriguez, 

___ N.W.2d ___

Filed August 1, 2014. No. S-13-325.

1. Jurisdiction: Appeal and Error. Subject matter jurisdiction is a question of law 

for the court, which requires an appellate court to reach a conclusion independent 

of the lower court’s decision.

2. Statutes: Legislature: Intent: Appeal and Error. In construing a statute, an 

appellate court’s objective is to determine and give effect to the legislative intent 

of the enactment.